Jordan v. U.S. Dep't of Justice
| Decision Date | 03 September 2021 |
| Docket Number | Civil Action 17-2702 (RC) |
| Parties | JACK JORDAN, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
In this case arising under the Freedom of Information Act (“FOIA”), 5 U.S.C § 552, Plaintiff Jack Jordan seeks documents from the Department of Justice. In a recently concluded FOIA action against the U.S. Department of Labor (“DOL”), Jordan sought the release of emails sent by DynCorp International employees Darin Powers and Robert Huber. See Jordan v. U.S. Dep't of Lab., 273 F.Supp.3d 214, 220-21 (D.D.C. 2017). He wanted the emails because they related to an administrative proceeding before a DOL Administrative Law Judge in which he was representing his wife (a DynCorp employee) who suffered an on-the-job injury. See id. at 21920. After Jordan submitted a FOIA request for the emails, the DOL withheld them under FOIA Exemption 4. Id. at 226. Jordan filed suit, and, after in camera inspection, this Court affirmed the DOL's withholding of the Powers email but concluded that the Huber email was not protected by any exemption and ordered the agency to release it. See id. at 232; Jordan v. U.S. Dep't of Lab., 308 F.Supp.3d 24, 43-44 (D.D.C. 2018). On appeal, the D.C. Circuit summarily affirmed this Court's ruling. Jordan v. U.S. Dep't of Lab., No. 18-5128, 2018 WL 5819393, at *1 (D.C. Cir. Oct. 19, 2018) (per curiam).
Jordan subsequently submitted a request to the U.S. Department of Justice (“DOJ”) for a copy of “any record . . . that establishes the amount of time expended” defending the DOL against his prior FOIA action or regarding Jordan himself. Compl. ¶ 5, ECF No. 1. Jordan further requested records pertaining to himself, the undersigned judge, or the DOL records at issue in his prior litigation that were “created by or received by” attorneys at the United States Attorney's Office for the District of Columbia. Id. Specifically, Jordan's request pertained to then-U.S. Attorney Jessie Liu, former Acting U.S. Attorney Channing D. Phillips, the Chief of the Civil Division, and the Assistant U.S. Attorney who handled his prior FOIA litigation. Id. Jordan brought the instant action alleging that the DOJ had unlawfully withheld records under FOIA. Id. The DOJ's Executive Office for United States Attorneys (“EOUSA”) ultimately processed Jordan's request and released the requested records but withheld some under FOIA Exemptions 4, 5, and 6. See Hudgins Decl. ¶ 15, ECF No. 71-3; Vaughn Index, ECF No. 72. The withholdings are documented in the DOJ's Vaughn index. See Vaughn Index. The index is accompanied by an affidavit signed by EOUSA attorney Natasha Hudgins. See Hudgins Decl.
Both the DOJ and Jordan move for summary judgment. See Mem. Supp. Def.'s Mot. Summ. J. (“Def.'s Mot. Summ. J.”), ECF No. 71-2; Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. and Supp. Pl.'s Mot. Partial Summ. J. (“Pl.'s Mot. Summ. J.”), ECF No. 82-1. Jordan also moves for reconsideration, Pl.'s Mot. Reconsider, ECF No. 74; Pl.'s Mot. Reconsider, ECF No. 81, [1] sanctions, Pl.'s Mot. Sanctions, ECF No. 75, [2] clarification, Pl.'s Mot. Clarification, ECF No. 80, [3] and to strike four of the DOJ's filings, Pl.'s Mot. Strike, ECF No. 90. He submits a demand for evidence too. See Pl.'s Demand Evid., ECF No. 78.[4] Lastly, the DOJ seeks to amend its answer. See Def.'s Mot. Amend Answer, ECF No. 89.
Jordan moves to strike the DOJ's Vaughn index, the DOJ's combined reply in support of its summary judgment motion and opposition to Jordan's motions for summary judgment and sanctions, the DOJ's response to Jordan's statement of facts, and the DOJ's motion to amend its answer to the complaint. See Pl.'s Mot. Strike at 1; see also Vaughn Index; Def.'s Reply Supp. Def.'s Mot. Summ. J. and Opp'n Pl.'s Cross-Mot. Summ. J. and Mot. Sanctions, ECF Nos. 86, 87; Def.'s Resp. Pl.'s Statement of Undisputed Material Facts, ECF No. 88; Def.'s Mot. Amend Answer.
Jordan first asserts that the DOJ submitted three of the filings late and improperly had a court employee enter them on the docket. See Pl.'s Mot. Strike at 3-4, 9-13. But his claim that the DOJ did not comply with this Court's orders and local rules regarding the submission of electronic filings fails upon examination. On March 1, 2021, when DOJ counsel attempted to file the documents, the Court's ECF system was undergoing maintenance. See Def.'s Combined Reply Supp. Mot. Amend. Answer and Opp'n Pl.'s Mot. Strike at 4, ECF No. 93. As a result, counsel was unable to log in and submit the filings. Id. DOJ counsel subsequently emailed the filings to the Clerk of Court's office and copied Jordan. Id. Local Civil Rule 5.4(g)(4) permits a “filer encountering technical problems with a CM/ECF filing” to submit their filings to the Clerk's Office. As the Court articulated in its last encounter with Jordan, “the decision to grant or deny a motion to strike is vested in the trial judge's sound discretion.” Jordan, 273 F.Supp.3d at 228 n.17 (quoting Canady v. Erbe Elektromedizin GmbH, 307 F.Supp.2d 2, 7 (D.D.C. 2004)). The Court rejects Jordan's theory for striking three of the DOJ's filings.
Jordan also moves to strike the DOJ's Vaughn index because it is unsigned and appears as a separate ECF entry from the DOJ's summary judgment motion. See Pl.'s Mot. Strike at 1-2, 11. To be sure, attorneys must sign filings, motions, and other papers that they submit to a court. See Fed.R.Civ.P. 11(a). But although the DOJ's Vaughn index is unsigned, the agency submitted its index at the same time as its motion for summary judgment and the accompanying Hudgins declaration. The DOJ's motion relies on the Vaughn index to justify the withholdings, see Def.'s Mot. Summ. J. at 2, 9, 13-15, while the declaration “consists of . . . information supporting the Vaughn Index, ” see Hudgins Decl. ¶ 4, and even purports to “incorporate[]” the “attached” index, id. ¶¶ 17, 21. Counsel for the DOJ signed the summary judgment motion, see Def.'s Mot. Summ. J. at 15, so he complied in substance with the rule that attorneys sign their filings. Even though agencies typically file Vaughn indices as attachments or exhibits to a motion, penalizing the DOJ for submitting its index as a separate ECF entry would elevate form over substance to an absurd degree. The Court will not throw out the DOJ's Vaughn index just because it happened to be in a different ECF entry from the motion and declaration it was clearly associated with.[5]
The DOJ moves to amend its answer to include the affirmative defense of collateral estoppel. See Def.'s Mot. Amend Answer at 1. Specifically, it claims that Jordan is collaterally estopped from relitigating issues resolved in his prior FOIA action against the DOL. See id.; see also Def.'s Mot. Summ. J. at 7-8.
Rule 15(a) governs the amendment of pleadings. It states that “[t]he court should freely give leave” for a party to amend its pleading “when justice so requires.” Fed.R.Civ.P. 15(a)(2). A court has discretion to grant or deny leave to amend a pleading. See Foman v. Davis, 371 U.S. 178, 182 (1962). But unless there is a good reason for denying leave-such as undue delay or prejudice to the opposing party-“the leave sought should, as the rules require, be ‘freely given.'” Id.; see also Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999).
Here, permitting the DOJ's proposed amendment would promote the purpose of pleading under the Federal Rules of Civil Procedure, which is “to facilitate a proper decision on the merits, ” not to set the stage for “a game of skill in which one misstep by counsel may be decisive to the outcome.” See Foman, 371 U.S. at 181-82 (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)). Jordan seeks to avoid adjudication of the collateral estoppel issue by technicality, as evidenced by his focus on the DOJ's delay in seeking leave to amend. See Pl.'s Opp'n Def.'s Mot. Amend Answer at 22-24, ECF No. 91. But “Rule 15 allows for amendment ‘whereby a party who harmlessly failed to plead an affirmative defense may find satisfaction' rather than allowing the party to lose because of a minor technical mistake made in its original pleading.” Morgan v. FAA, 262 F.R.D. 5, 8 (D.D.C. 2009) (quoting Harris v. Sec'y, U.S. Dep't of Veterans Affs., 126 F.3d 339, 343 (D.C. Cir. 1997)). Granting the DOJ leave to amend will not cause undue delay or prejudice to Jordan, as he has already opposed the substance of the agency's affirmative defense in responding to its summary judgment motion. See Pl.'s Mot. Summ. J. at 26-34. The DOJ's motion for leave to amend is granted.
FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to ensure an informed citizenry vital to the functioning of a democratic society.'” FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)); see also Jud. Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017) ...
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