WRENN et al v. DISTRICT OF COLUMBIA et al

Filing 63

MEMORANDUM OPINION and ORDER denying Plaintiffs' 59 Motion to Stay Proceedings. Signed by Judge Colleen Kollar-Kotelly on 4/15/2016. (lcckk2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIAN WRENN, et al.,
Plaintiffs
v.

Civil Action No. 15-162 (CKK)

DISTRICT OF COLUMBIA, et al.,
Defendants
MEMORANDUM OPINION and ORDER
(April 15, 2016)
In this case, Plaintiffs Brian Wrenn, Joshua Akery, Tyler Whidby, and the Second
Amendment Foundation, Inc., challenge several provisions of the District of Columbia’s
licensing scheme for carrying handguns in public, including the permissive nature of the scheme
and the “good reason/other proper reason” requirement for obtaining a concealed carry handgun
license. On March 7, 2016, the Court denied Plaintiffs’ [6] Motion for Preliminary Injunction,
and the Court has set an Initial Scheduling Conference for May 9, 2016. Meanwhile, Plaintiffs
have filed an interlocutory appeal of the Court’s order denying the motion for preliminary
injunction and have moved this Court to stay this case pending the resolution of the interlocutory
appeal. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record for
purposes of this motion, the Court DENIES Plaintiffs’ [59] Motion to Stay Proceedings.
I. BACKGROUND
The Court reviewed the background of this case in its Memorandum Opinion regarding
the denial of Plaintiffs’ motion for preliminary injunction. See Wrenn v. D.C., No. CV 15-162

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

Pls.’ Mot. to Stay Proceedings (“Pls.’ Mot.”), ECF No. 59;
Defs.’ Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”), ECF No. 60; and
Pls.’ Mem. of Points & Auth. in Reply to Defs.’ Opp’n (“Pls.’ Reply”), ECF No. 62.
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(CKK), 2016 WL 912174, at *2 (D.D.C. Mar. 7, 2016). The Court reserves further discussion of
the relevant background for its discussion of the motion now before the Court.
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, 880 (1998) (quoting Landis v. North American Co., 299 U.S. 248, 254-255
(1936)); see also Clinton v. Jones, 520 U.S. 681, 706 (1997). Moreover, 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.
III. DISCUSSION
At the outset, it is important to emphasize, as Plaintiffs do, that Plaintiffs are requesting a
stay of further proceedings in this case, not a stay of this Court’s prior Order. Specifically,
Plaintiffs seek to stay these proceedings pending the resolution of Plaintiffs’ interlocutory appeal
by the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), with
respect to this Court’s denial of their request for a preliminary injunction. Both sides refer the
Court to various other cases in which a court has stayed its proceedings pending the outcome of
other proceedings—whether on appeal or otherwise. However, the question of whether to stay a
particular case is inextricably intertwined with the nature of the specific case. Accordingly, a
lengthy discussion of other cases where courts have granted or refused stays would not facilitate
the resolution of the essential question before this Court: have Plaintiffs shown that a stay is
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proper in this case, at the present time, given the interlocutory appeal now before the D.C.
Circuit? With that in mind, the Court proceeds to consider the circumstances in this case,
“weigh[ing] competing interests and maintain[ing] an even balance,” as the Court must. Air Line
Pilots Ass’n, 523 U.S. at 880.
Plaintiffs argue that the D.C. Circuit’s resolution of the appeal will, at a minimum,
provide substantial guidance to this Court going forward and, moreover, will “all but certainly
resolve” the merits of this case. Pls.’ Reply at 5. Therefore, they argue, a pause of proceedings
before this Court is in the interest of judicial economy. Plaintiffs also argue—consistent with
their general position—that discovery is unnecessary for a determination on the merits in this
case. Defendants argue, in response, that the D.C. Circuit’s decision on the interlocutory appeal
is unlikely to be dispositive with respect to the merits of this case; that continuing with these
proceedings is in the interest of judicial economy; and that additional delay will prejudice the
District. Therefore, Defendants seek to proceed to a period of discovery, followed by the briefing
of dispositive motions. See Parties’ Local 16.3 Report, ECF No. 61.
The Court turns first to Plaintiffs’ arguments regarding the place of discovery in this case.
While the motion to stay does not directly ask the Court to resolve questions regarding discovery,
it is necessary to address the question of discovery at a basic level because the Court’s evaluation
of the motion to stay depends, in part, on the nature of the proceedings that would take place
absent a stay. In other words, it is possible—although not certain—that the equities regarding a
stay would differ regarding cases proceeding directly to discovery and cases proceeding to
dispositive motions. Moreover, the Court has the benefit of the parties’ Local 16.3 Rule Report,
prepared in advance of the Initial Scheduling Conference, in which the parties set out their
positions regarding discovery and other future proceedings. See ECF No. 61. Therefore, the

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Court considers the place of discovery in this case before turning to the parties’ other arguments
regarding the requested stay.
With respect to discovery, Plaintiffs suggest that the record in this case is limited to the
materials before the Council of the District of Columbia (“D.C. Council”) when it enacted the
challenged legislation. See Pls.’ Reply at 4. Yet, as this Court previously noted, the D.C. Circuit
has emphasized that it is necessary to assess the evidentiary record assembled by the parties in
order to determine whether the means chosen by the District of Columbia contribute to the
governmental interests identified by the District “ ‘in a direct and material way,’ whether in one
of the ways anticipated by the D.C. Council or otherwise.’ ” Heller v. District of Columbia, 801
F.3d 264, 275 (D.C. Cir. 2015) (Heller III) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 662–64 (1994) (Turner I)); see also Wrenn, 2016 WL 912174, at *10. In other words, the
District is not limited to defending the challenged statutory scheme on the basis of information
that was before the D.C. Council at the time of enactment. Indeed, the D.C. Circuit, in what is
known as Heller II, remanded the case to the district court for further evidentiary development
because it could not adequately assess the constitutionality of certain provisions of the statutory
scheme governing gun ownership on a record limited to the materials before the D.C. Council.
See Heller v. District of Columbia, 670 F.3d 1244, 1258 (D.C. Cir. 2011) (Heller II). Indeed, on
the appeal that followed that remand, in Heller III, the D.C. Circuit upheld certain elements of
the statutory scheme explicitly on the bases of the evidence developed on remand, while it also
concluded that other evidence developed was insufficient to uphold other features of the statutory
scheme. Compare Heller III, 801 F.3d at 277 (“For the foregoing reasons, we believe the District
has adduced substantial evidence from which it reasonably could conclude that fingerprinting
and photographing registrants will directly and materially advance public safety … .”) with id. at

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278-79 (“The District has not presented substantial evidence to support the conclusion that its
prohibition on the registration of ‘more than one pistol per registrant during any 30–day period,’
… ‘promotes a substantial governmental interest that would be achieved less effectively absent
the regulation.’ ”) (citations omitted); see also Heller v. D.C., 814 F.3d 480 (D.C. Cir. 2016)
(Mem.) (Millett, J., concurring in denial of rehearing en banc) (emphasizing “shortcomings in
the record” before the Heller III court that undergirded that court’s conclusions that certain
provisions, including the one-pistol-per-month provision, were unconstitutional).
In light of the foregoing precedent from the D.C. Circuit, the Court is bound to permit a
period of discovery. The nature and contours of that period will be discussed and determined at
the May 9, 2016, Initial Scheduling Conference. However, the Court does not intend to entertain
further argument on the necessity of discovery itself.
Before returning to the core question presented in Plaintiffs’ motion to stay, the Court
adds a final word with respect to Plaintiffs’ argument regarding experts. Even beyond their
commentary on the pointlessness of discovery in general, Plaintiffs further suggest that experts
are improper in this case. See Pls.’ Reply at 3-4 (“But few of these cases [upholding “good
cause” licensing schemes] involved any discovery whatsoever, let alone experts (!) opining as to
whether or not the law is constitutional.”). Clearly, it is not the place of experts to opine on the
ultimately legality of the challenged statutory scheme. But that basic proposition is immaterial
here because experts can, in the proper circumstances, comment on other matters within their
technical expertise that may arise in this case. Indeed, on the remand that followed the D.C.
Circuit’s decision in Heller II, the district court admitted expert testimony upon conducting the
required analysis under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In
Heller III, the D.C. Circuit then held that the district court had not abused its discretion in

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admitting that testimony. 801 F.3d 271-72. Moreover, the Heller III court relied on the admitted
expert testimony in resolving the merits of the challenges in that case. Id. at 275-77. This Court
will determine the admissibility of any specific expert testimony in this case based on the merits
of any such testimony ultimately presented; yet, in suggesting that expert testimony has no place
in this type of litigation, Plaintiffs are simply off base.
In short, in suggesting that discovery is inappropriate in this case and, moreover, that
experts have little place in any such discovery, the Court disagrees. Absent intervening contrary
action by the D.C. Circuit, the next phase in this case will include a period of discovery, as
Defendants have requested.
Having resolved that preliminary issue, the Court turns to the parties’ arguments
regarding the likely effect on these proceedings of the D.C. Circuit’s resolution of Plaintiffs’
interlocutory appeal. As noted above, Plaintiffs emphasize that any decision on appeal will
strongly shape, if not wholly resolve, these proceedings. Citing to the Seventh Circuit’s decision
in Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011), Plaintiffs emphasize that, if this Court’s denial
of a preliminary injunction is reversed, the D.C. Circuit’s decision may all but end this case in
Plaintiffs’ favor. They also suggest that, if the D.C. Circuit reaches the contrary result, Plaintiffs
may deem it prudent to dismiss their case. Defendants, in response, emphasize that the question
before the D.C. Circuit is a narrow one and, therefore, the resolution of it is unlikely to have a
strong effect on these proceedings going forward. It is not necessary, here, to trace all of the
contours of the parties’ exchanges on this subject because the Court finds Plaintiffs’ arguments
regarding the future effect of any decision by the D.C. Circuit on the interlocutory appeal to be
highly speculative. If it were certain that the D.C. Circuit’s resolution of the interlocutory appeal
would resolve this case, then there would be a strong argument for staying the case pending that

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decision. But there is a wide distance between such putative certainty and the actual uncertainty
of the impact of the D.C. Circuit’s decision on the merits of this case. This gap is particularly
wide given the emphasis of the Heller II and Heller III courts on the importance of a full factual
record for resolving constitutional questions pertaining to the Second Amendment. In short, the
sort of speculation in which Plaintiffs are engaging is not the proper basis for staying these
proceedings.
Finally, it is necessary to consider the burdens and the benefits to the various parties
affected by the choice whether to stay these proceedings or whether to move this case forward
apace. Before addressing the impacts on Plaintiffs and Defendants themselves, the Court notes
that Plaintiffs persist in relying on impacts to other parties, as if those impacts were their own.
See Pls.’ Reply (“The Court has broad discretion to manage its docket—and to spare itself, the
Plaintiffs, the city’s beleaguered taxpayers, and other litigants requiring judicial resources, from
the pointless multiplication of litigation that will all but certainly be resolved, or at least deeply
re-shaped, by an impending D.C. Circuit decision.”). But Plaintiffs are in no position to represent
the interests of the taxpayers of the District of Columbia in this case. While this is not the
occasion to consider the nature of democratic representation, it is readily apparent that the only
party in this case that can represent the interests of the District of Columbia, its citizens, and its
taxpayers is the District of Columbia. With respect to the Court itself—and to the equities of
other litigants before this Court raised by Plaintiffs—this question is tied closely to Plaintiffs’
speculation about the D.C. Circuit’s resolution of the interlocutory appeal. Once again, if it were
certain that a decision on the interlocutory appeal would moot these proceedings, then going
forward in this case at this time would be a needless use of judicial resources. But the impact of
any such decision is, in actuality, far from certain. Concomitantly, it is simply imponderable,

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from the vantage point of April 2016, what ultimately might be the most efficient use of the
Court’s resources. Accordingly, the Court concludes that neither of these factors, which were
raised by Plaintiffs, weigh in favor of the stay.
The Court now turns to the effects on the parties themselves. Plaintiffs argue that the
harm to them of proceeding “would be palpable.” Pls.’ Reply at 3. They elaborate as follows:
“We are talking about full-blown (and pointless) discovery, including experts, at a time when the
Plaintiffs will be busy briefing and arguing the same case, over the same exact issue, in the Court
of Appeals.” Id. In addition, Plaintiffs indicate generally that further proceedings in this Court
would be a waste of their time and resources—for essentially the same reasons that they argue
that moving forward would be futile, as discussed above. See Pls.’ Mot. at 3, 5. Defendants, in
response, argue that they would be prejudiced by a delay in these proceedings because it would
“cast a shadow over the District’s ability to enforce” the challenged statutory scheme. Defs.’
Opp’n at 7. Plaintiffs and Defendants also argue, respectively, that the other’s claimed burdens
and prejudices are baseless.
The Court finds that neither side has demonstrated particularly strong equities weighing
in their favor. That is, Plaintiffs hardly elaborate on the alleged harm to them, which does not
seem to exceed the harm necessarily entailed in participating in this litigation, which they
instigated in the first instance. But it is also hard to see the practical impact of the “shadow”
identified by Defendants, other than the District’s general desire for certainty and finality
regarding the constitutionality of its laws—which is understandable, but not dispositive
regarding the issue now before the Court. Ultimately, however, the Court agrees with Defendants
that Plaintiffs have not shown that the equities favor staying these proceedings at the present
time. Plaintiffs filed this litigation; Plaintiffs filed a motion for preliminary injunction; and

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Plaintiffs have now filed an interlocutory appeal with respect to the denial of that injunction.
They are wholly within their rights to take all of these steps, and the Court has no place in
second-guessing Plaintiffs’ litigation strategy. But Plaintiffs may not follow all of these steps and
then be heard to complain that additional proceedings in this Court following the usual course of
events are a waste of their resources.
In any event, the Court need not determine the relative weight of the equities to a moral
certainty. It is Plaintiffs’ burden in moving to stay this case to justify a stay in these
circumstances. It is Plaintiffs who must show that it is proper to deviate from the normal course
of the litigation process at this moment. The Court concludes that they have not done so.
Plaintiffs’ claims regarding the impact of further proceedings on their time and resources simply
do not justify a pause in this litigation, particularly because this argument is substantially based
on Plaintiffs’ speculation about the downstream effect of the D.C. Circuit’s resolution of the
interlocutory appeal. Nor are their attempts to enlist, in their favor, the impact on the District’s
taxpayers, on the Court, or on other litigants any more successful. The Court concludes that
Plaintiffs have not shown that a stay is proper at this time. Accordingly, the Court will not stay
these proceedings at the present time, as Plaintiffs request, and will proceed to set out a period of
discovery, as Defendants request, at the upcoming Initial Scheduling Conference. 2
IV. CONCLUSION AND ORDER
For the foregoing reasons, the Court hereby ORDERS that Plaintiffs’ [59] Motion to Stay
Proceedings is DENIED.
The Court will hold the Initial Scheduling Conference on May 9, 2016, at 10 a.m., as
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The Court notes that it is the Court’s general practice to set a discovery schedule at the Initial
Scheduling Conference but not to set a briefing schedule for any dispositive motions until the
completion of discovery.
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previously scheduled.
Dated: April 15, 2016
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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