United States District Court, District of Columbia
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
RUDOLPH CONTRERAS United States District Judge.
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").
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
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.
FOIA Request No. F2016-806591
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. 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: 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.
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. 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.
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.
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
employees "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. See Def's
Cross-Mot., Ex. 1, Attach. C at 22.
FOIA Request No. F2016-819736
5, 2016,  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.
F2016-81973 6 ("Request No. 819736"). Def's
Cross-Mot., Ex. 2, Attach. HH at 29, ECF No.
20-2. 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 Fat 35,
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 inquiry about Request No.
819736, the Office of Information Services ("OIS")
"initiated a search for the request within the
firstname.lastname@example.org 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 Appeals
records." Answer ¶ 12, ECF No. 14. OIS finally
located Request No. 819736 on December 2, 2016. Oliver Decl.
assigned the request for processing on December 8, 2016.
See Def's Cross-Mot., Ex. 2, Attach. FF at 25,
ECF No. 20-2. In response to Mr. Jordan's request seeking
documentation relating to placing the DynCorp emails under
seal, OALJ provided orders from ALJ Merck dated February 9,
2016,  and January 27, 2016. See
Def.'s Cross-Mot, Ex. 2, Attach. HH. at 29. In response
to Mr. Jordan's request seeking documents opposing
Request No. 806591, "OALJ received no document in
response to [Request No. 806591] opposing a release under
FOIA." See Id. However, OALJ provided Mr.
Jordan a copy of the Littler Mendelson letter in case Mr.
Jordan's request "implicate[d] a general preexisting
opposition to release of documents within the record before
[ALJ] Merck in [the] [DBA Proceedings]." Id. at
FOIA Request No. F2016-808886
2016, Mr. Jordan submitted "additional requests and
analysis" related to Request No. 806591. Def.'s
Cross-Mot., Ex. 1, Attach. G at 38, ECF No. 20-1. The DOL
labeled this supplemental request FOIA Request No.
F2016-808886 ("Request No. 808886"). See
id., Attach. H at 43. This request sought disclosure of
segregable portions of the DynCorp emails including (1) the
notation "Subject to Attorney Client Privilege" and
(2) any language that constituted an express request for
legal advice. Compl. ¶ 14, ECF No. 1; Answer, Ex.
6 at 22, ¶¶ 1-2, ECF No. 14-1. Mr. Jordan asserted
that by disclosing the "Subject to Attorney Client
Privilege" notation in Littler Mendelson's letter
(1) DynCorp disclosed purportedly privileged information,
thus waiving any claim to privilege; (2) DynCorp represented
to ALJ Merck and Mr. Jordan that the DynCorp emails contained
the "Subject to Attorney Client Privilege"
notation, requiring DynCorp to now prove that such notation
exists therein; (3) DynCorp waived its privilege by
re-sending the purportedly privileged emails to Mr. Huber
without including Mr. Bellomy in the email; and (4) ALJ
Merck's ruling rested on his finding that DynCorp
employees expressly sought legal advice in the DynCorp
emails, a fact not found on the record that mandated
disclosure under 5 U.S.C. § 556(e) of the Administrative
Procedure Act ("APA"). Answer, Ex. 6 at 22-24.
ALJ Stephen R. Henley denied Mr. Jordan's request,
reiterating ALJ Merck's ruling "that the redacted
portions of the [DynCorp] emails are covered by
attorney-client privilege." Answer, Ex. 7, at 27. Chief
ALJ Henley noted that ALJ Merck had not "ruled on any
request to modify his finding" of attorney-client
privilege and that ALJ Merck's ruling still stood.
Id. Thus, Chief ALJ Henley agreed with Ms. Johnson
that FOIA Exemption 4 exempted the requested information from
disclosure. Id. at 26.
FOIA Request No. F2016-813181
September 1, 2016, Mr. Jordan submitted a fourth FOIA
request. See Def's Cross-Mot., Ex. 1, Attach. M,
ECF No. 20-1. The DOL's Adjudicatory Boards
("ARB") labeled this request FOIA Request No.
F2016-813181 ("Request No. 813181"). See Def's
Cross-Mot, Ex. 1, Attach. N. This request sought any document
that ALJ Merck received in an ex parte communication, any
document regarding ALJ Merck's decision to place
documents under seal, any document withheld from disclosure
because it was under seal, and any document demonstrating an
OALJ determination that attorney-client privilege applied to
Mr. Jordan's FOIA requests. Def.'s Cross-Mot., Ex. 1,
Attach. M at 89. On September 12, 2016, ARB informed Mr.
Jordan that ARB "searched [the] case tracking system and
other files and found no material that [met] the parameters
of [the] request." Def.'s Cross-Mot., Ex. 1, Attach.
December 1, 2016, the OALJ closed out Request No. 813181 due
to Mr. Jordan's failure "to pay the fees and costs
associated with processing this request." Def.'s
Cross-Mot., Ex. 1, Attach. V. Mr. Jordan does not dispute
that he failed to pay the requisite fees; thus, Request No.
813181 has no relevance here.
FOIA Request No. 820511
December 18, 2016, Mr. Jordan filed his final request on
behalf of his client. Def.'s Cross-Mot., Ex. 1, Attach.
W. In that request, Mr. Jordan sought from the OALJ "a
copy of a portion of the record in the [DBA
Proceedings]." Id. This request is not at issue
exhausting his administrative remedies as required under
FOIA, Mr. Jordan filed this case in September 2016. See
Compl., ECF No. 1; 5 U.S.C. § 552(a)(6)(C)(i). In his
complaint, Mr. Jordan sought "[i]njunctive relief
ordering the DOL to disclose to [Mr. Jordan] all previously
undisclosed versions of the [DynCorp] [e]mails covered by
[Request No. 806591]" and "[j]udgment for
reasonable attorneys' fees, if any, expenses, and
costs." Compl. at 10-11; Pl.'s Unopposed
Mot. Leave Amend Compl., ECF No. 19.
Jordan and the DOL each move for summary
judgment. See Pl.'s Corrected Mot.
Summ. J., ECF No. 16; Def.'s Mem. P. & A. Supp.
Def.'s Cross-Mot. Summ. J. & Opp'n Pl.'s
Corrected Mot. Summ. J. ("Def.'s Mem."),
ECF No. 20. The parties' only dispute is whether FOIA
Exemption 4 applies to unredacted versions of the DynCorp
emails. See Pl.'s Corrected Reply Def.'s
Opp'n Pl.'s Corrected Mot. Summ. J.; Pl.'s
Opp'n Def.'s Cross-Mot. Summ. J. ("Pl.'s
Reply") at 3-8, 19, ECF No. 30; Def.'s Reply
Pl.'s Opp'n Def.'s Cross-Mot. Summ. J.
("Def.'s Reply") at 6-7, ECF No. 32. On July
24, 2017, the Court ordered Defendant to submit the DynCorp
emails for in camera review. See July 24, 2017
Minute Order, Jordan v. U.S. Dep 't of Labor,
16-cv-1868. Defendant submitted the emails in a timely
fashion, and the Court has carefully reviewed them.
addition to his motion for summary judgment, Mr. Jordan has
filed the following motions:
• A motion for sanctions under Rule 11, see
Mot. Sanctions Under Rule 11 ("Pl.'s First Rule 11
Mot."), ECF No. 10;
• A motion to compel depositions of Todd Smyth and Diane
Johnson, see Mot. Compel Dep. Smyth & Johnson
("Pl.'s Mot. Compel Dep"), ECF No. 24;
• A motion to strike in its entirety the Smyth
Declaration, see Mot. Strike Smyth's Decl.
("Pl.'s Mot. Strike Smyth DecL"), ECF No. 25;
• A motion to compel the DOL to produce evidence related
to the Smyth Declaration, see Mot. Compel Produc.
Evid. Regarding Smyth Decl. ("Pl.'s Mot. Compel
Produc"), ECF No. 29; Leave Amend CompL, ECF No. 19. The
Court grants this motion and considers the initial complaint
• A motion to strike the Department of Justice's
("DOJ") October 25 motion for an extension of time
to respond to the complaint and to vacate the Court's
October 26 order granting that motion, see Pl.'s
Mot. Strike Prohibited Ex Parte Communication & Vacate
October 26 Min. Order ("Pl.'s Mot. Vacate"),
ECF No. 31;
• A second motion for sanctions under Rule 11,
see Pl.'s Second Mot. Sanctions Under Rule 11
("Pl.'s Sec. Rule 11 Mot"), ECF No. 33;
• A motion for the Court to address the APA in its
decision, see Mot. Regarding APA Basis Decision
("Pl.'s Mot. Regarding APA"), ECF No. 36.
response, the DOL has filed a motion requesting for the Court
to stay all motion practice pending resolution of the
parties' summary judgment motions. See
Defi's Mot. Stay Pending Summ. J. ("Defi's Mot.
Stay"), ECF No. 26.
the Court's analysis in this opinion regards the
parties' substantive disputes. However, the Court also
addresses the litany of other motions filed by Plaintiff.
not secrecy, is the dominant objective of [FOIA]."
Air Force v. Rose, 425 U.S. 352, 361 (1976).
Congress enacted FOIA so that citizens could discover
"what their government is up to." U.S. Dep
't of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989) (quoting EPA v.
Mink, 410 U.S. 73, 105 (1973) (Douglas, J.,
dissenting)). After an agency receives a request that
"reasonably describes" records being sought, 5
U.S.C. § 552(a)(3)(A), the agency must "conduct[ ]
a search reasonably calculated to uncover all relevant
documents." Weisberg v. U.S. Dep't of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Then,
FOIA requires the agency to disclose responsive records
revealed by the search, unless one of FOIA's nine
statutory exemptions apply to material in the records.
See 5 U.S.C. § 552(b); see also Elliott v.
U.S. Dep't of Agric, 596 F.3d 842, 845 (D.C. Cir.
2010) ("[A]gencies may withhold only those documents or
portions thereof that fall under one of nine delineated
statutory exemptions."). The nine FOIA "exemptions
are 'explicitly exclusive.'" DOJ v. Tax
Analysts, 492 U.S. 136, 151 (1989) (quoting FAA
Adm'r v. Robertson, 422 U.S. 255, 262(1975)). And it
is the agency's burden to show that withheld material
falls within one of these exemptions. See 5 U.S.C.
§ 552(a)(4)(B); see also Elliott, 596 F.3d at
cases typically and appropriately are decided on motions for
summary judgment." Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). When
assessing a summary judgment motion in a FOIA case, the
district court reviews the matter de novo. See 5
U.S.C. § 552(a)(4)(B); Life Extension Found, Inc. v.
IRS, 915 F.Supp.2d 174, 179 (D.D.C. 2013). Summary
judgment is appropriate when "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A "material" fact is one
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is "genuine" if
there is enough evidence for a reasonable jury to return a
verdict for the non-movant. See Scott v. Harris, 550
U.S. 372, 380 (2007).
withholding documents pursuant to a FOIA exemption, "the
agency must provide 'a detailed justification and not
just conclusory statements to demonstrate that all reasonably
segregable information has been released.'"
Gatore v. U.S. Dep 't of Homeland Sec, 177
F.Supp.3d 46, 51 (D.D.C. 2016) (quoting Valfells v.
CIA, 717 F.Supp.2d 110, 120 (D.D.C. 2010)). To satisfy
this burden, "an agency may rely on detailed affidavits,
declarations, a Vaughn index, in camera review, or a
combination of these tools." Comptel v. FCC,
910 F.Supp.2d 100, 111 (D.D.C. 2012). Typically, agencies
provide courts with the required information via a
"combination" of a Vaughn index and agency
declarations. See Id. "A Vaughn index
correlates each withheld document, or portion thereof, with a
particular FOIA exemption and the justification for
nondisclosure." Id. (citing Vaughn v.
Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973)).
agency "affidavits [must] describe the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted
by either contrary evidence in the record nor by evidence of
agency bad faith." Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Moreover,
agency affidavits generally enjoy "a presumption of good
faith." See Safe Card Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991) (citing Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
The agency should "disclose as much information as
possible without thwarting the exemption's purpose."
Hall v. U.S. Dep't of Justice, 552 F.Supp.2d 23,
27 (D.D.C. 2008) (quoting King v. U.S. Dep 't of
Justice, 830 F.2d 210, 224 (D.C. Cir. 1987)).
"Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
'logical' or 'plausible.'" Wolf v.
CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting
Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.
1982)). Generally, a reviewing court should "respect the
expertise of an agency" and not "overstep the
proper limits of the judicial role in FOIA review."
Hoyden v. Nat'l Sec. Agency/Cent. Sec. Serv.,
608 F.2d 1381, 1388 (D.C. Cir. 1979).
contends that FOIA Exemption 4 protects the unredacted
versions of the DynCorp emails requested in Request No.
806591 from disclosure. See Def's Mem. at 9,
13-14, ECF No. 20. The DOL specifically argues that FOIA
Exemption 4 protects the attorney-client privileged materials
at issue here, that the contract information in the DynCorp
emails and the fact that they were sent to an in-house
attorney for legal advice demonstrates the privileged nature
of the DynCorp emails, and that the limited disclosure of the
DynCorp emails to ALJ Merck for in camera review did not
waive any privilege. See Id. at 12-14. The DOL also
asserts that its initial failure to respond to Mr.
Jordan's July 5, 2016 FOIA Request has been mooted by its
disclosure of responsive documents. See Id. at
Jordan argues that FOIA Exemption 4 does not apply to the
DynCorp emails. See Pl.'s Corrected Mot. Summ.
J. at 24-45, ECF No. 16. He contends that the DOL cannot
establish that the DynCorp emails were sent to or by someone
acting as a lawyer for a privileged purpose. See Id.
at 40-43. Mr. Jordan also argues that the DOL's actions
during the DBA Proceedings waived the privilege under various
APA provisions, required ALJ Merck to disclose the DynCorp
emails, and require this Court to find that the emails are
not privileged. See Id. at 32-40. Mr. Jordan also
alleges that DynCorp waived its privilege by failing to
justify its claim of privilege and by pretending to make full
evidentiary disclosures. See Id. at 43-45. Finally,
Mr. Jordan claims that the DOL's belated response to his
July 5, 2016 FOIA request was a "smoke screen" and
that the DOL has still not provided documents responsive to
this request. See Pl.'s Reply at 8-11.
reviewed the record and assured itself by inspecting the
DynCorp emails in camera, the Court grants summary judgment
in favor of the DOL with respect to the Powers email-the
first email in the DynCorp email chain. The DOL properly
withheld the unredacted version of the Powers email under
FOIA Exemption 4 based on its attorney-client privileged
nature. The DOL sufficiently supported its claim of privilege
in its Smyth Declaration, Vaughn Index, and
accompanying attachments. Moreover, DynCorp's judicially
compelled disclosure of the unredacted versions of its emails
to ALJ Merck for in camera review did not waive its claim to
privilege, and the various APA provisions that Mr. Jordan
cites have no relevance to this case. Finally, the DOL has
made Mr. Jordan's motion regarding the July 5, 2016 FOIA
request moot by providing documents responsive to that
request. However, upon in camera consideration of the Huber
email, the Court concludes that, while the email may be
exempt from withholding, the DOL has not adequately explained
its basis for withholding. Thus the Court will grant
Defendant's motion for summary judgment, except as it
pertains to the Huber email. The DOL may either release the
DynCorp email chain with the Huber email unredacted, or renew
its motion for summary judgment with further justification
for that particular email.
Court denies Mr. Jordan's litany of miscellaneous
motions, as described above. Mr. Jordan has failed to
identify any sanctionable behavior by Defendant or defense
counsel. The Court also denies Mr. Jordan's motions to
(1) compel depositions of Todd Smyth and Diane
Johnson; (2) strike in its entirety the Smyth
Declaration; (3) compel the production evidence
related to the Smyth Declaration; (4) strike the DOJ's
October 25 motion requesting an extension to respond to the
Complaint and vacate the Court's October 26 Minute Order
granting that motion; and (5) address the APA in the
Court's decision. None of these final motions warrants
extensive analysis by the Court.
Exemption 4 Exempts the Information Requested in the ...