United States District Court, D. Connecticut
A. BOLDEN, UNITED STATES DISTRICT JUDGE
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.
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.
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.
reasons that follow, the Court DENIES the
Plaintiffs' motion for summary judgment or civil
contempt, ECF No. 147.
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,
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)).
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.”
April 27, 2016, Plaintiffs filed the Complaint.
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.
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.
18, 2016, Defendant answered the Complaint. Answer, ECF No.
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  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.
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.
April 24, 2017, the Court held a hearing on the motion for
summary judgment. Min. Entry, ECF No. 38.
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.
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.
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.
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.
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.
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.
February 14, 2018, Plaintiffs filed a status report,
Pls.' Status Report, ECF No. 66.
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.
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.
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.
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.
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.