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Jordan v. U.S. Department of Labor

United States District Court, District of Columbia

March 30, 2018

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

          MEMORANDUM OPINION RE DOCUMENT NOS. 40, 41, 43, 50, 55

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Denying Plaintiff's “Motion to Disqualify Judge Contreras”; Denying Plaintiff's Motion for Reconsideration of Order Granting Defendant's Motion for Extension of Time; Denying Plaintiff's “Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications”; Denying Defendant's Renewed Motion for Summary Judgment; Denying Without Prejudice Defendant's Motion for a Protective Order

         I. INTRODUCTION

         In this Freedom of Information Act (“FOIA”) case, Plaintiff Jack Jordan submitted requests with the Office of Administrative Law Judges (“OALJ”), an agency within the United States Department of Labor (“DOL”), seeking unredacted versions of two emails related to Defense Base Act No. 2015-LDA-00030 (“DBA Proceedings”), a case in which Mr. Jordan is representing his wife, Maria Jordan, against DynCorp International, Inc. (“DynCorp”). In a prior Opinion, this Court granted summary judgment in favor of DOL with respect to one of the emails. However, finding that DOL had insufficiently justified its withholding of the other email, the Court denied both parties' motions for summary judgment with respect to that email and instructed DOL to either release it or to file a renewed motion for summary judgment with further justification. Now before the Court is DOL's renewed motion for summary judgment. Also before the Court are Mr. Jordan's “Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications, ” Mr. Jordan's request that this judge recuse himself, Mr. Jordan's motion for reconsideration of an order granting DOL an extension of time to file a reply, and DOL's motion for a protective order barring Mr. Jordan from filing future motions without leave of Court and permitting DOL to disregard Mr. Jordan's requests for production. For the reasons explained below, the Court denies all five motions.

         II. FACTUAL BACKGROUND

         The Court presumes familiarity with its prior Opinion. See Jordan v. U.S. Dep't of Labor, 273 F.Supp.3d 214 (D.D.C. 2017). Accordingly, this Opinion will only briefly describe the facts and allegations that are particularly relevant to the pending motions.

         Over a period of seven months, Plaintiff Jack Jordan submitted a series of FOIA requests to DOL, including a request seeking 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 Larry S. Merck. See Jordan, 273 F.Supp.3d at 219-20. DOL found that a string of five separate emails (the “DynCorp emails”) fit the bill. See Id. at 220-21. According to DOL, the DynCorp emails had been reviewed in camera by ALJ Merck, who determined that they contained privileged attorney-client communications. See Id. at 221. DOL concluded 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 to the unredacted version of the email chain and declined to release it. Id. at 221 (alteration in original).

         However, DOL disclosed to Mr. Jordan a 2015 letter from the law firm Littler Mendelson, P.C.-which represented DynCorp in the DBA Proceedings-and a redacted version of the DynCorp email thread. See Jordan, 273 F.Supp.3d at 221. The redacted version of the DynCorp emails disclosed the full contents of three emails in the five-email chain, but revealed only the sender, recipients, date, and subject line of the other two emails. See Id. at 221. Of the two partially redacted emails, the chronologically first email (“the Powers email”) spans roughly three pages, and the second (“the Huber email”) spans roughly half a page. See id.

         The letter from Littler Mendelson stated that it had submitted to ALJ Merck unredacted versions of the emails for in camera inspection. Def.'s Cross-Mot. Summ. J. and Opp'n to Pl.'s Corrected Mot. for Summ. J. (“Def.'s Cross-Mot.”), Ex. 1, Attach. D at 25, ECF No. 20-1. In the letter, Littler Mendelson maintained that the redacted portions of the email thread “concerned the status of operations issues in connection with the Worldwide Protective Services (‘WPS') Program contract, which were transmitted to Christopher Bellomy, Esq.-an in-house lawyer for [DynCorp]-in order to apprise him (and other DI employees with responsibility for the administration and management of the WPS Program contract) of developments potentially impacting the contract.” Id. Littler Mendelson explained that one redacted email in the chain included the notation “Subject to Attorney Client Privilege.” Id. Littler Mendelson asserted that the emails “were intended to be, and should remain, privileged among the select group of employees who received the at-issue communication.” Id.

         Mr. Jordan later submitted additional requests related to the Powers and Huber emails. See Jordan, 273 F.Supp.3d at 222-23. Specifically, Mr. Jordan sought documentation in the OALJ's records justifying the decision to withhold the unredacted emails; any documents submitted to OALJ opposing release of records responsive to Mr. Jordan's FOIA request; and any segregable portions of the Powers and Huber emails, including the notation “Subject to Attorney Client Privilege” and any language that constituted an express request for legal advice. See Id. Mr. Jordan also contended that, for myriad reasons, DynCorp had waived any claim to privilege. See Id. at 223. Chief ALJ Stephen R. Henley denied Mr. Jordan's request for purportedly segregable portions of the Powers and Huber emails, reiterating ALJ Merck's ruling that the redacted portions of the DynCorp emails are covered by attorney-client privilege and agreeing with DOL that FOIA Exemption 4 applied to the unredacted version of the email chain. See id.

         Mr. Jordan commenced this litigation in September 2016. See Compl., ECF No. 1. 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 [his request]” 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. Mr. Jordan and DOL each moved for summary judgment, with the primary dispute being whether FOIA Exemption 4 applied to the Powers and Huber emails.[1] See Jordan, 273 F.Supp.3d at 224.

         Following in camera inspection of the disputed emails, the Court denied in full Mr. Jordan's Corrected Motion for Summary Judgment and granted the DOL's Cross-Motion for Summary Judgment, except with respect to the Huber email. Id. at 226-27. The Court concluded that DOL had “describe[d] the DynCorp emails in a detailed manner” and that there was “nothing in the record to question the presumption of good faith that the Court affords the DOL in its explanation.” Id. at 232. In assessing whether FOIA Exemption 4 applies to the emails, the Court considered whether (1) the information at issue is “commercial or financial, ” (2) whether the information was obtained from a person, and (3) whether the information was privileged or confidential. Id. at 229-30.

         The Court found that both emails were “commercial” or “financial, ” concluding that DOL had sufficiently justified its contention that the emails pertained to the “status of operations issues in connection with a business contract.” Id. at 230-31. The Court also determined that both emails were obtained from a person. Id. at 231. However, based on DOL's proffered justifications and the Court's in camera review, the Court concluded that only one email visibly qualified as privileged. See Id. at 231-32. Specifically, the Court observed that the justifications for withholding are “much more applicable to the Powers email than they are to the Huber email.” Id. at 232. The Court explained that the Powers email itself is labelled “subject to attorney-client privilege”; the Huber email is not. Id. Likewise, the Powers email contained an express request for legal advice, while the Huber email did not. Id. Finding that the Huber email did not necessarily meet the standard for attorney-client privilege-at least based on DOL's justifications-the Court instructed DOL to either release the Huber email or to provide further justification for withholding it. Id. In addition, the Court concluded, as relevant here, that DynCorp had not waived its claim to privilege, that DOL had provided all reasonably segregable portions of the Powers email, and that DOL had sufficiently responded to Mr. Jordan's requests for additional information about the DynCorp emails. See Id. at 232-39.

         Since the Court issued its August 4, 2017 Opinion, the parties have filed a number of motions. Mr. Jordan has filed (1) a “Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications” (ECF No. 40), (2) “Plaintiff's Motion to Reconsider DOL Motion for Extension of Time to File Reply Purporting to Support Summary Judgment” (ECF No. 50) and (3) a “Motion to Disqualify Judge Contreras” (ECF No. 55). DOL has filed (1) a Renewed Motion for Summary Judgment (ECF No. 41) and (2) a Motion for a Protective Order (ECF No. 43). The Court first addresses Mr. Jordan's motions then considers the motions submitted by DOL.

         III. ANALYSIS

         A. Motions Filed by Mr. Jordan

         The Court first considers the three pending motions filed by Mr. Jordan: (1) a “Motion to Disqualify Judge Contreras” (ECF No. 55), (2) “Plaintiff's Motion to Reconsider DOL Motion for Extension of Time to File Reply Purporting to Support Summary Judgment” (ECF No. 50), and (3) a “Motion for Disclosure and Inclusion of Portions of the Emails and Other Non-Privileged Ex Parte Communications” (ECF No. 40). For the reasons explained below, the Court denies all three motions.

         1. Motion to Disqualify

         Mr. Jordan requests that this judge recuse himself, asserting bias and partiality. Mr. Jordan also contends that, in the course of ruling on the parties' motions in this case, this judge has engaged in criminal conduct. Finding no basis for recusal, this Court denies Mr. Jordan's motion.

         “Deference 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.). Thus, 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 safeguard the integrity of the proceedings. See Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876- 77 (2009); Microsoft Corp., 253 F.3d at 113-15. The Supreme Court has explained that “[d]ue process guarantees ‘an absence of actual bias' on the part of a judge.” Williams v. Pennsylvania, 136 S.Ct. 1899, 1905 (2016) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). To comply with the requirements of the Due Process Clause, a judge must recuse himself “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, 137 S.Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).[2] The Supreme Court has recognized only a very few circumstances in which the appearance of bias mandates recusal. See, e.g., Caperton, 556 U.S. at 872 (concluding 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 (holding that, under some circumstances, 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, 531-32 (1927) (establishing that a judge may not preside over a case in which he has a ‘direct, personal, substantial, pecuniary interest”).

         But “most questions concerning a judge's qualifications to hear a case are not constitutional ones.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Recusal of federal district court judges is more often discussed by reference to 28 U.S.C. § 455.[3] Subsection 455(a) states that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned, ” unless the parties waive the grounds for disqualification. Section 455(b) enumerates additional grounds under which a judge must recuse. One such reason is “[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Id. § 455(b)(1). To compel recusal under Section 455(a), “the moving party must demonstrate the court's reliance on an ‘extrajudicial source' that creates an appearance of partiality or, in rare cases, where no extrajudicial source is involved, the movant must show a ‘deep-seated favoritism or antagonism that would make fair judgment impossible.'” Tripp v. Executive Office of the President, 104 F.Supp.2d 30, 34 (D.D.C. 2000) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). “The standard for disqualification under § 455(a) is an objective one.” United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001). “The question is whether a reasonable and informed observer would question the judge's impartiality.” Id. To compel recusal under Section 455(b)(1), the moving party must “demonstrate actual bias or prejudice based upon an extrajudicial source.” Tripp, 104 F.Supp.2d at 34.

         “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Id. (quoting Liteky, 510 U.S. at 555). Likewise, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555. The D.C. Circuit has counselled that “[a] judge should not recuse himself based upon conclusory, unsupported or tenuous allegations.” In re Kaminski, 960 F.2d 1062, 1065 n.3 (D.C. Cir. 1992); see also SEC v. Bilzerian, 729 F.Supp.2d 19, 22 (D.D.C. 2010) (“To deter unhappy litigants from abusing the recusal ...


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