Tobey v. Napolitano et al

Filing 24

Consent MOTION for Protective Order by Janet Napolitano, John S. Pistole. (Attachments: # 1 Proposed Order)(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

UNITED STATES’ UNOPPOSED MOTION
FOR STIPULATED PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26(c), the United States respectfully submits
this unopposed motion for a stipulated protective order. As explained more fully below, the
United States seeks a protective order to prevent public disclosure of the names of certain
individuals that the United States has agreed to identify to plaintiff’s counsel in lieu of plaintiff’s
filing a Motion for Leave to Conduct Limited Expedited Doe Discovery. A copy of the proposed
protective order is attached as Exhibit A. Counsel for the United States has conferred with
counsel for plaintiff and for the Capital Region Airport Commission concerning this motion and
proposed order. Counsel for said parties do not oppose the motion and have agreed to the
proposed order, subject to the stipulated reservations of plaintiff’s counsel set forth in paragraph
11 of Exhibit A..
The United States, through the Transportation Safety Administration (TSA), has agreed to
provide plaintiff’s counsel with the names of the Transportation Security Officers to be identified
as John Smith and Jane Smith defendants, or similar nomenclature, as long as those names are
protected by an appropriate protective order preventing the public disclosure of the names.

Counsel for the plaintiff have agreed that, as a matter of courtesy, they will not publicly disclose
the names of the Smith defendants unless and until this case reaches discovery against those
defendants.
The United States believes that a protective order is necessary at this point in the
litigation to prevent public disclosure of the identities of Smith defendants. The United States
does not currently represent the individual defendants, although the process for determining
representation is underway. Further, the United States must comply with the terms of the Privacy
Act, 5 U.S.C. § 552a, which precludes disclosure of certain information from Privacy Act
systems of records. In addition, the individuals are actively employed in a transportation security
capacity. Given the publicity generated by this case, revealing the identities of the defendants
could compromise their effectiveness as Transportation Security Officers. In addition,
undersigned counsel anticipate that Smith defendants will raise the defense of qualified immunity
at the earliest possible stage of litigation, which defense is intended to protect defendants not
only from liability, but from the burdens of litigation. Saucier v. Katz, 533 U.S. 194, 200-201
(2001) (“qualified immunity is an immunity from suit rather than a mere defense to liability”).
The burdens of litigation include not merely discovery, but, in a case such as this, should include
any impediment --personal or professional– that could result from the public disclosure of the
Smith defendants’ identities at this early juncture in the case.
In the event that this litigation proceeds to discovery against the Smith defendants, the
parties will revisit the terms of the Protective Order to determine whether the protections are still
necessary. The United States does not anticipate opposing the lifting of the protective order at
that time, though it reserves the right to do so should it deem such opposition necessary.
-2-

The United States will provide the Court, under seal, the names of the defendants to be identified
in plaintiff’s Amended Complaint.
WHEREFORE, Defendants respectfully request that the Court enter the attached
Stipulated Protective Order, and for such further relief as the Court deems appropriate.
DATED this 26th day of May, 2011.

Respectfully submitted,

NEIL H. MACBRIDE
UNITED STATES ATTORNEY
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]
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 Federal Defendants
-3-

CERTIFICATE OF SERVICE
I hereby certify that on this 26th 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]