Jordan v. United States Department of Labor , 273 F. Supp. 3d 214 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JACK JORDAN, :
:
Plaintiff, : Civil Action No.: 16-1868 (RC)
:
v. : Re Document Nos.: 10, 16, 20, 24, 25,
: 29, 31, 33, 36
:
U.S. DEPARTMENT OF LABOR, :
:
Defendant. :
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
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
1
The DOL’s Answer is located at ECF No. 14. Exhibits attached to the DOL’s answer
can be located at ECF No. 14-1.
2
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 at 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.
2
All attachments to Def.’s Cross-Mot., Ex. 1 can be found at ECF No. 20-1.
3
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
4
employees3 “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. F2016-819736 (“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
3
Other employees that received the DynCorp emails include Darin Powers, Robert A.
Huber, Brian J. Cox, William Imbrie, Martha Huelsbeck, and Aubrey Mitchell. See Def.’s Cross-
Mot., Ex. 1, Attach. E.
4
Mr. Jordan does not challenge the DOL’s submission of the Littler Mendelson letter as
an insufficient response to his request for “a copy of any letter of transmittal, facsimile cover
sheet or any other evidence dated at 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.” Answer, Ex. 4, 15–16. As such, the Court considers the parties to be in
agreement that the DOL’s response satisfied this portion of Mr. Jordan’s original request.
5
Mr. Jordan submitted this request at 11:24 PM CST on July 5, 2016, and the DOL
received this request at about 12:24 AM EST on July 6, 2016. Pl.’s Corrected Mot. Summ. J. at
8, ECF No. 16. For clarity, the Court will use July 5, 2016, as the date of this request.
6
All attachments to Def.’s Cross-Mot., Ex. 2 can be found at ECF No. 20-2.
5
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 F at 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 inquiry7 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
7
The inquiry came from Emily S. Whitten, a Senior Attorney for FOIA and Information
Law at the DOL’s Office of the Solicitor. Def.’s Cross-Mot., Ex. 2, Attach. AA.
6
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,
8
The “Order Denying Claimant’s Motion to Compel Production of Emails over which
Employer Has Asserted Attorney–Client Privilege and Order Denying Claimant’s Motion for
Sanctions.” Def.’s Cross-Mot., Ex. 2, Attach. HH at 29.
9
The “Order Denying Claimant’s Motion Requesting That This Court ‘Publish’ an
Alleged Ex Parte Communication and Order Warning Counsel of the Potential Consequences of
Filing Frivolous Motions and Order Denying Claimant’s Request for Subpoenas at this Time.”
Def.’s Cross-Mot., Ex. 2, Attach. HH at 29.
10
Mr. Jordan only sought language relating to a request for legal advice and clarified that
the DOL should exclude “any particular words that would disclose privileged information.”
Answer, Ex. 6 ¶ 2.
7
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
11
Mr. Jordan argued the redaction of that notation in the version of the DynCorp emails
he received, see Def.’s Cross-Mot., Ex. 1, Attach. E, ECF No. 20-1, indicated its designation as
privileged information, see Answer, Ex. 6 at 22–23, ECF No. 14-1.
8
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.
12
In his original complaint, Mr. Jordan also sought “injunctive relief ordering the DOL to
refrain from withholding any such documentation under an assertion that such documentation is
sealed or subject to an ALJ’s determination . . . that the documents are privileged.” Compl. ¶ B.
Mr. Jordan moves to amend his complaint by no longer seeking this relief. Pl.’s Unopposed Mot.
9
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.
13
Mr. Jordan filed an initial Motion for Summary Judgment on November 15, 2016. See
Mot. Summ. J., ECF No. 9. That motion was superseded by the Corrected Motion for Summary
Judgment filed on December 5, 2016. See Pl.’s Corrected Mot. Summ. J., ECF No. 16.
14
Def.’s Mem. is included in Def.’s Cross-Mot., ECF No. 20. For precision, the Court
will refer directly to the Mem. when appropriate.
10
 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 Def.’s Mot. Stay
Pending Summ. J. (“Def.’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
“[D]isclosure, 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
11
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
12
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 SafeCard 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.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv.,
608 F.2d 1381, 1388 (D.C. Cir. 1979).15
15
The Court ordered in camera review of the DynCorp emails. Such review is
appropriate when “the district judge believes that in camera inspection is needed in order to
make a responsible de novo determination on the claims of exemption.” Ray v. Turner, 587 F.2d
1187, 1195 (D.C. Cir. 1978). Of course, in camera review does not excuse the government of its
“obligation to provide detailed public indexes and justifications whenever possible.” Am.
Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 235–36 (D.D.C.
2013) (quoting Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984)).
13
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
14
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
15
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
16
Mr. Jordan seeks to compel depositions of Mr. Smyth and Ms. Johnson. See Pl.’s Mot.
Compel Dep. at 2, ECF No. 24. Mr. Jordan claims that he “cannot verify or refute without
discovery” the Smyth Declaration and the DOL’s Memo and that he requires “a deposition of . . .
Todd Smyth and Diane Johnson to be conducted as soon as practicable.” See id. at 1–2.
“FOIA actions are typically resolved without discovery.” Voinche v. FBI, 412 F. Supp. 2d
60, 71 (D.D.C. 2006) (citation omitted). Indeed, “[d]iscovery in FOIA is rare and should be
denied where an agency’s declarations are reasonably detailed, submitted in good faith and the
court is satisfied that no factual dispute remains.” Schrecker v. U.S. Dep’t of Justice, 217 F.
Supp. 2d 29, 35 (D.D.C. 2002). Though “FOIA actions are not exempted from the discovery
provisions of the Federal Rules of Civil Procedure and the scope of the discovery permitted . . .
lies in the [C]ourt’s discretion,” the Court treats further discovery in FOIA actions skeptically
and prefers to permit limited discovery only when truly necessary. Bureau of Nat’l Affairs, Inc.
v. IRS, 24 F. Supp. 2d 90, 92 (D.D.C. 1998). It is well-established in this district that “a declarant
in a FOIA case satisfies the personal knowledge requirement in Rule 56(e) if in his declaration,
he attests to his personal knowledge of the procedures used in handling a FOIA request and his
familiarity with the documents in question.” Barnard v. U.S. Dep’t of Homeland Sec., 531 F.
Supp. 2d 131, 138 (D.D.C. 2008) (internal citation and alterations omitted); see also Schmitz v.
U.S. Dep’t of Justice, 27 F. Supp. 3d 115, 120 (D.D.C. 2014) (noting that the rule in Barnard is
“established”)
Mr. Smyth’s declaration establishes that he has personal knowledge of the procedures
used in handling a FOIA request and demonstrates that he is familiar with the documents in
question, and thus satisfies Rule 56(e)’s personal knowledge requirement. See Smyth Decl. ¶¶ 1,
21–31; Barnard, 531 F. Supp. 2d at 138. And although Mr. Jordan implies bad faith by Mr.
Smyth and states that “there is very good reason to believe that the facts asserted were not within
Smyth’s personal knowledge” and “[s]ome factual assertions were very clearly false,” he offers
no evidence to substantiate his allegations that might warrant further discovery. See Mem. P. &
A. Supp. Pl.’s Mot. Compel Dep. (“Pl.’s Mot. Compel Deps. Mem.”) at 4, ECF No. 24-1. The
Court does not view Mr. Jordan’s “mere assertions” as a sufficient rationale to allow discovery in
this FOIA action. See Voinche, 412 F. Supp. 2d at 72. The Court finds the depositions sought
here unnecessary and denies Mr. Jordan’s motion.
17
Mr. Jordan moves to strike the Smyth Declaration on the grounds that “[Mr.] Smyth
and the DOJ clearly disregarded all safeguards to ensure that Smyth’s Declaration was reliable or
probative” as outlined by FRCP 56(c)(4). Pl.’s Mot. Strike Smyth Decl. at 2, ECF No. 25.
“The decision to grant or deny a motion to strike is vested in the trial judge’s sound
discretion.” Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2, 7 (D.D.C. 2004) (citation
omitted). “[M]otions to strike are not favored,” and the Court maintains “considerable discretion
in disposing of motions to strike.” Cobell v. Norton, 224 F.R.D. 1, 2 (D.D.C. 2004). Indeed,
16
motions to strike are “often . . . considered ‘time wasters.’” Id. (quoting 2A Moore’s Federal
Practice, § 12.21 at 2419).
Mr. Jordan’s only germane contention alleges that the Smyth Declaration included facts
of which Mr. Smyth had no personal knowledge. See Mem. P. & A. Supp. Pl.’s Mot. Strike
Smyth’s Decl. (“Pl.’s Mot. Strike Smyth Decl. Mem.”) at 5–6, ECF No. 25-1. Mr. Jordan notes
that “[a]n affidavit or declaration [ ] must be made on personal knowledge . . . and show that the
affiant or declarant is competent to testify on the matters stated.” Id. at 5 (quoting Fed. R. Civ. P.
56(c)(4)); see also Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (stating that the
“requirement of personal knowledge by the affiant is unequivocal[] and cannot be
circumvented”). The Court dealt with this concern in footnote 16 above. Mr. Smyth’s job
responsibilities “included advising OALJ FOIA personnel on FOIA requests that were assigned
to [his] agency component.” Smyth Decl. ¶ 1. Mr. Smyth’s work competencies indicate that he
has the personal knowledge required to submit his declaration, and the extensive record
submitted by the DOL presents an exhaustive companion piece to corroborate the facts in the
Smyth Declaration and ground Mr. Smyth’s knowledge in the attached documents. See Def.’s
Cross-Mot., Ex. 1, Attachs. A–W. The Court thus denies Mr. Jordan’s motion to strike Smyth’s
Declaration.
18
Mr. Jordan moves for this Court to order the DOL to produce documents regarding “(1)
any draft or version of Smyth’s Declaration or (2) any language that was included in Smyth’s
Declaration or in any draft or version of Smyth’s Declaration.” Pl.’s Mot. Compel Produc. at 1,
ECF No. 29.
The Court reiterates that “FOIA actions are typically resolved without discovery.”
Voinche, 412 F. Supp. 2d at 71 (citation omitted). “Discovery in FOIA is rare and should be
denied where an agency’s declarations are reasonably detailed, submitted in good faith and the
court is satisfied that no factual dispute remains.” Schrecker, 217 F. Supp. 2d at 35. Typically in
FOIA cases, discovery of the kind Mr. Jordan seeks is “unnecessary and impermissible” where
the Court finds, as it does here, “no genuine issue of material fact” exists. Bureau of Nat’l
Affairs, 24 F. Supp. 2d at 92. Though “FOIA actions are not exempted from the discovery
provisions of the Federal Rules of Civil Procedure and the scope of the discovery permitted . . .
lies in the [C]ourt’s discretion,” the Court treats further discovery in FOIA actions skeptically
and prefers to permit limited discovery only when truly necessary. Id.Granting this motion would depend on concrete evidence rebutting the “presumption of
good faith” accorded to the DOL in submitting the Smyth Declaration. See Shrecker, 217 F.
Supp. 2d at 35; Voinche, 412 F. Supp. 2d at 64. Rather than providing such concrete evidence,
Mr. Jordan’s motion is littered with speculative claims. Mr. Jordan invokes the “crime–fraud
exception,” Pl.’s Mot. Compel Produc. at 7, alleges “perjury,” id. at 9, misrepresents the reason
for submitting the Smyth Declaration as seeking to “influence” the Court, id., and claims that the
DOJ and DOL are engaged in a “cover up” of ALJ Merck’s “criminal conduct,” id. at 11. These
repeated claims never rise above speculation to warrant the kind of discovery Mr. Jordan desires.
The Court denies Mr. Jordan’s motion to compel the production of evidence regarding the Smyth
Declaration.
17
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.
19
Mr. Jordan moves to strike the DOL’s motion for an extension to file an answer—
deeming that motion a prohibited ex parte communication—vacate the Court’s October 26, 2016,
Minute Order, and force the DOL to admit each factual allegation in the Complaint. See Pl.’s
Mot. Vacate, ECF No. 31; Pl.’s Mot. Vacate, Proposed Order ¶ 4, ECF No. 31-1.
The Court reiterates that “[t]he decision to grant or deny a motion to strike is vested in
the trial judge’s sound discretion.” Canady, 307 F. Supp. 2d at 7 (citation omitted). “Generally,
motions to strike are disfavored by federal courts.” Wiggins, 853 F. Supp. at 457. Indeed,
motions to strike are “often . . . considered ‘time wasters.’” Id. (quoting 2A Moore’s Federal
Practice, § 12.21 at 2419). This Court disfavors such motions “because they propose a drastic
remedy.” Canady, 307 F. Supp. 2d at 7–8 (cases collected).
Given that an ex parte communication is defined as a “communication between counsel
and the court when opposing counsel is not present,” Communication, Black’s Law Dictionary
(10th ed. 2014), Mr. Jordan’s argument that “he did not have an opportunity to respond to” the
DOL’s motion for an extension does not give the motion “the effect of an ex parte
communication,” North v. U.S. Dep’t of Justice, 17 F. Supp. 3d 1, 4 (D.D.C. 2013). Courts in
this district have held that communications “filed on the public docket and thus accessible to all
. . . cannot, by definition, be considered ex parte communications.” Id. at 4. Mr. Jordan’s lack of
access to the motion until after it had already been granted does not render the underlying motion
ex parte. See Pl.’s Mot. Vacate at 7. Because the underlying motion is not an ex parte
communication, the Court denies Mr. Jordan’s requested motion to strike the DOL’s motion for
an extension to file an answer and vacate the Court’s October 26, 2016 Minute Order.
Mr. Jordan’s claims concerning ex parte communications aside, the Court did not grant
the DOL’s motion because Mr. Jordan failed to oppose it; the Court granted it because it found a
sufficient showing of good cause. In a routine FOIA case like this one, where expedited
consideration is not at issue, there were no arguments that would have persuaded the Court
against granting the same extension. That is the sole reason the Court did not await Plaintiff’s
opposition—to preserve the Court’s and the parties’ resources.
20
Finally, Mr. Jordan moves for the Court to address “the relevance of the APA to the
determination of whether the [DynCorp] [e]mails could have been privileged” in its decision.
Pl.’s Mot. Regarding APA at 1, ECF No. 36. This motion attempts to re-litigate the DBA
Proceedings under the guise of a FOIA action. See generally Pl.’s Mot. Regarding APA. The
Court reiterates that under FOIA, the Court may do no more than “enjoin [an] agency from
withholding agency records and [] order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). This limited grant of jurisdiction
precludes the Court from examining various OALJ actions in separate proceedings under
different APA provisions. Mr. Jordan’s motion is therefore denied. With that said, none of
Plaintiff’s arguments convince the Court that the ALJ did not have the authority to conduct an in
18
A. Exemption 4 Exempts the Information Requested in the
DynCorp Emails from Disclosure
Exemption 4 exempts “trade secrets and commercial or financial information obtained
from a person and privileged or confidential” matters from disclosure, creating a three-prong
test. 5 U.S.C. § 552(b)(4). In non-trade-secrets cases, the “agency must establish that the
withheld records are ‘(1) commercial or financial, (2) obtained from a person, and (3) privileged
or confidential.’” Pub. Citizen v. HHS, 975 F. Supp. 2d 81, 98 (D.D.C. 2013) (citing Pub. Citizen
Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)). The Court determines the
applicability of each of these prongs de novo.21 5 U.S.C. § 552(a)(4)(B); see also DOJ v.
Reporters Comm. For Freedom of the Press, 489 U.S. 749, 755 (1989) (clarifying that FOIA
“directs the district courts to ‘determine the matter de novo’” (citing 5 U.S.C. § 552(a)(4)(B))).
1. The Information at Issue is “Commercial” or “Financial”
The DOL maintains that the at-issue information is “commercial” or “financial” because
it regards a DynCorp business contract. See Def.’s Mem. at 11. Mr. Jordan does not dispute that
the information at issue is indeed “commercial” and “financial.” See id.The D.C. Circuit has held that the terms “commercial” and “financial” should be given
their ordinary meanings, see Wash. Post Co. v. HHS, 690 F.2d 252, 266 (D.C. Cir. 1982), which
encompass situations in which the submitter has a “commercial interest” in the records, see, e.g.,
Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006); Pub.
camera review. It is unclear how Plaintiff believes the ALJ is to satisfy himself that the records
were indeed privileged. Plaintiff’s strained reading of the various APA provisions would make
for more opaque decision-making—not less.
21
Mr. Jordan repeatedly “attempts to establish an ‘arbitrary and capricious’ [APA]
standard of review of his Complaint.” See Def.’s Reply at 2, ECF No. 32; see also Pl.’s Reply at
2–3, ECF No. 30. This plainly misstates the de novo standard of review that governs FOIA cases.
5 U.S.C. § 552 (a)(4)(B).
19
Citizen Health Research Grp., 704 F.2d at 1290. Under the “commercial interest” standard set
forth in Baker, “commercial” or “financial” information includes, for example, a non-profit
organization’s reports “describing the operations of its members’ nuclear power plants” and lens
manufacturers’ health and safety data that bears upon “marketing approval for their products.”
Baker, 473 F.3d at 319 (citing Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 830
F.2d 278, 281 (D.C. Cir. 1987); Pub. Citizen, 704 F.2d at 1290). Baker thus gives “commercial
interest” a broad definition, one that includes records that “reveal basic commercial operations,”
“relate to the income-producing aspects of a business,” or bear upon the “commercial fortunes”
of the organization. Baker, 473 F.3d at 319 (internal quotations and citations omitted).
The DOL describes the DynCorp emails as pertaining to the “status of operations issues
in connection with a business contract . . . administered and managed by [DynCorp] employees.”
See Def.’s Mem. at 11, ECF No. 20; see also Smyth Decl. ¶ 31, ECF No. 20-1 (portraying the
redacted information as “developments potentially impacting the Worldwide Protective Services
Program contract”); Def.’s Cross-Mot., Ex. 1, Attach. A (“Vaughn Index”) (characterizing the
redacted information as “concern[ing] the status of operations issues in connection with the
Worldwide Protective Services (‘WPS’) Program contract”).
The status of operations regarding a business contract easily conforms to Baker’s
“commercial interest” standard. Like in Baker, the information in the DynCorp emails bears
directly upon the “commercial fortunes” of DynCorp as a company because this information
addresses a business contract of the company. Def.’s Mem. at 11; Baker, 473 F.3d at 319(quoting Critical Mass Energy Project, 830 F.2d at 281). Thus, the Court agrees with the DOL
that the information in question is “commercial” or “financial” because it regards DynCorp’s
commercial interest in the administration and management of the WPS Program contract.
20
2. The Information in Question was Obtained from a Person
A “person,” under FOIA, includes “an individual, partnership, corporation, association,
or public or private organization other than an agency.” 5 U.S.C. § 551(2). The OALJ received
the at-issue documents “from counsel for the company [DynCorp] in the Defense Base Act
hearing before the OALJ.” Def.’s Mem. at 11, ECF No. 20. Mr. Jordan makes no argument to the
contrary. See generally Pl.’s Corrected Mot. Summ. J., ECF No. 16. Thus, the sole remaining
issue is whether the information in the DynCorp emails is privileged.
3. The Information in the Powers Email is Privileged
The DOL contends that the withheld information is privileged under Exemption 4. See
Def.’s Mem. at 12–14, ECF No. 20. Specifically, the DOL claims that it contains attorney–client
privileged communications. See Def.’s Mem. at 12. To substantiate its claim, the DOL asserts
that the DynCorp emails had “been marked ‘Subject to Attorney Client Privilege’ and
transmitted to an in-house attorney for [DynCorp] in order to apprise him of developments
potentially impacting the Worldwide Protective Services Program contract and to explicitly
request the attorney’s input and review of the information transmitted.” Smyth Decl. ¶ 31; see
also Vaughn Index (claiming the information as privileged under Exemption 4 in nearly identical
language). In conclusory terms, Mr. Jordan responds that there is no “factual basis or legal
authority that support[s] the application of any FOIA exemption to Plaintiff’s FOIA requests.”
Pl.’s Corrected Mot. Summ. J. at 28, ECF No. 16. Mr. Jordan contends that the OALJ’s “denials
of Plaintiff’s FOIA requests [ ] were notably devoid of any explanation.” Id. Mr. Jordan asserts
that the OALJ erroneously “contended that FOIA Exemption 4 applied because ALJ Merck
purportedly ruled that the [DynCorp] [e]mails were privileged” while “fail[ing] to make any
rational connection between FOIA Exemption 4 and the OALJ’s purported basis for invoking
21
such exemption.” Id. Mr. Jordan insists that “[n]o OALJ representative made any such
determination” finding the DynCorp emails privileged, and, consequently, implores the Court to
make no such determination now. Def.’s Reply at 10.
“‘Privileged’ information is generally understood to be information that falls within
recognized constitutional, statutory, or common law privileges.” Gen. Elec. Co. v. Air Force, 648
F. Supp. 2d 95, 101 n.4 (D.D.C. 2009) (citing Wash. Post Co. v. HHS, 690 F.2d 252, 267–68,
n.50 (D.C. Cir. 1982)). Though “case law examining privilege under Exemption 4 is sparse,”
Def.’s Mem. at 12, courts have repeatedly found that Exemption 4’s “privilege” requirement
covers properly-practiced attorney–client privilege, see Gen. Elec. Co., 648 F. Supp. 2d at 101
n.4; Artesian Indus., Inc. v. HHS, 646 F. Supp. 1004, 1007–08 (D.D.C. 1986); Indian Law Res.
Ctr. v. U.S. Dep’t of Interior, 477 F. Supp. 144, 149 (D.D.C. 1979). Though “the mere fact that
an attorney is listed as a recipient . . . does not make a document protected under [attorney–
client] privilege,” Vento v. I.R.S., 714 F. Supp. 2d 137, 151 (D.D.C. 2010), confidential
disclosures between an attorney and her client regarding factual and legal matters are certainly
protected by attorney–client privilege, see, e.g., Fisher v. United States, 425 U.S. 391, 403
(1976) (“Confidential disclosures by a client to an attorney made in order to obtain legal
assistance are privileged.”); Vento, 714 F. Supp. 2d at 151 (noting that “[f]actual information
provided by the client to the attorney is the essence of privilege”); Mead Data Cent., Inc. v. Air
Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (stating that attorney–client privilege protects
“confidential communications between an attorney and his client relating to a legal matter for
which the client has sought professional advice”).
The DOL’s justification—as set forth in the Smyth Declaration and Vaughn Index and
confirmed by the Court’s in camera review—is sufficiently detailed for the Court to conclude
22
that FOIA Exemption 4 applies to the Powers email, because it contained privileged
communications between an attorney and his client. The DOL describes the DynCorp emails in a
detailed manner—though obviously in such a way that does not disclose the information it seeks
to protect—and there is nothing in the record to question the presumption of good faith that the
Court affords the DOL in its explanation. The DOL explains that the DynCorp emails concerned
DynCorp’s confidential information regarding a business contract and expressly sought
DynCorp’s attorney’s input and review. Smyth Decl. ¶ 31; Vaughn Index. Additionally, the DOL
reiterated that the DynCorp emails are “marked ‘Subject to Attorney Client Privilege.’” Smyth
Decl. ¶ 31; Vaughn Index. This description supports the inference that the DynCorp emails
concern contractual information that DynCorp wishes to protect and that this contractual
information was sent to in-house attorney Christopher Bellomy for his legal advice.
However, the Court’s review of the DynCorp emails in camera has revealed that the
DOL’s justifications are much more applicable to the Powers email than they are to the Huber
email. The Powers email itself is labeled “subject to attorney–client privilege;” the Huber email
is itself not. The Powers email contains an express request for legal advice; the Huber email does
not. Indeed, although the Huber email responds to information in the Powers email and has Mr.
Bellomy “cc-ed,” it does not necessarily meet the standard for attorney–client privilege—at least
as the DOL has articulated its justification to this point.22 The Court requires further briefing
focusing specifically on the DOL’s justification to withhold the Huber email before it is prepared
to grant summary judgment for either party.
22
“[M]erely copying or ‘cc-ing’ legal counsel, in and of itself, is not enough to trigger the
attorney–client privilege.” Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013).
23
The Court therefore orders the DOL to provide further justification for withholding with
respect to the Huber email (or voluntarily release it). With respect to the Powers email, the
Court’s in camera review confirms that the content of the information and the reason it was
communicated satisfy the demands of attorney–client privilege.
B. DynCorp Did Not Waive its Attorney–Client Privilege
Mr. Jordan claims that, even if the communications were privileged when originally
made, DynCorp subsequently waived any claim to privilege in three ways. First, he argues that
DynCorp waived the privilege by submitting the DynCorp emails to the OALJ in the DBA
Proceedings. 23 See Pl.’s Corrected Mot. Summ. J. at 32–40, ECF No. 16. Second, Mr. Jordan
contends that DynCorp waived its claim of privilege by failing to ever fully justify its invocation
of privilege. See Pl.’s Corrected Mot. Summ. J. at 43. Mr. Jordan claims that DynCorp failed to
properly “identify recipients of the [DynCorp] [e]mails in [its] [r]equired [d]isclosures” and
“failed to provide information about the purpose of the [DynCorp] [e]mails that would support a
finding that the [DynCorp] [e]mails were privileged.” Id. at 43–44. Mr. Jordan asserts that this
insufficient provision of information regarding the DynCorp emails waives any privilege that
may be applicable to them. See id. Finally, Mr. Jordan argues that “[DynCorp]’s failure to show
23
In conclusory terms, Mr. Jordan asserts that DynCorp waived its privilege when non-
attorney DynCorp managers forwarded the DynCorp emails among each other, without including
Mr. Bellomy in the emails. Pl.’s Corrected Mot. Summ. J. at 41. Such forwarding does not waive
privilege. Mr. Bellomy was an attorney to DynCorp—not any or all of the individual employees
identified by Plaintiff—giving advice to DynCorp, and thus DynCorp holds the attorney–client
privilege over the documents. See Upjohn Co. v. United States, 449 U.S. 383, 394 (1981).
Internal distribution of privileged materials among corporate managers does not automatically
waive attorney–client privilege; the DynCorp managers who circulated Mr. Bellomy’s advice did
not disclose that advice to any “third party.” See In re United Mine Workers of Am. Employee
Ben. Plans Litig., 159 F.R.D. 307, 313 (D.D.C. 1994).
24
that privilege applied before ALJ Merck ruled on this issue in his February 9[, 2016] decision
should be found to constitute a waiver of the privilege.” Id. at 44.24
Conversely, the DOL argues that submission of the DynCorp emails to ALJ Merck for in
camera review did not waive DynCorp’s claim of attorney–client privilege. See Def.’s Mem. at
20. The DOL asserts that its submission made clear that DynCorp “did not intend to waive . . .
privilege by submitting the documents to” ALJ Merck and that this limited disclosure of the at-
issue documents did not “destroy[] the attorney–client privilege.” Id. at 20–21. Additionally, the
DOL argues that ALJ Merck properly found the DynCorp emails privileged during the DBA
Proceedings and that, as a result, no waiver occurred. See id. at 19–20.
Mr. Jordan’s arguments come up short. The submission of documents for judicially-
compelled in camera review comports with the principles underlying privilege; that submission
itself does not waive privilege.
Courts in this district recognize that “disclosure of documents inconsistent with the
confidential nature of the attorney–client relationships waives the attorney–client privilege” with
respect to “all other communications related to the same subject matter.” In re United Mine
Workers of Am. Employee Benefit Plans Litig., 159 F.R.D. 307, 310 (D.D.C. 1994) (citing In re
Sealed Case, 877 F.2d 976, 980–81 (D.C. Cir. 1989); In re Sealed Case, 676 F.2d 793, 818 (D.C.
Cir. 1982); Chubb Integrated Sys. v. Nat’l Bank of Wash., 103 F.R.D. 52, 63 (D.D.C. 1984)). In
24
Again in conclusory terms, Mr. Jordan also argues that DynCorp waived its privilege
by pretending to make full disclosures. See Pl.’s Corrected Mot. Summ. J. at 45. To support this
argument, Mr. Jordan cites a single, non-FOIA-related case that endorses a court’s choice to
“imply a waiver of privilege” when a party elects to participate in a voluntary disclosure program
and makes false “pretense[s] of unconditional disclosure.” In re Kellogg Brown & Root, Inc., 796
F.3d 137, 147 (D.C. Cir. 2015) (quoting In re Sealed Case, 676 F.2d at 823). Mr. Jordan’s
argument does not apply, because there is simply no evidence of any such pretense.
25
certain situations, the disclosure of information to the government can waive privilege. See, e.g.,
Artesian Industries, 646 F. Supp. at 1008 (inadvertently including an interoffice memorandum
marked “CONFIDENTIAL” along with other requested documents waived privilege);
Underwater Storage, Inc. v. U.S. Rubber Co., 314 F. Supp. 546, 548–49 (D.D.C. 1970) (turning
over a privileged letter pursuant to a consent order for examination waived attorney–client
privilege, regardless of plaintiff’s intent). However, in those situations waiver is inferred based
on the voluntariness of a party’s disclosure of information. Chubb, 103 F.R.D. at 63 (citing In re
Subpoenas Duces Tecum, No. 83–2116, slip op. at 5 (D.C. Cir. July 10, 1984); Transamerica
Computer Co., Inc. v. IBM Corp., 573 F.2d 646, 650–51 (9th Cir. 1978)). “Voluntary disclosure
means the documents were not judicially compelled.” Chubb, 103 F.R.D. at 63 n.2. As the
Supreme Court held in United States v. Zolin, 491 U.S. 554, 568 (1989), the “disclosure of
allegedly privileged materials to the district court for purposes of determining the merits of a
claim of privilege does not have the legal effect of terminating the privilege.”
The principle established in Zolin logically applies equally to ALJs. ALJs are judicial
actors who, in the matters pending before them, must make determinations on the propriety of
privilege claims asserted by the parties before them. There is no basis to conclude that they may
not avail themselves of in camera review as a useful tool in making those determinations. If
submission of information to such review jettisoned privilege, the review would have no
purpose, because any privileged document submitted for in camera review would be immediately
eligible for full disclosure under FOIA. Nor is the submission of privileged documents for in
camera review “inconsistent with the confidential nature of the attorney–client relationship.” In
re United Mine Workers, 159 F.R.D. at 310.
26
In no way did DynCorp act “inconsistent with the confidential nature of the attorney–
client relationships.” See id. Mr. Jordan unjustifiably disregards the fact that DynCorp submitted
its emails for in camera review to validate its claim of privilege in accordance with an ALJ order.
See Def.’s Cross-Mot., Ex. 1, Attach. D at 25, ECF No. 20-1 (stating that the submission of the
DynCorp emails was “in response to the Administrative Law Judge’s October 19, 2015 [o]rder”
requiring “[DynCorp] to provide an unredacted copy of the privileged communication . . . for in
camera inspection”); Joint Appendix25 (“Pl.’s App.”), Attach. 2 at 16, ECF No. 34-2 (explaining
that ALJ Merck’s order for DynCorp’s counsel to submit the DynCorp emails for in camera
review occurred during an October 19, 2015 conference call involving both Ms. Jordan’s and
DynCorp’s representatives); Def.’s Cross-Mot., Ex. 1, Attach. Q at 114–15 (reiterating that ALJ
Merck found it “abundantly clear” that the DynCorp emails “were subject to attorney client
privilege”). DynCorp’s submission was consistent with attorney–client confidentiality and did
not constitute a waiver of privilege. United Mine Workers, 159 F.R.D. at 310. Indeed, ALJ
Merck found that the attorney–client privilege applied, bolstering the Court’s holding that the
review process alone did not waive the privilege. Pl.’s App., Attach. 2 at 13.
Furthermore, the facts of the case undercut Mr. Jordan’s argument that DynCorp waived
privilege by failing to substantiate its claim upfront. The text of the February 9 order confirms
that, prior to the February 9 order: Mr. Jordan was seeking emails “over which [DynCorp]
asserted attorney–client privilege,” see Pl.’s App., Attach. 2 at 15, ECF No. 34-2; Mr. Jordan had
25
The Court notes the DOL’s Response Regarding the Joint Appendix (“Def.’s Resp.
Regarding J.A.”), ECF No. 35, expressly disavows that the DOL “agreed upon the contents of
such an appendix or consented to its filing” and “maintains that the documents included in [Pl.’s
App.] are not relevant or material to the resolution of the parties’ cross motions for summary
judgment.” Def.’s Resp. Regarding J.A. As such, the DOL contests labeling this appendix a
“Joint Appendix.” Id. The Court agrees.
27
received “an amended privilege log to address Claimant’s concerns about the [c]ompany’s
description of the privileged communication,” id. at 16; DynCorp’s Opposition Memorandum in
the DBA Proceedings and the Littler Mendelson letter submitted to ALJ Merck for in camera
review included a detailed description of the DynCorp emails and the reason for considering
them privileged similar to the rationale espoused in the Smyth Declaration and Vaughn Index,
see id. at 16; and DynCorp’s “management-level employees expressly sought legal advice from
[DynCorp]’s in-house counsel” in the DynCorp emails, id. at 18. In short, DynCorp consistently
substantiated and maintained its claim of privilege throughout the DBA Proceedings. Thus, the
Court finds that DynCorp did not waive its attorney–client privilege.
C. Defendant Provided All “Reasonably Segregable” Portions of the Powers Email
In response to Request No. 806591, the DOL disclosed a partially redacted version of the
DynCorp emails that provided unredacted emails from Mr. Imbrie, Mr. Powers and Mr. Huber
sent the morning of July 31, 2013, as well as email headings from the Huber email and the
Powers email.26 See Def.’s Cross-Mot., Ex. 1, Attach. E, ECF No. 20-1. However, the DOL
completely redacted the text of the Huber email and the Powers email. See id. In Request No.
808886—filed in relation to the redacted emails Mr. Jordan received in response to Request No.
806591—Mr. Jordan sought the disclosure of the “notation ‘Subject to Attorney Client Privilege’
and non-privileged information supporting [the] contention that . . . [DynCorp] management
‘expressly sought legal advice.’” Pl.’s Reply at 3, ECF No. 30; see also Def.’s Cross-Mot., Ex. 1,
Attach. G. The DOL maintains that the redacted emails already submitted to Mr. Jordan contain
everything that could be disclosed and that segregability would “not [be] applicable to the
26
The Huber email was sent at 8:20 AM on July 31, 2013, and the Powers email was sent
at 5:39 PM on July 30, 2013. Def.’s Cross-Mot., Ex. 1, Attach. E.
28
redacted portions” of the DynCorp emails. Smyth Decl. ¶ 27. The DOL further maintains that
“any attempt at further segregating” the DynCorp emails “would provide little or no
informational value,” and the privileged “material is inextricably intertwined” with any
unprivileged material. Id. Because the Court denies Defendant’s motion for summary judgment
with respect to the Huber email, its segregability analysis is confined to the Powers email.
FOIA requires disclosure of “any reasonably segregable portion” of an otherwise-exempt
record. 5 U.S.C. § 552(b). An agency need not disclose non-exempt portions of records that “are
inextricably intertwined with exempt portions.” Kurdyukov v. U.S. Coast Guard, 578 F. Supp. 2d
114, 128 (D.D.C. 2008); see also Mead Data, 566 F.2d at 260. “[T]o demonstrate that all
reasonably segregable material has been released, the agency must provide a ‘detailed
justification’ for its non-segregability,” but “the agency is not required to provide so much detail
that the exempt material would be effectively disclosed.” Johnson v. Exec. Office of U.S. Att’ys,
310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data, 566 F.2d at 261). Simple “conclusory
assertions” that all “reasonably segregable” information has been disclosed “fall short of the
specificity required for a court to properly determine whether the non-exempt information is, in
fact, not reasonably segregable.” Branch v. FBI, 658 F. Supp. 204, 210 (D.D.C. 1987) (citing
Mead Data, 566 F.2d at 260). Additionally, the Court “has the obligation to consider the
segregability issue sua sponte, regardless of whether it has been raised by the parties,” Johnson,
310 F.3d at 776 (citing Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1028 (D.C. Cir. 1999)), and “it is error for a district court to simply approve the withholding of
an entire document without entering a finding on segregability, or the lack thereof,” Schiller v.
NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992) (quoting Powell v. U.S. Bureau of Prisons, 927
F.2d 1239, 1242 n.4 (D.C. Cir. 1991)).
29
With that said, the law of segregability does not require a court to “order an agency to
commit significant time and resources to the separation of disjointed words, phrases, or even
sentences which taken separately or together have minimal or no information content.” Mead
Data, 566 F.2d at 261 n.55; see also Brown v. U.S. Dep’t of Justice, 734 F. Supp. 2d 99, 110–11
(D.D.C. 2010) (quoting Assassination Archives And Research Center v. C.I.A., 177 F. Supp. 2d
1, 9 (D.D.C. 2001), order amended, (Oct. 25, 2001) and judgment aff’d, 334 F.3d 55 (D.C. Cir.
2003)). In the context of documents exempted by the attorney–client privilege, it is sufficient for
an agency’s declaration to provide sufficient detail for a court “to conclude that those isolated
words or phrases that might not be redacted for release would be meaningless.” Nat’l Sec.
Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 221 (D.D.C. 2005). “If the rule were otherwise,
courts would be required to parse emails, letters and general conversations on a statement-by-
statement basis to determine which sentences or even clauses were protected and which were
not. This would only increase the costs and lengthen the delays in litigation even beyond what
they are today.” Kimberly-Clark Worldwide Inc. v. First Quality Baby Prod. LLC, 2015 WL
13022282, at *3 (E.D. Wis. Apr. 9, 2015).
As a general matter, the DOL’s Vaughn Index and attendant affidavits provide a
sufficiently “detailed justification” for the DOL’s position that it has released all non-segregable
materials contained in the Powers email, or that release of stray material would be meaningless.
The DOL bolsters its assertion that “[s]egregability is not applicable to the redacted portions”
with an in-depth explanation for withholding the information in its entirety. See Smyth Decl. at
10–12, ¶¶ 27–31; Vaughn Index. The DOL details the precise rationale supporting FOIA
Exemption 4’s application to the Powers email. See id. The Vaughn Index first explains that the
Powers email is “commercial” or “financial” because it “concern[s] the status of operations
30
issues in connection with the WPS Program contract,” “the submitter of the information has a
commercial interest in” the Powers email, and the Powers email “relate[s] to business or trade
within the ordinary meanings of those terms.” Vaughn Index. Finally, the Vaughn Index explains
that the Powers email is privileged because it was “transmitted to an in-house attorney for
[DynCorp] in order to apprise him of developments potentially impacting the contract,”
“explicitly request[ed] the attorney’s input and review of the information transmitted,” and was
“clearly marked ‘Subject to Attorney Client Privilege.’” Vaughn Index.
The specific materials that Mr. Jordan seeks—any statement by a DynCorp employee
“that constituted an express request for legal advice” and the notation “Subject to Attorney–
Client Privilege,” Compl. ¶ 7—were justifiably not produced. The first category is, by its very
nature, not segregable. Any “express requests for legal advice” made by DynCorp employees to
DynCorp’s lawyer would themselves be privileged because they were express requests for legal
advice. See FTC v. Boehringer Ingelheim Pharm., Inc., 180 F. Supp. 3d 1, 30 (D.D.C. 2016)
(suggesting that “express requests for or provision of legal advice” are prototypically privileged);
see also P.&B. Marina, Ltd. v. Logrande, 136 F.R.D. 50, 53 (E.D.N.Y. 1991), aff’d sub nom.
P&B Marina Ltd. v. LoGrande, 983 F.2d 1047 (2d Cir. 1992) (noting that attorney–client
privilege “protects communications that . . . [are] express requests for legal advice”).
And, assuming without deciding that it was not itself privileged, the DOL properly
withheld the notation “Subject to Attorney–Client Privilege.” Beyond bolstering Defendant’s
claim that it shows the communications were privileged, the sentence “Subject to Attorney Client
Privilege” is “an isolated . . . phrase[] . . . [of which] release would be meaningless.” Nat’l Sec.
Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 221 (D.D.C. 2005). Mr. Jordan’s request for the
emails with this notation unredacted is transparently not an attempt to ascertain “what [his]
31
government is up to,” see Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004),
but is instead a fishing expedition with which he hopes to catch the government red-handed.
Stated differently, after he was presented with sworn evidence that the documents contained the
notation, he responded: “prove it.” But the government’s affiant is entitled to a presumption of
good faith. See SafeCard Servs., Inc., 926 F.2d at 1200. Without any evidence rebutting that
presumption, the Court would have no reason to question that the privilege notation alone—
which, by Mr. Jordan’s own logic sheds no light on the substantive contents of the privileged
conversation—is a boilerplate, “isolated” phrase in an otherwise-privileged document, of which
“release would be meaningless.” See Nat’l Sec. Archive Fund, Inc., 402 F. Supp. 2d at 221.
Indeed, the Court’s in camera review confirms this to be the case. Regardless, the Court will not
adopt a rule that requires agencies “to parse [privileged] emails, letters and general conversations
on a statement-by-statement basis to determine which sentences or even clauses were protected
and which were not” when there is no indication that the clauses have any substantive meaning.
See Kimberly-Clark Worldwide Inc., 2015 WL 13022282, at *3.
Taken together, the DOL “supplied a ‘relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlate[ed] those claims
with the particular part of [the] withheld document,” and demonstrated that the release of certain
portions would be meaningless. Hertzberg v. Veneman, 273 F. Supp. 2d 67, 90 (D.D.C. 2003)
(quoting Schiller, 964 F.2d at 1210); Nat’l Sec. Archive Fund, Inc., 402 F. Supp. 2d at 221. This
justification is not “conclusory” or “vague” and represents the DOL’s good faith effort to
segregate privileged and non-privileged information. The DOL reviewed the DynCorp email
chain, found the Powers email privileged, redacted that privileged information and disclosed all
other information—except the Huber email, which will be subject to further litigation—to Mr.
32
Jordan. Def.’s Cross-Mot., Ex. 1, Attach. E. This precise segregation, coupled with the DOL’s
Vaughn Index, indicated to the Court that the DOL provided all meaningful, reasonably
segregable information to Mr. Jordan. The Court’s in camera review confirmed the DOL’s
justifications with respect to the Powers email. Because the DOL “show[ed] with reasonable
specificity why material could not be segregated,” the DOL has “[met] its burden under FOIA.”
Billington v. U.S. Dep’t of Justice, 301 F. Supp. 2d 15, 24 (D.D.C. 2004) (citing Armstrong v.
Executive Office of the President, 97 F.3d 575, 579 (D.C. Cir. 1996)).
D. Defendant Satisfactorily Responded to Request No. 819736
In Request No. 819736, submitted on July 5, 2016, Mr. Jordan sought (1) documentation
evidencing or providing a factual or legal basis for “the unredacted versions of the [DynCorp]
emails” being placed under seal and (2) “documentation submitted to the ALJ” opposing FOIA
Request No. 806591. See Def.’s Cross-Mot., Ex. 1, Attach. F at 35, ECF No. 20-1. Mr. Jordan
asserts that the DOL “failed to respond at all” to Request No. 819736 and that this failure to
respond means that the DOL must disclose the documents at issue. See Pl.’s Corrected Mot.
Summ. J. at 23, ECF No. 16. Furthermore, Mr. Jordan alleges that the “DOJ failed to cite any
evidence establishing that the DOL actually did respond at all . . . to the July 5 [r]equest in any
manner that could constitute a response under FOIA . . . .” Pl.’s Reply at 8, ECF No. 30. Mr.
Jordan asserts that this failure to respond necessitates the full disclosure of the documents
covered by Request No. 819736. Pl.’s Mot. Summ. J. at 23–24.
FOIA requires an agency to respond to a FOIA request within 20 business days. 5 U.S.C.
§ 552(a)(6)(A)(i); Pl.’s Corrected Mot. Summ. J. at 23. In the context of a federal court case, if
the agency has, “however belatedly, released all nonexempt material” the court has “no further
judicial function to perform under the FOIA.” Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir.
33
1987) (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)); see also Heily v. DOD, 896
F. Supp. 2d 25, 37 (D.D.C. 2012) (plaintiff’s receipt of FOIA-requested documents while
litigation was still pending mooted plaintiff’s FOIA claims).
Here, the DOL did not respond to Request No. 819736 until December 14, 2016, which
was after Mr. Jordan filed his motion for summary judgment and well outside of the statutory
timeframe.27 See Def.’s Statement Material Facts Which Def. Contends No Genuine Issue
(“Def.’s Statement”) ¶ 29, ECF No. 20;28 Def.’s Cross-Mot., Ex. 2, Attach. HH at 29–30, ECF
No. 20-2. But regardless of the DOL’s lag in responding to Mr. Jordan’s request, it has released
the documents requested in Request No. 819736. See Def.’s Cross-Mot., Ex. 2, Attach. HH at
29–30. To be specific, the DOL conducted a search, located 26 pages of responsive documents,
reviewed them, and provided them to Mr. Jordan unredacted. See Def.’s Statement ¶ 29. In
response to Mr. Jordan’s request seeking a basis for placing the DynCorp emails under seal, the
DOL enclosed ALJ Merck’s February 9, 2016 order29 and ALJ Merck’s January 27, 2016
27
The DOL contends that FOIA Request Nos. 819736 and 808886 were received “on the
same date,” “within two hours of each other outside of regular business hours, were addressed to
the same DOL employee, were related in subject matter,” “were brief, and appeared to be the
same or substantially similar.” Def.’s Statement ¶ 24, ECF No. 20. As such, the DOL presumed
the requests were “duplicative,” id. ¶ 26, and the DOL did not respond to or assign Request No.
819736 at that time, id. ¶ 26. However, even a cursory review of both requests would have
revealed salient differences between the information sought in FOIA Request Nos. 819736 and
808886. Compare Def.’s Cross-Mot., Ex. 1, Attach. F at 35, ¶¶ 1–2 with Def.’s Cross-Mot., Ex.
1, Attach. G at 39, ¶¶ 1–2. With that said, there is no indication that this oversight was due to bad
faith rather than inattentiveness.
28
Def.’s Statement is included in Def.’s Cross-Mot., ECF No. 20. For precision, the
Court will refer directly to the Statement when appropriate.
29
The “Order Denying Claimant’s Motion to Compel Production of Emails over which
Employer Has Asserted Attorney–Client Privilege and Order Denying Claimant’s Motion for
Sanctions.” Def.’s Cross-Mot., Ex. 2, Attach. HH at 29. This order had already been issued to
Mr. Jordan on February 9, 2016 in, relation to the OALJ DBA Proceedings. See Def.’s Reply at
10 n.15, ECF No. 32.
34
order.30 Def.’s Cross-Mot., Ex. 2, Attach. HH at 29. In response to Mr. Jordan’s request seeking
documentation opposing Request No. 806591, the DOL found “no document in response to
FOIA Number F2016-806591 opposing a release under FOIA.” Id. However, the DOL enclosed
the Littler Mendelson letter31 dated October 28, 2015 on the basis that Mr. Jordan’s request “may
implicate a general preexisting opposition to release of documents within the record before Judge
Merck” in the DBA Proceedings. Id. at 29–30. Though the DOL’s response came five months
after the request, the DOL “processed [Request No. 819736] and provided all non-privileged
documents that were responsive to the request,” thus “fulfill[ing] its obligation under FOIA
despite the delay in processing.”32 Def.’s Reply at 11, ECF No. 32. Therefore, Mr. Jordan’s
claims in relation to Request No. 819736 are denied as moot. See, e.g. Tijerina, 821 F.2d at 799.
E. Mr. Jordan’s Defense Base Act Arguments are Beyond the Scope of this Litigation
Mr. Jordan argues that there are additional issues before the Court related to his DBA
Proceedings. See Pl.’s Corrected Mot. Summ. J. at 12–15, 18–19, 25–40, ECF No. 16. Mr.
Jordan argues that the OALJ failed to establish that Exemption 4 applied, see Pl.’s Reply at 4,
ECF No. 30, that the conclusions and findings supporting the DOL’s denials of Mr. Jordan’s
FOIA requests were “unwarranted by the facts” and “arbitrary, capricious, [and] an abuse of
discretion” under the APA, see id. at 4–5, that the OALJ was required to “determine the
30
The “Order Denying Claimant’s Motion Requesting That This Court ‘Publish’ an
Alleged Ex Parte Communication and Order Warning Counsel of the Potential Consequences of
Filing Frivolous Motions and Order Denying Claimant’s Request for Subpoenas at this Time.”
Def.’s Cross-Mot., Ex. 2, Attach. HH at 29.
31
The Littler Mendelson letter had already been issued to Mr. Jordan on June 28, 2016,
in response to Request No. 806591. See Def.’s Cross-Mot., Ex. 1, Attachs. C–D.
32
Plaintiff seems to argue that these documents are not responsive to his request.
Regardless, Plaintiff has not alleged that any other responsive documents exist that were not
provided to him.
35
[DynCorp] [e]mails were privileged” but failed to do so, see id. at 5, and that “the OALJ’s denial
of FOIA Request 808886 was blatantly arbitrary and capricious and an abuse of discretion,” id.
at 5. However, all of these issues are beyond the scope of this FOIA litigation.
Mr. Jordan appears to be attempting to use this FOIA action to re-litigate issues of the
DBA Proceedings, but that is outside the scope of the Court’s review under FOIA. FOIA only
empowers the Court “to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant.” 5 U.S.C. §
552(a)(4)(B). The Court may not use FOIA to revisit the OALJ’s actions in the DBA
Proceedings. Moreover, the Court is not to review the basis for withholding provided by the
agency at the administrative level. See Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 269
n.6 (D.D.C. 2016) (explaining that “an agency may invoke a FOIA exemption for the first time
before the district court,” despite not having invoked the exception at the administrative level).
Therefore, the Court dismisses Mr. Jordan’s various claims and contentions raised in his motion
for summary judgment regarding the events of his DBA Proceedings or at the administrative
level.
F. The Court Denies Mr. Jordan’s Rule 11 Motions Because
Neither Motion Identifies Sanctionable Behavior
1. Mr. Jordan’s First Rule 11 Motion
Mr. Jordan first moved for sanctions on the basis that the DOL did not provide a legal or
factual basis for its motion for extension of time to file an answer.33 Pl.’s First Rule 11 Mot. at 1,
33
The Court notes that Mr. Jordan’s October 16, 2016 communication with DOJ
Attorney Jason Cohen suggests that Mr. Jordan satisfied Rule 11’s “safe harbor” provision. See
Fed. R. Civ. P. 11(c)(2); Pl.’s First Rule 11 Mot., Ex. 1 at 5, ECF No. 10-1. That communication
occurred more than 21 days before Mr. Jordan filed this Rule 11 motion. Fed. R. Civ. P.
11(c)(2); Pl.’s First Rule 11 Mot.; Pl.’s First Rule 11 Mot., Ex. 1 at 5. The fact that DOL does
36
ECF No. 10; Def.’s First Mot. Extension Time Answer or Otherwise Resp. Compl. (“Def.’s Mot.
Extension Answer”), ECF No. 5; October 26, 2016 Minute Order. Because the Court granted the
DOL’s motion, Mr. Jordan asks the Court to “reverse [its] October 26 order and issue an order
finding that [the DOL] admitted each factual allegation in the Complaint.” Pl.’s First Rule 11
Mot. at 12.
Mr. Jordan specifically argues that the DOL’s counsel failed to identify or address the
controlling statute governing the action before the Court. See Pl.’s First Rule 11 Mot. at 5. He
also argues that the DOL’s implicit contention that it had shown good cause for the requested
extension was not warranted by existing law or by a nonfrivolous argument. See id. at 6. Third,
Mr. Jordan asserts that the DOL’s counsel failed to comport with D.C. Civil Rule 7(m) by
making no effort “to narrow the areas of disagreement” between the parties. See id. at 7. Fourth,
Mr. Jordan claims that the DOL’s counsel failed to include in its motion required safeguards
against frivolousness and ex parte communications. See id. at 9. Fifth, Mr. Jordan claims that the
DOL’s counsel ensured that Mr. Jordan would be denied notice of and opportunity to respond to
the DOL’s motion. See id. at 10. Finally, Mr. Jordan argues that the DOL deserves to be
sanctioned on the basis that its motion was filed for a clearly improper purpose. See id. at 11.
The Court denies Mr. Jordan’s first motion for Rule 11 sanctions because Mr. Jordan (1)
ignores the DOL’s specific statement that FOIA governs this case; (2) misstates that this Court
found no showing of good cause in granting the DOL’s motion; (3) misunderstands the
requirements imposed by D.C. Civil Rule 7(m); (4) asks for safeguards against frivolousness and
ex parte communications when the DOL’s motion contained neither; and (5) unjustifiably
not challenge this assumption strengthens this inference. See generally Def.’s Opp’n Pl.’s First
Rule 11 Mot. Thus, the Court does not consider whether Mr. Jordan failed to satisfy the “safe
harbor” provision in making this motion.
37
conjures bad faith based, for example, on the DOL’s mistaken assumption that Mr. Jordan
received notice of its motion via CM/ECF.
Under Federal Rule of Civil Procedure 11(b), courts may impose sanctions if “a pleading,
written motion, or other paper . . . [is] presented for any improper purpose[;] . . . the claims,
defenses, and other legal contentions therein are [un]warranted by existing law[;] . . . the
allegations and other factual contentions have [no] evidentiary support[; or] the denials of factual
contentions are [un]warranted on the evidence[.]” The Court applies “an objective standard of
reasonable inquiry on represented parties who sign papers or pleadings.” Bus. Guides, Inc. v.
Chromatic Commc’ns Enters., 498 U.S. 533, 554 (1991). Rule 11 is designed to ensure that
allegations made in filings “are supported by a sufficient factual predicate at the time that the
claims are asserted.” City of Yonkers v. Otis Elevator Co., 106 F.R.D. 524, 525 (S.D.N.Y. 1985)
(emphasis removed). As such, Rule 11 “states unambiguously that [the attorney] must conduct a
‘reasonable inquiry’ or face sanctions.” Bus. Guides, 498 U.S. at 548.
In deciding on a Rule 11 motion, courts consider (1) whether each presenting attorney
“conducted a reasonable inquiry,” (2) whether each presenting attorney “determined that [the]
papers filed with the court are well grounded in fact [and] legally tenable,” and (3) whether the
papers were “interposed for any improper purpose.” Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 393 (1990). This Court has “discretion to determine both whether a Rule 11 violation has
occurred and what sanctions should be imposed if there has been a violation.” Cobell v. Norton,
211 F.R.D. 7, 10 (D.D.C. 2002) (internal quotations omitted). Under Rule 11(c)(1), if a rule has
been violated, the court may impose sanctions on “any attorney, law firm, or party that violated
the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1). “The sanction should be
imposed on the persons—whether attorneys . . . or parties—who have violated the rule or may be
38
determined to be responsible for the violation.” Fed. R. Civ. P. 11(c)(1) advisory committee’s
note to 1937 amendments (subdivisions (b) and (c)); see also Reynolds v. U.S. Capitol Police
Board, 357 F. Supp. 2d 19, 23–24 (D.D.C. 2004). Courts do not impose Rule 11 sanctions
lightly; such sanctions are an extreme punishment for filing pleadings that frustrate judicial
proceedings. See Henok v. Chase Home Fin., LLC, 926 F. Supp. 2d 100, 104 (D.D.C. 2013). As
such, the purposes of Rule 11 include “protect[ing] the court from frivolous and baseless filings
that are not well grounded [or are] legally untenable.” Cobell, 211 F.R.D. at 10.
Mr. Jordan’s argument that the DOL’s counsel failed to identify or address the
controlling statute governing the action before the Court ignores clear language in the DOL’s
motion. See Pl.’s First Rule 11 Mot. at 5; Def.’s Mot. Extension Answer at 1, ECF No. 5. The
DOL acknowledged that this case was brought “under the Freedom of Information Act,” and the
motion demonstrated the DOL’s familiarity with FOIA’s thirty-day response requirement by
referencing the date of service—September 28, 2016—the deadline to respond thirty days later,
and the showing of “good cause.” See id. ¶ 2; Def.’s Mot. Extension Answer, Proposed Order at
1, ECF No. 5-1; 5 U.S.C. § 552(a)(4)(C). Furthermore, the DOL did not “[choose] to eliminate
the statutory requirement in FOIA to obtain the benefit of the FRCP rule.” Pl.’s First Rule 11
Mot. at 5. The DOL sought, under Rule 6, to obtain a permitted extension beyond FOIA’s thirty-
day requirement. 5 U.S.C. § 552(a)(4)(C). Mr. Jordan’s first argument provides no grounds for
Rule 11 sanctions.
Mr. Jordan’s second argument that the DOL’s implicit contention of good cause had no
basis hinges on the assumption that the Court found no showing of good cause. See Pl.’s First
Rule 11 Mot. at 6. Mr. Jordan alleges that the DOL failed to “explicitly” show good cause and
instead “asserted that legal contention implicitly” with a “cursory” and “boilerplate” explanation
39
for its request for an extension. Id. (italics omitted). In particular, Mr. Jordan implies that the
DOL could not have shown good cause given that Mr. Jordan’s “FOIA request pertain[ed] to a
single document consisting of only three pages that the [DOL] had identified and located many
months ago.” Id. at 7. However, the Court considered the DOL’s explanation that “[a]dditional
time [was] necessary to complete the review and research, provide undersigned counsel with a
litigation report, and draft and review an appropriate response to the Complaint.” Def.’s Mot.
Extension Answer ¶ 2. Though the DynCorp emails indeed comprise only a few pages, Mr.
Jordan’s Complaint pertained to four separate FOIA requests, two requests for reconsideration,
and two appeals, and Mr. Jordan “failed to attach to the Complaint any of the alleged FOIA
requests, reconsideration requests, or appeals.” See Def.’s Opp’n Mot. Sanctions Under Rule 11
(“Def.’s Opp’n Pl.’s First Rule 11 Mot.”) at 4, ECF No. 17. The Court had ample basis to
conclude that preparing an adequate response to the Complaint required additional time. See
Def.’s Opp’n Pl.’s First Rule 11 Mot. at 4; see generally Compl. Although Defendant’s motion
did not consist of the excessive briefing characteristic of Plaintiff’s filings, the limited
information provided was more than sufficient to justify the routine relief sought—a 30 day
extension at the beginning of a FOIA case. The Court, once again, finds that the DOL showed
good cause for an extension under 5 U.S.C. § 552(a)(4)(C).
Mr. Jordan’s third argument misunderstands the requirements imposed by D.C. Civil
Rule 7(m). See Pl.’s First Rule 11 Mot. at 7–9. He alleges that he “repeatedly attempted to work
with [the DOL]’s counsel to narrow the areas of disagreement” but received nothing in return
from the DOL’s counsel. Id. at 8. He cites four reasons that he believes this constituted
sanctionable conduct. First, he argues that the DOL’s counsel “refrained from explaining why he
contended that the Complaint was not served until September 28, 2016” when Mr. Jordan
40
asserted that it was served on September 27, 2016. See Pl.’s First Rule 11 Mot. at 8, ECF No. 10;
Pl.’s First Rule 11 Mot., Ex. 2 at 8, ECF No. 10-1. However, the DOL explained its reason in its
opposition to sanctions. See Def.’s Opp’n Pl.’s First Rule 11 Mot. at 3 n.3. Though “the
Complaint was received in the U.S. Attorney mailroom on September 27, 2016, it was not
received by the civil-process clerk at the United States [A]ttorney’s office until September 28,
2016.” Id.; see also Pl.’s First Rule 11 Mot., Ex. 3 at 10, ECF No. 10-1. But even putting this
explanation aside, given that the motion for extension was timely filed on October 25, 2016,
regardless of whether service was effected on the 27th or 28th, no consultation was necessary on
this point.
Mr. Jordan similarly claims that the “[DOL]’s counsel did not even begin to attempt to
provide any indication that good cause could be shown for requesting any extension, much less a
full 30 day extension.” Pl.’s First Rule 11 Mot. at 9. However, the DOL emailed Mr. Jordan “to
request a 30-day extension and explained the reason for the request within said email.” Def.’s
Opp’n Pl.’s First Rule 11 Mot. at 4, ECF No. 17; see also Pl.’s First Rule 11 Mot., Ex. 4 at 13,
ECF No. 10-1 (“At this time we are gathering the applicable records and researching your
claims[] and require additional time to prepare a responsive pleading.”). The DOL’s motion
demonstrated good cause through its rationale that “[a]dditional time [was] necessary to
complete the review and research, provide undersigned counsel with a litigation report, and draft
and review an appropriate response to the Complaint.” Def.’s Mot. Extension Answer ¶ 2. As set
forth above, given the routine relief sought, such limited justification sufficed. That Mr. Jordan
found the DOL’s rationale for requesting additional time unpersuasive, see Pl.’s First Rule 11
Mot., Ex. 4 at 12, ECF No. 10-1, does not render it sanctionable.
41
Mr. Jordan also claims that the DOL’s failure to respond to his statement that Chief ALJ
Henley, ALJ Merck, Ms. Johnson, could simply “admit or deny all allegations in the Complaint
pertaining to them” within thirty minutes to two hours is sanctionable. Pl.’s First Rule 11 Mot. at
9. Local Civil Rule 7(m) merely requires parties to attempt a good-faith effort to “narrow the
areas of disagreement” concerning a nondispositive motion. Mr. Jordan’s argument for sanctions
does not concern narrowing the area of disagreement for the DOL’s motion for an extension, so
sanctions are unwarranted. Mr. Jordan finally alleges that the DOL did not respond to his request
that the DOL “establish that Judge Merck’s statement was accurate.” Pl.’s First Rule 11 Mot. at
9; Pl.’s First Rule 11 Mot., Ex. 1 at 5. Similarly, that contention has nothing to do with
narrowing the areas of disagreement regarding the DOL’s motion for an extension. Thus,
sanctions based on Rule 7(m) for this contention would also be improper.
Mr. Jordan’s fourth argument regarding the DOL’s counsel’s failure to safeguard against
frivolousness and ex parte communications conjures frivolousness and ex parte communications
where none exist. See Pl.’s First Rule 11 Mot. at 9–10. As to frivolousness, Mr. Jordan maintains
that “[the DOL]’s counsel failed to state with any particularity any basis for requesting any
extension, much less a full 30 day extension.” Id. at 10. The Court has dealt with this contention
ad nauseam—it is wrong. As for the ex parte allegation, the DOL’s motion simply cannot be
properly considered ex parte. See supra note 19. Mr. Jordan’s claim regarding frivolousness and
ex parte communications is insufficient—perhaps itself to the point of frivolousness—and thus
sanctions against the DOL are not justified.
Mr. Jordan’s fifth argument—that the DOL’s counsel acted in such a way that meant Mr.
Jordan would be denied notice of and opportunity to respond to the DOL’s motion to extend
time—unjustifiably assumes sanctionable bad faith on behalf of the DOL. See Pl.’s First Rule 11
42
Mot. at 10. Mr. Jordan claims that the DOL’s counsel failed to ascertain whether Mr. Jordan
received any notice of filing from the Court. See id. at 11. The docket reflects that this Court
granted Mr. Jordan CM/ECF access on October 19, 2016, five days before the motion for an
extension of time was filed. See Order Granting Pl.’s Mot. CM/ECF User Name and Password at
2, ECF No. 4. As such, the DOL reasonably assumed that Mr. Jordan “was receiving ECF
notification of all filings by the time the motion for extension of time was filed on October 25,
2016.” Def.’s Opp’n Pl.’s First Rule 11 Mot. at 6. The DOL relied on Local Rule 5.4(d) which
states that “[e]lectronically filing a document operates to effect service of the document on pro
se parties who have obtained CM/ECF passwords,” and that “[t]he requirement of a certificate of
service or other proof of service is satisfied by the automatic notice of filing sent by the CM/ECF
software to pro se parties who have obtained CM/ECF passwords.” See LCvR 5.4(d)(1)–(2);
Def.’s Opp’n Pl.’s First Rule 11 Mot. at 6. And even assuming that Mr. Jordan was denied his
opportunity to respond to the motion because he did not yet formally have ECF access, this
denial did not arise from any sanctionable behavior by the DOL. Moreover, Mr. Jordan had
knowledge from at least October 14, 2016, that the DOL intended to file this motion, see Pl.’s
First Rule 11 Mot., Ex. 4 at 12, ECF No. 10-1, and the DOL understandably figured that Mr.
Jordan received notice via CM/ECF, see Def.’s Opp’n Pl.’s First Rule 11 Mot. at 6. The DOL’s
oversight had no effect on the Court’s October 26, 2016 Minute Order. But even putting all this
aside, the “minor errors [Mr. Jordan] allege[s] do not warrant an ‘extreme punishment’” like the
one he proposes. Landrith v. Roberts, 999 F. Supp. 2d 8, 23 (D.D.C. 2013) (citing Naegele v.
Albers, 355 F. Supp. 2d 129, 144 (D.D.C. 2005)).34
34
Notably, Mr. Jordan does not explain how his erroneous labeling of the “Joint
Appendix,” see ECF No. 34; ECF No. 35, is a mere oversight but Defendant’s counsel’s
oversight is sanctionable.
43
Finally, Mr. Jordan conjures up an improper purpose on behalf of the DOL in filing its
motion for an extension. See Pl.’s First Rule 11 Mot. at 11–12. Mr. Jordan accuses the DOL of
filing its motion to “cause unnecessary delay.” See id. (citing Fed. R. Civ. P. 11(b)(1)). However,
Mr. Jordan provides no evidence beyond the date the DOL filed its motion to indicate such an
improper purpose. See Pl.’s First Rule 11 Mot. at 11–12. Thirty-day extensions at the beginning
of FOIA cases are common. Without evidence, Plaintiff’s claim remains mere speculation, and
sanctions are inappropriate based solely on speculative, unsupported attributions of bad faith. For
the foregoing reasons, the Court denies Mr. Jordan’s First Motion for Rule 11 Sanctions.
2. Mr. Jordan’s Second Rule 11 Motion
Mr. Jordan’s second motion for Rule 11 sanctions relates to “the factual or legal
contentions” contained in the DOL’s (1) First Motion for Extension of Time to File Opposition
to Motion for Summary Judgment, and Proposed Briefing Schedule (“Def.’s Mot. Extension
Opp’n Pl.’s Mot. Summ. J.”), ECF No. 11; (2) Opposition to Plaintiff’s Motion for Sanctions
Under Rule 11, Def.’s Opp’n Pl.’s First Rule 11 Mot., ECF No. 17; (3) Answer, ECF No. 14; and
(4) Memorandum Supporting the Defendant’s Opposition to Plaintiff’s Motion for Summary
Judgment, Def.’s Mem., ECF No. 20. Pl.’s Second Rule 11 Mot. at 1., ECF No. 33.35 As
sanctions, Mr. Jordan requests that (1) each DOJ attorney that signed or reviewed the filings36
provide a declaration describing the role he or she played with respect to the contentions in the
35
The Court notes that Mr. Jordan’s February 2, 2017 communication with Mr. Cohen
suggests that Mr. Jordan satisfied Rule 11’s “safe harbor” provision. See Fed. R. Civ. P. 11(c)(2);
Pl.’s Second Rule 11 Mot., Ex. 1 at 1, ECF No. 33-1. That communication occurred at least 21
days before Mr. Jordan filed this Rule 11 motion. See Fed. R. Civ. P. 11(c)(2); Pl.’s Second Rule
11 Mot.; Pl.’s Second Rule 11 Mot., Ex. 1 at 1. Thus, the Court does not consider whether Mr.
Jordan failed to satisfy the “safe harbor” provision in making this motion.
36
This includes Jason T. Cohen (Assistant United States Attorney), Channing D. Phillips
(United States Attorney) and Daniel Van Horn (Chief, Civil Division). See Pl.’s Second Rule 11
Mot., Proposed Order at 2, ECF No. 33-2.
44
filings and the actual filing of the at-issue documents and (2) the Court impose disciplinary
action upon whichever attorney bears responsibility for filing the contentions and documents at
issue in this motion. See Pl.’s Second Rule 11 Mot. at 15; Pl.’s Second Rule 11 Mot., Proposed
Order at 2–3, ECF No. 33-2.
Mr. Jordan first contends that no DOJ attorney established that a reasonable inquiry had
been conducted before filing the DOL’s Answer. Pl.’s Second Rule 11 Mot. at 7; Answer. He
also claims that no DOJ attorney established that a reasonable inquiry had been conducted
regarding the alleged ex parte nature of the DOL’s October 25 motion for an extension of time.
See Pl.’s Second Rule 11 Mot. at 9; Def.’s Mot. Extension Answer. Finally, Mr. Jordan asserts
that each at-issue filing had the clearly improper purpose of “causing unnecessary delay.” See
Pl.’s Second Rule 11 Mot. at 14.
The Court denies Mr. Jordan’s second Rule 11 motion because (1) the DOL conducted a
reasonable inquiry regarding the Answer’s evidentiary support; (2) it was unreasonable to expect
an inquiry into the ex parte nature of the DOL’s motion when there was nothing ex parte about it;
and (3) Mr. Jordan again, without any justification, surmises bad faith by his adversary. The
legal standard governing this motion is the same standard that governs Mr. Jordan’s first Rule 11
motion.
Mr. Jordan’s contention that no DOJ attorney established that a reasonable inquiry had
been conducted regarding the evidentiary support of the DOL’s Answer misinterprets what a
“reasonable inquiry” requires. See Pl.’s Second Rule 11 Mot. at 7; Answer. The drafters of Rule
11 provide insight into what constitutes a “reasonable inquiry.” The Advisory Committee Note
states:
[W]hat constitutes a reasonable inquiry may depend on such factors as how much time for
investigation was available to the signer; whether he had to rely on a client for information
45
as to the facts underlying the pleading, motion, or other paper; whether the pleading,
motion, or other paper was based on a plausible view of the law; or whether he depended
on forwarding counsel or another member of the bar.
Fed. R. Civ. P. 11 advisory committee note, 97 F.R.D. 198, 199 (1983). The Supreme Court built
upon this guidance, cementing the standard for “a reasonable inquiry into the facts and the law
before filing” as “one of reasonableness under the circumstances.” Bus. Guides, 498 U.S. at 551.
Mr. Jordan believes that the DOL’s assertion that it “lack[ed] knowledge or information
sufficient to admit or deny the allegations” in several paragraphs of the complaint demonstrates
the lack of a reasonable inquiry. Pl.’s Second Rule 11 Mot. at 7; Answer ¶¶ 8–9, 21–34. These
portions of Mr. Jordan’s complaint “pertained to the knowledge, beliefs or actions of ALJ Merck
or Chief ALJ Henley,” and, as such, Mr. Jordan argues that it is impossible that no one at the
DOL—including ALJ Merck and Chief ALJ Henley at the OALJ—possessed sufficient
knowledge or information. See Pl.’s Second Rule 11 Mot. at 7.
Sanctions like the ones sought-after by Mr. Jordan require “clear and convincing
evidence . . . of the predicate misconduct” and “of bad faith.” 3E Mobile, LLC v. Global
Cellular, Inc., 222 F. Supp. 3d 50, 53–54 (D.D.C. 2016) (citing Shepherd v. ABC, Inc., 62 F.3d
1469, 1478 (D.C. Cir. 1995)); Parsi v. Daioleslam, 778 F.3d 116, 131 (D.C. Cir. 2015)). There is
no evidence, let alone clear and convincing evidence, that the DOL did not engage in a
reasonable inquiry. And, the DOL addressed the issues raised in Mr. Jordan’s Complaint in its
Cross-Motion for Summary Judgment and related filings.37
37
Because FOIA cases are routinely decided based on cross-motions for summary
judgment, an answer often plays an insignificant role in the litigation. Plaintiff fails to show that
the alleged incomplete information provided was material to any claim or defense at issue in this
litigation.
46
Mr. Jordan’s claim regarding a reasonable inquiry into the ex parte nature of the DOL’s
motion also comes up short. As already discussed, the DOL’s motion cannot be properly
considered ex parte because “[Mr. Jordan] was consulted about its filing beforehand[] and it was
publicly filed on the docket.” Def.’s Opp’n Pl.’s First Rule 11 Mot. at 5; see also North, 17 F.
Supp. 3d at 4 (noting that communications “filed on the public docket and thus accessible to all
cannot, by definition, be considered ex parte communications.”). This argument by Mr. Jordan,
too, fails.
Finally, Mr. Jordan asserts that each at-issue filing had the clearly improper purpose of
“causing unnecessary delay.” Pl.’s Second Rule 11 Mot. at 14. In this assertion, Mr. Jordan
erroneously contends that the DOL’s motion for an extension to file constituted an ex parte
communication, fails to provide any evidence of the DOJ causing unnecessary delay, and
attributes a competing opinion on how to the apply the law and facts of this case to a desire to
cause unnecessary delay. See Pl.’s Second Rule 11 Mot. at 14–15. Even more accusatorily, Mr.
Jordan asserts that the DOL evinced its desire to cause unnecessary delay by filing its answer on
November 28, 2016, filing its cross-motion for summary judgment on December 23, 2016, and
proposing a “very protracted briefing schedule” to the Court. Pl.’s Second Rule 11 Mot. at 15.
The DOL filed its answer and its cross-motion for summary judgment within the timeframe
ordered by the Court, and the Court adopted the DOL’s proposed briefing schedule. See
generally Def.’s Mot. Extension Answer; October 26, 2016 Minute Order; Answer; Def.’s Mot.
Extension Opp’n Pl.’s Mot. Summ. J.; November 23, 2016 Minute Order; Def.’s Cross-Mot.
There is simply no basis for the contention that the DOL made any filings to cause unnecessary
delay. If any party can be accused of unnecessarily delaying this action, it is Mr. Jordan, who has
unnecessarily filed a multitude of repetitive, unsupported, and, ultimately, meritless pleadings.
47
* * *
The Court appreciates zealous advocacy. But Mr. Jordan’s arguments for sanctions under
Rule 11—most of which call directly into question the integrity of opposing counsel—are
baseless, if not frivolous themselves. The Court notes that Mr. Jordan is a lawyer and an active
member of the New York bar. See New York State Unified Court System, Attorney Detail: Jack
R.T. Jordan, https://iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId=5519085. The
Court reminds Mr. Jordan that “Rule 11 is not a toy.” Draper & Kramer, Inc. v. Baskin-Robbins,
Inc., 690 F. Supp. 728, 732 (N.D. Ill. 1988). Sanctioning the conduct of a litigant is a solemn
endeavor. “[A]n accusation of such wrongdoing is equally serious.” Id. The Court admonishes
Mr. Jordan to “think twice” before moving for sanctions in the future. See id. Mr. Jordan’s
cavalier approach to sanctions motions could result in him being sanctioned himself. See id.(imposing sanctions, sua sponte, on a party for baselessly invoking Rule 11 in its unsuccessful
merits motion).
VI. CONCLUSION
For the foregoing reasons, the Court denies Mr. Jordan’s Corrected Motion for Summary
Judgment and grants the DOL’s Cross-Motion for Summary Judgment except as it relates to the
Huber email described above. Additionally, the Court grants Plaintiff’s Unopposed Motion to
Amend the Complaint, denies Mr. Jordan’s First Motion for Sanctions Under Rule 11, Motion to
Compel Depositions of Smyth and Johnson, Motion to Strike Smyth’s Declaration, Motion to
Compel Production of Evidence Regarding Smyth Declaration, Motion to Strike Prohibited Ex
Parte communication and Vacate October 26 Minute Order, Second Motion for Sanctions Under
48
Rule 11, and Motion Regarding the APA as Basis for Decisions. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: August 4, 2017 RUDOLPH CONTRERAS
United States District Judge
49