LOUMIET v. UNITED STATES OF AMERICA et al

Filing 94

MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on June 5, 2018. (lcckk1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS LOUMIET,
Plaintiff,
Civil Action No. 12-1130 (CKK)

v.
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

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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.”
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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, 968 F. Supp. 2d 142, 145-47 (D.D.C. 2013)
(“Loumiet I”). 4

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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”).

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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.
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Significant prior rulings in this matter by this Court and the Court of Appeals include
Loumiet v. United States, 968 F. Supp. 2d 142 (D.D.C. 2013) (“Loumiet I”); Loumiet v.
United States, 65 F. Supp. 3d 19 (D.D.C. 2014) (“Loumiet II”); Loumiet v. United States,
106 F. Supp. 3d 219 (D.D.C. 2015) (“Loumiet III”); Loumiet v. United States, 828 F.3d
935 (D.C. Cir. 2016) (“Loumiet IV”); Loumiet v. United States, 255 F. Supp. 3d 75 (D.D.C.
2017) (“Loumiet V”); and Loumiet v. United States, 292 F. Supp. 3d 222 (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, 650 F.3d 796, 798 (D.C. Cir. 2011) (“Loumiet EAJA”).
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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

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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. 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, 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

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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.
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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

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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

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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 SurReply 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

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resolved before discovery. See Crawford-El, 523 U.S. at 598; Mitchell, 472 U.S. at 526;
Harlow, 457 U.S. at 818.
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 id. (citing Alice L. v. Dusek, 492 F.3d 563,
565 (5th Cir. 2007); Lugo v. Alvarado, 819 F.2d 5, 7 (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., 492 F.3d at 565 (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, 819 F.2d at 6-7. 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

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(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 id. at 9 (discussing, e.g., Galarza v. Szalczyk, 2012 WL 627917, 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

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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, 457 U.S. at 818).
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

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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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