STANHUNT, UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA ) Plaintiff, ) ) 

### v. Civil Action No. 11-1210 (RJL) U.S. DEPARTMENT OF VETERANAFFAIRS, ) ) ) ) ) ) Defendant. ) 

# _, MEMORANDUM OPINION (August2J_, 2012) [#15 & #23] In this action brought

### proseunderthe Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5U.S.C. § 552a, plaintiffchallenges defendantU.S. Department ofVeteransAffairs' (hereafter "VA")response to his request for service treatmentrecords ("STRs") underlyingthe denial ofhis application for veterans disability benefits. Havingreleased 636 pages ofunredactedrecords, the VA contends that plaintiffsFOIA claim is moot andtherefore moves to dismiss under Rule 12(b)(l) ofthe Federal Rules ofCivil Procedure orfor summaryjudgmentunder Rule 56. Def.'sMot. to Dismiss orfor Summ. J. (ECF No. 15). Plaintiffhas filed an oppositionto defendant's motion, Pl.'sResponse to Def.'sMot. to Dismiss or for Summ. J. ("Pl.'s Opp'n") (ECF No. 22), and a separate motion for summaryjudgment on the Privacy Act claim. Pl.'s Mot. for Summ. J. (ECF No. 23).

1Upon consideration ofthe parties' submissions and the entire record, the Court will GRANT defendant's motion for summaryjudgment and DENYplaintiffs cross motion for summaryjudgment. 

### BACKGROUND Plaintiff, aprisoner incarcerated in Dalton, Texas, "is an Honorably Discharged U.S. Army Veteran seeking service-connected disability compensation and otherbenefits authorized by Title 38 ofthe United States Code." Pl.'s Opp'n at 3. OnAprilS, 2011, the VA denied plaintiffs application for veterans disability benefits for a "bilateral wrist condition" based in part on his "[s]ervicetreatment records from November 1, 1977 through September 14, 1984." Am. Compl., Ex. K, at 2 (ECF No. 11). By letter ofApril 11, 2011, plaintiffrequested from the VA's Houston regional office ("V ARO") his "complete claims file [including] all the evidence [the VA] relied upon in rendering [its] rating decision dated April 5, 2011, in particular: (i) all copies ofthe 'servicetreatment record evidence' from November 1, 1977 through September 14, 1984, and (ii) all 'treatmentreports from Texas Department ofCriminal Justice from April 9, 2002 through October 21, 2010."' !d., Ex. L. By letter ofMay 2, 2011, the VA released a complete copy ofplaintiffs claim file, consisting of636pages. Decl. ofJeanne Paul ("Paul Decl.") 

### ,-r 14 (ECF No. 15-2). The file included "personal statements from the veteran, medical records pertainingto the claim, and any other supporting evidence that establishes eligibility and entitlement to Veterans benefits." !d. Afterthe commencement ofthis action onJune 30, 2011, defendant conducted another search ofplaintiffs claim file and located an STR dated 2September 30, 1977. Although defendant considered that record to be outside ofthe requested time period, it had included the STR in the release on May 2, 2011. !d.**~** 17. Presumably because no STRs coveringNovember 1, 1997 to September 14, 1984
wereproduced in response to plaintiff's FOIA request, plaintiffcontends that "[d]efendantnow admits that it does not have and never did have possession of documentary evidence [it] relied upon ... in [denying]
... Title 38 benefits and compensation." Pl.'s Mot. for Summ. J.**~** 8. Plaintiffstates that "[t]he entire basis of [his] FOIA/PArequest ... is basedupon defendant having denied [p]laintiff's claims for service-connected disability compensation and related benefits
... and, in doing so, havingrelied upon agency records
... defendant had claimed was in its possession." Pl.'s Opp'n at 2. 

### LEGAL STANDARD Summaryjudgmentis appropriate when the movant demonstrates "thatthere is no genuine dispute as to any material fact and [that it] is entitled tojudgmentas a matter of law." Fed. R. Civ. P. 56(a). "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome ofthe suitunder the governing law will properlypreclude the entry ofsummaryjudgment. Factual disputes that are irrelevant orunnecessary will not be counted." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). The FOIA requires a federal agency to "make [requested] records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). The Court is authorized under the FOIA only "to enjoin [a federal] agency from withholding agency records orto orderthe 3production ofany agency records improperly withheld from the complainant." 5 U.S.C. 

### § 552(a)(4)(B); see Kissinger v. Reporters Comm.forFreedom ofthePress, 445 U.S. 136, 139 (1980). An agency's disclosure obligations extend to responsive records in the agency's possession at the time ofthe request. See Nat'!Sec. Archive v. Archivistof the US., 909 F.2d 541, 545 (D.C. Cir. 1990) ("[T]he agency must have 'possession or control' over a document before it may be deemed to be 'withholding' it.") (footnote and citation omitted). "When assessing a motion for summaryjudgmentunder FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. US. Dep 't of HomelandSec., 598 F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). The Court may award summaryjudgmentbased solely on information provided in affidavits or declarations if they "describe the documents and thejustifications for nondisclosure with reasonably specific detail, demonstrate thatthe information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record []orby evidence ofagency bad faith." MilitaryAuditProjectv. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote and citation omitted). Such affidavits or declarations "are accorded a presumption ofgood faith, which cannot be rebutted by purely speculative claims about the existence and discoverability ofother documents." Safe CardServs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). To rebut the presumption, aplaintiff"mustpointto evidence sufficient to put the Agency's good faith into doubt." GroundSaucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). 4ANALYSIS 1. Plaintiff's FOIA Claim Plaintiffchallenges only the fact that defendant did notproduce the STRs that he surmises were relied upon to deny his application for veterans benefits. Since an inadequate search for records would constitute an improperwithholding underthe FOIA,


### see Maydak v. US. Dep 't. of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003), the Court denies defendant's motion to dismiss the FOIA claim as mootpremised on its complete release ofresponsive records. The agency to which a FOIArequest is submitted is required to "make a good faith effortto conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested." 

### Int 'I 

### Trade Overseas, Inc.
v. Agency forIntern. Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting

### Marrera v. US. Dep'tof Justice, 622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). In determining the adequacy ofa FOIA search, the Court is guided byprinciples of reasonableness. 

### !d. (citing 

### Weisberg v. US. Dep 't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is the possessor oftherecords and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the searchterms and the type ofsearch performed, and averring that all files likely to contain responsive materials (ifsuch records exist) were searched." 

### Valencia-Lucena
v. US. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citing 

### Oglesby v. US. Dep'tof theArmy, 920 F.2d 57,68 (D.C. Cir. 1990); 

### Kowalczykv. US. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); 

### Weisberg v. US. Dep 't of Justice, 705 F.2d 1344, 1351 (D.C. 5Cir. 1983)). "Once the agency has shown that its search was reasonable, the burden is on the [plaintiff] to rebut [the defendant's] evidence by a showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. US. Dep'tof State, 779 F.2d 1378, 1383 (8th Cir. 1985)). Summaryjudgment is inappropriate "ifa review ofthe record raises substantial doubt" about the adequacy of the search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of Scientology v. Nat'! Sec. Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)). However, the mere fact that a particularrecord was not found does not renderthe search inadequate. Boydv. Criminal Div. of the US. Dep 't of Justice, 475 F.3d 381, 390-91 (D.C. Cir. 2007) (citingIturralde
v. Comptroller ofCurrency, 315 F.3d 311,315 (D.C. Cir. 2003)) (other citation omitted). This is because "the adequacy ofa FOIA search is generally determined not by the fruits ofthe search, butby the appropriateness ofthe methods used to carry out the search." Santana v. Dep 't of Justice, 828 F. Supp. 2d 204, 209 (D.D.C. 2011) (quotingIturralde, 315 F.3d at 315) (internal quotation marks and other citation omitted). In response to plaintiffsFOIA request, VARO located and released the requested claim file in its entirety. During the instantproceedings, defendant's declarant conducted "apage by page review of[plaintiffs] file and[] found only one Service Treatment Record
... dated September 30, 1977, which is [plaintiffs] enlistmentphysical record
..

. ." Paul Decl.**~** 17. Although the record was "outsidethe date range of[the request]," it "was furnished as part ofthe claims file to [plaintiff] on May 2, 2011." 

### !d. Paul states that "[c]laim files at [the Houston] VARO [are] stored in physical form only[;] [t]here are
no claim forms
... stored in electronic format[,]" id.**~** 12, and further states that "[a]ll 6files that are likely to contain material responsive to [plaintiffs] request were searched." !d. 

### ,-r 19. Paul adds that "[o]verthe years, requests were sent to the Records Management Center
... and the National Personnel Records Center
...by both VA and Mr. Hunt in
an effort to obtain his [STRs]. Those requests resulted in negative findings." 

### !d. 

### ,-r 18. In addition to the searches conducted by VARO staff, "a search was made of[the Veterans Health Administration's] electronic records," utilizing plaintiffs social security number, but no STRs with regard to plaintiffwere found. Decl. ofSusan Hickey 

### ,-r,-r 5-7, 10 (ECF No. 15-3). Hickey provides a reasonably detailed description ofthe files searched and the search methods employed, 

### id. 

### ,-r,-r 7-10, and also states that "[a]ll files that are likely to contain records responsive to [plaintiffs] request have been searched." 

### Id. 

### ,-r 11. Plaintiffhas not seriously challenged defendant's declarations orproffered any evidence to call into question the demonstrated reasonableness ofdefendant's searches or the agency's good faith. Finding no material fact genuinely in dispute with regard to defendant's disclosure obligations, the Court concludes that defendant is entitled to judgment on plaintiffsFOIA claim. 

### 2. Plaintiff's Privacy Act Claim Defendant has not opposed plaintiffs motion for summaryjudgment on his Privacy Act claim. 1 Norhas defendant addressed this claim in its dispositive motion. The Court nevertheless finds thatplaintiffis not entitled to summaryjudgment on his
After granting four ofdefendant's motions for enlargements oftime to oppose plaintiffs summaryjudgmentmotion and signaling its growing impatience with such motions, see Min. Order ofJune 22, 20 12, the Court finally denied defendant's fifth motion for additional time to file an opposition. 7Privacy Act claim because he has notproffered any evidence upon which a reasonable fact finder could rely to find in his favor. See 28 U.S.C. § 1915A (requiring a district courtto screen a prisoner's complaint and to dismiss it "as soon as practicable" upon a determination thatthe complaint fails to state a claim upon which reliefmay be granted). Subsection (e)(5) ofthe Privacy Actrequires that an agency "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to
assure fairness to the individual in the determination." 5 U.S.C. 

### § 552a(e)(5). An individual may access an agency's records or information in a system ofrecords pertainingto him and may request amendment ofsuch records. See 5 U.S.C. § 552a(d). That individual may file a civil action against an agency which "makes a determination
..

.not to amend an individual's record in accordance with his request." 5 U.S.C. § 552a(g)(l)(A). In addition, an individual may bring suit against an agency under subsection (g)(l)(C) ifthe agency: fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual. 5 U.S.C. § 552a(g)(l)(C). Ifthe Court determines thatthe agency's actions were willful
or intentional, it may award actual damages sustainedby the individual as a result ofthe agency's failure to maintain its records with the requisite level ofaccuracy, and further may award costs ofthe action and attorney fees. 5 U.S.C. § 552a(g)(4).

8PlaintiffsPrivacy Act claim is predicated on his speculation that defendant relied upon "non-existent" records to deny his application for veterans benefits. Pl.'s Mot. for Summ. J.**~** 10. Butthe Privacy Act is not "avehicle for amending thejudgments of federal officials or . . . other[s]
. . . as thosejudgments are reflected in records maintained by federal agencies." Kleiman v. Dep'tofEnergy, 956 F.2d 335,337-38 (D.C. Cir. 1992) (quotingRogers v. U.S. Dep'tof Labor, 607 F. Supp. 697, 699 (N.D. Cal. 1985)); accordBaker v. Winter, 210 Fed. Appx. 16, 18 (D.C. Cir. 2006) ("The Privacy Actrequires modification only offactual errors, not oferrors in opinion[.]") (citation omitted); see also Levantv. Roche, 384 F. Supp. 2d 262, 270 (D.D.C. 2005) ("complaint [] not about the accuracy of[] records, but about the underlying decision they reflect" is not cognizable under the Privacy Act); McCready v. Principi, 297 F. Supp. 2d 178, 190 (D.D.C. 2003) ("The [Privacy Act] allows for correction offacts but not correction ofopinions orjudgments, no matterhow erroneous such opinions or judgments may be.") (citations omitted), rev' d inparton othergrounds sub nom. McCready v. Nicholson, 465 F.3d 1(D.C. Cir. 2006). "[I]t is feasible, necessary, andproper, for the agency and, in tum, the district courtto determine whether each filed item ofinformation is accurate." Doe v. United States, 821 F.2d 694, 699 (D.C. Cir. 1987) (citation omitted). Sinceplaintiffhas not identified an agency record subject to testing for accuracy, the Court must deny his motion for summaryjudgmentbecause he has notproffered any probative evidence ofa Privacy Act violation. See Deters v. UnitedStates Parole Comm 'n, 85 F.3d 655, 658 (D.C. Cir. 1996) (in the "typical" Privacy Act case, the "truth" is "clearly provable" or 9"relatively easily ascertainable") (citation and internal quotation marks omitted); ResearchAir, Inc. v. Kempthorne, 589 F. Supp. 2d 1, 12 (D.D.C. 2008) (concludingthat while the complainant "may very well have a legitimate grievance with DOl,
...without the records that [he] claims are inaccurate and without evidence to rebutthose records, [the complainant] cannotprovide evidence to substantiate his claims thatDOl violated the Privacy Act
....").2 

### CONCLUSION Forthe foregoing reasons, the Court GRANTS defendant's motion for summary judgment andDENIES plaintiffsmotion for summaryjudgment. A separate final order accompanies this Memorandum Opinion. 

### \

United States DistrictJudge

2 Plaintiffsrecourse lies, ifat all, outside ofthis Court'sjurisdiction. "Theexclusive avenue for redress ofveterans' benefits determinations is appeal to the Court ofVeterans Appeals [renamed Court ofAppeals for Veterans Claims] and from there to the United States Court ofAppeals for the Federal Circuit." Price v. U.S., 228 F.3d 420,421 (D.C. Cir. 2000) (per curiam) (citing 38 U.S.C. 

### §§ 511, 7252, 7292) (other citations omitted). 10