Tobey v. Napolitano et al

Filing 60

MOTION to Stay Discovery with Incorporated Memorandum in Support by Terri Jones, Rebecca Smith. (Meier, Robin). Modified docket entry on 10/13/2011. (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 INTERLOCUTORY APPEAL
In its August 30, 2011 Memorandum Opinion (docket # 53), the Court granted in part and
denied in part the federal defendants’ motion to dismiss plaintiff’s Amended Complaint. Only
plaintiff’s First Amendment claim against the individual federal defendants, Rebecca Smith and
Terri Jones (collectively, the Transportation Security Officers (TSOs)), is extant. A decision of
whether to file an interlocutory appeal from the August 30 decision remains under active
consideration. Therefore, defendants Smith and Jones respectfully move this Court under
Federal Rule of Civil Procedure 26(c) to stay discovery and the Court’s other pre-trial deadlines,
at least until after the Solicitor General of the United States determines whether an appeal should
be filed.
BACKGROUND
The federal defendants’ motion to dismiss the claims against the TSOs sued in their
individual capacities raised as its primary basis the qualified immunity doctrine. On August 30,
the Court dismissed plaintiff’s Fifth Amendment equal protection and Fourth Amendment claims
against the TSOs. With respect to the equal protection claim, the court stated that plaintiff had

failed to allege that any similarly situated passengers were treated differently. Memo Opinion at
30. Regarding the Fourth Amendment claim, the court stated that the government’s argument for
dismissal was based on a disputed factual assertion that plaintiff did not comply with the TSOs’
direction to go to the AIT machine. Memo Opinion at 31. Even so, the court determined the
Amended Complaint failed to allege an actionable Fourth Amendment violation by Smith or
Jones. The court noted that the Amended Complaint alleged that plaintiff began to remove his
clothes in the security screening area and continued to do so even after Smith told him that was
unnecessary. Id. The court further relied on the concession at argument by plaintiff’s counsel
that plaintiff’s behavior was ‘bizarre” and that it was reasonable for the TSOs to summon the
airport police to investigate, stating “nothing in the Complaint suggests a contrary inference.” Id.
at 33. In addition, the court noted the heightened security interest at airport security checkpoints.
Id. at 31-32. Given these factors, the court determined Smith and Jones were entitled to
qualified immunity on this claim.
The Court held, however, that plaintiff’s First Amendment claim could not yet be
dismissed on qualified immunity grounds. The Court identified the issue for decision as
“whether the TSOs in fact radioed for assistance because of the message Plaintiff sought to
convey, as opposed to Plaintiff’s admittedly bizarre behavior or because of some other
reasonable restriction on First Amendment activity in the security screening area.” Memo
Opinion at 34. The Court determined that the Amended Complaint raised a “material dispute
over what the defendants did” and, because “Plaintiff’s unrebutted claim facially states a cause of
action,” the court concluded that “the question of qualified immunity must await further
discovery.” Id. at 34. In so ruling on the dismissal motion, the Court submitted TSOs Smith and
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Jones to discovery and pretrial proceedings, effectively denying their qualified immunity defense.
See, e.g., Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir. 1997).1
ARGUMENT
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
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

1

In reaching its decision on plaintiff’s Fourth Amendment claim,, the Court addressed
whether the Amended Complaint supported an inference that the TSOs violated plaintiff’s
constitutional rights. Memo Opinion at 33. But, as to the First Amendment, the Court’s opinion
did not contain a similar analysis, i.e., that the Amended Complaint alleged facts sufficient to
support a reasonable inference that the TSOs were motivated by content discrimination in
violation of the First Amendment. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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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).
Further, in Iqbal, the Court concluded that, while the issue of qualified immunity remains an
open one, all discovery in a case should be stayed. The Supreme Court 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
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
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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, the TSOs are in the process of determining whether to file an interlocutory
appeal from the August 30 Memorandum Opinion. The Solicitor General must approve the
filing of an appeal and the process of obtaining such approval is ongoing. The federal defendants
have 60 days from the date of the Memorandum Opinion, see Buonocore v. Harris, 65 F.3d 347,
352 (4th Cir. 1995), to make this decision. Therefore, discovery should be stayed from the date
of the filing of this motion until October 31, 2011, or until such time as an appeal may be filed on
or before that date.2
Counsel for the federal defendants has conferred with counsel for plaintiff and for the
Commission defendants. Counsel for plaintiff, Anand Agneshwar, has advised that plaintiff
opposes this motion. Counsel for the Commission defendants, Henry Willett, has advised that
the Commission defendants oppose this motion.
WHEREFORE, discovery in this case should be stayed until October 31, 2011, or until
such time as an appeal may be filed on or before that date, pending a decision as to whether an
interlocutory appeal of the August 30 Memorandum Opinion is authorized because the principle

2

Discovery among the parties has been progressing, both in written form and through
depositions. The individual federal defendants have not, however, been deposed as of this time.
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of qualified immunity protects the individual federal defendants from discovery.3
DATED this 5th day of October, 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

Because a stay of discovery necessarily affects the other pre-trial deadlines set by the
Court, at a minimum those deadlines coming up in the near future also should be adjusted to
account for the stay of discovery. Those deadlines include the Settlement Conference
(November 3, 2011) and the date for submitting a settlement memorandum (October 27, 2011);
and defendants’ deadline for expert disclosures (October 21, 2011).

CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of October, 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

[e-mail]

Anand Agneshwar

[e-mail]

Belinda Duke Jones

[e-mail]

Henry Irving Willett , III

[e-mail],

James Jeffrey Knicely

[e-mail],

Paul Wilbur Jacobs , II

[e-mail]

By:

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/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]