Jordan v. U.S. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JACK JORDAN, :
:
Plaintiff, : Civil Action No.: 17-2702 (RC)
:
v. : Re Document Nos.: 6, 9, 14
:
U.S. DEPARTMENT OF JUSTICE, :
:
Defendant. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION TO DISQUALIFY; GRANTING DEFENDANT’S MOTION FOR
EXTENSION OF TIME TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT; AND DENYING
WITHOUT PREJUDICE DEFENDANT’S MOTION FOR PROTECTIVE ORDER
I. INTRODUCTION
Pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, Plaintiff Jack
Jordan filed this action seeking records from Defendant U.S. Department of Justice (“DOJ”)
related to Jordan v. U.S. Dep’t of Labor, 16-cv-1868 (D.D.C.), an earlier FOIA action filed by
Mr. Jordan that was also before this Court. Specifically, Mr. Jordan requests (1) any records
describing the DOJ’s expenditure of resources in connection with that action and (2) any records
pertaining “directly or indirectly” to that action, to Mr. Jordan, or to this judge. Now before the
Court are three motions: Mr. Jordan’s motion to disqualify this judge, the DOJ’s motion for an
extension of time to respond to the complaint, and the DOJ’s motion for a protective order
barring discovery in this case. For the reasons explained below, this Court grants the DOJ’s
motion for an extension of time, but denies Mr. Jordan’s motion to disqualify and the DOJ’s
motion for a protective order.
II. FACTUAL BACKGROUND
This Court presumes familiarity with its prior Opinions in Mr. Jordan’s related litigation
in Jordan v. U.S. Dep’t of Labor, 16-cv-1868 (D.D.C.) (“2016 Action”), which commenced on
September 19, 2016. See generally Jordan v. U.S. Dep’t of Labor, No. 16-1868, 2018 WL
1567584 (D.D.C. Mar. 30, 2018); Jordan v. U.S. Dep’t of Labor, 273 F. Supp. 3d 214 (D.D.C.
2017). In that action, Mr. Jordan sought to compel the U.S. Department of Labor to disclose the
unredacted versions of two emails that related to a Defense Base Act case involving Mr. Jordan’s
wife and DynCorp International, Inc. See Jordan, 2018 WL 1567584, at *1; Jordan, 273 F.
Supp. 3d at 219–20. In resolving the 2016 Action, this Court requested and received the
disputed emails for in camera inspection to determine whether they were protected by any FOIA
exemptions. See Jordan, 2018 WL 1567584, at *2; Jordan, 273 F. Supp. 3d at 227. The Court
concluded that one of the two emails was protected by a FOIA exemption; however, the Court
ordered the Department of Labor to release the other email. 1 See Jordan, 2018 WL 1567584, at
*2; Jordan, 273 F. Supp. 3d at 232.
While that matter was pending, Mr. Jordan commenced the present action in December
2017. Here, Mr. Jordan seeks records related to the 2016 Action, including any accounting of
the time expended by specified attorneys working on that matter and any records pertaining
“directly or indirectly” to that matter, to Mr. Jordan, or to this judge. See Compl. ¶¶ 5–9, ECF
No. 1. Mr. Jordan believes that such records may uncover “multiple federal crimes.” See id. ¶ 1.
1
Among other things, the Court also held that there were no grounds to compel this
judge’s recusal. See Jordan, 2018 WL 1567584, at *6, 10. The DOL has now released the non-
exempt email to Mr. Jordan. See Email from Jason Cohen to Pl. (Apr. 4, 2018), ECF No. 21-3;
Emails between Robert Huber, William Imbrie, and Darin Powers (July 31, 2013), ECF No. 21-
1. The Court’s decisions in the prior Jordan matter are presently on appeal to the D.C. Circuit.
See Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to U.S. Court of
Appeals, ECF No. 64.
2
The DOJ requested a thirty-day extension of time to file its response to Mr. Jordan’s
complaint. See Def.’s Mot. for Extension of Time to Answer (“Def.’s Mot. for Extension”) at 1,
ECF No. 6. This Court did not rule on the motion for an extension, but the DOJ submitted its
answer within thirty days after the initial filing deadline. See Def.’s Answer (“Answer”) at 1,
ECF No. 18.
In that window of time, Mr. Jordan filed a motion to disqualify this judge under the
recusal statutes 28 U.S.C. §§ 144 and 455(a)–(b). See generally Pl.’s Mot. to Disqualify (“Mot.
to Disqualify”), ECF No. 9. Mr. Jordan argues that this judge should be disqualified because of
purported bias or prejudice toward Mr. Jordan based on the 2016 Action—alleged
preconceptions that would render this judge unable to fairly decide the present action. Id. Mr.
Jordan repeats many of the allegations that he lodged in a rejected recusal motion submitted in
the prior action. See Jordan, 2018 WL 1567584, at *3–6; compare Mot. to Disqualify at 1, 14,
20, 22, 28, 30–31, 33–34, 36, 40, and Pl.’s Suppl. to Mot. to Disqualify (“Pl.’s 1st Suppl.”) at 1–
7, ECF No. 20, and Pl.’s 2d Suppl. to Mot. to Disqualify (“Pl.’s 2d Suppl.”) at 3–13, ECF No.
21, with Jordan, 2018 WL 1567584, at *4, and Pl.’s Mot. to Disqualify at 1–45, No. 16-cv-1868,
ECF No. 55.
Also in that window of time, the DOJ filed a motion for a protective order barring all
discovery in this FOIA action. See generally Def.’s Mem. Supp. Mot. for Protective Order
(“Def.’s Mem.”), ECF No. 14. According to the DOJ, Mr. Jordan “appears to have included
Requests for Interrogatories and Document Production” along with the mailing of a copy of his
Motion to Disqualify Judge Contreras. See Mot. to Disqualify at 33–34; Def.’s Mem. at 1.
However, neither the DOJ nor Mr. Jordan appended any such request to any filing presently
before this Court. See generally Def.’s Mem. Observing that discovery is generally limited in
3
FOIA actions, the DOJ contends that no discovery should be permitted in the present action until
the DOJ files any dispositive motions. See Def.’s Mem. at 4; Def.’s Reply Supp. Def.’s Mem.
(“Def.’s Reply”) at 1, ECF No. 19. All three motions are now ripe for decision.
III. ANALYSIS
Before this Court are three different motions. Mr. Jordan filed a “Motion to Disqualify
Judge Contreras” (ECF No. 9), arguing that this judge should be disqualified for holding
purported bias or prejudice toward Mr. Jordan. The DOJ filed a “Motion for Extension of Time
to Answer or Otherwise Respond to Complaint” (ECF No. 6) to extend its deadline to respond to
Mr. Jordan’s complaint. The DOJ also filed a “Motion for Protective Order” (ECF No. 14) to
bar discovery in this action. For the following reasons, this Court denies Mr. Jordan’s motion to
disqualify, grants the DOJ’s motion for an extension of time to answer or otherwise respond to
the complaint, and denies without prejudice the DOJ’s motion for a protective order.
A. Plaintiff’s Motion to Disqualify
Mr. Jordan requests that this judge recuse himself from the present case on grounds such
as bias, partiality, threatening behavior, and criminal conduct. This Court denies Mr. Jordan’s
motion because it finds no basis for recusal.
“[F]ederal judges must maintain the appearance of impartiality” because “[d]eference to
the judgments and rulings of courts depends upon public confidence in the integrity and
independence of judges.” United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001)
(quoting Code of Conduct Canon 1 cmt.). Accordingly, the United States Constitution, federal
statutory law, and codes of judicial conduct each prescribe recusal standards under which a judge
may—or, under limited circumstances, must—remove himself from a case to protect the
integrity of the proceedings. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–77
4
(2009); Microsoft Corp., 253 F.3d at 113–15. The Supreme Court has explained that due process
requires recusal “when, objectively speaking, ‘the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally tolerable.’” Rippo v. Baker, 137 S. Ct.
905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). 2 Thus, “[t]he Court asks
not whether a judge harbors an actual, subjective bias, but instead whether . . . the average judge
in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for
bias.’” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (quoting Caperton, 556 U.S. at
881). Under this framework, the Supreme Court has recognized only very few circumstances in
which the appearance of bias mandates recusal. See, e.g., Caperton, 556 U.S. at 872 (holding
that due process required recusal where a party was a substantial donor to judge’s election
campaign); Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (holding that it may violate due
process when a judge presides over a criminal contempt case that resulted from the defendant’s
hostility toward the judge); Tumey v. Ohio, 273 U.S. 510, 523–24 (1927) (holding that a judge
may not preside over a case in which he has a “direct, personal, substantial, pecuniary interest”).
However, “most questions concerning a judge’s qualifications to hear a case are not
constitutional ones.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
2
The Supreme Court described this standard by reference to the Fourteenth Amendment
Due Process Clause, which does not apply to the federal government. See Bolling v. Sharpe, 347
U.S. 497, 499 (1954). This Court presumes, however, that this same standard applies to the
federal courts through the Fifth Amendment. See S.F. Arts & Athletics, Inc. v. U.S. Olympic
Comm., 483 U.S. 522, 542 n.21 (1987) (explaining that the Fifth Amendment Due Process
Clause, which applies to the federal government, is generally interpreted consistent with the
Fourteenth Amendment Due Process Clause); cf. Hurd v. Hodge, 334 U.S. 24, 35–36 (1948)
(“We cannot presume that the public policy of the United States manifests a lesser concern for
the protection of such basic rights against discriminatory action of federal courts than against
such action taken by the courts of the States.”).
5
Recusal of federal district court judges is more often discussed by reference to 28 U.S.C.
§§ 144 and 455. 3 See, e.g., SEC v. Loving Spirit Found., Inc., 392 F.3d 486, 492–93 (D.C. Cir.
2004). Section 144 provides that “[w]henever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein.” 28 U.S.C. § 144. But “the mere fact that a party has filed a
[Section] 144 motion, accompanied by the requisite affidavit . . . does not automatically result in
the challenged judge’s disqualification.” Strange v. Islamic Republic of Iran, 46 F. Supp. 3d 78,
81 (D.D.C. 2014) (quoting Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C. 2010)); see
also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) (“[D]isqualification is not
automatic upon submission of affidavit and certificate . . . .”). Rather, “the judge must review
[the affidavit] for legal sufficiency . . . and construe [it] strictly against the movant to prevent
abuse.” Miller, 355 F. Supp. 2d at 405 (citing United States v. Haldeman, 559 F.3d 31, 135
(D.C. Cir. 1976); James v. District of Columbia, 191 F. Supp. 2d 44, 46–47 (D.D.C. 2002)).
While the judge “must accept the affidavit’s factual allegations as true even if the judge knows
them to be false,” the affidavit still “must state facts as opposed to conclusions, and . . . mere
rumors and gossip are not enough.” Loving Spirit Found., 392 F.3d at 496 (citing Berger v.
United States, 255 U.S. 22, 35–36 (1921)); Strange, 46 F. Supp. 3d at 81 (citing United States v.
Hanrahan, 248 F. Supp. 471, 475 (D.D.C. 1965)). An affidavit is sufficient as a matter of law
when it states material facts with particularity, it would convince a reasonable person that a bias
3
In its previous Opinion, this Court did not assess Mr. Jordan’s motion to disqualify
under Section 144 because he failed to “file[] any affidavit along with his recusal request,” as
required by statute. Jordan, 2018 WL 1567584, at *4 n.3. In this case, Mr. Jordan has filed an
affidavit with his motion to disqualify; thus, this Court considers the motion under both Section
455 and Section 144.
6
exists, and the alleged bias is personal in nature and stems from an extrajudicial source. See
Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988); James, 191 F.
Supp. 2d at 47 (citations omitted).
Similarly, recusals under Section 455 focus on standards of personal bias and partiality.
See 28 U.S.C. § 455. Section 455(a) states that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned,” unless the parties waive
the grounds for disqualification. Id. § 455(a), (e). “The standard for disqualification under
[Section] 455(a) is an objective one.” Microsoft Corp., 253 F.3d at 114. “The question is
whether a reasonable and informed observer would question the judge’s impartiality.” Id.
(citations omitted). Further, Section 455(b) enumerates specific grounds that require a judge to
recuse, such as where he has “an interest that could be substantially affected by the outcome of
the proceeding.” 28 U.S.C. § 455(b), (b)(5)(iii). Even though recusal may be justified when a
judge possesses interests that “tempt [the judge] to disregard neutrality,” “bald allegations of bias
or prejudice” are insufficient. Caperton, 556 U.S. at 878 (finding disqualification appropriate
when judge had direct financial interests in the proceeding’s outcome); Karim-Panahi v. U.S.
Cong., 105 Fed. App’x 270, 275 (D.C. Cir. 2004) (affirming district court’s denial of motion to
disqualify judge because the record did not reflect the appearance of bias or prejudice).
To compel recusal under Section 455(a), the movant must demonstrate that the judge’s
reliance on “‘an extrajudicial source’ . . . creates an appearance of partiality.” To compel
recusal under Section 455(b), the movant must demonstrate that the judge has “actual bias or
prejudice based upon an extrajudicial source.” Tripp v. Exec. Office of the President, 104 F.
Supp. 2d 30, 34 (D.D.C. 2000) (emphasis added). Where no extrajudicial source is involved, the
movant must show a “deep-seated favoritism or antagonism that would make fair judgment
7
impossible.” Id. (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Thus, judicial
rulings and opinions formed by the judge during the course of proceedings generally do not
support recusal. See Liteky, 510 U.S. at 555. Indeed, this Circuit has declared that “[a] judge
should not recuse himself based upon conclusory, unsupported or tenuous allegations.” In re
Kaminski, 960 F.2d 1062, 1065 n.3 (D.C. Cir. 1992) (per curiam) (citation omitted); see SEC v.
Bilzerian, 729 F. Supp. 2d 19, 22 (D.D.C. 2010) (“[A] judge has as much an obligation not to
recuse himself where there is no reason to do so as he does to recuse himself when proper.”)
(citation omitted).
In the present motion, Mr. Jordan makes various allegations of judicial bias and partiality,
including that this judge: (1) “knowingly and willfully colluded with the DOJ”; (2) knowingly
engaged in “entirely illegal” in camera review of disputed FOIA documents; (3) “designed a
prohibited ex parte communication” in order to “prevent [Mr. Jordan] from obtaining highly
relevant evidence”; (4) “misrepresented many facts that were material”; (5) made “statements
and threats” that “crossed the line into criminal intimidation,” including “expressly threaten[ing
Mr. Jordan] with sanctions”; (6) possessed disqualifying “personal knowledge of disputed
evidentiary facts concerning the case”; (7) “has a personal interest in helping the DOJ conceal
. . . records and evidence”; and (8) “committed crimes” in violations of 18 U.S.C. §§ 1001, 1343
and 371. See Mot. to Disqualify at 14–40; Decl. of Jack Jordan (“Jordan Decl.”) ¶¶ 6–26, ECF
No. 9-2; Pl.’s 1st Suppl. at 1–7; Pl.’s 2d Suppl. at 3–13. Because the substantive standard for
finding “personal bias or prejudice” through the affidavit is essentially the same under Sections
144 and 455, see Klayman v. Judicial Watch, Inc., 278 F. Supp. 3d 252, 257 (D.D.C. 2017), this
Court jointly applies that standard to the present facts.
8
The Court briefly addresses some of Mr. Jordan’s more pointed contentions, some of
which repeat the allegations made in Mr. Jordan’s motion to disqualify this judge in the 2016
Action. See Jordan, 2018 WL 1567584, at *4–5. First, Mr. Jordan alleges that this judge’s use
of in camera review of the unredacted emails was “unauthorized” and “illegal.” Mot. to
Disqualify at 20–21. But this judge’s use of in camera review was both authorized and legal.
“Congress provide[s] district courts the option to conduct in camera review under [the] FOIA.”
ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 626 (D.C. Cir. 2011) (citing Larson v. Dep’t of
State, 565 F.3d 857, 869 (D.C. Cir. 2009)). And the D.C. Circuit has clarified that “[a] judge has
discretion to order in camera inspection on the basis of an uneasiness, on a doubt that he wants
satisfied before he takes responsibility for a de novo determination.” Spirko v. U.S. Postal Serv.,
147 F.3d 992, 996 (D.C. Cir. 1998) (citing Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)
(per curiam)). Because this judge’s use of in camera review of the emails was permissible, Mr.
Jordan’s allegation is insufficient to reasonably question this judge’s impartiality and does not
warrant this judge’s recusal. See James, 191 F. Supp. 2d at 47 (citation omitted); Microsoft
Corp., 253 F.3d at 114.
Second, Mr. Jordan contends that this judge “directly and explicitly harassed” and
“threatened to sanction” him, which amounted to “criminal intimidation.” Mot. to Disqualify at
31; Pl.’s 1st Suppl. at 6; Pl.’s 2d Suppl. at 3. Mr. Jordan alludes to this Court’s admonishment of
him in its prior Opinion, speculating that this judge and various agency personnel plotted to
violate the FOIA together. See Mot. to Disqualify at 30–31. But this Court continues to stand by
its reproach as entirely appropriate. Its remarks did not rise to the level of “deep-seated
favoritism or antagonism” that would warrant recusal. See Liteky, 510 U.S. at 555 (“[J]udicial
remarks during the course of a trial that are critical or disapproving of, or even hostile to,
9
counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.”); cf.
Berger, 255 U.S. at 28–29, 43 (finding judge’s categorical remarks about defendants and
“practically all the Germans in this country” disqualifying). It follows that this allegation does
not provide a basis for recusal.
Third, Mr. Jordan contends that this judge has a “personal interest” in helping the DOJ
“conceal[] material facts” in violation of Section 455(b)(5)(iii). Mot. to Disqualify at 34–36; see
28 U.S.C. § 455(b)(5)(iii); Pl.’s 1st Suppl. at 7; Pl.’s 2d Suppl. at 8–12. It is true that a judge
should recuse if he or she has “an interest that could be substantially affected by the outcome of
the proceeding.” 28 U.S.C. § 455(b)(5)(iii). However, Mr. Jordan offers only bald allegations.
He neither identifies what this judge’s purported personal interest in the outcome of this
proceeding might be nor explains how that alleged personal interest might undermine this
judge’s ability to fairly preside over the matter. Such general and conclusory allegations are
insufficient to demonstrate actual bias or prejudice as required by Section 455(b). See Karim-
Panahi, 105 Fed. App’x at 275; Tripp, 104 F. Supp. 2d at 34. Therefore, this allegation does not
warrant recusal.
Finally, Mr. Jordan asserts that this judge “committed crimes” under 18 U.S.C. §§ 371,
1001, 1341, 1512, and 1519. See Mot. to Disqualify at 36–41; Pl.’s Reply to Def.’s Opp’n to
Mot. to Disqualify (“Pl.’s Reply to Opp’n”) at 5, 8, ECF No. 12; Pl.’s 2d Suppl. at 1–2. These
bald allegations yield no evidence of this judge’s alleged bias or prejudice. They are thus
insufficient to compel recusal. See Karim-Panahi, 105 Fed. App’x at 275 (holding that “bald
allegations” are insufficient to disqualify judge); United States v. Nixon, 267 F. Supp. 3d 140,
10
152–53 (D.D.C. 2017) (“[S]uch speculation cannot support [a] request for recusal.”) (citation
omitted). 4
In sum, Mr. Jordan has failed to meet the recusal standards under Sections 144 and 455,
let alone the more stringent constitutional standard. See 28 U.S.C. §§ 144, 455. An objective
observer would not question this judge’s impartiality under the present circumstances because
Mr. Jordan has not shown the appearance or actual existence of a personal or extrajudicial bias.
See id. §§ 144, 455; Liberty Lobby, 838 F.2d at 1301; Tripp, 104 F. Supp. 2d at 34.
Furthermore, Mr. Jordan has not shown that this Court acted with a level of “deep-seated
favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555.
Instead, Mr. Jordan makes “conclusory, unsupported [and] tenuous allegations” that are wanting
of facts. Kaminski, 960 F.2d at 1065 n.3 (citation omitted). Insofar as judges have a duty to
recuse themselves when partiality exists, judges have an equal duty to not recuse themselves
when there is no basis for recusal. 5 See Bilzerian, 729 F. Supp. 2d at 22. This judge is no
exception. Accordingly, Mr. Jordan’s motion requesting that this judge recuse himself is denied.
4
It bears mentioning that Mr. Jordan cannot bring his own private action to enforce these
provisions of the criminal code. See, e.g., Lee v. U.S. Agency for Int’l Dev., 859 F.3d 74, 78
(D.C. Cir. 2017), reh’g denied, No. 16-5276, 2017 U.S. App. LEXIS 14935 (D.C. Cir. Aug. 10,
2017) (per curiam) (affirming dismissal of plaintiff’s claim brought under 18 U.S.C. § 1001);
Saunders v. Davis, No. 15-cv-2026, 2016 U.S. Dist. LEXIS 125304, at *11, *42–43 (D.D.C.
Sept. 15, 2016) (dismissing plaintiff’s claim brought under 18 U.S.C. § 1343); Peavey v. Holder,
657 F. Supp. 2d 180, 190–91 (D.D.C. 2009) (dismissing plaintiff’s claim brought under 18
U.S.C. §§ 1512 and 1519); Rockefeller v. U.S. Court of Appeals Office, for the Tenth Circuit
Judges, 248 F. Supp. 2d 17, 20 (D.D.C. 2003) (dismissing plaintiff’s claim brought under 18
U.S.C. § 371).
5
Because the duty is on the judge to not recuse when inappropriate, Mr. Jordan misses
the point by arguing that the DOJ’s silence on some of Mr. Jordan’s allegations raises a
presumption of guilt. See Mot. to Disqualify at 22–29; Pl.’s 2d Supp. at 13–14.
11
B. Defendant’s Motion for Extension of Time to Answer or Otherwise
Respond to Complaint
On February 7, 2018, the DOJ filed a motion for a thirty-day extension of time to submit
its answer or otherwise respond to the complaint, which was initially due on February 12, 2018.
See Def.’s Mot. for Extension at 1. The DOJ accordingly filed its answer on March 14, 2018.
See Answer at 1. As explained below, the Court grants the DOJ’s requested extension.
A court may extend a filing deadline when the moving party requests an extension before
the original filing deadline and shows good cause. See Fed. R. Civ. P. 6(b)(1). Courts have
discretion to determine whether a movant has shown good cause. See Smith v. District of
Columbia, 430 F.3d 450, 456 (D.C. Cir. 2005). “[R]equests for extensions of short durations are
routine” in this district. See Jordan, 2018 WL 1567584, at *8. “Also routine in this District is
the fact that most motions are pending for several months before being resolved due to the press
of the Court’s business and the volume of substantive motions filed.” Jordan, 2018 WL
1567584, at *8; cf. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,
151 (D.C. Cir. 1996) (explaining a district court’s “prerogative to manage its docket, and its
discretion to determine how best to accomplish this goal”) (citation omitted).
Here, the DOJ requested an extension before the original answer deadline. See Def.’s
Mot. for Extension at 1; Answer at 1. The inquiry therefore turns on whether the DOJ has shown
good cause. See Fed. R. Civ. P. 6(b)(1). The DOJ posits that an extension would “provide
sufficient time to complete [the] process” of “gathering and reviewing the documents at issue,”
“draft[ing],” and “review[ing] an appropriate response to the Complaint.” See Def.’s Mot. for
Extension at 1. Mr. Jordan opposes the motion, asserting that the DOJ’s motion “did not even
describe good cause” or “any cause.” Pl.’s Opp’n to Def.’s Mot. for Extension of Time (“Pl.’s
Opp’n to Def.’s Mot. for Extension”) at 3–4. Mr. Jordan also argues that the good cause
12
standard in FOIA matters is stricter than the standards promulgated under Fed. R. Civ. P. 6(b)(1).
See id. at 5–6. Contrary to Mr. Jordan’s view, the Court finds that the DOJ has shown good
cause. The
Court is presented with a routine motion for an extension of a short duration. See Smith, 430
F.3d at 456. And the DOJ has articulated appropriate reasons for requesting an extension. See
Jordan, 273 F. Supp. 3d at 241–42 (“[T]he limited information provided was more than
sufficient to justify the routine relief sought—a 30 day extension at the beginning of a FOIA
case.”). Furthermore, Mr. Jordan will not suffer any prejudice because the short extension would
have had little, if any, impact on the judicial proceedings of an action still in its early stages. 6
Accordingly, this Court grants the DOJ’s motion.
C. Defendant’s Motion for Protective Order
Finally, the Court considers the DOJ’s motion for a protective order barring all discovery
in this case. See generally Def.’s Mem., ECF No. 14. The DOJ states that it received “Requests
for Interrogatories and Document Production” along with a mailed copy of Mr. Jordan’s motion
to disqualify. See Def.’s Mem. at 1. But no discovery request has been submitted to this Court
by either party. See generally Def.’s Mem. The Court denies the DOJ’s motion at this time for
the following reasons.
In this Circuit, a district court has discretion to limit or bar discovery in FOIA actions.
See Campbell v. U.S. Dep’t of Justice, 231 F. Supp. 2d 1, 7 (D.C. Cir. 2002); see also LCvR
16.3(b) & cmt., 26.2(a) & cmt. (modifying Federal Rules of Civil Procedure to exempt FOIA
6
Indeed, if either party has delayed this litigation, it is Mr. Jordan, who filed a recusal
motion and supplemental memoranda in support of that motion that primarily repeated
arguments that this Court rejected in the prior related litigation. Because this Court had to
resolve Mr. Jordan’s motion before it could act on any other pending motions, Mr. Jordan’s
motion caused more delay than the Government’s extension motion that he opposes.
13
actions from initial disclosure requirements and duty to develop a discovery plan). It may do so
by entering a protective order upon a party’s motion, even at an early stage of a proceeding. See
Bureau of Nat’l Affairs, Inc. v. IRS, 24 F. Supp. 2d 90, 91–92 (D.D.C. 1998) (granting protective
order after government defendant filed its answer, motion for summary judgment, and a Vaughn
index); Farese v. U.S. Dep’t of Justice, No. 86-5528, 1987 U.S. App. LEXIS 14248, at *8–9
(D.C. Cir. 1987) (per curiam) (affirming grant of protective order before government defendant
filed its affidavits because discovery “essentially duplicated [plaintiff’s] FOIA requests”). A
movant requesting a protective order must demonstrate good cause; show that “annoyance,
embarrassment, oppression, or undue burden or expense” would result absent the order; and
certify that the movant has conferred in good faith with the non-movant to resolve the dispute
without court interference. Fed. R. Civ. P. 26(c); see Campbell, 231 F. Supp. 2d at 13. A district
court has discretion to determine what constitutes good cause, but mere inconvenience or
expense is insufficient. See Campbell, 231 F. Supp. 2d at 7 (citations omitted). Simply put, the
district court must be able to “articulate specific facts” to justify its grant of a protective order.
Id. (citing EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1411 (D.C. Cir. 1996)).
Mr. Jordan and the DOJ appear to agree that discovery may occur in some FOIA
actions. 7 See Pl.’s Opp’n to Protective Order at 4–5; Def.’s Reply at 1. However, the DOJ
7
The DOJ asserts that discovery is “rare and disfavored” in FOIA actions. Def.’s Mem.
at 4; Def.’s Reply at 1. But this Court cannot accept this blanket proposition as a basis for
granting a protective order barring all discovery at the very early stage of a FOIA action in which
it is not yet known whether discovery may be warranted. Courts in this Circuit have generally
concluded that “discovery is inappropriate” only after the filing of a motion for summary
judgment, when a court can declare that “no factual dispute remains.” Pub. Citizen Health
Research Grp. v. FDA, 997 F. Supp. 56, 72–73 (D.D.C. 1998); see, e.g., SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (“The district court held that the . . . affidavits were
sufficient to justify summary judgment on the adequacy of its efforts, and therefore denied
discovery.”); Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (“[T]he district judge has
discretion to forgo discovery and award summary judgment on the basis of affidavits”). Here, no
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argues that a protective order should be issued barring discovery in this action because the
discovery requests sent by Mr. Jordan “do not seek information that is relevant to the resolution
of this FOIA action” and because “[Mr. Jordan] cannot show any basis for discovery that is
sometimes allowed in FOIA cases.” Def.’s Mem. at 4–5. The DOJ also contends that discovery
should be barred because the DOJ had not yet filed a dispositive motion and any supporting
affidavits. See id. at 4.
At this time, the DOJ has not supplied this Court with specific facts to justify the entry of
a protective order barring all discovery in this case. See Nat’l Children’s Ctr., 98 F.3d at 1410;
Campbell, 231 F. Supp. 2d at 7 (citations omitted). The DOJ has not yet, for instance, filed a
motion for summary judgment or a Vaughn index, so this Court cannot conclude that discovery
would be “unnecessary and impermissible.” Bureau of Nat’l Affairs, 24 F. Supp. 2d at 92.
Furthermore, this Court is unable to determine whether Mr. Jordan’s discovery request might
cause “annoyance, embarrassment, oppression, or undue burden or expense” because the specific
request has not been produced for the Court. Fed. R. Civ. P. 26(c); see Def.’s Mem. at 1.
Therefore, this Court denies the DOJ’s motion without prejudice. 8 However, the DOJ need not
respond to Mr. Jordan’s written discovery request until the record in this matter is sufficiently
developed to allow the Court to determine that this is the rare FOIA action in which discovery is
appropriate.
motion for summary judgment has been filed so this Court cannot evaluate whether discovery
would be inappropriate.
8
The DOJ may renew its motion for a protective order upon satisfying the requirements
of Rule 26(c).
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IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the DOJ’s motion for a thirty-day
extension of time to answer or otherwise respond to the complaint (ECF No. 6). However, the
Court DENIES Mr. Jordan’s request that this judge disqualify himself (ECF No. 9) and the
DOJ’s motion for a protective order barring all discovery in this case (ECF No. 14). An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: June 8, 2018 RUDOLPH CONTRERAS
United States District Judge
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