Stone et al v. Trump et al
Filing
267
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/3/2019. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BROCK STONE, et al.,
:
Plaintiffs,
:
v.
:
DONALD J. TRUMP, et al.,
:
Defendants.
Civil Action No. GLR-17-2459
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiffs’1 Motion to Lift Stay of
Compliance with the Magistrate Judge’s Memorandum Opinion and Order (ECF No. 239)
and Defendants’2 Motion for Reconsideration, Motion to Continue Stay of Compliance
with the Magistrate Judge’s Memorandum Opinion and Order, and Request for an
Administrative Stay (ECF No. 257). The Motions are ripe for disposition, and no hearing
is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court
will grant in part and deny in part Defendants’ Motion and deny Plaintiffs’ Motion as moot.
Plaintiffs are: Airman First Class Seven Ero George, Teddy D’Atri, Ryan Wood,
Niko Branco, John Doe 2, Jane Roe 1, and John Doe 3.
2
Defendants are: President Donald J. Trump, Secretary of Defense Mark Esper,
Acting Secretary of the Army Ryan McCarthy, Secretary of the Navy Richard Spencer,
Secretary of the Air Force Heather Wilson, Acting Secretary of Homeland Security Kevin
McAleenan, and Commandant of the U.S. Coast Guard Karl L. Schultz.
1
I.
BACKGROUND3
On May 4, 2018, the Court referred this case to a United States Magistrate Judge
(“USMJ”) for all discovery. (ECF No. 152). On June 15, 2018, Plaintiffs filed a Motion to
Compel Supplemental Interrogatory Answers and Production (“Motion to Compel”). (ECF
No. 177-1). In their Motion to Compel, Plaintiffs sought deliberative materials regarding:
(1) President Trump’s July 2017 Tweets and the August 2017 Memorandum4; (2) the
Panel; and (3) the Implementation Plan and President Trump’s acceptance of the
Implementation Plan. (Pls.’ Mot. Compel at 1, ECF No. 177-1). At the same time, Plaintiffs
filed a Motion for a Judicial Determination of Privilege Claims, (ECF No. 178) (sealed),
regarding a PowerPoint presentation that the Army inadvertently produced and Defendants
sought to claw back on the theory that it is protected by deliberative process privilege,
(Defs.’ Objs. Mag. Judge’s Mem. Op. & Order at 5, ECF No. 209). On June 18, 2018,
Defendants filed a Motion for a Protective Order to preclude discovery directed at President
Trump and other sources concerning presidential communications and deliberations. (ECF
No. 179).
On August 14, 2018, the USMJ issued a Memorandum Opinion and Order granting
Plaintiffs’ Motion to Compel, granting in part and denying in part Defendants’ Motion for
a Protective Order, and dismissing as moot Plaintiffs’ Motion for Judicial Determination
3
The Court provided additional factual background in its November 30, 2018 and
August 20, 2019 Memorandum Opinions (ECF Nos. 227, 263). The Court repeats only
facts relevant to the pending Motions.
4
Capitalized terms retain their definitions from the Court’s August 20, 2019
Memorandum Opinion.
2
of Privilege. (Aug. 14, 2018 Mem. Op. [“USMJ Mem. Op.”] at 11, ECF No. 204; Aug. 14,
2018 Order, ECF No. 205). The USMJ granted Plaintiffs’ Motion to Compel because there
were no justifiable reasons to stay discovery. (USMJ Mem. Op. at 4). Applying In re
Subpoena Duces Tecum Served on Office of Comptroller of the Currency, 145 F.3d 1422,
1424 (D.C. Cir. 1998), the USMJ concluded that deliberative process privilege does not
apply in this case given that government intent “is at the very heart of this litigation.”
(USMJ Mem. Op. at 5–6). The USMJ dismissed Plaintiffs’ Motion for Judicial
Determination of Privilege Claims as moot because the USMJ determined that deliberative
process privilege does not apply to Plaintiffs’ discovery requests. (Id. at 11). Finally,
balancing deference to the Executive with Plaintiffs’ need for discovery, the USMJ granted
Defendants’ Motion for a Protective Order as to the President but not as to individuals with
whom the President communicates. (Id. at 9–11).
The USMJ ordered Defendants to produce:
(1) Deliberative materials regarding the President’s July 2017
[T]weets and August 2017 Memorandum;
(2) Deliberative materials regarding the activities of the
[Panel] and its working groups . . . tasked with developing
a plan to study and implement the President’s decision;
and
(3) Deliberative
materials
regarding
the
DoD’s
[I]mplementation Plan and the President’s acceptance of
the Plan in his March 23[, 2018] Memorandum, including
any participation or interference in that process by antitransgender [activists] and lobbyists.
3
(Id. at 3). The USMJ also stayed discovery directed at President Trump pending the Court’s
resolution of Defendants’ Motion to Dismiss President Trump as a party to this case. (Id.
at 10–11).
On August 17, 2018, Defendants filed a Motion to Stay Compliance with the
Magistrate Judge’s Discovery Order. (ECF No. 208). In their Motion, Defendants
requested that the Court stay compliance with the USMJ’s August 14, 2018 Order pending
the Court’s resolution of their Objections to the Order. (Defs.’ Mot. Stay Compliance Mag.
Judge Mem. Op. & Order at 1, ECF No. 208). Defendants filed their Objections to the
Magistrate Judge’s Discovery Order on August 28, 2018. (ECF No. 209).
On August 30, 2018, the parties filed a Joint Motion to Suspend Certain Deadlines.
(ECF No. 210). In the Motion, the parties requested that the Court suspend the discovery
deadline because of the pending Motions before the Court. (Jt. Mot. Suspend Certain
Deadlines at 2, ECF No. 210). On September 10, 2018, the Court granted the parties’
Motion and suspended the discovery deadline, discovery-related motions deadline, and
dispositive pre-trial motions deadline. (Sept. 10, 2018 Order, ECF No. 213).
On November 30, 2018, the Court issued a Memorandum Opinion and Order
overruling Defendants’ Objections. (ECF Nos. 227, 228). With regard to Defendants’
Objections related to deliberative process privilege, the Court concluded that the USMJ did
not act contrary to law when he applied In re Subpoena Duces Tecum to determine that the
“deliberative process privilege does not apply to the documents Plaintiffs requested
because the government’s intent is at the heart of the issue in this case.” (Nov. 30, 2018
Mem. Op. at 15–16, ECF No. 227). The Court further concluded that even if the USMJ had
4
applied the balancing test from Cipollone v. Liggett Group Inc., 812 F.2d 1400 (table),
1987 WL 36515 (4th Cir. 1987) (per curiam), the USMJ “would have reached the same
conclusion.” (Id. at 16). The Court also rejected Defendants’ contention, based on Trump
v. Hawaii, 138 S.Ct. 2392 (2018), that the Cipollone balancing test did not weigh in favor
of disclosing the documents because government intent is not at issue. (Id.). The Court
noted that Trump v. Hawaii involved a facially neutral policy, whereas this case involves
a facially discriminatory policy. (Id. at 16–17). As a result, the Court concluded that the
deference afforded to the government policy in Trump v. Hawaii did not apply in this case.
(Id. at 17). The Court overruled Defendants’ Objections related to the clawback of an
inadvertently produced PowerPoint document because it affirmed the USMJ’s
determination that deliberative process privilege did not apply to Plaintiffs’ requested
discovery. (Id.).
The Court also overruled Defendants’ Objections to the USMJ’s factual findings
that: (1) the Panel would not have existed but for President Trump’s Tweets; (2) the
circumstances surrounding military readiness and deployability could not have changed so
dramatically between 2016 and 2018 to warrant the creation of a new policy; and (3) the
Implementation Plan bans transgender persons from military service. (Id. at 9). The Court
concluded that these findings of fact were reasonable and supported by evidence in the
record. (Id. at 9–10).5
The Court also concluded that the USMJ did not err in granting Defendants’
Motion for a Protective Order only as to President Trump, and, as a result, overruled
Defendants’ Objections as to this ruling. (Nov. 30, 2018 Mem. Op. at 19). The Court
clarified, however, that the USMJ’s August 14, 2018 Order “encompass[ed]
5
5
Although the Court overruled Defendants’ Objections and affirmed the USMJ’s
August 14, 2018 Order, it stayed enforcement of the Order pending a decision from the
United States Court of Appeals for the Ninth Circuit in In re Donald J. Trump, No. 1872159 (9th Cir.), which sought a writ of mandamus in Karnoski v.Trump, No. 17-cv-01297
(W.D.Wash.), because that case involved similar discovery issues. (Id.).
On January 31, 2019, Plaintiffs filed their Motion to Lift Stay of Compliance with
the Magistrate Judge’s Memorandum Opinion and Order. (ECF No. 239). Defendants filed
their Opposition on February 14, 2019. (ECF No. 243). On February 28, 2019, Plaintiffs
filed a Reply. (ECF No. 247).
The Ninth Circuit issued its decision in Karnoski on June 16, 2019. Karnoski v.
Trump, 926 F.3d 1180, 1206 (9th Cir. 2019). The Circuit Court granted Defendants’
request for a writ of mandamus and vacated the district court’s discovery order. Id. at 1207.
The Ninth Circuit applied the balancing test from FTC v. Warner Communications Inc.,
742 F.2d 1156 (9th Cir. 1984), id. at 1206, which the United States Court of Appeals for
the Fourth Circuit applied in Cipollone, 1987 WL 36515. This test requires the Court to
balance four factors to determine whether the litigant’s “need for [deliberative] materials
and the need for accurate fact-finding override the government’s interest in nondisclosure.” Karnoski, 926 F.3d at 1206 (quoting Warner, 742 F.2d at 1161). Those factors
are: (1) “the relevance of the evidence”; (2) “the availability of other evidence”; (3) “the
government’s role in the litigation”; and (4) “the extent to which disclosure would hinder
communications both to and from the President.” (Id.). Defendants do not seek
reconsideration of this part of the Court’s Memorandum Opinion and Order.
6
frank and independent discussion regarding contemplated policies and decisions.” Id.
(quoting Warner, 742 F.2d at 1161).
The Ninth Circuit noted that the second and third factors favor the Karnoski
plaintiffs because “[t]he evidence sought is primarily, if not exclusively, under Defendants’
control, and the government—the Executive—is a party to and the focus of the litigation.”
Id. With regard to the first factor, however, the Ninth Circuit noted that the record was not
sufficiently developed for the Court to assess the relevance of the requested discovery. Id.
As to the fourth factor, the Ninth Circuit stated that it “deserves careful consideration[ ]
because the military’s interest in full and frank communication about policymaking raises
serious—although not insurmountable—national defense interests.” Id. To this end, the
Ninth Circuit explained, “Documents involving the most senior executive branch
officials . . . may require greater deference. (They may, of course, also be the most
relevant.).” Id.
The Ninth Circuit noted that the district court “appear[ed] to have conducted a single
deliberative process privilege analysis covering all withheld documents, rather than
considering whether the analysis should apply differently to certain categories.” Id. It
clarified that, in applying the balancing test, “the district court should consider classes of
documents separately when appropriate.” Id. The Circuit Court placed the burden on the
Karnoski defendants to “persuasively argue that a more granular analysis would be proper,”
and if they succeeded, “the district court should undertake it.” Id.
On June 27, 2019, Defendants filed their Motion for Reconsideration, Motion to
Continue to Stay Compliance with the Magistrate Judge’s Memorandum Opinion and
7
Order, and Request for an Administrative Stay. (ECF No. 257). Plaintiffs filed their
Opposition on July 22, 2019. (ECF No. 260). On August 16, 2019, Defendants filed their
Reply. (ECF No. 262).
II.
A.
DISCUSSION
Standard of Review
The Federal Rules of Civil Procedure include three Rules that permit a party to move
for reconsideration. Rule 54(b) governs motions to reconsider interlocutory orders. See
Fayetteville Inv’rs v. Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th Cir. 1991)
(finding that the district court properly reconsidered interlocutory order under Rule 54(b)).
This Rule provides that interlocutory orders “may be revised at any time before the entry
of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
Fed.R.Civ.P. 54(b).
Although the standard used to alter or amend a final judgment pursuant to Rule 59(e)
is not binding in an analysis of Rule 54(b) motions, see Am. Canoe Ass’n v. Murphy Farms,
Inc., 326 F.3d 505, 514 (4th Cir. 2003), the Court will use the Rule 59(e) standard as
guidance for evaluating Defendants’ Motion, see Harper v. Anchor Packing Co., Nos.
GLR-12-460 & GLR-12-462, 2014 WL 3828387, at *1 (D.Md. Aug. 1, 2014). Pursuant
to Rule 59(e), a district court may alter or amend a final judgment only under three
circumstances: “(1) to accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305
8
F.3d 284, 290 (4th Cir. 2002) (quoting Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d
396, 403 (4th Cir. 1998)). “A motion for reconsideration is ‘not the proper place to relitigate
a case after the court has ruled against a party, as mere disagreement with a court’s rulings
will not support granting such a request.’” Lynn v. Monarch Recovery Mgmt., Inc., 953
F.Supp.2d 612, 620 (D.Md. 2013) (quoting Sanders v. Prince George’s Pub. Sch. Sys., No.
RWT 08CV501, 2011 WL 4443441, at *1 (D.Md. Sept. 21, 2011)).
Under Federal Rule of Civil Procedure 72(a), a district court “must consider timely
objections” to a USMJ’s order on nondispositive, pretrial matters and “modify or set aside
any part of the order that is clearly erroneous or is contrary to law.” Likewise, Local Rule
301.5 (D.Md. 2018) permits a district court to “reconsider, modify, or set aside any portion
of the magistrate judge’s order found to be clearly erroneous or contrary to law.” The Court
“may also receive further evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636 (2018).
B.
Analysis
1.
Motion for Reconsideration
Defendants contend that the Court should reconsider its November 30, 2018
Memorandum Opinion and Order in light of the Ninth Circuit’s decision in Karnoski,
which clarified the application of the test to overcome deliberative process privilege.
Defendants move for reconsideration of the Court’s overruling of their Objections to and
affirmance of the USMJ’s August 14, 2018 Order granting Plaintiffs’ Motion to Compel
and dismissing as moot Plaintiffs’ Motion for Judicial Determination of Privilege.
9
Defendants also request that the Court reconsider its overruling of Defendants’ Objections
related to certain factual findings the USMJ made. Plaintiffs oppose Defendants’ Motion.
a.
Motion to Compel & Motion for Judicial Determination of
Privilege
Defendants maintain, based on Karnoski, that the Court should apply the Cipollone
balancing test on a case-by-case or document-by-document basis with special deference to
the military. Plaintiffs counter that the Court applied the same balancing test Karnoski
mandates and applied the appropriate level of deference. The Court agrees in part with
Defendants.
In Karnoski, the Ninth Circuit clarified that the district court should have applied
the balancing factors to “classes of documents separately when appropriate.” 926 F.3d at
1206. Here, the Court instead applied the factors to discovery in this case as a whole. (See
Nov. 30, 2018 Mem. Op. at 16–17). Given the Ninth Circuit’s clarification in Karnoski,
which the Court finds persuasive, the Court will grant Defendants’ Motion to the extent it
seeks reconsideration of the Court’s application of the Cipollone factors. Accordingly, the
Court will amend its November 30, 2018 Order to sustain Defendants’ Objections to the
USMJ’s conclusion regarding the deliberative process privilege. The Court will vacate in
part the USMJ’s August 14, 2018 Order and remand this case to the USMJ to apply the
Cipollone factors to the categories of documents Plaintiffs seek in their Motion to Compel
and permit Defendants to argue that Plaintiffs should more narrowly define the categories
of documents. See Karnoski, 926 F.3d at 1206. The USMJ shall give due consideration to
whether a document or category of documents requires greater deference depending on
10
who is involved. See id. Consequently, the Court will also vacate the portion of the August
14, 2018 Order dismissing as moot Plaintiffs’ Motion for Judicial Determination of
Privilege. Depending on the USMJ’s ruling on Plaintiffs’ Motion to Compel, the USMJ
may need to consider Plaintiffs’ Motion for Judicial Determination of Privilege on the
merits. The portion of the USMJ’s August 14, 2018 Order granting in part and denying in
part Defendants’ Motion for a Protective Order remains in effect.
b.
Factual Findings
Defendants contend that the Court should reconsider the three factual findings it
affirmed when it overruled Defendants’ Objections. The Court is not persuaded.
First, Defendants challenge the USMJ’s factual finding that the DoD’s policy bans
transgender persons from military service. (See USMJ Mem. Op. at 9). Defendants’
argument removes this phrase from the context of the Court’s discussion. The Court made
this statement when rebutting Defendants’ argument that the Implementation Plan is based
on a medical condition—gender dysphoria—and not transgender status. (See Nov. 30,
2018 Mem. Op. at 10). As the Court stated in its August 20, 2019 Memorandum Opinion,
“the Implementation Plan discriminates on the basis of transgender status, not a medical
condition.” (Aug. 20, 2019 Mem. Op. at 57, ECF No. 263). While the Implementation Plan
may not ban all transgender persons from military service, it does ban individuals based on
their transgender status. Thus, the Implementation Plan does indeed ban transgender
persons from military service.
Second, Defendants take issue with the USMJ’s factual finding that the
circumstances surrounding military readiness and deployability could not have changed so
11
dramatically between 2016 and 2018 so as to warrant a new policy. (See USMJ Mem. Op.
at 6). In support of their argument, Defendants point to the United States Court of Appeals
for the D.C. Circuit’s opinion in Doe 2 v. Shanahan, 755 F.App’x 19, 23 (D.C. Cir. 2019),
which stated that the Implementation Plan was the result of “the creation of a panel of
military and medical experts, the consideration of new evidence gleaned from the
implementation of the [Open Service Directive] on the service of transgender
individuals . . . , and a reassessment of the priorities of the group that produced the [Open
Service Directive].” Id. at 23. The D.C. Circuit made this statement in the context of
discussing the differences between the August 2017 Memorandum and the Implementation
Plan; the Court was not addressing whether there was a change in circumstances regarding
military readiness and deployability between 2016 and 2018 that would warrant the
creation of a new transgender service policy. Thus, the Court still finds the USMJ’s factual
finding reasonable.
Third, Defendants request that the Court reconsider its decision overruling
Objections to the USMJ’s factual finding that the Panel would not have existed but for
President Trump’s Tweets. (See USMJ Mem. Op. at 6–7). Defendants cite Judge Williams’
concurring opinion in Doe 2 v. Shanahan, 917 F.3d 694 (D.C. Cir. 2019) (Williams, J.,
concurring in the result), to support their argument. Specifically, Judge Williams noted that
“President Trump’s July–August 2017 directives came a month after, and were consistent
with, Secretary Mattis’s prior memorandum” and that Secretary Mattis delayed accessions
under the Open Service Directive to have “additional time to evaluate more carefully the
impact” of the Open Service Directive. Id. at 729. Secretary Mattis’s June 30, 2017
12
Memorandum delaying accessions did not, however, mention establishing a panel of
experts to study the issue, and it was not until a month-and-a-half after President Trump
announced the Ban on Twitter and formalized it in his August 2017 Memorandum—and a
full two-and-a-half months after Secretary Mattis’s Memorandum delaying accessions—
that Secretary Mattis announced the formation of the Panel to study the issue of transgender
service. Thus, as the Court previously concluded, this timeline of events would “make it
reasonable to conclude that the Panel . . . was born of President Trump’s Tweets.” (Nov.
30, 2018 Mem. Op. at 9). The Court sees no reason to disturb this factual finding at this
juncture.
The Court will, therefore, deny Defendants’ Motion as to the factual findings.
2.
Motion to Continue Stay & Request for Administrative Stay
Defendants request that the Court continue the stay of compliance with the USMJ’s
August 14, 2018 Order and request that it enter an administrative stay. Plaintiffs,
unsurprisingly, oppose the stay requests.
“The 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.” Donnelly v. Branch Banking & Trust Co., 971 F.Supp.2d
495, 501 (D.Md. 2013) (quoting Landis v. N. America Co., 299 U.S. 248, 254 (1936)). The
Court considers the following factors when determining whether to grant a stay: (1) “the
length of the requested stay”; (2) “the hardship that the movant would face if the motion
were denied”; (3) “the burden a stay would impose on the nonmovant”; and (4) “whether
the stay would promote judicial economy by avoiding duplicative litigation.” Id. at 501–
13
02 (quoting In re Mut. Funds Inv. Litig., No. MDL 1586, 2011 WL 3819608, at *1 (D.Md.
Aug. 25, 2011)). On a motion to stay discovery pending an interlocutory appeal, the movant
“‘bears the burden of establishing its need’ for a stay and does not enjoy an automatic stay
as a right.” District of Columbia v. Trump, 344 F.Supp.3d 828, 843 (D.Md. 2018) (quoting
Clinton v. Jones, 520 U.S. 681, 708 (1997)).
With regard to the hardship factor, Defendants maintain that the disclosure of
documents revealing Defendants’ internal deliberations on military policy would cause
irreparable harm, and therefore, the Court should continue the stay. Defendants’ argument
assumes, however, that the Court would not reconsider its ruling affirming the USMJ’s
Order and would not modify that Order. Because the Court will vacate the part of the
August 14, 2018 Order granting Plaintiffs’ Motion to Compel and remand this case to the
USMJ to determine whether Plaintiffs have overcome Defendants’ assertions of
deliberative process privilege, Defendants will not, at this point in time, be forced to
produce the documents they contend will result in irreparable harm. This factor, therefore,
weighs against continuing the stay.
Defendants next contend that a stay pending review of their Motion for
Reconsideration will not harm Plaintiffs because Plaintiffs have moved for summary
judgment, and even if they would be harmed, the potential harm to Defendants in disclosing
the documents far outweighs any harm to Plaintiffs. Defendants’ argument misses the
mark. On August 20, 2019, the Court denied without prejudice Plaintiffs’ Motion for
Summary Judgment because discovery was necessary to determine the level of deference,
if any, the Court should apply to the Implementation Plan. (Aug. 20, 2019 Mem. Op. at
14
58). As Plaintiffs correctly note, the materials they seek are important to their case “in the
event their pending motion for summary judgment is not granted.” (Pls.’ Opp’n Defs.’ Mot.
Reconsid. [“Pls.’ Opp’n”] at 29, ECF No. 260). That Plaintiffs have had to wait more than
a year for discovery to move forward in this case has imposed a burden on them. Now that
the Court has denied Plaintiffs’ Motion for Summary Judgment without prejudice,
discovery should move forward. In addition, as the Court addressed above, the Court will
vacate the part of the USMJ’s Order granting Plaintiffs’ Motion to Compel, and therefore,
Defendants will not be forced to produce documents they contend are covered by the
deliberative process privilege. Thus, the burden on Plaintiffs counsels against continuing
the stay.
As to the length of the requested stay, Defendants contend that a stay pending
review of their Motion for Reconsideration and appellate review, if any, would be of a
reasonable duration. Plaintiffs counter that a stay would further delay discovery while
Defendants seek a writ of mandamus. The Court agrees with Plaintiffs. When the Court
entered its Order staying discovery on November 30, 2018, it anticipated that the stay
“should be brief, given that the Ninth Circuit heard oral argument on the issue” about a
month earlier. (Nov. 30, 2018 Mem. Op. at 21). But the Ninth Circuit did not issue its
opinion until June 16, 2019—more than eight months later. Although the Court does not
know how long it would take for the Fourth Circuit to issue an opinion on a petition for
writ of mandamus in this case, based on the Ninth Circuit’s timeline, it doubts that the
length of the stay would be reasonable. Further, Defendants may not even seek a writ of
mandamus from the Fourth Circuit—they repeatedly state that they will only do so if
15
necessary. Thus, any stay the Court enters would be based on the possibility that
Defendants may seek appellate review—a prospect that seems highly unlikely given that
the Court will vacate the portion of the USMJ’s Order granting Plaintiffs’ Motion to
Compel and remand to the USMJ for further discovery proceedings.
Finally, Defendants assert that a stay would promote judicial economy because it
would prevent them from having to seek an emergency stay in the Fourth Circuit pending
their potential petition for writ of mandamus. Plaintiffs counter that “[g]ranting a stay
delaying compliance with the [USMJ]’s Order . . . in anticipation of some future, potential
related litigation would not further the Court’s interest in judicial economy.” (Pls.’ Opp’n
at 31). As the Court discussed above, discovery has already been delayed in this case and
Defendants’ petition for writ of mandamus is only a possibility, not a certainty. Thus, a
continuation of the stay may not even been necessary. In addition, on August 20, 2019, the
Court denied without prejudice Plaintiffs’ Motion for Summary Judgment because more
discovery is necessary. Continuing the stay, therefore, would further delay resolution of
this case, which would not promote judicial economy.
In short, the Court concludes that an extension of the stay of compliance with the
USMJ’s August 14, 2018 Order is not warranted. For the same reasons the Court declines
to continue the stay of compliance with the USMJ’s August 14, 2018 Order, the Court will
deny Defendants’ request for an administrative stay. Plaintiffs, however, consent to a fortyeight-hour extension of the stay of Defendants’ compliance with the USMJ’s Order to seek
a stay from the Fourth Circuit pending any petition for writ of mandamus. Accordingly,
the Court will grant a limited, forty-eight-hour extension of the stay of compliance with
16
the USMJ’s August 14, 2018 Order for Defendants to seek a stay from the Fourth Circuit
if they choose to do so. After forty-eight hours, the stay will automatically lift and
discovery in this case will be remanded to the USMJ for further proceedings consistent
with this Opinion. Because the Court will lift the stay of compliance with the USMJ’s
Order, the Court will deny Plaintiffs’ Motion as moot.
III.
CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part Defendants’
Motion for Reconsideration, Motion to Continue to Stay Compliance with the Magistrate
Judge’s Memorandum Opinion and Order, and Request for an Administrative Stay (ECF
No. 257) and deny as moot Plaintiffs’ Motion to Lift Stay of Compliance with the
Magistrate Judge’s Memorandum Opinion and Order (ECF No. 239). A separate Order
follows.
Entered this 3rd day of September, 2019.
/s/
George L. Russell, III
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?