LOUMIET v. UNITED STATES OF AMERICA et al
MEMORANDUM OPINION AND ORDER granting Defendants' 67 Motion to Stay Discovery. Signed by Judge Colleen Kollar-Kotelly on 12/22/2016. (lcckk1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 12-01130 (CKK)
UNITED STATES OF AMERICA, et al.,
MEMORANDUM OPINION and ORDER
(December 22, 2016)
Before the Court is Defendants’  Motion to Stay Discovery in this action, in which
Plaintiff has alleged violations of the Federal Tort Claims Act and additional Bivens and state
law tort claims related to the actions of the Office of the Comptroller of the Currency. Also
currently pending before the Court are the Motions to Dismiss of the Individual Defendants
(ECF No. ) and of the United States 1 (ECF No. ), filed on October 14, 2016, and not
fully briefed and ripe for the Court’s consideration until November 14, 2016. By this Order, the
Court shall only address Defendants’  Motion to Stay Discovery, but the pendency of these
dispositive motions is at the heart of the Court’s consideration of the instant Motion to Stay
Discovery. Only ten days after Defendants had filed their Motions to Dismiss, Plaintiff served an
extensive discovery request upon both the Individual Defendants and the Government. Defs.’
Mot. to Stay, Ex. 1, ECF No. [67-1] (“Discovery Request”). The Discovery Request includes
forty-six requests for production of documents, id. at 10-14, for the period between September
The individually named defendants in this matter are Michael Rardin, Lee Straus, Gerard
Sexton, and Ronald Schneck, who are referred to collectively as the “Individual Defendants.”
The United States is referred to, hereinafter, as the “Government.” Collectively, the Individual
Defendants and Government are referred to as “Defendants.”
1999 and the present, id. at 6; see also Defs.’ Mot. to Stay at 2. Defendants request that
discovery be temporarily stayed pending the resolution of the Motions to Dismiss. Plaintiff has
opposed the Motion to Stay Discovery, and with the filing of Defendants’ Reply, the instant
Motion is now ripe for resolution by the Court.
Upon consideration of the pleadings, 2 the relevant legal authorities, and the record as a
whole, the Court GRANTS Defendants’  Motion to Stay Discovery, and discovery shall be
STAYED pending a decision by this Court on the Defendants’ Motions to Dismiss.
The Court has extensively reviewed the background of this case previously, most recently
in its Memorandum Opinion regarding the grant of the Government’s Motion to Dismiss for
Lack of Jurisdiction. Loumiet v. United States, 106 F. Supp. 3d 219 (D.D.C. 2015). 3 See also
Loumiet v. United States, 968 F. Supp. 2d 142 (D.D.C. 2013) (granting the Individual
Defendants’ Motion to Dismiss and granting in part the Government’s Motion to Dismiss as to
certain FTCA claims and denying in part the Government’s Motion to Dismiss as to other FTCA
claims); 4 Loumiet v. United States, 65 F. Supp. 3d 19, 28 (D.D.C. 2014) (upon Motion for
The Court’s consideration has focused on the following documents:
• Defendants’ Motion and Memorandum of Points and Authorities in Support of Motion to
Stay Discovery (“Defs.’ Mot. to Stay”), ECF No. ;
• Plaintiff’s Opposition to the Defendants’ Motion to Stay (“Pl. Opp’n”), ECF No. ;
• Defendants’ Reply Memorandum in Support of the Defendants’ Motion to Stay
Discovery (“Defs.’ Reply”), ECF No. ;
• Individual Defendants’ Motion to Dismiss and Statement of Points and Authorities in
Support (“Indiv. Defs.’ Mot. to Dismiss), ECF No. ; and United States’ Motion to
Dismiss and Statement of Points and Authorities in Support, (“Gov’t. Mot. to Dismiss),
ECF No. .
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
ECF No.  (May 28, 2015).
ECF No.  (Sept. 12, 2013). It bears mention that Plaintiff filed an appeal as to this partial
dismissal, which the Court of Appeals for the D.C. Circuit dismissed for lack of appellate
Reconsideration by the Government and by Plaintiff, dismissing Plaintiff’s remaining FTCA
claims with the narrow exception of “Plaintiff’s invasion of privacy claim to the extent it alleges
harms from the public disclosure of private facts in the statements Plaintiff alleges Defendant
made to the press.”). 5 Following the Court’s 2015 dismissal of this action in its entirety, Plaintiff
again appealed to the Court of Appeals for the D.C. Circuit (“Court of Appeals”), which reversed
the Court’s order of dismissal and remanded the case for further consideration of two aspects of
Plaintiff’s claims. Loumiet v. United States, 828 F.3d 935 (D.C. Cir. 2016). 6
Upon remand from the Court of Appeals, the Court permitted the parties an opportunity
to submit further briefing on the issues remaining for the Court’s consideration. Specifically, by
 Order, the Court directed the parties to address the issues for the Court’s consideration, as
articulated by the Court of Appeals: (i) “whether Loumiet’s complaint plausibly alleges that the
OCC’s conduct exceeded the scope of its constitutional authority so as to vitiate discretionaryfunction immunity,” id. at 946; and (ii) as to Plaintiff’s Bivens claims, “the remaining defenses
raised but not yet decided in the district court,” id. at 949. Accordingly, the Individual
Defendants filed their  Motion to Dismiss and the Government filed its separate  Motion
to Dismiss, as indicated supra.
The “decision whether to stay discovery is committed to the sound discretion of the
district court judge.” White v. Fraternal Order of Police, 909 F.2d 512, 517 (D.C. Cir. 1990); see
also Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 737 (D.C. Cir. 2007); Brune v. IRS,
jurisdiction. Loumiet v. United States, Case No. 13-5344 (D.C. Cir. April 18, 2014). ECF No.
ECF No.  (Aug. 21, 2014).
Mandate of Court of Appeals entered on docket as ECF No.  (Sept. 7, 2016).
861 F.2d 1284, 1288 (D.C. Cir. 1988). Furthermore, courts in this district “have often stayed
discovery ‘while a motion that would be thoroughly dispositive of the claims in the Complaint is
pending.’” Sai v. Dep’t of Homeland Sec., 99 F. Supp. 3d 50, 58 (D.D.C. 2015) (quoting Institut
Pasteur v. Chiron Corp., 315 F. Supp. 2d 33, 37 (D.D.C.2004) (further internal citations and
quotation marks omitted)). In fact, “[i]t is well settled that discovery is generally considered
inappropriate while a motion that would be thoroughly dispositive of the claims in the Complaint
is pending.” Anderson v. U.S. Attorney’s Office, No. 91-2262, 1992 WL 159186, at *1 (D.D.C.
June 19, 1992).
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)). This consideration had been at the foundation of the 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) (“a defendant pleading qualified
immunity is entitled to dismissal before the commencement of discovery”).
In accordance with these principles, courts in this district have found it appropriate to
stay discovery where qualified immunity has been pleaded and threshold motions are pending.
Indeed, the Court of Appeals 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 inquiries
of this kind can be particularly disruptive to 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) (further internal citations and quotation marks omitted). Similarly, in
finding that the district court had not abused its discretion in denying a motion for discovery at
the summary judgment stage, the Court of Appeals unambiguously stated “appellant was not
entitled to the discovery he sought until after appellees’ qualified immunity claims had been
adjudicated.” Watkins v. Arlington Cty., Nos. 96-5120, 96-5144, 1997 WL 404878, at *1 (D.C.
Cir. June 6, 1997); see also Sai, 99 F. Supp. 3d at 57-58 (staying discovery pending resolution of
Defendants’ motion to dismiss and Plaintiff’s motion for partial summary judgment in action
against, inter alia, individual employees of Transportation Security Administration and
Department of Homeland Security, who had raised a qualified immunity defense); True the Vote,
Inc. v. IRS, No. 13-734, 2014 WL 4347197, at *7 (D.D.C. Aug. 7, 2014) (denying discovery
request where defendants had asserted qualified immunity defenses in their motions to dismiss);
Brown v. Fogle, 819 F. Supp. 2d 23, 29 (D.D.C. 2011) (quoting Pearson v. Callahan, 555 U.S.
223, 231–32 (2009)) (alteration in original) (“Because the qualified immunity doctrine is
intended to ‘ensure that insubstantial claims against government officials [will] be resolved prior
to discovery,’ the Supreme Court has ‘stressed the importance of resolving immunity questions
at the earliest possible stage in litigation.’”).
In this case, there are currently pending the Motion to Dismiss of the Individual
Defendants and the Motion to Dismiss of the Government, and the Individual Defendants have
asserted the qualified immunity defense. See Defs.’ Mot. to Stay at 5; Indiv. Defs.’ Mot to
Dismiss at 1, 15-21. Therefore, the Court must heed the direction of the Supreme Court and the
Court of Appeals, and shall endeavor to “resolv[e] immunity questions at the earliest possible
stage in litigation.” Brown, 819 F. Supp. 2d at 29 (quoting Pearson, 555 U.S. at 231–32). These
issues are presented to the Court for examination in the pending Motions to Dismiss, and “[u]ntil
this threshold immunity question is resolved, discovery should not be allowed.” Harlow, 457
U.S. at 818. Defendants contend that “[i]f granted, the Individual Defendants’ motion would be
dispositive of all claims asserted against them. Equally, the United States’ motion is potentially
dispositive of Mr. Loumiet’s FTCA claims.” Defs.’ Mot. to Stay at 2. The Court does not here
address the merits of Defendants’ Motions to Dismiss, but agrees with their characterization in
the instant Motion to Stay Discovery that if they do prevail, even partially, on their dispositive
motions, the scope of the case and the nature of the involvement of the Individual Defendants
will change significantly, and far more dramatically than Plaintiff acknowledges. Pl. Opp’n at 56.
Furthermore, the nature of Plaintiff’s Discovery Request underscores the appropriateness
of staying discovery in the instant case. Plaintiff’s request is extensive, and Plaintiff has nowhere
claimed that discovery is necessary for him to effectively oppose the pending Motions to
Dismiss. See Sept. 23, 2016, Joint Status Report at 5-6 (ECF No. ) (setting out Plaintiff’s
request that this Court enter a discovery plan and order allowing him to take discovery on his
substantive claims, but not suggesting any need for discovery on the legal issues before the Court
upon remand from the Court of Appeals). Plaintiff’s Discovery Request covers more than a
seventeen-year period and includes forty-six requests for production of documents; additionally,
its individual requests appear to be quite broad. See Request for Documents at 6, 10-14. Plaintiff
asserts, however, that “the Government is in the exclusive possession, custody, and control of
virtually all of the responsive documents.” Pl. Opp’n at 2. The Court is not persuaded by this
argument, but rather finds the concerns articulated in Iqbal controlling:
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. Furthermore, while the Court does not here opine on the appropriateness of
the Discovery Request, the Court notes that Plaintiff has propounded nearly twice as many
requests for documents as the Court’s presumptive limit of twenty-five permits. Additionally, in
light of how far-reaching the Discovery Request appears, it is almost certain that Defendants will
seek to litigate its scope. It would not be a prudent use of the Court’s—or the parties’—resources
to litigate a discovery dispute while the dispositive motions, which may significantly change the
nature of the case, are pending.
Finally, Plaintiff argues that he will be prejudiced by any further delay in discovery, but
the Court does not find this concern to outweigh the significant factors counseling against
permitting discovery at this stage. While the Court acknowledges that Plaintiff filed this action
more than four years ago, the case is nonetheless not yet in a posture for which discovery is
appropriate. The delay in progressing to discovery has been due to the litigation of important
legal questions, at least some of which are dispositive of Plaintiff’s claims. This litigation has
indeed been time-consuming, including three separate rounds of dispositive motions, the third of
which is currently ongoing. The complexity and importance of this threshold litigation, however,
is not in question. In fact, the Court of Appeals noted that “[t]his case raises [an] additional,
thorny question—novel in our circuit” as to the scope of the discretionary-function exception to
the FTCA, which determination is essential to the necessary “inquiry into the viability of
Loumiet’s FTCA claims.” Loumiet, 828 F.3d at 942. Indeed, this is one of the questions now
before the Court in the pending Motions to Dismiss of Defendants. Additionally, the Court notes
that during the first round of dispositive motions, the parties, agreed to “stay all discovery,
including initial disclosures, until disposition of the Motions to Dismiss.” Joint Rule 26(F)
Conference Report and Discovery Plan, ECF No.  at 1, 4. While time has passed since
Plaintiff there stated his agreement that discovery should be stayed pending the resolution of the
Motions to Dismiss and Plaintiff is entitled to change his position on his desire to take discovery,
the posture of the case is essentially the same as it was when he gave this earlier assent. The
Court finds that any prejudice to Plaintiff in delaying the commencement of discovery is
outweighed by the necessity of resolving the “threshold immunity questions” before permitting
discovery to commence. Harlow, 457 U.S. at 818.
Accordingly, for all of the foregoing reasons and in exercise of its sound discretion, the
Court hereby GRANTS Defendants’  Motion to Stay Discovery, and discovery shall be
STAYED pending a decision by this Court on the Defendants’ Motions to Dismiss.
United States District Judge
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