Tobey v. Napolitano et al

Filing 72

MOTION for Stay of Proceedings Pending Appeal and Brief in Support Thereof by Terri Jones, Rebecca Smith. (Meier, Robin). Modified docket entry on 11/07/2011. (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 PROCEEDINGS
PENDING APPEAL AND BRIEF IN SUPPORT THEREOF
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 First 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. Inasmuch
as a Notice of Appeal has been filed, defendants Smith and Jones respectfully move this Court to
stay the proceedings in this case pending appeal.1
BACKGROUND
The federal defendants’ motion to dismiss the claims against the TSOs sued in their

1

Counsel for Smith and Jones has conferred with counsel for the plaintiff and the
Commission defendants regarding this motion. Counsel for the plaintiff, Alan Veronick, has
advised that, in consideration of the costs and inconveniences to the parties and the Court that
will occur if discovery is not stayed, plaintiff consents to a stay of discovery pending the
resolution of the appeal. Counsel for the Commission defendants, Paul Jacobs, stated that
inasmuch as an appeal has been filed and the federal defendants have indicated they would
oppose depositions of the TSA personnel during the pendency of the appeal, the Commission
defendants will not oppose the motion so as to avoid the cost and inconvenience of piecemeal
litigation.

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. 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 First 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. In so ruling on the dismissal motion, the Court submitted TSOs Smith and 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).2 Smith and Jones have now
perfected an appeal to the Court of Appeals for the Fourth Circuit from this decision (docket #
67).
DISCUSSION
A stay of proceedings is not only appropriate here, it is a jurisdictional necessity. TSOs
Smith and Jones timely appealed from this Court’s August 30, 2011 order denying their qualified

2

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).
-2-

immunity defense. It is well-established that “[t]he filing of a notice of appeal is an event of
jurisdictional significance–it confers jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56, 58 (1982); see also Levin v. Alms & Associates, Inc., 634 F.3d
260, 264 (4th Cir. 2011). As a number of circuits have recognized, the Griggs principle extends
to qualified immunity appeals, which are taken from “final” district court decisions under 28
U.S.C. § 1291, see generally Mitchell v. Forsyth, 472 U.S. 511, 525-30 (1985). See, e.g., Walker
v. City of Orem, 451 F.3d 1139, 1146 (10th Cir. 2006); May v. Sheahan, 226 F.3d 876, 879 (7th
Cir. 2000); Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994); Chuman v. Wright, 960
F.2d 104 (9th Cir. 1992). When an immunity appeal is taken, jurisdiction shifts to the court of
appeals, and the district court necessarily may not proceed further in the case until the appeal is
rejected or the case remanded.
Qualified immunity rests on the insight that damages suits against public officials impose
substantial social costs, including “the expenses of litigation, the diversion of official energy
from pressing public issues, and the deterrence of able citizens from acceptance of public
office.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). Significant among these costs is “the
danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most
irresponsible [public officials], in the unflinching discharge of their duties.’” Id. (quoting
Gregoire v. Biddle, 177 F.2d 579, 581 (2d 1949) (brackets original)). Consequently, qualified
immunity provides more than a mere defense to liability; it is “an immunity from suit,” Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985), designed “to spare a defendant not only unwarranted
liability, but unwarranted demands customarily imposed upon those defending a long drawn out

-3-

lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1990). Suit immunity is irretrievably lost if the
defense is erroneously rejected, and thus “Mitchell clearly establishes that an order rejecting the
defense of qualified immunity at either the dismissal stage or the summary judgment stage is a
‘final’ judgment subject to immediate appeal.” Behrens v. Pelletier, 516 U.S. 299, 306 (1996).
TSOs Smith and Jones moved to dismiss on qualified immunity grounds, but this Court
concluded that qualified immunity does not apply to bar discovery on plaintiff’s First
Amendment content discrimination claim. See Memorandum Opinion at 34. Smith and Jones
have appealed that ruling – as Mitchell authorizes – and, under Griggs, the appeal’s pendency
divests this Court of jurisdiction to proceed further in the action. See, e.g., May, 226 F.3d at
879-80.
The Fourth Circuit has yet to apply Griggs in the context of a qualified immunity appeal.
But that court has squarely recognized in an analogous context that a properly noticed appeal
seeking to vindicate a right to avoid the costs and burdens of litigation necessarily divests the
district court of jurisdiction to proceed in the underlying action. In Levin v. Alms & Associates,
Inc., 634 F.3d 260, 266 (4th Cir. 2011), the Fourth Circuit held that an appeal under § 16(a) of
the Federal Arbitration Act, from a district court decision denying a motion to compel
arbitration, divests the district court of jurisdiction to proceed on the merits of the underlying
claims for relief. Rejecting the view of a minority of circuits that had held that the only issue on
appeal is the question of arbitrability itself and that district courts can proceed to the merits, the
Levin court explained that “[t]he core subject of an arbitrability appeal is the challenged
continuation of proceedings before the district court on the underlying claims.” Id. at 264. This
broader understanding of the interest at stake in an arbitrability appeal necessarily meant that

-4-

under Griggs a district court could not proceed with any aspect of the underlying civil dispute.
“[B]ecause the district court lacks jurisdiction over ‘those aspects of the case involved in the
appeal,’ it must necessarily lack jurisdiction over the continuation of any proceedings relating to
the claims at issue.” Id. (quoting Griggs, 459 U.S. at 58).
Consistent with that analysis, the Fourth Circuit explicitly rejected the argument that
discovery could go forward pending the appeal. “Discovery,” the court explained, “is a vital part
of the litigation process and permitting discovery constitutes permitting the continuation of the
litigation, over which the district court lacks jurisdiction.” Id. In addition, “allowing discovery
to proceed would cut against the efficiency and cost-saving purposes of arbitration,” id., while
perhaps significantly altering the nature of the dispute in a way that could not be undone if the
appeal is successful and arbitration is required, see id. at 265 (“the parties will not be able to
unring any bell rung by discovery, and they will be forced to endure the consequences of
litigation discovery in the arbitration process”). Accordingly, the appellant was entitled to a stay
of all proceedings in the district court pending the appeal.
Levin’s reasoning readily translates to qualified immunity cases; indeed, the Tenth
Circuit has relied on the analogy between immunity and arbitrability to reach a result similar to
the Fourth Circuit’s in Levin. See McCauley v. Halliburton Energy Services, Inc., 413 F.3d 1158
(10th Cir. 2005). As that court explained, “interlocutory appeals on the basis of the denial of
qualified immunity are similar to § 16(a) appeals in the following respect: the failure to grant a
stay pending either type of appeal results in a denial or impairment of the appellant’s ability to
obtain its legal entitlement to avoidance of litigation, either the constitutional entitlement to
qualified immunity or the contractual entitlement to arbitration.” Id. at 1162. It follows, then,

-5-

that when a government official appeals from a pre-discovery immunity denial, the district court
lacks jurisdiction to proceed, including with discovery. Qualified immunity is “immunity from
suit,” Mitchell, 472 U.S. at 526, and so “the ultimate question in a Forsyth appeal is whether a
public official should have to undergo the burdens of litigation.” May, 226 F.3d at 879 (citation
omitted)). Hence “there can be no doubt that a Forsyth appeal divests a district court of the
authority to order discovery or conduct other burdensome pretrial proceedings.” Id. at 880.
The Supreme Court’s decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), underscores
that conclusion. Rejecting a suggestion that Rule 8(a)(2)’s pleading standards might be
“tempered” when courts impose discovery controls, the Supreme Court reiterated that “[t]he
basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation,
including ‘avoidance of disruptive discovery.’” Id. at 1953 (quoting Siegert, 500 U.S. at 236
(Kennedy, J., concurring in the judgment)). Even limited or managed discovery cannot be
squared with that purpose:
It is no answer to these concerns to say that discovery for petitioners 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.
For the reasons explained above, then, a government official’s appeal from a qualified
immunity denial necessarily forecloses further proceedings in the district court until the appeal is
rejected or the case remanded. TSOs Smith and Jones have taken a timely appeal raising a
substantial question of qualified immunity appealable under Mitchell. Accordingly, this Court

-6-

lacks jurisdiction to proceed on the claims before it, and a stay of proceedings is necessary.
DATED this 4th day of November, 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

-7-

CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of November, 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:

/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]