Case 1:17-cv-00124 Document 1 Filed 01/19/17 Page 1 of 44

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PRO PUBLICA, INC.
155 Avenue of the Americas, 13th Floor
New York, NY 10013
and
VIRGINIAN-PILOT MEDIA COMPANIES, LLC
150 West Brambleton Avenue
Norfolk, VA 23510
Civil Action No. ________

Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS
810 Vermont Avenue NW
Washington, DC 20420
Defendant.
COMPLAINT
1.

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., seeking
the release of withheld records that generally concern memoranda, reports, and
correspondence at the United States Department of Veterans Affairs (“VA”) regarding
the effects of Agent Orange—laden with poisonous dioxin—on Vietnam veterans’
children. Since May 2015, reporters Charles Ornstein at Pro Publica, Inc. (“ProPublica”)
and Mike Hixenbaugh at the Virginian-Pilot Media Companies, LLC (“The VirginianPilot”) have sought disclosures by the VA. Dragging its feet, the VA has failed to come
clean. VA’s failure to disclose the requested records bears the hallmarks of a cover-up.
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Moreover, the records relate, in part, to communications involving David J. Shulkin, MD,
the current Under Secretary for Health at the VA who was just nominated by Presidentelect Trump, on January 11, 2017, to be the next Secretary of Veterans Affairs.
Disclosure of these records takes on added urgency as this nomination proceeds and a
new Secretary is confirmed and assumes leadership of the VA. The Secretary ultimately
is responsible for VA’s establishment of benefits, such as disability compensation, for
individuals with ailments or disabilities linked to exposure to Agent Orange.
2.

ProPublica and The Virginian-Pilot seek declaratory, injunctive, and other

appropriate relief with respect to the VA’s unlawful withholdings of records requested
under FOIA.
JURISDICTION AND VENUE
3.

This court has subject matter jurisdiction over this action pursuant to

28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). In addition, this Court has jurisdiction
pursuant to the APA, 5 U.S.C. §§ 701-706.

This Court has jurisdiction to grant

declaratory and further necessary or proper relief pursuant to 28 U.S.C. §§ 2201-2202
and Federal Rules of Civil Procedure 57 and 65.
4.

Venue lies in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e) as the defendant is located in the District of Columbia and because a
substantial part of the events or omissions giving rise to the claims occurred in this
district.

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THE PARTIES
5.

Plaintiff ProPublica is a Delaware corporation and a non-profit entity under

Section 501(c)(3) of the Internal Revenue code. As an independent newsroom that
produces investigative journalism in the public interest, ProPublica has been honored
with three Pulitzer Prizes. On average, ProPublica’s web site has 1,100,000 unique
visitors per month.

Since its publishing began in 2008, ProPublica’s “publishing

partners” have included more than 135 news organizations amounting to a “who’s who”
of the journalism world, including: the Atlantic, BBC, Boston Globe, Los Angeles Times,
Miami Herald, New York Times, NPR News, Politico, USA Today, Virginian-Pilot
[Norfolk], and the Washington Post.
6.

Plaintiff Virginian-Pilot Media Companies, LLC is a Virginia limited

liability company and publisher of The Virginian-Pilot, which is the top source of news
and information in southeast Virginia and northeastern North Carolina. Founded in 1865,
The Virginian-Pilot is a Pulitzer-prize-winning metropolitan newspaper serving almost
300,000 readers daily and over 400,000 on Sunday, and has been repeatedly named “best
paper in the state of Virginia” for decades.
7.

ProPublica and The Virginian-Pilot, while not legally related to one another

in terms of ownership or corporate governance, are “publishing partners.” Reporters
from the two publications work together on investigative journalism, during which they
research, report, and co-publish articles on a variety of topics including Agent Orange.
The FOIA requests that are the subject of this action have been jointly pursued by
ProPublica and The Virginian-Pilot—whose interests in these FOIA requests are
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aligned—for the mutual benefit of their “reporting partners” Charles Ornstein and Mike
Hixenbaugh as well as their readers. The VA has treated the FOIA requests as having
been jointly submitted by ProPublica and The Virginian-Pilot. Moreover, by written
agreements, ProPublica and The Virginian-Pilot each hold an undivided one-half interest
in each of these FOIA requests.
8.

Defendant United States Department of Veterans Affairs is a federal agency

headquartered at 810 Vermont Avenue NW, Washington, DC 20420. VA has possession,
custody, and control over the records sought by Plaintiffs. VA is an agency within the
meaning of 5 U.S.C. § 552(f)(1).
NATURE OF THE ACTION
9.

“Mixtures of 2,4-dichlorophenoxyacetic acid (2,4-D), 2,4,5-trichlorophen-

oxyacetic acid (2,4,5-T), picloram, and cacodylic acid made up the bulk of the herbicides
sprayed” by the U.S. military from 1962 to 1971 over Vietnam. See VETERANS AND
AGENT ORANGE: UPDATE 2014, National Academies of Sciences, Engineering, and
Medicine (2016), at 1. “The herbicide mixtures used were named according to the colors
of identification bands painted on the storage drums; the main chemical mixture sprayed
was Agent Orange, a 50:50 mixture of 2,4-D and 2,4,5-T. At the time of the spraying,
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), the most toxic form of dioxin, was an
unintended contaminant generated during the production of 2,4,5-T and so was present in
Agent Orange as well as some other formulations sprayed in Vietnam.” Id.
10.

It took an act of Congress—not the VA—to finally recognize the long-term

health effects of such herbicides in Vietnam veterans. Pursuant to 38 U.S.C. § 1116(f),
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“a veteran who, during active military, naval, or air service, served in the Republic of
Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975,
shall be presumed to have been exposed during such service to an herbicide agent
containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been
exposed during such service to any other chemical compound in an herbicide agent,
unless there is affirmative evidence to establish that the veteran was not exposed to any
such agent during that service.”
11.

Federal law and VA regulations provide that certain diseases are

“considered to have been incurred in or aggravated by” service in Vietnam. See 38
U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313(b). Those diseases are either
specifically identified in the statute or identified by the VA, at its discretion, as “having
positive association with exposure to an herbicide agent.” Id.
12.

While there is limited coverage for Vietnam veterans themselves who

suffer from ailments or disabilities brought about by exposure to Agent Orange, coverage
is virtually nonexistent for veterans’ descendants, e.g., their biological children and
grandchildren who face latter-generation consequences of Agent Orange.
13.

One of the VA’s foremost experts on Agent Orange, Han K. Kang, Dr.P.H.

(“Kang”), now retired, is the former director of the VA’s War Related Illness and Injury
Study Center (“WRIISC”) as well as the VA’s Environmental Epidemiology Service
(“EES”). See VETERANS AND AGENT ORANGE: UPDATE 2012, The National Academies
Press (2014), at x; see also Han K. Kang, “Surveillance of Health Outcomes of Gulf War
Veterans” (Nov. 20, 2008), available at https://www.va.gov/gulfwaradvisorycommittee/
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docs/kanggwac.pdf.

The WRIISC Director reports to the Chief Consultant, Post-

Deployment Health within the Office of Public Health (“OPH”) of the Veterans Health
Administration (“VHA”) for all programmatic and policy issues. See http://www1.va.
gov/vhapublications/ViewPublication.asp?pub_ID=2841.

Funding for WRIISC is

provided by VHA. Id. WRIISC “is dedicated to Veterans’ post-deployment health
concerns and unique health care needs . . . through clinical care, research, education, and
risk communication.” See http://www.warrelatedillness.va.gov/. EES was “the premiere
office for Vietnam/Agent Orange-related research within VA.” http://www.northflorida.
va.gov/patients/education/agent_orange.doc.
14.

“One of Kang’s most important areas of study involved assessing the

reproductive health of women who served in Vietnam. He found that the children of
female Vietnam veterans were at increased risk for birth defects. In 2000, because of
Kang’s findings, Congress passed legislation providing special benefits to children with
birth defects born to mothers who had served in the war.”

See https://serviceto

americamedals.org/honorees/view_profile.php?profile=57. In addition, “[Kang] realized
that one of the most difficult aspects of studying the health effects of Agent Orange was
that the nation did not have a complete picture of every man and woman who served in
Vietnam and where they served. So in the early 1990s, with the assistance of the
Department of Defense and the National Personnel Records Center, he painstakingly
assembled a national roster of living Vietnam veterans.” Id.
15.

“For the last three decades, [Kang’s] research interest has been focused

primarily on the health of US military and veteran populations who were potentially
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exposed to environmental/occupational hazards during their military service.”

See

Jomana Amara and Ann M. Hendricks, eds., MILITARY HEALTH CARE: FROM PREDEPLOYMENT TO POST-SEPARATION (2013), at “List of contributors,” relevant portion
available at https://books.google.com/.
16.

Another of the VA’s prominent experts on Agent Orange throughout the

years, Michael R. Peterson, DVM, MPH, DrPH (“Peterson”), was formerly the Chief
Consultant, Post-Deployment Health within the VHA’s OPH. His team at the VA was
responsible “for doing the epidemiological studies or the population-based studies that
ask the question along the lines of: ‘Is there a difference in terms of health outcomes
between those who deployed and those who did not deploy?’” See http://www.cavc
bar.net/downloads/2013%20Judicial%20Conference%20Bar%20Association%20Causati
on%20Transcript-2.pdf. During that work at the VA, Peterson explained, in nuanced
fashion, that on his team “we don’t talk about causation . . . [w]e really deal more with
association and with risk.” Id.
17.

Peterson testified to the United States Senate’s Committee on Veterans’

Affairs in 2009: “One of the many lessons that VA has learned from experiences with
Agent Orange . . . is that information regarding possible exposures to environmental
agents and other toxicants, both within the combat theater and other areas in which our
troops operate, must be received and acted upon by VA as early as possible.” See
http://www.veterans.senate.gov/imo/media/doc/peterson_100809.pdf.
18.

Thirty years ago, then-Lieutenant Colonel Peterson served as a member of

the team conducting “an epidemiologic investigation of Air Force personnel who aerially
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disseminated herbicides in the Vietnam War (code-named Operation Ranch Hand).” See
AIR FORCE HEALTH STUDY. AN EPIDEMIOLOGIC INVESTIGATION OF HEALTH EFFECTS IN
AIR FORCE PERSONNEL FOLLOWING EXPOSURE TO HERBICIDES. VOLUME I. FIRST
FOLLOWUP EXAMINATION RESULTS, JANUARY 1985 TO SEPTEMBER 1987, AD–A188 262
(Oct. 1987), at vii, available at http://www.dtic.mil/dtic/tr/fulltext/u2/a188262.pdf. The
study “conclude[d] that there is insufficient evidence to support a cause and effect
relationship between herbicide exposure and adverse health in the Ranch Hand group at
this time.” Id. at vi.
19.

Peterson’s 1987 study repeatedly cites the work of Alvin L. Young, Ph.D,

a.k.a. “Dr. Orange”—who certainly has critics today—and makes a point of highlighting
non-scientific factors: “In the larger context of environmental controversies, Young aptly
described the Agent Orange issue as being at the crossroads of science and social
concern. The scientific community has responded to the dioxin question by a massive
research effort, which in concert with class action lawsuits, is expected to cost more than
a billion dollars in the near future.” Id. at 10-1.
20.

Despite the conclusion of his Air Force Health Study, Peterson’s early work

should have sounded alarm bells: His research, published two years later in 1989, found
that TCDD, the toxic dioxin contaminant in Agent Orange, had a “median half‐life” in
Ranch Hand veterans’ blood serum of 7.1 years. See James L. Pirkle et al. [and Michael
R. Peterson], Estimates of the Half‐Life of 2,3,7,8‐tetrachlorodibenzo‐p‐dioxin in Vietnam
Veterans of Operation Ranch Hand, 27 JOURNAL OF TOXICOLOGY AND ENVIRONMENTAL
HEALTH 165 (1989).

By comparison, heroin, cocaine, and cyanide have terminal
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elimination half-lives of 2-5 minutes, 0.5-1 hour, and 19 hours, respectively. See Martin
Schulz et al., Therapeutic and Toxic Blood Concentrations of Nearly 1,000 Drugs and
other Xenobiotics, 16 CRITICAL CARE R136 (2012), available at https://www.ncbi.
nlm.nih.gov/pmc/articles/PMC3580721/pdf/cc11441.pdf and http://www.biomedcentral.
com/content/supplementary/cc11441-S1.DOC (Table of “Therapeutic (‘Normal’), Toxic,
and Comatose-Fatal Blood-Plasma Concentrations (mg/L) in Man”). The pain reliever
ibuprofen’s half-life is 2-3 hours, roughly 20-30,000 times shorter than the half-life of
TCDD reported by Peterson. Id.
21.

Irrespective of the work of Kang and Peterson—two of VA’s most

recognized researchers and leaders over the years concerning Agent Orange—“thousands
. . . are [still] grappling with a chilling prospect: Could Agent Orange, the herbicide
linked to health problems in Vietnam veterans, have also harmed their children?” See
Charles Ornstein, Hannah Fresques & Mike Hixenbaugh, The Children of Agent Orange,
PROPUBLICA

and

THE

VIRGINIAN-PILOT

(Dec.

16,

https://www.propublica.org/article/the-children-of-agent-orange.

2016),

available

at

“For decades, the

Department of Veterans Affairs has collected — and ignored — reams of information
that could have helped answer that question.” Id.
22.

“Concerns that Agent Orange was not just sickening vets but also causing

birth defects in their children surfaced after troops returned from war four decades ago.
Veterans reported that some of their children had unusual defects — missing limbs, extra
limbs and other diseases — that didn’t run in their families. Some government studies
were done . . . but they generally dismissed an association.” Id.
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23.

“The VA makes [disability] payments only to those [children] who have

spina bifida, in which the spinal cord doesn’t develop properly, and the children of a
small number of female Vietnam vets with 18 other diseases. That leaves out the vast
majority of vets’ ailing children.” Id.
24.

“Agent Orange might jump through the generations.”

See Joanne

Kimberlin, “We Want It to Stop with Us”: Agent Orange Curse Hangs Over Families of
Vietnam

Veterans,

THE

VIRGINIAN-PILOT

(Dec.

16,

2016),

available

at

http://pilotonline.com/news/military/veterans/vietnam/we-want-it-to-stop-with-us-agentorange-curse/article_3c52d33c-069a-5535-bea4-ced2d1e555c5.html. And the evidence
is not just found among Americans.

“In Vietnam, orphanages house children with

disabilities four generations after the war.” Id.
25.

More than forty years after the end of the war, Vietnam veterans’ children

are suffering its consequences. One father cautioned his son to “be aware of the ravages
of A.O.”

See Stephen M. Katz, as told to Mike Hixenbaugh & Charles Ornstein,

A Father’s War, A Son’s Toxic Inheritance, PROPUBLICA and THE VIRGINIAN-PILOT
(June 17, 2016), available at https://www.propublica.org/article/a-fathers-war-a-sonstoxic-inheritance. The father “sprayed Agent Orange along riverbanks in Vietnam, often
soaking his uniform in the herbicide” and later developed “serious health problems.” Id.
His son was later born with a heart defect and developed an underactive thyroid,
problems with his nervous and immune systems, type-2 diabetes, hypertension and a
nerve disorder that severely limits the use of his right hand. Id.

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26.

Other children of veterans suspect Agent Orange is to blame for their health

problems, including heart defects, endometriosis and fertility issues, lupus, and birth
defects never before seen in their family tree. See Terry Parris Jr., Charles Ornstein, &
Mike Hixenbaugh, Reliving Agent Orange: What the Children of Vietnam Vets Have to
Say, PROPUBLICA and THE VIRGINIAN-PILOT (June 17, 2016), available at
https://www.propublica.org/article/reliving-agent-orange-what-the-children-of-vietnamvets-have-to-say.
27.

“[F]or years, [a mother] didn’t fully connect the bad news in her life with

her husband’s possible Agent Orange exposure.” Charles Ornstein, A Public Official’s
Private Pain, PROPUBLICA (Dec. 16, 2016), available at https://www.propublica.org/
article/linda-kochmar-agent-orange. But her daughter had no sight in one eye, her son
died suddenly at age 21 of cardiomyopathy, and her granddaughter was born with
cerebral palsy and a genetic disorder that causes persistent diarrhea. Id. There was no
family history of these conditions. Id.
28.

“[S]cores of children [] struggle with strange, debilitating health problems

and wonder if the herbicide that sickened their fathers has also affected them.” See Mike
Hixenbaugh & Charles Ornstein, Rethinking the Cost of War. What if Casualties Don’t
End on the Battlefield, but Extend to Future Generations?, PROPUBLICA and THE
VIRGINIAN-PILOT (Dec. 30, 2016), available at https://www.propublica.org/article/
rethinking-the-cost-of-war. “For decades, the federal government has resisted addressing
these issues, which could ultimately cost billions of dollars in new disability claims.
When science does suggest a connection, the VA has hesitated to take action, instead
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weighing political and financial costs. And in some cases, officials have turned to a
known skeptic of Agent Orange’s deadly effects to guide the VA’s decisions.” Id.
“Frustrated vets summarize the VA’s position this way: ‘Delay, deny, wait till I die.’” Id.
29.

Recognizing a growing body of evidence—whether scientific or

anecdotal—that Agent Orange’s horrific legacy is not limited to veterans themselves, on
December 16, 2016, the President signed into law the “Jeff Miller and Richard
Blumenthal Veterans Health Care and Benefits Improvement Act of 2016.” That law, in
part, requires the Secretary of Veterans Affairs to obtain “an assessment on scientific
research relating to the descendants of individuals with toxic exposure”—covering
hazardous agents inhaled, ingested, or having come into contact with veterans—and also
requires certain follow-on research and advisory activities. See Pub. L. No. 114-315 at
§§ 631-634. Nevertheless, it may take two and a half years before that assessment is
completed. Id.
30.

In the meantime, with Kang’s and Peterson’s views and influence

remaining shrouded in mystery at least to some extent, the interested public continues to
be largely uninformed concerning the effects of Agent Orange, and the poisonous dioxin
contained therein, on Vietnam veterans’ offspring. It seems that the VA, at least publicly,
remains in a state of “denial” or, possibly worse, has willfully blinded itself to the
ramifications of Agent Orange exposures during the Vietnam War on future generations.
31.

Recounting the VA’s long-standing “willful ignorance,” the legislative

director of Vietnam Veterans of America last year could not hide his frustration that
“[t]hey’ve tried to undo anything and everything that might lead to further research into
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the effects of Agent Orange exposure.” See Mike Hixenbaugh & Charles Ornstein,
Researchers Call for More Study of Agent Orange Effects on Vets and Their Kids,
PROPUBLICA and THE VIRGINIAN-PILOT (Mar. 11, 2016), available at https://www.pro
publica.org/article/researchers-call-for-more-study-of-agent-orange-effects-on-vets-theirkids.
32.

Only through transparency can the public have confidence in the VA’s

commitment “[t]o care for him who shall have borne the battle.” The VA’s integrity is
called into question when it maintains in secrecy its knowledge about how dioxincontaining Agent Orange is (or may be) linked to ailments and birth defects in Vietnam
veterans’ offspring. Members of the armed forces unwittingly received an unprecedented
poisoning while serving in Vietnam. The public is owed full and frank disclosure by the
VA concerning the deleterious effects of Agent Orange on our veterans’ descendants.
PLAINTIFFS’ FIRST FOIA REQUEST AND
DEFENDANT’S FAILURE TO COMPLY WITH FOIA
33.

By email dated May 12, 2015, The Virginian-Pilot submitted a FOIA

request to the VA’s “FOIA Service” (“First FOIA Request”) in which disclosure was
sought with respect to:
 all correspondence (including emails and letters) as well as any memos and
reports between January 1, 2009 and the date this request is completed to and
from Han K. Kang, former director of VA’s [WRIISC], regarding Agent
Orange and dioxin, and its effects on veterans and/or their offspring;
 all correspondence (including emails and letters) as well as any memos and
reports between January 1, 2009 and the date this request is completed to and
from Michael Peterson, former Chief Consultant, Post-Deployment Health,
Public Health, regarding Agent Orange and dioxin and its effects on veterans
and/or their offspring; and
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 all Congressional correspondence (emails, letters, memos and reports)
between January 1, 2009 and the date this request is completed to and from
[VA] staff regarding Agent Orange and dioxin and its effects on veterans
and/or their offspring.
See Exhibit 1 (emphasis added).
34.

The First FOIA Request sought waiver of any applicable FOIA processing

fees because the “request [was] made as part of the news gathering process and not for
commercial use.” Id.
35.

The First FOIA Request also stated that the requested “information is of

timely value” and sought disclosure within 20 business days as required by the FOIA
statute. Id.
36.

By email dated May 19, 2015, the VA’s FOIA Service acknowledged

receipt of the First FOIA Request. See Exhibit 2. The VA stated: “The records, if they
exist, would be maintained by the Veterans Health Administration (VHA) and the Office
of Congressional and Legislative Affairs (OCLA). Therefore, we are redirecting your
request to these offices for a file search and a direct reply to you.” Id. The referral to
VHA was assigned tracking number 15-05014-F while the referral to OCLA was
assigned tracking number 15-05015-F. Id.
37.

By email and letter dated May 19, 2015, the VHA acknowledged receipt of

the First FOIA Request, tracking number 15-05014-F. See Exhibit 3.
38.

On January 11, 2016, The Virginian-Pilot sent an email to the VHA

requesting the status of processing the First FOIA Request which was submitted eight
months prior. See Exhibit 4. The email was sent by Mike Hixenbaugh who identified

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himself as “a journalist with The Virginian-Pilot newspaper” and who copied his
“reporting partner, Charles Ornstein of ProPublica” on the email. Id.
39.

On January 22, 2016, The Virginian-Pilot sent another email to the VHA,

copying ProPublica, concerning the First FOIA Request and stating “[p]lease respond
promptly with an update on the status of this request and an estimate for when it will be
completed.” Id.
40.

On January 30, 2016, The Virginian-Pilot sent yet another email to the VA,

copying ProPublica, requesting the status of processing the First FOIA Request and
stating “I’ve emailed several times . . . and have called FOIA staffers in the office” to no
avail. Id. The email also inquired about “what can be done to expedite this [FOIA]
request?” Id. The email was sent by Mike Hixenbaugh, who also stated “I’m working
with Charles Ornstein of ProPublica” and “[p]lease copy him on your response.” Id.
41.

ProPublica sent a follow-up email to the VA on February 2, 2016, copying

The Virginian-Pilot. Id. In response, on February 2, 2016, the VA informed both
ProPublica and The Virginian-Pilot that the VHA FOIA Office would “provide you some
feedback.” Id.
42.

ProPublica sent a further follow-up email to the VHA FOIA Office on

February 4, 2016, copying The Virginian-Pilot. Id. Finally, on February 5, 2016, the
VHA FOIA Office sent an email to ProPublica and The Virginian-Pilot stating that it was
still “waiting for our Information Technology (IT) to complete the record search” which
“was submitted to IT on May 28, 2015.” Id. VHA’s email also stated that it “requested
an estimated completion date from [IT].” Id.
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43.

The Virginian-Pilot sent yet another follow-up email on February 15, 2016,

in part to VHA and OCLA, while copying ProPublica, and asking, “Have you been able
to obtain an estimated completion date?” Id. The email further stated: “This particular
request is a top priority for us.

I will discus[s] with [the Office of Government

Information Services (“OGIS”)] if we’re not able to make progress on this.” Id. On
February 17, 2016, the VHA FOIA Office responded that “IT has not yet provided [] []
an estimated delivery date.” Id.
44.

On February 17, 2016, The Virginian-Pilot sent an email to OGIS, copying

ProPublica, and stated:
I’m writing to request assistance with the following matter:
I’m a reporter for The Virginian-Pilot newspaper working on
a story in partnership with ProPublica (Charles Ornstein
copied). In May 2015, I requested the following from the
Department of Veterans Affairs:
* * *
For the past nine months, the VA FOIA office has told me
that IT is looking into the request. But . . . IT is apparently
not responsive to questions about when the request might be
completed.
The FOIA tracking number is 15‐05014‐F. It’s one of several
unfulfilled requests ProPublica has with the VA. Can you
offer any assistance or tips for moving this along?
See Exhibit 5.
45.

A “Facilitator” at OGIS responded to The Virginian-Pilot by email on

March 7, 2016 and stated that OGIS would “reach out to VA regarding the status of []
request no. 15-05014-F and . . . get an estimated date of completion . . .” See Exhibit 6.
Then, on March 9, 2016, the Facilitator at OGIS responded:
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. . . [T]he FOIA Public Liaison at VHA . . . [is] waiting on the
information technology (IT) department to conduct the email
search for responsive records. She placed the request with IT
on 6/2/2015 and followed up with IT on 6/16/2015, 7/8/2015,
8/21/2015, 9/8/2015, 9/23/2015, 10/28/2015, 2/5/2016,
2/16/2016, and 3/1/2016. She can’t give an estimated date of
completion because she has no idea a. if there are responsive
records b. if so, the volume VA would have [to] process. She
has received 8 pages of congressional correspondence which
is constituent related.
I hope you find this information useful. Unfortunately, OGIS
has no investigatory or enforcement power, nor can we
compel an agency to release documents, so there isn’t much
more assistance we can provide.
Id.
46.

On March 24, 2016, The Virginian-Pilot sent another email to the VHA

FOIA Office, copying ProPublica, again asking, “Can you provide an estimated delivery
date for this request?” See Exhibit 4.
47.

On April 6, 2016, Richard J. Tofel, the President of ProPublica, sent a letter

to Richard J. Hipolit, the VA’s Deputy General Counsel. The letter stated:
I am writing to seek your assistance in overcoming barriers
faced by ProPublica and our publishing partners at The
Virginian-Pilot in accessing public information under the
Freedom of Information Act. Our organizations have been
stymied in several important requests for information related
to the VA’s handling of research related to Agent Orange
exposure by Vietnam era veterans. Specifically we have
sought the following information:
15-05014-F
(May 12, 2015)
* * *
15-05015-F
(May 12, 2015)
* * *
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These requests are of paramount importance to hundreds of
thousands, perhaps millions of Vietnam era veterans, some of
whom are being diagnosed daily with illnesses that are
presumed to be connected with their Vietnam service.
From our end, frankly, this systematic inaction appears to
us a lot like a cover up. It’s surprising that a department
dedicated to assisting the nation’s veterans would want
journalists to have that sense.
I hope you will look into this matter personally, in a
transparent manner and with adherence to both the spirit and
letter of FOIA.
See Exhibit 7 (emphasis added). No response was received by ProPublica.
48.

On May 25, 2016, The Virginian-Pilot sent still another follow-up email to

the VHA FOIA Office, copying ProPublica, requesting “an update . . . [and] ask[ing] -- as
we approach our deadline to report on these important matters of public interests -- that
your office would give consideration to completing these requests quickly, especially
[15-05014-F and 15-05015-F which] are now more than a year old.” See Exhibit 8.
49.

The VHA FOIA Office responded to The Virginian-Pilot by email on May

26, 2016, copying the FOIA officer at OCLA as well as ProPublica, and stated:
“Concerning 15-05014-F, OI&T completed their search and I received the files last week.
I’m in the process of moving the documents from the multiple files to one file so that I
may begin my review process. Once I have moved all of the documents I will have a
better sense of the number of documents and time frame.” Id. With respect to tracking
number 15-05015-F, the VHA FOIA Office requested that OCLA’s FOIA officer
“respond [] [] directly with a status update.” Id.

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50.

ProPublica sent follow-up emails to the VHA FOIA Office on June 3, 2016

and June 7, 2016, each time copying The Virginian-Pilot, again inquiring about the status
of processing the First FOIA Request. Id. On June 10, 2016, the VHA FOIA Office
responded by email to ProPublica and The Virginian-Pilot: “I’m still in the process of
moving files.

I’m planning on providing partial responses as I work through the

documents. I anticipate the first response by the middle of July.” Id.
51.

On July 19, 2016, ProPublica sent another follow-up email to the VHA

FOIA Office, once again inquiring about the status of processing the First FOIA Request.
Id. The VHA FOIA Office responded by email that day, on July 19, 2016, and stated:
“My review is going slow due to how OI&T provided the documents. The documents
were provided in layers of folders and subfolders to which I have to move each document
individually. I am nearing the completion of moving the documents from the first folder.
Once completed with that folder, I will issue a partial response.” Id.
52.

On August 16, 2016, ProPublica sent another follow-up email to the VHA

FOIA Office, again inquiring about the status of processing the First FOIA Request. See
Exhibit 9. The VHA FOIA Office responded on August 17, 2016 and stated: “I have a
meeting . . . with [OI&T] staff for them to install a software plug-in that I will need” and
“[t]he documents are being uploaded to the software.” Id.
53.

ProPublica sent yet another follow-up email to the VHA FOIA Office on

September 13, 2016 inquiring about the status of processing the First FOIA Request. See
Exhibit 10. On September 14, 2016, the VHA FOIA Office responded to ProPublica by
email: “The review is going s[l]o[w] as I’m learning the system. As I [] become more
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familiar with the system, my review time will pick up. I’m still planning on doing partial
responses.” Id. Later that day, on September 14, 2016, ProPublica inquired by email:
“Any ETA for a first partial response?” Id. The VHA FOIA Office responded to
ProPublica on September 15, 2016 that “I’m hoping to have the first partial to you by the
middle of October if not sooner.” Id.
54.

Again, ProPublica sent a follow-up email to the VHA FOIA Office on

October 25, 2016 inquiring about the status of processing the First FOIA Request. Id.
Later that day, on October 25, 2016, the VHA FOIA Office responded to ProPublica by
email: “Unfortunately due to other office priorities, I have been unable to devote the time
to this request as I had hoped. In hopes of rectifying, I have blocked out two hours of my
day to devote to this request. If I’m able to devote more time each day, I will.” Id.
55.

On December 9, 2016, ProPublica sent one more follow-up email to the

VHA FOIA Office inquiring about the status of processing the First FOIA Request. See
Exhibit 11. Later that day, on December 9, 2016, the VHA FOIA Office responded:
“Unfortunately due to staffing within the office and other assigned responsibilities, I am
unable to devote the time to your request as I had planned. For your awareness, I will be
out of the office the next two weeks. Upon my return to the office, I will do everything I
can to begin to provide partial responses.” Id.
56.

As a separate matter, with respect to tracking number 15-05015-F, the

VA’s OCLA issued a response determination to The Virginian-Pilot on August 25, 2015,
by email, concluding that “[t]he documents you seek regarding [Congressional]
correspondence from January 9, 2011 to the present, were not maintained in the Office
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of Congressional and Legislative Affairs.”

See Exhibit 12.

The Virginian-Pilot

administratively appealed that determination by email to VA’s Office of General Counsel
(“OGC”) on September 1, 2015. See Exhibit 13. The administrative appeal stated that
OCLA’s response “defies logic” and “leaves two possibilities: [e]ither the VA is
withholding the documentation, or it has destroyed the government records.”

Id.

Furthermore, the administrative appeal stated: “If the records are held in an office other
than [OCLA], I request copies. If the correspondence has been disposed of, I request a
written statement explaining why and under whose authority the records were destroyed.”
Id.
57.

Over fifteen months later, on December 8, 2016, the VA’s OGC remanded

the FOIA request for tracking number 15-05015-F to OCLA because it could not
“confirm . . . the reasonableness of the search for responsive information” and also
“directed OCLA to refer [the] FOIA request to other VA offices that may have
responsive information.” See Exhibit 14.
58.

To date, no records have been produced by the VA (whether by VHA,

OCLA, or otherwise) to ProPublica or The Virginian-Pilot in response to the First FOIA
Request.
59.

Despite the passage of over twenty months since the First FOIA Request

was submitted, ProPublica has not received any response determination whatsoever from
VHA in connection with the First FOIA Request.

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PLAINTIFFS’ SECOND FOIA REQUEST AND
DEFENDANT’S FAILURE TO COMPLY WITH FOIA
60.

By email dated September 1, 2015, The Virginian-Pilot submitted a FOIA

request to the VA’s FOIA Service (“Second FOIA Request”) in which disclosure was
sought with respect to all correspondence (including emails and letters) as well as any
memoranda and reports regarding Agent Orange and dioxin, and its effects on veterans
and/or their offspring, between January 1, 2009 and the date this request is completed, to
and from:
 the Secretary of Veterans Affairs (including previous and interim office
holders, and the current office holder);
 the Under Secretary for Health (including previous and interim office holders,
and the current office holder);
 the Under Secretary for Benefits (including previous and interim office
holders, and the current office holder);
 the Deputy Inspector General (including previous and interim office holders,
and the current office holder);
 the Assistant Secretary for Congressional and Legislative Affairs (including
previous and interim office holders, and the current office holder); and
 the Assistant Secretary for Policy and Planning (including previous and
interim office holders, and the current office holder).
See Exhibit 15 (emphasis added).
61.

Among these office holders, the Under Secretary for Health is the “Chief

Executive of [VHA].”

See http://www1.va.gov/directory/guide/manager.asp?pnum=

30282. President-elect Donald Trump announced on January 11, 2017 that the current
Under Secretary for Health, Dr. David J. Shulkin, is his nominee to be the next Secretary
of the VA. See https://greatagain.gov/shulkin-302876b6595a#.d8h1z1g6y. Dr. Shulkin
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would be the first non-veteran to lead the VA. See https://www.propublica.org/article/
the-chosen-who-trump-is-putting-in-power. In his role as Under Secretary for Health,
Dr. Shulkin’s responsibilities have certainly included oversight of matters related to
Agent Orange. For example, on December 7, 2016, Dr. Shulkin issued VHA Directive
1302 entitled “Agent Orange Registry (AOR) Program” concerning the “policy and
procedures” applicable to “a computerized index of Veteran participants, and the coded
findings of the Agent Orange Program physical examinations, including related
diagnostic results.” See https://www.va.gov/vhapublications/ViewPublication.asp?pub_
ID=4303.
62.

The Second FOIA Request sought waiver of any applicable FOIA

processing fees because the “request [was] made as part of the news gathering process
and not for commercial use.” Id.
63.

The Second FOIA Request also stated that the requested “information is of

timely value” and sought disclosure within 20 business days as required by the FOIA
statute. Id.
64.

By email dated September 3, 2015, the VA’s FOIA Service acknowledged

receipt of the Second FOIA Request. See Exhibit 16. The Second FOIA Request was
redirected to: the Office of the Secretary of Veterans Affairs (“OSVA”) and assigned
tracking number 15-07637-F, the VHA and assigned tracking number 15-07638-F, the
Veterans Benefits Administration (“VBA”) and assigned tracking number 15-07639-F,
OCLA and assigned tracking number 15-07640-F, the Office of Policy and Planning

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(“OPP”) and assigned tracking number 15-07641-F, and the Office of Inspector General
(“OIG”) without assignment of a tracking number. Id.
65.

By email and letter dated September 3, 2015 to The Virginian-Pilot, the

VHA FOIA Office acknowledged receipt of the FOIA request assigned tracking number
15-07638-F. See Exhibit 17.
66.

By emails and letter dated September 24, 2015, OSVA provided a response

determination for tracking number 15-07637-F in which 67 pages of records were
produced in part. See Exhibit 18.
67.

On January 30, 2016, The Virginian-Pilot sent an email to the VA, copying

ProPublica, requesting the status of processing the Second FOIA Request and stating that
it had “yet to receive information from these requests submitted in September [2015]: []
15-07638-F, 15-07639-F, 15-07640-F, and 15-07641-F.” See Exhibit 4. The email was
sent by Mike Hixenbaugh who stated that “I’m working with Charles Ornstein of
ProPublica” and “[p]lease copy him on your response.” Id.
68.

ProPublica sent a follow-up email to the VA on February 2, 2016, copying

The Virginian-Pilot. Id. In response, on February 2, 2016, the VA informed both
ProPublica and The Virginian-Pilot that the VHA FOIA Office would “provide you some
feedback.” Id.
69.

ProPublica sent a further follow-up email to the VHA FOIA Office on

February 4, 2016, copying The Virginian-Pilot. Id. Finally, on February 5, 2016, the
VHA FOIA Office sent an email to ProPublica and The Virginian-Pilot that merely

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described as “open” each of tracking numbers 15-07638-F, 15-07639-F, 15-07640-F, and
15-07641-F. Id.
70.

An email and a letter dated February 8, 2016 from OCLA to The Virginian-

Pilot provided a response for tracking number 15-07640-F and stated that “[t]he
documents you seek regarding ‘Agent Orange and Dioxin on veterans and/or its
offspring’ were not found in [OCLA].” See Exhibit 19.
71.

On April 6, 2016, Richard J. Tofel, the President of ProPublica, sent a letter

to Richard J. Hipolit, the VA’s Deputy General Counsel, stating that VA’s “systemic
inaction” with respect to, inter alia, FOIA tracking numbers 15-07638-F (VHA), 1507639-F (VBA), and 15-07641-F (OPP), “appears to us a lot like a cover up.” See
Exhibit 7. No response was received by ProPublica.
72.

On May 25, 2016, The Virginian-Pilot sent san email to the VHA FOIA

Office, copying ProPublica, requesting “an update . . . [and] ask[ing] -- as we approach
our deadline to report on these important matters of public interests -- that your office
would give consideration to completing these requests quickly.” See Exhibit 8. The
email identified various FOIA requests including FOIA tracking numbers 15-07638-F
(VHA), 15-07639-F (VBA), and 15-07641-F (OPP). Id.
73.

On May 26, 2016, by email, the VHA FOIA Office forwarded the May 25,

2016 request that processing be completed “quickly” to the FOIA officers at VBA and
OPP, among others; The Virginian-Pilot and ProPublica were included on the email as
well. Id.

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74.

By email to ProPublica on July 7, 2016, the VHA FOIA Officer stated that

on “September 11, 201[5] a comprehensive search email was sent to OI&T” and that
“[f]ollow-up’s to [the] September 11, 201[5] search request to OI&T were conducted in
writing on the following dates: October 15, 2015, November 23, 2015, December 23,
2015, February 10, 2016, February 25, 2016, March 2, 2016, April 2, 2016, May 9, 2016,
June 6, 2016, [and] July 7, 2016.” See Exhibit 20.
75.

By email on July 7, 2016, ProPublica requested assistance from OGIS

concerning the processing of tracking number 15-07638-F. See Exhibit 21. ProPublica
stated that “the VA itself has been unable to get a response from its own Office of
Information and Technology” and ProPublica experienced “problems even getting
answers from within the VA.” Id. ProPublica requested “assistance to help move this
matter along, to completion.” Id.
76.

On July 13, 2016, ProPublica’s senior reporter Charles Ornstein sent a

letter to LaVerne H. Council, Assistant Secretary for Information Technology and Chief
Information Officer, Office of Information Technology at the VA as well as to Leigh A.
Bradley, General Counsel of the VA, concerning the “delays and lack of responsiveness”
by VA in connection with tracking number 15-07638-F. See Exhibit 22. The letter
stated:
I am writing to seek your assistance in overcoming
unacceptable barriers and delays faced by ProPublica and The
Virginian-Pilot in accessing public information under the
Freedom of Information Act. It is our understanding that the
VA’s FOIA office has been unable to process at least some of
our requests due to delays and a lack of responsiveness by
VA’s Office of Information and Technology.
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We are focusing this letter on a single request, made on
September 3, 2015, captioned 15-07638-F. . . .
* * *
We have regularly checked in with the VA FOIA office for
updates on this request, as we do with all of our requests. We
recently were told that the request was received by the VHA
FOIA office on September 3, 2015. The FOIA office was
advised by OI&T that for the Enterprise Exchange teams to
conduct an email search, OI&T needed the exact names of the
mailboxes to be searched, including the email address; the
exact words/phrases to use as search terms; and the exact date
timeframe to be searched. That information was provided to
OI&T on September 11, 2015.
The FOIA office sought updates in writing from OI&T on the
following dates: October 15, 2015, November 23, 2015,
December 23, 2015, February 10, 2016, February 25, 2016,
March 2, 2016, April 2, 2016, May 9, 2016, June 6, 2016, and
July 7, 2016. To date, there have been no responsive records
shared with the FOIA office nor has there been an estimated
production date.
It’s been nearly a year since we submitted this FOIA request
to the VA, and the department’s own FOIA office does not
appear to have been successful in getting a response from its
OI&T.
This request is of paramount importance to hundreds of
thousands, perhaps millions of Vietnam era veterans, some of
whom are being diagnosed daily with illnesses that are
presumptively assumed to be connected with their Vietnam
service. Given the amount of coverage we, along with the
Virginian-Pilot, have given to the Agent Orange question, at
a time when practically no one is writing about this, from
our end this is beginning to feel a lot like an intentional
effort to stonewall. It’s surprising that the department
would want journalists to have that sense.
Given the [P]resident’s recent reaffirmation of the value of
the Freedom of Information Act, we would like to ask you
and your staffs to work with the VA FOIA office to produce
responsive records. If we do not receive a response shortly,
we will have no choice but to consider our other options for
attempting to acquire this information, a step we do not
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believe would be in the best interest of the taxpayers or
veterans.
* * *
Id. (emphasis added).
77.

On July 21, 2016, a Facilitator at OGIS sent an email to ProPublica and The

Virginian-Pilot acknowledging the request for assistance with respect to tracking number
15-07638-F. See Exhibit 23.
78.

By letter to ProPublica dated August 3, 2016, VA’s OGC docketed

ProPublica’s letter to Ms. Council and Ms. Bradley concerning tracking number 1507638-F “as an appeal under [FOIA] stemming from a non-response by [VHA].” See
Exhibit 24.
79.

By email and letter dated August 16, 2016 to ProPublica, copied to The

Virginian-Pilot, OGIS stated that “the VHA FOIA Office tasked OI&T with conducting a
search for responsive records” but that the search had been hindered because the relevant
records were “archived” and there had been “technical difficulties” in retrieving them.
See Exhibit 23. OGIS further stated that the VHA FOIA Office “has yet to receive all of
the records you seek” but would “begin reviewing the responsive records and responding
to you on a rolling basis.” Id. Finally, OGIS concluded that “there is no further action
for us to take and we consider this matter closed.” Id.
80.

By email and letter dated August 26, 2016, VHA provided to The

Virginian-Pilot a “partial initial agency decision” for tracking number 15-07638-F in
which 26 pages of records were released in part. See Exhibit 25. Twelve of the pages
were referred for “a direct response from VBA on their release determination.” In the

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letter, the VHA FOIA Officer also stated that “to respond more efficiently to your
request, once additional records are received, we will begin reviewing the responsive
records and responding to you on a rolling basis.” Id. The VHA FOIA Officer also
stated that “[a]t this time I do not have a projected release date for the next set of
records.” Id.
81.

On October 28, 2016, ProPublica sent one more email to VHA requesting a

status update concerning tracking number 15-07638-F. See Exhibit 26. VHA responded
to ProPublica by email that same day, on October 28, 2016, and stated “the search is not
yet completed.” Id.
82.

To date, despite the passage of over sixteen months since the Second FOIA

Request was filed, the VA’s VBA, OPP, and OIG have neither made a response
determination nor produced any records to The Virginian-Pilot or ProPublica in response
to the Second FOIA Request.
83.

To date, despite the passage of over sixteen months since the Second FOIA

Request was filed, the VA’s VHA has neither completed its response determinations nor
completed its record productions to The Virginian-Pilot or ProPublica in response to the
Second FOIA Request.
FAILURE TO TIMELY MAKE RESPONSE DETERMINATIONS
AND/OR MAKE RECORDS “PROMPTLY AVAILABLE” UNDER CREW
84.

“[I]n order to make a ‘determination’ and thereby trigger the administrative

exhaustion requirement, the agency must at least: (i) gather and review the documents;
(ii) determine and communicate the scope of the documents it intends to produce and
withhold, and the reasons for withholding any documents; and (iii) inform the requester
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that it can appeal whatever portion of the ‘determination’ is adverse.”

Citizens for

Responsibility & Ethics in Wash. [CREW] v. FEC, 711 F.3d 180, 188 (D.C. Cir. 2013).
85.

“If the agency does not make a ‘determination’ within the relevant statutory

time period, the requester may file suit without exhausting administrative appeal
remedies.” Id. at 185.
86.

The FOIA statute, 5 U.S.C. § 552(a)(6)(C)(i), also provides that “[a]ny

person making a request to any agency for records . . . shall be deemed to have exhausted
his administrative remedies with respect to such request if the agency fails to comply
with the applicable time limit provisions of § 552(a)(6).”
87.

VHA has not sent ProPublica or The Virginian-Pilot any response

“determination” in connection with the First FOIA Request within the relevant statutory
time period. As a result of OGC’s remand to OCLA for a “superseding initial agency
decision,” OCLA has not sent ProPublica or The Virginian-Pilot any response
“determination” in connection with the First FOIA Request within the relevant statutory
time period.
88.

By virtue of VHA’s indication on October 28, 2016 that “the search is not

yet completed,” VHA has not sent ProPublica or The Virginian-Pilot a complete response
“determination” in connection with the Second FOIA Request within the relevant
statutory time period. Moreover, neither VBA, OPP, nor OIG has sent ProPublica or The
Virginian-Pilot any response “determination” in connection with the Second FOIA
Request within the relevant statutory time period.

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89.

“FOIA requires that the agency make the records ‘promptly available,’

which depending on the circumstances typically would mean within days or a few weeks
of a ‘determination,’ not months or years.” CREW, 711 F.3d at 188.
90.

Neither VHA nor OCLA has made responsive, non-exempt records

promptly available to ProPublica or The Virginian-Pilot in connection with the First
FOIA Request.
91.

Neither VHA, VBA, OPP, nor OIG has made responsive, non-exempt

records promptly available to ProPublica or The Virginian-Pilot in connection with the
Second FOIA Request.
FAILURE TO MAKE GOOD FAITH EFFORT
TO COMPLY WITH 5 U.S.C. § 552(a)(3)(A)
92.

The FOIA statute requires that “each agency, upon any request for records

which (i) reasonably describes such records and (ii) is made in accordance with published
rules stating the time, place, fees (if any), and procedures to be followed, shall make the
records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
93.

Each of the First FOIA Request and Second FOIA Request (collectively,

“First and Second FOIA Requests”) reasonably describe the records sought by Plaintiffs
and was made in accordance with the published rules for submitting a FOIA request.
94.

VA has not made the requested records “promptly available” to Plaintiffs in

response to either of the First and Second FOIA Requests.
95.

In the time since the First FOIA Request was submitted to VA on May 12,

2015 and referred internally to, inter alia, VHA shortly thereafter, VHA has neither made

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a response “determination” nor produced any responsive, non-exempt records with
respect to the First FOIA Request.
96.

In the time since the Second FOIA Request was submitted to VA on

September 1, 2015 and referred internally to, inter alia, VBA, OPP, and OIG shortly
thereafter, VBA, OPP, and OIG have neither provided a written acknowledgment of
receipt, made a response “determination,” nor produced any responsive, non-exempt
records with respect to the Second FOIA Request.
97.

In the time since the Second FOIA Request was submitted to VA on

September 1, 2015 and referred internally to, inter alia, VHA shortly thereafter, VHA has
yet to complete its search for responsive records let alone provide a complete response
“determination” and produce any responsive, non-exempt records with respect to the
Second FOIA Request.
98.

Following its record search with respect to the First FOIA Request, VHA’s

“OI&T” provided documents for VHA’s FOIA Officer to review “in layers of folders and
subfolders [from] which [VHA’s FOIA Officer had] to move each document
individually,” causing the review preceding any release of responsive, non-exempt
records to be “slow.”
99.

With respect to OI&T’s record search in response to the Second FOIA

Request, VHA has indicated that “the search is not yet completed” and “OI&T continues
to work on retrieving the remaining responsive records”
100.

By letter dated April 6, 2016, a written protest was lodged with a senior

official at VA with respect to the “barriers faced by ProPublica and our publishing
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partners at The Virginian-Pilot in accessing public information [requested from VA]
under the Freedom of Information Act” with respect to the First and Second FOIA
Requests. The protest stated that “[o]ur organizations have been stymied in several
important requests for information related to the VA’s handling of research related to
Agent Orange exposure by Vietnam era veterans.” The protest specifically identified
FOIA tracking nos. 15-05014-F and 15-05015-F (corresponding to the First FOIA
Request) and FOIA tracking nos. 15-07638-F, 15-07639-F, 15-07641-F (corresponding to
the Second FOIA Request). The protest stated that the VA’s “systematic inaction appears
to us a lot like a cover up” and requested that VA “look into this matter” and conduct
such inquiry “in a transparent manner and with adherence to both the spirit and letter of
FOIA.”
101.

Plaintiffs did not receive any response from VA with respect to the April 6,

2016 protest letter.
102.

By letter dated July 13, 2016, a written protest was lodged with two senior

officials at VA specifically with respect to VA’s handling of the Second FOIA Request as
had been referred within the department to, inter alia, VHA with tracking number
15-07638-F. The protest complained about “unacceptable barriers and delays faced by
ProPublica and The Virginian-Pilot in accessing public information under the Freedom of
Information Act.” The protest further stated that “this is beginning to feel a lot like an
intentional effort to stonewall.”
103.

VA merely docketed the July 13, 2016 protest letter “as an appeal under

[FOIA] stemming from a non-response by [VHA].”
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104.

By virtue of (i) VA’s failure to substantively respond to the complaints

lodged in the April 6, 2016 and July 13, 2016 letters with respect to the First and Second
FOIA Requests, (ii) VA’s failure to provide and/or complete its response
“determinations” with respect to the First and Second FOIA Requests, (iii) VA’s failure
to provide and/or complete its productions of responsive, non-exempt records in response
to the First and Second FOIA Requests, (iv) VA’s failure to communicate, commit to,
and/or meet a timeframe during which VA will discharge its duties under FOIA with
respect to the First and Second FOIA Requests, (v) VHA OI&T’s failure to conduct
searches and/or provide records for VHA’s review and potential production in a manner
and format conducive to their ready review such that responsive, non-exempt records
could be made “promptly available” to ProPublica and The Virginian-Pilot in response to
the First and Second FOIA Requests, and (vi) the untimeliness of VA’s statutorilyrequired actions concerning the First and Second FOIA requests, VA has failed to make a
good faith effort to comply with 5 U.S.C. § 552(a)(3)(A).
EXHAUSTION OF ADMINISTRATIVE REMEDIES
105.

To the extent necessary, ProPublica and The Virginian-Pilot have

exhausted any and all administrative remedies with respect to the August 25, 2015
response determination from VA’s OCLA in connection with the First FOIA Request.
106.

To the extent necessary, ProPublica and The Virginian-Pilot have

exhausted any and all administrative remedies with respect to the failure to provide a
complete response determination on the part of VA’s VHA in connection with the
Second FOIA Request.
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FIRST CAUSE OF ACTION:
Unlawful Failure to Disclose Agency Records
With Respect to the First FOIA Request
107.

ProPublica and The Virginian-Pilot repeat and re-allege paragraphs 1-106

108.

ProPublica and The Virginian-Pilot have a legal right under FOIA to obtain

above.

the agency records requested from defendant VA in the First FOIA Request, and no legal
basis exists for defendant’s failure to make available the requested records.
109.

On information and belief, with respect to any searches for records

responsive to the First FOIA Request, defendant VA and its components have used or
will use a temporal limit, i.e. a “cut-off date” by which records were created, that is
earlier than the date of this Complaint.
110.

With respect to the First FOIA Request, defendant VA’s (i) failure to

provide complete response “determinations,” (ii) failure to exercise due diligence with
respect to processing the request and making the requested records promptly available,
(iii) failure to provide notice of, and use, a reasonable cut-off date with respect to
searches for responsive records, (iv) failure to discharge its statutorily-required
obligations in good faith, and (v) wrongful withholding of agency records are unlawful,
and are in violation of FOIA, including 5 U.S.C. § 552(a)(3), as well as the VA’s
regulations promulgated under FOIA.
111.

ProPublica and The Virginian-Pilot are entitled to declaratory and

injunctive relief with respect to the release and disclosure of the requested records.

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SECOND CAUSE OF ACTION:
Violations of the Freedom of Information Act and VA’s FOIA Regulation for
Failure to Grant Expedited Processing With Respect to the First FOIA Request
112.

ProPublica and The Virginian-Pilot repeat and re-allege paragraphs 1-111

113.

The FOIA statute requires that each agency shall “provid[e] for expedited

above.

processing of requests for records,” inter alia, “in cases in which the person requesting
the records demonstrates a compelling need.” 5 U.S.C. § 552(a)(6)(E)(i)(I).
114.

The FOIA statute defines a “compelling need” as meaning, inter alia, “with

respect to a request made by a person primarily engaged in disseminating information,
urgency to inform the public concerning actual or alleged Federal Government activity.”
5 U.S.C. § 552(a)(6)(E)(v)(II).
115.

The VA’s FOIA regulation provides that “[r]equests will be processed out

of the order in which they were received by the component responsible for processing the
FOIA request and given expedited treatment when VA determines that . . . [t]he failure to
obtain the requested records on an expedited basis could reasonably be expected to pose
an imminent threat to the life or physical safety of an individual.”

38 C.F.R. §

1.556(d)(1)(i).
116.

The VA’s FOIA regulation provides that “[r]equests will be processed out

of the order in which they were received by the component responsible for processing the
FOIA request and given expedited treatment when VA determines that . . . [t]here is an
urgency to inform the public concerning actual or alleged Federal government activity, if

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the request is made by a person primarily engaged in disseminating information.”
38 C.F.R. § 1.556(d)(1)(ii).
117.

The VA’s FOIA regulation also provides that “[r]equests will be processed

out of the order in which they were received by the component responsible for processing
the FOIA request and given expedited treatment when VA determines that . . . [t]here is
widespread and exceptional interest in which possible questions exist about the
government’s integrity which affect public confidence.” 38 C.F.R. § 1.556(d)(1)(iv).
118.

The FOIA statute further provides “that a determination of whether to

provide expedited processing shall be made, and notice of the determination shall be
provided to the person making the request, within 10 days after the date of the request.”
5 U.S.C. § 552(a)(6)(E)(ii)(I).
119.

The VA’s FOIA regulation further provides that “[w]ithin ten (10) calendar

days of its receipt of a request for expedited processing, the FOIA Officer shall determine
whether to grant the request and will provide the requester written notice of the decision.”
38 C.F.R. § 1.556(d)(3).
120.

Failure to obtain the requested records on an expedited basis could

reasonably be expected to pose an imminent threat to the life or physical safety of an
individual.” 38 C.F.R. § 1.556(d)(1)(i).
121.

There is urgency to inform the public concerning actual or alleged Federal

government activity and each of ProPublica and The Virginian-Pilot are a person
primarily engaged in disseminating information entitled to expedited treatment, pursuant
to 38 C.F.R. § 1.556(d)(1)(ii).
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122.

There is widespread and exceptional interest in the subject matter of the

First FOIA Request in which possible questions exist about the government’s integrity
which affect public confidence, pursuant to 38 C.F.R. § 1.556(d)(1)(iv).
123.

ProPublica and The Virginian-Pilot requested expedited processing by

VHA with respect to the First FOIA Request on January 30, 2016 and again on May 25,
2016. VHA did not even acknowledge the requests for expedited processing let alone
grant or deny those requests.
124.

VHA’s failure to determine whether to grant ProPublica’s and The

Virginian-Pilot’s requests for expedited processing in connection with the First FOIA
Request, and its failure to grant those requests for expedited processing, violates FOIA as
well as the VA’s regulations promulgated under FOIA.
125.

ProPublica and The Virginian-Pilot are entitled to declaratory and

injunctive relief with respect to VHA’s failure to act upon, and grant, the requests for
expedited processing in connection with the First FOIA Request.
THIRD CAUSE OF ACTION:
Violation of the Administrative Procedure Act for Failure to Timely Respond
to Request for Agency Records With Respect to the First FOIA Request
126.

ProPublica and The Virginian-Pilot repeat and re-allege paragraphs 1-125

127.

The failures of defendant VA to timely respond and provide expedited

above.

processing with respect to ProPublica’s and The Virginian-Pilot’s First FOIA Request for
agency records, and defendant VA’s withholding of agency records, each constitute
agency action unlawfully withheld and unreasonably delayed, in violation of the APA,
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 Case 1:17-cv-00124 Document 1 Filed 01/19/17 Page 39 of 44

5 U.S.C. §§ 701-06.

The failures of defendant VA to timely respond and provide

expedited processing, and its withholdings, each are arbitrary, capricious, an abuse of
discretion, not in accordance with law and without observance of procedure required by
law, all in violation of the APA.
128.

ProPublica and The Virginian-Pilot are entitled to declaratory and

injunctive relief with respect to the release and disclosure of the requested records in
connection with the First FOIA Request.
FOURTH CAUSE OF ACTION:
Unlawful Failure to Disclose Agency Records
With Respect to the Second FOIA Request
129.

ProPublica and The Virginian-Pilot repeat and re-allege paragraphs 1-128

130.

ProPublica and The Virginian-Pilot have a legal right under FOIA to obtain

above.

the agency records requested from defendant VA in the Second FOIA Request, and no
legal basis exists for defendant’s failure to make available the requested records.
131.

On information and belief, with respect to any searches for records

responsive to the Second FOIA Request, defendant VA and its components have used or
will use a temporal limit, i.e. a “cut-off date” by which records were created, that is
earlier than the date of this Complaint.
132.

With respect to the Second FOIA Request, defendant VA’s (i) failure to

provide complete response “determinations,” (ii) failure to exercise due diligence with
respect to processing the request and making the requested records promptly available,
(iii) failure to provide notice of, and use, a reasonable cut-off date with respect to
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 Case 1:17-cv-00124 Document 1 Filed 01/19/17 Page 40 of 44

searches for responsive records, (iv) failure to discharge its statutorily-required
obligations in good faith, and (v) wrongful withholding of agency records are unlawful,
and are in violation of FOIA, including 5 U.S.C. § 552(a)(3), as well as the VA’s
regulations promulgated under FOIA.
133.

ProPublica and The Virginian-Pilot are entitled to declaratory and

injunctive relief with respect to the release and disclosure of the requested records.
FIFTH CAUSE OF ACTION:
Violations of the Freedom of Information Act and VA’s FOIA Regulation for
Failure to Grant Expedited Processing With Respect to the Second FOIA Request
134.

ProPublica and The Virginian-Pilot repeat and re-allege paragraphs 1-133

135.

The FOIA statute requires that each agency shall “provid[e] for expedited

above.

processing of requests for records,” inter alia, “in cases in which the person requesting
the records demonstrates a compelling need.” 5 U.S.C. § 552(a)(6)(E)(i)(I).
136.

The FOIA statute defines a “compelling need” as meaning, inter alia, “with

respect to a request made by a person primarily engaged in disseminating information,
urgency to inform the public concerning actual or alleged Federal Government activity.”
5 U.S.C. § 552(a)(6)(E)(v)(II).
137.

The VA’s FOIA regulation provides that “[r]equests will be processed out

of the order in which they were received by the component responsible for processing the
FOIA request and given expedited treatment when VA determines that . . . [t]he failure to
obtain the requested records on an expedited basis could reasonably be expected to pose

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 Case 1:17-cv-00124 Document 1 Filed 01/19/17 Page 41 of 44

an imminent threat to the life or physical safety of an individual.”

38 C.F.R. §

1.556(d)(1)(i).
138.

The VA’s FOIA regulation provides that “[r]equests will be processed out

of the order in which they were received by the component responsible for processing the
FOIA request and given expedited treatment when VA determines that . . . [t]here is an
urgency to inform the public concerning actual or alleged Federal government activity, if
the request is made by a person primarily engaged in disseminating information.”
38 C.F.R. § 1.556(d)(1)(ii).
139.

The VA’s FOIA regulation also provides that “[r]equests will be processed

out of the order in which they were received by the component responsible for processing
the FOIA request and given expedited treatment when VA determines that . . . [t]here is
widespread and exceptional interest in which possible questions exist about the
government’s integrity which affect public confidence.” 38 C.F.R. § 1.556(d)(1)(iv).
140.

The FOIA statute further provides “that a determination of whether to

provide expedited processing shall be made, and notice of the determination shall be
provided to the person making the request, within 10 days after the date of the request.”
5 U.S.C. § 552(a)(6)(E)(ii)(I).
141.

The VA’s FOIA regulation further provides that “[w]ithin ten (10) calendar

days of its receipt of a request for expedited processing, the FOIA Officer shall determine
whether to grant the request and will provide the requester written notice of the decision.”
38 C.F.R. § 1.556(d)(3).

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142.

Failure to obtain the requested records on an expedited basis could

reasonably be expected to pose an imminent threat to the life or physical safety of an
individual.” 38 C.F.R. § 1.556(d)(1)(i).
143.

There is urgency to inform the public concerning actual or alleged Federal

government activity and each of ProPublica and The Virginian-Pilot are a person
primarily engaged in disseminating information entitled to expedited treatment, pursuant
to 38 C.F.R. § 1.556(d)(1)(ii).
144.

There is widespread and exceptional interest in the subject matter of the

First FOIA Request in which possible questions exist about the government’s integrity
which affect public confidence, pursuant to 38 C.F.R. § 1.556(d)(1)(iv).
145.

ProPublica and The Virginian-Pilot requested expedited processing by

VHA, VBA, and OPP with respect to the Second FOIA Request on May 25, 2016.
Neither VHA, VBA, nor OPP acknowledged the request for expedited processing let
alone communicated a decision granting or denying the request.
146.

The failures by VHA, VBA, and OPP to determine whether to grant

ProPublica’s and The Virginian-Pilot’s request for expedited processing in connection
with the Second FOIA Request, and their failures to grant the request for expedited
processing, violates FOIA as well as the VA’s regulations promulgated under FOIA.
147.

ProPublica and The Virginian-Pilot are entitled to declaratory and

injunctive relief with respect to the failures by VHA, VBA, and OPP to act upon, and
grant, the request for expedited processing in connection with the Second FOIA Request.

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SIXTH CAUSE OF ACTION:
Violation of the Administrative Procedure Act for Failure to Timely Respond
to Request for Agency Records With Respect to the Second FOIA Request
148.

ProPublica and The Virginian-Pilot repeat and re-allege paragraphs 1-147

149.

The failures of defendant VA to timely respond and provide expedited

above.

processing with respect to ProPublica’s and The Virginian-Pilot’s Second FOIA Request
for agency records, and defendant VA’s withholding of agency records, each constitute
agency action unlawfully withheld and unreasonably delayed, in violation of the APA,
5 U.S.C. §§ 701-06. The failures of VA to timely respond, and its withholdings, each are
arbitrary, capricious, an abuse of discretion, not in accordance with law and without
observance of procedure required by law, all in violation of the APA.
150.

ProPublica and The Virginian-Pilot are entitled to declaratory and

injunctive relief with respect to the release and disclosure of the requested records in
connection with the Second FOIA Request.
REQUESTS FOR RELIEF
WHEREFORE, ProPublica and The Virginian-Pilot request that judgment be
entered in their favor and against defendant, and that:
a) defendant and any of defendant’s agents or other persons, departments, or
components acting for, with, by, through or under them be ordered to promptly
conduct an expedited and reasonable search for records responsive to
ProPublica’s and The Virginian-Pilot’s requests under FOIA;

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b) defendant and any of its agents or other persons, departments, or components
acting for, with, by, through or under them be enjoined and restrained from
continuing to fail to process and withhold records relevant to ProPublica’s and
The Virginian-Pilot’s requests under FOIA and in violation of the APA;
c) the Court permit discovery with respect to whether defendant has made a good
faith effort to discharge its statutorily-required obligations under FOIA and
make the requested records promptly available to ProPublica and The
Virginian-Pilot, and provide requested relief as warranted;
d) the Court declare that the requested records are not exempt from disclosure
under FOIA and order defendant to disclose the requested records in their
entireties and make copies available to ProPublica and The Virginian-Pilot;
e) the Court enter a judgment awarding ProPublica and The Virginian-Pilot
reasonable attorneys’ fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E) and
28 U.S.C. § 2412; and
f) the Court award all other such relief to ProPublica and The Virginian-Pilot as
this Court deems just, proper and equitable.
Dated: January 19, 2017

Respectfully submitted,
/s/ Seth A. Watkins
Seth A. Watkins (D.C. Bar # 467470)
Email: watkins@adduci.com
ADDUCI, MASTRIANI & SCHAUMBERG LLP
1133 Connecticut Avenue, NW
Washington, DC 20036
Telephone: (202) 407-8647
Facsimile: (202) 466-2006
Attorneys for Plaintiffs Pro Publica, Inc. and
Virginian-Pilot Media Companies, LLC
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