At this stage in this case's long history, the only claims that remain for the Court's resolution are those against Officer Stover, in his individual capacity, for violation of 42 U.S.C. § 1983 and for various common law torts and those against the United States for violations of the Federal Tort Claims Act and for equitable relief. The Supreme Court's decision in Westfall v. Erwin now makes it clear that Officer Stover will not be entitled to absolute immunity for the common law tort claims brought against him because he was not performing a discretionary function when he arrested plaintiff. The Court will not, however, resolve these outstanding claims until plaintiff's appeal to the OEA is concluded. Although the Court concludes that the findings of the AAP would be entitled to preclusive effect in the District of Columbia courts, the Court does not want to run the risk of denying plaintiff relief on the basis of a judgment that may be subsequently overturned.
The Court will issue an Order of even date herewith memorializing these findings.
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 20th day of December, 1988,
ORDERED that the federal defendants' motion for leave to amend their answer so as to add the defenses of res judicata and collateral estoppel shall be, and hereby is, granted; and it is
FURTHER ORDERED that the Court shall stay its ruling on defendants' motion to dismiss or, in the alternative, for summary judgment for a period of ninety (90) days on the condition that plaintiff shall advise the Office of Employee Appeals that the Court expects a decision from that Agency within that period of time so that this Court may proceed to a final disposition of this case; and it is
FURTHER ORDERED that plaintiff and her counsel shall be, and hereby are, directed to notify the Office of Employee Appeals of the contents of this Order and the deadlines established herein for hearing and making a final determination of the issues of fact and law before it.