Case Detail

FOIA Project Annotation: A federal court in Virginia has ruled that the Department of Veterans Affairs properly responded to requests from Empower Oversight Whistleblower & Research for records concerning a letter Sen. Charles Grassley (R-IA) sent to the VA seeking information about allegations of unethical conduct by officials within the Veterans Benefits Administration, including an alleged conflict of interests by the Executive Director of the VBA's Education Service, Charmain Bogue. The same day as he sent the letter to the VA, Grassley also sent a separate letter to the VA OIG asking it to investigate the allegations regarding Bogue. The search by the Office of the Secretary of Veterans Affairs yielded more than 1,000 records that were released over five interim responses. OIG released 16 responsive pages with redactions. Empower argued that it had a cause of action against the agency for its failure to respond on time. However, Judge Michael Nachmanoff noted that "moreover, 'FOIA does not create a cause of action for an agency's untimely response to a FOIA request.' Courts have found declaratory relief improper in FOIA cases even when an agency has failed to respond to an appeal at all." He added that "the Court finds Empower's claims regarding timeliness are moot. FOIA recognizes no right of declaratory relief or attorney's fees under the theory of timeliness." Empower challenged the adequacy of the search, alleging that the VA failed to search VIEWS records as requested by Empower. However, Nachmanoff explained that "the search of these email boxes did produce VIEWS records in the first, second, and fourth IADs. One of the search terms was the VIEWS number assigned to Sen. Grassley's letter, which Defendant further explained, was used because 'generally, VA staff communicate about VIEWS cases and tasks through email. . .to prepare Congressional correspondence. Notably, Empower did not object to the parameters of these searches." Empower also faulted OIG's search because it was limited to OIG records and did not include VA records as well. But Nachmanoff noted that "adequacy is measured by the 'reasonableness of the effort in light of the specific request.' In light of the specific request, OIG was not required, as Empower argues, to 'refine its search to include the first item of Empower Oversight's FOIA request.'" Nachmanoff approved the withholdings made by VA under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). As for whether the deliberative process privilege protected draft responses, he pointed out that "drafts are 'by definition, a preliminary version of a piece of writing subject to feedback and change.' Accordingly, the withheld draft responses 'allowed for the possibility of post-circulation changes.'" Such additions or deletions are the products of 'editorial judgments,' the disclosure of which 'would stifle the creative thinking and candid exchange of ideas necessary' for the agency to produce its final product."
Issues: Search - Reasonableness of search

Date Filed	Doc #	Docket Text
2022-05-16	1	Complaint ( Filing fee $ 402, receipt number AVAEDC-8392713.), filed by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Civil Cover Sheet)(Beelaert, Jeffrey) (Entered: 05/16/2022)
2022-05-17	2	Financial Interest Disclosure Statement (Local Rule 7.1) by Empower Oversight Whistleblowers & Research. (Beelaert, Jeffrey) (Entered: 05/17/2022)
2022-05-18	3	Proposed Summons re 1 Complaint, by Empower Oversight Whistleblowers & Research. (Beelaert, Jeffrey) (Entered: 05/18/2022)
2022-05-18	4	Proposed Summons re 1 Complaint, by Empower Oversight Whistleblowers & Research. (Beelaert, Jeffrey) (Entered: 05/18/2022)
2022-05-18	5	Proposed Summons re 1 Complaint, by Empower Oversight Whistleblowers & Research. (Beelaert, Jeffrey) (Entered: 05/18/2022)
2022-05-20	6	Summons Issued as to Department of Veterans Affairs, U.S. Attorney and U.S. Attorney General NOTICE TO ATTORNEY: Please remove the headers and print two duplexed copies of the electronically issued summons for each Defendant. Please serve one copy of the summons and a copy of the Complaint upon each Defendant. Please ensure that your process server returns the service copy (executed or unexecuted) to your attention and electronically file it using the filing events, Summons Returned Executed as to USA or Summons Returned Unexecuted as to USA. (Attachments: # 1 Summons Notice)(swil) (Entered: 05/20/2022)
2022-06-16	7	NOTICE of Appearance by Kirstin O'Connor on behalf of Department of Veterans Affairs (O'Connor, Kirstin) (Entered: 06/16/2022)
2022-06-17	8	ANSWER to Complaint by Department of Veterans Affairs.(O'Connor, Kirstin) (Entered: 06/17/2022)
2022-06-17	9	Amended ANSWER to Complaint by Department of Veterans Affairs.(O'Connor, Kirstin) (Entered: 06/17/2022)
2022-06-24	10	SCHEDULING ORDER:Initial Pretrial Conference set for 7/20/2022 at 11:00 AM in Alexandria Courtroom 500 before Magistrate Judge Theresa Carroll Buchanan. Final Pretrial Conference set for 11/17/2022 at 01:00 PM in Alexandria Courtroom 400 before District Judge Michael S Nachmanoff. Discovery due by 11/11/2022.. Signed by District Judge Michael S Nachmanoff on 6/24/2022. (lcre, ) (Entered: 06/24/2022)
2022-07-06	11	MOTION to Vacate the Scheduling Order by Department of Veterans Affairs. (Attachments: # 1 Proposed Order)(O'Connor, Kirstin) (Entered: 07/06/2022)
2022-07-06	12	Memorandum in Support re 11 MOTION to Vacate the Scheduling Order filed by Department of Veterans Affairs. (O'Connor, Kirstin) (Entered: 07/06/2022)
2022-07-06	13	Notice of Hearing Date set for 7/15/2022 re 12 Memorandum in Support, 11 MOTION to Vacate the Scheduling Order (O'Connor, Kirstin) (Entered: 07/06/2022)
2022-07-06		Set Deadlines as to 11 MOTION to Vacate the Scheduling Order . Motion Hearing set for 7/15/2022 at 10:00 AM in Alexandria Courtroom 500 before Magistrate Judge Theresa Carroll Buchanan. (clar, ) (Entered: 07/06/2022)
2022-07-06		MOTIONS REFERRED to Magistrate Judge: Buchanan. 11 MOTION to Vacate the Scheduling Order (clar, ) (Entered: 07/06/2022)
2022-07-12	14	Opposition to 11 MOTION to Vacate the Scheduling Order filed by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Beelaert, Jeffrey) (Entered: 07/12/2022)
2022-07-13	15	Joint Proposed Discovery Plan by Department of Veterans Affairs.(O'Connor, Kirstin) (Entered: 07/13/2022)
2022-07-14	16	REPLY to Response to Motion re 11 MOTION to Vacate the Scheduling Order filed by Department of Veterans Affairs. (O'Connor, Kirstin) (Entered: 07/14/2022)
2022-07-15	17	Minute Entry for proceedings held before Magistrate Judge Theresa Carroll Buchanan:Motion Hearing held on 7/15/2022 re 11 MOTION to Vacate the Scheduling Order filed by Department of Veterans Affairs. Appearances of counsel. Motion 11 is GRANTED. Joint Proposed Discovery Plan 15 is DENIED. Order to follow. (Tape #FTR.)(tfitz, ) (Entered: 07/15/2022)
2022-07-15	18	FOR REASONS stated from the bench, and in accord with specific rulings and instructions thereto, it is hereby ORDERED that Defendants' Motion 11 is GRANTED; and it is further ORDERED that the parties' Joint Proposed Discovery Plan 15 is DENIED. ENTERED this 15th day of July, 2022. Alexandria, Signed by Magistrate Judge Theresa Carroll Buchanan on 7/15/22. (tfitz, ) (Entered: 07/15/2022)
2022-07-21	19	NOTICE of Appearance by Meghan Elizabeth Loftus on behalf of Department of Veterans Affairs (Loftus, Meghan) (Entered: 07/21/2022)
2022-07-21	20	Consent MOTION to Stay the Case until August 16, 2022 by Department of Veterans Affairs. (Attachments: # 1 Proposed Order)(Loftus, Meghan) (Entered: 07/21/2022)
2022-07-22	21	ORDER granting 20 Motion to Stay. ORDERED that the instant action is STAYED until August 16, 2022. Signed by District Judge Michael S Nachmanoff on 7/22/2022. (swil) (Entered: 07/22/2022)
2022-08-15		Case Reassigned to Magistrate Judge John F. Anderson. Magistrate Judge Theresa Carroll Buchanan no longer assigned to the case. (jlan) (Entered: 08/15/2022)
2022-09-01	22	Consent MOTION for Leave to File Amended Complaint by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit Draft Amended Complaint, # 2 Proposed Order)(Beelaert, Jeffrey) (Entered: 09/01/2022)
2022-09-22	23	ORDER granting 22 Consent Motion for Leave to File Amended Complaint (see Order for details). Signed by Magistrate Judge John F. Anderson on 9/22/2022. (swil) (Entered: 09/22/2022)
2022-09-22	24	AMENDED COMPLAINT against Department of Veterans Affairs, filed by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Beelaert, Jeffrey) (Entered: 09/22/2022)
2022-10-06	25	ANSWER to Complaint by Department of Veterans Affairs.(O'Connor, Kirstin) (Entered: 10/06/2022)
2022-11-03	26	MOTION for Summary Judgment by Department of Veterans Affairs. (O'Connor, Kirstin) (Entered: 11/03/2022)
2022-11-03	27	Memorandum in Support re 26 MOTION for Summary Judgment filed by Department of Veterans Affairs. (Attachments: # 1 Exhibit Gowins-Bellamy Declaration, # 2 Exhibit Exhibits to Gowins-Bellamy Declaration, # 3 Exhibit OIG Vaughn)(O'Connor, Kirstin) (Entered: 11/03/2022)
2022-11-03	28	NOTICE by Department of Veterans Affairs re 27 Memorandum in Support, 26 MOTION for Summary Judgment Notice of Filing of Additional Exhibits (Attachments: # 1 Exhibit Ha Declaration, # 2 Exhibit Exhibits to Ha Declaration, # 3 Exhibit OSVA Vaughn, # 4 Exhibit DEX 5)(O'Connor, Kirstin) (Entered: 11/03/2022)
2022-11-03	29	Waiver of re 27 Memorandum in Support, 28 NOTICE, 26 MOTION for Summary Judgment Waiver of Hearing by Department of Veterans Affairs (O'Connor, Kirstin) (Entered: 11/03/2022)
2022-11-17	30	Opposition to 26 MOTION for Summary Judgment filed by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Beelaert, Jeffrey) (Entered: 11/17/2022)
2022-11-23	31	REPLY to Response to Motion re 26 MOTION for Summary Judgment filed by Department of Veterans Affairs. (Attachments: # 1 Exhibit DEX 6, # 2 Exhibit Ha Supplemental Declaration, # 3 Exhibit Gowins-Bellamy Supplemental Declaration, # 4 Exhibit Exhibits 17 & 18 to Gowins-Bellamy Supplemental Declaration)(O'Connor, Kirstin) (Entered: 11/23/2022)
2023-01-27	32	NOTICE by Empower Oversight Whistleblowers & Research (Attachments: # 1 Exhibit A, # 2 Exhibit B- ( placed under seal- attorney advised to file motion to seal ) (Beelaert, Jeffrey) Modified on 1/27/2023 (Dest). (Entered: 01/27/2023)
2023-01-27	33	Consent MOTION to Strike 32 NOTICE Exhibit B by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit B (substituted), # 2 Proposed Order)(Beelaert, Jeffrey) (Entered: 01/27/2023)
2023-01-30	34	ORDERED that the Unopposed Motion is GRANTED; and it is further ORDERED that Exhibit B (Dkt No. 32-2) will be substituted with the PDF document attached to the Motion in re 33 Consent Motion to Strike 32 NOTICE Exhibit B. Signed by Magistrate Judge John F. Anderson on 1/30/2023. (swil) (Entered: 01/30/2023)
2023-02-07	35	NOTICE by Empower Oversight Whistleblowers & Research Requesting Oral Argument (Beelaert, Jeffrey) (Entered: 02/07/2023)
2023-02-08	36	MOTION to Strike 32 NOTICE and Response to Notice by Department of Veterans Affairs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(O'Connor, Kirstin) (Entered: 02/08/2023)
2023-02-08	37	NOTICE Waiver of Hearing by Department of Veterans Affairs re 36 MOTION to Strike 32 NOTICE and Response to Notice (O'Connor, Kirstin). Modified on 2/8/2023 (Dest). (Entered: 02/08/2023)
2023-02-15	38	Opposition to 36 MOTION to Strike 32 NOTICE and Response to Notice filed by Empower Oversight Whistleblowers & Research. (Attachments: # 1 Exhibit A)(Beelaert, Jeffrey) (Entered: 02/15/2023)
2023-02-21	39	REPLY to Response to Motion re 36 MOTION to Strike 32 NOTICE and Response to Notice filed by Department of Veterans Affairs. (Attachments: # 1 Exhibit A)(O'Connor, Kirstin) (Entered: 02/21/2023)
2024-07-01	40	ORDERED that Defendant's Motion for Summary Judgment re 26 is GRANTED . Signed by District Judge Michael S Nachmanoff on 7/1/2024. (lcre, ) (Entered: 07/01/2024)
2024-07-01	41	RULE 58 JUDGMENT. Signed by Clerk on 7/1/2024. (lcre, ) (Entered: 07/01/2024)
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