United States District Court, N.D. New York
LAWRENCE E. KALM, District Judge.
These consolidated actions concern the Department of Veteran Affairs' ("VA") obligation to obey an order of the Onondaga County, New York, Family Court ("Family Court") to produce an employee to testify in a child-custody proceeding. Now before the Court are Petitioner-Plaintiff Shaun Portaleos's ("Plaintiff") Motion for attorney's fees and Motion to compel testimony. 12-CV-1359 Dkt. No. 31 ("Second Fees Motion"); 12-CV-1652 Dkt. No. 19 ("Motion to Compel"). For the following reasons, Plaintiff's Second Fees Motion is denied without prejudice and his Motion to Compel is denied as moot.
The Court presumes the parties' familiarity with the facts and history of this action, and recites only those facts pertinent to the pending Motions. For a full discussion of the facts and history of this case, reference is made to the Court's Memorandum-Decision and Order of August 19, 2013. 12-CV-1359 Dkt. No. 24; 12-CV-1652 Dkt. No. 17 ("Order").
Plaintiff is a military veteran who receives VA benefits and medical care at the VA's Medical Center in Syracuse, New York ("SVAMC"), for service-connected Posttraumatic stress disorder, anxiety, depression, and an injured back. Order at 2. Plaintiff and Gina Shannon ("Shannon") are the parents of R.M., a child born in August 2011. Id . In February 2012, Plaintiff petitioned the Family Court for custody of R.M. Id . Shannon cross-petitioned for custody, asserting that Plaintiff's psychiatric diagnoses, medications, and other factors made Plaintiff incapable of caring for R.M. properly. Id.
On or about June 29, 2012, Plaintiff's attorney issued a subpoena for Dr. Adekola Alao ("Alao"), Plaintiff's treating psychiatrist at the SVAMC, to appear and testify in the custody action. Id . Asserting that testimony of a VA employee can be authorized only in certain limited circumstances and is not subject to subpoena or court order, the VA's Regional Counsel declined to comply with Plaintiff's subpoena and invited Plaintiff to request Alao's testimony under pertinent regulations. Id . Plaintiff's attorney promptly made such a request, which the VA's Regional Counsel denied. Id. at 2-3.
On July 20, 2012, Family Court Judge Michael L. Hanuszczack ordered the VA to show cause why an order compelling Alao to appear and testify should not issue. Id. at 3. The VA's Regional Counsel reconsidered Plaintiff's request for Alao's testimony and again declined to produce him. Id . On August 31, 2012, Judge Hanuszczack granted Plaintiff's motion to compel Alao to testify and ordered Plaintiff's attorney to submit a subpoena to that effect. Id . The VA thereupon removed the case, Case No. 12-CV-1359 ("Custody Action"), pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446, seeking vacatur of the order to compel. Id . Plaintiff replied with a renewed Motion to compel. Order at 3.
Plaintiff also commenced an action, Case No. 12-CV-1652 ("APA Action"), asserting various claims against the VA and Joseph Moreno ("Moreno") and Georgette Gonzales-Snyder ("Gonzales-Snyder") of the VA's Regional Counsel in their official and individual capacities for refusing to produce Alao for testimony. Id . On a stipulation of the parties, the Court dismissed Moreno and Gonzales-Snyder as defendants and dismissed all of Plaintiff's claims against the VA except for a claim under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Order at 3. To resolve the question of whether Alao must testify in Plaintiff's custody proceeding, the Court consolidated the APA Action with the Custody Action on November 26, 2012, designating the removed Custody Action, Case Number 12-CV-1359, as the lead case in which all further filings should be made. 12-CV-1359 Dkt. No. 21.
On August 19, 2013, the Court granted the VA's requested relief in the removed Custody Action and remanded the case to Family Court. Order at 11. The Court also granted Plaintiff's Motion for summary judgment in the APA Action and remanded Plaintiff's request for testimony to the VA for reconsideration. Id.
On September 5, 2013, Plaintiff filed a Motion for attorney's fees pursuant to 42 U.S.C. § 1988. 12-CV-1359 Dkt. No. 26 ("First Fees Motion"). The VA responded on September 30, 2013, asserting that Plaintiff could not claim fees under § 1988. Dkt. No. 27 at 2-3. The VA further asserted that although Plaintiff might be able to seek fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), such a motion could not be made until October 19, 2013. Id. at 3-4. Plaintiff replied by withdrawing his First Fees Motion. Dkt. Nos. 28; 29.
Meanwhile, after reconsidering Plaintiff's request for testimony on remand from the Court, the VA again decided not to allow Alao to testify. Mot. to Compel ¶ 3. Plaintiff responded by filing a renewed Motion to Compel testimony on November 7, 2013. Id . While that Motion was still pending, the parties to the remanded Custody Action reached a settlement, and a stipulated custody order was entered in Family Court on January 24, 2014. Second Fees Mot. at 2.
Plaintiff filed his Second Fees Motion on February 18, 2014, seeking fees for "the Federal aspect of this case" pursuant to 28 U.S.C. § 2412(d). Second Fees Mot. The VA filed a Response in opposition ...