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

• Decision Date: 01 July 2019
• Docket Number: Civil Action No.: 16-CV-1868 (RC)
• Parties: JACK JORDAN, Plaintiff, v. U.S. DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — District of Columbia

JACK JORDAN, Plaintiff, v. U.S. DEPARTMENT OF LABOR, Defendant.

Civil Action No.: 16-CV-1868 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 1, 2019

Re Document No.: 67

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT

I. INTRODUCTION

This Freedom of Information Act ("FOIA") matter comes before the Court on Plaintiff Jack Jordan's ("Mr. Jordan's") motion for relief from judgment. Mr. Jordan previously submitted FOIA requests with the United States Department of Labor's ("DOL's") Office of Administrative Law Judges, seeking unredacted versions of two emails related to a lawsuit in which Mr. Jordan represented his wife, Maria Jordan, against DynCorp International, Inc. ("DynCorp"). In a prior opinion, this Court granted summary judgment to DOL in part, upholding DOL's withholding of one email (the "Powers email") as protected by the attorney client privilege but ordering the production of the second email (the "Huber email") to Mr. Jordan. Mr. Jordan now seeks relief from the Court's grant of summary judgment regarding the Powers email pursuant to Federal Rule of Civil Procedure 60. Because Mr. Jordan fails to meet the standards set forth in Rule 60, the Court denies the motion.

II. FACTUAL BACKGROUND

The Court presumes familiarity with its prior opinions, see Jordan v. U.S. Dep't of Labor ("Jordan I"), 273 F. Supp. 3d 214 (D.D.C. 2017); Jordan v. U.S. Dep't of Labor ("Jordan II"), 308 F. Supp. 3d 24 (D.D.C. 2018), and only briefly summarizes the facts relevant to the present motion.

Mr. Jordan, an attorney, represented his wife in a 2016 Defense Base Act case against DynCorp before DOL. Jordan I, 273 F. Supp. 3d at 219. Mr. Jordan submitted a number of FOIA requests to DOL regarding the case, seeking, inter alia, the disclosure of emails forwarded to a DOL Administrative Law Judge by DynCorp. See id. at 219-20. In response, DOL disclosed redacted versions of the Huber and Powers emails but refused to produce unredacted versions, which it contended were protected by the attorney-client privilege. See id. at 220-21. Mr. Jordan commenced litigation in this Court in September 2016, seeking "[i]njunctive relief ordering the DOL to disclose to [Mr. Jordan] all previously undisclosed versions of the [DynCorp] [e]mails." Compl. at 10-11, ECF No. 1; Pl.'s Unopposed Mot. Leave Amend. Compl., ECF No. 19. Both Mr. Jordan and the DOL moved for summary judgment on the issue of whether the Powers and Huber emails were protected by the attorney-client privilege. See Jordan I, 273 F. Supp. 3d at 224.

After conducting an in camera inspection of the two emails, this Court granted summary judgment in part to DOL, determining that the Powers email was privileged and properly withheld, but that DOL had not sufficiently justified the basis for withholding the Huber email. Id. at 227. The Court noted that the Powers email, unlike the Huber email, was labelled "subject to attorney-client privilege" and contained an explicit request for legal advice. Id. And it found that DOL had released all reasonably segregable portions of the Powers email. Id. at 235. In alater opinion denying the DOL's renewed motion for summary judgment, the Court found that the Huber email was not covered by attorney-client privilege and ordered the disclosure of that document. Jordan II, 308 F. Supp. 3d at 44. The Court also denied Mr. Jordan's motion for reconsideration of its determination that the Powers email was protected by the attorney-client privilege. See id. at 38-39.

Mr. Jordan then appealed this Court's holding regarding the Powers email to the D.C. Circuit. Pl.'s Notice of Appeal, ECF No. 62. The D.C. Circuit summarily affirmed, holding that this Court "did not err" in concluding that the Powers email was exempt from disclosure. Jordan v. U.S. Dep't of Labor ("Jordan III"), No. 18-5128, 2018 WL 5819393 at *1 (D.C. Cir. Oct. 19, 2018). Moreover, the Circuit held that "[t]o the extent [Mr. Jordan] s[ought] disclosure of the parts of the Powers email that read 'attorney-client privilege' and seek an explicit request for legal advice, the district court did not err in declining to require disclosure of such disjointed words." Id. at *2.

Mr. Jordan has now filed a motion for relief from judgment, asking this Court to set aside its prior ruling and to hold that the Powers email is not protected by attorney-client privilege. Pl.'s Mot. Relief J. 10, ECF No. 67.

III. LEGAL STANDARDS

"Rule 60(b) provides a mechanism for relief from a judgment or order by permitting the court to relieve a party or its legal representative from a final judgment, order, or proceeding[.]" Oladokun v. Corr. Treatment Facility, 309 F.R.D. 94, 97 (D.D.C. 2015). The burden falls to the party seeking relief to "[show] that he or she is entitled to relief." Id.; see also Green v. AFL-CIO, 287 F.R.D. 107, 109 (D.D.C. 2012). The final decision to grant or deny a Rule 60(b) motion is "committed to the discretion of the District Court," United Mine Workers 1974Pension v. Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993), which "balance[s] the interest in justice with the interest in protecting the finality of judgments," Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004). The movant "must provide the district court with reason to believe that vacating the judgment will not be an empty exercise or a futile gesture." Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995).

IV. ANALYSIS

Mr. Jordan asserts that relief from the Court's judgment is warranted under Rules 60(a), 60(b)(2), 60(b)(3), 60(d)(3), 60(b)(4), 60(b)(5), and 60(b)(6). This Court reviews in turn Mr. Jordan's arguments as to Rules 60(a) and 60(b)(1); Rule 60(b)(2); Rules 60(b)(3) and 60(d)(3); Rule 60(b)(4); Rule 60(b)(5); and Rule 60(b)(6). Because it concludes that Mr. Jordan's contentions are without merit, the Court denies the motion.

A. Mr. Jordan Is Not Entitled to Relief Under Rule 60(a) or Rule 60(b)(1)

Mr. Jordan asserts that relief is warranted under Rule 60(a) because this Court mistakenly found the Powers email to contain an express request for legal advice. Pl.'s Mot. Relief 29. He argues that the Court's finding was "contrary to all potentially relevant evidence," because "no evidence even indicated that Powers email was sent to obtain any legal advice or services, and copious evidence indicated that it was not sent to any recipient for any such purpose." Pl.'s Mot. Relief 20. Mr. Jordan further contends that the Court is mistaken about the holding of the D.C. Circuit, which he believes explained that this Court incorrectly found the Powers email to be privileged. Id. The Court first briefly reviews why relief under Rule 60(a) is unwarranted, and then addresses whether Jordan's arguments warrant relief under Rule 60(b)(1). The Court finds that they do not.

Rule 60(a) allows a court to correct a "clerical mistake or a mistake arising from oversight or omission." Fed. R. Civ. P 60(a). This rule is narrowly construed and may not be invoked to "change the substance or order of a judgment." Fanning v. George Jones Excavating, L.L.C., 312 F.R.D. 238, 239 (D.D.C. 2015). It only applies when "the record indicates that the court intended to do one thing, but by virtue of a clerical mistake or oversight, did another." Id. (quoting 12 Moore's Federal Practice § 60.11(1)(a) (3d. ed. 2015)). Unless something in the record suggests that the court "intended to enter the parties' proposed judgment but accidently forgot to do so," the substance of a court order or judgment will be considered a "conscious decision." Id. Here, Mr. Jordan has failed to present any evidence to suggest that this Court made a clerical error, oversight, or omission. His contention that this Court's holding was in error, even if true, would be an error of "substance, not expression," putting it outside the scope of Rule 60(a). Fanning, 312 F.R.D. at 239. Because Rule 60(a) motions are only proper to correct clerical errors, and Mr. Jordan points to none, the Court denies the motion for relief from judgment on that ground.

However, Mr. Jordan's assertions would have been properly raised under Rule 60(b)(1), so this Court will address them as such. Rule 60(b)(1) motions permit the court to grant relief from a final judgment upon a finding of mistake, inadvertence, surprise, or excusable neglect. Federal courts are split over whether parties may use Rule 60(b) motions to address alleged mistakes of legal reasoning, and the D.C. Circuit "allows Rule 60(b) motions to challenge legal errors only in the most extreme situations: namely, when the district court based its legal reasoning on case law that it had failed to realize had been overturned." Ward v. Kennard, 200 F.R.D. 137, 139 (D.D.C. 2001) (citing D.C. Fed'n of Civic Ass'ns v. Volpe, 520 F.2d 451, 451-53 (D.C. Cir. 1975)); see also Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 811 F.Supp. 2d 216, 227 (D.D.C. 2011) (noting that district courts are only permitted to "provide relief upon reconsideration of a final judgment in circumstances where there has been a change in the controlling law since the issuance of the final judgment").

Mr. Jordan's motion fares no better under Rule 60(b)(1) because his arguments rest on an inaccurate reading of the order issued by the D.C. Circuit. See Jordan III, 2018 WL 5819393 at *1. Mr. Jordan asserts that the Circuit "conclusively established" that the Powers email did not contain any explicit request for legal advice, but rather that "any purported 'explicit request for legal advice' amounted (at most) to 'disjointed words that have 'minimal or no information content.'" Pl.'s Mot. Relief 10 (quoting Jordan III, 2018 WL 5819393 at *1).

This is not what the Circuit held. The Circuit made clear that "[t]o the extent [Mr. Jordan] seeks disclosure of the parts of the Powers email that read 'attorney client privilege' and seek an explicit request for legal advice, the district court did not err in...