Demoruelle et al v. Veterans Affairs, Department of

Filing 35

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT re 14 MOTION for Summary Judgment filed by Joseph Louis Demoruelle, Sandra Lee Demoruelle. Signed by JUDGE LESLIE E. KOBAYASHI on 08/21/2017. Pro se Plaintiffs Joseph Louis Demoruelle and Sandra Lee Demoruelle's Motion for Summary Judgment, filed on March 20, 2017, is HEREBY GRANTED IN PART AND DENIED IN PART. It is granted insofar as Plaintiffs are entitled to su mmary judgment on Count I and litigation costs. It is denied insofar as Plaintiffs request any additional relief. There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to enter final judgment and close this case on September 11, 2017, unless Plaintiffs file a motion for reconsideration of this Order by September 5, 2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH LOUIS DEMORUELLE and
SANDRA LEE DEMORUELLE,

)
)
)
Plaintiffs, Pro Se )
)
vs.
)
)
DEPARTMENT OF VETERANS’
)
)
AFFAIRS,
)
)
Defendant.
_____________________________ )

CIVIL 17-00077 LEK-KJM

ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is pro se Plaintiffs Joseph Louis
Demoruelle and Sandra Lee Demoruelle’s (“Plaintiffs”) Motion for
Summary Judgment (“Motion”), filed on March 20, 2017.
14.]

[Dkt. no.

Defendant the Department of Veterans Affairs (“the VA”)

filed its memorandum in opposition on June 20, 2017, and
Plaintiffs filed their reply on June 27, 2017.
33.]

[Dkt. nos. 32,

The Court finds this matter suitable for disposition

without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

Plaintiffs’ Motion is hereby granted in

part and denied in part for the reasons set forth below.
BACKGROUND
This case is just one of many suits that Plaintiffs
have filed against the VA.

See, e.g., Demoruelle v. Dep’t of

Veterans’ Affairs, CV 16-00562 LEK-KJM; Demoruelle v. Dep’t of

Veterans Affairs, CV 15-00246 LEK-KSC.

Plaintiffs filed their

Complaint for Declaratory and Injunctive Relief (“Complaint”) on
February 21, 2017.

[Dkt. no. 1.]

The Complaint alleges that the

VA has failed to adhere to the Freedom of Information Act’s
(“FOIA”), 5 U.S.C. § 552, twenty-day deadline for responding to
appeals of denials of fee waiver requests.

[Id. at ¶ 2.]

Plaintiffs state that the “FOIA Officer” at the Veterans Affairs
Pacific Islands Health Care System (“VAPIHCS”) denied a search
fee waiver request on:

December 19, 2016 (“12/19/16 FOIA Fee

Waiver Denial”); December 21, 2016 (“12/21/16 FOIA Fee Waiver
Denial”); December 23, 2016 (“12/23/16 FOIA Fee Waiver Denial”);
January 4, 2017 (“1/4/17 FOIA Fee Waiver Denial”); and
January 10, 2017 (“1/10/17 FOIA Fee Waiver Denial”).
¶ 3.]

[Id. at

Plaintiffs further allege that, while they have received

acknowledgments that the VA Office of General Counsel has
received their appeals of these decisions, they have not received
decisions on the appeals within the twenty-day statutory
deadline.1

[Id. at ¶ 4.]

1

Plaintiffs provided the Court with the VA’s
acknowledgments of receipt of the appeals. See Plaintiff’s
Concise Statement of Facts in Support of Motion, filed 3/20/17
(dkt. no. 17), Exh. 1 (notice of receipt of appeal of 1/10/17
FOIA Fee Waiver Denial); id., Exh. 2 (notice of receipt of appeal
of 1/4/17 FOIA Fee Waiver Denial); id., Exh. 3 (acknowledgment of
receipt of appeal of 12/23/16 FOIA Fee Waiver Denial); id.,
Exh. 4 (acknowledgment of receipt of 12/21/16 FOIA Fee Waiver
Denial; id., Exh. 5 (acknowledgment of receipt of 12/19/16 FOIA
Fee Waiver denial). All of the acknowledgments from the VA are
(continued...)
2

Plaintiffs submit that they are entitled to the fee
waivers because the information they are requesting is in the
public interest.

[Id. at ¶ 15.]

Plaintiffs bring a single claim

against the VA and ask the Court to find that the VA has not
responded to the FOIA fee waiver requests in the required time,
and that the VA has therefore waived any right to a fee from
Plaintiffs or any requirement that Plaintiffs justify how their
FOIA requests are in the public interest (“Count I”).
¶ 19.]

[Id. at

In addition to waiver of the search fees, Plaintiffs

essentially seek:

an order enjoining the VA from withholding

responsive records sought pursuant to FOIA or the Privacy Act
(“PA”), 5 U.S.C. § 552a; an order enjoining the VA from engaging
in a “pattern and practice of no agency response or delayed
response”; attorneys’ fees and costs; and other relief the court
deems appropriate.

[Id. at ¶¶ 20(a)-(f).]

The Motion seeks

summary judgment on Count I, the requested injunctive relief, and
costs of this suit.

[Motion at 1-2.]
DISCUSSION

Plaintiffs are proceeding pro se, and the Court must
construe their filings liberally.

See, e.g., Pregana v.

CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2015 WL 1966671,
at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes

1

(...continued)
dated January 2016, although it is clear to the Court that this
is an oversight, and that they should be dated 2017.
3

the [plaintiffs’] filings because they are proceeding pro se.”
(citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).
Section 552(a)(6)(A) states:
Each agency, upon any request for records made
under paragraph (1), (2), or (3) of this
subsection,[2] shall –
. . . .
(ii) make a determination with respect to any
appeal within twenty days (excepting
Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal.
If on appeal the denial of the request for
records is in whole or in part upheld, the
agency shall notify the person making such
request of the provisions for judicial review
of that determination under paragraph (4) of
this subsection. . . .
The VA concedes that it did not respond to Plaintiffs’ appeals
within the required time, and represents that, “[f]or the
purposes of this action, the VA . . . will drop any attempt to
seek fees for the subject requests.”3

[Mem. in Opp at 2-3.]

2

The Complaint states that Plaintiffs seek fee waivers for
documents related to the “policies and procedures in place” so
that they can compare them “to the actual operations and
activities at the VAPIHCS FOIA Office.” [Complaint at ¶ 13.]
Thus, for purposes of the instant action, Plaintiffs’ records
requests fall under § 552(a)(1), which covers requests for
“statements of general course and method,” “rules of procedure,”
and “rules of general applicability.” See § 552(a)(1)(A)-(E).
3

Because the VA concedes that it did not provide Plaintiffs
with a decision on their appeals in the required time and that it
will waive any fees for the relevant requests, the Court does not
need to address Plaintiffs’ argument that they are entitled to a
fee waiver because disclosure of the information would be in the
public interest. See Mem. in Supp. of Motion at 20-25; 5 U.S.C.
(continued...)
4

Moreover, the VA states that “[P]laintiffs are entitled to
recover the reasonable costs expended in pursuit of their action
in federal court.”

[Id. at 3.]

The Court agrees.

Accordingly,

there is no question of material fact, and Plaintiffs are
entitled to judgment as a matter of law on Count I.
Civ. P. 56(a).

See Fed. R.

Plaintiffs must submit a Bill of Costs within

fourteen days of entry of judgment in this case.

See Local Rule

LR54.2(b).
The Court may not grant any of the other requested
relief.
order:

In addition to a FOIA fee waiver, Plaintiffs seek an
enjoining the VA “from withholding responsive agency

records under Plaintiffs’ FOIA/PA requests in the future”; and
enjoining the VA from engaging in a “pattern and practice of no
agency response or delayed response to Plaintiffs’ FOIA/PA
requests.”

[Complaint at ¶¶ 20(b)-(c).]

The Complaint states a

single claim for a FOIA fee waiver for the aforementioned
appeals.

See Complaint at ¶ 19 (“The suit concerns only the

issues of whether [the VA] properly handled Plaintiffs’ fee
waiver requests”).

There is no allegation pursuant to FOIA or

any other statute, including the Privacy Act, that the VA has

3

(...continued)
§ 552(a)(4)(A)(iii) (“Documents shall be furnished without any
charge or at a charge reduced below the fees established . . . if
disclosure of the information is in the public interest because
it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not
primarily in the commercial interest of the requester.”).
5

wrongfully withheld any documents.4

Consequently, Plaintiffs

have provided no grounds upon which the Court may grant the
requested relief.

Finally, while the Motion only seeks costs of

the instant suit, the Complaint also seeks attorneys’ fees.
[Complaint at ¶ 20(e).]

It is well-established that “a pro se

litigant who is not a lawyer is not entitled to attorney’s fees.”
Kay v. Ehrler, 499 U.S. 432, 435 (1991) (emphasis and footnote
omitted).

Accordingly, insofar as the Motion seeks such relief,

it is denied.
CONCLUSION
On the basis of the foregoing, pro se Plaintiffs
Joseph Louis Demoruelle and Sandra Lee Demoruelle’s Motion for
Summary Judgment, filed on March 20, 2017, is HEREBY GRANTED IN
PART AND DENIED IN PART.

It is granted insofar as Plaintiffs are

entitled to summary judgment on Count I and litigation costs.

It

is denied insofar as Plaintiffs request any additional relief.

4

In support of the Motion, Plaintiffs state that “[t]hese
records requested under FOIA have not been produced because [the
VA] ha[s] denied a fee waiver of imposed search fees,” and has
not responded to Plaintiffs’ appeal in the required time. [Mem.
in Supp. of Motion at 9.] “A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment
or one advocating summary judgment.” Am. Fed’n of State, Cty.,
and Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir.
2013) (citation and internal quotation marks omitted). In
addition, in their reply, Plaintiffs allege that the VA has
failed to respond to a number of their FOIA requests. [Reply at
5-6.] “Any argument raised for the first time in the reply shall
be disregarded.” Local Rule LR7.4. Thus, any claim for failure
to produce documents pursuant to a FOIA request is not presently
before the Court, and may not be considered here.
6

There being no remaining claims in this case, the Court DIRECTS
the Clerk’s Office to enter final judgment and close this case on
September 11, 2017, unless Plaintiffs file a motion for
reconsideration of this Order by September 5, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 21, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOSEPH LOUIS DEMORUELLE, ET AL. VS. DEPARTMENT OF VETERANS’
AFFAIRS; CIVIL 17-00077 LEK-KJM; ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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