Tobey v. Napolitano et al

Filing 51

MOTION and Brief in Support Thereof to Stay Discovery Pending a Decision on Dispositive Motion by Terri Jones, Janet Napolitano, John S. Pistole, Rebecca Smith. (Meier, Robin). Modified docket entry on 08/18/2011. (walk, ).

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

MOTION FOR STAY OF DISCOVERY PENDING A DECISION
ON DISPOSITIVE MOTION AND BRIEF IN SUPPORT THEREOF
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. In response to the Amended Complaint, the
individual federal defendants, Rebecca Smith and Terri Jones (collectively, the Transportation
Security Officers (TSOs)), and the official federal defendants filed a motion to dismiss (docket #
33). The federal defendants now respectfully move this Court under Federal Rule of Civil
Procedure 26(c) to stay all discovery until the Court has ruled on that pending dispositive motion
to dismiss.
The motion to dismiss the claims against the TSOs sued in their individual capacity raises
qualified immunity. Qualified immunity carries with it a protection from pretrial procedures
such as discovery. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). Therefore, when an
individual defendant asserts qualified immunity in a threshold motion, a court should not allow
discovery until it has considered that threshold motion and determined what discovery, if any, is

necessary. Id.; Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). Because the TSOs have
asserted qualified immunity in a threshold motion, this Court should stay discovery until it has
considered that motion. Similarly, one purpose of sovereign immunity is to protect a sovereign
government from the burdens of suit, including discovery. Freeman v. United States, 556 F.3d
326, 342 (5th Cir. 2009). The official federal defendants’' assertion of sovereign immunity,
therefore, also supports a stay of discovery until this Court has decided the threshold motions.
Id.
ARGUMENT
I.

QUALIFIED IMMUNITY PROTECTS THE TSOS FROM DISCOVERY WHILE
THEIR THRESHOLD MOTION IS PENDING
Qualified immunity "protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Pearson v. Callahan, 129 S. Ct. 808, 815
(2009) (quoting Harlow, 457 U.S. at 818). Qualified immunity is designed to protect against the
"substantial social costs" that result from suits for damages against individual officers, Anderson
v. Creighton, 483 U.S. 635, 638 (1987), including the "substantial diversion that is attendant to
participating in litigation and making informed decisions as to how it should proceed," Iqbal, 129
S. Ct. at 1953. Because these costs accrue regardless of a case's ultimate outcome, the Supreme
Court "‘repeatedly [has] stressed'" that courts should apply qualified immunity "‘at the earliest
possible stage in litigation.'" Pearson, 129 S. Ct. at 815 (quoting Hunter v. Bryant, 502 U.S. 224,
227 (1991). Accord Dunbar Corp. V. Lindsey, 905 F.2d 754, 763 (4th Cir. 1990). "[E]ven such
pretrial matters as discovery are to be avoided if possible, as ‘[i]nquiries of this kind can be

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peculiarly disruptive of effective government.'" Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(quoting Harlow, 457 U.S. at 817) (alteration in original). Indeed, the "basic thrust" of the
doctrine is "to free officials from the concerns of litigation, including ‘avoidance of disruptive
discovery.'" Iqbal, 129 S. Ct. at 1953 (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)
(Kennedy, J., concurring in judgment)).
Therefore, as the Supreme Court has long since made clear, when an official raises the
defense of qualified immunity, discovery bearing on the merits of the claim against that official
should not proceed until the threshold question of immunity is resolved. See Pearson, 129 S. Ct.
at 815 ("[T]he driving force behind creation of the qualified immunity doctrine was a desire to
ensure that insubstantial claims against government officials [will] be resolved prior to
discovery") (internal quotation marks omitted, alteration in Pearson); Mitchell, 472 U.S. at 526
("Unless the plaintiff's allegations state a claim of violation of clearly established law, a
defendant pleading qualified immunity is entitled to a dismissal before the commencement of
discovery."); Harlow, 457 U.S. at 818 ("Until this threshold immunity question is resolved,
discovery should not be allowed."). The Supreme Court has underscored the importance of this
protection from discovery by holding that the denial of such protection is immediately appealable
under the collateral order doctrine. See Iqbal, 129 S. Ct. at 1945-46; Behrens v. Pelletier, 516
U.S. 299, 307-08 (1996).
In this case, the TSOs have asserted qualified immunity in a threshold motion to dismiss.
See Docket # 33. The federal defendants have presented arguments that call into doubt whether
plaintiff can state a claim against the individual defendants, let alone overcome their qualified
immunity. If, after consideration of the motion to dismiss, this Court decides that at least some
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of the claims should proceed, then discovery may go forward. Allowing discovery to proceed in
the interim, however, would prematurely deprive the TSOs of the protection of qualified
immunity.
Plaintiff should not be permitted to circumvent the protection of qualified immunity by
proposing that he be allowed only "limited" or "jurisdictional" discovery. To begin with,
discovery against the official defendants on jurisdictional issues is also inappropriate. See infra
Part II. But even if it were not, the Supreme Court has rejected the "careful-case-management
approach" under which limited discovery proceeds while threshold qualified immunity motions
remain pending. Iqbal, 129 S. Ct. at 1953-54. In Iqbal, the Court emphasized its concerns with
the "costs of diversion" imposed by individual-capacity suits. Id. at 1953. And the Court
explained:
It is no answer to these concerns to say that discovery for petitioners [senior-level federal
officials] can be deferred while pretrial proceedings continue for other defendants. It is
quite likely that, when discovery as to the other parties proceeds, it would prove
necessary for petitioners and their counsel to participate in the process to ensure the case
does not develop in a misleading or slanted way that causes prejudice to their position.
Even if petitioners are not yet themselves subject to discovery orders, then, they would
not be free from the burdens of discovery.
Id.
In this case, even "limited" or "jurisdictional" discovery would place this impermissible
burden on the TSOs. Many of plaintiff’s claims against the official defendants are premised on
the TSOs' conduct. See, e.g., Am. Compl. ¶¶ 100, 106, 113. Any discovery on those claims
would inevitably affect the TSOs' interests. Even claims not premised on the TSOs' conduct may
involve discovery that would implicate their interests. For example, any discovery on the reasons
why the RIC Police came to the screening checkpoint area and what actions they took after they
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arrived necessarily would involve depositions of plaintiff and the Commission defendants, which
the TSOs certainly would need to monitor. The TSOs should be free from these burdens until
this Court has considered their threshold assertion of qualified immunity, and therefore no
discovery should go forward in the interim.
II.

NO DISCOVERY SHOULD PROCEED ON THE CLAIMS AGAINST THE
OFFICIAL FEDERAL DEFENDANTS WHILE THEIR THRESHOLD MOTION
IS PENDING
The official federal defendants have asserted a different sort of immunity — sovereign

immunity — but this assertion of immunity also supports a stay of discovery while the threshold
motions are pending. Like qualified immunity, sovereign immunity "is intended to shield the
defendant from the burdens of defending the suit, including the burdens of discovery." Freeman
v. United States, 556 F.3d 326, 342 (5th Cir. 2009); accord Breakthrough Mgmt. Group, Inc. v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1190 n.11 (10th Cir. 2010) (expressing
"concerns about burdening the potentially sovereign party with discovery"). A plaintiff seeking
discovery "bears the burden of showing its necessity" and "is not entitled to jurisdictional
discovery if the record shows that the requested discovery is not likely to produce the facts
needed to withstand a Rule 12(b)(1) motion." Freeman, 556 F.3d at 341-42; accord Haase v.
Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987). "This is particularly true where the party seeking
discovery is attempting to disprove the applicability of an immunity-derived bar to suit." Id. at
342. Until plaintiff has carried his burden of showing the necessity of discovery to respond to
this jurisdictional defense, he is not entitled to any discovery. See id.; accord Mesa v. United
States, 123 F.3d 1435, 1439 (11th Cir. 1997). Therefore, until this Court has considered the
official federal defendants’ threshold motion and determined what discovery, if any, plaintiff may
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seek, no discovery against these defendants should proceed.
Counsel for the federal defendants has conferred with counsel for plaintiff and for the
Commission defendants. Counsel for plaintiff, Anand Agneshwar, has advised that, in light of
the January 2012 trial date, he opposes an open-ended motion for a stay of discovery, but that he
would not object to a one-week extension of time under Local Rule 26 for the federal defendants
to serve objections to plaintiff’s discovery requests served on August 16, 2011. Counsel for the
Commission defendants, Paul Jacobs, has advised that he does not oppose the federal defendants’
motion for a stay of discovery, but that discovery between plaintiff and the Commission
defendants should move forward.
WHEREFORE, until this Court has determined that plaintiff’s claims against the federal
defendants should not be dismissed, the principles of qualified and sovereign immunity protect
the official and individual federal defendants from discovery. Therefore, this Court should stay
discovery until it resolves the pending dispositive motion.
DATED this 17th day of August, 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]
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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 17th day of August, 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]