United States District Court, D. Columbia.
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SAI, Plaintiff, Pro se, Wilmington, DE.
For DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, JOHN S. PISTOLE, FRANCINE KERNER, MEGAN H. HACK, TAMARA KESSLER, KIMBERLY WALTON, WILLIAM MCKENNEY, SEENA FOSTER, ZACHARY BROMER, JEREMY BUZZELL, ERIKA LUCAS, Defendants: Jeremy S. Simon, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
MEMORANDUM AND ORDER
RANDOLPH D. MOSS, United States District Judge.
Before the Court are over a dozen non-dispositive motions, most of which have been filed by the Plaintiff, who is proceeding pro se.  In addition, the Plaintiff has moved for partial summary judgment, and the Defendants have moved to dismiss. Those motions are not yet fully briefed, and some of the present motions are directed at how the parties and court should proceed in addressing those dispositive motions. The proliferation of motions has invited confusion and uncertainty regarding the status of the pending dispositive motions, with the parties raising and cross-referencing various arguments not presented in the initial briefing. In order to ensure the orderly progress of this proceeding, this Order will set a schedule for the resolution of the pending, dispositive cross-motions and will require that the parties strictly adhere to that schedule absent a showing of good cause. The Order will also stay discovery (including initial disclosures) and the meet and confer requirement set forth in Federal Rule of Civil Procedure 26(f) pending resolution of Defendant's motion to dismiss. With respect to the pending motion for partial summary judgment, Plaintiff made the judgment to file that motion very early in the proceeding--indeed, even before Defendants were required to answer or move under Rule 12. The Court understands that Plaintiff and Defendants agree that the motion can be decided on the present record, without the need for discovery, and the Court will decide it on that basis. Accordingly, discovery will also be stayed pending resolution of Plaintiff's motion for partial summary judgment. If Plaintiff would prefer that the motion for partial summary judgment not be considered on the present record, Plaintiff may promptly withdraw that motion without prejudice.
As explained below, the parties will be given ample opportunity to set forth their respective positions regarding the pending dispositive motions. The Court, in turn, expects that they will do so within the confines of the briefing schedule set forth below and without cross-referencing or incorporating briefs or notices filed in support of other motions. In addition, to ensure that matters are addressed in an orderly manner, the Court will require that, while Defendants' motion to dismiss and Plaintiff's motion for partial summary judgment remain pending, the parties refrain from filing further motions (with the
exception of motions for extensions of time), unless they first (1) meet and confer regarding the relevant issue, (2) jointly contact the Deputy Clerk to arrange a conference call with the Court to discuss the issue, and (3) obtain leave to file from the Court. Failure to follow these procedures will provide a basis for the denial of any such motion. See Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (" The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket." ).
This action arises out of incidents that occurred at the airport security checkpoints at Boston Logan Airport (BOS) and San Francisco International Airport (SFO). Plaintiff alleges that, in the course of the security screening processes, Plaintiff was subjected to discriminatory treatment in violation of the Rehabilitation Act and other civil rights laws. Based on these allegations, Plaintiff filed an administrative complaint with the Transportation Security Administration (TSA), which is a component of the Department of Homeland Security (DHS). TSA, in turn, treated the complaint as two separate grievances--one for BOS and one for SFO.
The present action is directed at the handling of those grievances. Plaintiff, in particular, alleges that TSA, DHS and various individuals who work for those entities knowingly and willfully refused to respond to the complaints in a timely manner. Although noting that " [l]ater civil action regarding the actual events at BOS and SFO is contemplated," the complaint is emphatic that Plaintiff is not currently challenging anything that occurred at the screening checkpoints. Compl. P 15. Instead, " [t]his suit is brought strictly for matters relating to defendants' handling of [Plaintiff's] complaints." Id. The suit is premised on a DHS regulation that requires the department to respond to an administrative complaint brought under Section 504 of the Rehabilitation Act within 180 days. See 6 C.F.R. § 15.70(d). At least at this stage of the litigation, Defendants do not dispute that the department failed to act on the two complaints within the 180-day period. They do dispute, however, the legal consequences of that omission.
This is not the first action that Plaintiff has brought with respect to the screening incidents. In March 2014, Plaintiff brought an action under the Freedom of Information and Privacy Acts seeking materials relating to the incidents and his grievances. Sai v. Transportation Security Administration, No. 14-cv-01876 (D.D.C. Mar. 13, 2014). That case remains pending. As in this matter, Plaintiff has filed an excessive number of motions in the March 2014 case, ultimately prompting the Court to order Plaintiff not file any further motions (with the exception of motions for extensions of time) without the Court's leave, pending resolution of the TSA's pending motions. Order, Sai v. Transportation Security Administration, No. 14-cv-403, Dkts. 55, 57 (D.D.C. Aug. 13, 2014).
Plaintiff filed the present case in November 2014. Even before Defendants responded to the complaint, Plaintiff moved " to expedite this action" and for partial summary judgment. Dkt. 7. Seeking immediate relief only with respect to the first count, that motion posited that TSA was required to respond to the administrative complaints within 180 days of receipt, that TSA had not responded to either complaint, that the responses were more than a year beyond the mandated deadline, and that TSA's failure to act was " prima facie unreasonable." Id. The Court denied the motion to expedite and granted Defendants' motion for an extension of time to answer or move and to oppose the motion for partial summary judgment. See Minute
Order, January 30, 2015. Then, before Defendants were required to make those filings, Plaintiff moved to compel Defendants to participate in a Rule 26(f) conference as a prerequisite to Plaintiff's effort to seek discovery from Defendants. Defendants answered that motion and separately moved to stay the Rule 26(f) conference. Dkts. 18, 19. Plaintiff replied and simultaneously moved for certification of an interlocutory appeal under 28 U.S.C. § 1292(b).
Defendants then moved to dismiss the complaint and opposed Plaintiff's motion for partial summary judgment. That same day, Plaintiff filed an " emergency motion" to " sever response to combined motions," seeking permission to file piecemeal responses to Defendants' filings. Dkt. No. 25. Plaintiff also moved to compel Defendants to respond to a declaration attached to the complaint (which Plaintiff contends is material to Plaintiff's motion for partial summary judgment under Federal Rule of Civil Procedure 56(e)(1)), and moved to strike any factual assertions contained in Defendants' motion to dismiss. Id. And a day later, Plaintiff filed yet two more motions: one requesting that the Court take judicial notice of an administrative claim for money damages, which Plaintiff submitted to DHS that same day, Dkt. 26, and one seeking the substitution of the United States as the named defendant in place of the named official-capacity defendants, Dkt. 27. Plaintiff also filed an " emergency" motion to amend the docket and a summons to address a clerical error. Dkt. 28. Over the next two days, Plaintiff filed two supplements to the pending motion to compel a Rule 26(f) conference. Dkts. 28, 29.
Three days later, Plaintiff filed a motion requesting that the Court take judicial notice of TSA's " first" response to the BOS administrative complaint. Dkt. 31. That response provided Plaintiff with all--or much--of the injunctive relief sought in the complaint with respect to the BOS incident. It answered, but denied, the grievance. Plaintiff plans to appeal that decision through the administrative process. No similar response, however, has been forthcoming with respect to the SFO incident, and, with respect to the BOS incident, Plaintiff continues to seek damages and other relief relating to the department's failure to act in a timely manner.
After filing some additional procedural and responsive pleadings, Plaintiff filed another motion asking that the Court take judicial notice of Defendants' failure to comply with discovery deadlines, Dkt. 38, and to strike Defendants' reply in support of their motion to stay the Rule 26(f) conference, Dkt. 39. Those filings were followed by a motion to disqualify the Assistant United States Attorney from representing the individual capacity defendants, Dkt. 42, and yet further responsive pleadings and requests to delay and stagger the briefing process on the dispositive motions.
The Court will address the many pending motions in groups that are organized to the extent possible by subject matter. Given the nature of the motions, however, some overlap is unavoidable.
I. Plaintiff's Motion To Compel And For Sanctions, Dkt. 16; Defendants' Motion To Stay Rule 26(f) Conference And Discovery, Dkt. 19; Plaintiff's Motion For A Certificate Of Appealability, Dkts. 22, 47; Plaintiff's Motion To Take Judicial Notice Of Elapsed FRCP 26(f) Mandatory Minimum Date, Dkt. 38; And Plaintiff's Motion To Strike Reply To Opposition To Motion, Dkt 39
All of the motions in the first group involve Plaintiff's efforts to obtain discovery
at this early stage of the litigation. Under Federal Rule of Civil Procedure 26(d), " [a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in proceedings exempt from initial disclosures under Rule 26(a)(1)(B), or when authorized by these rules, stipulation, or by court order." Rule 26(f), in turn, provides that, unless the court orders otherwise, " the parties must confer as soon as practicable--and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." Fed.R.Civ.P. 26(f). Plaintiff argues that Defendants have failed to meet their obligation to confer in a timely manner under Rule 26(f), thus delaying the commencement of discovery, and that, in any event, limited discovery should proceed expeditiously. Plaintiff further asks that the Court certify this issue for interlocutory appeal and strike portions of one of Defendants' briefs. Defendants argue in response that they were not required to confer under Rule 26(f) prior to the time that they moved to stay the Rule 26(f) conference and that discovery should not proceed while their motion to dismiss is pending. They also contend that there is no ground for an interlocutory appeal or to strike any portion of their brief.
As an initial matter, the Court holds that Defendants timely moved for relief from their obligation to confer under Rule 26(f). That motion was filed less than 90 days after service was affected on any of the defendants, before service was affected on the individual capacity defendants, and less than two months after counsel first appeared in the case. No scheduling conference had yet been set, nor had the Court ordered that the parties confer and submit a report pursuant to Local Rule 16.3. Moreover, given the need to coordinate the defense with the individual capacity defendants, the existences of numerous threshold issues, and the need to obtain the Court's guidance about whether any discovery should occur before the threshold issues were briefed and decided, it was reasonable for Defendants to conclude that scheduling a conference under Rule 26(f) was not " practicable."
The Court further concludes that the Rule 26(f) conference and the initiation of discovery should be stayed pending resolution of Defendants' motion to dismiss and Plaintiff's motion for partial summary judgment. Plaintiff points to various cases where courts have held that discovery should proceed even before or while threshold dispositive motions are decided. See, e.g., Escareno ex. rel. A.E. v. Lundbeck, LLC, No. 14-cv-00257, 2014 WL 1976867 (N.D. Tex. May 15, 2014); Rheumatology Diagnostics Laboratory, Inc. v. Aetna, Inc., No. 12-cv-05847, 2013 WL 5694452 (N.D. Cal. Apr. 30, 2013); Mem. Op., George v. Rehiel, No. 10-cv-00586, (ECF No. 64). Plaintiff also argues that neither the Iqbal/Twombly line of cases, see Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), nor the presence of Bivens claims, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the potential for a qualified immunity defense pose a bar to discovery prior to the resolution of threshold motions. Dkt. 16 at 8-11. And Plaintiff offers that the pending discovery requests are limited and targeted in a manner that would not cause undue burden and that will likely be necessary regardless of how the issue of qualified immunity is resolved. Dkt. 16 at 11-12; Dkt. 20 at 12, 14-15.
Plaintiff is correct that courts often permit discovery while motions to dismiss and other threshold motions are pending. But it is equally true that courts, including this Court, have often stayed discovery " 'while a motion that would be thoroughly dispositive of the claims in the Complaint is pending.'" Institut Pasteur v. Chiron Corp., 315 F.Supp.2d 33, 37 (D.D.C. 2004) (citation omitted). Courts " are vested with broad discretion to manage the conduct of discovery," Chavous v. Dist. of Columbia Fin. Responsibility and Mgmt. Assistance Auth., 201 F.R.D. 1, 2 (D.D.C. 2001), with the ultimate goal of ensuring the " just, speedy, and inexpensive determination of every action and proceeding," Fed.R.Civ.P. 1. In that vein, " [a] stay of discovery pending the determination of a dispositive motion 'is an eminently logical means to prevent wasting time and effort of all concerned, and to make the most ...