Judge Penalizes VA for Delays in Litigation

     (CN) – Despite hammering the U.S. Department of Veterans Affairs for its “misguided” litigation strategy, a federal judge refused to sanction the agency.
     The case stems from a controversy that erupted after someone leaked a May 2008 email from VA psychologist Norma Perez that was “widely interpreted as suggesting that VA employees should refrain from giving PTSD diagnoses in order to cut costs,” according to the ruling.
     Perez’s email quickly drew a congressional hearing, and the nonprofit Citizens for Responsibility and Ethics in Washington soon filed a Freedom of Information Act request with the agency, seeking records related to “guidance” on PTSD diagnoses.
     After the VA denied the document request, calling it overly broad and “extremely burdensome,” CREW filed suit in August 2008.
     In addition to challenging the agency’s withholding of Perez’s email, CREW complained that it wrongly denied its request for a fee waiver.
     CREW also balked when the VA claimed it could not provide records before Dec. 9, 2008, nearly nine months after the date of Perez’s email, because those emails were too old to be recovered.
     Eventually the VA did provide the Perez email, among supplemental document releases, having found it in the inboxes of several recipients.
     U.S. District Judge Paul Friedman in turn granted the VA summary judgment, holding that the agency’s production of the supposedly destroyed documents “negated” the controversy.
     The 2014 ruling noted that CREW might be eligible for attorneys’ fees, given “the additional time and effort [its] attorneys were required to expend due to the VA’s tactics.”
     “[The court] is deeply troubled by the VA’s litigation conduct in the case: inaccurate declarations were left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic,” Friedman wrote. “Nothing stated in defendant’s motion for reconsideration or other filings has done anything to mitigate that concern.”
     Friedman found Tuesday that CREW is entitled to attorneys’ fees, costs and expenses, but not sanctions. He held that the government did not act in bad faith but should have provided employee declarations before depositions, including the declarations of VA worker John Livornese.
     The judge found that “the unintended effect of the VA’s decisions was the multiplication of briefings and depositions.”
     “If the forthcoming declarations were in fact ‘pertinent,’ why weren’t they provided at least a few days in advance of Mr. Livornese’s deposition?” the seven-page opinion states. “The answer: a misguided litigation strategy – not one designed to delay or impede the proceedings or to conceal relevant facts, or executed in bad faith…but a strategy so focused on preparing and filing a new motion for summary judgment with supporting and (finally) completely accurate depositions, that the importance to CREW of the Livornese deposition was put to one side, perhaps viewed by the government as a mere distraction from its ongoing internal efforts, designed finally to set the record straight later.” (Emphasis in original)
     CREW and the VA have until Sept. 30 to file a joint report as to whether they want to engage in settlement discussions for attorneys’ fees with a mediator or magistrate judge.

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