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Jordan v. U.S. Department of Justice

United States District Court, District of Columbia

May 8, 2019

JACK JORDAN, Plaintiff,

          MEMORANDUM OPINION RE DOCUMENT NOS. 34, 36, 40, 42

          RUDOLPH CONTRERAS United States District Judge

         Denying Plaintiff's Motion for Reconsideration


         After a judgment from this Court denying his request to have Defendant the Department of Justice (“DOJ”) release two e-mails protected by an exception to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, pro se Plaintiff Jack Jordan has now filed a motion for reconsideration under Fed.R.Civ.P. 60. Jordan argues that this Court reached clearly erroneous conclusions and relied on misrepresentations by DOJ to deny his motion. He also appears to argue that this Court should recuse itself or release the requested e-mails as an alternative to recusal. Because the motion denying release of the e-mails is an interlocutory motion, the Court treats it as a motion for reconsideration under Fed.R.Civ.P. 54. The Court first briefly addresses, and rejects, Jordan's recusal arguments. Next, the Court denies the motion for reconsideration because Jordan has not established that he is entitled to relief. The Court denies Jordan's three subsequent motions for an order on his motion as moot.


         This Court presumes familiarity with its prior opinions in Jordan's related litigation in Jordan v. U.S. Dep't of Labor, 16-cv-1868 (D.D.C.) (the “2016 Action”), and Jordan v. U.S. Dep't of Labor, 17-cv-2702 (the “2017 Action”). See generally Jordan v. U.S. Dep't of Labor (“Jordan II”), 308 F.Supp.3d 24 (D.D.C. 2018); Jordan v. U.S. Dep't of Labor (“Jordan I”), 273 F.Supp.3d 214 (D.D.C. 2017); Mem. Op. & Order (“Jordan V”), ECF No. 33. In the 2016 Action, Jordan filed a FOIA request to compel disclosure of two e-mails that related to a Defense Base Act case involving his wife and DynCorp International, Inc. (“DI”). See Jordan II, 308 F.Supp.3d at 28-29; Jordan I, 273 F.Supp.3d at 219-20. Specifically, Jordan requested the disclosure of the unredacted versions of e-mails sent by Darin Powers and Robert Huber, two DI employees. Jordan I, 273 F.Supp.3d at 220. After in-camera inspection, this Court determined that the e-mail communication from Powers was protected by the FOIA exemption for attorney-client privilege. See Id. at 227. However, the Court concluded that the Huber e-mail was not protected by any exemption and ordered the Department of Labor (“DOL”) to release it. See Id. at 232.

         On May 2, 2018, Jordan appealed the Court's determination in the 2016 Action to the D.C. Circuit. Notice of Appeal, Jordan v. U.S. Dep't of Labor, 16-cv-1868 (D.D.C. May 2, 2018), ECF No. 67. The Circuit rejected Jordan's appeal, finding that this Court “did not err in concluding that the Powers email is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(4).” Jordan v. U.S. Dep't of Labor (“Jordan IV”), No. 18-5128, 2018 WL 5819393, at *1 (D.C. Cir. Oct. 19, 2018). It also noted that “there is no reason to doubt the district court's finding that an in camera review revealed the Powers email contains an explicit request for legal advice.” Id.

         Jordan commenced the 2017 Action on December 18, 2017, seeking to compel DOJ to disclose its records pertaining to the 2016 Action. See generally Compl., ECF No. 1. Jordan also filed a motion to disqualify this Court, see Mot. Disqualify, ECF No. 9, which the Court denied because Jordan “failed to meet the recusal standards under Sections 144 and 455, let alone the more stringent constitutional standard” for recusal, Jordan v. U.S. Dep't of Justice (“Jordan III”), 315 F.Supp.3d 584, 593 (D.D.C. 2018).

         In July 2018, while his appeal of the Court's decision denying release of the Powers email in the 2016 Action was still pending before the D.C. Circuit, Jordan filed a motion in the 2017 Action seeking to have the Huber e-mail and portions of the Powers e-mail “that show . . . any notation such as ‘subject to attorney-client privilege' and non-commercial words included in any request for legal advice” released. See Pl.'s Mot. Release Evid. 1, ECF No. 26. Jordan argued that DI had waived attorney-client privilege as to any such sections of the Powers e-mail. Id. at 5-6. Jordan requested the release of “[n]on-commercial words included in an express request for legal advice, ” such as “‘please advise regarding' or ‘let us know what you think, '” which he contended could be segregated from the rest of the Powers e-mail. Id. at 5-6. On October 11, 2018, the Court denied his motion, reasoning that his arguments were duplicative of those he made in the 2016 Action. See Jordan V at 3.

         Jordan has now filed a motion for reconsideration of the Court's order denying the release of portions of the Powers e-mail. See generally Pl.'s Mot. Reconsideration, ECF No. 34. Jordan has also filed three additional motions for an order on his motion for reconsideration. See generally Pl.'s Mot. Order, ECF No. 36; Pl.'s Second Mot. Order, ECF No. 40; Pl.'s Third Mot. Order, ECF No. 42. Jordan's motions are now ripe for review.


         Federal Rule of Civil Procedure 54(b) governs situations in which a party seeks reconsideration of an interlocutory order. See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”). “The burden is on the moving party to show that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied.” United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F.Supp.2d 258, 268 (D.D.C. 2012) (citing Husayn v. Gates, 588 F.Supp.2d 7, 10 (D.D.C. 2008)). Relief pursuant to Rule 54(b) is to be provided “as justice requires, ” and may be warranted when a court has “patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or where a controlling or significant change in the law has occurred.” Id. (internal citation, quotation, and alteration omitted); see also Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004). “[I]n general, a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.” Murphy v. Exec. Office for U.S. Attorneys, 11 F.Supp.3d 7, 8 (D.D.C. 2014), aff'd sub nom., Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204 (D.C. Cir. 2015) (internal quotation and alteration omitted).

         “These considerations leave a great deal of room for the court's discretion and, accordingly, the ‘as justice requires' standard amounts to determining ‘whether [relief upon] reconsideration is necessary under the relevant circumstances.'” Lewis v. District of Columbia, 736 F.Supp.2d 98, 102 (D.D.C. 2010) (alteration in original) (quoting Cobell, 224 F.R.D. at 272). Although this standard is not expressly stated, a trial court has more discretion in applying Rule 54(b) than it does under Rules 59(e)[1] or 60(b).[2] Cobell, 224 F.R.D. at 272 (acknowledging that “it is clear that ‘courts have more flexibility in applying Rule 54(b)' than in determining whether reconsideration is appropriate under Rules 59(e) and 60(b)” (quoting Moore v. Hartman, 332 F.Supp.2d 252, 256 (D.D.C.2004))). At the same time, a court's discretion under Rule 54(b) is “limited by the law of the case doctrine and subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.” Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (quoting In re Ski Train Fire, 224 F.R.D. 543, 546 (S.D.N.Y. 2004)).

         IV. ...

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