AFIFI v. HOLDER et al

Filing 11

MOTION to Stay Proceedings by YASIR AFIFI (Attachments: # 1 proposed order)(Al-Khalili, Nadhira)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

YASIR AFIFI
Plaintiff
v.
ERIC H. HOLDER, JR., in his official
capacity as Attorney General of the
United States;
ROBERT S. MUELLER, III, in his
official capacity as Director of the
Federal Bureau of Investigation; and
UNKNOWN AGENTS, in their
individual capacities.
Defendants

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CASE NO.: 1:11-cv-00460
HON.: Judge Howell

MOTION TO STAY PROCEEDINGS PENDING SUPREME COURT’S REVIEW OF
MATERIALLY IDENTICAL LEGAL ISSUE
Plaintiff respectfully moves the Court to stay proceedings in this action until the Supreme Court
issues its decision in US v. Jones. 2011 U.S. LEXIS 4956 (U.S. June 27, 2011). In Jones, the
Supreme Court will determine whether government agents violated the Fourth Amendment “by
installing the GPS tracking device on his vehicle without a valid warrant and without [] consent.”
Id. The resolution of this issue will have a dispositive effect on Plaintiff’s case.

1. On March 2, 2011, Plaintiff filed this action against Defendants for declaratory and injunctive
relief and damages. The factual basis from which Plaintiff seeks relief is Defendants’ use of a

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GPS tracking device against Plaintiff without a warrant and the Defendants’ maintenance of
records containing information derived from this unlawful search.
2. On April 5, 2011, counsel for Defendants Mueller and Holder entered their appearance but
not on behalf of Defendants Unknown Agents. The pending Motion to Dismiss filed on June 16,
2011 does not pertain to all Defendants in this action. Plaintiff has not ascertained the identity of
Defendants Unknown Agents—the persons Plaintiff sues in their individual capacities and who
carried out the unlawful warrantless search via a GPS tracking device—and have thus not served
them.
3. To determine the identity of Defendants Unknown Agents, Plaintiff would have to request
leave from this Court to conduct limited discovery.

This limited discovery may include

interrogatories and depositions to establish the persons who carried out the unlawful warrantless
search against Plaintiff and their respective roles in the operation.
4. On June 27, 2011, the Supreme Court granted the United States’ petition for writ of certiorari
in a case confronting the identical legal issue central to Plaintiff’s claims. United States v. Jones,
2011 U.S. LEXIS 4956 (U.S. June 27, 2011). In United States v. Jones, FBI agents placed a
GPS tracking device on the respondent’s vehicle and tracked the vehicle’s movement in both
public places and private areas for several weeks. The appellate court determined that the
respondent had a reasonable expectation in the public movements of his vehicle over the course
of the tracking. U.S. v. Maynard, 615 F.3d 544, 565 (D.C. Cir. 2009). The government's use of
a GPS device to monitor those movements, the court held, was therefore a search within the
meaning of the Fourth Amendment. Id. see Katz v. U.S., 389 U.S. 347, 351 (1967). The United
States filed a petition for writ of certiorari to determine whether prolonged GPS monitoring of a

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vehicle's movements on public roads is not a “search” within the meaning of the Fourth
Amendment. The Supreme Court granted that petition, indicating that it will determine whether
government agents violate the Fourth Amendment “by installing the GPS tracking device on [a]
vehicle without a valid warrant and without [] consent.” Id
4. A stay will prevent the waste of judicial resources in litigating an issue that the Supreme
Court will soon ultimately settle. “The District Court has broad discretion to stay proceedings as
an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 680, 706 (1997).
In particular, district courts have authority under Federal Rule of Civil Procedure 16(a)(3) to
schedule proceedings in a case to “discourag[e] wasteful pretrial activities.” Indeed, a “trial
court may, with propriety, find it is efficient for its own docket and the fairest course for the
parties to enter a stay of an action before it, pending resolution of independent proceedings
which bear upon the case.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1111 (9 Cir. 2005). See
also Michael v. Ghee, 325 F.Supp.2d 829, 831 (N.D. Ohio, 2004) (explaining that a case pending
“on appeal to the Supreme Court [that] may have a dispositive effect on the instant case . . .
weighs heavily in favor of granting the stay”); Bechtel Corp. v. Local 215, Laborers Intern.
Union of North America, AFL-CIO, 544 F.2d 1207, 1215 (3rd Cir. 1976) (holding that “[i]n the
exercise of its sound discretion, a court may hold one lawsuit in abeyance to abide the outcome
of another which may substantially affect it or be dispositive of the issues.”); Hicks v. Bush, 397
F. Supp. 2d 36, 39 (D.D.C. 2005) (granting a stay where “the Supreme Court’s review” of a case
will “leav[e] no doubts” as to the dispositive legal issues in the trial court).
5. Defendants will not be harmed by a stay in the proceedings. The public interest is best served
by awaiting a definitive resolution of the constitutionality of the warrantless use of GPS tracking
devices.
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Respectfully submitted,

By: _____/s/______________________
Nadhira F. Al-Khalili (DSB #997827)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East
Washington, D.C. 20003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for Plaintiff Yasir Afifi

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CERTIFICATE OF SERVICE
I hereby certify that on July 18, 2011, a true and correct copy of the foregoing was served
electronically by the U.S. District Court for the District of Columbia Electronic Case Filing
System (ECF) and that the documents are available on the ECF system.

By: __/s/__Nadhira Al-Khalili________________
Nadhira F. Al-Khalili (DSB #997827)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East
Washington, D.C. 20003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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