Case Detail

FOIA Project Annotation: In a ruling that closely paralleled his previous decision in a case brought by White Coat Waste Project against the Department of Veterans Affairs for identifying information about researchers at Louis Stokes VA Center in Cleveland using dogs, Judge Emmet Sullivan has ruled that the names of similar researchers at Hunter Holmes McGuire VA Center in Richmond are not protected by either Exemption 5 (privileges) or Exemption 6 (invasion of privacy), but that a protocol containing proprietary information is protected by Exemption 3 (other statutes). White Coat Waste Project submitted a FOIA request for records concerning the research at McGuire. Before the VA responded, White Coat Waste Project also submitted a request to the NIH for records concerning whether five VA facilities, including McGuire, failed to comply with the Animal Welfare Act. NIH provided documents showing that Dr. Alex Tan, the principal researcher at McGuire had shown reckless behavior during the dog experiments. The VA withheld identifying information about the researchers at McGuire, citing both Exemption 5 and Exemption 6. It also withheld ACORP # 02235, a protocol, under the Federal Technology Transfer Act. Sullivan started by pointing out that this case closely resembled his earlier decision in White Coat Waste Project v. Dept of Veterans Affairs (WCW I), 404 F. Supp. 3d 87 (D.D.C. 2019), where he was faced with essentially the same types of records and exemption claims. The agency's Exemption 5 claim focused on the potential harassment of researchers, which could result in a lack of candor. But Sullivan noted that "the names of the principal investigators are neither pre-decisional nor deliberative." Pointing out that the names of the researchers were available on both the VA and NIH websites, he observed that "the VA fails to demonstrate that disclosure of the names of the principal investigators 'would be likely to "stifle honest, and frank communication within the agency."'" He added that "the VA fails to provide sufficient justification to withhold the names of the principal investigators pursuant to Exemption 5's deliberative process privilege." While Exemption 6 seemed liked a more natural fit, Sullivan found the names did not qualify for protection under that exemption either. He agreed with the agency that the names constituted "similar files" for purposes of Exemption 6. But to demonstrate the privacy interests in the investigators' records, the VA submitted an affidavit from Dr. Michael Fallon, Chief Veterinary Officer. WCW argued that Fallon's affidavit did not qualify under Federal Rule of Civil Procedure 56 because it was not based on personal knowledge. Sullivan agreed, noting that "Dr. Fallon fails to establish the basis for any personal knowledge of the incidents at McGuire VAMC and Milwaukee VAMC, as well as the incidents involving the researchers with no connections to the VA." By contrast, Sullivan noted that the public interest in disclosure was clear. He observed that "information about the experiments and the principal investigators' compliance and non-compliance with the animal research protocols and applicable federal regulations clearly fall under the ambit of information that 'let's citizens know "what their government is up to."'" Sullivan then found that the Federal Technology Transfer Act qualified as an Exemption 3 statute and protected the claimed protocol. He rejected WCW's claim that the agency had waived the claim because it did not bring it up until its reply brief. But Sullivan indicated that "the VA did not waive any arguments based on the FTTA because WCW had an opportunity to respond to the VA's arguments in its reply brief."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2017-06-14	1	COMPLAINT against UNITED STATES DEPARTMENT OF VETERANS AFFAIRS ( Filing fee $ 400 receipt number 0090-4989815) filed by White Coat Waste Project. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to US Department of Veterans Affairs, # 3 Summons to U.S. Attorney for the District of Columbia, # 4 Summons to U.S. Attorney General)(Strugar, Matthew) (Entered: 06/14/2017)
2017-06-14	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by White Coat Waste Project (Strugar, Matthew) (Entered: 06/14/2017)
2017-06-14		Case Assigned to Judge Emmet G. Sullivan. (md) (Entered: 06/14/2017)
2017-06-16	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 06/16/2017)
2017-06-29	4	NOTICE of Appearance by Rhonda Lisa Campbell on behalf of UNITED STATES DEPARTMENT OF VETERANS AFFAIRS (Campbell, Rhonda) (Entered: 06/29/2017)
2017-07-05	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/26/2017. Answer due for ALL FEDERAL DEFENDANTS by 7/26/2017. (Strugar, Matthew) (Entered: 07/05/2017)
2017-07-18	6	Consent MOTION for Extension of Time to File Answer re 1 Complaint, or otherwise respond to the Complaint by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS (Campbell, Rhonda) (Entered: 07/18/2017)
2017-07-19		MINUTE ORDER granting 6 consent motion for extension of time. Defendant shall answer or otherwise respond to plaintiff's complaint by no later than August 28, 2017. Signed by Judge Emmet G. Sullivan on July 19, 2017. (lcegs2) (Entered: 07/19/2017)
2017-07-19		Set/Reset Deadlines: Answer Or Otherwise Response due by 8/28/2017. (mac) (Entered: 07/19/2017)
2017-07-19	7	STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 7/19/2017.(Attachments: # 1 Exhibit) (lcegs1) (Entered: 07/19/2017)
2017-08-28	8	ANSWER to Complaint by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS.(Campbell, Rhonda) (Entered: 08/28/2017)
2017-08-29		MINUTE ORDER. Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The parties are directed to meet and confer and propose a joint scheduling order for further proceedings in this case by no later than September 27, 2017. The parties' joint proposed scheduling order shall address the following: (1) the status of plaintiff's FOIA request; (2) the anticipated number of documents responsive to plaintiff's FOIA request; (3) the anticipated date(s) for release of documents responsive to plaintiff's FOIA request; (4) whether a motion for an Open America stay is likely in this case; (5) whether a Vaughn index will be required in this case; (6) whether this case would benefit from referral to a magistrate judge or the District Court Mediation Program for purposes of settlement; and (7) a proposed briefing schedule for dispositive motions, if applicable. If the parties are unable to agree on a joint recommendation, the joint proposed scheduling order shall include each party's individual recommendations. Signed by Judge Emmet G. Sullivan on August 29, 2017. (lcegs2) (Entered: 08/29/2017)
2017-08-29		Set/Reset Deadlines: Joint Scheduling Order due by 9/27/2017. (mac) (Entered: 08/29/2017)
2017-09-14	9	PROPOSED BRIEFING SCHEDULE re Order,,,, by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS. (Campbell, Rhonda) (Entered: 09/14/2017)
2017-10-04		MINUTE ORDER. In view of 9 the parties' joint motion, the parties are directed to comply with the following schedule: defendant's motion for summary judgment shall be filed by no later than October 16, 2017; plaintiff's combined opposition and cross-motion for summary judgment shall be filed by no later than November 17, 2017; defendant's reply and opposition to plaintiff's cross-motion shall be filed by no later than December 4, 2017; and plaintiff's reply in support of its motion shall be filed by no later than December 22, 2017. Signed by Judge Emmet G. Sullivan on October 4, 2017. (lcegs2) (Entered: 10/04/2017)
2017-10-04		Set/Reset Deadlines: Defendant's Motion For Summary Judgment due by 10/16/2017. Plaintiff's Combined Opposition And Cross-Motion For Summary Judgment due by 11/17/2017. Defendant's Reply And Opposition To Plaintiff's Cross-Motion due by 12/4/2017. Plaintiff's Reply In Support Of Its Motion due by 12/22/2017. (mac) (Entered: 10/04/2017)
2017-10-16	10	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit Vaughn Index, # 4 Declaration Michael Fallon, # 5 Declaration Emily Fuemmeller, # 6 Declaration William Maragos)(Campbell, Rhonda) (Entered: 10/16/2017)
2017-10-16	11	ERRATA Exhibit added in proper PDF Form by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS 10 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS. (Campbell, Rhonda) (Entered: 10/16/2017)
2017-11-07		MINUTE ORDER. The Court, sua sponte, directs the parties to show cause why this action should not be consolidated with White Coat Waste Project v. U.S. Department of Veterans Affairs, Civil Action No. 17-2264, by no later than November 17, 2017. See Fed. R. Civ. P. 42(a) (permitting the court to consolidate actions "involv[ing] a common question of law or fact"); Local Civ. R. 40.5(a)(3) (defining related civil actions). The briefing schedule for defendant's motion for summary judgment is hereby STAYED pending further order of the Court. Signed by Judge Emmet G. Sullivan on November 7, 2017. (lcegs2) (Entered: 11/07/2017)
2017-11-08		Set/Reset Deadlines: Parties Show Cause due by 11/17/2017. (mac) (Entered: 11/08/2017)
2017-11-17	12	RESPONSE TO ORDER TO SHOW CAUSE by WHITE COAT WASTE PROJECT re Order,, . (Attachments: # 1 Declaration of Matthew Strugar in Support of Plaintiff's Response to Order to Show Cause)(Strugar, Matthew) (Entered: 11/17/2017)
2017-11-20		MINUTE ORDER. In view of 12 plaintiff's response to the Court's order to show cause as to why this case should not be consolidated with Civil Action No. 17-2264, the Court declines to consolidate the cases. The parties are directed to comply with the following briefing schedule: plaintiff's combined opposition and cross-motion for summary judgment shall be filed by no later than December 6, 2017; defendant's reply and opposition to plaintiff's cross-motion shall be filed by no later than December 22, 2017; and plaintiff's reply in support of its motion shall be filed by no later than January 12, 2018. Signed by Judge Emmet G. Sullivan on November 20, 2017. (lcegs2) (Entered: 11/20/2017)
2017-11-20		Set/Reset Deadlines: Plaintiff's Combined Opposition And Cross-Motion For Summary Judgment due by 12/6/2017. Defendant's Reply And Opposition To Plaintiff's Cross-Motion due by 12/22/2017. Plaintiff's Reply In Support Of Its Cross-Motion due by 1/12/2018. (mac) (Entered: 11/20/2017)
2017-12-06	13	Cross MOTION for Summary Judgment by WHITE COAT WASTE PROJECT (Attachments: # 1 Memorandum in Support of Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, # 2 Statement of Facts in Support of Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, # 3 Declaration of Justin Goodman in Support of Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, # 4 Declaration of Matthew Strugar in Support of Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment)(Strugar, Matthew) (Entered: 12/06/2017)
2017-12-06	14	RESPONSE re 10 MOTION for Summary Judgment - Plaintiff's Evidentiary Objections to Evidence Submitted in Support of Defendant's Motion for Summary Judgment filed by WHITE COAT WASTE PROJECT. (Strugar, Matthew) (Entered: 12/06/2017)
2017-12-19	15	Consent MOTION for Extension of Time to File Response/Reply as to 13 Cross MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS (Campbell, Rhonda) (Entered: 12/19/2017)
2017-12-20		MINUTE ORDER granting 15 defendant's consent motion for an extension of time. Defendant is directed to file its combined reply and opposition to plaintiff's motion by no later than January 29, 2018. Plaintiff is directed to file its reply in support of its motion by no later than March 1, 2018. Signed by Judge Emmet G. Sullivan on December 20, 2017.(lcegs2) (Entered: 12/20/2017)
2017-12-21		Set/Reset Deadlines: Defendant Combined Reply And Opposition To Plaintiff's Motion due by 1/29/2018. Plaintiff Reply In Support Of Its Motion due by 3/1/2018. (mac) (Entered: 12/21/2017)
2018-01-29	16	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS. (Campbell, Rhonda) (Entered: 01/29/2018)
2018-03-01	17	REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment filed by WHITE COAT WASTE PROJECT. (Strugar, Matthew) (Entered: 03/01/2018)
2018-03-08		MINUTE ORDER REFERRING CASE. Pursuant to Local Civil Rule 72.3(a)(3), the Court hereby refers 10 , 13 the parties' pending cross-motions for summary judgment to a magistrate judge for a report and recommendation. All proceedings before the Honorable Emmet G. Sullivan are hereby STAYED pending receipt of a report and recommendation. Signed by Judge Emmet G. Sullivan on March 8, 2018. (lcegs2) (Entered: 03/08/2018)
2018-03-08		Case Stayed (mac) (Entered: 03/08/2018)
2018-03-08		CASE RANDOMLY REFERRED to Magistrate Judge Robin M. Meriweather for a report and recommendation. (jd) (Entered: 03/09/2018)
2019-04-02	18	MOTION for Telephone Conference by WHITE COAT WASTE PROJECT (Strugar, Matthew) (Entered: 04/02/2019)
2019-04-09		MINUTE ORDER: Plaintiff has filed a 18 Notice of Motion for Telephonic Status Conference which seeks a status conference in order to discuss the status of motions pending before the Court. It is hereby ORDERED that Plaintiff's 18 Motion is DENIED, as a status conference will not advance the Court's resolution of the pending motions. Signed by Magistrate Judge Robin M. Meriweather on 4/9/2019. (lcrm2) (Entered: 04/09/2019)
2020-01-13	19	MOTION to Lift Stay by WHITE COAT WASTE PROJECT (Strugar, Matthew) (Entered: 01/13/2020)
2020-02-10	20	NOTICE OF SUPPLEMENTAL AUTHORITY by WHITE COAT WASTE PROJECT (Strugar, Matthew) (Entered: 02/10/2020)
2020-02-11		MINUTE ORDER treating as opposed and granting over objection 19 Plaintiff's Motion to Lift Stay. The Court's Minute Order of March 8, 2018, referring this case to a Magistrate Judge for a Report and Recommendation on the pending cross-motions for summary judgment is hereby VACATED. Signed by Judge Emmet G. Sullivan on 2/11/2020. (lcegs3) (Entered: 02/11/2020)
2020-02-11		MINUTE ORDER. In view of 20 Plaintiff's Notice of Supplemental Authority, Defendant shall file a response by no later than February 18, 2020. Signed by Judge Emmet G. Sullivan on 2/11/2020. (lcegs3) (Entered: 02/11/2020)
2020-02-12		Set/Reset Deadlines: Defendant Responses due by 2/18/2020 (mac) (Entered: 02/12/2020)
2020-02-19	21	NOTICE of Non-Filing of Defendant's Response to Plaintiff's Supplemental Authority by WHITE COAT WASTE PROJECT re Order, Set/Reset Deadlines (Strugar, Matthew) (Entered: 02/19/2020)
2020-02-19	22	NOTICE to the Court by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS re Order (Campbell, Rhonda) (Entered: 02/19/2020)
2020-02-20		MINUTE ORDER. In view of 20 Plaintiff's Notice of Supplemental Authority and 22 Defendant's Notice to the Court, the Court will resolve the pending cross-motions for summary judgment on the current record. Signed by Judge Emmet G. Sullivan on 2/20/2020. (lcegs3) (Entered: 02/20/2020)
2020-03-10	23	ORDER granting in part and denying in part 10 Defendant's Motion for Summary Judgment; granting in part and denying in part 13 Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Emmet G. Sullivan on 3/10/2020. (lcegs3) (Entered: 03/10/2020)
2020-03-10	24	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 3/10/2020. (lcegs3) (Entered: 03/10/2020)
2020-03-19	25	Joint MOTION for Extension of Time to Move for Award of Attorneys Fees and Costs by WHITE COAT WASTE PROJECT (Attachments: # 1 Text of Proposed Order)(Strugar, Matthew) (Entered: 03/19/2020)
2020-03-20		MINUTE ORDER granting 25 Joint Motion for Extension of Time to Move for Award of Attorneys Fees and Costs. In light of the parties' efforts to negotiate a potential resolution concerning the issue of attorneys' fees and costs, the Court hereby extends the deadline for Plaintiff's motion for attorneys' fees and costs until April 7, 2020. Signed by Judge Emmet G. Sullivan on 3/20/2020. (lcegs3) (Entered: 03/20/2020)
2020-03-23		Set/Reset Deadlines: Plaintiff's Motion For Attorneys Fees and Costs due by 4/7/2020. (mac) (Entered: 03/23/2020)
2020-04-03	26	STIPULATION of Dismissal and Settlement by UNITED STATES DEPARTMENT OF VETERANS AFFAIRS. (Campbell, Rhonda) (Entered: 04/03/2020)
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