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Loumiet v. United States

United States District Court, District of Columbia

June 5, 2018

UNITED STATES OF AMERICA, et al., Defendants.



         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]


         “[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 ...

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