Jordan v. U.S. Department of Labor

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

ST. JOSEPH DIVISION

JACK JORDAN, )

)

Plaintiff, )

)

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

)

U.S. DEPARTMENT OF LABOR, )

)

Defendant. )

ORDER (1) GRANTING PLAINTIFF’S RULE 58 MOTION, (2) DENYING PLAINTIFF’S

RULE 60 MOTIONS, AND (3) DENYING PLAINTIFF’S MOTION FOR ORDER

Currently pending are several motions. This Order only addresses Plaintiff’s

Rule 58 motion, Plaintiff’s Rule 60 motions, and Plaintiff’s motion for order. For the

following reasons, Plaintiff’s Rule 58 motion (Doc. #28) is granted, but Plaintiff’s Rule 60

motions (Docs. #27, 29) and Plaintiff’s motion for order (Doc. #30) are denied.

I. BACKGROUND

Plaintiff Jack Jordan alleges Defendant United States Department of Labor

(“DOL”) failed to release documents pursuant to the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, with regard to two FOIA requests. Doc. #1, ¶ 1. FOIA

Request F2018-850930 sought production of certain letters sent from the Office of

Administrative Law Judges to Plaintiff. Id. ¶ 2. FOIA Request F2018-858557 requested

release of “emails sent by employees of DynCorp International LLC (“DI”) on July 30 or

31, 2013 with the subject line: ‘WPS – next steps & actions.’” Id. ¶¶ 4, 15. The DOL

denied both requests. Id. ¶¶ 13, 16-17. In his Complaint, Plaintiff asked the Court to

order the DOL to produce all documents responsive to both FOIA requests.

The DOL moved to dismiss Plaintiff’s claims related to FOIA Request F2018-

858557 because they were duplicative of litigation brought by Plaintiff in the United

States District Court for the District of Columbia. Jordan v. U.S. Dep’t of Labor, No. 16-

1868 (D.D.C.) (“D.C. Lawsuit”). On December 14, 2018, the Court granted the DOL’s

motion, and dismissed without prejudice Plaintiff’s claims based upon FOIA Request

F2018-858557. Doc. #24.

Shortly thereafter, Plaintiff filed four motions asking the Court to (a) set out its

judgment in a separate document (Doc. #28); (b) grant him relief with regard to the

Court’s consideration of the treatment of inferences and the DOL’s credibility in the D.C.

Lawsuit (Doc. #27); (c) grant him relief with regard to the Court’s consideration of the

“progress of” the D.C. Lawsuit and “deferring” to Judge Contreras because of alleged

fraud, misrepresentation, and misconduct by the DOL and the Department of Justice

(“DOJ”) (Doc. #29); and (d) direct the DOL to publicly file Powers’ emails to Cox and

Huber (Doc. #30). The DOL opposes Plaintiff’s motions. Doc. #36.

II. DISCUSSION

A. Plaintiff’s Rule 58(a) Motion (Doc. #28)

Pursuant to Rule 58, Plaintiff asks the Court to set out its judgment in a separate

document. The DOL opposes Plaintiff’s request because not all claims have been

adjudicated. In his reply, Plaintiff clarifies he is asking that “whenever the Court does

enter judgment,” it does so in a separate document. Doc. #40.

“Every judgment…must be set out in a separate document….” Fed. R. Civ. P.

58(a). “A party may request that judgment be set out in a separate document…” Fed.

R. Civ. P. 58(d). Once all claims have been adjudicated and an appealable order is

entered, the Court, as it always does, will issue its judgment in a separate document.

Fed. R. Civ. P. 54, 58; L.R. 58.1. Plaintiff’s motion is granted.

B. Plaintiff’s Rule 60 Motions (Docs. #27 and 29)

Plaintiff filed two Rule 60 motions. In his first Rule 60 motion, Plaintiff asks the

Court grant him relief with respect to the Court’s “consideration of the treatment of

inferences and the DOL’s credibility by Judge Contreras in the D.C. Lawsuit when [this

Court] stated that to the ‘best’ of [its] ability to ‘discern,’ the record of the D[.]C[.] Lawsuit

gave ‘no indication’ that ‘Plaintiff’s rights were not adequately protected.’” Doc. #27, at

2. In his second Rule 60 motion, Plaintiff asks the Court to “reverse its decision

dismissing claims related to FOIA Request F2018-858557” because this Court did not

properly consider the “progress of” the D.C. Lawsuit, should not have “‘deferr[ed] to

Judge Contreras,” and failed to consider the “fraud, misrepresentation and egregious

misconduct” by the DOL and DOJ. Doc. #29, at 6. The DOL opposes the motions,

arguing Rule 60 does not apply to interlocutory orders. In his reply, Plaintiff argues the

Court is permitted to grant him Rule 60 relief from the D.C. District Court’s judgment.

Doc. #41, at 4.

(1) This Court’s December 14, 2018 Order

“The court may correct a clerical mistake or a mistake arising from oversight or

omission whenever one is found in a judgment, order, or other part of the record.” Fed.

R. Civ. P. 60(a). Relevant to Plaintiff’s motions, “the court may relieve a party…from a

final judgment, order, or proceeding for…fraud…, misrepresentation, or misconduct by

an opposing party,” or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(3),

(6). But Rule 60(b) only applies to final judgments and orders. Gonzalez v. Crosby,

545 U.S. 524, 527 (2005); Interstate Power Co. v. Kan. City Power & Light Co., 992

F.2d 804, 807 (8th Cir. 1993) (noting Rule 60(b) only applies to motions seeking relief

from final judgments).1 Plaintiff’s Rule 60 motions – at least the initial briefing of his

Rule 60 motions – were directed at this Court’s December 14, 2018 Order, which

dismissed without prejudice some of Plaintiff’s claims. That Order is not a final

judgment. Therefore, Plaintiff’s Rule 60 motions are denied to the extent they sought

relief from this Court’s December 14, 2018 Order.

(2) The D.C. District Court’s Judgment

In his reply, Plaintiff repositions the target of his Rule 60 motions, arguing this

Court may grant him relief from the D.C. District Court’s judgment. Doc. #41, at 4.

Curiously, Plaintiff’s new position conflicts with what he told the Court in response to the

DOL’s partial motion to dismiss: “So the DC Lawsuit is ongoing and Plaintiff is not

1 See also Fed. R. Civ. P. 60(b) advisory committee’s note to 1946 amendment (“The

addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders

or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments

are not brought within the restrictions of the rule….”).

seeking to have this Court review any D.C. court’s rulings.” Doc. #16, at 9 n.3.

Nevertheless, both the Eighth Circuit and this Court generally do not consider new

arguments raised in a party’s reply brief. See United States v. Morris, 723 F.3d 934,

942 (8th Cir. 2013) (citations omitted); Harris v. Daviess-DeKalb Cty. Reg’l Jail, No. 14-

6069, 2016 WL 3645201, at *9 (W.D. Mo. June 30, 2016). For this reason alone, the

Court denies Plaintiff’s Rule 60 motions.

Even if the Court were to consider Plaintiff’s Rule 60 motions as they relate to the

D.C. District Court’s judgment, it would still deny the motions. “Relief under Rule 60(b)

ordinarily is obtained by motion in the court that rendered the judgment.” 11 Charles

Alan Wright, et al., Federal Practice and Procedure § 2865 (3d ed. 2018). An advisory

committee note to an amendment to Rule 60(b), however, indicates Rule 60(b) may be

used to seek relief from a judgment by filing a motion with the court in which the

judgment was rendered, or by “filing a new or independent action to obtain relief from a

judgment, which action may or may not be begun in the court which rendered the

judgment.” Fed. R. Civ. P. 60(b) advisory committee’s note to 1946 amendment.

Several courts have discussed Rule 60(b)’s application to a judgment rendered by

another court, but those cases are limited to specific circumstances, such as Rule

60(b)(4) motions arguing the rendering court’s judgment is void.2 E.g., Budget Blinds,

Inc. v. White, 536 F.3d 244, 254 (3d Cir. 2008); Harper Macleod Solicitors v. Keaty &

Keaty, 260 F.3d 389, 395 (5th Cir. 2001); Morris v. Peterson, 759 F.2d 809, 811 (10th

Cir. 1985); Indian Head Nat’l Bank of Nashua v. Brunelle, 689 F.2d 245, 249-50 (1st Cir.

1982); Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 733 (2d Cir. 1980).

Plaintiff’s motions are not analogous to the unique circumstances where courts

granted relief from a judgment entered by another court. Plaintiff not only commenced

the D.C. Lawsuit, but he actively participated in the litigation. On August 4, 2017, the

D.C. District Court granted in part and denied in part the DOL’s motion for summary

2 Rule 60(b)(4) allows a party to seek relief from a final judgment that is void, and

“applies only in the rare instance where a judgment is premised either on a certain type

of jurisdictional error or on a violation of due process that deprives a party of notice or

the opportunity to be heard.” Fed. R. Civ. P. 60(b)(4); U.S. Aid Funds, Inc. v. Espinosa,

559 U.S. 260, 271 (2010); Baldwin v. Credit Based Asset Servicing & Securitization,

516 F.3d 734, 737 (8th Cir. 2008).

judgment, finding, among other things, the DOL properly withheld production of the

Powers’ email dated July 30, 2013. No. 16-1868 (D.D.C.) (Docs. #38-39). That order

did not adjudicate all claims in the D.C. Lawsuit, and thus, was not an appealable order.

On March 30, 2018, the D.C. District Court, inter alia, entered its judgment in favor of

Plaintiff with respect to the Huber email. Id. (Docs. # 59-60). This order was final and

appealable. Id. Plaintiff appealed the D.C. District Court’s decision. In October 2018,

the United States Court of Appeals for the District of Columbia affirmed the D.C. District

Court’s decision. Jordan v. U.S. Dep’t of Labor, No. 18-5128 (D.C. Cir.); Doc. #20-2.

Plaintiff then requested a rehearing, which was denied. The Court of Appeals issued its

mandate on February 1, 2019.

Plaintiff seeks relief from the D.C. District Court’s judgment in the form of Rule 60

motions filed in this Court.3 But Plaintiff does not provide legal authority to support his

argument, which alone justifies this Court’s denial of his motions. In addition, Plaintiff is

not entitled to relief under Rule 60(b)(3) because he failed to “show by clear and

convincing evidence that his opponent engaged in a fraud or misrepresentation that

prevented [him] from fully and fairly presenting his case” in the D.C. District Court.

Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998) (citation omitted).

Perhaps most critical to his Rule 60 motions, Plaintiff did not demonstrate exceptional

circumstances warranting the “extraordinary relief” he seeks and justifying this Court’s

“intrusion into the sanctity of a final judgment” and disregard of “comity among the

federal district courts.” Watkins v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999); Budget

Blinds, 536 F.3d at 251-52. Rather, as discussed infra, Plaintiff’s Rule 60(b) motions

are nothing more than requests that the Court reconsider its ruling on the DOL’s partial

motion to dismiss, or another opportunity for Plaintiff to relitigate the claims already

adjudicated by the D.C. District Court. For these reasons, the Court denies Plaintiff’s

Rule 60 motions.

3 Plaintiff did not file this action for the specific purpose of seeking relief from the D.C.

District Court’s judgment. According to the Complaint, Plaintiff seeks release of

documents responsive to his FOIA requests. Doc. #1, at 15.

(3) Reconsideration

Even if the Court were to construe Plaintiff’s Rule 60(b) motions as motions for

reconsideration of its December 14, 2018 Order, his motions fail. Motions for

reconsideration are “nothing more than Rule 60(b) motions when directed at non-final

orders.” Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006). “Motions for

reconsideration serve a limited function: to correct manifest errors of law or fact or to

present newly discovered evidence.” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716,

721 (8th Cir. 2010). “Such a motion is to be granted only in exceptional circumstances

requiring extraordinary relief.” Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 534

(8th Cir. 2006). “[A] district court should not grant a motion to reconsider an

interlocutory order unless the moving party demonstrates (1) that it did not have a fair

opportunity to argue the matter previously, and (2) that granting the motion is necessary

to correct a significant error.” Lexington Ins. Co. v. MGB Partners, Inc., No. 07-0468-

DGK, 2009 WL 10672420, at *3 (W.D. Mo. July 13, 2009).

In its December 14, 2018 Order, the Court discussed, among other things, the

standard to be applied when faced with a matter duplicative (in part) of a lawsuit filed in

another federal court, the factors to be weighed, the similarities between Plaintiff’s

claims in the D.C. Lawsuit and his claims in this matter, and the progress of the D.C.

Lawsuit. Doc. #24, at 2-6. The Court determined “the conservation of judicial

resources, comprehensive disposition of litigation, and the progress of that action weigh

in favor of this Court deferring to the D.C. District Court.” Id. at 6. The Court also noted

that Plaintiff, in response to the DOL’s partial motion to dismiss, did “not contend, much

less set forth evidence, his rights were or are not adequately protected” in the D.C.

Lawsuit. Id.4 Nonetheless, in the pending motions, Plaintiff attempts to take yet another

bite at the apple, arguing extensively about the D.C. Lawsuit.

Plaintiff reargues the substantive issues addressed in the D.C. Lawsuit; attacks

the D.C. District Court’s judgment; and disparages the DOL, the DOJ, the attorneys

4 In one Rule 60 motion, Plaintiff argues he “did actually establish that his rights were

egregiously and intentionally violated by multiple D.C. courts,” identifying the adverse

decisions by the D.C. District Court. Doc. #27, at 3 (citing Doc. #16, at 9 n.3). But he

does not demonstrate adverse rulings amounted to inadequately protected rights.

involved in the lawsuit, and even the judge. Plaintiff criticizes the factual and legal

underpinnings of the D.C. District Court’s judgment, arguing, among other things, the

DOL did not meet its burden of establishing privilege, the judgment was based on

“obvious falsehoods,” and the order violated federal law. Doc. #27, at 4-15; Doc. #29,

at 10-25, 29-34, 36-38; Doc. #41, at 5-10. Additionally, he contends the DOL, the DOJ,

and their counsel engaged in “extraordinary misconduct,” made misrepresentations and

false declarations, “lured a federal judge into knowingly misrepresenting facts…and

violating federal law,” “helped perpetrate a fraud on multiple courts,” made “blatantly

deceitful[]” contentions, “falsely” denied allegations, and “created evidence.” Doc. #27,

at 5-8, 10-11, 13, 15; Doc. #29, at 8, 12-13, 15-21, 24-25, 28-31, 33-34, 36-38; Doc.

#41, at 5-10. And Plaintiff argues not only that the D.C. District Court’s decision was

illegal, but that Judge Contreras5 willfully violated Plaintiff’s rights, “knowingly and

egregiously violated federal law,” helped the DOL conceal Powers’ email, engaged in

egregious misconduct, “concealed the truth,” made knowing misrepresentations,

“conceal[ed]…evidence,” violated the law, and “especially clearly and deliberately

flaunted (in three published opinions) deliberate and egregious abuses of discretion and

power.” Doc. #27, at 4-15; Doc. #29, at 8, 12-16, 21, 24, 27, 30-32, 36; Doc. #41, at 5-

10.

Plaintiff’s Rule 60 motions are attempts to undermine a preexisting, final

judgment entered by the D.C. District Court, and/or efforts to relitigate claims already

adjudicated. His arguments are based upon the parties’ conduct, arguments, and

representations, and the judge’s decisions and findings in D.C. Lawsuit. But a motion

for reconsideration may not be used for this purpose. A motion for reconsideration

“serve[s] a limited function: to correct manifest errors of law or fact or to present newly

discovered evidence.” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.

1988) (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.), as

amended, 835 F.2d 710 (7th Cir. 1987)); see also Broadway v. Norris, 193 F.3d 987,

989-90 (8th Cir. 1999) (stating Rule 60(b) authorizes relief based on certain

circumstances, and “is not a vehicle for simple reargument on the merits.”); Dale &

5 “Judge Contreras” is mentioned more than 100 times in Plaintiff’s Rule 60 motions.

See Docs. #27, 29.

Selby Superette & Deli v. U.S. Dep’t of Agric., 838 F.Supp. 1346, 1348 (D.M inn. 1993)

(stating a motion to reconsider should not be utilized to relitigate issues but “afford an

opportunity for relief in extraordinary circumstances.”).

Plaintiff has not demonstrated he did not have a fair opportunity to argue the

issues in the D.C. District Court6 or this Court, and he has not shown that granting his

motions is necessary to correct a significant error. Lexington Ins. Co., 2009 WL

10672420, at *3. Further, Plaintiff has not established exceptional circumstances

requiring this Court to grant him the extraordinary relief he seeks. Thus, Plaintiff’s Rule

60 motions, even when construed as motions for reconsideration, are denied.

C. Motion for Order (Doc. #30)

Plaintiff also asks the Court to direct the DOL to file a copy of Powers’ emails to

Cox and Huber. Docs. #30, 39. Although the DOL represents it produced these emails,

Plaintiff contends the DOL has failed to do so. The DOL opposes the motion, stating it

complied with the disclosures ordered in the D.C. Lawsuit, and even if it had not, the

Plaintiff’s remedy lies with the D.C. District Court. Doc. #36, at 3.

It is unclear from the briefing if these emails are the subject of a discovery

dispute. If they are, Plaintiff failed to comply with Local Rule 37.1 before filing his

motion to order. For this reason, Plaintiff’s motion is denied.

Even if these emails are not the subject of a discovery dispute, the Court will not

entertain a motion seeking production of emails related to claims adjudicated in another

district court and have been dismissed by this Court. For this additional reason,

Plaintiff’s motion is denied. The relief Plaintiff seeks should be requested in the D.C.

District Court, the D.C. Court of Appeals, or with the DOL’s Administrative Review

Board, with which he recently sought review of an administrative law judge’s orders

related to the emails. Doc. #36-1, at 27 n.5 (confirming he “already is pursuing Powers’

6 In one of his motions, Plaintiff discloses he briefed one issue – i.e., the DOL’s

representations as to its redaction of emails – on three separate occasions in the D.C.

Lawsuit. Doc. #29, at 20-21. This is but one of the many opportunities Plaintiff had to

argue his claims in the D.C. District Court.

emails in FOIA suits in the D.C. Circuit, as well as in a second case in D.C. District

Court and in a third case in the Western District of Missouri (Eighth Circuit).”

The Court’s decision to dismiss Plaintiff’s claims associated with Powers’ and

Huber’s emails was clear. Yet, Plaintiff’s motions focused on those claims. See Doc.

#27, at 3-14; Doc. #29, at 7-25, 27-33, 36-38; Doc. #30, at 1-9, 12-13; Doc. #39, at 2-6;

Doc. #41, at 5-11. To be clear: the only claims pending in this matter are those

associated with Plaintiff’s FOIA request (F2018-850930) that sought production of

certain letters from the Office of Administrative Law Judges to Plaintiff.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Rule 58(a) motion (Doc. #28) is granted,

Plaintiff’s Rule 60 motions (Docs. #27 and 29) are denied, and Plaintiff’s motion for

order (Doc. #30) is denied.

IT IS SO ORDERED.

/s/ Ortrie D. Smith

DATE: March 11, 2019 ORTRIE D. SMITH, SENIOR JUDGE

UNITED STATES DISTRICT COURT