Tobey v. Napolitano et al

Filing 40

Consent MOTION to Stay re 37 Scheduling Order by Terri Jones, Janet Napolitano, John S. Pistole, Rebecca Smith. (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

FEDERAL DEFENDANTS’ MOTION TO STAY
THE SCHEDULING ORDER AND BRIEF IN SUPPORT THEREOF
The federal defendants, sued in their official and individual capacities, respectfully move
to stay paragraph 1 of the Scheduling Order issued by the Court on July 5, 2011 (docket # 37).
Paragraph 1 of the Scheduling Order requires the federal defendants to file an answer within 11
days, or by July 19, 2011. Because the federal defendants responded to plaintiff’s Amended
Complaint on June 27, 2011, through a Federal Rule of Civil Procedure 12(b)(1) and (6) Motion
to Dismiss, they should not have to file an answer until after the Court rules on the pending
dispositive motion.
In this action, plaintiff alleges that certain federal officials violated his First, Fourth, and
Fifth Amendment rights when he removed his clothing and displayed the text of the Fourth
Amendment on his chest upon entering the security screening checkpoint prior to boarding a
flight from Richmond International Airport. The Amended Complaint states claims against Janet
Napolitano, Secretary of the Department of Homeland Security (DHS), and John Pistole,
Administrator of the Transportation Security Administration (TSA), in their official capacities
and also names two Transportation Security Officers (TSOs), “Rebecca Smith” and Terri Jones”

in their official as well as individual capacities. In the June 27, 2011 Motion to Dismiss, the
federal defendants raised arguments to dismiss all claims in plaintiff’s Amended Complaint
based on sovereign immunity on behalf of the official capacity defendants and qualified
immunity on behalf of the individual capacity defendants.
On July 5, 2011, the Court issued its Order Setting Pretrial Conference and Scheduling
Order. Paragraph 1 of the Scheduling Order contains the following provision. “Any party which
has not filed an Answer to the Complaint shall do so within eleven (11) days after entry of this
Scheduling Order.” Pursuant to this provision of the Scheduling Order, defendants’ Answer
would be due July 19, 2011. This deadline fails to acknowledge that, if the Court grants
defendants’ pending Motion to Dismiss, the necessity of filing an answer could be moot.
Accordingly, there is a direct conflict between Fed. R. Civ. P. 12(b) and the provision in
paragraph 1 of the Scheduling Order. The federal defendants respectfully submit that, in light of
the nature of this litigation and the interests designed to be protected by affording the United
States and its officers immunity from suit, they should be afforded the opportunities set forth in
Rule 12(b)(1) and (6) to postpone the filing of an Answer until after such time as the Court has
ruled on the pending Motion to Dismiss. Thus, the federal defendants respectfully request that
the time for the filing of their Answer be deferred until 14 days after a ruling on the motion to
dismiss, should the Court deny that motion.
Counsel for the federal defendants has contacted counsel for the plaintiff and for the State
defendants. Plaintiff’s counsel stated that plaintiff would not object to the federal defendants’
request to stay the provision of the Scheduling Order regarding filing of an Answer during the
pendency of the federal defendants' motion to dismiss, contingent upon the federal defendants
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being required to file an answer within 14 days of the Court's denial of the pending motion, in
whole or in part (as to defendants who are not dismissed from the action. The State defendant’s
counsel also does not object to this motion.
WHEREFORE, the federal defendants respectfully request that the Court issue an Order
that modifies paragraph 1 of the July 5, 2011 Scheduling Order and that directs them to file an
Answer to the Amended Complaint on or before July 19, 2011.
Dated this 13th day of July, 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 Federal Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of July, 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]