Opinion
Civil Action No. 04-0103 (RMU), Document Nos. 6, 8, 10.
March 11, 2005
I. INTRODUCTION
This matter comes before the court on the defendant's motion to dismiss and the parties' cross-motions for summary judgment. The Vietnam Veterans of America ("VVA") and the Honorable Ted Strickland (collectively "the plaintiffs") bring this action to compel the Department of Veteran Affairs ("VA") to comply with its statutory duty to provide "outreach services." The plaintiffs claim that the VA is violating this duty by prohibiting marketing to increase veteran enrollment in health care benefits. Because the VA only stopped marketing activities and has continued its outreach services, the court concludes that the VA is in compliance with its statutory duties. Accordingly, the court grants the defendant's cross-motion for summary judgment.
II. BACKGROUND A. Factual Background
The Veterans Health Administration ("VHA"), a component of the VA, has the monumental task of offering "a complete medical and hospital service for the medical care and treatment of veterans." 38 U.S.C. § 7301(b). During the Vietnam War, increased awareness of veterans not receiving adequate information about health care benefits resulted in Congress enacting the Veterans Outreach Services Program ("VOSP"), 38 U.S.C. §§ 7721-7727. Compl. ¶ 9. Congress designed VOSP to provide "timely and appropriate assistance to aid and encourage [veterans] in applying for and obtaining [federal] benefits and services." 38 U.S.C. § 7721(a).To accomplish the goal of providing "timely and appropriate assistance," Congress charged the VA "with the affirmative duty of seeking out eligible veterans and eligible dependents and providing them benefits and services." Id. Congress further delegated specific duties to the Secretary of the VA. Under VOSP, the Secretary "shall by letter advise each veteran at the time of the veteran's discharge or release from active military, naval, or air service . . . of all benefits and services under laws administered by the Department for which the veteran may be eligible." Id. § 7722(b). The Secretary shall also "distribute full information to eligible veterans and eligible dependents regarding all benefits and services to which they may be entitled under laws administered by the Department." Id. § 7722(c)(1). Furthermore, the Secretary "shall provide, to the maximum extent possible, aid and assistance . . . in preparation and presentation of claims under laws administered by the Department" and "shall assign such employees of the Veterans Benefits Administration as the Secretary considers appropriate to conduct outreach programs and provide outreach services for homeless veterans." Id. §§ 7722(d), (e). Finally, the Secretary "shall ensure that the needs of eligible dependents are fully addressed" and "that the availability of outreach services and assistance for eligible dependents . . . is made known through a variety of means, including the Internet, announcements in veterans publications, and announcements to the media." Id. § 7722(e); Veterans' Survivor Benefits Improvement Act ("VSBIA"), 38 U.S.C. § 7727(a), (b).
On July 18, 2002, Laura Miller, VA Deputy Undersecretary for Health for Operations and Management, acting on direction from Secretary of Veterans Affairs Anthony J. Principi ("the Secretary"), issued a memorandum to all regional directors of the VHA prohibiting marketing geared toward increasing enrollment. Def.'s Mot. to Dismiss Attach. A, Ex. 1. On February 19, 2004, Undersecretary Miller sent another memorandum to all regional directors of the VHA instructing them to ensure their "facilities are, and continue to be, in compliance with our responsibilities under [VOSP] to `distribute full information to eligible veterans and eligible dependants regarding all benefits and services which they may be entitled.'" Def.'s Mot. to Dismiss Attach. A, Ex. 2 (quoting 38 U.S.C. § 7722(c)(1)).
The defendant first argues that the 2004 memorandum renders the plaintiffs' claim moot and seeks to dismiss. The plaintiffs, however, assert that the 2004 memorandum did not specifically revoke the 2002 memorandum, and they seek an order requiring the VA to revoke the 2002 memorandum. Pls.' Mot. for Summ. J. at 27 ("Pls.' Mot."). The plaintiffs further allege that the 2002 memorandum's prohibition of marketing programs effectively stopped VA outreach services. Id. at 19. The plaintiffs contend that this prohibition was in violation of 38 U.S.C. §§ 7721, 7722, and 7727 and the Administrative Procedure Act ("APA"), because it is "not in accordance with law" and "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. §§ 706(2)(A), 706(2)(C).
B. Procedural History
On January 22, 2004, the plaintiffs filed suit in this court, alleging violations of the APA, VOSP, and VSBIA. The defendant subsequently filed a motion to dismiss the claim as moot and as an attempt to regulate a non-reviewable agency action. The plaintiffs responded on April 2, 2004, by filing a motion for summary judgment. On May 7, 2004, the defendant submitted a cross-motion for summary judgment. The court now turns to those motions.
III. ANALYSIS A. The Defendant's Motion to Dismiss
In his motion to dismiss, the defendant claims that the plaintiffs' claim is mooted by the 2004 memorandum and is unreviewable as a matter of agency discretion. However, Congress mandates that the VA provide outreach services and whether they comply with this obligation is reviewable. The court must now consider the effect of the 2004 memorandum on the 2002 memorandum's prohibitions.
It is unclear from the plaintiffs' submission whether the plaintiffs allege that the level of outreach that the defendant is conducting does not rise to the level required by the statute, or that the defendant is not conducting any outreach at all. The court addresses the plaintiffs' claims under both scenarios in its discussion resolving the motions for summary judgment.
1. Legal Standard for Mootness
Under Rule 12(b)(1), a party may move to dismiss a case on grounds of mootness. Comm. in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744 (D.C. Cir. 1991); Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1060 (Fed. Cir. 1995); Am. Historical Ass'n v. Peterson, 876 F. Supp. 1300, 1308 (D.D.C. 1995). Article III, section 2 of the Constitution limits federal courts to deciding "actual and ongoing controversies." 21st Century Telesis Joint Venture v. Fed. Communications Comm'n, 318 F.3d 192, 198 (D.C. Cir. 2003) (dismissing the petitioner's petition for review in part because its challenges were "either moot or unripe") (citing Honig v. Doe, 484 U.S. 305, 317 (1988) and McBryde v. Comm. to Review Circuit Council Conduct and Disability Orders of the Judicial Conference, 264 F.3d 52, 55 (D.C. Cir. 2001)). Furthermore, the Supreme Court has held that Article III's case-orcontroversy requirement prohibits courts from issuing advisory opinions or decisions based on hypothetical facts or abstract issues. Flast v. Cohen, 392 U.S. 83, 96 (1968).
Courts must evaluate mootness "through all stages" of the litigation in order to ensure that a live controversy remains. 21st Century, 318 F.3d at 198 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000) and Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)). As a result, "[e]ven where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if `events have so transpired that the decision will neither presently affect the parties' rights nor have a morethan-speculative chance of affecting them in the future.'" Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) and citing Am. Family Life Assurance Co. v. Fed. Communications Comm'n, 129 F.3d 625, 628 (D.C. Cir. 1997)).
A case is moot when "the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Albritton v. Kantor, 944 F. Supp. 966, 974 (D.D.C. 1996) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). An intervening factual event may render a claim moot because the change in circumstances deprives the plaintiff of a present right to be vindicated or causes him to no longer have a stake in the outcome of the litigation. Aiona v. Judiciary of Haw., 17 F.3d 1244, 1248 n. 6 (9th Cir. 1994). The intervening event will render the case moot only if the event eliminates the effect of the alleged violation and there is no reason to believe the alleged violation will recur. Honig v. Students of the Cal. Sch. for the Blind., 471 U.S. 148, 149 (1985). The burden of establishing mootness rests on the party raising the issue, and it is a heavy burden. Davis, 440 U.S. at 631; United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); Motor Equip. Mfrs. Ass'n v. Nichol, 142 F.3d 449, 458-59 (D.C. Cir. 1998).
2. The Court Denies the Defendant's Motion to Dismiss Because the Case Is Not Moot
The court must determine whether the 2004 memorandum completely and irrevocably extinguished the plaintiffs' claims. According to the defendant, the 2004 memorandum "expressly and unambiguously directed its networks to do that which plaintiffs seek: perform health care outreach service to eligible veterans and their dependents" thus rendering plaintiffs' claim moot. Def.'s Mot. to Dismiss at 11. The plaintiffs, however, insist that the 2002 memorandum effectively stopped all outreach services in violation of the VA's statutory obligations and was not revoked by the 2004 memorandum. Pls.' Mot. at 27. They also note that "[a]s a result, the moratorium on health care outreach stands today as stated VA policy." Id.
After examining the evidence, the court determines that the 2004 memorandum did not renounce the 2002 memorandum, which prohibits "marketing activities," that "actively recruit people into the system." Def.'s Mot. to Dismiss Ex.A(1). The 2004 memorandum asked the network directors to ensure compliance with § 7722(c)(1). The plaintiffs' complaint, on the other hand, alleges violations of §§ 7721, 7722, and 7727. For example, the directive in § 7721, to seek out eligible veterans and dependents, is not wholly satisfied by the provision in § 7722(c), which requires the distribution of "full information to eligible veterans and eligible dependents." 38 U.S.C. §§ 7721(a), 7722(c). Congress places many obligations on the VA and § 7722(c) is but one of the obligations designed to fulfill the purpose set out in § 7721(a). In addition, the specific prohibitions in the 2002 memorandum are not addressed in the 2004 memorandum, indicating to the court that marketing activities are still prohibited. Finally, whether the 2002 memorandum "effectively instructs the network directors to cease all outreach activities" by prohibiting marketing activities is a controversy the court must look to the merits to resolve. Pls.' Reply at 4. Accordingly, the case satisfies Article III requirements.
Moreover, even if the 2004 memorandum summarily revoked the 2002 memorandum, which it did not, this claim survives because of the voluntary cessation exception. This exception prevents a case from being "dismissed as moot if the defendant voluntarily ceases the allegedly improper behavior but is free to return to it at any time." Grant, 345 U.S. at 632. The Supreme Court has further explained, "[t]he case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation the wrong will be repeated. The burden is a heavy one." Id. at 633. The defendant presents only the 2004 memorandum and the Omnibus Appropriations Act in support of his claim. Since the 2004 memorandum alone, a voluntary action taken after the complaint was filed, does not make "it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," the court turns to the preclusive effects of the Act. United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968).
The 2004 Appropriations Act contains a provision stating, "[n]one of the funds made available may be used to implement any policy prohibiting the Directors of the Veterans Integrated Service Networks from conducting outreach or marketing to enroll new veterans within their respective networks." See P.L. 108-199, H.R. 2673 § 418 (2004). The court notes that this provision is binding only for the year in which the funds are appropriated. Thus, when the funds or the year expire, the provision itself has no effect. Therefore, the defendant has not met their heavy burden, and there exists a "reasonable expectation that the wrong will be repeated" because "a controversy remains to be settled" as to the meaning of the prohibitions in the 2002 memorandum. Grant, 345 U.S. at 632, 633. Also, ensuring that veterans receive the requisite outreach services and health care benefits constitutes a "public interest in having the legality of the practices settled, [which] militates against a mootness conclusion." Id. at 632. Accordingly, the plaintiffs' case satisfies Article III's case-or-controversy provision, and the court denies the defendant's motion to dismiss.
B. The Parties' Motions for Summary Judgment
Because of the prohibition on marketing activities, the court must determine what legal consequences, if any, this prohibition will have on the VA. The parties filed motions for summary judgment and the court now turns to the evidence presented to determine if any issue of material fact exists.
1. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
2. The Court Denies The Plaintiffs' Motion for Summary Judgment and Grants The Defendant's Cross-Motion for Summary Judgment
Under 38 U.S.C. §§ 7721, 7722, and 7727, Congress charges the Secretary of the Department of Veteran Affairs with the affirmative duty to "provide outreach services." This duty is not discretionary but must be done in accordance with Congress' wishes. The claim brought by the plaintiffs alleges that the VA is not in compliance with these statutory provisions. Compl. ¶ 1. In support of their claim, the plaintiffs reference a 2002 memorandum issued prohibiting "marketing of VA services." Def.'s Mot. to Dismiss Attach. A, Ex. 1. The plaintiffs contend that these services "encompass virtually all of the VA's previous health care outreach efforts" and "almost all of the activities identified in Defendant's `Survey of VA Outreach.'" For these reasons, the plaintiffs argue that the VA is not "seeking out eligible veterans and eligible dependents," and that this not only violates 38 U.S.C. § 7721(a), but also exceeds the Secretary's authority to determine the manner in which outreach is provided. Pls.' Mot. at 20.The plaintiffs further contend that the 2002 memorandum contravened § 7722(d), which charges the Secretary to provide aid and assistance to veterans regarding their benefits "to the maximum extent possible." The plaintiffs submit that the phrase "to the maximum extent possible" is "materially indistinguishable from the phrase `to the extent feasible,'" which the Supreme Court analyzed in Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981). In Donovan, the Supreme Court interpreted "to the extent feasible" in the Occupational Safety and Health Act to mean that the Secretary must "plac[e] the `benefit' of worker health above all other considerations save those making attainment of this `benefit' unachievable." 452 U.S. at 509. The Supreme Court added, "[a]ny standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in [the statute]." Id. The plaintiffs maintain this interpretation invalidates all decisions by the Secretary that favor a timely provision of health care over outreach services. Pls.' Reply at 7 (stating that "Congress . . . has already done the balancing of these factors and has concluded that outreach must come first").
Contrary to the plaintiffs' assertions, the defendant does not contest that the VA must provide outreach services, but rather, insists that the VA is conducting health care outreach. Pls.' Reply at 4; Def.'s Cross-mot. For. Summ. J. ("Def.'s Cross-mot.") at 25-28. The defendant maintains that the 2002 memorandum "did not instruct the networks to curtail any statutorily required outreach." Def.'s Cross-mot. for Summ. J. at 4 (citing Def.'s Mot. to Dismiss Attach. A, Exs. 1, 2). Moreover, the defendant alleges that in 2003 the VA spent $23 million on outreach services to veterans. Id. at 4-5. The defendant then goes on to explain several of the ongoing outreach activities with which the VA is engaged. These include benefit fairs and exhibits, meetings, websites, publications, and stand downs. Id. at 5-11, (citing Def.'s Crossmot. Attach. A, Exs. 3, 4). The defendant also denounces the plaintiffs' proposition that the statute should be interpreted to take away the Secretary's ability to balance the competing interests of providing timely health care and conducting outreach services. Id. at 17 (citing United States v. Granderson, 511 U.S. 39, 47 n. 5 (1994)) (instructing that a court should not apply a "plain meaning" interpretation when that interpretation would lead to an "absurd result").
a. Statutory Language, "To the Maximum Extent Possible," Is Hortatory
As noted, pursuant to 38 U.S.C. § 7722(d), "[t]he Secretary shall provide, to the maximum extent possible, aid and assistance . . . to members of the Armed Forces, veterans and eligible dependents with respect to subsections (b) and (c) and in the preparation and presentation of claims under laws administered by the Department." The court first addresses the interpretation of the statutory language, "to the maximum extent possible." 38 U.S.C. § 7722(d). The plaintiffs' reliance on the Supreme Court's interpretation of the phrase "to the extent feasible" is unpersuasive. Donovan, 452 U.S. at 490.In Donovan, the Supreme Court held health and safety concerns to "the most stringent standard . . . bounded only by technological and economic feasibility" and asserted that a feasibility standard was more appropriate than the traditional cost-benefit analysis. Id. at 503. The plaintiffs argue that the VSOP "places veterans benefits awareness above any other considerations such as cost and efficiency." Pls.'Mot. at 20. In contrast to Donovan, here, providing information about benefits above all other considerations is not consistent with VSOP. If hospitals have a continual increase in the number of enrolled veterans without a similar growth in resources, the system may become clogged. A system incapable of providing health care to all of its members would violate the statutory purpose "of ensuring that all veterans . . . are provided timely and appropriate assistance . . . in obtaining such benefits and services." Id. § 7721(a). Stated differently, under the plaintiff's interpretation, providing information about health care services would take precedence over obtaining actual health care services. Therefore, a plain language interpretation of the original statutory language does not stand as it leads to an "unreasonable [result] plainly at variance with the policy of the legislation as a whole." United States v. Am. Trucking Ass'ns, Inc., 310 U.S. 534, 543 (1940) (internal quotations omitted). Thus, the court interprets the language in alignment with the overall objective of the statute. See Am. R.R.s v. Surface Transp. Bd., 306 F.3d 1108, 1111 (D.C. Cir. 2002) (holding that language "to the maximum extent possible" does not trump other contradictory policy goals in a statute).
The defendant notes, and the plaintiffs do not dispute, that funding for VSOP outreach programs comes from the same account as general medical services. Def.'s Cross-mot. at 19. The plaintiffs do not explain why resumption of the activities outlined in the 2002 memorandum would constitute providing awareness of veterans' benefits "to the maximum extent possible." If VSOP is read to prohibit any other considerations above veterans awareness benefits, then arguably the VA would be required to spend every dollar in its budget on outreach and none on medical services.
The court is also encouraged to read this language as hortatory in light of the decision in Younger v. Turnage, which held that decisions on how to best allocate funds for specific VA projects should be left to the Secretary's discretion. 677 F. Supp. 16, 22 (D.D.C. 1988). Furthermore, because Congress appropriates a lump-sum for both outreach services and health care services, the Secretary must balance these factors frequently, and the court is not prepared to review these decisions. Lincoln v. Vigil, 508 U.S. 182, 192 (1993). Therefore, the court interprets "to the maximum extent possible" as horatory and not as a legally binding standard by which to review the Secretary's judgment. Accord Rodriguez v. West, 198 F.3d 1351, 1355 (Fed. Cir. 1999) (noting that section 7722(d) "appear[s] to be hortatory").
b. The Defendant's Evidence Is Admissible
The plaintiffs assert that the report and summary verifying the VA's outreach services are "conclusory, lack attribution of authorship, and give no indication of the source of their `data.'" Pls.' Reply at 10. They go on to state that summary judgment should not be granted to the defendant because the affidavit authenticating the reports violates Federal Rule of Civil Procedure 56(e), which requires the declaration to be "made on personal knowledge." Pls.' Reply at 11. Finally, the plaintiffs summarily conclude that "Ms. Barnes declaration, the report, and the tabular summary . . . plainly fall short of admissibility . . . [as] hearsay twice-removed." Id. The court, however, concludes otherwise.
Federal Rule of Evidence 803(8) provides an exception to the hearsay rule that includes "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies setting forth . . . the activities of the office or agency." FED. R. EVID. 803(8). Furthermore, all that is necessary to authenticate a document is testimony from a knowledgeable witness that the document is what its proponent claims it to be. FED. R. EVID. 901(1)(b). Finally, Fed.R.Evid. 803(8) does not require foundation testimony for the public records exception of the hearsay rule to apply. United States v. Doyle, 130 F.3d 523, 546 (2d. Cir. 1997).
The reports in question fall within the public records hearsay exception. The Federal Rules of Evidence state that a public record is validly authenticated when "a purported record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept." FED. R. EVID. 901(b)(7). The reports in question were sent by Secretary Principi to "address the results of VA's outreach efforts." Def.'s Cross-mot. Attach. A, Ex. 2. Another reference to these reports in the Secretary's letters states that the reports were created by "the appropriate VA offices." Id. Thus, the records in question are records of the VA setting forth the activities of the VA. Furthermore, Executive Secretary Barnes' sworn affidavit establishes that the records are from the public office where items of this nature are kept. Def.'s. Cross-mot. Attach. A (indicating that letters and reports are from Secretary Principi). Therefore, the reports are admissible evidence under Federal Rule of Evidence 803(8). Moreover, the plaintiffs present no evidence that the documents are not authentic. Accordingly, the court concludes that under the totality of the circumstances, the documents are reliable.
c. Uncontroverted Evidence Indicates the VA Is Conducting Outreach Services and Complying with its Statutory Duties
The plaintiffs contend that "[t]he `marketing activities' prohibited by the [2002 memorandum] encompass virtually all of the activities the VA undertook prior to the moratorium to provide health care outreach to veterans." Pls.' Mot. at 19. As noted by the defendant, it is unclear whether the plaintiffs are arguing that the level or type of outreach services does not rise to that required by statute, or that the VA is not conducting any outreach services. If the plaintiffs contend that the VA's outreach services do not rise to the level mandated by statute, or that the VA is conducting the wrong type of outreach, the court agrees with the Younger court, which held that "the manner in which [outreach] services are to be provided has been left to the discretion of the [VA]." Younger, 677 F. Supp. at 22. Furthermore, "[w]here the agency has implemented a program consistent with a congressional statute, a plaintiff has no cause of action to enjoin an agency where he disagrees with the manner in which the agency has chosen to proceed[.]" Id. If, however, the plaintiffs are claiming that the VA is not conducting any outreach services, the court finds the uncontroverted evidence submitted by the defendant persuasive as a matter of law. Even accepting all possible positive inferences from the plaintiffs' evidence, the court is not persuaded that the VA has a policy of not providing outreach services.
The plaintiffs allege that virtually all of the marketing activities listed in the 2002 memorandum are the same as the outreach activities conducted by the VA prior to the memorandum. Pls.' Mot. at 4; Pls.' Reply. at 3, 4. This statement is inaccurate. Notwithstanding the 2002 memorandum, the VA provides numerous outreach services and complies with 38 U.S.C. §§ 7721, 7722, and 7727. The VA reports sent by Secretary Principi to Senators Specter and Feingold, as well as the sworn affidavit by the Undersecretary for Health list ongoing outreach activities and have little or no overlap with the 2002 memorandum's list of prohibited activities. Def.'s Cross-mot. Attach. A, Exs. 3,4; Def.'s Mot. Attach. A, Ex. 1. Specifically, ongoing outreach includes activities such as "stand downs," which are community events designed specifically to enroll homeless veterans, and a program which sends brochures to dependents after identifying them on applications for a United States Flag for burial. Def.'s Cross-mot. Attach. A, Ex. 4. These ongoing activities discredit the plaintiffs' claim that the VA is in violation of § 7721(a), which charges the VA "with the affirmative duty of seeking out eligible veterans and eligible dependents" and provide them with "timely and appropriate assistance." Further information is distributed through the Veterans Assistance at Discharge System. This program ensures that all veterans released from active duty receive informational packets containing a summary of VA benefits and services and a veteran's benefits timetable, which taken with the program to distribute information to dependents, fulfills Congress' expectation that "[t]he Secretary shall distribute full information to eligible veterans and eligible dependents regarding all benefits and services to which they may be entitled." Def.'s Cross-mot. Attach. A, Ex. 4; 38 U.S.C. § 7722 (c)(1). Finally, the VA's Office of Public and Intergovernmental Affairs is in charge of "effective dissemination of information" by conducting interviews with the media and town hall meetings, publishing the VA benefits handbook and news magazine, and broadcasting a weekly "VA News" program. Def.'s Cross-mot. Attach. A, Ex. 4. These activities along with an informative website and numerous other programs demonstrate that the VA is complying with § 7727(a), (b) by helping ensure the "availability of outreach services" that "fully address the needs of eligible dependents." Because of the existence of all of these outreach activities, the defendant has not acted in a manner "not in accordance with law." 5 U.S.C. § 706(2)(A). Thus, the defendant demonstrates that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322. Accordingly, the court grants the defendant's cross-motion for summary judgment.
IV. CONCLUSION
For the foregoing reasons, the court denies the defendant's motion to dismiss and denies the plaintiffs' motion for summary judgment and grants the defendant's motion for summary judgment. An order consistent with the Memorandum Opinion is separately and contemporaneously issued this 11th day of March, 2005.