Jordan v. United States Department of LaborMOTION for Summary JudgmentD.D.C.November 15, 2016UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JACK JORDAN, Plaintiff v. UNITED STATES DEPARTMENT OF LABOR, Defendant ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01868-RC MOTION FOR SUMMARY JUDGMENT Jack Jordan 6225 Northlake Drive Parkville, Missouri 64152 jack.jordan@emobilawyer.com 816-746-1955 Plaintiff, Pro Se Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 1 of 42 TABLE OF CONTENTS INTRODUCTION 1 STATEMENT OF FACTS 5 I. The DOL and DOJ Willfully Failed to Timely Respond to the Complaint. 5 II. The OALJ Violated FOIA and the DOL’s FOIA Regulations by Refusing to Consider whether the Emails Were Privileged. 6 A. OALJ Refusals to Disclose the Entire Emails. 6 B. OALJ Failures to Disclose Documents Related to Purportedly Sealing the Emails. 7 C. OALJ Refusals to Disclose Clearly Non-Privileged Portions of the Emails. 7 III. DI Concealed the Emails and the Essentially Admitted the Emails Were Not Sent for the Primary Purpose of Seeking Legal Advice. 8 A. DI Admitted the Emails Were Not Sent Primarily to Seek Legal Advice. 8 B. For 11 Months DI Concealed the Existence of the Emails. 9 C. DI Repeatedly Pretended to Make Full Disclosures. 10 IV. ALJ Merck Refused to Disclose the Emails in Compliance with the APA. 11 ARGUMENT 13 I. The Allegations in the Complaint Must Be Deemed Admitted and they Constitute Binding Judicial Admissions. 14 II. Summary Judgment for Plaintiff Is Warranted. 15 III. The Failures to Grant Plaintiff’s FOIA Requests Must Be Held Unlawful and Set Aside. 16 D. The OALJ’s Factual Findings Were Arbitrary and Abuses of Discretion. 16 E. The OALJ Arbitrarily Entirely Failed to Consider any Relevant Factor. 18 F. The OALJ Unlawfully Based Its Decision on an Arbitrary, Irrelevant Factor, i.e., Chance Correspondence with Different Proceedings. 19 G. The OALJ Failed to Establish any FOIA Exemption Applies. 20 IV. DI Should be Found to Have Waived the Privilege Because the APA Requires ALJ Merck to Disclose or Publish All or Part of the Emails. 21 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 2 of 42 ii A. All Papers Filed in ALJ Merck’s Case Must Be Included in the Record. 22 B. ALJ Merck Was Required to Disclose At Least Portions of the Emails. 23 C. The Emails Were Sent to ALJ Merck in a Prohibited Ex Parte Communication so they Must be Published in the Record. 25 V. DI Did Not and Cannot Establish the Privilege Ever Applied to the Final Three Emails because They Did Not Have a Qualifying Purpose and They Were Not to or from an Attorney. 28 VI. DI Did Not and Cannot Establish that the Privilege Ever Applied to the Initial Two Emails because they Did Not Have a Qualifying Purpose. 30 VII. DI Waived the Privilege By Willfully Failing to Properly Substantiate it. 31 VIII. DI Waived the Privilege By Pretending to Make Full Disclosures. 32 CONCLUSION 33 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 3 of 42 iii TABLE OF AUTHORITIES Cases Alexander v. FBI, 186 F.R.D. 128 (D.D.C.1998)................................................................................................ 21 Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) .............................................................................................................. 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................................................................. 15 Armstrong v. Manzo, 380 U.S. 545 (1965) .............................................................................................................. 24 Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55 (D.C.Cir.2003) ................................................................................................... 21 MCI Telecoms. Corp. v. AT & T, 512 U.S. 218 (1994) .............................................................................................................. 13 Baylor v. Mitchell Rubenstein & Associates, P.C., 130 F. Supp. 3d 326 (D.D.C. 2015) ....................................................................................... 30 Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005) ............................................................................................... 32 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) .............................................................................................................. 13 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .............................................................................................................. 23 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) ............................................................................................... 30 Cobell v. Norton, 213 F.R.D. 16 (D.D.C. 2003)................................................................................................. 21 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ........................................................................................................ 16, 17 Ctr. for Auto Safety v. U.S. Dep’t of Treasury, 133 F. Supp. 3d 109 (D.D.C. 2015) ....................................................................................... 12 Dir., OWCP v. Greenwich Collieries, 512 U.S. 267 (1994) .............................................................................................................. 22 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 4 of 42 iv Cases (cont'd) Elec. Power Supply Ass’n v. F.E.R.C., 391 F.3d 1255 (D.C. Cir. 2004) ....................................................................................... 25, 27 EPA v. Mink, 410 U.S. 73 (1973) ................................................................................................................ 20 Fed. Open Market Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340 (1979) .............................................................................................................. 20 Fernandez v. Navistar Int’l Corp., ALJ No. 2009-SOX-43, 2009 WL 6470455 (Merck, ALJ, Oct. 16, 2009) .............................. 12 Fisher v. United States, 425 U.S. 391 (1976) .............................................................................................................. 30 Hice v. Dir., OWCP, 156 F.3d 214 (1998) .............................................................................................................. 20 Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, I.R.S., 768 F.2d 719 (5th Cir. 1985) ................................................................................................. 13 Home Box Office, Inc. v. Federal Communications Comm’n, 567 F.2d 9 (D.C.Cir.1977) ..................................................................................................... 24 In re Kellogg Brown & Root, Inc., 756 F.3d 137 (D.C. Cir. 2014) ......................................................................................... 29, 33 In re Kellogg Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. 2015) ............................................................................................... 29 In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) ............................................................................................. 29 In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) ......................................................................................... 29, 33 In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) ................................................................................................. 29 In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989) ............................................................................................... 22 In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm’n, 439 F.3d 740 (D.C. Cir. 2006) ............................................................................................... 28 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 5 of 42 v Cases (cont'd) Judulang v. Holder, 132 S. Ct. 476 (2011) ............................................................................................................ 19 Kleem v. I.N.S., 479 U.S. 1308, 107 S. Ct. 484, 93 L. Ed. 2d 566 (1986) ........................................................ 15 La Union del Pueblo Entero v. Fed. Emergency Mgmt. Agency, No. 1:08-CV-487, 2015 WL 6605023 (S.D. Tex. Sept. 30, 2015) .......................................... 23 Medina Cty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010) ................................................................................................. 23 Mendoza v. El Paso Cnty., No. EP-11-CV-0221-KC, 2012 WL 1952278 (W.D. Tex. May 30, 2012) .............................. 26 Michigan v. EPA, 135 S. Ct. 2699 (2015) .......................................................................................................... 16 Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir.2002) .......................................................................................... 26, 27 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................... 16, 17, 18 Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467 (N.D. Tex. 2004) .......................................................................................... 12 Peat, Marwick, Mitchell & Co. v. W., 748 F.2d 540 (10th Cir. 1984) ............................................................................................... 32 PHE, Inc. v. Dep’t of Justice, 983 F.2d 248 (D.C.Cir.1993) ................................................................................................. 12 Prof’l Air Traffic Controllers Org. v. Fed. Labor Relations Auth., 685 F.2d 547 (D.C. Cir. 1982) ......................................................................................... 25, 27 Public Power Council v. Johnson, 674 F.2d 791 (9th Cir.1982) .................................................................................................. 24 Rivera-Cruz v. I.N.S., 948 F.2d 962 (5th Cir. 1991) ................................................................................................. 24 Schoenman v. F.B.I., 841 F. Supp. 2d 69 (D.D.C. 2012) ......................................................................................... 15 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 6 of 42 vi Cases (cont'd) Spirko v. USPS, 147 F.3d 992 (D.C.Cir.1998) ................................................................................................. 12 Teva Pharm. Indus. Ltd. v. Crawford, 410 F.3d 51 (D.C. Cir. 2005) ................................................................................................. 13 Teva Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303 (D.C. Cir. 2010) ............................................................................................. 14 Texas v. United States, 279 F.R.D. 24 (D.D.C.) ......................................................................................................... 21 Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1 (D.D.C. 2010) .................................................................................................. 21 U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998) ............................................................................................... 15 United Mine Workers of Am. Int’l Union v. Arch Mineral Corp., 145 F.R.D. 3 (D.D.C. 1992) .................................................................................................. 21 United States v. Legal Servs. for New York City, 249 F.3d 1077 (D.C. Cir. 2001) ............................................................................................. 29 United States v. Robinson, 121 F.3d 971 (5th Cir.1997) .................................................................................................. 13 United States v. Singhal, 800 F. Supp. 2d 1 (D.D.C. 2011) ........................................................................................... 31 United States v. White, 950 F.2d 426 (7th Cir. 1991) ................................................................................................. 12 United States v. Zolin, 491 U.S. 554 (1989) ........................................................................................................ 11, 12 Upjohn Co. v. United States, 449 U.S. 383 (1981) .............................................................................................................. 30 Statutes 5 U.S.C. § 551(14) .................................................................................................................... 25 5 U.S.C. § 552 ......................................................................................................... 1, 5, 6, 14, 20 5 U.S.C. § 554 ............................................................................................................... 22, 23, 26 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 7 of 42 vii Statutes (cont'd) 5 U.S.C. § 556 ..................................................................................................................... 22, 23 5 U.S.C. § 557 ......................................................................................................... 22, 25, 26, 27 5 U.S.C. § 706 ..................................................................................................................... 16, 23 33 U.S.C. § 901 ..................................................................................................................... 3, 20 33 U.S.C. § 919(d) .................................................................................................................... 22 33 U.S.C. § 923(a) .................................................................................................................... 22 33 U.S.C. § 939(a) .................................................................................................................... 28 42 U.S.C. § 1651 .........................................................................................................................3 Rules Fed. R. Civ. P. 8(b)(6) ........................................................................................................... 5, 15 Fed. R. Civ. P. 12(a)(2) ............................................................................................................. 14 Fed. R. Civ. P. 56 ...................................................................................................................... 15 Fed. R.App. P. 16(a).................................................................................................................. 23 Regulations 20 C.F.R. Part 702 ............................................................................................................... 20, 28 20 C.F.R. Part 802 ............................................................................................................... 20, 28 29 C.F.R. Part 18................................................................................................................. 20, 28 29 CFR § 18.14 ......................................................................................................................... 27 29 CFR § 18.46 ......................................................................................................................... 28 29 C.F.R. § 18.50(c)(1)(i)(A) .................................................................................................... 10 29 CFR § 18.51(e)(2) ................................................................................................................ 28 29 C.F.R. § 18.53(a) .................................................................................................................. 10 29 CFR § 18.56(d)(2)(ii) ........................................................................................................... 28 29 C.F.R. § 70.3 ........................................................................................................................ 20 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 8 of 42 viii Regulations (cont'd) 29 C.F.R. § 70.21(b).................................................................................................................. 20 29 C.F.R. § 70.26 ................................................................................................................ 19, 20 Other Authorities 80 FR 28768-01 (May 19, 2015, effective June 18, 2015) ......................................................... 28 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 9 of 42 Pursuant to D.C. Civil Rule 7(h)(2), Federal Rules of Civil Procedure 56, 8(b)(6) and 7(b), and 5 U.S.C. § 552, Plaintiff, Jack Jordan, hereby respectfully moves the Court for an order that includes the findings and orders set forth in the Proposed Order submitted herewith. INTRODUCTION The government records that are the subject of this suit are in the possession of Administrative Law Judge (“ALJ”) Larry Merck of the DOL Office of Administrative Law Judges (“OALJ”). See Complaint (“Compl.”), ¶ 5. The records consist of emails (the “Emails”) dated July 30 and 31, 2013 with the subject “WPS - next steps & actions” that were written by DI employees. Each copy of the Emails spanned four printed pages. See, e.g., Appendix (“App.”) at 26-29. The redacted portion of the Emails comprised about three full pages of text.1 This matter should have been addressed by the DOL exclusively under the Freedom of Information Act (“FOIA”). However, the FOIA Disclosure Officer-DOL Chief ALJ Stephen Henley-realized that FOIA clearly required disclosure of the Emails. It is virtually certain that Chief ALJ Henley-like ALJ Merck-concluded that the Emails could not possibly be protected by the attorney-client privilege. See Compl., ¶ 21. Ultimately, Chief ALJ Henley repeatedly refused to apply or comply with FOIA. See, e.g., Compl., ¶¶ 15, 16 and 20. To prevent the disclosure of the Emails, Chief ALJ Henley insisted that he would simply “defer” to a ruling that ALJ Merck did not even make. See id. Cf. page 18-19, below. In that manner, Chief ALJ Henley chose to anchor this case to ALJ Merck’s misconduct in the DBA proceedings. If the events below were described in a complete tale of the two cases, it would consume 1 Citations to the Appendix herein are to the documents listed in the Index of Documents that Plaintiff intends to include with the Appendix, which is attached hereto as Exhibit B. Pursuant to D.C. Civil Rule 7(n)(2), Plaintiff will file an Appendix “within 14 days following the final memorandum” pertaining to this motion. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 10 of 42 2 more than 100 pages. It would reveal abuses of agency authority that are so thoroughly illegal and with such profoundly improper purposes that they would be most unsettling. The perpetrators are not only officers of the court, but also ALJ’s who are charged with enforcing a number of statutes, including the DBA and the LHWCA. The Emails will help establish that the DBA proceedings started out as fraud on the court, and ALJ Merck assiduously attempted to convert them into fraud by the court. Counsel for the respondent in the DBA proceedings, Littler Mendelson, P.C. (“LM”) chose to use the DBA proceedings to attempt to defraud the DBA Claimant by means of numerous knowingly false statements. See, e.g., Compl., ¶¶ 25, 26 and 30. That fact is proved conclusively by the Emails, especially when viewed together with other evidence in the DBA proceedings and DI’s admissions therein. See App. 7 and 10-16, ¶¶ 3 and 8-20. Most fundamentally, LM contended that DI prevented the DBA Claimant from returning to work on DI’s WPS Program, purportedly because by about June 1, 2013 DI was already operating as if DI’s WPS Contract would be terminated in September 2013. See App. 8-10, ¶¶ 4-7. The Emails prove literally the opposite. They prove that even as late as July 30 and 31, 2013, DI was preparing for DI’s WPS Contract to be renewed in September 2013. Copious evidence establishes that it was not until August 28, 2013 that the two key DI managers Brian Cox and Michael Cannon (who prevented the DBA Claimant from returning to work) actually started operating as if DI’s WPS Contract would be terminated in September 2013. See, e.g., App. at 7 and 10-11, ¶¶ 3 and 8-11. However, for more than a year, ALJ Merck has repeatedly refused to recognize or consider any such evidence.2 See Exhibit A hereto, ¶ 2. 2 Moreover, not once did ALJ Merck ever consider any of DI’s many admissions. See id. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 11 of 42 3 ALJ Merck also used his office to assist LM to conceal copious highly relevant evidence, including (but hardly limited to) the Emails. He did so, in part, by ratifying and engaging in prohibited ex parte communications and by asserting his own knowingly false statements of fact and legal standards. See, e.g., Compl., ¶¶ 24, 33. See also, e.g., pages 12-13, fn. 7 and associated text, below. See also page 13, below (no ex parte communications have occurred). A crucial issue in this case (and the DBA case) has become the fact that ALJ Merck intentionally falsely contended that the Emails included an express request for legal advice by DI management. See page 9, below. ALJ Merck made that false statement to support LM’s contention that the Emails were protected by the attorney-client privilege. The truth is that the Emails did not include an express request for legal advice, and they cannot be privileged. ALJ Merck also has used his false contention about the content of the Emails to support his refusal to disclose the Emails as required by the Administrative Procedure Act (the “APA”). See, e.g., App. at 64, fn. 5. The Emails were sent to ALJ Merck in one or more ex parte communications that were prohibited by the APA and the OALJ Rules of Practice and Procedure (the “OALJ Rules”). See pages 25-28, below. The ex parte communications were prohibited because ALJ Merck was and is presiding over proceedings that were required to be on the record under the Longshore and Harbor Workers’ Compensation Act (the “LHWCA”).3 This case arose because two ALJ’s chose to (1) flout federal law, including FOIA and the APA and (2) make or rely on statements of fact and law that they knew or believed to be false for 3 In ALJ Merck’s proceedings, the LHWCA, 33 U.S.C. § 901 et seq., provides the substantive law, and the Defense Base Act, 42 U.S.C. § 1651 et seq. (the “DBA”) extends the LHWCA to Plaintiff’s client, Maria Jordan (the “DBA Claimant”). Consequently, the proceedings before ALJ Merck are referred to herein as the DBA proceedings, but in the Complaint they are referred to as the LHWCA Proceedings. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 12 of 42 4 the purpose of unlawfully preventing access to the Emails. This motion is being filed at this time because two federal agencies (the DOL and the U.S. Department of Justice (the “DOJ”)) chose to use this Court to delay access to the Emails by contravening a clear, mandatory provision of FOIA. They requested and obtained an extension of time from the Court to file a response to the Complaint (1) by deliberately denying Plaintiff any opportunity to respond to their motion for an extension, (2) by failing to apprise the Court of controlling legal authority (i.e., FOIA) and (3) without making any attempt to comply with FOIA. As a result of the foregoing, this motion seeks (1) affirmation that federal agencies must comply with federal statutes and regulations and (2) disclosure of the Emails and related documents without further delay. Even if the Emails were privileged, DI waived the privilege in multiple respects. First, for 11 months after being ordered to produce evidence encompassing the Emails, DI pretended to have disclosed all relevant evidence while failing to disclose even the existence of the Emails. Second, through May 26, 2015, DI falsely represented that it was not withholding any privileged documents. Third, three days later, on May 29, 2015, LM finally belatedly disclosed the existence of the Emails and asserted the privilege. Fourth, for more than 17 months since then, DI has willfully failed to support its assertions of the privilege in a manner that could possibly support a finding that the Emails were privileged (in either the D.C. Circuit or the Fifth Circuit). Fifth, DI failed to comply with all applicable OALJ Rules of Practice and Procedure relevant to an assertion of the privilege. Sixth, to circumvent the OALJ Rules, DI submitted the Emails to ALJ Merck (1) in an ex parte communication that clearly was required to be disclosed under multiple provisions of the APA and (2) for a purpose that would require ALJ Merck to disclose at least part of the purportedly privileged portion of the Emails. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 13 of 42 5 STATEMENT OF FACTS I. The DOL and DOJ Willfully Failed to Timely Respond to the Complaint. On October 14, 2016, the DOJ sent an email “to seek [Plaintiff’s] consent to a 30 day extension of the answer deadline.” App. at 1. On October 16, Plaintiff responded, “I believe that you will not be able to show good cause for requesting any extension. As a result, please understand that I intend to oppose your motion as vigorously as possible.” App. at 4. Plaintiff also identified controlling legal authorities. Plaintiff explained that “FOIA requires that ‘the defendant shall serve an answer . . . within thirty days after service . . . [except] for good cause shown.’” Id. quoting 5 U.S.C. § 552(a)(4)(C). Plaintiff also identified “FRCP Rule 8(b)(6)” as being important. Id. at 5. That rule states that “[a]n allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied.”.” Fed. R. Civ. P. 8(b)(6). Plaintiff further explained as followsAs I mentioned on [October 14], I respectfully submit that Chief Judge Henley, Ms. Johnson, and the attorneys in the Department of Labor's Solicitor's Office can admit or deny all allegations in the Complaint pertaining to them within about 30 minutes (or less). I further respectfully submit that Judge Merck can admit or deny all allegations in the Complaint pertaining to him within two hours. If you believe my assessments are incorrect, I respectfully request that you let me know why. As for the OALJ’s defenses, I respectfully submit that it should require very little time to confirm that there are no facts supporting any potential defense. . . . At the very least, before you file your motion, I respectfully submit that you should obtain a copy of the DI Emails and compare them with Complaint para. 24. Chief Judge Henley previously stated that Judge Merck's statement was the sole basis for Chief Judge Henley's decision, i.e., his refusal to comply with FOIA and the FOIA regs. See attached FOIA Denial dated July 15, 2016 at 2, fn. 3. Id. at 4-5.5.4 The Complaint was served on the DOJ on September 27, 2016. See Doc. 6-1 and 6-2 (A. Prandy signed for the Complaint). Consequently, the Answer to the Complaint was due by October 27, 2016. Yet, the DOJ waited until October 25 to file Defendant’s First Motion for 4 To this day, the DOJ will not state whether it confirmed the veracity or falsity of ALJ Merck’s representation that the Emails included an express request for legal advice. See id. at 3. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 14 of 42 6 Extension of Time to Answer or Otherwise Respond to Complaint and Defendant’s Proposed Order. See Docs. No. 5 and 5-1. The DOJ did not serve its motion or Proposed Order on Claimant, and Claimant did not receive or even learn of the DOJ’s motion until well after it had been granted. See Exhibit A hereto (Declaration of Jack Jordan), ¶ 2. After October 14, the DOJ did not even indicate that it continued to intend to file its motion. See id. When the DOJ filed its motion, it did not inform the Court that FOIA requires that “the defendant shall serve an answer . . . within thirty days after service . . . [except] for good cause shown.” 5 U.S.C. § 552(a)(4)(C). Instead, the DOJ mentioned only FRCP Rule 6, and the DOJ provided a cursory contention that “[a]dditional time is necessary to complete the review and research, provide undersigned counsel with a litigation report, and draft and review an appropriate response to the Complaint.” See Doc. No. 5, ¶ 1 and 2. The Court did not find that the DOJ had shown good cause to request any extension of time to file a response to the Complaint. See Minute Order dated October 26, 2016. II. The OALJ Contravened FOIA and the DOL’s FOIA Regulations by Refusing to Consider whether the Emails Were Privileged. A. OALJ Refusals to Disclose the Entire Emails. On June 9, 2016, Plaintiff submitted to the DOL by email at foiarequest@dol.gov a request (“Request No. F2016-806591”) for disclosure of any emails that DI’s counsel had forwarded to ALJ Merck in the LHWCA Proceedings in October through December 2015 that had the subject ‘WPS - next steps & actions’ and were dated July 30 or 31, 2013. Compl., ¶ 10; App. at 32-33 (Item #2). “By letter dated June 28, 2016, [the DOL] partially denied FOIA Request No. F2016- 806591 as it pertained to unredacted copies of the first two emails in the Emails.” Compl., ¶ 11. See also App. at 33. The DOL provided the following reason for its denial: “Because ALJ Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 15 of 42 7 Merck has determined that the unredacted versions of the requested documents are protected from discovery by attorney-client privilege, EX4 applies, and the unredacted emails will not be disclosed.” Id. However, ALJ Merck did not actually determine that the Emails were privileged. See page 12, below. On July 15, 2016, Plaintiff submitted to the DOL Office of the Solicitor (the “SOL”) “by email at foiaappeal@dol.gov Plaintiff’s appeal of the partial denial of Request No. F2016- 806591.” Compl., ¶ 13. See also App. at 42. The SOL dismissed Plaintiff’s appeal of the denial of Request No. F2016-806591 solely because Plaintiff filed this suit. See App. at 42. B. OALJ Failures to Disclose Documents Related to Purportedly Sealing the Emails. When the OALJ denied FOIA Request No. F2016-806591, the OALJ also stated that “[t]hese documents are currently under seal.” Id. However, ALJ Merck had never issued any order sealing the Emails or any other part of the record. See Exhibit A hereto, ¶ 2. Consequently, “[o]n July 5, 2016, Plaintiff submitted to the DOL by email at foiarequest@dol.gov a request for ‘a copy of any documentation in the OALJ’s records evidencing or relating to any action of, or basis in fact or law for, placing under seal the unredacted versions of the emails’ that were the subject of Request No. F2016-806591.” As of November 15, 2016, the DOL never has even acknowledged or responded to this request. C. OALJ Refusals to Disclose Clearly Non-Privileged Portions of the Emails. On July 6, 2016, Plaintiff submitted to the DOL by email at foiarequest@dol.gov a request (“Request No. F2016-808886”) for disclosure of segregable portions of the Emails consisting of the notation, if any, “Subject to Attorney Client Privilege” and any language that constituted any express request for legal advice. By letter dated July 15, 2016, Chief ALJ Henley entirely denied FOIA Request No. F2016-808886. The reason Chief ALJ Henley provided for the denial was the following: “in making a FOIA disclosure determination in this matter deference is given to [ALJ Merck’s] ruling that the redacted portions of the Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 16 of 42 8 [Emails] are protected from discovery pursuant to attorney-client privilege. Since there has not been a judicial determination modifying ALJ Merck’s determination, your supplemental FOIA request is denied.” Compl., ¶¶ 14 and 15. “On August 18, 2016, Plaintiff submitted to the SOL by email at foiaappeal@dol.gov Plaintiff’s appeal of the denial of Request No. F2016-808886.” Compl., ¶ 16. As of November 15, 2016, the SOL has not issued any decision regarding Plaintiff’s appeal of the denial of Request No. F2016-808886. See Exhibit A hereto, ¶ 2. III. DI Concealed the Emails and the Essentially Admitted the Emails Were Not Sent for the Primary Purpose of Seeking Legal Advice. A. DI Admitted the Emails Were Not Sent Primarily to Seek Legal Advice. On July 30, 2013, DI employee Darin Powers (“Powers”) sent the initial Email to Brian Cox (“Cox”), as well as to other DI administrative and management employees, Robert Huber, William Imbrie, Aubrey Mitchell, Martha Huelsbeck, and Christopher Bellomy (“Bellomy”). See App. at 27. Powers’ signature block in the Emails identified him as DI’s Vice President, Intelligence and Security. See App. at 26. In a brief and a letter, DI contended that Bellomy was a contracts lawyer employed by DI. See App. at 62. According to DI’s required disclosures, Cox was DI’s Program Manager for the WPS Program in Iraq; Robert Huber was a Senior Contracts Director at DI; and Martha Huelsbeck was a Senior Finance Director at DI. See Exhibit A hereto, ¶ 2. According to publicly available information, Aubrey Mitchell was DI’s Vice President, Contracts, and William Imbrie was a Senior Director of International Programs at DI. See id. DI further disclosed only that the Emails “concerned the status of operations issues in connection with the [WPS] Program contract, which were transmitted . . . in order to apprise [ ] Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 17 of 42 9 DI employees with responsibility for the administration and management of the WPS Program contract[ ] of developments potentially impacting the contract.” See App at 62, second paragraph, quoting DI’s Opposition dated Sept. 17, 2015 to Claimant’s Motion to Compel (emphasis added). DI reiterated those same contentions in LM’s letter to Judge Merck dated October 28, 2015. See id. DI never contended that it would not have sent the Emails to Cox, Huber, Imbrie, Mitchell, or Huelsbeck if DI had not sent the Emails to Bellomy. See Exhibit A hereto, ¶ 2. In more than 17 months since DI revealed the existence of the Emails in May 2015-and despite numerous written requests by Plaintiff-DI never contended that the Emails included any express (or implicit) request for legal advice. See id. Only ALJ Merck (in February 2016) represented that in the Emails DI’s “management-level employees expressly sought legal advice from [DI’s] in-house counsel.” Compl., ¶ 24; App. at 64 (last full paragraph). In fact, in LM’s October 28, 2015 Letter to ALJ Merck, LM desperately presented its last-ditch argument: “It is not essential [ ] that the request for advice be express.” App. at 62 (last paragraph, quoting LM’s October 28 Letter) (citing a Delaware court decision) (emphasis added). B. For 11 Months DI Concealed the Existence of the Emails. DI contended that it prevented the DBA Claimant from returning to work in May through August 28, 2013 (after she recovered from her injury) because by about June 1, 2013 DI already was “operating” under the assumption that DI’s WPS Contract would be terminated in September 2013. See App. at 8-9, ¶¶ 4-5. Consequently, the DBA Claimant sought and obtained a subpoena for evidence relevant to that issue, including the Emails. See App. at 19, ¶ 30. DI filed a motion dated May 2, 2014 to quash the subpoena, but DI did not identify the Emails or assert the privilege with respect to any document until May 29, 2015, more than a year Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 18 of 42 10 later. See id. ALJ Romero denied DI’s motion to quash and ordered DI to produce (by June 23, 2014) evidence including the Emails. See id. Cox was the DI manager ultimately responsible for preventing the DBA Claimant from returning to work. See App. at 16, ¶ 21. Consequently, Cox was necessarily well aware of the subpoenas, orders and discovery requests covering the Emails. On July 30 and 31, 2013, the initial two Emails were sent to Cox and four other DI employees. See id. at 27. However, DI did not produce the Emails (or even identify them) as required by ALJ Romero’s order. Robert Huber (“Huber”) also received the Emails. See App. at 27. On May 1, 2015, Plaintiff sent an email to LM informing them that he would depose Huber as soon as possible. See App. at 20, ¶ 33. Finally, on May 19, 2015 LM stated that for the first time in 11 months, “DI agrees to check with Mr. Huber regarding whether he has any information responsive to” ALJ Romero’s order covering the Emails. App. at 21, ¶ 34. On May 29, 2015, DI finally forwarded the redacted version of the Emails to Plaintiff and DI contended that the Emails were privileged. See App. at 21, ¶ 36. C. DI Repeatedly Pretended to Make Full Disclosures. ALJ Merck’s Pre-Hearing Order and the OALJ Rules have required DI to provide disclosures (“Required Disclosures”) by and since February 25, 2015 identifying all persons with knowledge relevant to DI’s defenses. See App. at 20, ¶ 32. See also 29 C.F.R. § 18.50(c)(1)(i)(A) (DI was required to disclose identifying information about “each individual likely to have discoverable information . . . that [DI] may use to support its [ ] defenses”) and 29 C.F.R. § 18.53(a) (duty to “supplement or correct its disclosure[s] . . . [ i]n a timely manner”). The Emails conclusively establish that at least the individuals who sent and received the Emails should have been included in DI’s Required Disclosures. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 19 of 42 11 From February 25, 2015 until May 12, 2015, DI refused or failed to identify Huber in DI’s Required Disclosures. See Exhibit A hereto, ¶ 2. From February 25, 2015 until May 29, 2015, DI refused or failed to identify Huelsbeck in DI’s required disclosures. To this day, DI continues to refuse to identify any of Bellomy, Powers, Imbrie or Mitchell in DI’s Required Disclosures. See id. Despite the facts stated in this subsection and the preceding subsection, from at least April 2014 until May 29, 2015, DI and LM expressly and repeatedly pretended to have made full and unconditional disclosures of all evidence that encompassed the Emails. See App. at 20, ¶ 31 (repeated assurances of full and unconditional responses to the particular subpoena and ALJ order at issue here and the DBA Claimant’s discovery requests). See also App. at 21, ¶ 35 (as late as May 26, 2015, LM assured ALJ Merck that DI was not withholding any privileged documents). Since February 25, 2015, DI also has pretended to disclose contact information for all individuals with knowledge relevant to DI’s defenses. See id., ¶¶ 33 and 45. IV. ALJ Merck Refused to Disclose the Emails in Compliance with the APA. On September 9, 2015, the DBA Claimant filed a Motion to Compel Production of the Emails. See App. at 57. Having failed for many months to describe the Emails in a manner that could possibly support a finding that they were privileged, LM repeatedly sought to submit the Emails to ALJ Merck in an ex parte communication. See App. at 23, ¶ 40. Nearly six weeks after Claimant filed her Motion to Compel, on October 19, 2015, ALJ Merck purported to authorize LM to submit the unredacted Emails to him in an ex parte communication.5 See App. 5 Unlike courts, agencies are subject to the APA, so they may not use ex parte in camera review as courts do. See pages 25-28, below. Even courts may not resort to ex parte in camera review in every instance. There must be an “[]adequate basis on which to determine the attorney-client privilege question” before a court may conduct in camera review. United States v. Zolin, 491 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 20 of 42 12 at 24, ¶ 42. LM submitted an unredacted version of the Emails to ALJ Merck by LM under cover of a letter dated October 28, 2015. See App. at 30-31. LM communicated the Emails to Judge Merck as the ALJ presiding over this case. See id. However, DI did not produce the unredacted Emails to Claimant. See App. at 31 (cc without attachment). ALJ Merck waited five months (from September 9, 2015 until February 9, 2016) before ruling on Claimant’s Motion to Compel Production of the Emails. See App. at 57. ALJ Merck did not rule that the Emails were privileged. He avoided doing so by deliberately reversing the burden of proof and ruling required. ALJ Merck contended that “Claimant’s counsel is not entitled to the unredacted emails [ ] unless this Court later determines [ ] that attorney-client privilege does not apply.” 6 App. at 55 (emphasis added). ALJ Merck then represented that in U.S. 554, 560 (1989). An “evidentiary showing is needed to trigger in camera review.” Id. at 572. Under FOIA, the D.C. Circuit “has repeatedly observed that a district court should not undertake in camera review of withheld documents as a substitute for requiring an agency’s explanation of its claimed exemptions in accordance with Vaughn.” Ctr. for Auto Safety v. U.S. Dep’t of Treasury, 133 F. Supp. 3d 109, 136 (D.D.C. 2015) quoting Spirko v. USPS, 147 F.3d 992, 996 (D.C.Cir.1998). “[I]n camera review is generally disfavored. It is not a substitute for the government’s obligation to justify its withholding in publicly available and debatable documents.” Id. quoting PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 253 (D.C.Cir.1993). 6 ALJ Merck actually knew that he was misrepresenting the applicable legal standards. In an earlier decision written by ALJ Merck he correctly recognized that “[t]he party seeking to invoke the privilege carries the burden of establishing all essential elements.” Fernandez v. Navistar Int’l Corp., ALJ No. 2009-SOX-43, 2009 WL 6470455 at *6 (Merck, ALJ, Oct. 16, 2009) (emphasis added) quoting United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). In ALJ Merck’s February 9, 2016 decision denying the DBA Claimant’s Motion to Compel the Emails, ALJ Merck even quoted White nearly verbatim from ALJ Merck’s Fernandez decision. See App. at 63. However, he omitted the quote above. In addition, where ALJ Merck correctly recognized, above, that there were “essential elements” to establishing that the privilege applied, in his February 9 decision, ALJ Merck misrepresented that those elements merely “summarized” the privilege. Id. In addition, Plaintiff had briefed the following in Claimant’s Motion to Compel Production of the Emails. “[T]he privilege does not protect documents and other communications simply because they result from an attorney-client relationship.” Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473 (N.D. Tex. 2004). “The burden of demonstrating the applicability of the Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 21 of 42 13 the Emails DI’s “management-level employees expressly sought legal advice from [DI’s] in- house counsel.” App. at 64 (last full paragraph). Many times from December 2015 through October 2016, Plaintiff (on behalf of the DBA Claimant) has requested that ALJ Merck act in accordance with the APA and include the Emails in the record or publish all or part of the portions of the Emails that DI redacted. See, e.g., App. at 46, 49, 52 (Letters dated December 1, 23 and 29, 2015). See also Exhibit A hereto, ¶ 2. ALJ Merck disregarded, denied or refrained from ruling on all such requests. See, e.g., App. at 56, 66. ALJ Merck has justified his actions by falsely contending (many times) that no ex parte communications have occurred in this case. See, e.g., App. at 55 (“no ex parte communication has occurred”); App. at 64, fn. 5 (“did not constitute an ex parte communication”). ARGUMENT “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Neither courts nor a federal agency may “revise the specific statutory incentive that Congress enacted or . . . alter the means chosen by Congress to implement its purpose.” Teva Pharm. Indus. Ltd. v. Crawford, 410 F.3d 51, 54 (D.C. Cir. 2005) citing MCI Telecoms. Corp. v. AT & T, 512 U.S. 218, 231 n. 4 (1994) (courts and agencies “are bound, not only by the ultimate purposes Congress has selected, privilege rests on the party who invokes it.” Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, I.R.S., 768 F.2d 719, 720 (5th Cir. 1985). At the very least, DI “must prove (1) that [it] made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” United States v. Robinson, 121 F.3d 971, 974 (5th Cir.1997) (citation omitted) (emphasis added). ALJ Merck deliberately disregarded controlling law, and misrepresented the legal standards. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 22 of 42 14 but by the means it has deemed appropriate, and prescribed for the pursuit of those purposes”). Accord Teva Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303, 1316 (D.C. Cir. 2010). I. The Allegations in the Complaint Must Be Deemed Admitted and they Constitute Binding Judicial Admissions. As the foregoing authorities establish, federal agencies and courts are bound by federal statutes. FOIA provides and requires as follows: Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any [FOIA] complaint [ ] within thirty days after service [ ] of the [ ] complaint [ ], unless the court otherwise directs for good cause shown. 5 U.S.C. § 552(a)(4)(C) (emphasis added). Those statutory requirements purposely depart materially from the default rule that the U.S. government is afforded 60 days to file an answer. See Fed. R. Civ. P. 12(a)(2). No rational argument can be made that the intent of Congress is not clear regarding this issue, and there is no exception for any other provision of law. Flouting FOIA, the DOJ requested an extension of 30 days to file a response to the Complaint. See pages 5-6, above. In doing so, the DOJ never apprised the Court that FOIA prohibited any extension unless good cause was actually shown. Nor did the DOJ make any effort whatsoever to show good cause for any extension, much less a full 30 day extension. The justification offered by the DOJ for the requested extension was cursory, boilerplate and devoid of any fact or any hint at good cause for any delay, much less a 30 day delay: Defendant [ ] is in the process of gathering and reviewing the documents at issue and investigating the allegations of the Complaint. Additional time is necessary to complete the review and research, provide undersigned counsel with a litigation report, and draft and review an appropriate response to the Complaint. Doc. No. 5, ¶ 2. Justice Scalia’s assessment of a comparable justification is equally apt here: “The same reason could be adduced in virtually all cases. It does not meet the standard of ‘good cause Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 23 of 42 15 shown’ for the granting of a disfavored extension.” Kleem v. I.N.S., 479 U.S. 1308, 1308, 107 S. Ct. 484, 484, 93 L. Ed. 2d 566 (1986) (applying a different statute). See also, e.g., Schoenman v. F.B.I., 841 F. Supp. 2d 69, 76 (D.D.C. 2012) (A “cursory explanation for his inability to timely file, viewed within the context of the schedule as a whole, fails to satisfy this Court that there is ‘good cause’ for the requested extension.”). “An allegation-other than one relating to the amount of damages-is admitted if a responsive pleading is required and the allegation is not denied.” Fed. R. Civ. P. 8(b)(6). A pleading responsive to the Complaint was required by October 27, 2016. See page 6, above. The DOJ was well aware that a responsive pleading was required by at least October 28, 2016. See Doc. 5, ¶ 1. The Court did not find, and it could not find on the basis of the information provided by the DOJ, that the DOJ showed good cause for any extension, much less an extension of 30 days. Consequently, the allegations in the Complaint must be deemed admitted. II. Summary Judgment for Plaintiff Is Warranted. “The court shall grant summary judgment if [Plaintiff] shows that there is no genuine dispute as to any material fact and [Plaintiff] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Plaintiff may rely on admissions and evidence. Fed. R. Civ. P. 56(c)(1)(A). To establish that the “dispute about a material fact is ‘genuine,’ . . . the evidence [must be] such that [the Court] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. 255. However, the DOL and DOJ may not attempt to counter their admissions with any evidence. “Ordinarily, [ ] a concession in a pleading [will] constitute a binding judicial admission which [the admitting party] could not contradict either at trial or on appeal.” U.S. ex rel. Yesudian v. Howard Univ., Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 24 of 42 16 153 F.3d 731, 748 (D.C. Cir. 1998). Even if the DOL and DOJ were permitted to counter their admissions with evidence, the record amply supports summary judgment for Plaintiff. III. The Failures to Grant Plaintiff’s FOIA Requests Must Be Held Unlawful and Set Aside. It is a “foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action.” Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015). A reviewing court must “hold unlawful and set aside agency action, findings, and conclusions found to be [ ] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . [or] without observance of procedure required by law.” 5 U.S.C. § 706(2). A court (or agency) “would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). [Agency action is] arbitrary and capricious if the agency has relied on factors which [it was] not intended [ ] to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“MVMA”). D. The OALJ’s Factual Findings Were Arbitrary and Abuses of Discretion. The denials of Plaintiff’s requests were based directly on a false statement by the OALJ and indirectly on multiple false statements by ALJ Merck. The OALJ erroneously contended that ALJ Merck actually found or determined that the Emails were privileged. See Compl., ¶ 11 quoting App. at 33 (“ALJ Merck has determined that the unredacted versions of the requested documents are protected from discovery by attorney- Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 25 of 42 17 client privilege.”). See also Compl., ¶ 15 quoting App. at 36 (ALJ Merck ruled “that the redacted portions of the [Emails] are protected from discovery pursuant to attorney-client privilege”). Chief ALJ Henley continued to rely on that erroneous contention even after Claimant explained that it was false. See App. at 37 (acknowledging that Plaintiff contended that “Judge Merck never actually ruled that any of the Emails were ever privileged” in Plaintiff’s Motion to Reconsider filed with Chief ALJ Henley). See also Compl., ¶ 16 quoting App. at 38 (ALJ Merck’s “determination of whether a document sought in discovery [ ] is protected under attorney-client privilege”). See also App. at 38 (ALJ Merck “had determined [ ] that the redacted portions of the emails were protected by attorney-client privilege”); App. at 39 (“I find it ineluctable that Judge Merck’s ruling was that the redacted portions of the [Emails] are protected by attorney-client privilege”); App. at 40 (“As it stands, [ALJ Merck] has found [ ] that the redacted portions of the [Emails] are protected by attorney-client privilege”). ALJ Merck simply did not make any such finding, ruling or determination, and the DOL and DOJ cannot identify any such finding, ruling or determination. Thus, the OALJ’s findings were abuses of discretion (see Cooter, supra) and arbitrary and capricious (see MVMA, supra). Instead, ALJ Merck falsely implied that he had no need to make such a finding. See page 12, above. He essentially misrepresented that the DBA Claimant was required to prove that the privilege did not apply. See id. Then, he falsely contended that the Emails included an express request for legal advice. See page 9, above. Chief ALJ Henley then relied on that falsehood. See App. at 36, fn. 3. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 26 of 42 18 E. The OALJ Arbitrarily Entirely Failed to Consider any Relevant Factor. Disclosure of all or part of the Emails was required in response to two requests by Plaintiff under FOIA. See, e.g., Compl., ¶¶ 10 and 14 and App. at 32-33 and 35. To deny Plaintiff’s FOIA requests, the OALJ purportedly relied on FOIA Exemption 4. See, e.g., Compl., ¶ 11 and App. at 33 (“EX4 applies”); Compl., ¶ 15 and App. at 36 (failing to cite any FOIA exemption); Compl., ¶ 16 and App. at 37 (“in my July 15, 2016 determination letter, EX4 was the basis for the denial”). Despite purporting to rely on FOIA Exemption 4, the OALJ repeatedly failed and expressly refused to identify or apply any factor relevant to establishing that FOIA Exemption 4 applied. See id. and Compl., ¶ 20. Instead, the OALJ merely stated that it was deferring to ALJ Merck. See Compl., ¶ 11 quoting App. at 33 (“Because ALJ Merck has determined that the unredacted versions of the requested documents are protected from discovery by attorney-client privilege, EX4 applies, and the unredacted emails will not be disclosed.”). See also Compl., ¶ 15 quoting App. at 36: in making a FOIA disclosure determination in this matter deference is given to [ALJ Merck’s] ruling that the redacted portions of the [Emails] are protected from discovery pursuant to attorney-client privilege. Since there has not been a judicial determination modifying ALJ Merck’s determination, your supplemental FOIA request is denied. See also Compl., ¶ 16 quoting App. at 38 (“it is necessary when processing a FOIA request to give deference to [ALJ Merck’s decision] in regard to [his] determination of whether a document sought in discovery [ ] is protected under attorney-client privilege”); App. at 40 (“As it stands, [ALJ Merck] has found [ ] that the redacted portions of the [Emails] are protected by attorney- client privilege, and the [OALJ] has deferred to that ruling”). Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 27 of 42 19 No ruling by ALJ Merck could be a relevant factor in determining whether FOIA Exemption 4 applies. The DOL’s FOIA regulations state the procedures that the OALJ was required to follow to determine whether the Emails were privileged. The party asserting the privilege is “required to submit a detailed written statement [and the] statement must show why the information . . . is privileged.” 29 C.F.R. § 70.26(e). DI was required to provide “specific grounds for non-disclosure.” 29 C.F.R. § 70.26(f). DI’s statement was required to be compared with the standards for finding that information is privileged under D.C. Circuit precedent. See, e.g., Sections V and VI, below. DI did not submit any such statement, and the OALJ did not consider any such statement. F. The OALJ Unlawfully Based Its Decision on an Arbitrary, Irrelevant Factor, i.e., Chance Correspondence with Different Proceedings. Agency action “must be based on non-arbitrary, relevant factors.” Judulang v. Holder, 132 S. Ct. 476, 485 (2011) (internal quotation marks and citations omitted). In particular, an agency may not deny relief in one set of proceedings based on “chance correspondence” with another set of proceedings. Id. at 484 (“By hinging [relief in connection with the deportation of an alien] on the chance correspondence [with relief available in proceedings regarding the exclusion of aliens from the U.S.]-the BIA has failed to exercise its discretion in a reasoned manner.”). Such an “approach is arbitrary and capricious.” Id. at 479. In this case, the OALJ’s FOIA denials were arbitrarily based solely on chance correspondence between two very different proceedings. Instead of applying FOIA, the DOL’s FOIA regulations, and D.C. Circuit law, the OALJ merely stated that it was deferring to ALJ Merck. See pages 18-19, above. However, an ALJ’s rulings in different proceedings governed by entirely different law cannot be considered to be a relevant factor in FOIA proceedings. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 28 of 42 20 ALJ Merck’s case is styled (Maria) Jordan v. DynCorp Int’l LLC et al., 2015-LDA- 00030. See, e.g., App. at 37. That case is governed by statutes that are entirely different from FOIA. See, e.g., App. at 38 citing the DBA and the LHWCA, 33 U.S.C. § 901 et seq. The relevant regulations are at 20 C.F.R. Parts 702 and 802 and at 29 C.F.R. Part 18 (OALJ rules of procedure and evidence). To the extent that those proceedings are governed by common law, they are subject to the law of the Fifth Circuit. See, e.g., Hice v. Dir., OWCP, 156 F.3d 214 (1998) (holding that “[t]he location of [ ] the district director, who handled Hice’s claim determines the proper court to hear his appeal.”). Claimant’s claim was processed by the OWCP District Director in Houston, Texas. See Exhibit A hereto, ¶ 2. G. The OALJ Failed to Establish any FOIA Exemption Applies. “All agency records, except those exempt from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), will be made promptly available to any person submitting a written request.” 29 C.F.R. § 70.3. FOIA “exemptions are explicitly made exclusive, 5 U.S.C. s 552(c), and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed.” EPA v. Mink, 410 U.S. 73, 79 (1973). FOIA Exemption 4 and the regulations do not expressly or implicitly allow for deference to any designation or ruling by ALJ Merck. Section 552(b)(4) expressly applies to “matters that are . . . privileged.” 5 U.S.C. § 552(b)(4) (FOIA Exemption 4) (emphasis added). The determination that matters are privileged must be made by a FOIA disclosure officer. See 29 C.F.R. § 70.26(g). And such a determination must be made consistent with FOIA, the DOL’s FOIA regulations and the applicable common law. See, e.g., 29 C.F.R. § 70.21(b). All Plaintiff’s FOIA requests must be granted because the OALJ did not, and it cannot, bear its burden “to establish that the requested information is exempt.” Fed. Open Market Comm. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 29 of 42 21 of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 351-352 (1979). See also Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003) (the agency “bears the burden of establishing the applicability of the claimed exemption”). IV. DI Should be Found to Have Waived the Privilege Because the APA Requires ALJ Merck to Disclose or Publish All or Part of the Emails. “The proponent of the privilege . . . has the burden of showing that it has not waived attorney-client privilege.” United Mine Workers of Am. Int’l Union v. Arch Mineral Corp., 145 F.R.D. 3, 6 (D.D.C. 1992). It was DI’s “burden to show not only that it [originally] intended these documents to be confidential, but that it took all possible precautions to maintain their confidentiality.” Id. (emphasis added). “Both clients and lawyers can waive the attorney-client privilege.” Texas v. United States, 279 F.R.D. 24, 28 (D.D.C.), vacated in part on other grounds, 279 F.R.D. 176 (D.D.C. 2012) citing Alexander v. FBI, 186 F.R.D. 128, 134 (D.D.C.1998). “The attorney-client and work-product privileges can be forfeited (or, to put it inaccurately ‘waived’) through behavior by the client or her agent, her attorney, that is inconsistent with the continued maintenance of the privilege. Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 11 (D.D.C. 2010). Accord Cobell v. Norton, 213 F.R.D. 16, 24 (D.D.C. 2003) (“Defense counsel destroyed any semblance of confidentiality” when counsel disclosed purportedly privileged information to the court). “Once a privilege has been waived and privileged information made public, the information remains public for all purposes.” Texas at 28. [T]he confidentiality of communications covered by the privilege must be jealously guarded by the holder of the privilege lest it be waived. The courts will grant no greater protection to those who assert the privilege than their own precautions warrant. . . . In other words, if a client wishes to preserve the Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 30 of 42 22 privilege, it must treat the confidentiality of attorney-client communications like jewels-if not crown jewels. Short of court-compelled disclosure, or other equally extraordinary circumstances, we will not distinguish between various degrees of “voluntariness” in waivers of the attorney-client privilege. In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989) (internal quotation marks and citations omitted). DI disclosed the Emails to ALJ Merck in a manner and for a purpose that required ALJ Merck to publish them in their entirety. The LHWCA expressly requires ALJ Merck to comply with the APA. ALJ Merck is bound by “rules of evidence [and] technical or formal rules of procedure [ ] as provided by” the LHWCA. 33 U.S.C. § 923(a). The LHWCA expressly states that APA Section 554 applies to proceedings under the LHWCA. See 33 U.S.C. § 919(d) citing 5 U.S.C. § 554. APA Section 554, in turn, requires ALJ Merck to comply with APA Sections 556 and 557. See 5 U.S.C. § 554(c) citing 5 U.S.C. §§ 556 and 557. “The Department [of Labor] cannot [act] in a manner that conflicts with the APA.” Dir., OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994) (applying the LHWCA). The APA “establishes a scheme of reasoned decisionmaking.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998). “Reasoned decisionmaking [requires that] the rule announced [be] the rule applied.” Id. at 375. Under multiple provision of the APA, ALJ Merck was required to disclose or publish all or part of the initial two Emails. For the same reasons, DI waived the privilege when it submitted the Emails to ALJ Merck in an ex parte communication that was intended by DI and ALJ Merck to serve as the basis for a ruling by ALJ Merck. See App. at 24, ¶¶ 43 and 44. A. All Papers Filed in ALJ Merck’s Case Must Be Included in the Record. The APA categorically requires that “all papers and requests filed in the proceeding” Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 31 of 42 23 must be included in the “record for decision in accordance with section 557.” 5 U.S.C. § 556(e). DI filed the Emails. See App. at 30-31. Consequently, the Emails must be included in the public record of ALJ Merck’s proceedings. An agency may not “unilaterally determine what constitutes the administrative record.” La Union del Pueblo Entero v. Fed. Emergency Mgmt. Agency, No. 1:08-CV-487, 2015 WL 6605023 at *8 (S.D. Tex. Sept. 30, 2015) (citation omitted). Under the APA, “the whole record” includes “the pleadings, evidence, and other parts of the proceedings before the agency.” Medina Cty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010) quoting 5 U.S.C. § 706 and Fed. R.App. P. 16(a). The “whole record” is “the ‘full’ administrative record that was before the agency at the time of the decision.” La Union, 2015 WL 6605023 at *8 citing, inter alia, Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“review [of agency action] is to be based on the full administrative record that was before the Secretary at the time he made his decision”) abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). B. ALJ Merck Was Required to Disclose At Least Portions of the Emails. An ALJ presiding over a matter may not “consult a [ ] party on a fact in issue [without] notice and opportunity for all parties to participate.” 5 U.S.C. § 554(d)(1). In addition, if the ALJ actually relies on any evidence that is not in the possession of a party, he must disclose that evidence to such party upon request. As a general matter, Claimant “shall be timely informed of . . . the matters of fact and law asserted.” 5 U.S.C. § 554(c)(3) (emphasis added). “When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.” 5 U.S.C. § 556(e). Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 32 of 42 24 “It is a fundamental proposition of administrative law that interested parties must have an effective chance to respond to crucial facts. The opportunity for response must come ‘at a meaningful time and in a meaningful manner.’” Rivera-Cruz v. I.N.S., 948 F.2d 962, 968 (5th Cir. 1991) quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The opportunity must be given before the “determination becomes final.” Id. “When it appears the agency has relied on documents or materials not included in the record, supplementation is appropriate.” Public Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir.1982). If the record is not complete, then the requirement that the agency decision be supported by “the record” becomes almost meaningless. Indeed, where the so- called “record” looks complete on its face and appears to support the decision of the agency but there is a subsequent showing of impropriety in the process, that impropriety creates an appearance of irregularity which the agency must then show to be harmless. Id. citing Home Box Office, Inc. v. Federal Communications Comm’n, 567 F.2d 9, 54 (D.C.Cir.1977) (emphasis added). When an agency fails “to disclose the substance of other relevant information that has been presented to it, a reviewing court cannot presume that the agency has acted properly, but must treat the agency’s justifications as a fictional account of the actual decisionmaking process and must perforce find its actions arbitrary.” HBO at 54-55 (citations omitted). ALJ Merck contended that “[DI’s] management-level employees expressly sought legal advice from [DI’s] in-house counsel” in the Emails. See page 9, above (emphasis added). In and since December 2015, the DBA Claimant has repeatedly requested to be informed of the particular language (at least some non-privileged language) on which the ALJ relied. See page 13, above. If there is no language in the Emails that supports ALJ Merck’s representation, then Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 33 of 42 25 the DOL is required to disclose the entire Emails for all the many reasons stated above, including that there never was any basis for contending that any Email was privileged. C. The Emails Were Sent to ALJ Merck in a Prohibited Ex Parte Communication so they Must be Published in the Record. DI was prohibited from making, and ALJ Merck was prohibited from receiving, any ex parte communication “relevant to the merits of the proceeding.” 5 U.S.C. § 557(d)(1)(A) and (B). Also, ALJ Merck “shall place on the public record of the proceeding[ ] all such written communications.” 5 U.S.C. § 557(d)(1)(C). A communication is an “ex parte communication” if it is not made “on the public record” and after “reasonable prior notice to all parties,” excluding, however, “requests for status reports.” Elec. Power Supply Ass’n v. F.E.R.C., 391 F.3d 1255, 1262 (D.C. Cir. 2004) (“EPSA”) quoting 5 U.S.C. § 551(14). The Emails were not submitted on the public record, so they were ex parte. The phrase “relevant to the merits of the proceeding” should “be construed broadly and . . . include more than the phrase ‘fact in issue.’” Prof’l Air Traffic Controllers Org. v. Fed. Labor Relations Auth., 685 F.2d 547, 563 (D.C. Cir. 1982) (“PATCO”) (citations omitted). The “phrase must be interpreted to effectuate . . . giving notice of improper contacts and of providing all interested parties an opportunity to respond to illegal communications.” Id. The Emails are relevant to the two issues that DI contends are the very foundation of DI’s defense to the Discrimination Claim. DI contends that before June 4, 2013, DI learned that DI’s WPS Contract would be terminated in September 2013. See App. at 8-9, ¶¶ 4-7. Consequently-DI contended-by June 4, DI had already “started to operate under the assumption” that DI’s WPS Contract would be terminated in September 2013. See App. at 9, ¶¶ Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 34 of 42 26 6-7. The Emails (with the subject “WPS - next steps & actions”) prove that as late as July 30 and 31, 2013, DI WPS Program management were preparing for DI’s WPS Contract to be renewed in September 2013, not terminated in September 2013. Thus, the Emails are very highly relevant to the merits of the DBA case. They prove that DI’s defense is pure pretext. “Pretext means a lie . . . pretext means deceit used to cover one’s tracks.” Mendoza v. El Paso Cnty., No. EP-11-CV-0221-KC, 2012 WL 1952278, at *9 (W.D. Tex. May 30, 2012) quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.2002). The Emails also prove that DI’s witnesses have no credibility. Moreover, DI submitted the Emails to ALJ Merck for the purpose of obtaining a ruling that (1) the Emails were privileged and (2) DI would not be required to produce them to the DBA Claimant. See id., ¶¶ 43 and 44. Thus, the Emails necessarily are both “relevant to the merits of the proceeding” and regarding “a fact in issue” in the ALJ proceedings. See 5 U.S.C. §§ 557(d)(1) and 554(d)(1). Purportedly to circumvent the prohibition on ex parte communications, ALJ Merck repeatedly makes much of the fact that the Emails were submitted to him for in camera review. See, e.g., App. at 45 and 55; App. at 64, fn. 5. In doing so, ALJ Merck implicitly contended that an ALJ has the authority to create an exception to the prohibitions (in the APA and the regulations) barring such ex parte communications. He implied that an ALJ could create such an exception by simply authorizing or ordering a party to submit its own documents for in camera review. The logical extension of ALJ Merck’s contentions/position is that an ALJ may Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 35 of 42 27 circumvent the APA and the regulations merely by consenting to (or ordering) ex parte communications from any party he favors. Yet, ALJ Merck’s position and actions merely substantiate the reason for the rule prohibiting ex parte communications. Parties in ALJ proceedings “have a right, protected by the [ ] proscription against ex parte communications, to ‘fair decisionmaking.’” EPSA at 1262. “This . . . is the right directly protected by § 557(d).” Id. “[W]e cannot countenance any contacts [ ] that threaten to bias administrative adjudications.” PATCO, 685 F.2d at 567. “[D]isclosure, as a corrective measure, [is required] whenever an ex parte communication takes place.” EPSA at 1265 citing 5 U.S.C. § 557(d)(1)(C). “There are no exceptions to the disclosure requirement.” Id. at 1258. The bottom line is that an agency “is powerless to override Congress’ directive banning ex parte communications.” EPSA at 1266. “[N]o federal agency that is subject to the Sunshine Act is authorized to modify, abrogate, or otherwise violate the statutory ban on ex parte communications.” Id. at 1258. “The Sunshine Act is a statute of general applicability governing [all] federal agencies within its compass. [A covered agency] has no authority whatsoever to change the terms of the Act; rather, [the agency] must conform its regulatory activities to comply with the overriding terms of the Sunshine Act.” Id. at 1261. When “a statute of general applicability directs that certain procedures must be followed, an agency cannot modify or balance away what Congress has required of it.” Id. at 1266. The Secretary and the OALJ also clearly do not agree with ALJ Merck’s position that in camera review is permitted under the circumstances. The regulations, like the APA, categorically prohibit “ex parte communications on the merits of a case with the judge.” 29 CFR § 18.14. Such “regulations are given controlling weight unless they are arbitrary, capricious, or Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 36 of 42 28 manifestly contrary to the statute.” Chevron at 843-44. The Secretary promulgated regulations governing LHWCA adjudications at 20 C.F.R. Parts 702 and 29 C.F.R. Part 18 (rules of procedure). “[T]he Secretary is authorized [ ] to make such rules and regulat ions . . . [for] the administration of” the LHWCA. 33 U.S.C. § 939(a). In addition, the regulations were thoroughly amended effective June 18, 2015, and three facts about those amendments are salient. See Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, Subpart A, 80 FR 28768-01 (May 19, 2015, effective June 18, 2015). First, the previous version of the OALJ Rules included a section with the heading “In camera and protective orders.” See id. (Cross Referencing Chart re: former 29 CFR § 18.46). However, the new rules have omitted that heading. Even under that heading, the old OALJ rules did not provide for ex parte in camera review of documents. Second, no current OALJ rule provides for a party to submit its own documents for in camera review. Third, the only current OALJ rules that provide for in camera review clearly do so in a manner that ensures that they will not constitute ex parte communications. They provide for in camera review only when the party opposing the assertion of the privilege has already received the documents, and the producing party contends that disclosure was inadvertent. See 29 CFR §§ 18.51(e)(2) and 18.56(d)(2)(ii). V. DI Did Not and Cannot Establish the Privilege Ever Applied to the Final Three Emails because They Did Not Have a Qualifying Purpose and They Were Not to or from an Attorney. “It is well established that the proponent of a privilege bears the burden of demonstrating facts sufficient to establish the privilege’s applicability.” In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm’n, 439 F.3d 740, 750 (D.C. Cir. 2006). “That burden Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 37 of 42 29 requires a showing that the privilege applies to each communication for which it is asserted.” United States v. Legal Servs. for New York City, 249 F.3d 1077, 1082 (D.C. Cir. 2001) (citations omitted) (emphasis added). “As relevant here, the privilege applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client.” Kellogg Brown & Root., 756 F.3d at 757 (emphasis added). “[C]ommunications that do not involve both attorney and client, are unprotected.” In re Kellogg Brown & Root, Inc., 796 F.3d 137, 148-49 (D.C. Cir. 2015), cert. denied sub nom. U.S. ex rel. Barko v. Kellogg Brown & Root, Inc., 136 S. Ct. 823 (2016) quoting In re Sealed Case, 676 F.2d 793, 823 (D.C. Cir. 1982). It is well settled that “the privilege applies only if the person to whom the communication was made . . . is acting as a lawyer” in connection with the particular communication. In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998) (emphasis added) quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). In addition, “the privilege applies only if . . . the communication was made ‘for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.’” Id. DI cannot establish that every one of the Emails was sent to or by a person acting as a lawyer for a qualifying purpose. The evidence establishes that the Emails were sent at least three times in communications that could not be privileged.7 On July 31, 2013, Powers, Imbrie 7 To support the privilege, DI also must produce evidence establishing when and how the Email recipients forwarded the Emails to anyone else. “A party asserting the attorney-client privilege must present affidavits or other competent evidence that supports each of the essential elements necessary to sustain a claim of privilege.” Baylor v. Mitchell Rubenstein & Associates, P.C., 130 F. Supp. 3d 326, 331 (D.D.C. 2015) (internal quotation marks, brackets and citations omitted) Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 38 of 42 30 and Huber repeatedly re-sent to each other the purportedly privileged Emails. See App. at 26. None of Powers, Imbrie or Huber was acting as an attorney, and the purpose for those communications clearly was not in any way related to giving or receiving legal advice. Cf. App. at 30 (only Bellomy was an in-house attorney). At the very least, the last three emails were ineligible ab initio for protection under the privilege and they should be released in unredacted form (with the purportedly privileged Emails attached, just as those emails were sent by Powers). VI. DI Did Not and Cannot Establish that the Privilege Ever Applied to the Initial Two Emails because they Did Not Have a Qualifying Purpose. “Like all privileges, [ ] the attorney-client privilege is narrowly construed and is limited to those situations in which its purposes will be served.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Significantly, the privilege’s “purpose is to encourage full and frank communication between attorneys and their clients [with the ultimate purpose to] promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (emphasis added). Crucially, the privilege “applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures necessary to obtain informed legal advice.” Fisher v. United States, 425 U.S. 391, 403 (1976) (citations omitted) (emphasis added). Accord Coastal States, 617 F.2d at 862. Consistent with the foregoing, DI must establish that the disclosure of information in the initial two Emails (from Powers on July 30 and from Huber on July 31) was “necessary to obtain informed legal advice.” See page 29, above, quoting Commodity Futures (emphasis added). That requirement is especially appropriate in this case. The Emails establish that they were repeatedly re-sent in non-privileged communications. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 39 of 42 31 Trading Comm’n (the proponent of the privilege must bear the burden of “demonstrating facts sufficient to establish the privilege’s applicability”). However, DI cannot do so. DI repeatedly contended that the initial two emails were sent to “an in-house contract lawyer” merely “to apprise [him] of developments potentially impacting the contract,” i.e., “the status of operations” on the WPS Program. See page 9, above. Yet, the mere fact that the original Email was initially sent to an in-house “transactional lawyer . . . is insufficient to establish that the attorney-client privilege protects [a] document.”8 United States v. Singhal, 800 F. Supp. 2d 1, 11 (D.D.C. 2011). DI has not even established that the original two emails were sent for a purpose that qualifies for protection under the privilege. To establish that the disclosure of information in the Emails was “necessary to obtain informed legal advice.” DI must answer the following question: What information, if any, in the Emails would not have been communicated to Imbrie, Huber or Mitchell if the Emails had not been sent to Bellomy? Plaintiff respectfully submits that DI already answered that question. DI has amply established that the information in the Emails would have been communicated to all other recipients regardless of whether or not Bellomy also received that information. See page 9, above. VII. DI Waived the Privilege By Willfully Failing to Properly Substantiate it. DI was ordered to produce evidence such as the Emails by June 23, 2014. See App. at 19 and 21-22, ¶¶ 30, 36 and 37. DI first asserted the privilege with respect to the Emails on May 29, 2015. See id., ¶ 36. DI provided additional information about the Emails on June 19 and 8 Equally obviously, “attorney-client privilege” stamps or notations “certainly do not carry the talismanic power to relieve a party of its obligation to prove each of the privilege’s elements.” United States v. Singhal, 800 F. Supp. 2d 1, 10 (D.D.C. 2011) (citation omitted). Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 40 of 42 32 September 17, 2015. See id., ¶ 39. The privilege could not be found to apply based on the information that DI provided. See pages 8-9, above. On January 27 and February 9, 2016, ALJ Merck issued decisions directly or indirectly regarding whether the Emails were privileged. See App. at 55, 57. The foregoing facts establish that even if DI could, at this late point, establish that the privilege should have applied, DI should be found to have waived the privilege by willfully failing to establish that it did apply (1) for at least some 17 months and (2) until after ALJ Merck issued his decision. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (listing factors to be considered in making such a determination, including (1) “the degree to which the objection or assertion of privilege enables [Claimant] and the court to evaluate whether each of the withheld documents is privileged” and (2) “the timeliness of the objection and accompanying information about the withheld documents”). Certainly, DI’s failure to show that privilege applied before ALJ Merck ruled on this issue in his February 9 decision should be found to constitute a waiver of the privilege: “[The failure to make] such a showing [by the time] the trial court was called upon to make its ruling defeats the privilege. It is not enough that a document would have been privileged if an adequate and timely showing had been made. The applicability of the privilege turns on the adequacy and timeliness of the showing as well as on the nature of the document.” Peat, Marwick, Mitchell & Co. v. W., 748 F.2d 540, 542 (10th Cir. 1984) (emphasis added). VIII. DI Waived the Privilege By Pretending to Make Full Disclosures. For at least 11 months DI pretended to make disclosures that DI was required to make and DI pretended to have produced all evidence that it was required to produce. See pages 10- 11, above. Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 41 of 42 33 When a party “choose[s] to make a pretense of unconditional disclosure, they bear [the] risk-that we will imply a waiver of privilege with respect to any material necessary for a fair evaluation of their disclosures.” In re Kellogg Brown & Root, Inc., 756 F.3d 137, 147 (D.C. Cir. 2014), cert. denied sub nom. U.S. ex rel. Barko v. Kellogg Brown & Root, Inc., 135 S. Ct. 1163, (2015) quoting In re Sealed Case, 676 F.2d 793, 823 (D.C. Cir. 1982). DI should be found to have impliedly waived the privilege because DI repeatedly made pretenses of unconditional disclosure. CONCLUSION For all the foregoing reasons, Plaintiff respectfully requests that the Court issue one or more orders that include the findings and orders set forth in the Proposed Order submitted herewith. Dated: November 15, 2016 /s/ Jack Jordan Jack Jordan 6225 Northlake Drive Parkville, MO 64152 jack.jordan@emobilawyer.com 816-746-1955 Case 1:16-cv-01868-RC Document 9 Filed 11/15/16 Page 42 of 42 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JACK JORDAN, Plaintiff v. UNITED STATES DEPARTMENT OF LABOR, Defendant _________________________________________ ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01868-RC DECLARATION OF JACK JORDAN I, Jack Jordan, pursuant to 28 U.S.C. Section 1786, hereby declare as follows: 1. I have represented Maria Jordan in connection with her claim under the Defense Base Act and Longshore and Harbor Workers’ Compensation Act since at least December 2013. I filed her claim with the Houston office of the Office of Workers’ Compensation. I also have attended to all aspects of the captioned FOIA case in representing myself. As a result of the foregoing, I have personal knowledge of the facts contained herein and I am fully competent to make this declaration. 2. Each fact that is expressly covered by this paragraph and set forth in Plaintiff’s Motion for Summary Judgment dated November 15, 2016 (“Plaintiff’s Motion”) is within my personal knowledge and is incorporated herein as if set forth expressly herein. 3. Attached as Exhibit B to Plaintiff’s Motion is the Index of Documents for the Appendix that Plaintiff will file after the last filing supporting or opposing Plaintiff’s Motion. I declare (or certify, verify, or state) under penalty of perjury that the foregoing, including each fact covered by paragraph 2, above, is true and correct. Executed this 15th day of November, 2016. /s/ Jack Jordan Case 1:16-cv-01868-RC Document 9-1 Filed 11/15/16 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JACK JORDAN, Plaintiff v. UNITED STATES DEPARTMENT OF LABOR, Defendant _________________________________________ ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01868-RC APPENDIX INDEX OF DOCUMENTS Document Pages Email dated October 14, 2016 from J. Cohen, USADC to Plaintiff 1-2 Emails dated October 16 and 28 and November 14, 2016 from Plaintiff to J. Cohen, USADC 3-5 Declaration of Plaintiff dated July 26, 2016 (submitted to U.S. Department of Labor Office of the Solicitor re: Appeal of Denial of FOIA Request No. F2016-806591) 6-25 Redacted copies of emails (the “Emails”) dated July 30 and 31, 2013 with the subject “WPS - next steps & actions” by employees of DynCorp International LLC 26-29 Letter dated October 28, 2015 to ALJ Merck from Counsel for DynCorp International LLC 30-31 Letter dated June 28, 2016 from Diane Johnson, OALJ Acting FOIA Coordinator, to Plaintiff partially denying FOIA Request No. F2016-806591 32-34 Letter dated July 15, 2016 from Chief ALJ Henley to Plaintiff denying FOIA Request No. F2016-808886 35-36 Letter dated August 5, 2016 from Chief ALJ Henley to Plaintiff denying reconsideration of FOIA Request No. F2016-808886 (w/o cc page) 37-39 Letter dated August 18, 2016 from Chief ALJ Henley to Plaintiff declining further consideration of FOIA Request No. F2016-808886 (w/o cc page) 40-41 Letter dated September 30, 2016 from Raymond Mitten, DOL Counsel for FOIA 42 Case 1:16-cv-01868-RC Document 9-2 Filed 11/15/16 Page 1 of 2 2 Appeals, dismissing appeal re: FOIA Request No. F2016-806591 (FOIA Appeal No. 160264) ALJ Merck’s Order dated January 27, 2016 43-56 ALJ Merck’s Order dated February 9, 2016 57-66 Case 1:16-cv-01868-RC Document 9-2 Filed 11/15/16 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JACK JORDAN, Plaintiff v. UNITED STATES DEPARTMENT OF LABOR, Defendant _________________________________________ ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01868-RC ORDER The Court finds and orders as follows: 1. The Complaint was served on the U.S. Attorney on September 27, 2016, and the U.S. Attorney was aware that FOIA requires a response to the Complaint to have been filed within 30 days after service of the Complaint on the U.S. Attorney. The U.S. Attorney also was aware that Federal Rule of Civil Procedure 8(b)(6) provided that any allegation in the Complaint that not timely denied was deemed admitted. A response to the Complaint was due by October 27, and on October 25, the U.S. Attorney, on behalf of the U.S. Department of Labor (the agency) requested an extension of 30 days to file a response to the Complaint. However, the agency refrained from supporting its request with a showing of good cause for such an extension. The agency did not file a response to the Complaint until November __. Consequently, the agency shall be and hereby is deemed to have admitted each factual allegation in the Complaint. 2. On June 9, 2016, Plaintiff submitted to the agency FOIA Request No. F2016-806591. On June 28, the agency denied the request with respect to emails that DI’s counsel Case 1:16-cv-01868-RC Document 9-3 Filed 11/15/16 Page 1 of 4 2 had forwarded to ALJ Merck in the DBA proceedings at any time in October through December 2015 that had the subject ‘WPS - next steps & actions’ and were dated July 30 or 31, 2013. On July 15, Plaintiff timely appealed the denial within the agency. The agency did not issue any ruling on Plaintiff’s appeal until September 30, when it dismissed Plaintiff’s appeal based solely on the fact that Plaintiff instituted the instant proceedings. Plaintiff has exhausted administrative remedies with respect to this request. 3. The OALJ failed to establish that ALJ Merck actually found that the Emails were protected by the attorney-client privilege or that the Emails contained any express request for legal advice. 4. The information provided by DI establishes that the Emails were not sent for the primary purpose of seeking or providing legal advice. In more than 17 months, DI has failed to present evidence that DI’s in-house attorney ever even read or responded to the Emails. DI has had ample opportunity to submit evidence and information supporting DI’s assertion of the privilege. DI’s failures have been exacerbated by the passage of time, and DI has waived the privilege by failing to support its assertion of the privilege for more than 17 months. 5. DI waived the attorney-client privilege with respect to the Emails by pretending to make full disclosures while failing to disclose or produce the Emails or disclose the identities of DI employees who received or sent the Emails. 6. ALJ Merck was required to publish the Emails in the record of the proceedings over which he was presiding because the Emails were sent to him in an ex parte Case 1:16-cv-01868-RC Document 9-3 Filed 11/15/16 Page 2 of 4 3 communication that was prohibited by the APA and the OALJ Rules. 7. ALJ Merck was required to disclose the Emails because he represented that the Emails included an express request for legal advice and the APA requires disclosure of evidence of which an ALJ takes official notice in proceedings that are required to be conducted on the record. 8. ALJ Merck was required to disclose the Emails in the record because DI filed the Emails and all filings are part of the record in proceedings that are required to be conducted on the record. 9. The Emails are in the possession of ALJ Merck and they consist of one or more versions that comprise about 10 pages or less. Consequently, the agency is ordered to produce all documents responsive to this request by sending them to Plaintiff via email at his email address on record within one business after the date of this order. 10. Plaintiff submitted a FOIA request dated July 5, 2016 asking the agency to produce documents pertaining to the purported sealing of the Emails by ALJ Merck. However, the agency has never responded to Plaintiff’s request. Consequently, Plaintiff has exhausted administrative remedies with respect to this request and the agency is ordered to produce all documents responsive to this request within 7 days after the date of this order. SO ORDERED this _____ day of December, 2016. _____________________________ JUDGE RUDOLPH CONTRERAS Case 1:16-cv-01868-RC Document 9-3 Filed 11/15/16 Page 3 of 4 4 The names and addresses of the attorneys entitled to notice of the entry of the above order and Plaintiff are: CHANNING D. PHILLIPS United States Attorney D.C Bar #415793 JASON T. COHEN Assistant United States Attorney ME BAR #004465 Office of the United States Attorney, District of Columbia 555 Fourth St., N.W. Washington, D.C. 20530 JACK JORDAN 6225 Northlake Drive Parkville, MO 64152 Case 1:16-cv-01868-RC Document 9-3 Filed 11/15/16 Page 4 of 4
