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The Few, The Proud, The Forgotten v. United States Department of Veterans Affairs

United States District Court, D. Connecticut

May 26, 2017

THE FEW, THE PROUD, THE FORGOTTEN; VIETNAM VETERANS OF AMERICA; and CONNECTICUT STATE COUNCIL OF VIETNAM VETERANS OF AMERICA, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         The Few, The Proud, The Forgotten, Vietnam Veterans of America, and the Connecticut State Council of Vietnam Veterans of America (together, “Plaintiffs”), brought this action against the United States Department of Veterans Affairs (“Defendant”), raising two claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et. seq., concerning a request for Defendant's records. Plaintiffs argued (1) that Defendant failed to make an official determination regarding Plaintiffs' FOIA request within the statutorily mandated period, violating 5 U.S.C. § 552(a)(6)(A); and (2) that Defendant did not make reasonable efforts to search for the records requested and to release responsive records promptly, violating 5 U.S.C. § 552(a)(3)(C).

         Defendant has moved for partial summary judgment. For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED in part.

         I. Factual Background

         All of the facts recited below, derived from the Complaint [ECF No. 1] and the parties' Local Rule 56(a) Statements, exhibits, affidavits, and supplemental filings, are undisputed unless otherwise noted, and the Court presents all facts “in the light most favorable to the nonmoving party”-here, Plaintiffs-after drawing “all reasonable inferences in [their] favor.” Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000) (quotation marks omitted). The Court relies on the Complaint for the limited purpose of describing Plaintiffs and their FOIA request, not to establish the record concerning Defendant's liability under FOIA.[1]

         Defendant, the U.S. Department of Veterans Affairs (“Veterans Affairs”) is the federal agency responsible for providing benefits and compensation to veterans who are disabled due to their military service. Compl. ¶ 6. This case concerns Plaintiffs' request for Defendant's records concerning the Subject Matter Expert (“SME”) program. Defendant implemented this program in 2012 to facilitate the adjudication of disability claims relating to water contamination at Camp Lejeune, a Marine Corps Base in North Carolina. See FOIA Request, Compl. Ex. 1, p. 1.

         The Few, The Proud, The Forgotten (“TFTPTF”), founded in 1997 and led by retired Marine Master Sergeant Jerome Ensminger, focuses on water contamination at Camp Lejeune. Compl. ¶ 3.

         Plaintiff Vietnam Veterans of America (“VVA”), founded in 1978, has 75, 000 members and 635 chapters nationwide. Compl. ¶ 4. One of the organization's “advocacy priorities is addressing the impact of toxic exposures on veterans and their families.” Id.

         Plaintiff Connecticut State Council of Vietnam Veterans of America (“VVA-CT”) is a Vietnam Veterans of America State Council that represents members of VVA's five Connecticut chapters and members at large. Compl. ¶ 5. VVA-CT is based in New Britain, Connecticut. Id.

         Veterans Benefits Administration (“VBA”) is the component of Veterans Affairs “responsible for oversight of the delivery of disability compensation to veterans with disabilities that are the result of a disease or injury incurred or aggravated during military service.” Def.'s L.R. 56(a) Stmt. ¶ 7. VBA “is responsible for adjudicating disability claims by veterans, including disability claims made in connection with service at Camp Lejeune.” Id. Veterans Health Administration (“VHA”) is another component of Veterans Affairs. Id. at ¶ 22. It is “responsible for the delivery of medical care to veterans through the administration and operation of various medical centers and clinics.” Id.

         A. Water Contamination at Camp Lejeune and the SME Program

         Plaintiffs seek records concerning Veterans Affairs' compensation scheme for injuries caused to veterans by contaminated water at Camp Lejeune. According to Plaintiffs, for many years, Camp Lejeune contained contaminated water that “caused serious illnesses, including bladder cancer, leukemia, kidney cancer, and liver cancer.” Compl. p.1-2. Between 1953 and 1987, Plaintiffs state, “nearly one million Marines, sailors, civilian employees, and military family members aboard Marine Corps Base Camp Lejeune unknowingly drank, cooked with, and bathed in contaminated water.” Id. Today, Veterans Affairs provides benefits for disabilities resulting from or exacerbated by their military service, including those caused by this contamination. Id.

         Plaintiffs believe that Veterans Affairs has “denied the overwhelming majority of disability claims from Camp Lejeune veterans.” Compl. p. 1. While few details about the SME program have been released to the public, Plaintiffs argue that the program “made it even more difficult for veterans to obtain disability benefits for disabilities resulting from contamination at Camp Lejeune.” Compl. p. 1. They note that, after Veterans Affairs implemented the SME program, the grant rate for Camp Lejeune claims has dropped from 25% to 8%. Id. at ¶ 13. They seek information about how the SME program operates, arguing that “the little that is known about the program suggests fundamental flaws in Veterans Affairs' criteria for selecting SMEs, and the SMEs's methodology, training, and expertise.” Id.

         B. The FOIA Request

         On December 7, 2015, Plaintiffs sent at least one twenty-part FOIA request to Veterans Affairs, which were distributed to the VHA and the VBA. Def.'s L.R. 56(a) Stmt. ¶¶ 1, 3; Pl.'s L.R. 56(a) Stmt. ¶¶ 1, 3. The parties dispute whether Plaintiffs sent one request to Veterans Affairs, which was forwarded internally to VBA and VHA, or sent Defendant two identical requests, one to each component. See Id. Regardless, the record establishes that both VBA and VHA received Plaintiffs' request.

         In the request, Plaintiffs sought information concerning the SME program, including:

1. Any and all Records concerning the policies, procedures, objectives, development, creation, and implementation of the SME Program.
2. Any and all Records concerning the VA's selection criteria and minimum required credentials for SMEs participating in the Camp Lejeune SME Program.
3. Any and all Records concerning the qualifications and names of SMEs who have participated, or are currently participating, in the Camp Lejeune SME Program.

FOIA request, ¶¶ 1-3. Plaintiffs also sought other information concerning the SME program, including conflict of interest, training, compensation, and disclosure policies relating to the program. Id. at ¶¶ 4, 7. Plaintiffs also requested information concerning the role of SMEs in claims processing, including:

10. Any and all Records provided to VA employees, including VA Regional Office claim adjudicators, to train and educate VA employees on the Camp Lejeune SME Program, including, but not limited to, the role of SME reports and how to weigh and evaluate SME reports.
11. Any and all Records concerning guidance provided to adjudicators on whether to seek an SME report in the course of adjudication of a Camp Lejeune Water Contamination Claim.
12. Any and all Records concerning the VA's disclosure of SME reports, including but not limited to:
a. the VA's disclosure policy on SME Reports; and
b. the number of instances in which a claimant has requested a copy of the SME report generated in his or her case. For each claimant request, include information on how quickly the requested report was provided to the claimant or, if the request was denied, the grounds for withholding the SME report from the claimant.
13. Any and all Records concerning the total number of Camp Lejeune Water Contamination Claims decided prior to the implementation of the Camp Lejeune SME Program and the outcomes of those claims (including average time between submission of a claim and initial determination by a Regional Office, the number of denials, and the number of grants). This Request seeks records created before and after 2010.
14. Any and all Records concerning the impact of the Camp Lejeune SME Program on adjudication of claims, including but not limited to:
a. the total number of Camp Lejeune Water Contamination Claims that have been adjudicated since the institution of the Camp Lejeune SME Program and the outcomes of those claims (including average time between submission of a claim and initial determination by a Regional Office, the number of denials, and the number of grants);
b. the total number of Camp Lejeune Water Contamination Claims that have been reviewed by SMEs and the outcomes of those claims (including average time between submission of a claim and initial determination by a Regional Office, the number of denials, and the number of grants); c. the total number of Camp Lejeune Water Contamination Claims reviewed by each individual SME, including the number of claims that were approved and denied following review by each SME; and the total number of instances in which an adjudicator decided a case against the recommendation of an SME report.
15. The number of Camp Lejeune Water Contamination Claims that have been decided since Secretary McDonald assured Senators on a conference call in July 2015 that no claims would be denied until a presumption was proposed, including whether those claims were granted or denied.
16. Any and all Records concerning the annual costs of the Camp Lejeune SME Program.
17. Any and all Records concerning the remuneration paid to SMEs by the VA.

Id. at ¶¶ 10-17.

         Plaintiffs also sought records concerning agency communications in paragraph 19, in which they specifically requested:

Any and all Records concerning internal and external communications about the Camp Lejeune SME Program, including but not limited to communications involving Dr. Terry Walters, Dr. Gerald Cross, Brad Flohr, Dr. Michael Koopmeiners, Dr. Victoria Cassano, Dr. Carolyn Clancy, Dr. Ralph Erickson, Dr. Deborah Heaney, Dr. Ronald F. Teichman; Dr. Wanda Blaylark, Dr. Gary B. Wilhelm, Dr. Amir Mohammad; Dr. Ronit Ben-Abraham Katz:
a. concerning the proposal, development, objectives, and implementation of the Camp Lejeune SME Program;
b. between SMEs pertaining to the Camp Lejeune SME Program;
c. between SMEs and other VA employees pertaining to the Camp Lejeune SME Program;
d. between VA employees and Congressional staff regarding the inception or operation of the Camp Lejeune SME Program, including but not limited to minutes from the July 2015 and December 2015 meetings between VA Secretary McDonald and Members of Congress, including Senators Burr and Tillis;
e. between VA employees pertaining to the Camp Lejeune SME Program; and f. discussing or responding to media inquiries concerning the Camp Lejeune SME Program.

Id. at ¶ 19.

         By December 21, 2015, Veterans Affairs decided that VBA would be responsible for responding to paragraphs 10, 12, 13, 14, 15, 16, 17, 19, and part of 20 of Plaintiffs' request, and VHA would respond to the rest. Def.'s L.R. 56(a) Stmt. ¶ 4. In June 2016, Veterans Affairs determined VHA would also be responsible for paragraphs 16 and 17 of the request. Id. at ¶ 5. Both agency components began to search for responsive documents.

         C. VBA's Search and Production

         VBA's FOIA officer, Bertha Brown, responded to Plaintiffs' FOIA request. On August 31, 2016, Ms. Brown mailed a letter to Plaintiffs with documents responsive to their request. Def.'s L.R. 56(a) Stmt. ¶ 33 (citing Aug. 31, 2016 Letter, Brown Decl. II, Ex. A). Ms. Brown made certain redactions to the records she sent to Plaintiffs. Specifically, she redacted “the names and identifying details of individuals (Rating Veteran Service Representatives (RVSRs)) working as decision makers on specific tasks, work that may be considered contentious to those associated with the subject matter.” Id. at ¶ 34. VBA also redacted the email addresses and phone numbers of employees. Id. In its cover letter to Plaintiffs, VBA cited Exemption 6 of the FOIA statute. Id.

         Ms. Brown also “submitted an inquiry to Mr. Brad Flohr, ” Senior Advisor to the Compensation Service at VBA. Opp. Mem., 41. Ms. Brown explained that she “wanted to meet with a subject matter expert for the Camp Lejeune to discuss [Plaintiffs'] FOIA request in detail.” Brown Decl. I ¶ 6. Mr. Flohr helped her determine how to divide the FOIA request between VHA and VBA. Id. Mr. Flohr also serves as VBA representative on a community committee concerning the SME program. Opp. Mem., 8.

         D. VHA's ...


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