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The Few v. United States Department of Veterans Affairs

United States District Court, D. Connecticut

August 14, 2019

THE FEW, THE PROUD, THE FORGOTTEN, et al., Plaintiffs,



         On December 7, 2015, Connecticut State Council of Vietnam Veterans of America, The Few, The Proud, The Forgotten, and the Vietnam Veterans of America (together, “Plaintiffs”), submitted a request to the United States Department of Veterans Affairs (“Defendant” or “Veterans Affairs”) under the Freedom of Information Act (“FOIA”) to obtain information about “the development, creation, procedures, objectives, and implementation of Defendant's Camp Lejeune subject matter expert [‘SME'] program.” Compl., ECF No. 1, at 1.

         On April 27, 2016, Plaintiffs brought this action, raising two Freedom of Information Act claims, 5 U.S.C. § 552 et seq., and arguing that Veterans Affairs had failed to respond to Plaintiffs' request within the statutory deadline. Compl. at 1.

         Years into this litigation, see Order Granting in Part and Denying in Part Mot. for Summ. J. (“Summ. J. Order”), ECF No. 39; Order on Mot. for Civil Contempt, ECF No. 98, Plaintiffs allege that “Defendant [produced but]. . . improperly redacted” the requested documents, Pls.' Mot. for Summ. J. or, in the Alternative, for Civil Contempt (“Pls.' Mot.”), ECF No. 147. Plaintiffs move for summary judgment or civil contempt and an Order compelling Defendants to remove certain redactions. Pls.' Mem. of Law in Supp. of Their Mot. for Summ. J. or, in the Alternative, for Civil Contempt (“Pls.' Mem.”), ECF No. 147-1, at 15.

         For the reasons that follow, the Court DENIES the Plaintiffs' motion for summary judgment or civil contempt, ECF No. 147.

         Consistent with this Court's prior Orders and its inherent authority to manage its docket with a “view toward the efficient and expedient resolution of cases, ” Dietz v. Bouldin, 136 S.Ct. 1885, 1892 (2016), however, the Court orders Defendants to complete production by providing the already produced resumes and e-mails without the redaction of the subject matter expert names by September 20, 2019.

         Following this September 20th deadline, this case will be closed, but the Court will retain jurisdiction, to the extent necessary to enforce this Order. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-80 (1994) (“Generally speaking, we have asserted ancillary jurisdiction (in the very broad sense in which that term is sometimes used) for two separate, though sometimes related, purposes: (1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees[.]”) (internal citations omitted)).


         A. Factual Background[1]

         Between 1953 and 1987, “nearly one million Marines, sailors, civilian employees, and military family members aboard Marine Corps Base Camp Lejeune [allegedly] unknowingly drank, cooked with, and bathed in contaminated water.” Compl. at 1. The water at Camp Lejeune allegedly “caused serious illnesses, including bladder cancer, leukemia, kidney cancer, and liver cancer.” Id.

         Veterans are allegedly entitled to benefits for disabilities resulting from or exacerbated by their military service, including those caused by toxic exposure. Id. Veterans Affairs has allegedly denied the overwhelming majority of disability claims from Camp Lejeune veterans. Id. In 2012, Veterans Affairs allegedly added a new step in the disability adjudication process and appointed subject matter experts to review the claims of Camp Lejeune veterans. Id. Since Veterans Affairs implemented the SME program, the success rate of Camp Lejeune claims allegedly dropped from twenty five percent to eight percent. Compl. at 2.

         Despite alleged criticism of the SME program in at least one news outlet, id., Veterans Affairs has allegedly refused to provide details about how the SME program operates, including the methodology, training, and expertise of the SMEs. Id. Veterans Affairs has allegedly hailed the SME program as the “model for the future.” Id.

         B. Procedural Background

         On April 27, 2016, Plaintiffs filed the Complaint.

         On June 9, 2016, Defendant appeared in the case. Notice of Appearance by John W. Larson on behalf of United States Department of Veterans Affairs, ECF No. 8.

         That day, the parties filed a consent motion for an extension of time for Defendant's responsive pleading. Consent Mot. for Extension of Time to Plead, ECF No. 9. This was the first of eight motions for extension of time granted by the Court. See Mots. for Extension, ECF No. 9, 15, 24, 40, 67, 89, 109, 138; see also Orders Granting Mots. for Extension, ECF No. 10, 17, 25, 41, 73, 90, 110, 139.

         On July 18, 2016, Defendant answered the Complaint. Answer, ECF No. 18.

         On August 8, 2016, Plaintiff moved for a status conference. Pls.' Mot. for Status Conf., ECF No. 19. The next day, the Court granted the motion. Order Granting [19] Mot. for Scheduling Conf., ECF NO. 20. On August 26, 2016, the Court held the first of more than ten status conferences. Min. Entry, ECF No. 22, see also Min. Entries, ECF Nos. 45, 52, 57, 63, 114, 121, 126, 127, 135.

         Following the first status conference, the Court issued the first of three Scheduling Orders for the case. Scheduling Order, ECF No. 23, see also Am. Scheduling Order, ECF No. 105; Scheduling Order, ECF No. 22 On December 23, 2016, Defendant moved for summary judgment. Mot. for Summ. J., ECF No. 26. On January 27, 2017, Plaintiffs filed a memorandum in opposition to summary judgment. Mem. in Opp., ECF No. 31. On February 10, 2017, Defendant replied. Reply to Resp. to Mot. for Summ. J., ECF No. 32.

         On April 24, 2017, the Court held a hearing on the motion for summary judgment. Min. Entry, ECF No. 38.

         On May 26, 2017, the Court granted in part and denied in part Defendant's motion for summary judgment. Order Granting in Part and Denying in Part Mot. for Summ. J. (“Summ. J. Order”), ECF No. 39.

         The Court found that Defendant had provided records concerning the number of Camp Lejeune Water Contamination Claims adjudicated since the start of the SME program and following VA Secretary McDonald's 2015 conference call with Senators, as well as the outcome of those claims, and related data (i.e., in response to FOIA request paragraphs 14 and 15). Id. at 31. Otherwise, the Court found that Defendant had not adequately performed the remaining searches or allocated responsibility for the searches between the Veterans Benefits Administration and Veterans Health Administration. Id. The Court also ruled that Defendant had not yet adequately invoked FOIA Exemption 6. Id.

         On June 16, 2017, Defendant moved for an extension of time to comply with the Court's Order. First Mot. for Ext. of Time, ECF No. 40. The Court granted the extension and set a July 10, 2017 deadline for supplemental document production and a July 24, 2017 deadline for supplemental search declarations. Order, ECF No. 41. Defendant did not meet these deadlines.

         On October 4, 2017, the Court granted Defendant's oral motion for an extension of time until October 20, 2017 for supplemental declarations and January 12, 2018 for document production. Min. Entry, ECF No. 45.

         On December 19, 2017-more than six months after its summary judgment ruling-the Court ordered that if Veterans Affairs could not meet the production deadline, it must send a representative from the Agency with the appropriate authority and technical knowledge to testify in person about the reasons for the production delays and to set a schedule for the efficient resolution of the case. Order, ECF No. 59.

         On January 31, 2018, the Court convened a discovery compliance hearing. Min. Entry, ECF No. 63. Following that hearing, the Court ordered: (1) Plaintiffs to submit additional search terms to the Defendant by February 7, 2018; (2) the parties to file separate status reports with the Court by February 14, 2018; and (3) the parties and representatives from Veterans Affairs to return to Court for a follow-up hearing on Monday, February 26, 2018. Order, ECF No. 64.

         On February 14, 2018, Plaintiffs filed a status report, Pls.' Status Report, ECF No. 66.

         The next day, Defendant moved for an extension of time, nunc pro tunc, and filed its status report. Mot. for Extension, ECF No. 67; Status Report, ECF No. 68. In its status report, Defendant explained that “at the time of the January 31, 2018 hearing . . . additional employees were being trained and brought into this project, and they now are on board.” Status Report at 3. Defendant proposed that it file monthly status reports until the conclusion of production. Id. at 6. Defendant also proposed, and separately moved for, a modification of the Court's order requiring a Veterans Affairs representative to personally appear at the February 26, 2018 conference. Mot. to Modify Order, ECF No. 69.

         On February 16, 2018, Plaintiffs moved for “an order requiring the Defendant to show cause why it should not be held in civil contempt for violation of this Court's order to finish production of responsive records by January 12, 2018.” Mot. for an Order to Show Cause for Contempt or, in the Alternative, Why a Stay Should Issue, ECF No. 76. Plaintiffs argued that “after years of delay and multiple failures to comply with previous court orders, the Defendant still refuses to commit to a date when it will finish the production of responsive documents.” Id. at 1.

         On February 20, 2018, the Court denied Defendant's motion to modify its Order and required Veterans Affairs personnel to appear at the February 26, 2018 hearing. Order, ECF No. 83.

         On February 26, 2018, the Court held a nearly hour long discovery production hearing. Min. Entry, ECF No. 86. That day, the Court set April 10, 2018 as the date for a hearing on outstanding discovery and Plaintiffs' motion for civil contempt. Order to Show Cause, ECF No. 87.

         In March 2018, the parties filed status reports, ECF Nos. 92-93, and Plaintiffs filed additional support for their motion for civil contempt, Pls.' Proposed Findings of Fact, ECF No. 95; ...

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