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Zaldivar v. United States Department of Veterans Affairs

United States District Court, D. Arizona

August 22, 2016

Jose Adalberto Zaldivar, Sr., Plaintiff,
v.
United States Department of Veterans Affairs, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff Jose Adalberto Zaldivar, who is currently confined in the Arizona State Prison Complex-Eyman, brought this case pursuant to the Freedom of Information Act (FOIA) and the Privacy Act (PA). (Doc. 1.) Pending before the Court is a Motion for Summary Judgment filed by the Department of Veterans Affairs Regional Office- Phoenix (VARO) and the Department of Veterans Affairs Office of General Counsel (OGC).[1] (Doc. 49.) The Court will grant the Motion and terminate this action.

         I. Background[2]

         In his Complaint, Plaintiff alleged that he submitted six FOIA/PA requests to the VARO between 2002 and 2013, but that VARO failed to provide proper responses to these requests and the OGC denied an appeal filed by Plaintiff. (Doc. 1.) Plaintiff also alleged that the Veterans Affairs Office of Inspector General (OIG) failed to respond to his request for an appeals handbook. (Id.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim and directed the OIG, the VARO, and the OGC to answer the claims in Counts One and Two of the Complaint, and dismissed the remaining claims and Defendants. (Doc. 9.) Subsequently, the OIG filed a Motion to Dismiss the claim against it for lack of jurisdiction (Doc. 20), and the VARO and the OGC filed a Partial Motion to Dismiss three claims based on the statute of limitations (Doc. 21).

         On October 27, 2015, the Court granted both Motions to Dismiss, leaving only two remaining claims against the VARO and the OGC: (1) Plaintiff’s April 26, 2012 FOIA/PA request in Count One, and (2) Plaintiff’s May 20, 2013 FOIA/PA request in Count Two. (Doc. 34.) The VARO and the OGC now move for summary judgment on the two remaining requests.

         II. Summary Judgment

         A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a material factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         III. Discussion

         Defendants argue that (1) Plaintiff did not exhaust his administrative remedies with respect to the April 26, 2012 request, (2) the agency’s searches in response to both requests were adequate, and (3) any redactions of the personal information of Plaintiff’s former spouse in response to the May 30, 2013 request were proper. (Doc. 49.)

         A. April 26, 2012 Request

         1. Relevant Facts

         By letter dated April 26, 2012, Plaintiff filed a FOIA/PA request with the VARO seeking the following information:

(1) The application for VA compensation for Plaintiff’s “dependent spouse, ” referred to as an “application for apportionment”;
(2) A VA letter by Ms. LaCenia dated April 3, 2012;
(3) Correspondence in response to the application for apportionment;
(4) The address of the OIG;
(5) Notes, telephone calls, and inquiries regarding the application for apportionment;
(6) All documentation, applications, inquiries or requests made by letter or telephone regarding Plaintiff’s VA compensation claim, including the names, addresses and phone numbers of the requesting part(ies);
(7) The names, addresses, and phone numbers of spouses and children entitled to dependency and indemnity compensation.

(Doc. 51 (Defs.’ Statement of Facts (“DSOF”)) ¶ 1; Doc. 51-2 at 2-8.)[3]

         The VARO received Plaintiff’s request on May 4, 2012 and responded on May 30, 2012 by sending Plaintiff a copy of his entire claims file. The VARO explained that it did not include Plaintiff’s military service treatment records (STR) because those had been provided to him on November 10, 2011 in response to a previous request. (Doc. 51 ¶¶ 1, 2; Doc. 51-2 at 10.) The entire claims file and STR is over 3, 000 pages, and, according to the VARO’s FOIA/PA Officer, Marcelle Jeanisse, the VARO is the only location at the VA where “one would reasonably expect to find documents responsive to Plaintiff’s April 26, 2012 request.” (Doc. 51 ¶¶ 2-3; Doc. 51-3 at 3 ¶ 11.) Plaintiff received the VARO’s response, totaling 2, 476 pages, on June 21, 2012. (Doc. 66 ¶ 2; Doc. 65 ¶ 30.)

         Before he received the VARO’s response, Plaintiff, by letter dated June 4, 2012, filed an appeal with the VARO, asserting that he had not received any documents in response to his April 26, 2012 request. (Doc. 51 ¶ 4; Doc. 51-2 at 12-24.) The VARO noted on Plaintiff’s appeal letter that the FOIA request had already been completed and took no further action on the appeal. (Id. ¶ 6.) Plaintiff does not dispute that this notation was made on his appeal but he denies “the validity of those reasons.” (Doc. 66 ¶ 6.)

         By letter dated June 13, 2012, the Disabled American Veterans, acting as Plaintiff’s designated representative, requested Plaintiff’s claims file “to include STR’s and Apportionments.” (Doc. 51 ¶ 7; Doc. 51-2 at 26.) The VARO “Triage Team” that processes incoming mail noted on the letter, “FOIA Request Complete 5/30/2012 Already!!, ” and the VARO took no further action regarding the request. (Doc. 51 ¶ 8; Doc. 51-2 at 26.)

         2. Exhaustion

         a) Legal Standard

         FOIA requires that, upon receipt of a FOIA request, an administrative agency shall “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) . . . whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination. . . .” 5 U.S.C. § 552(a)(6)(A)(i). Likewise, an agency must make a determination within 20 days of receipt of an appeal. 5 U.S.C. § 552(a)(6)(A)(ii). If an agency does not respond to a FOIA request within the applicable time period, the requester may file a lawsuit, but “this option lasts only up to the point that an agency actually responds. Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990).

         “Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.” Oglesby, 920 F.2d at 61 (citing McKart v. United States, 395 U.S. 185, 194 (1969)). When administrative remedies have not been exhausted prior to suit, a FOIA claim is subject to dismissal. See Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (noting that an appeal made before an agency has acted on a FOIA request deprives the agency of the “opportunity to consider the very issues that [the plaintiff] has raised in court”).

         b) Analysis

         Defendants argue that Plaintiff did not comply with VA regulations by filing a proper appeal with the OGC within 60 days of an adverse determination, as required by 38 C.F.R. § 1.559(b) and (d). (Doc. 49 at 6.) Rather, Plaintiff filed a “premature appeal” with the VARO, and he never filed a proper appeal with the OGC after receiving VARO’s timely response to the April 26, 2012 request. (Id. at 6-7.)

         Plaintiff responds that he constructively exhausted his administrative remedies by filing a timely appeal to the VARO to the attention of “FOIA/Privacy Act Appeals Officer” by letter dated June 4, 2012. (Doc. 64 at 10.) Plaintiff asserts that he was unaware of 38 C.F.R. § 1.559 “due to circumstances beyond [his] control as to access to a meaningful adequate law library, ” and that he was using a 2008 version of the regulations. (Id.; Doc. 65 at 7 ¶ 43(d).) As to VARO’s contention that it timely responded to Plaintiff’s FOIA request on May 30, 2012, Plaintiff says the agency responded by “flooding [him] with excessive documents without having to provide specific documents requested in the April 26, 2012 FOIA/Privacy Act Request, especially not having to answer to the phone conversation contact with VA Rep. Ms. LaCenia on April 26, 2012.” (Id.)

         There is no dispute that the VARO received Plaintiff’s FOIA request on May 4, 2012, and responded by letter dated May 30, 2012, less than 20 business days after receiving the request, by providing Plaintiff with his entire claims file, minus the SRTs. Thus, the VARO timely responded to Plaintiff’s FOIA request. Plaintiff’s attempted appeal, claiming he did not receive a response, was filed before he received the VARO’s response on June 21, 2012.[4] (Doc. 51-2 at 12-14; Doc. 66 ¶ 2.) Plaintiff does not claim that he filed any appeal challenging the adequacy of the VARO’s response after he received it. By not filing an appeal on the VARO’s actual response, Plaintiff deprived the agency of “an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.” Oglesby, 920 F.2d at 61.

         Because Plaintiff did not file an appeal with respect to the VARO’s response to his April 26, 2012 FOIA request, he did not exhaust his administrative remedies. Accordingly, the Court will grant summary judgment to Defendants on Plaintiff’s April ...


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