2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2009

Dom Wadhwa v. Dept Veteran Affairs

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1835

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Recommended Citation

"Dom Wadhwa v. Dept Veteran Affairs" (2009). 2009 Decisions. Paper 775.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1835

___________

DOM WADHWA, M.D.,

Appellant

v.

DEPARTMENT OF VETERANS AFFAIRS

_________________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Civil Action No. 06-cv-04362)

District Judge: Honorable Joseph E. Irenas

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 21, 2009

Before: RENDELL, FUENTES AND ALDISERT, Circuit Judges

(Opinion filed: August 26, 2009)

_______

OPINION

___________

PER CURIAM

Dom Wadhwa, proceeding pro se, appeals an order of the United States District

Court for the District of New Jersey dismissing his complaint for lack of jurisdiction and

an order denying his motions for reconsideration. We will vacate the District Court’s
1

orders and remand for further proceedings.

Wadhwa filed a complaint in District Court alleging that on August 5, 2006,

through counsel, he requested documents from the Department of Veterans Affairs (the

“VA”) pursuant to the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. (“FOIA”) and

the Privacy Act, 5 U.S.C. §§ 552a et seq. Wadhwa, who appears to work at the

Philadelphia Veterans Affairs Medical Center, alleged that he did not receive a response

to his request, and that the statutory time period in which the VA was required to respond

had passed. Wadhwa sought an order directing the VA to release the documents he had

requested.

The VA filed a motion to dismiss the complaint or, in the alternative, for summary

judgment. In support of its motion, the VA submitted the declaration of Brendan

Minihan, a FOIA/Privacy Officer for the Philadelphia Veterans Affairs Medical Center. 

Minihan attested that on August 7, 2006, Timothy Graham, the former FOIA/Privacy

Officer, replied to Wadhwa’s counsel’s letter. Minihan attached a copy of Graham’s

letter to his declaration. 

Graham wrote that the estimated fee for processing counsel’s request was $354.30,

and that the fee had to be paid before the documents would be produced. Graham denied

counsel’s request to waive the fee and denied his request to review the records before

they were duplicated. Graham also wrote that the agency would conclude that counsel

did not wish to proceed with the request if the agency did not receive a response within
 Minihan also stated that Graham responded to a duplicative FOIA/Privacy Act request 1

made by Wadhwa shortly before counsel wrote a letter on his behalf.

2

14 days. Graham stated that the denial of the fee waiver and estimated fees could be

appealed to VA General Counsel. 

1

Minihan further attested that the VA did not receive a response to Graham’s letter

or payment of the cost of producing the requested documents, and that the VA Office of

the General Counsel has no record of receiving an appeal. Finally, Minihan stated that on

February 27, 2008, the VA responded to Wadhwa’s request under the Privacy Act. The

VA informed Wadhwa that the documents he sought were not maintained in a “system of

records” as defined by the Privacy Act and were therefore not available under the Act. 

Wadhwa was advised that he could appeal the denial of his request. 

Based on these facts, the VA argued that the District Court lacked jurisdiction over

Wadhwa’s FOIA and Privacy Act claims because Wadhwa failed to exhaust his

administrative remedies. The VA alternatively moved for summary judgment on

Wadhwa’s Privacy Act claim based on the fact that it has no documents in its system of

records. In response to the VA’s motion, Wadhwa asserted that neither he nor his

attorney received Graham’s letter. Wadhwa also stated that he had filed other

FOIA/Privacy Act requests and that the VA had refused to provide him the requested

documents.

The District Court dismissed Wadhwa’s FOIA claim for lack of standing and
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dismissed his Privacy Act claim based on Wadhwa’s failure to exhaust his administrative

remedies. The District Court also denied Wadhwa’s motions for reconsideration. This

appeal followed. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s dismissal of the complaint for lack of standing is de novo. See Common Cause v.

Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009). 

The District Court concluded that Wadhwa lacked standing to sue the VA under

FOIA because the VA did not deny Wadhwa’s request for documents, but offered to

process his request for the requisite fee. The District Court relied on McDonnell v.

United States, 4 F.3d 1227, 1238 (3d Cir. 1993), in which we stated that “a ‘case or

controversy’ conferring standing arises only when a person makes a request for

information under the FOIA and the petitioned agency denies that request.” McDonnell,

however, is distinguishable because, unlike in this case, the plaintiff had not made a

FOIA request. Here, Wadhwa made a FOIA request and alleged in his complaint that the

VA failed to respond within the time provided by statute. Wadhwa had standing to file a

complaint to enforce his request. 

We disagree with the VA that Wadhwa’s failure to exhaust his administrative

remedies is an alternative ground on which we may affirm the District Court’s order. 

Wadhwa’s complaint only claimed that the VA failed to respond to his August 5, 2006,

FOIA request. Under FOIA’s constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C),
 Wadhwa also argues in his brief that he submitted other FOIA requests that were 2

either denied or that certain documents were withheld. As noted by the District Court, the

subject of Wadhwa’s complaint is his August 5, 2006, request for documents. Wadhwa

asserted in District Court that he sought to amend his complaint to include his other FOIA

requests, but the District Court found in denying his motion for reconsideration that he

had not in fact made such a request, and that the VA would be prejudiced if he were

permitted at that time to amend his complaint. Wadhwa has not shown that the District

Court abused its discretion.

4

Wadhwa was not required to exhaust his administrative remedies if he did not receive a

response to his FOIA request before filing suit. See McDonnell, 4 F.3d at 1240; Oglesby

v. United States Dep’t of Army, 920 F.2d 57, 63-4 (D.C. Cir. 1990). Although the VA

established that it had in fact responded to Wadhwa’s FOIA request, Wadhwa did not

receive the response. Wadhwa did not amend his complaint and challenge the VA’s

response to his request. Under the circumstances of this case, Wadhwa’s failure to appeal

the VA’s response to his request for documents is not a proper basis for dismissal of

Wadhwa’s complaint.

The VA did not move for summary judgment based on the fact that it responded to

Wadhwa’s FOIA request. If the VA seeks summary judgment on remand and asserts that

it timely responded to Wadhwa’s request, Wadhwa will have an opportunity to challenge

this assertion in a response to the motion. See Fed. R. Civ. P. 56(e). Although Wadhwa

asserts in his brief that Minihan’s declaration is false and inaccurate, we may not entertain

such an argument in this appeal.2

We also disagree with the District Court’s conclusion that it lacks jurisdiction to

entertain Wadhwa’s claim under the Privacy Act because Wadhwa failed to exhaust his
5

administrative remedies. There is no statutory requirement of exhaustion related to a

request for access to records. See 5 U.S.C. § 552a(d). To the extent exhaustion of

administrative remedies is required, it is not a jurisdictional prerequisite. See Taylor v.

United States Treasury Dep’t, 127 F.3d 470, 475-76 (5th Cir. 1997). The District Court

need not determine whether exhaustion is required in this case because the VA

alternatively moved for summary judgment on the merits of Wadhwa’s Privacy Act claim,

submitting evidence that the VA informed Wadhwa that the documents he requested are

not contained in a “system of records” as defined by the Privacy Act, and are thus not

available. In light of our remand with respect to Wadhwa’s FOIA claim, the VA may

wish to renew its summary judgment motion on Wadhwa’s Privacy Act claim. 

Accordingly, because we conclude that the District Court erred in deciding that it

lacked jurisdiction, we will vacate the District Court’s orders and remand this case for

further proceedings. Wadhwa’s motion to exclude the VA’s answer from its

supplemental appendix is denied.