Alford v. VA, No. 16-2170, 2017 WL 4342062 (D.D.C. Sept. 28, 2017) (Lamberth, J.)

Alford v. VA, No. 16-2170, 2017 WL 4342062 (D.D.C. Sept. 28, 2017) (Lamberth, J.)

Re:  Requests for records concerning VA's decision to terminate plaintiff's participation in vocational rehabilitation program

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying defendant's motion to dismiss plaintiff's first amended complaint; granting plaintiff's motion for costs; denying plaintiff's motion to amend complaint to request a hearing

• Procedural Requirements, Searching for Responsive Records:  "[T]he Court must deny summary judgment to the VA with respect to [two] requests."  The court finds that "one of the defendant's own exhibits, . . . the defendant's subsequent search of an electronic database for updated versions of a document contained in the CER folder, . . . and statements made by the defendants in their most recent filing, . . . all indicate to the Court that the VA should have searched beyond the file cabinet containing [plaintiff's] . . . file for information responsive to his request."  Regarding another request, the court finds that "[d]espite certain aspects of the record before the Court being difficult to sort through, the Court finds it difficult to grasp what exactly about [plaintiff's] September request might have been confusing to the VA, and why the VA thought it an acceptable course of action to simply not [respond] to a disabled veteran's request for records about himself as they might relate to a time-limited appeal of a denial of benefits."  "Nevertheless, the Court does not agree with [plaintiff] that these errors evince bad faith on the part of the government in this proceeding."  Also, the court finds that "[t]he VA's declarations describing its search of the [one record] system are sufficiently detailed to satisfy the Court that the agency conducted a sufficient search for [certain documents which would be contained in that system] related to [plaintiff]."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "defendant's motion to dismiss is . . . denied."  The court explains that, "[a]lthough the FOIA's administrative scheme tends to 'favor[ ] treating failure to exhaust as a bar to judicial review,' . . . that same scheme also requires agencies to be responsive to FOIA requests in the first instance, and with certain particularity."  "With respect to [plaintiff's] fourth request (and, until the VA filed its motion for summary judgment, his third, as well), the VA failed in this regard."  "Further, [plaintiff] cannot be said to have bypassed the agency's administrative process because the agency's failure to acknowledge his request both violated its own regulations, . . . and denied [plaintiff] the opportunity to comply with its regulations."
   
• Attorney Fees:  The court holds that "[t]he Boolean change in the VA's approach – going from wholly non-responsive, to providing a reasonably detailed explanation as to why there were no documents responsive to [plaintiff's] September request, for the purposes of this case where [plaintiff] was subject to agency-imposed deadlines in a related matter, represents the kind of changed course that merits an award of costs to [plaintiff], at least to the extent of his filing fee."
   
• Litigation Considerations, Relief:  "Despite the VA's and counsel's numerous unforced errors in this case and the Court's own frustrations laid bare in this Opinion, the Court does not see evidence of bad faith that might merit a hearing."  "Scheduling a hearing at this juncture would be unlikely to bring any more swift or complete resolution to the issues outstanding in this case, and it does not appear to the Court that justice requires an amendment in this instance."