The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,
Pending before the Court is plaintiff's Motion  asking the Court to apply judicial estoppel to bar the defendant from filing an Opposition to plaintiff's Motion for Summary Judgment . Upon consideration of the Motion , the Opposition , the Reply , the entire record herein and the applicable law, plaintiff's Motion will be DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
This is a Title VII reverse discrimination claim brought by pro se plaintiff William Shea ("plaintiff" or "Shea"), a career foreign service officer, against the State Department ("defendant," "State," or "government"). Compl.  at 2, Mar. 3, 2002.*fn1 In 1992, when Shea was offered an appointment to the Foreign Service, the State Department had in place a Mid-- Level Affirmative Action Hiring Program ("MLAAP") that allowed certain candidates to be hired directly into higher, non-entry-level grades. Id. In a nutshell, Shea claims that his career advancement and pay were handicapped by his race because, as a Caucasian of Irish decent, he was ineligible for MLAAP. Compl.  at 3--4.
In the present motion, Shea asks the Court to apply the doctrine of judicial estoppel to bar defendant from filing an opposition to his Motion for Summary Judgment , or from "presenting evidence or argument contradicting the facts and arguments" plaintiff asserted in his Motion . Mot.  at 1, Nov. 7, 2011. In what Shea terms as "more-limited" relief, he asks, in the alternative, that the Court bar defendant from "challenging with evidence or argument" both his qualifications to give opinion testimony and the analysis he uses to support his Title VII claim.*fn2 Id. at 1, 22--23.
Shea's current Motion  has its genesis in a status conference held before Judge Robertson on December 18, 2009. At that hearing, the Court ordered that expert and fact discovery close by April 15, 2010, and gave the parties until May 15, 2010, to file Motions for Summary Judgment. Hr'g Tr. [115-1] at 11, Dec. 18, 2009. Judge Robertson specifically advised Shea that he need not wait for the close of discovery to file his motion for summary judgment, but that the government might respond to a motion filed before the close of discovery by asking for time to complete discovery under Rule 56. Id. at 6--7. Accepting Judge Robertson's invitation, Shea promptly filed his Motion for Summary Judgment on New Year's Day 2010. Pl's. Mot. Summ. J. . Defendant responded by filing a Motion to Strike under Federal Rule of Civil Procedure 56(e) (now Rule 56(c)), or in the alternative to deny the motion pending further discovery pursuant to Federal Rule of Civil Procedure 56(f) (now Rule 56(d)). Mot. Strike  at 1, Feb. 1, 2010. Defendant asserted that because plaintiff was incompetent to testify on statistical matters vital to his Title VII case and provided no expert testimony, other than his own analysis, he failed to meet Rule 56(e)'s requirement to "set out facts that would be admissible in evidence." Id. at 1--2. In the alternative, defendant requested more time for discovery because of plaintiff's failure to make Rule 26(a)(2)(B) disclosures, which were required to accompany his "expert" statistical analysis.*fn3 Id. at 2. Defendant, therefore, desired to depose Shea in order to obtain information regarding his qualifications and background, and the analytical methods he used to create his statistical evidence. Id. at 2; Decl. of Counsel [77-4] at 2. Defendant also requested time to "find persons knowledgeable about the Department's 1990-92 MLAAP" program and to retain their own rebuttal expert witness. Id. at 2--3.
One day later, with little discussion or guidance and before plaintiff even filed an opposition, the Court denied the government's Motion to Strike . Order  at 2, Feb. 2, 2010. The Court held in abeyance plaintiff's Motion for Summary Judgment and instructed the government that it had no obligation to respond to it until discovery was complete. Id. Defendant then filed a Motion for Reconsideration asking the Court to review its Order . Mot. Recons.  at 1, Apr. 5, 2011. The next day, in a hearing before Judge Sullivan on April 6, 2011, the parties stipulated that discovery had been completed. See Shea v. Clinton, ---F. Supp. 2d ---, No. 02-cv-577, 2012 WL 983120, at *9, (D.D.C. Mar. 23, 2012).The case was transferred to the undersigned Judge on October 10, 2011, and defendant's Motion for Reconsideration  was denied on March 23, 2012. Id. at *1. The Court held that its original decision was not clearly erroneous "as it simply reserve[d] judgment on defendant's argument until the motion [for summary judgment] . . . [was] fully briefed." Id. at *7. The Court then ordered the present Motion  to be briefed, and ordered that plaintiff's Motion for Summary Judgment  remain in abeyance pending the resolution of this Motion. Id. at *10.
Judicial estoppel "is an equitable doctrine invoked by a court at its
discretion." New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting
Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990)); see also Moses
v. Howard Univ. Hosp., 606 F.3d 789, 792 (D.C. Cir. 2010).*fn4
The purpose of judicial estoppel is to "protect the integrity
of the judicial process" by "prohibiting parties from deliberately
changing positions according to the exigencies of the moment," thereby
playing "fast and loose with the courts." Id. (citations omitted).
Indeed, the public policy behind the judicial estoppel doctrine is to
"'exalt the sanctity of the oath . . . [and] to safeguard the
administration of justice by placing a restraint upon the tendency to
reckless and false swearing . . . .'" Konstantinidis v. Chen, 626 F.2d
933, 937 (D.C. Cir. 1980) (quoting Melton v. Anderson, 222 S.W.2d 666,
669 (Tenn. Ct. App. 1948)). While "the circumstances under which
judicial estoppel may appropriately be invoked are probably not
reducible to any general formulation of principles," Id. (quoting
Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982), it is
generally invoked where a party takes one stance during a legal
and succeeds, and later, because the party's interests have changed,
assumes a contrary position, Moses, 606 F.3d at 798 (citations
omitted). The inconsistent stances can be in the same or different
proceedings. Contech Const. Prod., Inc. v. Heierli, 764 F.Supp.2d 96,
106 (D.D.C. 2011) (citing Karaha Bodas Co. v. Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara, 364 F.3d 274, 293--94 (5th Cir. 2004)).
Nevertheless, the Supreme Court has identified three factors that, while not being "inflexible prerequisites," should be considered by courts before invoking the doctrine. Maine, 532 U.S. at 751. These are: (1) whether the "party's later position . . . [is] 'clearly inconsistent' with its earlier position;" (2) whether "the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled;'" and (3) whether "the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Maine, 532 U.S. at 750--51 (internal citations omitted). "Doubts about inconsistency often should be resolved by assuming there is no disabling inconsistency, so that the second matter may be resolved on the merits." Contech, 764 F. Supp. 2d at 116 (citing 18B Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 4477, at 594 (2d ed. 2002)).
The gravamen of plaintiff's argument is his reading of both defendant's Motion  to Strike and the Court's Order  denying that motion. Plaintiff asserts that the government took the sworn position that it "could not present facts essential to justify its opposition to . . . [plaintiff's Motion for Summary Judgment] without first deposing [plaintiff] to obtain certain 'essential' and 'necessary' information." Mot  at 1, 11--15 (quoting Def.'s Mot. Strike  and accompanying affidavits [77-3--4]). Plaintiff reads Judge Robertson's brief Order , which he issued the day after defendant filed his Motion to Strike , as granting defendant's Rule 56(f) motion for continued discovery based on the assertions regarding defendant's inability to respond to plaintiff's Summary Judgment Motion . Id. at 11.
Unfortunately for plaintiff, his reading of both defendant's Motion  and the Court's Order  are inaccurate. Defendant requested time to continue discovery for multiple reasons, not solely to take plaintiff's deposition. Mot. Strike  at 11--13. The necessary discovery included plaintiff's "qualifications to [give expert testimony]," more time to find persons with historical knowledge about the MLAAP program, and to retain a rebuttal expert witness. Id. at 11--13. Defendant also requested that the court "deny" plaintiff's Motion  for summary judgment "until the close of discovery and until Plaintiff has fully complied with the requirements of Fed. R. Civ. P. 26(a)(2)." Id.
In support of defendant's Motion , Assistant United States Attorney Darrell Valdez, in his sworn declaration, stated that because plaintiff had not made any Rule 26 disclosures, defendant "was unable to inquire into Plaintiff's qualifications to . . . [give expert testimony], and was further unable to consult and obtain its own expert to rebut the Plaintiff's opinion testimony." Decl. of Counsel [77-4] at 2. It is clear that defense counsel expected plaintiff to submit a Rule 26 report, and would, thereafter, need time to both depose plaintiff regarding his background and qualifications, and to obtain a rebuttal expert. Id. Mr. Shea, however, was never deposed, Decl. of William Shea [106-3] at 1 (undated), nor does ...