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Jordan v. U.S. Department of Labor

United States District Court, District of Columbia

August 4, 2017

JACK JORDAN, Plaintiff,
v.
U.S. DEPARTMENT OF LABOR, Defendant. Re Document Nos. 10, 16, 20, 24, 25, 29, 31, 33, 36

         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: 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 employees[3] "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. F2016-81973 6 ("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 Fat 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 inquiry[7] 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 Appeals records." Answer ¶ 12, ECF No. 14. OIS finally located Request No. 819736 on December 2, 2016. Oliver Decl. ¶ 15.

         The DOL 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, [8] and January 27, 2016.[9] 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 29-30.

         C. FOIA Request No. F2016-808886

         In June 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.[10] 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;[11] (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.

         Chief 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.

         D. FOIA Request No. F2016-813181

         On 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. N.

         On 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.

         E. FOIA Request No. 820511

         On 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 here.

         III. PROCEDURAL HISTORY

         After 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."[12] Compl. at 10-11; Pl.'s Unopposed Mot. Leave Amend Compl., ECF No. 19.

         Mr. Jordan and the DOL each move for summary judgment.[13] 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."), [14] 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.

         In 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 amended.
• 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.

         In 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.

         Most of 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.

         IV. LEGAL STANDARDS

         "[Disclosure, 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 845.

         "FOIA 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).

         In 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)).

         The 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).[15]

         V. ANALYSIS

         The DOL 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 18-19.

         Mr. 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.

         Having 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.

         The 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;[16] (2) strike in its entirety the Smyth Declaration;[17] (3) compel the production evidence related to the Smyth Declaration;[18] (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;[19] and (5) address the APA in the Court's decision.[20] None of these final motions warrants extensive analysis by the Court.

         A. Exemption 4 Exempts the Information Requested in the ...


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