Blog — Department of Veterans Affairs (VA)
Yesterday in a long-running lawsuit against the Veterans Administration (CREW v. VA, D.D.C.), District Court Judge Paul Friedman entered an opinion and order granting the VA’s motion for summary judgment. While at first blush this may seem like a victory for the VA, in fact it is not.
CREW filed this lawsuit after the VA failed to properly respond to CREW’s FOIA request seeking confirmation of the agency’s policy of encouraging VA health officials to underdiagnose PTSD as a cost-savings measure. Although a congressional subcommittee had probed into this practice based on an internal email, the VA refused to produce that email and other documentation. The VA filed multiple dispositive motions that were denied based on the limitations and problems with the factual record. Given the inconsistent statements offered by VA officials, CREW was allowed to depose and re-depose government employees responsible for processing CREW’s request. After extensive discovery and multiple searches the VA was finally able to convince the court it had conducted an adequate search, the conclusion reached in yesterday’s opinion.
At the same time, however, Judge Friedman issued an order requiring the defendant to show cause why it should not be sanctioned in the form of paying CREW’s attorneys’ fees for multiplying the proceedings. The court explained it is “deeply troubled by the VA’s litigation conduct in this case,” which included “inaccurate declarations ... left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic.” This conduct required both discovery on CREW’s part as well as the filing of multiple briefs before the case was in a posture to be decided on the merits. The government’s response to this show cause order is due on or before October 23, 2014.
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