Vogt v. Hays, Kansas, City of et al

Filing 46

MEMORANDUM AND ORDER denying 39 Motion to Stay Deadlines. Signed by Magistrate Judge Gwynne E. Birzer on 4/5/17. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW JACK DWIGHT VOGT,
Plaintiff,
v.
CITY OF HAYS, KANSAS,
Defendant.

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Case No. 15-1150-JTM-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Defendant City of Hays’ Motion to Stay this
case pending its filing and disposition of a petition for writ of certiorari to the United
States Supreme Court (ECF No. 39). On March 29, 2017, the Court conducted a
telephone conference to discuss the motion and the scheduling of this case. Plaintiff
appeared through counsel, Michael Miller and Morgan Roach.

Defendant appeared

through counsel, David Cooper. After review of the parties’ briefing and considering the
arguments of counsel, the Motion to Stay is DENIED as explained below.
Background1
Although the background of this action has been thoroughly discussed in previous
opinions (see ECF Nos. 29, 37), a brief recitation of the facts is prudent. Plaintiff
1

Unless otherwise indicated, the information recited in this section is taken from the pleadings
(Compl., ECF No. 1), from the Memorandum and Order granting dismissal (ECF No. 29), and
from the Tenth Circuit Court of Appeals Opinion (ECF No. 37; Vogt v. City of Hays, Kansas,
844 F.3d 1235 (10th Cir. 2017)). The background information recited in this section should not
be construed as judicial findings or factual determinations.

Matthew Vogt was employed by defendant City of Hays as a police officer, but in late
2013, while still employed by Hays, he sought employment with former defendant City
of Haysville. During the hiring process, Vogt disclosed to Haysville that he had kept a
knife he obtained while working as a Hays police officer. Former defendant Kevin
Sexton, a police officer for Haysville, was directed by former defendant Jeff Whitfield,
Chief of Police for Haysville, to extend an offer of employment to Vogt. The offer of
employment was conditioned upon Vogt reporting his possession of the knife to the Hays
police department.
Upon reporting his possession of the knife to Hays, Vogt submitted his two weeks’
notice of resignation to the Hays police department. The Hays department opened an
internal investigation regarding Vogt’s possession of the knife, but informed Vogt the
investigation was regarding policy violations and not a criminal investigation. Vogt then
gave a statement concerning his possession of the knife. The Hays department later
suspended the internal investigation and requested a criminal investigation by the Kansas
Bureau of Investigation, and turned all of the evidence, including Vogt’s statements, over
to the KBI.
As a result of the criminal investigation, Haysville withdrew its offer of
employment. In early 2014, Vogt was charged with two felony counts related to his
possession of the knife. At the probable cause hearing, Vogt’s statements were used as
evidence. The charges were dismissed after the court determined there was no probable
cause to support the charges.

2

Procedural Posture
Vogt brought this federal action against both the City of Hays and the City of
Haysville, and multiple individual officers pursuant to 42 U.S.C. § 1983, alleging they
violated his Fifth Amendment right to be free from self-incrimination.

Defendants

sought dismissal of the complaint on the basis that it failed to state a claim.
On September 30, 2015, Senior U.S. District Judge Monti L. Belot entered
judgment for all defendants, finding the right against self-incrimination is only a trial
right and Vogt’s statements were used in pretrial proceedings, not in a trial. (ECF No.
29.) After Plaintiff appealed the dismissal, on January 4, 2017, the Tenth Circuit Court
of Appeals affirmed in part and reversed in part that judgment. (ECF No. 37.)2 The
Tenth Circuit affirmed the dismissal of the individual officers and the City of Haysville,
but reversed the dismissal of the City of Hays and remanded the case to this Court for
further proceedings against the single defendant.
Following remand, this Court set the case for a scheduling conference (ECF No.
38). However, prior to the conference, Defendant filed its motion to stay (ECF No. 39),
which Plaintiff opposes.

Defendant’s Motion to Stay (ECF No. 39)
Defendant seeks to stay the scheduling and all other proceedings in this action to
allow for the filing and disposition of its petition for a writ of certiorari to the United
States Supreme Court. Because a circuit split exists over the definition of a “criminal

2

Vogt v. City of Hays, Kansas, 844 F.3d 1235 (10th Cir. 2017).
3

case” under the Fifth Amendment, Defendant is hopeful the Supreme Court will take the
case. Defendant contends, as a general rule, a stay of discovery is proper if a dispositive
motion is likely to conclude a case, and analogizes its petition to a pending dispositive
motion.
Plaintiff argues defendant applied the incorrect legal standard in its motion, and
the court lacks the authority to stay the case, especially in light of the Tenth Circuit’s
mandate to proceed. Plaintiff also contends it is highly unlikely the Supreme Court will
grant Defendant's request for review.

Legal Standard
Generally, whether to stay litigation is within the Court’s inherent power to
control its docket and rests in its sound discretion.3 However, as demonstrated below,
both federal statute and caselaw from this District remove the Court’s discretion to stay
an action when mandated to act by the Court of Appeals.
A stay of execution of the appellate court’s judgment is specifically addressed in
28 U.S.C. § 2101(f). This statute equips only an appellate court or a justice of the
Supreme Court with jurisdiction to stay an appellate court’s final judgment pending
Supreme Court review of a petition for writ of certiorari:
In any case in which the final judgment or decree of any court is subject to
review by the Supreme Court on writ of certiorari, the execution and
enforcement of such judgment or decree may be stayed for a reasonable
time to enable the party aggrieved to obtain a writ of certiorari from the
3

Universal Premium Acceptance Corp. v. Oxford Bank & Trust, No. 02–2448–KHV, 2002 WL
31898217, at *1 (D. Kan. Dec. 10, 2002) (citing Pet Milk Co. v. Ritter, 323 F.2d 586, 588 (10th
Cir. 1963)).
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Supreme Court. The stay may be granted by a judge of the court rendering
the judgment or decree or by a justice of the Supreme Court . . . 4
Two decisions in the District of Kansas have carefully analyzed 28 U.S.C. § 2101(f) and
its limitations on the authority of the district court to stay a case following a mandate. In
Brinkman v. Dep't of Corr. of State of Kan.,5 the plaintiffs prevailed at trial and the Tenth
Circuit affirmed the judgment. Following the issuance of the mandate, plaintiffs asked
the District Court to direct payment by the bond guarantor to the plaintiff's attorney in the
amount of the judgment against defendant plus interest and attorney’s fees. Defendant
asked the District Court to keep the previous stay, and bond, in effect pending action on
its planned petition for writ of certiorari to the Supreme Court. In his decision denying
the request for stay, Senior Judge Sam A. Crow discussed the changes in jurisdiction
which occur during and after an appeal:
A district court loses jurisdiction to vacate or alter its judgment pending
appeal, but, upon issuance of the mandate, regains jurisdiction of the case
to act consistent with the mandate. Conversely, the district court retains the
authority throughout the pendency of the appeal to stay its judgment, but,
upon issuance of the mandate, loses the power to stay the judgment.6
Judge Crow found, by seeking a stay, defendant essentially wished for this Court to stay
the Tenth Circuit’s mandate, but by the terms of 28 U.S.C. 2101(f), this Court lacked the
jurisdiction to do so.7
4

28 U.S.C. § 2101(f) (emphasis added).
857 F. Supp. 775 (D. Kan. 1994).
6
Brinkman, 857 F. Supp. at 776–77 (citing Rakovich v. Wade, 834 F.2d 673, 674 (7th Cir.1987);
Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765, 767 (9th
Cir.1987); 16 Charles A. Wright, et al., Federal Practice and Procedure § 3987 (1994 Supp.);
and Gander v. FMC Corp., 733 F.Supp. 1346, 1347 (E.D.Mo.1990) (other internal citations
omitted)).
7
Id. at 777.
5

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Similarly, in the 2008 case of United States v. Wittig,8 District Judge Julie A.
Robinson was faced with (among other issues) the criminal defendant’s motion to stay
his self-surrender date after the Tenth Circuit upheld his sentence of imprisonment. The
defendant was preparing a petition for writ of certiorari to the Supreme Court, and he
argued if he were to begin serving his sentence, any review by the Supreme Court may
not occur until after he completed his sentence, making it impossible for him to truly
obtain relief. Judge Robinson examined 28 U.S.C. 2101(f), and found “[t]he majority of
courts addressing the issue, including this Court, have concluded that § 2101(f) does not
permit a district court to exercise jurisdiction to stay a circuit court’s final judgment
pending filing or resolution of a petition for writ of certiorari.”9 The Court found,
to grant such a stay under these circumstances would be inconsistent with
the “mandate rule,” which requires the district court to strictly comply with
the mandate rendered by the reviewing court. Simply put, for this Court to
grant the stay as requested would permit defendant to obtain in the district
court relief that the Tenth Circuit specifically denied.10
It is with these standards in mind that the Court turns to the current motion.

Analysis
Supporting its argument that a stay is appropriate, defendant ignores the above
standards, and instead cites to a well reasoned, but inapplicable District of Kansas
opinion.

In Wolf v. United States,11 the Court found it “appropriate for a court to stay

discovery until a pending dispositive motion is decided, especially where the case is
8

No. 02-40140-02-JAR, 2008 WL 5119986, at *1 (D. Kan. Nov. 25, 2008)
Id. at *2.
10
Id.
11
No. 93–1406–FGT, 157 F.R.D. 494, 495 (D. Kan. 1994).
9

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likely to be finally concluded as a result of the ruling thereon; where the facts sought
through uncompleted discovery would not affect the resolution of the motion; or where
discovery on all issues of the broad complaint would be wasteful and burdensome.”
However, in Wolf, the defendant filed a motion to dismiss and asked the Court to stay
discovery until a decision was rendered on the dispositive motion. That case did not
involve stay of an appellate court’s mandate pending petition for writ of certiorari, and is
clearly distinguishable from the relief presently sought.
As such, this Court finds 28 U.S.C. 2101(f) and its interpretation in Brinkman and
Wittig control the disposition of Defendant’s motion. In line with the majority of courts,
this Court also concludes § 2101(f) does not permit it to exercise jurisdiction to stay the
Tenth Circuit’s final judgment pending the filing or resolution of Defendant’s petition for
writ of certiorari.12 If the Defendant wishes to stay the mandate, it is free to seek stay
from either the Tenth Circuit or the Supreme Court, but this Court is without jurisdiction
to accommodate Defendant’s request.

IT IS THEREFORE ORDERED that Defendant City of Hays’ Motion to Stay
(ECF No. 39) is DENIED. A separate Scheduling Order, governing the progress of the
case, has been issued. (ECF No. 44.)

12

Wittig, 2008 WL 5119986, at *2 (citing United States v. Lentz, 352 F.Supp.2d 718, 726 (E.D.
Va. 2005) (collecting cases); and Brinkman v. Dep't of Corr., 857 F.Supp. 775, 777 (D. Kan.
1994) (same)).
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IT IS SO ORDERED.
Dated at Wichita, Kansas this 5th day of April, 2017.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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