Court Questions VA Conduct in FOIA Lawsuit

BY MICHAEL DOYLE
McClatchy Washington Bureau, September 24
WASHINGTON — The often-embattled Department of Veterans Affairs won the war but may lose an embarrassing battle over its handling of Freedom of Information Act litigation.

In what seems a rather noteworthy ruling Wednesday, U.S. District Judge Paul Friedman first sided with the VA in rejecting a FOIA challenge by Citizens for Responsibility and Ethics in Washington, but then raised the possibility of sanctioning the VA for its actions.

“This Court...is deeply troubled by the VA’s litigation conduct in the case: inaccurate declarations were left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic,” Friedman stated.

Friedman further ordered the VA to “show cause why a sanction under 28 U.S.C. § 1927, in the form of attorneys’ fees and costs, should not be awarded for the additional time and effort CREW’s attorneys were required to expend due to the VA’s tactics.”

The underlying FOIA request dealt with documents that could shed light on allegations that the VA discouraged staff from diagnosing veterans with post-traumatic stress disorder.

The VA’s precise legal conduct that’s in question is spelled out in Friedman’s decision, and in an earlier decision in which the judge declared that “counsel for the VA decided as a matter of litigation tactics not to be forthcoming by withholding relevant evidence until after the limited discovery ordered by this Court was concluded.”

 note: C-123 veterans have sought documents from VA under the FOIA for over two years so far.