Maryland v. VA, No. 14-1318, 2015 WL 5464682 (D.D.C. Sept. 17, 2015) (Collyer, J.)

Maryland v. VA, No. 14-1318, 2015 WL 5464682 (D.D.C. Sept. 17, 2015) (Collyer, J.)

Re: Request for records concerning VA website that serves as federal government portal for veteran-owned businesses

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[b]y failing to appeal [one] determination . . . [plaintiff] has failed to exhaust his administrative remedies with respect to it and the issue is therefore not subject to judicial review."  However, the court finds that "[plaintiff] appealed to OGC two [other] issues" and finds that "[t]hese are the only two issues that have been exhausted administratively and are subject to judicial review."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that "[b]ecause no fee was ultimately assessed for answering [plaintiff's] [r]equest, determining whether [defendant] properly placed [plaintiff] in the commercial requester category would not affect [plaintiff's] rights in this case."  "Because the 'rule against deciding moot cases forbids federal courts from ... decid[ing] questions that cannot affect the rights of litigants in the case before them,' . . . the Court will dismiss [plaintiff's] claim that he was placed in the wrong fee category with respect to his . . . [r]equest."  Additionally, "[t]he Court declines to address [plaintiff's] request to be categorized as a 'representative of the news media' because doing so would run counter to the prohibition on issuing advisory opinions."
   
• Litigation Considerations:  Regarding plaintiff's overarching argument in this case, the court holds that "[plaintiff] is incorrect that [defendant] is limited to arguments it made at the administrative level."  "A district court reviews an agency's invocation of FOIA exemptions de novo."
   
• Exemption 6:  "[T]he Court concludes that the email addresses at issue fall within the scope of Exemption 6."  The court relates that "VA invokes FOIA Exemption 6 to withhold the names of individuals that are contained in the email addresses of businesses whose applications were rejected for inclusion on the VetBiz database."  The court finds that "[t]he public interest in the release of email addresses containing individual's names is practically nonexistent."  "Releasing individuals' names in email addresses will not serve to shed light on [defendant's] conduct."  "On the other hand, release of these email addresses . . . may . . . subject [the submitters] to stigma if they are publicly identified as being connected with businesses who were denied inclusion in the VetBiz database."  "By applying to have their business profiles included on the VetBiz database, submitters consent (expressly or impliedly) to the public display of their email addresses."  "However, it does not follow that individuals whose applications have been denied and whose information is therefore not published on the VetBiz database waive their privacy interest in their identities and email addresses."
   
• Attorney Fees:  Regarding "[plaintiff's] request[] [for] expenses he incurred in the administrative appeal of his . . . [r]equest[,]" the court finds that "FOIA does not provide for the recovery of attorney fees incurred during the administrative process."  "In addition, [plaintiff] proceeds pro se and thus has not incurred attorney fees in bringing his appeal."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  "Because of the discrete nature of the information withheld under Exemption 6—email addresses—the Court is satisfied that there are no reasonably segregable portions of that information that can or must be released."  "The Court will not order [defendant] to release the '@' symbol or the domain of each withheld email address."
   
• Litigation Considerations, Pleadings:  The court notes that, "[i]n passing, [plaintiff] argues that he is entitled to summary judgment because [defendant] did not conduct a reasonable search for records."  However, the court notes that "[n]either party briefed this issue."  "Therefore, the Court will not address this allegation, raised for the first time in [plaintiff's] cross-motion for summary judgment."