Kinman v. United States, Case No. 1:16-cv-00329

• Decision Date: 06 December 2016
• Docket Number: Case No. 1:16-cv-00329
• Parties: MAXWELL D. KINMAN, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

MAXWELL D. KINMAN, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Case No. 1:16-cv-00329

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

December 6, 2016

Dlott, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff Maxwell Kinman brings this action against defendants United States of America, United States Department of Veteran Affairs, Secretary of the Department of Veterans Affairs Robert A. McDonald, and General Counsel of the Department of Veterans Affairs Leigh A. Bradley, Esq. This matter is before the Court on a motion to dismiss the complaint brought by defendants the United States and its agency the United States Department of Veterans Affairs (the "VA") (Doc. 14) and plaintiff's response to the motion to dismiss (Doc. 16).

I. Introduction

Plaintiff Kinman filed the complaint for declaratory and injunctive relief in this action on February 22, 2016. (Doc. 1). Plaintiff brings the action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and/or the Privacy Act, 5 U.S.C. § 552a, to compel defendants to produce agency records maintained by the VA. (Id., § 1).

Plaintiff alleges he is a licensed attorney who represents veterans and their families in proceedings before the VA. (Id., ¶¶ 5, 14). Plaintiff asserts that in September, October, November and December 2015, he served initial and follow-up requests on the VA to produce individual claim files known as "C-files" for veterans Raymond E. Strong, James R. Fox, Matthew D. Gossard, David Lee Hill, Carrie Mayer, Ryan W. Baumgartner, Joseph Parker, and Walter Raymond Creech. (Id., ¶¶ 3, 27, 30, 34, 35, 39, 42, 43, 46, 47, 50, 51, 54, 55; Exhs. 1, 2, 3, 4, 5, 6, 7, 8 13, 15, 22, 25, 28, 30).¹ Plaintiff expressly requested the files under both the "[FOIA], 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a." (Id., Exhs. 1, 2, 3, 4, 5, 6, 7, 8). With each veteran's record request, plaintiff submitted a waiver of Privacy Act protections completed by the veteran or his surviving spouse so that plaintiff could receive records on the veteran or surviving spouse's behalf. (Id., ¶ 4; Exhs. 1, 2, 3, 4, 5, 6, 7, 8). Plaintiff alleges that the VA acknowledged receipt of plaintiff's requests but did not provide the requested records within 20 business days of receipt of the requests as the FOIA requires. (Id., ¶¶ 18, 28, 29, 32, 33, 36, 37, 38, 40, 41, 44, 45, 48, 52, 56, 57; Exhs. 10, 11, 12, 14, 16, 17, 18, 20, 23, 24, 26, 27, 29, 31). Plaintiff further alleges that as of the date he filed the complaint, the VA had not produced the C-files of the named veterans. (Id., ¶¶ 60, 68, 76, 84, 92, 100, 108, 116).

Plaintiff seeks a declaratory judgment declaring that the VA's failure to produce the requested documents violates the FOIA and/or the Privacy Act and ordering the VA to produce the records on behalf of the named veterans and surviving spouse. (Id., p. 19). Plaintiff also seeks an award of attorney fees and costs; a declaration that the VA has engaged in a "pattern and practice" of violating the FOIA's time limits; an injunction under 5 U.S.C. § 552(a)(6)(A), (B), (C), requiring defendants to timely provide copies of all properly requested and non-exempted documents within 20 days under the FOIA and/or the Privacy Act and to provide timely notice if an extension is necessary under 5 U.S.C. § 552(a)(6); and, if warranted, a written finding as to whether any VA personnel acted arbitrarily or capriciously in withholding the C-files and a directive ordering the Office of the Special Counsel to "promptly initiate a proceedingto determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding (pursuant to 5 U.S.C. § 1216(a))." (Id., pp. 19-20).

II. Motion to Dismiss

Defendants the United States and the VA move to dismiss the complaint on two grounds: (1) lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1); and (2) failure to state a claim to relief under Fed. R. Civ. P. 12(b)(6). (Doc. 14). Defendants concede that the veterans named in the complaint have a right to access their C-files, and they contend the right of access to those files is not at issue. (Id. at 2). Defendants allege that plaintiff's complaint instead raises issues concerning (1) the amount of time defendants have to produce the requested C-files, and (2) whether plaintiff has exhausted his administrative remedies under the governing statute. Defendants argue that in resolving these issues, the Court must look solely to the Privacy Act and its implementing regulations. Defendants contend that although plaintiff requested the C-files under both the FOIA and the Privacy Act and brings this action under both statutes, plaintiff does not have a right to access the veterans' records under the FOIA. (Id. at 2-8). Defendants argue that because plaintiff filed suit under the "false premise" that the C-file requests are governed by the FOIA, the Court should dismiss this case for lack of subject matter jurisdiction. (Id. at 9-10).

Defendants contend that the Privacy Act, which authorizes an individual to sue the VA for denying access to his records under 5 U.S.C. § 552a(d)(1)², governs plaintiff's claims for access to the veterans' C-files. See 5 U.S.C. § 552a(g)(1) (providing that an individual maybring a civil action against an agency for violation of the Act). (Doc. 14 at 7). Defendants argue that plaintiff's C-file requests under the Privacy Act must be dismissed for lack of subject matter jurisdiction. (Id. at 9). Although defendants' argument is difficult to decipher, defendants appear to argue that the Court lacks subject matter jurisdiction for two reasons. First, defendants assert that the VA has not denied any of plaintiff's requests. (Id. at 9). Rather, defendants allege that all of the C-files at issue have been released to plaintiff. (Id. at 9, n.1, citing Exh. 1, Richard Ivy Aff., ¶ 12). To support their position, defendants rely on the affidavit of Richard Ivy, a Government Information Specialist employed by the VA Records Management Center in St. Louis, Missouri. (Doc. 14, Exh. 1, Ivy Affidavit). Mr. Ivy states in his affidavit that the VA processes requests for C-files under the Privacy Act, 5 U.S.C. § 552a(d), not under the FOIA. (Id., Exh. 1, ¶¶ 3,4, 6). Mr. Ivy also generally asserts that the requests on behalf of the veterans named in the complaint were processed under the Privacy Act. (Id., Exh. 1, ¶ 11). Mr. Ivy states that "there have been no denials issued by the VA as to any of the c-files at issue for the Veterans" identified in the complaint. (Id., Exh. 1 ¶ 12). Defendants allege that while plaintiff complains about the VA's delay in producing the records at issue, there is no time limit for the VA to provide records under the Privacy Act and its implementing regulations. (Doc. 14 at 8, 9). Defendants argue that because the VA has not denied plaintiff's requests for the C-files, this Court lacks subject matter jurisdiction over plaintiff's claim under the Privacy Act. (Id.).

Defendants also allege that the complaint must be dismissed because plaintiff has not exhausted his administrative remedies under the Privacy Act in compliance with the jurisprudential exhaustion doctrine. (Id. at 8, citing Exh. 1, Ivy Aff., ¶ 13; Id. at 9, citing Taylor v. U.S. Treasury Dept., 127 F.3d 470, 476-78 (5th Cir. 1997)). Defendants contend that plaintiff has not pursued the administrative remedies provided under the VA's implementing regulations,which include: (1) directing a request for a C-file to the VA Regional Office that maintains the requested file, see 38 C.F.R. § 1.577³; and (2) if the request is denied, appealing the denial to the VA's General Counsel, whose office makes the final decision on the request, see 38 C.F.R. § 1.580.⁴ (Id. at 8-9). Defendants allege that plaintiff has not filed an administrative appeal from the denial of any of his records requests, and he does not allege that the Office of General Counsel has taken final agency action as required under § 1.580. Defendants argue that plaintiff's complaint must therefore be dismissed for failure to exhaust administrative remedies.

In response, plaintiff argues that he properly requested the named veterans' C-files under the FOIA and he is entitled to obtain the records under the Act. (Doc. 16). Plaintiff argues that even if the FOIA did not apply, the Court has jurisdiction over his claims under the Privacy Act. Moreover, plaintiff denies that the VA has produced all of the requested C-files, and he indicates that he has exhausted his administrative remedies by "repeatedly" seeking the C-files at issue. (Id. at 4).

III. The FOIA and the Privacy Act

The FOIA obligates agencies of the United States government to make their records "promptly available to any person," except those records specifically exempt from disclosure. See 5 U.S.C. § 552(a)(3). The FOIA vests jurisdiction in the district court to enjoin an "agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). To establish jurisdiction under the FOIA, the plaintiff must show that the agency (1) "improperly" (2) "withheld" (3) "agency records." Id. at 150 (quoting 5 U.S.C. § 552(a)(4)(B)).

The FOIA requires an individual to exhaust all administrative remedies before filing a judicial action. Auto All. Intern., Inc. v. U.S. Cust. Serv., 155 F. App'x 226, 228 (6th Cir. 2005); Fields v. Internal Revenue Service, No. 12-14753, 2013 WL 3353921, at *3 (E.D. Mich. July 3, 2013) (citations omitted). The exhaustion requirement is satisfied when either: (1) the individual submits a FOIA request and administratively appeals any adverse determinations, or (2) the agency fails to respond to a FOIA request within the time limits articulated in the Act. Fields, 2013 WL 3353921, at...