Immerso v. U.S. Dep't of Labor

SANDRA IMMERSO, Plaintiff, v. U.S. DEPARTMENT OF LABOR, Defendant.

19-CV-3777 (NGG) (VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 20, 2020

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Sandra Immerso brings this action against the U.S. Department of Labor ("DOL"), seeking to compel disclosure of an unredacted copy of an email pursuant to the Freedom of Information Act ("FOIA"). Currently before the court are Defendant's Motion to Dismiss or, in the alternative, for Summary Judgment, as well as Plaintiff's Motion for Summary Judgment, and four motions by Plaintiff seeking a pre-motion conference and reconsideration of prior orders by this court. (See Mot. to Dismiss or for Summ. J. ("Def. Mot.") (Dkt. 23); Pl. Mot. for Summ. J. ("Pl. Summ. J. Mot.") (Dkt. 42); Mot. for Recons. re Order on Mot. for Pre-Mot. Conference (Dkt. 56); Third Mot. for Pre-Mot. Conference (Dkt. 57); Mot. for Pre-Mot. Conference (Dkt. 60); Mot. for Pre-Mot. Conference (Dkt. 62).)

For the reasons explained below, the court GRANTS Defendant's (Dkt. 23) Motion for Summary Judgment with prejudice and DENIES Plaintiff's (Dkt. 42) Motion for Summary Judgment and Plaintiff's (Dkts. 56, 57, 60, 62) other pending motions.

I. BACKGROUND

A. Factual and Procedural Context

On October 28, 2015, in connection with a discovery dispute in a worker's compensation proceeding brought by claimant Maria Jordan against respondent employer DynCorp International LLC ("DynCorp"), DynCorp's outside counsel provided Administrative Law Judge ("ALJ") Larry S. Merck, in camera, with a copy of an internal DynCorp email correspondence, consisting of five emails. (Def. Stmt. Pursuant to Local Rule 56.1 ("Def. 56.1") (Dkt. 24) ¶¶ 1-2.) DynCorp represented in a cover letter, a copy of which was sent to Ms. Jordan, that portions of the email chain were privileged, including the body of an email sent by Darin Powers ("the Powers email") to in-house attorney Christopher Bellomy and other recipients. (Id.)

The Powers email, timestamped at 5:39 p.m. on July 30, 2013, describes developments and potential strategies regarding DynCorp's Worldwide Protective Services ("WPS") Program's contract with the U.S. Department of State. (Id.) In the email, Powers asked Bellomy to review the developments and strategies and to provide any relevant legal advice. (Id. ¶ 2.) The email was marked "Subject to Attorney Client Privilege." (Id.) On February 9, 2016, ALJ Merck denied Ms. Jordan's motion to compel production of the Powers email because he determined that it contained privileged attorney-client communications and confidential information, and he placed the unredacted email under seal. (Id. ¶ 3.)

DynCorp's in camera disclosure of the Powers email to ALJ Merck set attorney Jack Jordan - Ms. Jordan's husband, and Plaintiff's counsel in the instant case - on a quixotic crusade to obtain an unredacted copy of the Powers email. More than five years later, Mr. Jordan continues to tilt feverishly at this redacted windmill. On June 9, 2016, Mr. Jordan submitted his first FOIA request to DOL for an unredacted copy of the Powers email. (Id. ¶ 10.) In response, DOL released the cover letter that accompanied DynCorp's in camera submission to ALJ Merck and a redacted copy of the four-page email chain. (Id. ¶ 11.) The redacted portions included the entire body of the Powers email, over which DOL asserted FOIA Exemption 4.¹ (Id.) According to DOL, as of October 2019, Mr. Jordan had submitted 38 FOIA requests, some on his own behalf and some on behalf of his wife or other clients, mostly seeking to obtain the unredacted Powers email. (Id. ¶ 49.)

Mr. Jordan has also extensively litigated DOL's assertion of Exemption 4 over redacted portions of the Powers email. In Jordan v. U.S. Department of Labor ("Jordan I"), 273 F. Supp. 3d 214 (D.D.C. 2017), Judge Rudolph Contreras of the U.S. District Court for the District of Columbia granted DOL's cross-motion for summary judgment after conducting in camera review of the Powers email. See 273 F. Supp. 3d at 226 n.15, 246. Judge Contreras concluded that the Powers email "contains an express request for legal advice" and "is labeled 'subject to attorney-client privilege'" and that therefore "the content of the information and the reason it was communicated satisfy the demands of attorney-client privilege." Id. at 232. Judge Contreras also concluded that DOL satisfactorily demonstrated that the redacted material could not be segregated. Id. at 237. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit affirmed Judge Contreras's decision by summary order. Jordan v. U.S. Dep't of Lab. ("Jordan II"), No. 18-5128, 2018 WL 5819393 (D.C. Cir. Oct. 19, 2018). Judge Contreras subsequently rejected a new effort by Mr. Jordan to obtain certain redacted portions of the Powers email through FOIA litigation against the U.S. Department of Justice. See Jordan v. U.S. Dep't of Just., No. 17-CV-2702 (RC), 2019 WL 2028399, at *3-5 (D.D.C. May 8, 2019) (denying motion for reconsideration of denial of Plaintiff's motion to release evidence).

In Jordan v. U.S. Department of Labor, No. 18-CV-06129 (ODS), 2018 WL 6591807 (W.D. Mo. Dec. 14, 2018), Judge Ortrie D. Smith of the U.S. District Court for the Western District of Missouri granted DOL's motion to dismiss with respect to Mr. Jordan's claims regarding the Powers email, deferring to the prior decision in District of Columbia case. 2018 WL 6591807, at *3-4. The Eighth Circuit summarily affirmed dismissal. See Jordan v. U.S. Dep't of Labor, 794 F. App'x 557, 557 (8th Cir. 2020). In two subsequent actions in the Western District of Missouri, brought by other plaintiffs represented by Mr. Jordan, Judge Smith granted DOL's motions for summary judgment. See Campo v. U.S. Dep't of Just., No. 19-CV-905 (ODS), 2020 WL 3966874, at *10-11 (W.D. Mo. July 13, 2020); Talley v. U.S. Dep't of Lab., No. 19-CV-493 (ODS), 2020 WL 3966312, at *16 (W.D. Mo. July 13, 2020).

B. Plaintiff's FOIA Request and Litigation

On January 9, 2019, Mr. Jordan, on behalf of his client, Ms. Immerso, submitted a FOIA request to "Frank Clubb, Administrative Officer, Adjudicatory Boards" at DOL, referring to "the emails sent by Darin Powers at about 5:39 p.m. on July 30, 2013 and the emails sent by Robert Huber at about 8:20 a.m. July 31, 2013, with the subject 'WPS - next steps & actions' (respectively, 'Powers' emails' and 'Huber's emails') that were included in the records of ALJ Case No. 2015-LDA-00030 and which Claimant Maria Jordan requested of the [Benefits Review Board ("BRB")] by motion dated January 2, 2018 in connection with BRB Case No. 18-0128." (Immerso FOIA Request (Dkt. 26) at ECF p. 8.) Immerso requested copies of Powers' and Huber's emails "in any form that was transmitted to the BRB by any person at any time after January 2, 2018 along with any documentation establishing the date of transmission to and receipt by the BRB (e.g., a letter of transmittal or entry in any computer system)." (Id.)

On March 5, 2019, Mr. Clubb responded to Mr. Jordan, indicating that DOL had already responded to Ms. Immero's FOIA request by providing the Huber email, and stating that the unredacted version of the Powers email was "withheld under Exemption 4 as attorney-client privileged information." (Frank Clubb Email of Mar. 5, 2019 ("Clubb Mar. 5 Email") (Dkt. 26) at ECF p. 11.) Mr. Clubb's email stated that the BRB had no documentation specifically addressing the receipt of the Powers or Huber emails, but that "in an effort to be as responsive as possible," he had attached the Docket Sheet and UPS shipping label documenting DOL's receipt of the associated case file. (Id.) On March 20, 2019, Plaintiff filed an administrative appeal challenging DOL's decision to withhold the unredacted Powers email pursuant to FOIA Exemption 4. (Def. 56.1 ¶ 8.)

On June 28, 2019, Plaintiff, represented by Mr. Jordan, filed this action. (See Compl. (Dkt. 1).) On December 4, 2019, DOL moved to dismiss Plaintiff's Complaint for failure to state a claim, or, in the alternative, for summary judgment. (See Def. Mot.; Def. 56.1; Mem. in Support of Mot. to Dismiss or for Summ. J. ("Def. Mem.") (Dkt. 25); Response in Opp. to Mot. to Dismiss ("Pl. Opp.") (Dkt. 28); Corrected Reply in Support of Mot. to Dismiss ("Def. Reply") (Dkt. 38).) On January 3, 2020, Plaintiff filed a Motion for Summary Judgment. (Pl. Mot. for Summ. J.; Pl. Stmt. Pursuant to Local Rule 56.1 ("Pl. 56.1") (Dkt. 43); Response in Opp. to Mot. for Summ. J. ("Def. Opp.") (Dkt. 45); Def.'s Rule 56.1 Stmt. (Dkt. 46); Reply in Support of Mot. for Summ. J. ("Pl. Reply") (Dkt. 44).)

On December 4, 2019, Plaintiff filed a motion to compel release of portions of the Powers email, specifically any privilege notation and any words constituting a request for attorney advice. (See Mot. to Compel and Mot. for Sanctions ("Mot. to Compel") (Dkt. 22) at 1; Response in Opp. to Mot. to Compel (Dkt. 37).) Plaintiff also sought sanctions against DOL requiring them to pay her attorney's fees and costs. (Mot. to Compel at 3.) Plaintiff also filed two further motions, styled as a Motion for Discovery and a Motion for Disclosure, reiterating the claims in her Motion to Compel while that motion was still pending. (See Mot. for Discovery (Dkt. 49); Second Mot. for Disclosure (Dkt. 50); Response in Opp. to Mot. for Disclosure (Dkt. 51).) On March 2, 2020, Magistrate Judge Vera M. Scanlon issued a Memorandum and Order denying Plaintiff's request for sanctions and denying all three pending motions seeking disclosure of portions of the Powers email. (Order of Mar. 2, 2020 ("Scanlon M&O") (Dkt. 52).)

The same day that Judge Scanlon issued her Memorandum and Order, Plaintiff filed a Motion for Reconsideration of Judge Scanlon's decision, followed, the next day, by a Supplemental Motion for Reconsideration, and nine days later by a Motion for a Pre-Motion Conference to discuss a new Motion to...