WADHWA v. DEPARTMENT OF VETERANS AFFAIRS
OPINION. Signed by Judge Robert B. Kugler on 11/22/2016. (tf, )
NOT FOR PUBLICATION
(Doc. No. 12)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DOM WADHWA, M.D.
SECRETARY, DEPARTMENT OF
Civil No. 15-2777 (RBK-KMW)
KUGLER, United States District Judge:
This matter comes before the Court upon Plaintiff Dom Wadhwa’s (“Plaintiff”) Motion
to Compel Discovery on the Agency Officials at the Philadelphia VA Medical Center
(“PVAMC”) and Motion to Deny Resubmission of Summary Judgment by the Agency Officials
at PVAMC. Plaintiff’s Motion also appears to contain a Motion for Reconsideration as to this
Court’s March 11, 2016 Opinion (Doc. No. 10). Plaintiff, proceeding pro se, alleges that the
Defendant Secretary for the Department of Veterans Affairs (“Department”) has failed to comply
with his multiple Freedom of Information Act (“FOIA”) requests, and asks that this Court
compel the Department to respond to his requests and award Plaintiff damages. Plaintiff seeks
production of documents related to employment discrimination claims brought against the
Philadelphia VA by three other physicians. Plaintiff appears to be pursuing his own claims of
discrimination against the PVAMC and seeks these documents for use in his pending civil
action. See generally Compl. (Doc. No. 1). For the reasons discussed below, Plaintiff’s Motion to
Compel Discovery is GRANTED and Plaintiff’s Motion to Deny Resubmission of Summary
Judgment is DENIED AS MOOT. Plaintiff’s Motion for Reconsideration is DENIED.
On or around January 21, 2015, Plaintiff filed a FOIA request with the Philadelphia VA
outlining twelve specific document requests. Russo Decl., Ex. A (Doc. No. 6-3). Items One
through Four requested a number of documents concerning a Title VII violation that occurred at
the Philadelphia VA, including documents related to the decision of Office of Employment
Discrimination Complaint Adjudication (“OEDCA”).1 Id. at ¶¶1-4. He also sought documents
concerning the employment of more than twenty-two individuals employed with the Philadelphia
Id. ¶¶ 5-6. Lastly, Plaintiff requested documents relating to the removal of Mukesh Jain, M.D.,
the discipline of any individual that resulted in a Title VII violation, and any documents relating
to the discipline of Plaintiff himself. Id. ¶¶ 6-12.
Lauren Russo (“Russo”), the Acting FOIA Officer at the Philadelphia VA, responded to
Plaintiff after conducting a search for the records he requested. Russo Decl. Ex. B. She informed
Plaintiff that she needed clarification on his requests in Items 5 and 6 pertaining to employment
records for the Philadelphia VA employees and his requests in Items 11 and 12 concerning
disciplinary actions taken against him. Id. She also determined that the Philadelphia VA did not
possess documents responsive to Items 1-4, which concern the Title VII violation and the related
OEDCA determination. She therefore issued Plaintiff a “no records” response, forwarding the
request to FOIA Officer Laurie Karnay for further processing. Id. Finally, she forwarded
1. Plaintiff’s FOIA request is itemized in two lists of six. The FOIA Officers renumbered the
second of Plaintiff’s list Items 7-12. For clarity’s sake, the Court will also refer to Plaintiff’s
second list of 1-6 as Items 7-12.
Plaintiff’s request for documents related to Gary Devansky in 5h and 6b to Jeffrey Adamson
after she determined that the Philadelphia VA did not have the documents in its possession. Id.
By way of letter dated February 10, 2015, FOIA Officer Jeffrey Adamson (“Adamson”)
also requested clarification from Plaintiff on that request. Russo Decl., Ex. C. Plaintiff responded
to Adamson and Russo in a joint letter dated February 17, 2015, wherein he reiterated his
requests but provided only some of the clarification Adamson and Russo requested. Russo Decl.,
Ex. C. He also accused Russo and Adamson of intentionally delaying his request. Id. Thereafter,
Adamson made a good faith effort to understand Plaintiff’s request, notifying Plaintiff of the
scope of his request as Adamson understood it. Adamson Decl., Ex. C (Doc. No. 6-2). Adamson
produced seventeen pages of documents responsive to Plaintiff’s request but redacted portions
containing personal identification information exempt under FOIA Exemption 6. Adamson
Decl., Ex. D.
On March 6, 2015, Russo sent Plaintiff the Department’s initial agency decision on his
FOIA request. Russo Decl., Ex. E. The decision resulted in the production of documents
responsive to Plaintiff’s request concerning his performance pay reduction. Id. The remaining
requests were not satisfied either because the Philadelphia VA was not in possession of the
records (Items 1-4, 5b, and 6b) or the records were exempt under FOIA Exemption 6 (Item 11).
Id. Russo also issued a “refusing to confirm or deny” response to Items 7, 8, 9, and 12 because
either a confirmation or denial would compromise the subject’s personal privacy. Id. Russo gave
Plaintiff additional time to clarify his requests regarding Items 5 and 6. Id.
On March 10, 2015, Plaintiff again wrote to Russo reiterating many of his previous FOIA
requests. Russo Decl., Ex. F. He requested documents related to Devansky, as well as documents
related to the Title VII violation that occurred at the Philadelphia VA. Id. He further asked that
the exempted documents be provided with the personal identification information redacted. Id.
Shortly thereafter, Russo notified Plaintiff that his FOIA request was being terminated as a
duplicate, and provided the contact information for Ms. Karnay, who was then processing the
documents outside of the Philadelphia VA’s possession. Russo Decl., Ex. G.
On April 6, 2015, Plaintiff received a determination on his request concerning the
OEDCA finding that a Title VII violation had occurred at the Philadelphia VA. Karnay Decl. Ex.
B (Doc. No. 6-4). The FOIA Service Director informed Plaintiff that the 827-page OEDCA file
was exempt under FOIA Exemption 6, and 219 pages of the file were also exempt under
Exemption 5. Id. Plaintiff was provided with the information necessary to appeal the Director’s
Plaintiff brought suit seeking to compel the production of documents he claims have been
unlawfully withheld. Defendant moved for summary judgment regarding the production of all
documents. Def.’s Summary Judgment Mot. (Doc. No. 6). This Court granted partial summary
judgment for the defendant as to Items 7 and 8 and denied the motion in-part with regard to
Items 1-4, 9, and 12. Mar. 11, 2016 Op. at 11, 13. Plaintiff filed the instant Motion to Compel
Discovery and Motion to Deny Resubmission of Summary Judgement on March 24, 2016. See
Pl.’s Mot. (Doc. No. 12). Defendant has not filed opposition to Plaintiff’s motion.
Pursuant to Federal Rule of Civil Procedure 37(a)(3)(A), “[i]f a party fails to make a
disclosure required by Rule 26(a), any other party may move to compel disclosure and for
appropriate sanctions.” The FOIA generally provides a judicially enforceable right to obtain
access to federal agency records, except to the extent that such records, or portions thereof, fall
within one of nine exceptions. See 5 U.S.C. § 552(a)(3); 5 U.S.C. § 552(b)(1)-(9); Lame v. U.S.
Dep’t of Justice, 767 F.2d 66, 68 n.1 (3d Cir. 1985). When an agency receives a request for
information, the FOIA requires the agency to conduct a “reasonable search” for records that
might be responsive to the request. See Abdelfattah v. U.S. Dep’t of Homeland Sec., 488 F.3d
178, 182 (3d Cir. 2007).
When this Court denied Defendant’s Motion for Summary Judgment in-part on March
11, 2016, Defendant was instructed to provide the Court with “an affidavit that reasonably details
which exemptions apply as well as the basis for those exemptions” with any future motion for
summary judgment. Mar. 11, 2016 Op. at 13. Such an affidavit would allow the Court to render a
decision regarding the applicability of exemptions 5 and 6 to Items 1-4. However, Defendant has
not filed any documents with this Court since August 5, 2015. Similarly, the Court denied
without prejudice Defendant’s Motion for Summary Judgement pertaining to Items 9 and 12
because Russo’s affidavit gave the Court no justification as to why Defendant’s Glomar response
declining to produce the documents was appropriate as to Items 9 and 12. Id. Because Defendant
has not produced any additional explanations as to why Items 1-4, 9, and 12 should not be
produced, the Court will grant Plaintiff’s Motion to Compel Discovery. As such, Plaintiff’s
Motion to Deny Resubmission of Summary Judgment is denied as moot.
As a final matter, Plaintiff requests reconsideration of this Court’s Order and Opinion
dated March 11, 2016, granting-in-part and denying-in-part Defendant’s Motion for Summary
Judgment. Local Civil Rule 7.1(i) states that any motion for reconsideration shall be
accompanied by “[a] brief setting forth concisely the matter or controlling decisions which the
party believes the Judge . . . has overlooked.” Plaintiff has simply requested reconsideration, but
he has not submitted any documentation of a matter or controlling decision that this Court has
overlooked. Accordingly, Plaintiff’s Motion for Reconsideration is denied.
Plaintiff’s Motion to Compel Discovery is GRANTED. Plaintiff’s Motion to Deny
Resubmission of Summary Judgment is DENIED AS MOOT. Plaintiff’s Motion for
Reconsideration is DENIED.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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