Petition for Writ of Certiorari — Seth Mitchell, Petitioner v. Department of Veterans Affairs, et al.

No.

IN THE

SUPREME COURT OF THE UNITED STATE^premF®LCE°Du'1'Ub'

AUG \ 5 2022

OFFICE OF THE CLERK

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vs.

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- RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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(Your Name)

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QUESTIONS PRESENTED

1. “When, if ever, can United States Governmental agencies (United States

Department of Veterans Affairs, United States Department of Defense)

intentionally withhold vitally-important documentation - easily-obtained - from a

good-faith Requester, in purposeful violation of the Freedom of Informational Act

(5 USC §552)”

2. “When, if ever, can a United States Court unjustly deny requisite relief under The

Privacy Act (5 U.S.C. §552a) when the aggrieved party successfully proves

indubitably that United States Governmental agencies and their employees

intentionally caused the Complainant direct harm, where such injuries include

purposeful FOIA violations”

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

M/A11 parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

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RELATED CASES

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TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

Z

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

H

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

ir

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INDEX TO APPENDICES

appendix a

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APPENDIX B

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APPENDIX

APPENDIX D

APPENDIX E

APPENDIX F

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TABLE OF AUTHORITIES CITED

Cases

{Mitchell v. US DEPARTMENT OF VETERANS AFFAIRS, No. 18-CV-2672 (VSB)

(S.D.N.Y. Nov. 8, 2021)......................................... ........ ....................................

5

{Valencia-Lucena v. US Coast Guard, 180 F. 3d 321 - Court of Appeals, Dist. of

Columbia Circuit 1999)_________________ ______________________ _—

17

Chambers v. U.S. Dep’t of Interior, 568 F.3d 998,1006-07 (D.C. Cir. 2009)------

18

Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11

(1976).________________________________________ —------------------------------ 18

Founding Church of Scientology v. National Sec. Agency, 610 F.2d 824, 837 (D.C.Cir.

1979_______________________________ ______________________________ 18

John Doe Agency v. John Doe Corp., 493 U.S. 146, 151, 110 S.Ct. 471, 107 L.Ed.2d

462 (1989)___________________________ _____________ —------------ -------- 18

John Doe Agency, 493 U.S. at 151, 110 S.Ct. 471--------------------------

18

Kowalczyk v. Department of Justice, 73 F.3d 386, 388 (D.C.Cir. 1996)

18

Krikorian v. Department of State, 984 F.2d 461, 468 (D.C.Cir. 1993—

18

Nation Magazine v. United States Customs Serv., 71 F.3d 885, 889 (D.C.Cir. 1995 —18

Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990

18

See Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir. 1998)------18

Truitt v. Department of State, 897 F.2d 540, 542 (D.C.Cir. 1990).

18

Weisberg v. Department of Justice, 705 F.2d 1344, 1351 326*326 (D.C.Cir. 1983) —18

Weisberg v. United States Dep't of Justice, 627 F.2d 365, 369-70 (D.C.Cir. 1980------18

Statutes

(5 U.S.C. §552a(g)(4))

19

28 USC §2401(b)___

13

38 U.S.C. §1925___

16

38 USC §7107

12

5 USC §552

12

Other Authorities

Permanent Order 135-26

6

Permanent Order 161-07.

Rules

38 C.F.R. § 20.900(c)

19

38 CFR §20.900(c))_

11

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

A_to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[\A is unpublished.

The opinion of the United States district court appears at Appendix £>__to

the petition and is

[ ] reported at

5 or,

[ ]b&s been designated for publication but is not yet reported; or,

[vTis unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

JURISDICTION

[vfFor cases from federal courts:

The date on which the United States Court of Appeals decided my case

was 12,__m ft! L__—

[ ] No petition for rehearing was timely filed in my case.

[v^A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: / p M n~y

___, and a copy of the

order denying rehearing appears at Appendix..Q___

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

--------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

1.

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

1. Freedom of Information Act (“FOIA”) 5 USC §552:

https://www.iustice.qov/sites/default/files/oip/leqacv/2014/07/23/amended-foiaredlined.pdf

2. Privacy Act 5 USC §552a(g): https://www.iustice.qov/opcl/overview-privacv-act1974-2020-edition/remedies

3.

STATEMENT OF THE CASE

I.

APPELLANT’S MERITORIOUS FOIA CLAIM

This controversy at its inception dealt with VA’s intentional failure to provide sole

Plaintiff - Appellant with voluminous and substantive records which it maintained for

Plaintiff’s cherished Grand Father and United States Veteran - Patriot Henry Milton

Sandler (United States Army, World War II, European Theatre of Operations:

Operation Overlord: Bronze Star Medal and Purple Heart recipient). Specifically, VA

had intentionally withheld records vital to Plaintiff’s pursuit of an underlying VA

Administrative Claim with the sole nefarious intent to frustrate Plaintiff’s pursuit of the

rightful good faith Administrative Claim, where the surreptitiously hidden records were

integral to Plaintiff’s VA prosecution; for the sake of clarity, the Records which are hereby

still demanded of VA is Mr. Sandler’s entire VA Information File for the period 1966 1989. These records are easily obtainable by VA and VA’s continued obfuscation of

them has caused Plaintiff - Appellant significant financial and emotional distress.

Appellant’s FOIA Claim is meritorious: there is no way that over twenty years of Mr.

Sandler’s data is not readily available and easily obtainable by VA, and the defendants’

statements to the contrary can only be construed as markedly fraudulent.

II.

APPELLANT’S MERITORIOUS PRIVACY ACT CLAIM

Plaintiff had proven that not only had VA purposefully withheld vital evidence from

Him (the entirety of Mr. Sandler’s VA Records from the period 1966 - 1989) but also that

it did so with dedicated intent to harm Him: VA staffer Dent-Lockett, at least,

participated in a devious and outrageous scheme to delay Appellant’s receipt of Mr.

Sandler’s VA Records by illegally hiding them in her personal desk drawer, thereby

needlessly and tragically delaying Appellant’s meritorious pursuit of the underlying VA

Administrative Claim as recognized by BVA itself; Appellant is owed actual damages as

VA’s malevolent actions are recursively intentional and willful. Appellant’s PAC Claim is

meritorious: VA hides evidence which is required for Appellant’s successful ongoing

pursuit of his underlying VA Administrative Claim (which was Advanced and Expedited

on the BVA Docket for Good Cause), and such dedicated concealment causes Him

H.

infinite harm and tangible damage. In short, the records still demanded are now

Appellant’s Records, not Mr. Sandler’s Records, and the suppression of said records is

an ongoing and irreparable injury to good Plaintiff - Appellant.

III.

DISTRICT COURT PROCEEDINGS

After thoroughly exhausting His VA administrative appeals, Appellant Filed good

faith Civil Action with The District Court of the Southern District of New York on 26

March 2018 in pursuit of his meritorious and clearly stated FOIA Claim, where He was

granted leave to proceed in forma pauperis. VA answered Plaintiff - Prosecutor on 20

August 2018 and moved for summary judgment on the FOIA Claim on 3 December

2018. Appellant was granted Leave to File First Amended Complaint on 14 March 2019

which He did File on 29 March 2019, adding DoD as Defendant and incorporating the

meritorious PACs into the lawsuit.

On 8 November 2021, the day before Appellant’s birthday, United States District

Judge Vernon S. Broderick in his devastating Opinion and Order erred in unjustly

denying Appellant’s FOIA and PAC Claims and Appellant’s additional good faith

requests for relief, thereby compelling Appellant to good faith File Notice of Appeal to

United States Court of Appeals for The Second Circuit on 28 November 2021. {Mitchell

v. US DEPARTMENT OF VETERANS AFFAIRS, No. 18-CV-2672 (VSB) (S.D.N.Y. Nov.

8, 2021).

STATEMENT OF THE FACTS

POINTS 1 >43, Docket No. 79 (A10)

1.

On 26 May 1942 Henry was Inducted into Selective Service at Fort Jay,

Governor’s Island, New York;

2.

On 13 June 1944, roughly 1700 hours, St. Lo, France, European Theatre of

Operations, Henry was severely wounded from shrapnel released by a German

88mm shell on the Normandy battlefield front, as 1st Gunner, Anti-tank

Gunman on 37mm and 57mm guns, Headquarters, 116th Infantry Regiment,

29th Infantry Division, Antitank Company; evacuated post-injury to 129th

General Hospital, England for recuperation;

3.

On 9 January 1945 Henry was Awarded Purple Heart for wounds sustained in

Normandy, France in June 1944 (whilst working for United States Army in

London, England in 3143rd Signal Service Company after recuperating from

battlefield wounds);

4.

On 29 June 1945 Henry was Demobilized at the Convenience of the

Government of the United States of America;

5.

On 13 September 1965 Henry’s NLSI “JR” Policy in the Face Amount of

$US7,000.00 became effective and remains so today;

6.

On 15 May 2014 via Permanent Order 135-26 The United States Army ReAffirmed the Award to Henry of the Purple Heart as a result of Good Plaintiff Prosecutor’s audit of Henry’s United States Military Records;

7.

On 15 May 2014 via Permanent Order 135-27 The United States Army Re-

(o

Affirmed The Army Good Conduct Medal issued to Henry for his Service as a

result of Good Plaintiff - Prosecutor’s audit of Henry’s United States Military

Records;

8.

On 10 June 2014 via Permanent Order 161-07 The United States Army made

a First-time Award of the Bronze Star Medal to Henry as a result of Good

Plaintiff - Prosecutor’s audit of Henry’s United States Military Records;

9.

On 29 December 2014 Good Plaintiff - Prosecutor requested of VA a full copy

of Henry’s military-based insurance records held at VA from the period 1942 Present; only a redacted version of these records was provided to Him, with

no records for the period 1966 - 1990 included whatsoever,

10.

On 7 January 2015 VA denied in bad faith Good Plaintiff - Prosecutor’s formal

request for Henry’s full, unredacted insurance file;

11.

On 13 January 2015 Good Plaintiff - Prosecutor send an email to Dent-Locket

requesting once again Henry’s full, unredacted insurance file including the

information withheld for the entire period of 1966 -1990;

12.

On February 2015 United States Department of Veterans Affairs, Philadelphia

Regional Benefit Office unjustly denied Good Plaintiff - Prosecutor’s Demand

for Payment under Henry’s NLSI JR Policy with Face Amount $US7,000.00;

13.

On 23 February 2015 Good Plaintiff - Prosecutor initiated the BVA Appeals

process for the Bad Faith Insurance Claim under the NLSI JR Policy;

14.

On 29 February 2016 Dent-Locket writes to BVA, regarding Plaintiff’s inperson Hearing Request, that “....the insurance and claims files of the

referenced veteran are temporarily transferred to your office.

” a full month

before Dent-Lockett allegedly switched jobs and offices and hid Mr. Sandler’s

UNIQUE, ORIGINAL Insurance and Claim Files in her Insurance Center office

without communicating to any of her colleagues that such sensitive, private,

material non- public information was kept there illicitly.

15.

On 21 April 2017 Good Plaintiff - Prosecutor received an email from King

stating: “....Mr. Mitchell: RE: FOIA #15-05402-FP I will be requesting the

original insurance folder of veteran Henry Sandler from the federal archives

facility that is currently holding it among its records. The file # for the veteran’s

insurance policy is V190071....”;

16.

On 28 April 2017 Good Plaintiff - Prosecutor received an email from King

stating: “...Mr. Mitchell: RE: FOIA # 15-05402-FPI regret to inform you that I

will not able to fonward to you a copy of the contents of the insurance folder of

veteran Henry Sandler, File # V 190071. The folder is missing from the VA

archives facility and cannot currently be located. Sincerely, Jeanne King...”;

17.

On 13 June 2017 Good Plaintiff - Prosecutor attended his BVA Hearing before

Judge Larkin at VA Headquarters in Washington, DC without the benefit of a

full set of information in Henry’s insurance file from the period 1942 - Present,

further aggrieving him to a significant extent.

18.

On 8 August 2017 Good Plaintiff - Prosecutor received an email from King

stating: “....Mr. Mitchell: I have discussed in my previous correspondence that

all of the information available to this office regarding veteran Henry Sandler

has already been provided to you, and unfortunately the insurance folder in

question was not able to be located by the federal records center of

l

jurisdiction. I will certainly notify you if any new information should become

available, but that is unlikely to occur in this case. Sincerely, Jeanne King....”;

19.

On 29 August 2017 Good Plaintiff - Prosecutor was written by Ms. Kenyatta

McLeod-Poole, Acting Chief Counsel, Information Law Group, Office of the

General Counsel, VA stating that, in fact, Henry’s insurance file had been

unlawfully held by Dent-Lockett herself instead of properly being housed in the

appropriate “Federal Records Center”

which was the only reason that

King had been unable to locate it prior to the 13 June 2017 BVA Hearing; the

matter was then remanded back to King and Dent-Lockett for them to then

provide Good Plaintiff - Prosecutor with the “additional records”.

Such

“additional records” have been unconscionably withheld from him to this day,

further aggrieving Him to a significant extent;

20.

On 29 August 2017 Ms. McLeod-Poole advised via her Letter that Good

Plaintiff - Prosecutor had “....the right to file a civil action against the

Department in an appropriate United States District Court....”;

21.

On 22 August 2017 BVA Judge Larkin Issued the Preliminary Order under

Docket No. 15-42 544A that required Philadelphia Regional Benefit Office

under no uncertain terms to:

a. “...Obtain [exhaustively] and associate with the Veteran’s Claim File all VA

Insurance Records...”;

b. “...Complete any development deemed necessary in light of evidence

obtained pursuant to [Topic] 1...”; and

v

c. “....Re-adjudicate the Veterans Claim...where this Claim must be afforded

expeditious treatment....”;

22.

On 23 September 2017 Good Plaintiff - Prosecutor send via email to Rubens

a mutually beneficial good faith Offer of Settlement to the outstanding Bad

Faith Insurance Claim under Henry’s Account; Rubens has failed to provide

any answer since; given that six months have passed, Good Plaintiff Prosecutor concludes that the defendants have refused to Afford this Claim

Expeditious Treatment in stark bad faith and in purposeful contempt of the

BVA Preliminary Order dated 22 August 2017, further aggrieving this Claimant

to a significant extent;

23.

On 3 July 2018 PHRBO issued a “Supplemental Statement of the Case in The

Appeal of Seth Mitchell” where it deceitfully stated that “....no additional

evidence was found in the VA Insurance Record...” based upon the BVA Order

to Remand;

24.

On 14 August 2018 PHRBO notified The Prosecution that “.... Mr. Sandler’s

Records are being placed in the docket of BVA for disposition....”;

25.

On 18 September 2018 Mr. David Spickler, Vice Chairman, BVA notified via

Postal Letter The Prosecution that Mr. Sandler’s Claims Folder was

suspiciously being transferred not to BVA for Appeal Claim adjudication but to

St. Petersburg RBO “....for further Docket development....”;

26.

On 23 October 2018 Sole Claimant applied for a VA Home Loan Benefit

Certificate of Eligibility under Henry’s Account;

|d.

27.

On 29 October 2018 Department of Veterans Affairs Cleveland Regional Loan

Center Loan Production Department unjustly denied Sole Claimant’s

Application for Certificate of Eligibility;

28.

On 15 November 2018 K. Osborne, Vice Chairman, BVA notified via Postal

Letter The Prosecution that “....your Appeal has been returned to the BVA and

has resumed its place on the Docket.....” without any evidence, information,

or proof that any additional development or value-add occurred at St.

Petersburg RBO;

29.

On 26 November 2018 VA via phone call with The Prosecution VA confirmed

that a search of VA Information Systems evidenced that no Federal Home

Loan Benefit was ever issued under Mr. Sandler’s Account from the period

1945 - Present in the States of New York, New Jersey, and Florida;

30.

On 19 November, 27 November, and 10 December 2018, VA Home Loan

Production refused unjustly via email to provide written substantiation of the

results of Plaintiff’s 26 November 2018 Call with VA regarding the fact that Mr.

Sandler’s Federal Home Loan Benefit remains unused and unquestionably

available to Good Plaintiff - Prosecutor and Sole Claimant SETH MITCHELL,

CFA;

31.

On 3 December 2018 the FTC accrued when Plaintiff was informed via The

Weaver Declaration that various Federal employees including but not limited

to the nefarious Dent - Lockett acted with negligence regarding the

misplacement of Mr. Sandler’s full unredacted original VA Claims File, which

resulted in the unconscionable delay to this day of an expedited final

adjudication of the underlying VA Administrative Claims (see 38 USC §7107

and 38 CFR §20.900(c)).

32.

On 28 January 2019 VA confirmed via Letter response to Plaintiffs FOIA

request under 5 USC §552 that no Federal Home Loan Benefit had ever been

extended under Mr. Sandler’s Account from the period 1945 - Present;

33.

On 19 March 2019 Sole Claimant SETH MITCHELL presented himself to VA

New York Regional Office at 245 West Houston Street, New York County, New

York, 10014, to verify His identity and direct matrilineal blood tie to Mr. Sandler

by providing VA with Mr. Mitchell’s United States Passport Card, United States

Social Security Card, City of New York Long Form Birth Certificate, and Mr.

Sandler’s WD-AGO Form 53-55;

34.

On 19 March 2019 VA New York Regional Office “added” Plaintiff’s business

email address to Mr. Sandler’s DEERS Record, yet Plaintiff did not receive

requisite follow-up from DoD or VA regarding username and password to

access DS LOGON subsequent to such in-person identity and familial

verification;

35.

On 20 March 2019 Mr. Richard Ha, JD, CIPP/G, OSVA FOIA/Privacy Officer,

Office of the Executive Secretary, Office of the Secretary, U.S. Dept, of

Veterans Affairs (OSVA) forwarded Claimant’s email request for VA Dispute

Resolution/Mediation Services to Mr. John Buck, VA FOIA Public Liaison;

36.

On 22 March 2019 the Prosecution lodged a formal FOIA request of DoD for

any and all records under Mr. Sandler’s DEERS/eBenefits Account where such

good faith request remains unfulfilled (i.e. Prosecution does not possess the

IT.

responsive records search results and does not possess the username and

password required to obtain online access to our DEERS/eBenefits Account;

37.

On 26 March 2019 Sole Claimant presented Mr. Buck via email with a fair and

reasonable Settlement Offer to resolve the meritorious Privacy Act Claim, with

hard deadline for VA’s agreement in principle of 28 March 2019;

38.

On 29 March 2019 Sole Claimant’s 26 March 2019 Settlement Offer sent to

Mr. Buck expired without any response from VA whatsoever;

39.

On 29 March 2019 Plaintiff Files the FAC after obtaining Leave to File an

Amended Complaint from Court on 14 March 2019 and without any good faith

offer of private settlement put forth privately by the defendants to resolve any

and all outstanding litigation Claims asserted meritoriously against them in this

Action.

40.

On 26 July 2019 Plaintiff sent a FOIA request to Mr. Bruno Leuyer, Defense

FOIA Public Liaison with copy to Mr. Cowart, and this good faith FOIA request

has gone totally unanswered;

41.

On 17 August 2019 sole Claimant Filed Form SF-95 on a timely basis with an

acknowledgment by VA that the Claim was received on 21 August 2019.

42.

On 3 January 2020 VA illegally denied the FTC, providing sole Claimant with

guidance that “

the FTCA provides that when an agency denies an

administrative tort claim, the claimant may seek judicial relief in a proper

Federal District Court....the claimant must initiate the suit within six (6) months

of the mailing of this notice as shown by the date of this denial....see 28 USC

§2401(b)....in any FTCA lawsuit, the proper party defendant is the United

States, not the Department of Veterans Affairs (or an individual health care

provider)

43.

On 2 February 2020 Good Plaintiff - Prosecutor Filed with this Court a Motion

for Leave to Amend the First Amended Complaint to incorporate the FTC into

this Action, where judicial efficiency dictates that this Court should adjudicate

said FTC given that the same underlying facts give rise to the FOIA, Privacy

Act, and FTC Claims.

44.

29 September 2020 the lower court unjustly denied Appellant’s Filing of a

Second Amended Complaint (Docket No. 81 (A10)).

45.

On 8 November 2021 the lower court erred in its entirety by unfairly granting

defendants’ summary judgment to dismiss, and further injured this irreparably

and intentionally damaged Appellant by incorrectly denying Appellant’s cross

motion for summary judgment (Docket No. 86 (A11)).

46.

On 28 November 2021 Appellant Filed good faith Notice of Appeal with this

good court (Docket No. 87 (A11)).

REASON FOR GRANTING THE PETITION

The lower court erred egregiously as a matter of fact and law in denying

Appellant’s FOIA, PAC Claims, and ancillary Claims for civil, injunctive, and declaratory

relief; whilst the defendants will attempt to obfuscate and overcomplicate this

controversy in their flawed efforts at frustrating Appellant’s pursuit of his meritorious

and clearly - articulated Administrative VA and Federal Civil Claims, Appellant’s

successful argument wins due to its sheer simplicity and veracity:

1. The United States Government maintains an exquisitely detailed and

comprehensive information file on Veteran - Patriot Sandler from the period

1945 - Present yet refuses to this very day to release to Appellant that entire

portion of the File from 1966 - 1989 solely for the purpose of frustrating

Appellant’s pursuit of an underlying Administrative Claim at VA; whilst VA may

possibly have conducted an “adequate search” it is simply refusing to provide

the entire set of required data to Appellant. The defendants have not sought

to defend their stance of failing to disgorge the vital materials from 1966 -1989

whatsoever, and therefore none of this information is exempt from Appellant’s

FOIA request; Appellant is confident that after trial by jury he would be

victorious.

2. Judge Broderick’s stance that Appellant’s PAC “is non-cognizable” is whollyflawed: in agreeing with the defendants, the lower court unjustly and

defectively concludes that, as per Warren, “....the Second Circuit found that

because plaintiff was not entitled to his father’s records....SSA’s refusal to

provide them did not violate the Act...” thereby finding that here, Appellant

isn’t owed the requested records from the period 1966 -1989 -a blatant error

of fact. Veteran - Patriot Sandler’s VA Records now belong in their entirety to

Appellant - they are now Seth’s and not Henry’s - and the entirety of those

records being received by Appellant is crucial to the successful pursuit of the

underlying Administrative Claim at VA. Additionally, contrary to the lower

l<T.

court’s determination, Appellant has proven indubitably that Dent-Lockett’s

purposeful misplacement of the Records (intentionally, maliciously, and

illegally keeping the original copy in her personal filing cabinet which delayed

by years Appellant’s pursuit of the underlying Administrative Claim at VA) at

least proximately caused him monumental harm - severe emotional and

definitive financial distress, infinite mental anguish, and tangible anxiety. It

shocks the consciousness of any reasonable person for the lower court to

state callously and uncaringly that “.....rather than being harmed by the BVA

action, Plaintiff’s claim was advanced by its remand and directions.....indeed,

shortly after the remand, the Records were located...” for the simple fact that

whilst the “Records” were “located” the requisite information from the Period

1966 -1989 was not disgorged ever to irreparably injured Appellant! Appellant

is confident that after trial by jury he would be victorious.

ARGUMENT

I.

VA’S SEARCH FOR RESPONSE RECORDS FOR THE PERIOD 1966 1989 IS INEXHAUSTIVE, INADEQUATE, AND MADE IN BAD FAITH:

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MUST FAIL

The gravamen of Appellant’s FOIA Claim is that it is clear from the Record that

instances of intentional wrongdoing on the part of VA regarding information security

lapses and violations (such as the well-documented Dent-Lockett crimes) simply cannot

be overlooked by the courts, particularly when the withheld information (the VA Record

from the period 1966 - 1989) relates directly to successful pursuit of an underlying

Administrative Claim: "...other records in Sandler’s insurance folder concern his attempt

to obtain....insurance for Veterans with disabilities who served in the uniformed services

between October 1940 and January 1957....known as Veterans Reopened Insurance

(“VRI”) and is currently codified at 38 U.S.C. §1925...records from Sandler’s insurance

folder indicate that he did not pay in full the required premium..(Supplemental Weaver

Declaration, Docket No. 71 (A9)). Appellant Rejects in full this assertion by VA, given

His acting as character witness for his Cherished Grand Father given that Henry cannot

t,

now Act in this capacity for Himself. It is more than just a coincidence that Mr. Sandler’s

records “end” in 1966 at just the time that defendants contend that “he did not pay in full

the required premium" - where the requisite information flow conveniently only resumes

over two decades later: good Court - this is a coverup of monumental proportions!

Even the defendants recognize the shoddy recordkeeping and information

security lapses evident on Mr. Sandler’s account “....the VA has been unable to locate a

copy of the documents produced to Plaintiff in 2014 that sets forth the precise

information that it withheld from the production...” (Cowart Letter, Docket No. 28 (AS))

Defendants’ contention that “....it would be an enormous administrative burden to

create a receipt for each premium payment received and maintain these receipts in

millions of insurance folders...to evidence issuance of a life insurance policy, the VA would

send the Veteran an insurance certification....the VA would not keep a copy...in a Veteran

Policyholder’s insurance folder....” (Supplemental Weaver Declaration (A9)) is utterly

specious in that it is a total impossibility that whilst Mr. Sandler maintained at least four

(4) United States Governmental life insurance policies over the period 1942 -1989:

-

N2664286

- V190071

-

N20689285

- JR80906363

where there is absolutely no written evidence whatsoever of said in-force policies from

the period 1966 - 1989. VA is clearly failing to disgorge said evidence to Appellant in

stark bad faith and if it is illegally withholding requisite information from Henry and Seth

than Appellant asks this good Court, how many other Veteran - Patriots and their families

are also unwitting “information” victims of this most malicious VA?

As per Valencia - Lucena v. Coast Guard (Valencia-Lucena v. US Coast Guard,

180 F. 3d 321 - Court of Appeals, Dist. of Columbia Circuit 1999):

“....The law in this circuit on agency obligations under FOIA is longestablished and embraces the congressional purpose of open

government. See Campbell v. United States Deo't of Justice. 164 F.3d 20.

27 (D.C.Cir. 1998). While recognizing that the number of requests for

information may pose burdens on agencies, Congress determined its

ultimate policy of open government should take precedence. See John Doe

Aaencv v. John Doe Coro.. 493 U.S. 146. 151. 110 S.Ct. 471. 107 L.Ed.2d

462 (1989): Department of the Air Force v. Rose. 425 U.S. 352. 361. 96

S.Ct. 1592. 48 L.Ed.2d 11 (1976). The fundamental principle animating

FOIA is public access to government documents. John Doe Agency, 493

U.S. at 151. 110 S.Ct. 471. Accordingly, this court has required agencies

to make more than perfunctory searches and, indeed, to follow through on

obvious leads to discover requested documents. Campbell. 164F.3dat28.

An agency fulfills its obligations under FOIA if it can demonstrate beyond

material doubt that its search was "reasonably calculated to uncover all

relevant documents." Truitt v. Department of State. 897 F.2d 540, 542

(D.C.Cir. 1990) (quoting Weisbero v. Department of Justice. 705 F.2d 1344,

1351 326*326 (D.C.Cir. 1983)). "{Tjhe agency must show that it made a

good faith effort to conduct a search for the requested records, using

methods which can be reasonably expected to produce the information

requested." Oglesby v. United States Deo't of the Army, 920 F.2d 57, 68

(D.C.Cir. 1990) ("Oalesbv I"). The agency "cannot limit its search" to only

one or more places if there are additional sources "that are likely to turn up

the information requested." Id; see also Campbell. 164 F.3d at 28.....A

requester dissatisfied with the agency's response that no records have

been found may challenge the adequacy of the agency's search by filing a

lawsuit in the district court after exhausting any administrative

remedies. See 5 U.S.C. § 552(a)(6)(A)(i) & (C); Oalesbv I. 920 F.2d at 67. At

the summary judgment stage, where the agency has the burden to show

that it acted in accordance with the statute, the court may rely on "[a]

reasonably detailed affidavit, setting forth the search terms and the type of

search performed, and averring that all files likely to contain responsive

materials (if such records exist) were searched." Oglesby I. 920 F.2d at

68: see also Kowalczvk v. Department of Justice. 73 F.3d 386. 388 (D. C. Cir.

1996): Weisbero. 705 F.2dat 1351. However, if a review of the record raises

substantial doubt, particularly in view of “well defined requests and positive

indications of overlooked materials," Founding Church of Scientology v.

National Sec. Agency, 610 F.2d 824. 837 (D.C.Cir. 1979), summary

judgment is inappropriate. Id.; see also Oalesbv v. United States Deo't of

the Army. 79 F.3d 1172. 1185 (D.C.Cir. 1996) ("Oalesbv il"): Krikorian v.

Department of State. 984 F.2d 461. 468 (D.C.Cir. 1993): Weisbero v. United

States Deo't of Justice. 627 F.2d 365. 369-70 (D.C.Cir. 1980). Most

recently, for example, in Campbell. 164 F.3d at 28. the court held a search

inadequate when it was evident from the agency's disclosed records that a

search of another of its records system might uncover the documents

sought. So too here, on de novo review, see Nation Magazine v. United

States Customs Serv., 71 F.3d 885. 889 (D.C.Cir. 1995), the record

indicates that the search was deficient and consequently summary

judgment for the Coast Guard was not proper....”

As per Valencia, in this matter, VA has failed “to make a more than perfunctory

search", “follow through on obvious leads to discover requested documents”, and “to

demonstrate beyond material doubt that its search was reasonably calculated to uncover

all relevant documentshere, indubitably, “...a review of the record raises substantial

doubt, particularly in view of well-defined requests and positive indications of overlooked

materials, summary judgment is inappropriate.....”

II.

THE LOWER COURT’S CITATION OF WARREN IS FUNDAMENTALLY

FLAWED IN ITS DENIAL OF APPELLANT’S PAC

In this matter, Appellant seeks rightful damages under The Privacy Act (5 U.S.C.

§552a(g)(4)) and yet does not seek to compel the defendants to disgorge the VA

Records at controversy under said Act as per Warren “....the Act does not provide an

individual with a right to demand materials pertaining to him but contained only in

another individual’s records...”. Appellant’s rightful information demands fall under

FOIA, not The Act, and the defendants have recognized Appellant’s rightful Claim to

obtain any and all records requested under FOIA (although they recursively fail to

provide all reasonably requested records). In fact, the BVA has stated clearly in its

Decision of 22 August 2017:

“...Accordingly, the case is REMANDED for the following action: (Please

note, this appeal has been advanced on the Board's docket pursuant to

38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Using all

available sources, obtain and associate with the Veteran's claims file all VA

insurance records, to specifically include any and all records regarding the

Veteran's National Service Life Insurance Policy ([redacted]) as identified

by the Appellant. Document the efforts made to obtain these records along

with any and all negative responses. Specifically, document any and all

correspondence with, and information obtained from, the VA Office of

General Counsel regarding their investigation into attempts to locate and

obtain the aforementioned records.....”

Given that the responsive records are owed to Sole Claimant and Appellant Seth

Mitchell, CFA as per BVA and FOIA, and not The Privacy Act, it is conclusive that the

lower court has erred clearly based upon irrefutable fact applied to applicable and

iq.

relevant law regarding the cognizable nature of his PAC.

III.

CONTRARY TO THE LOWER COURT, APPELLANT’S PAC IS

MERITORIOUS AND PAYMENT IS DUE IMMEDIATELY

Appellant has proven indubitably that not only has “...the misplacement of

Records...” caused him direct and tangible harm, VA’s intentional failure to disgorge to

this day the full set of Records [Period 1966 -1989] coupled with Dent-Lockett’s wonton

criminality, for instance, evidences the nefarious intent to cause damage, injury and

destruction, via the frustration of Appellant’s Prosecution of his underlying meritorious

VA Administrative Claim.

Contrary to the lower court’s citation of Chambers (Chambers v. U.S. Dept, of

Interior, 568 F.3d 998, 1006-07 (D.C. Cir. 2009) in its flawed logic unjustly denying

Appellant’s PAC, “....explaining that to recover damages a plaintiff must establish

among other things that he was ‘aggrieved by an adverse determination’ which was

proximately caused by “the agency’s reliance on ... inaccurate records

” Appellant

posits that that is exactly what He did, as per the lower court record: He has been

aggrieved by the defendants’ adverse determination to deny Him rightful access to the

VA Insurance Record from the Period 1966 - 1989, and then the BVA’s adverse

determination to deny His Administrative Claim (Docket No. 84 (A10)) based solely on

the failure of VA to provide the requisite evidentiary record from the Period 1966 -1989.

Zo

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date: