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Ercole v. Wilkie, No. 19-11961, 2023 WL 6812300 (S.D.N.Y. Oct. 16, 2023) (Broderick, J.)


Ercole v. Wilkie, No. 19-11961, 2023 WL 6812300 (S.D.N.Y. Oct. 16, 2023) (Broderick, J.)

Re:  Requests for records concerning certain job vacancies

Disposition:  Granting defendants’ motion to dismiss; dismissing plaintiff’s compliant with leave to amend

  • Litigation Considerations, Pleadings:  The court relates that “Plaintiff alleges that he submitted two FOIA requests . . . and attaches the requests themselves as exhibits . . . .”  “Plaintiff alleges that the VA has ‘fail[ed] to provide the information to date,’ even though the ‘VA is far beyond the 20 day response requirement deadline as per FOIL/Sunshine Act [sic].’”  “Although Plaintiff may be alleging that the VA has ‘fail[ed] to make and communicate its “determination” whether to comply with a FOIA request’ within 20 days and that Plaintiff should therefore be deemed to have exhausted his administrative remedies, . . . the Amended Complaint is by no means clear with regard to this point.”  “I advise Plaintiff again to ‘explain whether the agency responded that he was not entitled to the requested documents’ and to ‘allege facts about whether he exhausted his administrative remedies.’”  “Finally, in a FOIA suit, Plaintiff must name the VA itself, and not U.S. Secretary of Veterans Affairs Denis R. McDonough, as the Defendant.”
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Pleadings
Updated November 17, 2023