Watkins Law & Advocacy, PLLC v. U.S. Dep't of Veterans Affairs

• Citation: 412 F.Supp.3d 98
• Decision Date: 30 September 2019
• Docket Number: Civil Action No. 17-1974 (ABJ)
• Parties: WATKINS LAW & ADVOCACY, PLLC, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

412 F.Supp.3d 98

WATKINS LAW & ADVOCACY, PLLC, Plaintiff,

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.

Civil Action No. 17-1974 (ABJ)

United States District Court, District of Columbia.

Signed September 30, 2019

Seth A. Watkins, Watkins Law & Advocacy, PLLC, Washington, DC, for Plaintiff.

Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

In October and November 2015, plaintiff Watkins Law & Advocacy, PLLC, submitted seven Freedom of Information Act ("FOIA") requests to the United States Department of Veterans Affairs ("VA"), the United States Department of Justice ("DOJ"), the Federal Bureau of Investigation ("FBI"), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") seeking records concerning "inter-agency agreements related to allegedly financially incompetent veterans ... [who] are reported to DOJ, FBI, and ATF," pursuant to Public Law 103-159, also known as the Brady Handgun Violence Prevention Act of 1993 ("the Brady Act"). See Compl. [Dkt. # 1] ¶¶ 1, 30 (emphasis in original). On September 25, 2017, plaintiff filed this suit, alleging that "[s]ix of the seven requests [had] not received any response determination," and demanding that the agencies produce the responsive records as required by FOIA, 5 U.S.C. § 552. Id. ¶¶ 2–3. The agencies then processed plaintiff's requests, and eventually defendants moved for summary judgment on December 10, 2018. Defs.' Mot. for Summ. J. [Dkt. # 20] ("Defs.' Mot."); Defs.' Statement of Material Facts Not in Genuine Dispute [Dkt. # 20]; Mem. in Supp. of Defs.' Mot. for Summ. J. [Dkt. # 20] ("Defs.' Mem.") [Dkt. # 20]. Plaintiff opposed that motion, and cross-moved for summary judgment. Pl.'s Cross-Mot. for Summ. J. [Dkt. # 21] ("Pl.'s Cross-Mot."); Pl.'s Mem. in Opp. to Defs.' Mot. & in Supp. for Pl.'s Cross-Mot. [Dkt. # 21-1]. Four FOIA requests remain in dispute. For the reasons that follow the Court will deny in part and grant in part defendants' motion, and it will grant in part and deny in part plaintiff's motion.

BACKGROUND

The Gun Control Act of 1968 prohibits certain individuals, including convicted felons, fugitives from justice, and persons "adjudicated as a mental defective or ... committed to a mental institution," from possessing firearms. 18 U.S.C. § 922(g). "The Brady Handgun Violence Prevention Act of 1993 required the Attorney General to establish a ‘national instant criminal background check system,’ known as the NICS, to search the backgrounds of prospective gun purchasers for criminal or other information that would disqualify them from possessing firearms." Nat'l Rifle Ass'n of Am., Inc. v. Reno , 216 F.3d 122, 125 (D.C. Cir. 2000), citing § 103(b), Pub. L. No. 103–159, 107 Stat. 1536. "The FBI developed the system through a cooperative effort with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and local and state law enforcement agencies." About NICS , FBI, https://www.fbi.gov/services/cjis/nics/about-nics (last visited Sept. 26, 2019).

Plaintiff states that on September 6, 1996, ATF initiated a rulemaking process "proposing to amend the regulations to provide definitions for the categories of persons prohibited from receiving or possessing firearms." 61 Fed. Reg. 47,095 (Sept. 6, 1996) ; see Compl. ¶ 22. The purpose of the rulemaking was to "facilitate the implementation of the national instant criminal background check system (NICS) required under the Brady Handgun Violence Prevention Act." 61 Fed. Reg. at 47,095. Under the section titled "Persons Who Have Been Adjudicated as Mental Defectives or Been Committed to a Mental Institution," ATF explained that the agency had "examined the definition of ‘mental incompetent’ used by the Department of Veterans Affairs," which "covers persons who because of injury or disease lack the mental capacity to contract or manage their own affairs." Id. at 47,097, citing 38 C.F.R. § 3.353. ATF proposed a regulation that would adopt the VA's definition. Id.

After a period of public comment, ATF adopted its final rule on June 27, 1997. See 62 Fed. Reg. 34,634 (June 27, 1997). The final rule defined "adjudicated as a mental defective" in relevant part as, "[a] determination by a court, board, commission, or other lawful authority that a person, as a result of ... mental illness, incompetency, condition, or disease ... [l]acks the mental capacity to contract or manage his own affairs." Id. at 34,637. Plaintiff points out that the final notice discussed several public comments, including one from the VA:

In its comment, the U.S. Department of Veterans Affairs correctly interpreted the proposed definition of "adjudicated as a mental defective" to mean that any person who is found incompetent by the Veterans Administration under 38 C.F.R 3.353 will be considered to have been adjudicated as a mental defective for purposes of the [Gun Control Act]. Section 3.353 provides that a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or manage his or her own affairs.

Id. ; see Compl. ¶ 23.

In 1998, the FBI and the VA entered into a data-sharing Memorandum of Understanding ("MOU") pursuant to the Brady Act whereby the VA provided the FBI with the names of veterans who fall within the category of "mental defective" for inclusion in NICS. See 1998 MOU, Ex. 5 to Pl.'s Opp. to Defs.' Mot. for Summ. J. [Dkt. # 22-6] ("1998 MOU") at 2. A subsequent 2012 MOU between the FBI and the VA re-affirmed many of the data-sharing policies contained in the 1998 MOU but also introduced some additional terms. See 2012 MOU, Ex. 4 to Pl.'s Opp. to Defs.' Mot. for Summ. J. [Dkt. # 22-5] ("2012 MOU"). The 2012 Agreement provides that "VA-provided data may also be used for ATF inquiries in connection with civil or criminal law enforcement activities pursuant to Title 28, Code of Federal Regulations (C.F.R.), Section 25(6)(j)(2)." Id. at 1. In 1997, the Brady Act was amended to enact changes to NICS. See NICS Improvement Amendments Act of 2007, No. 110-180, H.R. 2640, 110th Cong. (2007–2008).

In its complaint, plaintiff states that its "action seeks to shed light on the rulemaking process through which alleged financial incompetency was brought within the scope of the Brady Act as well as inter-agency agreements related to allegedly financially incompetent veterans and the procedures by which such VA-identified individuals are reported to the DOJ, FBI, and ATF." Compl. ¶ 30 (emphasis in original).

STANDARD OF REVIEW

In a FOIA case, the district court reviews the agency's decisions de novo and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B) ; Military Audit Project v. Casey , 656 F.2d 724, 738 (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. , 641 F.3d 521, 527 (D.C. Cir. 2011).

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 , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 is capable of affecting the outcome of the litigation.

Id. at 248, 106 S.Ct. 2505 ; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (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 , 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology v. Nat'l Sec. Agency , 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted). In assessing a party's motion, the court must "view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’ " Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

"Summary judgment may be granted on the basis of agency affidavits" in FOIA cases, 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. , 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric. , 455 F.3d 283, 287 (D.C. Cir. 2006). However, a plaintiff cannot rebut the good faith presumption afforded to an agency's supporting affidavits through "purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981).

ANALYSIS

FOIA requires the release of government records upon request. Its purpose is "to ensure an informed...