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Demoruelle v. Department of Veterans Affairs

United States District Court, D. Hawaii

June 30, 2017




         On December 14, 2016, pro se Plaintiffs Joseph Louis Demoruelle and Sandra Lee Demoruelle (“Plaintiffs”) filed a Motion for Summary Judgment (“Plaintiffs' Motion”). [Dkt. no. 14.] On January 24, 2017, Defendant Department of Veterans Affairs (“the VA”) filed a Cross-Motion for Summary Judgment (“the VA's Motion”). [Dkt. no. 33.] Plaintiffs filed a joint memorandum in opposition to the VA's Motion and reply in support of Plaintiffs' Motion on January 30, 2017 (“Plaintiffs' Joint Memorandum”), and the VA filed a reply on February 10, 2017. [Dkt. nos. 36, 38.] The Court finds these matters suitable for disposition without a hearing pursuant to Local Rule LR7.2(d). In an Entering Order filed on March 29, 2017 (“3/29/17 EO”), the Court granted the VA's Motion and granted in part and denied in part Plaintiff's Motion. [Dkt. no. 40.] The instant Order supersedes the 3/29/17 EO. The VA's Motion is granted and Plaintiff's Motion is granted in part and denied in part for the reasons set forth below.


         Plaintiffs filed their Amended Complaint for Declaratory, Injunctive and Monetary Relief (“Amended Complaint”) on November 16, 2016. [Dkt. no. 10.] Plaintiffs bring the Amended Complaint pursuant to the Privacy Act of 1974 (“Privacy Act”), 5 U.S.C. § 552a, and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. [Amended Complaint at ¶¶ 3, 8.] Plaintiffs state that, “[t]hroughout 2016, [they] have been seeking to review and amend errors in Personally Identifiable Information (“PII”) that [the VA] has obtained through Plaintiff Joseph Louis Demoruelle's submissions of Beneficiary Travel Reimbursement claim forms 10-3542.” [Id. at ¶ 14.] Plaintiffs allege various violations of FOIA and the Privacy Act, including: failure to maintain accurate and complete records, in violation of the Privacy Act; [id. at ¶¶ 30-32;] failure to respond to Privacy Act and FOIA requests; [id. at ¶¶ 33-36;] failure to provide a tracking number for responses to FOIA and Privacy Act requests; [id. at ¶¶ 37-38;] improper withholding of agency records; [id. at ¶¶ 39-40;] failure to provide non-exempt agency records within FOIA's time constraints; [id. at ¶¶ 41-42;] “an impermissible pattern or practice of improper withholding of agency records”; [id. at ¶¶ 43-44;] and intentional or willful withholding of agency records [id. at ¶¶ 45-46]. Plaintiffs seek, inter alia: an order requiring the VA to disclose all requested, non-exempt information; an order enjoining the VA from withholding documents in the future; an order enjoining the VA from ending its “pattern and practice of no agency response or delayed response”; “focused discovery on pattern and practice of arbitrary and capricious behavior”; damages under the Privacy Act; costs and attorneys' fees; and “other such relief as the Court may deem just and proper.” [Id., Prayer for Relief ¶¶ 50(a)-(i).]


         The instant case is one in a series of cases Plaintiffs have filed challenging the VA's actions, including a case that also challenged the VA's response to FOIA and Privacy Act requests. See Demoruelle v. Dep't of Veterans Affairs (“VA”), CV 15-00246 LEK-KSC. Plaintiffs are proceeding pro se, and the Court must liberally construe their pleadings. See, e.g., Pregana v. CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 1966671, at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes the [plaintiffs'] filings because they are proceeding pro se.” (citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).

         I. Defendant's Summary Judgment Motion

         The VA seeks summary judgment on all of Plaintiffs' claims because, although sometimes outside of the time period designated by statute, the VA has complied with all of Plaintiffs' requests for information. [The VA's Motion at 2.] The Amended Complaint notes a number of requests to the VA for information, and the way that these requests are related is sometimes hard to understand. The VA, however, explains that Plaintiffs made ten requests under the Privacy Act and/or FOIA. [Joint Mem. in Opp. to Plaintiffs' Motion and in Supp. of the VA's Motion (“The VA's Joint Mem.”) at 1-2.] Plaintiffs do not dispute this description of their claims. The Court will consider each of Plaintiffs' requests in turn.

         A. FOIA Requests

         The Ninth Circuit has explained that “[t]he FOIA's ‘core purpose' is to inform citizens about ‘what their government is up to.'” Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 687 (9th Cir. 2011) (quoting Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)), overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016) (en banc) (per curiam).

Under the FOIA, a plaintiff's ability to obtain relief “is dependent upon a showing that an agency has (1) ‘improperly'; (2) ‘withheld'; (3) ‘agency records.'” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). A federal court can provide a remedy pursuant to the FOIA only “if the agency has contravened all three components of this obligation.” Id.; see also Spurlock v. FBI, 69 F.3d 1010, 1015 (9th Cir. 1995).
As with other types of civil cases, a suit under the FOIA can be rendered moot by events subsequent to its filing. The remedy requested here is one typical in a FOIA action: that the court “enjoin the agency from withholding agency records and . . . order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). As we have previously observed, “the production of all nonexempt material, ‘however belatedly, ' moots FOIA claims.” Papa [v. United States], 281 F.3d [1004, ] 1013 [(9th Cir. 2002)] (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)). . . .

Id. at 689 (some alterations in Yonemoto).

         Plaintiffs submitted eight FOIA requests. See The VA's Concise Statement of Facts (“the VA's CSOF”), filed 1/24/17 (dkt. no. 35), Decl. of Allison Tanaka (“Tanaka Decl.”), [1] Exh. A1 (“10/26/15 FOIA Request”); id., Exh. C1 (“6/8/16 FOIA/Privacy Act Request”); id., Exh. D1 (“7/26/16 FOIA Request”); id., Exh. E1 (“7/27/16 FOIA/Privacy Act Request”); id., Exh. F1 (“8/14/16 FOIA/Privacy Act Request”); id., Exh. G1 (“8/14/16 FOIA Request A”); id., Exh. H1 (“8/14/16 FOIA Request B”); id., Exh. I1 (“8/19/16 FOIA/Privacy Act Request”). The VA submits that it “has conducted a search reasonably calculated to uncover all relevant documents and has completed its FOIA obligations with regard to those requests.” [The VA's Joint Mem. at 19.] Plaintiffs do not dispute this. See Pltfs.' Concise Statement of Facts in Opp. to the VA's Motion (“Pltfs.' CSOF in Opp.”), filed 1/30/17 (dkt. no. 37), at 2 (“As Plaintiffs informed VA Counsel when the motion for enlarged pleading consent was requested, they willingly stipulate they have received, or do not dispute that VAPIHCS has done a reasonable search, for all FOIA requests.”). Because Plaintiffs do not challenge the adequacy of the VA's search with regard to their FOIA claims, the Court finds that there is no question of material fact and concludes that the VA is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(b) (“The 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.”).

         B. Privacy Act Requests

         Three types of Privacy Act claims are relevant to instant matter. First,

[a]ccuracy claims arise under two different provisions of the Act. The first requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” See 5 U.S.C. § 552a(e)(5). The second mandates that “prior to disseminating any record about an individual to any person other than an agency . . . [it must] make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes.” Id. § 552a(e)(6). Congress has provided for civil remedies for violation of these provisions. See id. § 552a(g)(1)(C) (creating a cause of action when an agency “fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual”); id. § 552a(g)(1)(D) (creating a cause of action where an agency “fails to comply with any other provision of this section . . . in such a way as to have an adverse effect on an individual”). If a court determines that an agency has violated these provisions in a manner that was “intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of actual damages sustained by the individual.” Id. § 552a(g)(4).

Rouse v. U.S. Dep't of State, 567 F.3d 408, 413-14 (9th Cir. 2009) (some alterations in Rouse).

         Second, § 552a(d)(1) concerns access to records:

Access claims, on the other hand, arise under a different provision, id. § 552a(d)(1) (requiring that agencies provide an individual “access to his record” “upon request”), and can likewise be enforced via civil action, id. § 552a(g)(1)(B) (creating a cause of action when an agency “refuses to comply with an individual request under subsection (d)(1)”).

Id. at 414.

         Finally, for purposes of the summary judgment motions considered here, § ...

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