MEMORANDUM OPINION RE DOCUMENT NOS. 34, 36, 40,
42
RUDOLPH CONTRERAS United States District Judge
Denying
Plaintiff's Motion for Reconsideration
I.
INTRODUCTION
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.
II.
FACTUAL BACKGROUND
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.
III.
LEGAL STANDARD
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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