CAN 4:2017cv02680 complaint

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Witthoft v. Shulkin et al , Complaint contributed as part of the FOIA Project.
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Case Document 1 Filed 05/09/17 Page 1 of 19 I. UNITED STATES DISTRICT FOR THE NORTHERN DISTRICT OF 2: 34.51JESSE M. WITTHOFT Plaintiff V. '7 2680 Civil Action No. DAVID J. SHULKIN, CV SECRETARY OF THE DEPT. OF VETERANS AFFAIRS, MEGHAN FLANZ, INTERIM GENERAL COUNSEL OF THE DEPT. OF VETERANS AFFAIRS, Defendants. PLAIN ORIGINAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF TO THE HONORABLE UNITED STATES DISTRICT COURT: COMES NOW, JESSE M. WITTHOFT, hereinafter ?Plaintiff?, and ?les the following complaint, directed to the United States Department of Veterans Affairs (hereinafter, and the United States Department of Veterans Affairs Of?ce of General Counsel (hereinafter hereinafter ?Defendants?, and for cause of action, would Show the Court as follows: I. INTRODUCTION ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 1 of 8 Case Document 1 Filed 05/09/17 Page 2 of 19 1.7This is an action by Plaintiff pursuant to the Freedom of Information Act (hereinafter, 5 USC 552, et seq, to order the production of agency records maintained by the VA. Plaintiff seeks the documentation set forth below and seek this Court?s assistance to compel production of documents wrongfully withheld from Plaintiff and to vindicate the statutory right to inspect federal agency documents. Plaintiff asserts that there is a ?signi?cant public interest in disclosure? of the records requested by Plaintiff. 2. This Court has jurisdiction over this action pursuant to 5 USC. the Freedom of Information Act, and 28 USC. 2201, the Federal Declaratory Judgment Act. 3. The government records which Plaintiff requests are his individual claims ?les (hereinafter, ?C?Files?) maintained by the VA in a system of records for Veterans making claims for Veterans Disability Compensation and/or Survivor Bene?ts claims pursuant to Title 38 of the United States Code. See Exhibit A (Plaintiff?s 01A Request). 11. JURISDICTION AND VENUE. PLAINTIFF ?8 ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 2 of 8 Case Document 1 Filed 05/09/17 Page 3 of 19 4. ?This?Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, as this action arises under the laws of the United States, in particular, 5 U.S.C. 552. In addition, this Court has jurisdiction over this action pursuant to 5 U.S.C. under which, ?the District Court of the United States, in the district in which the complainant resides has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant?, as Plaintiff?s residence is in this district. PARTIES. 5. Plaintiff is an individual, and a resident of the State of California and resides at 1286 451th ave. San Francisco CA. 94122. 6. Defendant DAVID J. SHULKIN is the Secretary of the Department of Veterans Affairs, which is believed to maintain facilities throughout this District. 7.Defendant MEG-HAN FLANZ is the Interim General Counsel of the Department of Veterans Affairs. ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 3 of 8 Case Document 1 Filed 05/09/17 Page 4 of 19 IV. SERVICE. 8.Defendant DAVID J. SHULKIN, Secretary of the Department of Veterans Affairs, may be served by mailing a copy of this compliant and summons by certi?ed mail to the following address: US. Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC, 20420. 9. Defendant MEGI-IAN FLANZ, Interim General Counsel of the Depaitment of Veterans Affairs, may be served by mailing a c0py of this compliant and summons by certified. mail to the following address: US. Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC, 20420. 10. The United States of America may be served by serving the US. Attorney for the district in which this action if brought 850 Bryant Street, Rm. 320 San Francisco, CA 94112 and by serving a copy of this complaint and a summons by certi?ed mail to the Attorney General of the United States Attorney General, 950 Avenue, NW, Washington, DC 2053 0?0001]. V. FACTUAL ALLEGATIONS. 1. The FOIA requires US. government agencies to make public records ORIGINAL COMPLAINT FOR DECLARATORY INJ UN CTIVE RELIEF Page 4 of 8 Case Document 1 Filed 05/09/17 Page 5 of 19 available to any person if that person makes a request which (1) reasonably describes the records sought and (2) complies with any applicable agency rules for making such a request. 5 U.S.C. l2.The OIA requires an agency to issue a ?nal determination on any such information request within twenty (20) business days from the date of its receipt. 5 U.S.C. 13 .The OIA allows an agency to extend this determination deadline, however, by ten (10) working days when ?unusual circumstances? exist and when the agency so noti?es a requester in writing. 5 U.S.C. 14. An agency is entitled to only one (1) ten?business day extension. Id. The written notice provided to the requester must specify the speci?c unusual circumstances justifying the extension and the date on which a ?nal determination is expected to be dispatched. Id. 15.In limited circumstances, the FOIA allows an agency to invoke an extension beyond ten (10) days. To invoke a longer extension, the OIA requires an agency to provide written noti?cation to the requester that (1) offers the requester an Opportunity to limit the scope of the request so that it may be processed within that time limit, or (2) offers the requester an opportunity to arrange with the agency an alternative time ?'ame for processing the request. 5 U.S.C. ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 5 of 8 Case Document 1 Filed 05/09/17 Page 6 of 19 16.Plaintiff served, and the VA received, a FOIA Request on 1/25/2017 seeking production of Plaintiffs C-File. See Exhibit A. 17.The VA has not ful?lled this request. 18.Plaintiff served a timely FOIA Appeal to the VA OGC on 4/ 8/2017, pursuant to 5 U.S.C. See Exhibit B. The United States Postal Service (hereinafter, has indicated that the VA OGC signed for this appeal on 4/12/2017. See, Exhibit D. Neither the VA nor the VA OGC has provided c0pies of Plaintiffs C-file, despite having actual knowledge of the statutory deadline to respond within 20 working days from receipt of appeal. See Exhibit Exhibit B. VI. FIRST CAUSE OF ACTION. (FOIA Request for Plaintiff?s C~File) 19. Plaintiff incorporates the allegations in the foregoing paragraphs as though fully set forth herein. 20. FOIA mandates the disclosure of the documents that Plaintiff seeks in Plaintiff?s FOIA request to the VA. 21. The VA has not provided Plaintiff with the records. 22. The VA has not sought extension to the lawful response time under FOIA. 23. No FOIA exemptions apply to this request. ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 6 of 8 Case Document 1 Filed 05/09/17 Page 7 of 19 24. No exceptional or unusual circumstances preclude a response to the request within twenty (20) business days of the request. 25. An actual and justiciable controversy exists as to whether the VA has violated the FOIA. 26. Plaintiff seeks declaratory judgment that FOIA entitles Plaintiff to the records it seeks as part of its FOIA request to the VA. 27. Unless enjoined and made subject to a declaration of Plaintiff? 3 legal rights by this Court, the VA will continue to Violate the rights of Plaintiff and others similarly situated by maintaining its pattern or practice of unlawfully delaying and/or denying and/or ignoring responses to OIA requests and appeals. IX. DEMAND FOR JURY TRIAL 28. Plaintiff respectfully prays for trial by jury, where not prohibited by law. X. PRAYER FOR RELIEF 29. Wherefore, Plaintiff requests this Court: a) Order Defendant to provide true copies of all requested documents without further delay or obfuscation; b) Expedite this proceeding as provided for in 28 U.S.C. 1657; ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 7 of 8 Case Document 1 Filed 05/09/17 Page 8 of 19 0) IF APPROPRIATE: Award Plaintiff costs and reasonable attorney fees in i this action, as provided in 5 U.S.C. and/or under any other appropriate federal statute; and, d) Grant such other and further relief as the Court, in its wisdom, may deem just and proper, including any damages for any Violation of the US. Constitution that may arise herein. LY SUBMITTED, M. Witthoft 286 45th Ave. San Francisco CA. 94122 415-867-1645 ORIGINAL COMPLAINT FOR DECLARATORY INJUNCTIVE RELIEF Page 8 of 8 se Document 1 Filed 05/09/17 Pa 9 of 19 You should be adayised of your right to file an appeal in the initial determination letter sent by the FOIA office or in a letter denying your request for expedited processing or a fee waiver. All appeals must be made in writing and addressed to: tr 15/ 20/7: 20 let (rm 197? 810 Vermont Avenue, NW Washington, DC 20420 Attn: Both the front of the envelope and the appeal letter should contain the notation: ?Freedom of Information Act Appeal. Order? S'i'amijii. at Hi . 1~ Oti?Stalnp24. Go la? "m l? language needed to print stopping entity the FOIA DH: bels with postage F'ii? oti? . lc?l 3 .- ilifOI?tn?t'ttort call it ??me that the "sit - 3 -01A Of?ce 5 actionCerti?ed Mail Fee (get yofur mail when and where you want ease do ?at attaCh it?s}y?l Wl iStlULtl?B Pt?bl . "r . Up fOl" it l:lC}X (Jill ?it? at ??le he SpElelC Don-it 15'? Ot? reasons Why YD Ci 4451231? Cement that YOU ar 3 5::im: JWEVEF, YOU are ap -- All ?div-c -- -- ..J liicil till bittllilJL-i anti tutelage.- hat have not been .LI Refunds for? guaranteed service? only . Ln rimk W, yam. m? you think such re: ht be located. NOW HIRING. Pi ease in St to app} - - El ieterans Affairs Cir? Stare-2W? .. r. wine. ustratwe appeal wn recur RECENT "1 Your appeal. Al. lil tpo x?postai exitier' i err-e . com/41:; 72? 1 SENDER: comma-rs sscnow COMPLETE sscnom ON DELIVERY 2? Complete items 1. 2, and 3. I A- Signatum I Print your name and address on the reverse /f agent so that we can return the card to you. - ia-yu?bvf Cl Addre? I Attach this card to the back of the mailpiece, 3? Received by (Printed Name) Date Of De?- or on the front if space permits. r' 1. Article Addressed 0+ D. is delivery address different from item 1? YES If YES, enter delivery address below: [3 No EON) fir/error" Mews Mimi?s d?lo- Vernmr flied NH i DC. 231340 - or" call 0? . i [titan .) 3. Serwce Type [3 Priority Mail Expire-as: Ci Adult Signature El Registered MailTM ?dulft?Signature Restricted Delivery Registered Mail Rest. ert' ed Mai ? Delivery 9590 9403 0293 5155 7056 14 El Certi?ed Mail Restricted Delivery E1 Return Receipt for Cl Collector: Delivery Merchandise I I I 840-- 5940031 22? 2_ Numhnr .cann'szaha? . El. Collecton DBliVny Restricted Signature Con?nnatic 22 h- 1 1 ry El Signature Con?nnati . 1a? Ream-med new? Restricted Delivery . \vvui aqua} PS Form 381 1 . April 2915 PSN 7530-02-000-9053 Domestic Return Fiece Case Document 1 Filed 05/09/17 Page 10 of 19 Lexmar Thursday, 2017?04-06 12:51 510 555 1212 Date Time Type Job Length Speed Fax Name/Number Status 12:48 SCAN 00496 2:11 14400 913146793730 8 OK v.17 Page'lofl USE THIS COVER SHEET T0 FAX CLAIMS TO THE CLAIMS AND EVIDENCE CENTERS Of?ce of Business Process integration Fax Coversheat and Checklist Ta. VBA Claims and Evidence Intake Center Fax: (844)531-1818 Veterans Claims Intake Program El Veteran First and Last Name: Jesse Witthoft Veteran File #4 5905349? Claimant le Code: 94122 El Fax Data: 4l6l2017 [1 it of Pages to include Coversheet: 8 [1 Forms Included: Appeal {8 pages} DOUBLE CHECK: Check Con?rmation sheet and ensure fan is to 844-531-7818 Disclaimer: incorrect input of fax number, such as dialing the pre?x unnecessarily will result in failed submission to VA. Due to similarities in numbers, multiple parties have submitted to the wrong VA department. AVP Metro Petroleum is destroying any faxed Veterans records. VA Directive 6609, NOVEMBER 9, 2007: Access to Veterans records is limited to Authorized Personnel Only. information may not be disclosed unless permitted pursuant to .38 CFR 1500-1599. The Privacy Act contains provisions for criminal penalties for knowingly and willingly disclosing information from the file unless properly authorized to do so. Case Document 1 Filed 05/09/17 Page Lexmar Thursday, 2017?04?06 13 :01 Date Tlme Type Job Length Speed Fax Name/Number 2017-04?06 12:58 SCAN 00498 2:11 144.00 918445317818 510 555 1212 P95 8 Status OK v.17 AM31 Page Inf 1 Of?ce of Business Process Integration Fax Covershoet and Checklist To: VBA Claims and Evidence Intake Center Fax: (844) 531-7818 Veterans Claims Intake Program [1 Veteran First and Last Name: Jesse Witthoft I3 Veteran File 590584971 Claimant Zip Code: 94122 [3 Fax Date: 4l6l201? El of Pages to include Coversheet: a [1 Forms Included: FOIA Ange-a! {a gages} QOUBLE CHECK: Check Continuation sheet and ensure fax is to 844-531-7818 result ln falled to VA. Due to similarities in numbers, multiple parties have submitted to the wrong VA department. AVP Metro Petroleum is destroying any faxed Veterans records. - - to 38 CFR 1500-1599. The Privacy Act contains provisions for penalties for to do so. Disclaimer: Incorrect input of fax number, such as dialing the pre?x unnecessarlly knowingly and willingly lofonnatlon from the ?le unless properly authorized VA Directive 6609, NOVEMBER 9, 2007: Access to Veterans records is limited to Authorized Personnel Only. Information may not be disclosed unless permitted pursuant Case Document 1 Filed 05/09/17 Page 12 of 19 Page 1 of 1 Of?ce of Business Process Integration Fax Coversheet and Checklist To: VBA Claims and Evidence Intake Center Fax: (844) 531-7818 Veterans Claims Intake Program [3 Veteran First and Last Name: Jesse Witthoft [1 Veteran File 590584971 El Claimant Zip Code: 94122 El Fax Date: 11/612017 of Pages to include Coversheet: 8 1] Forms Included: FOIA Appeal (8 pages] DOUBLE CHECK: Check Confirmation sheet and ensure fax is to 5.4% Disclaimer: Incorrect input of fax number, such as dialing the pre?x unnecessarily will result in failed submission to VA. Due to similarities in numbers, multiple parties have submitted to the wrong VA department. AVP Metro Petroleum is destroying any faxed Veterans records. VA Directive 6609, NOVEMBER 9, 2007: Access to Veterans records is limited to Authorized Personnel Only. Information may not be disclosed unless permitted pursuant to 38 CFR 1.500-1.599. The Privacy Act contains provisions for criminal penalties for knowingly and willingly disclosing information from the file unless properly authorized to do so. Case Document 1 Filed 05/09/17 Page 13 of 19 FREEDOM OF INFORMATION ACT APPEAL VIA FACSIMILE Department of Veterans? Affairs, Records Management Center PO. Box 5020 St. Louis, MO 63115 FAX: 314-679-3730 VIA FACSIMILE Department of Veterans? Affairs, Evidence Intake Center FAX: (844) 531?7818 4/5/2017 RE: FREEDOM OF INFORMATION ACT APPEAL Veteran: Jesse Martin Witthoft VA Claim No: Veteran Social Security 590-58?4971 To Whom it May Concern: This is an appeal under the Freedom of Information Act. On 1/25/2017 I requested a complete copy my C-File under the Freedom of Information Act (FOIA). See attached. The FOIA Request was received by the VA Regional Of?ce FOIA Of?cer on 1/25/2017. See attached. The VA Regional Of?ce FOIA Of?cer has not provided the requested documents in the time required by law. 1 am seeking production of documents related to my VA bene?ts that are relevant and material to my dispute. The Dept. of Veterans Affairs is the Agency last known to have particular documents requested that are relevant and material to his appeal. The 20 working days to respond to that request have passed on 2/23/2017. This is an appeal of the failure to respond to my FOIA request. I am aware of no legitimate reason why the VA might withhold production of these records, why the VA would have failed to diligently search for the documents last known to be in its possession, control or Page 1 of 2 Case Document 1 Filed 05/09/17 Page 14 of 19 custody, or why the VA would fail to respond to the production of the documents requested pursuant to my FOIA request. An agency is required to make a ?determination? on the merits of a FOIA appeal within 20 working days of receipt. 5 U.S.C. I am currently contacting FOIA attorneys. Should the VA fail to respond to, or improperly deny, this appeal under the Freedom of Information Act, I am prepared to initiate a FOIA suit in the appropriate Federal District Court to compel disclosure of the documents, as well as any reasonable attorney fees and costs to which I might be entitled to under the law or in equity. Please feel free to contact me to discuss any aspect of my appeal. Thank you for your prompt consideration of this appeal. Jesse Martin Witthoft 1-286 45th Ave. San Francisco, CA. 94122 Encl. A photocopy of my FOIA Request (1) A photocopy of the Fax Con?rmation from the VARO (1) A photocopy of the Fax Con?rmation from the VA RM Page 2 of 2 Case Document 1 Filed 05/09/17 Page 15 of 19 Page i of 1 USE THIS COVER SHEET TO FAX CLAIMS TO THE CLAIMS AND EVIDENCE INTAKE CENTERS Of?ce of Business Process Integration Fax Coversheet and Checklist To: VBA Claims and Evidence Intake Center Fax: (844) 531-7818 Veterans Claims Intake Program Veteran First and Last Name: Jesse Wi?hO? Cl Veteran File 590584971 Claimant Zip Code: 94122 Fax Date: 1/25/2017 Cl of Pages to include Coversheet: 3 [3 Forms Included: FOIA Request (3 pages) DOUBLE CHECK: Check Con?rmation sheet and ensure fax is to 844-531-7818 Disclaimer: Incorrect input of fax number, such as dialing the prefix unnecessarily will result in failed submission to VA. Due to similarities in numbers, multiple parties have submitted to the wrong VA department. AVP Metro Petroleum is destroying any faxed Veterans records. VA Directive 6609, NOVEMBER 9, 2007: Access to Veterans records is limited to Authorized Personnel Only. information may not be disclosed unless permitted pursuant to 38 CFR 1.500-1.599. The Privacy Act contains provisions for criminal penalties for knowingly and willingly disclosing information from the file unless properly authorized to do so. Case Document 1 Filed 05/09/17 Page 16 of 19 FREEDOM OF INFORMATION ACT REQUEST VIA FACSIMILE Department of Veterans? Affairs, Records Management Center PO. Box 5020 St. Louis, MO 631 15 FAX: 314?679-3730 VIA FACSIMILE Department of Veterans? Affairs, Evidence Intake Center FAX: (844) 531?7818 1/25/2017 RE: FREEDOM OF INFORMATION ACT REQUEST Veteran: Jesse Martin Witthoft VA Claim No: Veteran Social Security 590-58-4971 To Whom it May Concern: This is a request for documents under 38 CPR. the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, on behalf of Jesse Martin Witthoft (Veteran). This request is properly made via facsimile as it contains the signature of the requester. 1. IDENTIFICATION OF DOCUMENTS. I hereby request a copy of all documents contained in any VA claims folder for any of Veteran's VA claims, to include all documents in the right flap, left ?ap and center ?ap, and all electronic documents in any VBA ?le related to Veteran?s Title 38 by not limited to ?Virtual and VBMS-D, as well as any documentation pertaining to this Veteran and/or his/her VA claims and/or Appeals in and/or in any other system of records in the EVA (or under contract with the VBA) used to preserve information (whether substantive, procedural, or meta-data) related to those records, wherever such records about the Veteran?s claim are kept or stored by the VA 2. IN WHICH TO
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