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

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

Case No. 18-06129-CV-SJ-ODS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

December 14, 2018

ORDER AND OPINION (1) GRANTING DEFENDANT'S MOTION TO PARTIALLY DISMISS CASE, (2) GRANTING DEFENDANT'S MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF'S SUMMARY JUDGMENT MOTION, (3) WITHDRAWING PLAINTIFF'S MOTION REGARDING RULE 26(F) CONFERENCE, AND (4) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO RULE ON DEFENDANT'S MOTION FOR EXTENSION OF TIME AND ENLARGE TIME TO FILE PROPOSED SCHEDULING ORDER

Pending are (1) Plaintiff's Motion for Summary Judgment (Doc. #6), (2) Defendant's Motion to Partially Dismiss Case (Doc. #13), (3) Defendant's Motion for Extension of Time to Respond to Plaintiff's Motion for Summary Judgment (Doc. #15), (4) Plaintiff's Motion Regarding Rule 26(f) Conference (Doc. #22), and (5) Plaintiff's Motion to Rule on Defendant's Motion for Extension of Time and Enlarge Time to File Proposed Scheduling Order (Doc. #23). Plaintiff's summary judgment motion is not fully briefed, but the Court, as explained infra, issues rulings on the other motions.

I. BACKGROUND

Plaintiff Jack Jordan alleges Defendant U.S. Department of Labor failed to release documents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, with regard to two FOIA requests. Doc. #1, ¶ 1. The first request (F2018-850930) pertains to Plaintiff's February 2018 request to Defendant for the release of the following documents in Word or unlocked PDF format: (1) all letters from Office of Administrative Law Judges ("OALJ") to Plaintiff's FOIA requests; (2) the letter from Chief Administrative Law Judge ("ALJ") Henley to Plaintiff dated May 15, 2017, regarding how to address ALJ misconduct; and (3) the letter from Chief ALJ Henley to Plaintiff dated February 2, 2018, refusing to meet with Plaintiff regarding ALJ misconduct. Id., ¶ 2. Defendant denied Plaintiff's request. Id., ¶ 13. Plaintiff asks the Court to order Defendant to release all letters responsive to the request. Doc. #1, at 15.

The second request (F2018-858557) is Plaintiff's April 2018 request, which sought release of Defendant's records concerning "emails sent by employees of DynCorp International LLC ("DI") on July 30 or 31, 2013 with the subject line: 'WPS - next steps & actions'" in the possession of Defendant's Benefits Review Board ("BRB"). Id., ¶ 4. "On July 30, 2013, the emails were sent by DI employee Darin Powers ('Powers') to Brian Cox ('Cox') and Robert Huber ('Huber') and other recipients ('Powers' emails'). On July 31, 2013, the emails were sent by DI employee Huber to Powers and Cox and other recipients ('Huber's emails')." Id. Plaintiff seeks release of the emails "in the form...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." Id., ¶ 15. Defendant denied the FOIA request, stating the BRB would not "take any action with respect to Powers' email until it is appropriate to do so in connection with the pending FOIA litigation." Id., ¶¶ 16-17 (internal quotations omitted). Plaintiff asks the Court to direct Defendant to produce "all responsive records containing Powers' emails," and other records responsive to his FOIA request. Id. at 15.

On October 26, 2018, Defendant moved to dismiss the portions of Plaintiff's Complaint concerning FOIA Request No. F2018-858557 because they are duplicative of litigation being pursued by Plaintiff in another federal court. Doc. #13. While the parties briefed the motion to dismiss, other motions were filed, which the Court addresses infra.

II. PLAINTIFF'S LAWSUIT IN THE D.C. DISTRICT COURT

In 2016, Plaintiff submitted five FOIA requests to Defendant seeking release of emails related to Defense Base Act Case No. 2015-DBA Proceedings, a case in which Plaintiff, an attorney, is representing his wife against DynCorp International. Jordan v. U.S. Dep't of Labor, 273 F. Supp. 3d 214, 219-24 (D.D.C. 2017). Plaintiff sought, among other things, unredacted DynCorp emails dated July 30 or July 31, 2013, with the subject line of "WPS - next steps & actions." Id. at 220. Defendant refused to produce unredacted copies of two emails, claiming attorney-client privilege. Id. at 220.

In September 2016, Plaintiff filed suit in the United States District Court for the District of Columbia seeking disclosure of "previously undisclosed versions" of the DynCorp emails. Id. The DynCorp emails consists of five emails. Claiming attorney-client privilege, Defendant redacted two emails, only releasing the sender, recipients, date, and subject line. Id. at 221. "The chronologically first email ('the Powers email') spans roughly three pages. The second email ('the Huber email') spans roughly half of a page." Id.

In August 2017, after conducting an in camera review of the emails, the D.C. District Court concluded the content of the Powers' email was protected by the attorney-client privilege, and granted summary judgment in favor of Defendant with regard to that email. Id. at 227-32. But the D.C. District Court determined Defendant did not adequately why it withheld the Huber email, and directed Defendant to release the email or file a renewed motion for summary judgment. Id. Defendant chose the latter. In March 2018, the D.C. District Court denied Defendant's renewed motion for summary judgment, finding the Huber email was not protected by privilege. Jordan v. U.S. Dep't of Labor, 308 F. Supp. 3d 24, 42-44 (D.D.C. 2018). The D.C. District Court directed Defendant to release the Huber email to Plaintiff. Id. at 44.

In May 2018, Plaintiff appealed the March 2018 decision (and other decisions issued by the D.C. District Court). In October 2018, the United States Court of Appeals for the District of Columbia affirmed the D.C. District Court's decision. Doc. #20-2.

Notwithstanding appellant's speculation to the contrary, there is no reason to doubt the district court's finding that an in camera review revealed the Powers email contains an explicit request for legal advice.... To the extent appellant seeks disclosure of the parts of the Powers email that read "attorney-client privilege" and seek an explicit request for legal advice, the district court did not err in declining to require disclosure of such disjointed words that have "minimal or no information content."

Doc. #20-2 (citation omitted). Earlier this month, Plaintiff moved for a rehearing en banc, which remains pending.¹

III. DEFENDANT'S MOTION FOR PARTIAL DISMISSAL

Federal courts have a "virtually unflagging obligation...to exercise the jurisdiction given them." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Fru-Con Constr. Corp. v. Controlled Air, Inc., 574 F.3d 527, 534 (8th Cir. 2009). No particular rule establishes how a district court must handle identical issues raised in matters pending in different federal courts. Brewer v. Swinson, 837 F.2d 802, 804 (8th Cir. 1988) (citing Colo. River, 424 U.S. at 817). Nonetheless, the Eighth Circuit has determined a plaintiff "should not be allowed to litigate the same issue at the same time in more than one federal court." Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 932 (8th Cir. 2011) (citations and internal quotations omitted). Further, the "dismissal of duplicative claims comports with" the Eighth Circuit's long-standing "general principle" of "avoid[ing] duplicative litigation." Id. (citations omitted).

When determining whether to abstain due to a concurrent federal proceeding, the "threshold issue" is whether the proceedings are duplicative or parallel. See Neb. Inv. Fin. Auth. v. Gen. Elec. Capital Corp., No. 4:14-CV-3242, 2016 WL 8376457, at *2 (D. Neb. Jan. 21, 2016) (citations omitted); Ritchie Capital Mgmt., L.L.C. v. Jeffries, 849 F. Supp. 2d 881, 888 (D. Minn. 2012) (citation omitted). Cases are parallel or duplicative when the same issues are being litigated at the same time in more than one federal court. Blakley, 648 F.3d at 932 (citation omitted). If cases assert different legal theories but rely on a "common nucleus of operative fact" and seek essentially the same relief in both cases, the cases are considered the same. See Ritchie, 849 F. Supp. 2d at 889 (citing Friez v. First Am. Bank & Trust of Minot, 324 F.3d 580, 581 (8th Cir. 2003)).

In the D.C. District Court and this Court, Plaintiff, pursuant to FOIA, seeks disclosure of emails sent on July 30 and 31, 2013, by DynCorp employees with the subject line "WPS - next steps & actions." Compare Jordan v. U.S. Dep't of Labor, 273 F. Supp. 3d 214, 219-24 (D.D.C. 2017), with Doc. #1, ¶¶ 4-7, 17-18, 20, 22-35, 38-40. In fact, Plaintiff specifically discusses the D.C. District Court lawsuit in his Complaint, alleging that Court improperly granted summary judgment in Defendant's favor, and arguing the D.C. District Court improperly inferred Powers' emails were for legal advice. Doc. #1, ¶¶ 7, 17, 31, 36-40. Although the Court of Appeals for the District of Columbia affirmed the D.C. District Court's decision that Powers' email was exempt fromdisclosure, Plaintiff asks this Court to order Defendant to release "all responsive records containing Powers' emails," and "any record containing Huber's emails." Id. at 15.

Plaintiff argues the two matters are different because the "FOIA request at issue in this case pertains, essentially, only to Powers' emails," and in particular, "Powers' emails to Cox and Huber." Doc. #16, at 6-7. Plaintiff contends Defendant "failed to address any particular communication to any person," and "failed to show that the DC Lawsuit addressed any aspect whatsoever of Powers' emails to Cox and Huber..." Id. at 7 (emphasis in original), 12-19, 22-23. Plaintiff, however, fails to mention Powers' email was sent, not only to Cox and Huber, but three other individuals, including his attorney. Doc....