Tobey v. Napolitano et al

Filing 22

Consent MOTION for Extension by Janet Napolitano, John S. Pistole. (Meier, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,

)
)
Plaintiff,
)
)
v.
)
)
JANET NAPOLITANO, et al.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 3:11cv154-HEH

CONSENT MOTION TO EXTEND TIME AND TO FILE AMENDED COMPLAINT
COMES NOW Plaintiff Aaron Tobey, by counsel, and Janet Napolitano, Secretary of the
Department of Homeland Security, and John Pistole, Administrator of the Transportation
Security Administration (hereinafter collectively referred to as the "Official Federal
Defendants"), by Robin P. Meier, Assistant United States Attorney for the Eastern District of
Virginia, and, pursuant to Fed. R. Civ. P. 6(b) and 15(a)(2), herewith seeks leave of court for
Plaintiff to file an Amended Complaint, and for the Official Federal Defendants to be granted an
extension of sixty days from the date Plaintiff serves an Amended Complaint in which to file the
federal Defendants' Response to Plaintiff's Complaint, based upon the following:
1.

Plaintiff filed his Complaint against the Official Federal Defendants on or about

March 10, 2011. The Official Federal Defendants' response to the Complaint is due to be filed
on May 16, 2011. In addition to naming the Official Federal Defendants, Plaintiff also identified
"John Smith," a Transportation Security Officer (TSO) who plaintiff purported to sue in his
individual capacity.
2.

The defendants Capital Region Airport Commission, Victor Williams and Calvin

Vann ("Official Airport Defendants") filed their Answer and Affirmative Defenses, and their
Motion to Partially Dismiss Complaint on May 13, 2011. In addition to naming the Official
Airport Defendants, Plaintiff also identified John Doe # 1 and John Doe #2 who plaintiff
purported to sue in their official and individual capacities.
3.

On April 19, 2011, Plaintiff's counsel requested that the defendant Airport

Commission provide the names of the individuals identified in the Complaint as John Doe # 1
and John Doe #2 in lieu of Plaintiff's filing a motion for expedited discovery and subsequently,
on April 27, 2011, the defendant Airport Commission provided such information.
4.

On April 19, 2011, Plaintiff's counsel requested that the United States provide the

name of the individual under pseudonym "John Smith," in lieu of Plaintiff's filing a motion for
expedited discovery and subsequently, on April 28, 2011, Plaintiff's counsel informed counsel for
the United States that the individual TSO was female, not male. In response to a request from
the United States for additional information about the TSO whom Plaintiff intended to make a
claim against, Plaintiff's counsel forwarded both a physical description of a female TSO as well
as a description of some events relating to Plaintiff's claims on May 11, 2011.
5.

After receiving this information, counsel for the United States, Carlotta Wells,

informed Plaintiff's counsel, during a telephone conversation on May 12, 2011, that the actions
described could be attributed to more than one, most likely three, TSOs and that TSA needed
some additional time to make sure that the correct individuals are identified. Ms. Wells further
explained that, at the current time, the individual TSOs are not represented and described the
representation request process that would ensue once the appropriate individuals are identified.
6.

Ms. Wells proposed that (1) TSA will provide Plaintiff's counsel with the names
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of the individual TSOs in sufficient detail to permit plaintiff to file an Amended Complaint, but
with the identification of the names of the TSO to be subject to a Stipulated Protective Order to
be submitted to the Court; (2) Plaintiff will then file an Amended Complaint; (3) if authorized,
Ms. Wells will accept service on behalf of all the federal defendants, sued in their official and
individual capacities; and (4) the federal defendants will respond to the Amended Complaint
within 60 days from the date of its filing.
7.

TSA has informed Ms. Wells that, in a manner consistent with the terms of the

Privacy Act, 5 U.S.C. § 552a, the agency should be able to provide the information, including
names, regarding the individual TSOs to Plaintiff's counsel by no later than May 23, 2011.
8.

Plaintiff expects to file the requested Amended Complaint within a few days

after the receipt of the information from Ms. Wells for the sole purpose of identifying the one or
more persons each now described under the pseudonyms "John Smith" and "John Doe #1" and
"John Doe #2."
9.

The Official Airport Defendants shall be permitted to file an Amended Answer

within the time permitted by Fed. R. Civ. P. 15(a)(3), and counsel for the Official Airport
Defendants have agreed to accept service on behalf of all the Airport defendants sued in their
official and individual capacities, except if any of the Airport defendants other than the Official
Airport Defendants are not to be represented by counsel for the Official Airport Defendants, the
said Airport defendants will respond to the Amended Complaint within the time specified under
Fed. R. Civ. P. 4. As the Plaintiff represents that the sole purpose of the amendment with respect
to the Official Airport Defendants is to identify the pseudonym parties John Doe #1 and John
Doe #2 and not to otherwise alter its allegations contained in the Complaint as originally filed,
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Counsel for the Official Airport Defendants has agreed that it will rely on its Motion to Dismiss
and the amendment will not alter in any way the schedule set forth in the rules for briefing and
consideration of such motion. The Official Airport Defendants reserve their rights to present any
defense or motion as appropriate with respect to the "John Does."
10.

The Official Federal Defendants and the Official Airport Defendants hereby

acknowledge that the proposed Amended Complaint is being filed to expedite the judicial
process and the consent to do so shall not, in and of itself, be used against the Plaintiff as a
reason to oppose any further request by Plaintiff to amend the Amended Complaint.
11.

The Official Federal Defendants have been authorized by counsel for Plaintiff and

for the Official Airport Defendants to state that, subject to the foregoing terms, Plaintiff and the
Official Airport Defendants and their respective counsel have no objections to this motion and
the terms and conditions stated herein.
WHEREFORE, for the reasons stated herein, and subject to the terms and conditions
stated herein, the parties hereby acknowledge that the proposed actions will assist in the
expeditious resolution of issues in this case, and accordingly, Plaintiff hereby respectfully
requests leave of Court to amend the Complaint to the extent described herein, and Official
Federal Defendants respectfully request the Court to grant the Federal Defendants an extension of

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time of sixty (60) days from the date on which Plaintiff files an Amended Complaint in which to
file their response to Plaintiff's claims in this case.
Dated this 16th day of May, 2011
Respectfully submitted,
NEIL H. MACBRIDE
UNITED STATES ATTORNEY
By:

/s/
Robin P. Meier
Virginia State Bar No. 65825
Assistant United States Attorney
United States Attorney’s Office
600 East Main Street, Suite 1800
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

TONY WEST
Assistant Attorney General
SANDRA M. SCHRAIBMAN
Assistant Branch Director
CARLOTTA P. WELLS
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
[phone] (telephone)
Attorneys for Official Federal Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of May, 2011, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system, which will send a notification of such filing
(NEF) to the following:
Alan C Veronick
Anand Agneshwar

[e-mail]
[e-mail]

Belinda Duke Jones

[e-mail]

Henry Irving Willett , III
[e-mail]

[e-mail], [e-mail],

James Jeffrey Knicely [e-mail], [e-mail],
[e-mail], [e-mail]
Paul Wilbur Jacobs , II

[e-mail]

By:

/s/
Robin P. Meier
Virginia State Bar #65825
Attorney for Defendant
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219
[phone] (phone)
[phone] (fax)
[e-mail]