MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Defendants[1] seek a stay of discovery
while the U.S. Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) reviews this Court's
decisions that, inter alia, recognize a First
Amendment Bivens claim for retaliatory prosecution,
find that this claim has been plausibly alleged against
Defendants Michael Rardin, Gerard Sexton, and Ronald Schneck,
and reject those Defendants' immunity defenses.
See Mem. Op., ECF No. 71; Mem. Op., ECF No. 82;
Notice of Appeal, ECF No. 86. Prior to those decisions, this
Court had stayed discovery pending its evaluation of the
latest round of motions to dismiss. Mem. Op. and Order, ECF
No. 70. While his frustration is understandable, Plaintiff
Carlos Loumiet fails to persuade the Court that discovery
should now proceed absent final resolution of these issues by
the D.C. Circuit.
Accordingly,
upon consideration of the pleadings, [2] the relevant legal
authorities, and the record as a whole, the Court
GRANTS Defendants' [ 8 8 ] Motion to
Stay Discovery Pending Interlocutory Appeal (“Motion to
Stay”).[3] The Court shall extend its S
TAY of discovery pending resolution of
Defendants' interlocutory appeal. See Min. Order
of Feb. 22, 2018 (granting temporary stay until issuance of
this decision).
I.
BACKGROUND
The
Court's previous opinions in this matter extensively
discuss its factual background. E.g., Loumiet v.
United States, 968 F.Supp.2d 142, 145-47 (D.D.C. 2013)
(“Loumiet I”).[4]
II.
LEGAL STANDARD
“[T]he
power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for
counsel, and for litigants. How this can best be done calls
for the exercise of judgment, which must weigh competing
interests and maintain an even balance.” Air Line
Pilots Ass'n v. Miller, 523 U.S. 866, 879 n.6 (1998)
(quoting Landis v. North Am. Co., 299 U.S. 248,
254-55 (1936)) (internal quotation marks omitted); see
also Clinton v. Jones, 520 U.S. 681, 706-07 (1997)
(“The District Court has broad discretion to stay
proceedings as an incident to its power to control its own
docket.”). A party requesting a stay of proceedings
“must make out a clear case of hardship or inequity in
being required to go forward, if there is even a fair
possibility that the stay for which he prays will work damage
to some one else.” Landis, 299 U.S. at 255.
The
trial court's “broad discretion in its handling of
discovery” has long been recognized in this Circuit.
E.g., Islamic Am. Relief Agency v.
Gonzales, 477 F.3d 728, 737 (D.C. Cir. 2007) (quoting
Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988))
(internal quotation marks omitted). The Court must exercise
particular care in discovery matters where a qualified
immunity defense has been raised. In Ashcroft v.
Iqbal, the Supreme Court clearly articulated the
concerns surrounding discovery in such cases: “The
basic thrust of the qualified-immunity doctrine is to free
officials from the concerns of litigation, including
‘avoidance of disruptive discovery.'” 556
U.S. 662, 685 (2009) (quoting Siegert v. Gilley, 500
U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)).
This consideration had been at the foundation of the Supreme
Court's frequent articulation of the principle that
“[u]ntil this threshold immunity question is resolved,
discovery should not be allowed.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also
Crawford-El v. Britton, 523 U.S. 574, 598 (1998)
(applying Harlow and stating that “if the
defendant does plead the immunity defense, the district court
should resolve that threshold question before permitting
discovery”); Mitchell v. Forsyth, 472 U.S.
511, 526 (1985) (summarizing Harlow as indicating
that, absent adequate allegations, “a defendant
pleading qualified immunity is entitled to dismissal before
the commencement of discovery”). The D.C. Circuit has
remarked (only just prior to the Supreme Court's decision
in Iqbal) that the qualified immunity defense
“entitles government officials ‘not merely to
avoid standing trial, but also to avoid the burdens of such
pretrial matters as discovery . . ., as [i]nquiries
of this kind can be particularly disruptive of effective
government.'” Wuterich v. Murtha, 562 F.3d
375, 382 (D.C. Cir. 2009) (quoting Behrens v.
Pelletier, 516 U.S. 299, 308 (1996)) (alterations in
original) (internal quotation marks omitted).
III.
DISCUSSION[5]
Through
its [71] Memorandum Opinion and [72] Order, the Court abided
by controlling authority urging early resolution of immunity
issues. See Mem. Op. and Order, ECF No. 70, at 5-6,
8 (staying discovery until that decision based on, e.g.,
Pearson v. Callahan, 555 U.S. 223, 231-32 (2009);
Harlow, 457 U.S. at 818). Individual Defendants now
appeal the Court's decision not to recognize immunity as
to Defendants Rardin, Sexton, and Schneck, rendering any
intermediate discovery as problematic in practice as it was
when the Court previously stayed discovery pending that
decision.
At the
threshold, there is some question as to whether this Court
even has jurisdiction to entertain certain discovery while
Individual Defendants' appeal is pending. Defendants
argue that appeal “divests the Court of jurisdiction to
entertain further proceedings on Plaintiff's
Bivens claims while the interlocutory appeal is
pending.” Defs.' Mot. at 3. “The filing of a
notice of appeal is an event of jurisdictional
significance-it confers jurisdiction on the court of appeals
and divests the district court of its control over those
aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 58 (1982)) (per curiam) (emphasis added); see also
United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir.
1997) (recognizing some exceptions to this general rule that
do not expressly include appeal from denial of qualified
immunity defense). Plaintiff appears not to dispute this,
see Pl.'s Opp'n at 6-7 (citing
Griggs, 459 U.S. at 58), but instead urges that
“the immunity appeal does not divest this Court of
jurisdiction over the [Federal Tort Claims Act
(“FTCA”)] claims, ” id. at 2.
Defendants effectively concede the implication of
Griggs that the Court retains jurisdiction over the
FTCA claims not on appeal. See Defs.' Reply at
3-4 (discussing evidently unsuccessful attempt to limit
Plaintiff to “discovery requests that are narrowly
tailored and proportional to his FTCA claims against the
United States”). The Court shall consider whether to
permit discovery as to those FTCA claims.
Even an
effort to obtain such circumscribed discovery must comport
with this Court's discretion to manage discovery
efficiently. The Court rejects Plaintiff's oblique
assertion, in a footnote, that the Court should make this
decision under the four-factor test applicable to stay of a
decision pending appeal. See Pl.'s Opp'n at
2 n.3 (citing one such factor in arguing that
“defendants were required to make a ‘strong
showing that [they are] likely to succeed on the merits'
in order to be awarded a stay” (quoting District of
Columbia v. Vinyard, 901 F.Supp.2d 77, 89
(D.D.C. 2012) (Kollar-Kotelly, J.))); Vinyard, 901
F.Supp.2d at 89 (quoting four-factor standard discussed in
Nken v. Holder, 556 U.S. 418, 433-34 (2009)).
Defendants are not asking the Court to stay its own
decisions-or, as in Vinyard, the decision of a
hearing officer-pending appeal of them. Rather, they seek a
decision to stay discovery, which Plaintiff has prematurely
attempted to initiate, pending a D.C. Circuit determination
that almost certainly will affect discovery. Nor does
Plaintiff make any effort to justify the application here of
the general standard for staying a decision pending appeal,
in light of the Supreme Court's specific guidance
regarding discovery during resolution of qualified immunity
issues. See, e.g., Defs.' Reply at 3 n.2;
Mitchell, 472 U.S. at 525-30 (“Harlow
emphasizes that even such pretrial matters as discovery are
to be avoided if possible, as ‘[i]nquiries of this kind
can be peculiarly disruptive of effective
government.'” (quoting Harlow, 457 U.S. at
817)). The Supreme Court urges caution where discovery may
entangle individuals potentially protected by qualified
immunity.
Plaintiff
argues that, unlike his prior discovery requests, he now
tailors his requests to seek documents solely from the
Government, which is not potentially immune, rather than from
Individual Defendants. Pl.'s Opp'n at 4; Pl.'s
Sur-Reply at 2. But the Court is not persuaded that
Individual Defendants would not have any role in dealing with
this narrowed discovery request. Indeed, Individual
Defendants have knowledge of what transpired between
themselves and Plaintiff; the Government might seek their
input before making any production pursuant to
Plaintiff's requests. Individual Defendants even may
want to review the Government's discovery
responses, notwithstanding their objection to discovery
proceeding against either the Government or themselves,
because the Court's Bivens rulings mean that
they could be held personally liable in this action. As
Defendants observe, “[t]he discovery sought against the
United States would be freely transferrable against and
almost certainly used to establish a factual record against
the Individual Defendants.” Defs.' Mot. at 9;
see also Pl.'s Sur-Reply at 2 (admitting that
“documents relevant to the FTCA claims may also be
relevant to the Bivens claims”). The
likelihood that Individual Defendants would be asked or
invited to review discovery responses prior to the D.C.
Circuit's decision is not mitigated by the fact that they
currently share counsel with the Government, Pl.'s
Opp'n at 10 & n.11, nor by any possibility that
documents relevant to both FTCA and Bivens claims
may be produced eventually regardless, Pl.'s Sur-Reply at
2.
As it
did in its prior decision to stay this case, the Court again
finds that the concerns articulated in Iqbal
appropriately guide ...