Wadhwa v. Secretary United States Department of Veterans Affairs , 707 F. App'x 61 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1686
___________
DOM WADHWA, MD,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1:15-cv-02777)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 11, 2017
Before: RESTREPO, SCIRICA and FISHER, Circuit Judges
(Opinion filed: September 13, 2017)
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OPINION*
___________
PER CURIAM
Dom Wadhwa, M.D., appeals pro se from orders of the United States District
Court for the District of New Jersey, granting the defendant’s motions for summary
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
judgment in this action brought pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. For the following reasons, we will affirm.
In 2015, Wadhwa submitted a FOIA request to the Philadelphia Veterans Affairs
Medical Center (VA), seeking documents pertaining to complaints of employment
discrimination. For instance, Wadhwa’s requested documents pertaining to
discrimination complaints filed in the VA Office of Employment Discrimination
Complaint Adjudication (OEDCA). Notably, Wadhwa specifically requested documents
that OEDCA “reviewed” and “considered” in “support” of its conclusions. He also
sought material concerning individual VA employees who were disciplined for
discriminatory practices. After conducting a search for responsive records among various
agency components, the VA responded by disclosing in full a final agency decision,
releasing some documents with partial redactions under FOIA Exemption 6, withholding
other material in full citing FOIA Exemptions 5, 6, and 7(C), and refusing to confirm or
deny the existence of disciplinary records concerning specific employees.
Unsatisfied with the VA’s responses, Wadhwa filed a complaint in the District
Court. The VA filed a motion for summary judgment, which the District Court granted
in part and denied in part. In particular, the District Court concluded that the VA had
demonstrated that its search for responsive documents was adequate, but held that it
failed to adequately justify its use of FOIA Exemptions and its refusal to confirm or deny
the existence of some employee disciplinary records. As to those records, the District
Court granted Wadhwa’s “Motion to Compel Discovery.” Thereafter, the VA filed
2
another motion for summary judgment. The District Court granted that motion and
vacated its order granting the “Motion to Compel Discovery,” stating that new
declarations from agency personnel sufficiently justified the agency’s FOIA responses.
Wadhwa appealed.1
We employ a two-tiered test in reviewing an order granting summary judgment in
proceedings seeking disclosure under the FOIA. First, we must “decide whether the
district court had an adequate factual basis for its determination[;]” and, second, we must
“decide whether that determination was clearly erroneous.” Abdelfattah v. U.S. Dep’t of
Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quotations, citations omitted). We
will reverse only “if the findings are unsupported by substantial evidence, lack adequate
evidentiary support in the record, are against the clear weight of the evidence[,] or where
the district court has misapprehended the weight of the evidence.” Lame v. U.S. Dep’t of
Justice, 767 F.2d 66, 70 (3d Cir. 1985). Summary judgment may be granted on the basis
of agency declarations if they are specific and detailed, and if there is no contradictory
evidence on the record or evidence of agency bad faith. See Manna v. U.S. Dep’t of
Justice, 51 F.3d 1158, 1162-64 (3d Cir. 1995). We may affirm the District Court’s
judgment on any basis supported by the record. See Murray v. Bledsoe, 650 F.3d 246,
247 (3d Cir. 2011) (per curiam).
1
Wadhwa also filed a timely motion for reconsideration, arguing that the VA’s FOIA
responses denied him “fundamental fairness of due process.” We conclude that the
District Court properly denied Wadhwa’s motion because his disagreement with the
District Court’s analysis did not provide a basis for reconsideration. See Max’s Seafood
3
Exemption 5 protects from disclosure “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party ... in litigation with
the agency.” 5 U.S.C. § 552(b)(5). The Exemption encompasses the traditional
discovery privileges, including the deliberative process privilege, which “protects agency
documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. FDA,
449 F.3d 141, 151 (D.C. Cir. 2006). Here, the VA explained that it used Exemption 5 to
withhold a draft final agency decision, as well as “e-mails, letters, and other documents
from and between staff members” of the OEDCA and the Office of Resolution
Management. According to the VA, this material was generated within the agency as
part of a “deliberative, pre-decisional process.” This description provided a sufficient
factual basis for the District Court’s determination that the agency properly invoked
Exemption 5, and we hold that the District Court’s conclusion was not clearly erroneous.
Indeed, draft reports and internal communications generated as part of agency
decisionmaking may be properly withheld pursuant to Exemption 5. See Abdelfattah,
488 F.3d at 183 (protecting draft ICE incident report); see also Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (“The deliberative process
privilege rests on the obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news,
and its object is to enhance the quality of agency decisions by protecting open and frank
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
4
discussion among those who make them within the Government.” (internal quotation
marks and citations omitted)).
The VA also properly withheld material under Exemption 6.2 Exemption 6
protects from disclosure “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). Here, the VA withheld names, phone numbers, email addresses, and other
identifying information concerning individuals, including complainants and witnesses,
who were involved in adjudications of discrimination complaints.3 In addition, the VA
cited Exemption 6 in withholding individuals’ financial information, such as bank
account numbers, deposit slips, copies of cleared checks, and pay statements. This
information implicates more than de minimis privacy interests, see Nat’l Ass’n of Retired
Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), and Wadhwa has failed to
identify any public interest in disclosure, see Sheet Metal Workers Int’l Ass’n, Local
Union No. 19 v. U.S. Dep’t of Veterans Affairs, 135 F.3d 891, 897 (3d Cir. 1998)
(recognizing that the only relevant public interest in disclosure is the extent to which
2
The VA also relied on Exemption 7(C), which permits the withholding of “records or
information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records ... could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). We need not
address whether the responsive documents were compiled for law enforcement purposes
because, as explained below, the VA properly withheld personally identifying
information even under the narrower withholding standard of Exemption 6. See
McDonnell v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993).
3
We note that the VA disclosed the identities of “top leadership of the medical center,”
5
disclosure would serve the core purpose of the FOIA, which is contributing significantly
to public understanding of the operations or activities of the government); Carpenter v.
U.S. Dep’t of Justice, 470 F.3d 434, 441 (1st Cir. 2006) (stating that there “is no public
interest in supplementing an individual’s request for discovery.”). Therefore, in the
absence of any public interest in disclosure, the District Court properly held that the VA’s
invocation of Exemption 6 was proper. See Horner, 879 F.2d at 879 (observing that
“something, even a modest privacy interest, outweighs nothing every time.”).
The VA also properly refused to confirm or deny the existence of employee
disciplinary records. This so-called “Glomar response” is an “exception to the general
rule that agencies must acknowledge the existence of information responsive to a FOIA
request and provide specific, non-conclusory justifications for withholding that
information[.]” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011).
The response is permitted only when “to answer the FOIA inquiry would cause harm
cognizable under” an applicable statutory exemption. Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). The agency must demonstrate that acknowledging the mere existence
of responsive records would disclose exempt information. Id. Here, Wadhwa requested
records concerning the “removal” of two VA doctors. He also sought “documents used
as evidence in … any … disciplinary action cited as Title VII violation … that resulted in
posting of ‘Notice to employees’ by Mr. Devansky, on December 2, 2014[,]” as well as
records “of all the steps taken by management officials … to remedy the discrimination
such as the director, acting directors, acting associate
6 directors, and chief of staff.
….”4 Given Wadhwa’s failure to identify any public interest in disclosure, even
acknowledging the existence of misconduct or disciplinary records here would cause an
unwarranted invasion of personal privacy. See Beck v. Dep’t of Justice, 997 F.2d 1489,
1492-94 (D.C. Cir. 1993) (affirming Glomar response to request for records concerning
misconduct by DEA agents).
In his brief, Wadhwa complains that the VA did not prepare a Vaughn index5 and
that the District Court did not conduct an in camera inspection of the withheld records.
Although the VA did not submit a document labeled a Vaughn index, it did provide
detailed declarations from agency employees that described the withheld information and
the statutory basis for nondisclosure. The declarations were sufficiently detailed, and
Wadhwa has not adequately demonstrated why in camera review was required. See
Hinton v. Dep’t of Justice, 844 F.2d 126, 129 (3d Cir. 1988) (stating that there “is no set
formula for a Vaughn Index”); Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008)
4
Although this request appears to broadly seek documents used in employee disciplinary
proceedings, the VA explained that it necessarily refers to a specific employee.
According to the VA, the “Notice of employees” “is not merely a general notice … of
Agency policy … [but] is a notice required in response to a finding of discrimination on a
specific case, pertaining to a specific individual.” That individual can be identified by
name and date included in the request.
5
A Vaughn index is a document prepared by the agency that identifies each document
withheld, the statutory exemption claimed, and a particularized description of how each
document withheld falls within a statutory exemption. Coastal States Gas Corp. v. Dep’t
of Energy, 644 F.2d 969, 984 (3d Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820(D.C. Cir. 1973).
7
(noting that district courts have broad discretion to decide if in camera review is
necessary).
For the reasons given, we will affirm the judgment of the District Court.
8