UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KENNETH A. STELMASZEK, : : Plaintiff, : v. : Civil Action No. 19-cv-00172 (EGS) : DEPARTMENT OF VETERANS : AFFAIRS, : : Defendant. :

MEMORANDUM OPINION

This matter is before the Court on defendant’s motion for summary judgment. For the

reasons discussed below, the Court will grant the motion.

I. BACKGROUND

a. Procedural History

Plaintiff, Kenneth Stelmaszek, proceeding pro se and in forma pauperis, initiated this

lawsuit on January 18, 2019. See Compl., ECF No. 1. He initially raised violations of the Freedom

of Information Act (“FOIA”),

, and the Privacy Act (“PA”), 5 U.S.C. § 552a,

relating to a single FOIA/PA request. Id. ¶¶ 1–2. On February 8, 2019, this Court was assigned

to this matter, and on February 12, 2019, the Court issued its standing order, which includes

forewarnings regarding potential consequences of failing to respond to a motion for summary

judgment. See Standing Ord., ECF No. 5, ¶ 13(h). Defendant filed its answer on April 24, 2019,

ECF No. 11.

Among other filings, plaintiff filed a motion for CM/ECF access, ECF No. 6, and a motion

for leave to amend complaint, ECF No. 9. The Court granted both motions on May 28, 2019, see

5/28/19 Ord., ECF No. 14, and plaintiff’s amended complaint was accepted on the same date, ECF

1 No. 15. The amended complaint raises the same causes of action, see Am. Compl. ¶¶ 1–2, and

seeks the same relief – monetary damages and immediate availability of all requested records, id.

¶¶ 17, 19–24 – but adds a new claim regarding a second and subsequent FOIA/PA request, id. ¶¶

25–35.

Also pending was plaintiff’s motion to strike defendant’s answer and for sanctions, ECF

No. 12. After an extension, defendant filed an opposition, ECF No. 17, on July 7, 2019. The Court

denied the motion to strike and for sanctions by minute order on July 2, 2019, and further ordered

defendant to respond to plaintiff’s amended complaint. On August 2, 2019, defendant filed a timely

answer to the amended complaint, ECF No. 18.

Shortly thereafter, and per the Court’s directives, defendant filed a status report requesting

a briefing schedule. The Court issued its briefing schedule by way of minute order on September

9, 2019, ordering defendant to file its motion for summary judgment by October 15, 2019.

Defendant filed a timely motion for summary judgment (“MSJ”), ECF No. 21, on October

15, 2019. After receiving no response from plaintiff, on November 27, 2019, the Court again

advised plaintiff of his obligations to respond under the Federal Rules of Civil Procedure and the

Local Civil Rules of this Court. See 10/27/19 Order (“Fox Neal Ord.”), ECF No. 22; see also Neal

v. Kelly,

(D.C. Cir. 1992); Fox v. Strickland,

(D.C. Cir. 1988).

The Court further ordered plaintiff to file an opposition to defendant’s motion by December 27,

201, allotting him yet additional time to comply. See Fox Neal Ord. at 3. Plaintiff was again

instructed that if he failed to file a timely response, the Court would rule on the motion without

the benefit of his position.

To date, plaintiff has not filed any opposition, nor has he requested

additional time to do so.

2 b. Undisputed Facts

Plaintiff submitted a FOIA/PA request to defendant, the Department of Veterans Affairs

(“Defendant” & “VA”), on October 18, 2018 (“October Request”). Am. Compl. ¶ 1; Declaration

of Jerry Harrold (“Harrold Decl.”), ECF No. 21-3, ¶ 4; True & Correct Copy of October Request

(“Harrold Decl. Ex. 1”). He sent the October Request to the Veterans Affairs Evidence Intake

Center (“EIC”), located in Janesville, Wisconsin.

Defendant’s declarant, Jerry Harrold, is the

PA/FOIA Records Management Officer with the relevant VA Regional Office (“VARO”), located

in St. Petersburg, Florida. Harrod Decl. ¶ 1. He attests that the EIC in Janesville, Wisconsin, exists

specifically to process veterans’ requests relating to, or submissions for, compensation and benefits

claims. Id. ¶ 5. The October Request sought (1) the transcript of plaintiff’s October 15, 2018,

Decision Review Officer Hearing (“DRO”); (2) the audio recording of that hearing, (3) an updated

copy of plaintiff’s Claims File (“C-File”), and; (4) any correspondence between any party of the

Regional Office concerning plaintiff or his C-File. Id. ¶ 4; Harrold Decl. Ex. 1.

Defendant acknowledged receipt of the October Request by letter on November 7, 2018.

Harrold Decl. ¶ 6; (11/7/18) VA Acknowledgment Letter, Harrold Decl. Ex. 2. The portion of the

October Request regarding plaintiff’s C-File was processed and fulfilled by the VA Records

Management Center (“RCM”) in St. Louis, Missouri. Harrold Decl. ¶ 7. The RMC has complete

access to C-Files and their related correspondence, as it is the designated entity responsible for

responding to such requests. Id. On March 5, 2019, plaintiff’s complete C-File and relating

correspondence were mailed to plaintiff. Id. ¶ 8; see (3/5/19) VA Disclosure Letter, Harrold Decl.

Ex. 3.

On April 3, 2019, Harrold received notification from a Support Services Supervisor at the

National Transcription Center that the transcript for plaintiff’s October 15, 2018 DRO hearing had

3 been completed and uploaded for access. Harrold Decl. ¶ 9. The very next day, on April 4, 2019,

Harrold personally sent plaintiff a compact disc containing the DRO hearing transcript, id. ¶ 10;

UPS Tracking Information (“Harrold Decl. Ex. 4”), and it was delivered by April 5, 2019, Harrold

Decl. ¶ 11; Harrold Decl. Ex. 4. Shortly thereafter, on April 23, 2019, Harrold personally first-

class mailed a compact disc containing the audio of plaintiff’s DRO hearing. Harrold Decl. ¶ 12.

Defendant produced all of these responsive records in their entirety, with no withholdings or

redactions. Id. ¶ 13.

Plaintiff’s additional claim, raised in the amended complaint, arises out of a FOIA/PA

request that he purportedly submitted on December 26, 2018 (“December Request”). Am. Compl.

¶ 26. Defendant’s standard agency regulations require that FOIA requesters submit their requests

to the specific FOIA officer designated to the VA component responsible for maintaining the

records sought. See

(a); Harrold Decl. ¶ 14. Plaintiff sent the December Request

by fax to the VA Evidence Intake Center, Am. Compl. ¶ 26, which defendant contends is

procedurally improper, see Harrold Decl. ¶ 14–15; MSJ at 6. According to defendant, plaintiff

should have sent the December Request directly to the FOIA Records Management Officer located

in the St. Petersburg, Florida VARO –i.e. Harrold. See

Harrold attests that, due to plaintiff’s

own error, he never received the December Request. See Harrold Decl. ¶ 15.

II. STANDARD OF REVIEW

In a FOIA case, a district court reviews the agency's decisions de novo and “the burden is

on the agency to sustain its action.”

(a)(4)(B); Military Audit Project v. Casey,

(D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary

judgment.” Brayton v. Office of U.S. Trade Rep.,

(D.C. Cir. 2011); Defenders

of Wildlife v. 77 U.S. Border Patrol,

(D.D.C. 2009).

4 Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett,

(1986) (internal quotation marks omitted). To defeat summary

judgment, the non-moving party must “designate specific facts showing that there is a genuine

issue for trial.”

(internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is “material” only if it can affect

the outcome of the litigation.

; Laningham v. U.S. Navy,

(D.C. Cir.

1987). In the FOIA context, “the sufficiency of the agency's identification or retrieval procedure”

must be “genuinely in issue” in order for summary judgment to be inappropriate. Weisberg v.

DOJ,

, 371 n.54 (D.C. Cir. 1980) (internal quotation marks omitted). In assessing a

defendant’s motion, a court must “view the facts and draw reasonable inferences in the light most

favorable to plaintiff.” Scott v. Harris,

(2007).

In FOIA cases, “[s]ummary judgment may be granted on the basis of agency affidavit [,]”

when those affidavits “contain reasonable specificity of detail rather than merely conclusory

statements,” and when “they are not called into question by contradictory evidence in the record

or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. Dep't of Agric.,

(D.C. Cir.

5 2006)); see also Peavey v. Holder,

(D.D.C. 2009) (quoting Schrecker v.

U.S. Dep't of Justice,

(D.D.C. 2002)). Agency declarations are afforded a

“presumption of good faith” and can be rebutted only with evidence that the agency did not act in

good faith. Defenders of Wildlife v. Dep’t of Interior,

(D.D.C. 2004).

However, a plaintiff cannot rebut the good faith presumption afforded to an agency's supporting

affidavits through “purely speculative claims . . . .” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir.

1981)).

In a Privacy Act case, a court may similarly rely on agency affidavits or declarations to

enter summary judgment. See Chambers v. U.S. Dep't of the Interior,

(D.C.

Cir. 2009). At the summary judgment stage, where the agency has the burden to show that it acted

in accordance with the statute, a court may rely on a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that all files likely to contain

responsive materials (if such records exist) were searched. Jimenez v. Executive Office for U.S.

Attorneys,

, 179–80 (D.D.C. 2001) (citing Chambers,

). Even

if the nonmoving party fails to respond to the motion for summary judgment, or portions thereof,

a court cannot grant the motion for the reason that it was conceded. Winston & Strawn, LLP v.

McLean,

(D.C. Cir. 2016). The burden is always on the movant to demonstrate

why summary judgment is warranted.

A district court “must determine for itself that there is

no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter

of law, and then ‘should state on the record the reasons for granting or denying the motion.’ ”

at 508–09 (quoting Fed. R. Civ. P. 56(a)).

6 III. DISCUSSION a. October Request

Plaintiff’s FOIA and PA claims are predicated on defendant’s alleged refusal to release the

responsive records. See Am. Compl. ¶¶ 3, 13, 15 17, 20 (citing 5 U.S.C. § 552a(d)(1)), 23 (citing

5 U.S.C. § 552a(g)(3)(A)), 27–28, 31, 32 (citing 5 U.S.C. § 552a(g)(3)(A)), 33. Defendant has

since released all of the requested responsive records in full, thereby satisfying its obligations

under FOIA and the Privacy Act and rendering moot any statutory functions of this Court. See

Perry v. Block,

, 125–26 (D.C. Cir. 1982); see also Johnson v. United States,

(D.D.C. 2017) (granting summary judgment on behalf of the EEOC after it

released all responsive records during the course of litigation) (citing Crooker v. United States

State Dep't,

(D.C. Cir. 1980) (per curiam) (“Once the records are produced[,] the

substance of the controversy disappears and becomes moot since the disclosure which the suit

seeks has already been made.”)).

The Court finds that Harrold’s declaration is based “on personal knowledge, set[s] out facts

that would be admissible in evidence, and show[s] that the affiant or declarant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). In a FOIA case, a declarant need only attest

to his personal knowledge of the procedures used in handling plaintiff’s request and familiarity

with the documents in question. Johnson,

(citations and internal quotation

marks omitted). Harrold has certainly demonstrated his personal knowledge and familiarity, (1)

as a Records Management Officer at the applicable VARO, Harrold Decl. ¶¶ 1–3, and (2) because

he personally oversaw, and at times, even individually handled, the processing and release of the

records in question, see

¶¶ 7–12.

For all of these reasons, and without any contrary evidence submitted by plaintiff, summary

judgment will be entered as to all claims arising out of the October Request.

7 b. December Request

FOIA provides agencies with express statutory authority to establish their own rules

concerning “the time, place, fees (if any) and procedures to be followed” in requesting records.

(a)(3)(A); see also

§§ 552 (a)(4)(A); (a)(6)(D); (a)(6)(E). Similarly, the Privacy

Act mandates that “each agency that maintains a system of records shall promulgate rules” relating

to various procedures, fees, and other myriad requirements. 5 U.S.C. § 552a(f). Consequently, it

is entirely appropriate for defendant to rely on its own rules and regulations in its receipt and

processing, or inability to process, a request. See Wattleton v. Berryhill, --- F.Supp.3d ---,

at *4 (D.D.C. Mar. 3, 2020).

Pursuant to defendant’s regulations,

[t]o make a request for VA records, write directly to the FOIA Officer for the VA component that maintains the records. If the requester is not sure where to send the request, he or she should seek assistance from the FOIA Contact for the office believed to manage the programs whose records are being requested or send the request to the Director, FOIA Service (005R1C), 810 Vermont Avenue, NW., Washington, DC 20420, who will refer it for action to the FOIA contact at the appropriate component.

(a). Additionally,

[t]he request should be made to the office concerned (having jurisdiction over the system or systems of records involved) or, if not known, to the Director or Department of Veterans Affairs Officer in the nearest Department of Veterans Affairs regional office, or to the Department of Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC 20420. Personal contact should normally be made during the regular duty hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday through Friday for Department of Veterans Affairs Central Office and most field facilities.

§ 1.577(b). Here, defendant contends that plaintiff ostensibly incorrectly assumed that he

should submit the December Request to the same component where he sent his October Request

8 –the EIC – when it should have been directed to the St. Petersburg VARO. See Harrold Decl. ¶¶

14–15; MSJ at 6.

The Court agrees that “[a]n agency's disclosure obligations are not triggered . . . until it has

received a proper FOIA request in compliance with its published regulations.” Antonelli v. Fed.

Bureau of Prisons,

(D.D.C. 2008) (emphasis added). If an agency receives

a request that does not comply with its published rules, it “has no reason to search or produce

records[.]’” Johnson,

; Rios v. United States,

(D.D.C.

2017) (holding same).

If plaintiff had any confusion regarding where to send his December Request, he could

have alternatively sent it to the Department of Veterans Affairs Central Office, and it would have

been automatically forwarded to the proper component. See

(a), 1.577(b).

There is no evidence that plaintiff availed himself to any of the suitable options within the

applicable regulations. See Gordon v. Courter,

, 285–86 (D.D.C. 2015)

(entering summary judgment on behalf of government after plaintiff sent request to the wrong

agency component and finding that if “Plaintiff was uncertain about the location of the records he

sought, he could have sent his request, per FOIA regulations, to DOJ's catch-all ‘FOIA/PA Mail

Referral Unit,’ which would have then forwarded the request to the appropriate components.”);

Sykes v. United States, No. 1:10–cv–688,

at *13–*14 (S.D. Ohio Jul. 22, 2011)

(dismissing claims where plaintiffs failed to show that they submitted “proper requests” in

compliance with 38 C.F.R. 1.550 et seq.).

Again, for all of the above reasons, and without any evidence submitted to the contrary,

summary judgment is thus entered on behalf of defendant as to all claims arising out of the

December Request. See Thomas v. Fed. Comm'cns Comm'n,

(D.D.C.

9 2008) (granting summary judgment in the agency's favor “[i]n the absence of any evidence that

plaintiff submitted a proper FOIA request to which defendant would have been obligated to

respond[.]”).

IV. CONCLUSION

Defendant has shown that there is no genuine issue of material fact in dispute regarding its

compliance with FOIA and the Privacy Act and it is entitled to judgment as a matter of law.

Accordingly, the Court grants defendant’s [21] motion for summary judgment. An order

accompanies this memorandum Opinion.

_________/s/____________ EMMET G. SULLIVAN Date: August 12, 2020 United States District Judge

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