UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CARLOS LOUMIET,

Plaintiff,

v. Civil Action No. 12-1130 (CKK)

UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION (June 5, 2018)

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

1 The individually named defendants in this matter are Michael Rardin, Lee Straus, Gerard Sexton, and Ronald Schneck. They are referred to collectively as the “Individual Defendants.” While all claims against Mr. Straus have been dismissed without prejudice, Order, ECF No. 72, at 1, Defendants’ [86] Notice of Appeal indicates that Mr. Straus participates in the appeal to the Court of Appeals, and accordingly he is included in this Opinion among the Individual Defendants. The United States is referred to, hereinafter, as the “Government.” Collectively, the Individual Defendants and Government are referred to as “Defendants.”

1 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’ [88] Motion to Stay Discovery

Pending Interlocutory Appeal (“Motion to Stay”). 3 The Court shall extend its STAY 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,

(D.D.C. 2013)

(“Loumiet I”). 4

2 The Court’s consideration has focused on the following documents:

• Defs.’ Mot. and Mem. of P. & A. in Supp. of Mot. to Stay Disc. Pending Interlocutory Appeal, ECF No. 88 (“Defs.’ Mot.”); • Carlos Loumiet’s Opp’n to the Defs.’ Mot. to Stay, ECF No. 89 (“Pl.’s Opp’n”); • Defs.’ Reply Mem. in Supp. of Mot. to Stay Disc. Pending Interlocutory Appeal, ECF No. 90 (“Defs.’ Reply”); and • Carlos Loumiet’s Sur-Reply in Opp’n to the Defs.’ Mot. to Stay, ECF No. 92-1 (“Pl.’s Sur-Reply”). 3 Because the Court finds that Plaintiff’s [92-1] Sur-Reply was helpful to its resolution of Defendants’ [88] Motion to Stay, and because Defendants indicate that they do not oppose Plaintiff’s motion to file that sur-reply, the Court GRANTS Plaintiff’s [92] Motion for Leave to File Sur-Reply. 4 Significant prior rulings in this matter by this Court and the Court of Appeals include Loumiet v. United States,

(D.D.C. 2013) (“Loumiet I”); Loumiet v. United States,

(D.D.C. 2014) (“Loumiet II”); Loumiet v. United States,

(D.D.C. 2015) (“Loumiet III”); Loumiet v. United States,

(D.C. Cir. 2016) (“Loumiet IV”); Loumiet v. United States,

(D.D.C. 2017) (“Loumiet V”); and Loumiet v. United States,

(D.D.C. 2017) (“Loumiet VI”). In addition, the D.C. Circuit previously ruled on Plaintiff’s application for attorney fees under the Equal Access to Justice Act (“EAJA”) in connection with his defense before the Office of the Comptroller of the Currency. Loumiet v.Office of Comptroller of Currency,

(D.C. Cir. 2011) (“Loumiet EAJA”). 2 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,

, 879 n.6 (1998) (quoting Landis v. North Am. Co.,

(1936)) (internal quotation marks omitted); see also Clinton v. Jones,

(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,

.

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,

(D.C. Cir. 2007) (quoting Brune v. IRS,

(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.’”

(2009) (quoting Siegert

v. Gilley,

(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

3 not be allowed.” Harlow v. Fitzgerald,

(1982); see also Crawford-El v.

Britton,

(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,

(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,

(D.C. Cir. 2009) (quoting Behrens v. Pelletier,

(1996))

(alterations in original) (internal quotation marks omitted).

III. DISCUSSION5

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,

(2009); Harlow,

). 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

5 The Court has considered the parties’ briefing in entirety and finds that any arguments not expressly addressed below do not alter its decision whether to stay discovery. 4 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.,

(1982)) (per curiam) (emphasis added); see also United States v.

DeFries,

(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,

), 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

5 v. Vinyard,

(D.D.C. 2012) (Kollar-Kotelly, J.))); Vinyard,

(quoting four-factor standard discussed in Nken v. Holder,

(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,

(“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,

)). 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

6 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 the Court’s exercise of its discretion:

It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery.

556 U.S. at 685-86. It is true that the Supreme Court made the above observation in a

context other than a decision to stay discovery pending appeal of an immunity ruling. See

id. at 684-86 (locating this discussion in context of construing Rule 8 pleading standards);

Pl.’s Opp’n at 8 (arguing that this language quoted in Defendants’ motion is “dicta”).

However, Iqbal did decide that the rejection of a qualified immunity defense in that case

warranted interlocutory appeal, 556 U.S. at 672-73, recognizing the importance of

resolving such issues before a case should proceed further. Iqbal is therefore consistent

with the Supreme Court’s frequent assertions that qualified immunity issues should be

7 resolved before discovery. See Crawford-El,

; Mitchell,

;

Harlow,

.

Plaintiff’s countervailing authority consists mostly of decisions by district courts—

none in this jurisdiction—that seem simply to demonstrate that trial courts have discretion

to permit discovery in similar circumstances. See Pl.’s Opp’n at 2-3 n.4. The few circuit

court decisions cited by Plaintiff—also in other jurisdictions—are similarly merely

permissive or otherwise distinguishable. See

(citing Alice L. v. Dusek,

(5th Cir. 2007); Lugo v. Alvarado,

(1st Cir. 1987)). The Fifth Circuit

recognizes that “[t]he district court may compel discovery disclosures” concerning claims

not subject to qualified immunity assertions, rather than that the district court must always

do so. Alice L.,

(emphasis added). The First Circuit’s decision in Lugo

was based on appellant’s having already engaged in discovery prior to seeking a stay

thereof, and on certain considerations focused on the equitable relief sought alongside

damages. Lugo,

. No such discovery has been taken by Defendants here,

and Plaintiff seeks only damages. Mindful of other courts’ discretion to manage their own

cases, this Court shall exercise its own discretion to manage this one in light of Supreme

Court precedent.

Furthermore, Plaintiff should not have proceeded with discovery prior to the Initial

Scheduling Conference that the Court had already scheduled. See Min. Order of Dec. 11,

2017. As with his prior attempt to initiate discovery, Plaintiff’s current total of thirty

requests for production exceeds the Court’s standard limitation to twenty-five requests, of

which Plaintiff previously was advised. See Mem. Op. and Order, ECF No. 70, at 7

8 (discussing Court’s presumptive limit). The Court would have considered, at the Initial

Scheduling Conference, any argument for an exception to its presumptive limit.

The current iteration of the requests for production is once more so “far-reaching”

that “it is almost certain that Defendants will seek to litigate its scope,” Mem. Op. and

Order, ECF No. 70, at 7, particularly as to requests that arguably invite Individual

Defendants’ review of any response. See, e.g., Defs.’ Mot. at Ex. 1 ¶ 4 (“All documents

and communications relating to allegations or investigations of racial bias or retaliatory

conduct involving the OCC or the Individual Defendants.” (emphasis added)). Any

attempt to resolve such disputes during the pending interlocutory appeal—which may

trench on jurisdictional boundaries discussed above—would ultimately waste the Court’s

and the parties’ resources if they must revisit discovery disputes after the D.C. Circuit’s

resolution of the Bivens and qualified immunity issues.

Plaintiff does not dispute that his discovery requests touch on the interests of

Individual Defendants. Rather, he argues that case-dispositive motions are no longer

pending, as they were when the Court previously granted a stay, nor does the proposed

discovery seek more than documents, unlike the depositions at issue in some of the case

law. See, e.g., Pl.’s Opp’n at 3-4, 9-10. Plaintiff also seems to suggest that Individual

Defendants would be involved in discovery anyway even if they are found immune from

liability. See

(discussing, e.g., Galarza v. Szalczyk,

, at *3 (E.D.

Pa. Feb. 28, 2012)). None of these factors truly mitigates the concerns described above

with premature involvement of potentially immune individuals, whose role in this case

conceivably would differ if a D.C. Circuit decision renders them non-party witnesses,

rather than defendants at risk of liability. Any discovery now almost certainly would need

9 to be revisited after the D.C. Circuit’s decision, regardless of whether it is in Individual

Defendants’ favor.

Beyond the passage of time, Plaintiff’s claim of prejudice is limited to “the risk that

critical evidence will be lost and witnesses’ memories will fade.” Id. at 11-12. However,

this issue arises whenever there is a reason to postpone discovery. The Court presumes

that the parties long ago instituted litigation holds triggering the retention of documents

relevant to this matter. But even if they did not, this latest stay is unlikely to make the

difference for documents generated up to two decades ago. See generally Compl., ECF

No. 1 (discussing factual background from late 1990s through 2012 filing of this case).

The Court previously articulated why it should pause for the resolution of “important legal

questions” in this case. Mem. Op. and Order, ECF No. 70, at 7-8. A variety of such

questions have been important at different stages of this case; currently the key issues are

the availability of the Bivens claim and certain Individual Defendants’ alleged immunity

thereto. Despite the Court’s own determination of those questions, now the D.C. Circuit’s

view has been invited once again in this case. “The Court finds that any prejudice to

Plaintiff in delaying the commencement of discovery is outweighed by the necessity of

[awaiting the D.C. Circuit’s] resol[ution] [of] the ‘threshold immunity questions’ before

permitting discovery to commence.” Id. at 8 (citing Harlow,

).

IV. CONCLUSION

For the foregoing reasons, in an exercise of the Court’s discretion, the Court

GRANTS Defendants’ [88] Motion to Stay Discovery Pending Interlocutory Appeal and

GRANTS Plaintiff’s [92] Motion for Leave to File Sur-Reply.

The Court shall extend its STAY of all discovery, including the Government’s

10 obligation to respond to Plaintiff’s discovery requests of January 26, 2018, pending

resolution of Individual Defendants’ interlocutory appeal. See Min. Order of Feb. 22, 2018

(granting temporary stay until resolution of [88] motion). Within 14 days of the issuance

of the D.C. Circuit’s mandate, the parties shall submit a Joint Status Report to this Court

indicating how they propose to proceed.

An appropriate Order accompanies this Memorandum Opinion.

Dated: June 5, 2018

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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