Jordan v. U.S. Dep't of Justice

• Decision Date: 08 June 2018
• Docket Number: Civil Action No.: 17–2702 (RC)
• Citation: 315 F.Supp.3d 584
• Parties: Jack JORDAN, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

315 F.Supp.3d 584

Jack JORDAN, Plaintiff,

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

Civil Action No.: 17–2702 (RC)

United States District Court, District of Columbia.

Signed June 8, 2018

Jack Jordan, Parkville, MO, pro se.

Benton Gregory Peterson, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

DENYING PLAINTIFF'S MOTION TO DISQUALIFY; GRANTING DEFENDANT'S MOTION FOR EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT; AND DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR PROTECTIVE ORDER

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Plaintiff Jack Jordan filed this action seeking records from Defendant U.S. Department of Justice ("DOJ") related to Jordan v. U.S. Dep't of Labor , 16–cv–1868 (D.D.C.), an earlier FOIA action filed by Mr. Jordan that was also before this Court. Specifically, Mr. Jordan requests (1) any records describing the DOJ's expenditure of resources in connection with that action and (2) any records pertaining "directly or indirectly" to that action, to Mr. Jordan, or to this judge. Now before the Court are three motions: Mr. Jordan's motion to disqualify this judge, the DOJ's motion for an extension of time to respond to the complaint, and the DOJ's motion for a protective order barring discovery in this case. For the reasons explained below, this Court grants the DOJ's motion for an extension of time, but denies Mr. Jordan's motion to disqualify and the DOJ's motion for a protective order.

II. FACTUAL BACKGROUND

This Court presumes familiarity with its prior Opinions in Mr. Jordan's related litigation in Jordan v. U.S. Dep't of Labor , 16–cv–1868 (D.D.C.) ("2016 Action"), which commenced on September 19, 2016. See generally Jordan v. U.S. Dep't of Labor , No. 16-1868, 308 F.Supp.3d 24, 2018 WL 1567584 (D.D.C. Mar. 30, 2018); Jordan v. U.S. Dep't of Labor , 273 F.Supp.3d 214 (D.D.C. 2017). In that action, Mr. Jordan sought to compel the U.S. Department of Labor to disclose the unredacted versions of two emails that related to a Defense Base Act case involving Mr. Jordan's wife and DynCorp International, Inc. See Jordan , 308 F.Supp.3d at 28–29, 2018 WL 1567584, at *1 ; Jordan , 273 F.Supp.3d at 219–20. In resolving the 2016 Action, this Court requested and received the disputed emails for in camera inspection to determine whether they were protected by any FOIA exemptions. See Jordan , 308 F.Supp.3d at 29–30, 2018 WL 1567584, at *2 ; Jordan , 273 F.Supp.3d at 227. The Court concluded that one of the two emails was protected by a FOIA exemption; however, the Court ordered the Department of Labor to release the other email.¹ See Jordan , 308 F.Supp.3d at 29–30, 2018 WL 1567584, at *2 ; Jordan , 273 F.Supp.3d at 232.

While that matter was pending, Mr. Jordan commenced the present action in December 2017. Here, Mr. Jordan seeks records related to the 2016 Action, including any accounting of the time expended by specified attorneys working on that matter and any records pertaining "directly or indirectly" to that matter, to Mr. Jordan, or to this judge. See Compl. ¶¶ 5–9, ECF No. 1. Mr. Jordan believes that such records may uncover "multiple federal crimes." See id. ¶ 1.

The DOJ requested a thirty-day extension of time to file its response to Mr. Jordan's complaint. See Def.'s Mot. for Extension of Time to Answer ("Def.'s Mot. for Extension") at 1, ECF No. 6. This Court did not rule on the motion for an extension, but the DOJ submitted its answer within thirty days after the initial filing deadline. See Def.'s Answer ("Answer") at 1, ECF No. 18.

In that window of time, Mr. Jordan filed a motion to disqualify this judge under the recusal statutes 28 U.S.C. §§ 144 and 455(a) – (b). See generally Pl.'s Mot. to Disqualify ("Mot. to Disqualify"), ECF No. 9. Mr. Jordan argues that this judge should be disqualified because of purported bias or prejudice toward Mr. Jordan based on the 2016 Action—alleged preconceptions that would render this judge unable to fairly decide the present action. Id. Mr. Jordan repeats many of the allegations that he lodged in a rejected recusal motion submitted in the prior action. See Jordan , 308 F.Supp.3d at 31–35, 2018 WL 1567584, at *3–6 ; compare Mot. to Disqualify at 1, 14, 20, 22, 28, 30–31, 33–34, 36, 40, and Pl.'s Suppl. to Mot. to Disqualify ("Pl.'s 1st Suppl.") at 1–7, ECF No. 20, and Pl.'s 2d Suppl. to Mot. to Disqualify ("Pl.'s 2d Suppl.") at 3–13, ECF No. 21, with Jordan , 308 F.Supp.3d at 32–33, 2018 WL 1567584, at *4, and Pl.'s Mot. to Disqualify at 1–45, No. 16–cv–1868, ECF No. 55.

Also in that window of time, the DOJ filed a motion for a protective order barring all discovery in this FOIA action. See generally Def.'s Mem. Supp. Mot. for Protective Order ("Def.'s Mem."), ECF No. 14. According to the DOJ, Mr. Jordan "appears to have included Requests for Interrogatories and Document Production" along with the mailing of a copy of his Motion to Disqualify Judge Contreras. See Mot. to Disqualify at 33–34; Def.'s Mem. at 1. However, neither the DOJ nor Mr. Jordan appended any such request to any filing presently before this Court. See generally Def.'s Mem. Observing that discovery is generally limited in FOIA actions, the DOJ contends that no discovery should be permitted in the present action until the DOJ files any dispositive motions. See Def.'s Mem. at 4; Def.'s Reply Supp. Def.'s Mem. ("Def.'s Reply") at 1, ECF No. 19. All three motions are now ripe for decision.

III. ANALYSIS

Before this Court are three different motions. Mr. Jordan filed a "Motion to Disqualify Judge Contreras" (ECF No. 9), arguing that this judge should be disqualified for holding purported bias or prejudice toward Mr. Jordan. The DOJ filed a "Motion for Extension of Time to Answer or Otherwise Respond to Complaint" (ECF No. 6) to extend its deadline to respond to Mr. Jordan's complaint. The DOJ also filed a "Motion for Protective Order" (ECF No. 14) to bar discovery in this action. For the following reasons, this Court denies Mr. Jordan's motion to disqualify, grants the DOJ's motion for an extension of time to answer or otherwise respond to the complaint, and denies without prejudice the DOJ's motion for a protective order.

A. Plaintiff's Motion to Disqualify

Mr. Jordan requests that this judge recuse himself from the present case on grounds such as bias, partiality, threatening behavior, and criminal conduct. This Court denies Mr. Jordan's motion because it finds no basis for recusal.

"[F]ederal judges must maintain the appearance of impartiality" because "[d]eference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges." United States v. Microsoft Corp. , 253 F.3d 34, 115 (D.C. Cir. 2001) (quoting Code of Conduct Canon 1 cmt.). Accordingly, the United States Constitution, federal statutory law, and codes of judicial conduct each prescribe recusal standards under which a judge may—or, under limited circumstances, must—remove himself from a case to protect the integrity of the proceedings. See Caperton v. A.T. Massey Coal Co. , 556 U.S. 868, 876–77, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) ; Microsoft Corp. , 253 F.3d at 113–15. The Supreme Court has explained that due process requires recusal "when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ "

Rippo v. Baker , ––– U.S. ––––, 137 S.Ct. 905, 907, 197 L.Ed.2d 167 (2017) (quoting Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ).² Thus, "[t]he Court asks not whether a judge harbors an actual, subjective bias, but instead whether ... the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ " Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) (quoting Caperton , 556 U.S. at 881, 129 S.Ct. 2252 ). Under this framework, the Supreme Court has recognized only very few circumstances in which the appearance of bias mandates recusal. See, e.g., Caperton , 556 U.S. at 872, 129 S.Ct. 2252 (holding that due process required recusal where a party was a substantial donor to judge's election campaign); Mayberry v. Pennsylvania , 400 U.S. 455, 466, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (holding that it may violate due process when a judge presides over a criminal contempt case that resulted from the defendant's hostility toward the judge); Tumey v. Ohio , 273 U.S. 510, 523–24, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (holding that a judge may not preside over a case in which he has a "direct, personal, substantial, pecuniary interest"). However, "most questions concerning a judge's qualifications to hear a case are not constitutional ones." Bracy v. Gramley , 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997).

Recusal of federal district court judges is more often discussed by reference to 28 U.S.C. §§ 144 and 455.³ See, e.g., SEC v. Loving Spirit Found., Inc. , 392 F.3d 486, 492–93 (D.C. Cir. 2004). Section 144 provides that "[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein." 28 U.S.C. § 144. But "the mere fact that a party has filed a [ Section] 144 motion, accompanied by the requisite affidavit ... does not automatically result in the challenged judge's disqualification." Strange v. Islamic Republic of Iran , 46 F.Supp.3d 78, 81 (D.D.C. 2014) (quoting Robertson v. Cartinhour , 691 F.Supp.2d 65, 77 (D.D.C. 2010) ); see also United States v. Miller , 355 F.Supp.2d 404, 405 (D.D.C. 2005) ("[D]isqualification is not automatic upon submission of affidavit and certificate ...."). Rather, "the judge must review [the affidavit] for...