Talley v. U.S. Dep't of Labor, Case No. 19-00493-CV-W-ODS

FERISSA TALLEY, Plaintiff, v. U.S. DEPARTMENT OF LABOR, Defendant.

Case No. 19-00493-CV-W-ODS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

July 13, 2020

ORDER AND OPINION (1) DENYING PLAINTIFF'S MOTIONS FOR JUDGMENT ON THE PLEADINGS, (2) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, (3) FINDING AS MOOT DEFENDANT'S MOTION TO STRIKE JURY DEMAND AND PLAINTIFF'S MOTION FOR LEAVE TO FILE NOTICE OF APPEAL, AND (4) STRIKING PLAINTIFF'S NOTICE OF APPEAL

Pending are Plaintiff Ferissa Talley's Motions for Judgment on the Pleadings (Docs. #67, 69), Defendant United States Department of Labor's Motion to Strike Jury Demand and Motion for Summary Judgment (Docs. #72, 75), and Plaintiff's Motion for Leave to File Notice of Appeal (Doc. #94). For the following reasons, the Court denies Talley's Motions for Judgment on the Pleadings, grants Defendant's Motion for Summary Judgment, and finds as moot Defendant's Motion to Strike Jury Demand and Plaintiff's Motion for Leave to File Notice of Appeal. In addition, the Court strikes Plaintiff's Notice of Appeal.

I. BACKGROUND

A. Talley's FOIA Request

In January 2019, Plaintiff Ferissa Talley submitted a Freedom of Information Act ("FOIA") request to Defendant United States Department of Labor. Doc. #75-1, at 2, 8-9.¹ Her FOIA request referred to "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. [on] July 31, 2013, with the subject 'WPS - next steps & actions' (respectively, 'Powers' emails' and'Hubers's emails') that were included in the records of ALJ Case No. 2015-LDA-00030." Doc. #75-1, at 8 (emphasis in original).² Talley requested "an electronic (PDF) copy of any record maintained by the BRB³ that satisfies the following criteria":

1. a copy of Powers' 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);

2. a copy of 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).

Doc. #1, ¶ 3; Doc. #68, ¶ 3; Doc. #75-1, at 2, 4, 8-9; Doc. #81, at 6.⁴

On February 4, 2019, Defendant responded via email to Talley's FOIA request. Doc. #1, ¶¶ 4, 25; Doc. #1-1; Doc. #68, ¶¶ 4, 25; Doc. #75, at 2; Doc. #75-1, at 2-6, 10-11; Doc. #81, at 6.⁵ Defendant provided a copy of the Huber email but informed Talley's counsel, Jack Jordan, that the Powers email was being withheld under FOIA Exemption 4:

As I am sure you are aware, on 04 August 2017, the United States District Court for the District of Columbia granted summary judgment in favor of the DOL with respect to the Powers email - the first email in the DynCorp email chain. The Court held that "[t]he DOL properly withheld the unredacted version of the Powers email under FOIA Exemption 4 based on its attorney-client privileged nature. Jordan v. U.S. Dep't of Labor, 273 F.Supp. 3d 214, 227 (D.D.C. 2017), reconsideration denied, 308 F.Supp. 3d 24 (D.D.C. 2018), aff'd sub nom. Jordan v. United States Dep't of Labor, No. 18-5128, 2018 WL 5819393 (D.C. Cir. Oct 19, 2018)[.]

On 19 October 2018, in reviewing the decision of the District Court, [t]he United States Court of Appeals for the District of Columbia Circuit held that "[t]he district court did not err in concluding that the Powers email is exempt from disclosure pursuant to 5 U.S.C. 552(b)(4)." Jordan v. United States Dep't of Labor, No. 18-5128, 2018 WL 5819393, at *1 (D.C. Cir. Oct. 19. 2018).

Doc. #75, at 2; Doc. #75-1, at 3, 10-11; Doc. #81, at 6. On February 6, 2019, Talley appealed Defendant's FOIA response. Doc. #75-1, at 3, 12-14; Doc. #81, at 6.

On March 5, 2019, Defendant sent an email to Talley's counsel, Jack Jordan, providing supplemental information in response to Talley's request for "documentation establishing the date of transmission to and receipt by the BRB." Doc. #75-1, at 3-4, 15-16.⁶ Defendant informed Talley's counsel that "the BRB has no documentation that specifically addresses the receipt of the Powers or Huber-emails." Id. "[H]owever, in an effort to be as responsive as possible," Defendant provided "the Docket Sheet and UPS shipping label that documents the receipt...." Id. at 15-21. Defendant asked Jack Jordan to "forward this documentation as a supplementary response to the FOIA requests from your clients," including Talley. Id. On March 6, 2019, Talley's counsel acknowledged receipt of the email and supplemental records. Doc. #75-1, at 4, 15.

B. The Powers and Huber Emails

Before addressing this lawsuit or considering the pending motions, the Court must provide background information about the Huber and Powers emails and briefly discuss the administrative and judicial proceedings that have addressed these emails.

(1) Maria Jordan's DBA Claim

In September 2012, Maria Jordan was injured while employed by DynCorp International, Inc. ("DynCorp") at the United States Consulate in Erbil, Iraq. Doc. #75, at 4; Doc. #81, at 7. Maria Jordan, represented by her husband, Jack Jordan (who is also Talley's counsel), filed a claim under the Defense Base Act ("DBA"), which provides coverage for injuries sustained by certain employees working on military bases and embassies outside the United States. Doc. #75, at 3-4; Doc. #75-1, at 17-18; Doc. #81, at 6-7. Maria Jordan's DBA claim is the "ALJ Case No. 2015-LDA-00030" referenced in Talley's FOIA request.

During discovery in the administrative proceeding, a dispute arose regarding the discoverability of the Powers email. Doc. #75, at 4; Doc. #81, at 7. DynCorp resisted production of the Powers email, arguing it was protected by the attorney-client privilege. Id. In October 2015, DynCorp submitted the Powers email to the administrative law judge ("ALJ") for an in camera inspection. Doc. #75, at 4; Doc. #81, at 8. In February 2016, the ALJ issued an order finding the emails were privileged.

[DynCorp]'s management-level employees expressly sought legal advice from [DynCorp]'s in-house counsel, and the statements themselves were confidential between the employees and the attorney at the time they were made. These emails were received by the in-house counsel and a select group of upper-level employees, and there has been no evidence submitted to this Court that these communications were not kept confidential.

Doc. #75, at 4; Doc. #75-2, at 35 (internal citations omitted); Doc. #81, at 7. Maria Jordan unsuccessfully appealed the ALJ's and BRB's decisions, which culminated in her petition for certiorari with the Supreme Court being denied. Doc. #75, at 5; Doc. #81, at 8; Jordan v. Dir., Office of Workers' Comp. Programs, Dep't of Labor, 138 S. Ct. 1609 (Mem.) (2018).

(2) Jack Jordan's District of Columbia Lawsuit

Beginning in June 2016, Jack Jordan,⁷ Maria Jordan's husband and Talley's counsel, submitted FOIA requests to Defendant related to the Huber and Powers emails. Jordan v. U.S. Dep't of Labor, 273 F. Supp. 3d 214, 220-24 (D.D.C. 2017); Doc. #75, at 6; Doc. #81, at 8. In September 2016, Jordan, proceeding pro se, filed a FOIA lawsuit against Defendant in the United States District Court for the District of Columbia ("D.C. District Court") seeking "to compel the Defendant to disclose the entirety of the first two emails in a continuous string of five emails that were dated July 30 or 31, 2013, with the subject line: 'WPS - next steps & actions,' which were sent by and to members of management of DynCorp International, Inc." Id. at 219-20; Jordan, No. 16-CV-1868 (D.D.C. Sept. 19, 2016) (Doc. #1, ¶ 1); Doc. #75, at 6; Doc. #81, at 9.

In August 2017, after conducting an in camera review of the DynCorp emails, the D.C. District Court determined Defendant "properly withheld the unredacted version of the Powers email under FOIA exemption 4 based on its attorney-client privilege nature." 273 F. Supp. 3d at 227. The Honorable Rudolph Contreras stated the following:

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 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.

Id. at 232.⁸ "With respect to the Powers email, the [D.C. District] Court's in camera review confirms that the content of the information and the reason it was communicatedsatisfy the demands of attorney-client privilege." Id. The D.C. District Court found additional briefing was required to ascertain whether the Huber email met the standard for attorney-client privilege. Id.⁹ In May 2018, Defendant produced the unredacted Huber email to Jordan. Doc. #75-1, at 29-33.

Jordan appealed the D.C. District Court's decision to the United States Court of Appeals for the District of Columbia ("D.C. Court of Appeals"). In ...