Jordan v. U.S. Dep't of Labor, Civil Action No.: 16–1868 (RC)

• Decision Date: 04 August 2017
• Docket Number: Civil Action No.: 16–1868 (RC)
• Citation: 273 F.Supp.3d 214
• Parties: Jack JORDAN, Plaintiff, v. U.S. DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — District of Columbia

273 F.Supp.3d 214

Jack JORDAN, Plaintiff,

v.U.S. DEPARTMENT OF LABOR, Defendant.

Civil Action No.: 16–1868 (RC)

United States District Court, District of Columbia.

Signed August 4, 2017

Jack Jordan, Parkville, MO, pro se.

Jason Todd Cohen, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING PLAINTIFF'S UNOPPOSED MOTION TO AMEND COMPLAINT; DENYING PLAINTIFF'S CORRECTED MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT'S CROSS–MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S FIRST MOTION FOR SANCTIONS UNDER RULE 11; DENYING PLAINTIFF'S MOTION TO COMPEL DEPOSITIONS OF TODD SMYTH AND DIANE JOHNSON; DENYING PLAINTIFF'S MOTION TO STRIKE THE SMYTH DECLARATION; DENYING PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF EVIDENCE REGARDING SMYTH DECLARATION; DENYING PLAINTIFF'S MOTION TO STRIKE PROHIBITED EX PARTE COMMUNICATION AND VACATE OCTOBER 26 MINUTE ORDER; DENYING PLAINTIFF'S SECOND MOTION FOR SANCTIONS UNDER RULE 11; DENYING PLAINTIFF'S MOTION REGARDING THE APA AS BASIS FOR DECISIONS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Jack Jordan, an attorney, sued under the Freedom of Information Act ("FOIA") seeking documents related to FOIA requests he previously submitted to the Office of Administrative Law Judges ("OALJ"), an agency within the United States Department of Labor ("DOL"). Mr. Jordan requested the first two emails in a continuous string of five emails ("DynCorp emails") related to Defense Base Act Case No. 2015–LDA–00030 ("DBA Proceedings"), a case in which Mr. Jordan is representing his wife, Maria Jordan, against DynCorp International, Inc. ("DynCorp").

Mr. Jordan sought the disclosure of any emails, dated July 30 or July 31, 2013, with the subject line "WPS—next steps & actions" that DynCorp's counsel had forwarded to Administrative Law Judge ("ALJ") Larry S. Merck. The DOL denied this request insofar as it related to unredacted copies of the first two emails, claiming that attorney—client privilege applied to portions of the DynCorp emails, and provided Mr. Jordan a redacted copy of the DynCorp emails in response to his initial FOIA request. Mr. Jordan sued to compel disclosure of all previously undisclosed versions of the DynCorp emails associated with his initial request on the grounds that the DOL had no legitimate basis for considering the DynCorp emails privileged and exempt from disclosure. Having reviewed the record and the DynCorp emails in camera, the Court agrees that one of the emails is privileged and thus exempt from disclosure, but orders the DOL to either disclose the other email or provide further justification for its continued withholding.

II. FACTUAL BACKGROUND

Over a period of seven months, Mr. Jordan filed five FOIA requests relating to the DynCorp emails in an effort to obtain all previously undisclosed versions of the DynCorp emails. See Compl. at 5, ¶¶ 10–19, ECF No. 1. Although the first request is most relevant here—and the final two requests have no relevance at all—the Court separately describes each of Mr. Jordan's five requests for the sake of completeness.

A. FOIA Request No. F2016–806591

On June 9, 2016, Mr. Jordan submitted his first FOIA request, which was for several documents related to the DynCorp emails. See Answer, Ex. 4, 14–16, ECF No. 14–1.¹ Mr. Jordan specifically requested (1) "a copy of any letter of transmittal, facsimile cover sheet or any other evidence ... identifying the person or party who forwarded to Judge Merck's office (or to the OALJ) any documentation related to ... the claim for disability compensation that was filed ... by Maria Jordan," see id. ¶ 1; (2) "a copy of any version (regardless of whether or not any information was redacted) of certain emails that were forwarded to Judge Merck's office at any time in October through December 2015" dated "July 30 or 31, 2013[,] that had substantially the following text in the subject line: 'WPS—next steps & actions,' " see id. ¶ 2; and (3) "a copy of any letter of transmittal, facsimile cover sheet or any other evidence dated at any time in October through December 2015 identifying the person or party who forwarded to Judge Merck's office (or to the OALJ) any version of the [DynCorp] emails in #2, above," see id. ¶ 3. The first paragraph in Mr. Jordan's request included a footnote clarifying that the particular request did not "apply to the underlying documentation, e.g. , any motion or opposition thereto that was served by any party to the captioned case." See id. at 15, n.1.

On June 28, 2016, the DOL partially released and partially withheld documents responsive to Request No. 806591. Def.'s Cross–Mot. Summ. J. and Opp'n Pl.'s Corrected Mot. for Summ. J. ("Def.'s Cross–Mot."), Ex. 1, Attach. C, ECF No. 20–1.² In response to Mr. Jordan's first request, Acting FOIA Coordinator Diane Johnson communicated that a "search of the Administrative File in ALJ No. 2015–LDA–00030 was conducted" and revealed a "two page letter dated November 20, 2015 from the law firm of Brown Sims addressed to District Chief Judge Lee Romero in Covington, Louisiana" and forwarded to ALJ Merck. Id. at 21. Per footnote 1 of Mr. Jordan's request, the DOL enclosed the letter but did not include "the motion itself or the attachments to the motion." Id. at 21, n.2.

In response to Mr. Jordan's second request, Ms. Johnson explained that ALJ Merck "reviewed [the DynCorp emails] in camera and determined that they contained privileged attorney—client communications." Id. at 22. Due to ALJ Merck's finding that "the unredacted versions of the requested documents [were] protected from discovery by attorney—client privilege," Ms. Johnson determined that FOIA Exemption 4, which protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential," 5 U.S.C. § 552(b)(4), applied and the unredacted emails would not be disclosed. See id. However, Ms. Johnson enclosed a 2015 letter from the law firm of Littler Mendelson, P.C. pertaining to the filings, along with redacted versions of the DynCorp emails that had been filed with ALJ Merck. See Def.'s Cross–Mot., Ex. 1, Attachs. D–E. The DynCorp email chain—which contains a total of five separate emails—contains two partially redacted emails, which are also the first two emails of the chain. Of those two emails, only the sender, recipients, date, and subject line were released. Def.'s Cross–Mot., Ex. 1, Attach. E. The chronologically first email ("the Powers email") spans roughly three pages. Def.'s Cross–Mot., Ex. 1, Attach. E. The second email ("the Huber email") spans roughly half of a page. Def.'s Cross–Mot., Ex. 1, Attach. E.

Littler Mendelson's letter stated that, per an October 2015 Order from ALJ Merck, the firm submitted unredacted copies of the DynCorp emails to ALJ Merck for in camera review. See Def.'s Cross–Mot., Ex. 1, Attach. D at 25. Littler Mendelson maintained that "the redacted portions of the at-issue email thread are privileged" and explained "the basis for asserting attorney—client privilege." Id. The DynCorp emails "concerned the status of operations issues in connection with the Worldwide Protective Services ('WPS') Program contract" and were transmitted to Christopher Bellomy, an in-house lawyer for DynCorp. Id. Littler Mendelson asserted that the DynCorp emails were transmitted to Mr. Bellomy to apprise him and other employees³ "of developments potentially impacting the contract." Id. at 26. These emails, Littler Mendelson contended, "were intended to be, and should remain, privileged among the select group of employees who received the at-issue communication." Id. at 25. The letter stated that the notation "Subject to Attorney Client Privilege" appeared within the DynCorp emails and that the DynCorp emails requested legal advice related to the developments discussed therein. See id. at 25–26. The DOL redacted "all text from the body of the initial two [e]mails," because, according to Defendant, these two emails were privileged in their entirety. Compl. ¶¶ 2, 11. Littler Mendelson's letter also satisfied Mr. Jordan's third request.⁴ See Def.'s Cross–Mot., Ex. 1, Attach. C at 22.

B. FOIA Request No. F2016–819736

On July 5, 2016,⁵ Mr. Jordan submitted "additional requests" related to the FOIA request described above. Def.'s Cross–Mot., Ex. 1, Attach. F at 34, ECF No. 20–1. The DOL labeled this supplemental request FOIA Request No. F2016–819736 ("Request No. 819736"). Def.'s Cross–Mot., Ex. 2, Attach. HH at 29, ECF No. 20–2.⁶ In Request No. 819736, Mr. Jordan sought (1) "a copy of any documentation in the OALJ's records evidencing or relating to any action of, or basis in fact or law for, placing under seal the unredacted versions of the [DynCorp] emails" and (2) "a copy of any documentation submitted to the OALJ ... to oppose the release of any documentation covered by my requests in [Request No. 806591]." Def.'s Cross–Mot., Ex. 1, Attach F at 35, ¶¶ 1–2.

The DOL mistakenly considered this request duplicative of FOIA Request No. F2016–808886—which Mr. Jordan submitted a few hours later and is described below—and thus did not assign this request at the time. Def.'s Cross–Mot., Ex. 2, Declaration of Ramona Branch Oliver ("Oliver Decl.") at 3–5, ¶¶ 7–9, ECF No. 20–2. As a result, the DOL failed to respond within 20 business days as statutorily required. 5 U.S.C. § 552(a)(6)(A)(i). On November 21, 2016, in response to an inquiry⁷ about Request No. 819736, the Office of Information Services ("OIS") "initiated a search for the request within the foiarequest@dol.gov mailbox." Oliver Decl. ¶ 10; Def.'s Cross–Mot., Ex. 2, Attach. AA. OIS continued its search from "around November 22[, 2016] through December 1, 2016." Id. ¶ 12; Def.'s Cross–Mot., Ex. 2, Attach. CC. The DOL contended in its Answer, filed November 28, 2016, that Request No. 819736 "could [not] be located after a reasonable search of the FOIA request email inbox, the OALJ records, and the FOIA...