Defendants' Memorandum in support of Motion for Stay of Discovery

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION
FOR STAY OF DISCOVERY PENDING RESOLUTION OF THE INDIVIDUAL
DEFENDANTS' MOTION TO DISMISS, AND IN OPPOSITION
TO PLAINTIFFS' MOTION TO TAKE DISCOVERY BY
OTHER THAN STENOGRAPHIC MEANS

The complaint in this action includes as defendants three individual federal employees: Richard Robbins, Assistant Solicitor for the National Park Service; and Stephen O'Neill and Andrew Keness, both officers with the United States Park Police. These defendants are apparently sued in their individual capacities under Bivens v. Six Unknown Named Asents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In addition to the Bivens claims, the plaintiffs seek preliminary and permanent injunctive relief.

At the January 6th hearing on the plaintiffs' request for a temporary restraining order, the Court set a hearing for January 12, 1995, and plaintiff William Thomas indicated his desire to take discovery. At that time, counsel for the government reminded the Court that the individually named defendants had a right to present and have reso lved any immunity claim prior to discovery or a hearing.

Within days of being served with the plaintiffs'

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amended complaint, a motion to dismiss[l] was filed on behalf of the three individual defendants.[2] The motion to dismiss asked that the putative Bivens claims asserted against defendants Robbins, O'Neill and Keness be dismissed (a) because the amended complaint does not meet the heightened pleading standard required in Bivens cases, (b) because Mr. Robbins cannot be held liable for alleged supervisory negligence, and (c) because all three of the defendants are entitled to qualified immunity as to the claims asserted against them. Although there is pending a motion to dismiss the Bivens claim against the individual defendants, plaintiff has now moved the Court to allow five hours of videotaped depositions. For the reasons set forth below, to permit discovery would deprive the defendants of their right to have their claims of qualified immunity resolved at the earliest possible stage in this litigation. Consequently, the Court should stay discovery pending resolution of the motion to dismiss.

The Supreme Court has firmly established the principle that discovery and trial should not be allowed in a Bivens case until the threshold immunity question has been resolved. See Harlow v. Fitzserald, 457 U.S. 800, 818 (1982). See also Fludd v. U.S. Secret Service, 771 F.2d. 549, 554 (D.C.Cir. 1985) (Court should assess whether material facts pertinent to qualified immunity

[1 After the defendants filed their motion to dismiss, and the plaintiffs filed a motion to reconsider the denial of the TRO, the Court cancelled the hearing.]

[2 That motion also seeks dismissal of all claims for money damages.]

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defense are in dispute and rule on motion for dismissal or summary judgment based on that defense before proceeding to afford parties opportunity to establish factual predicates for their contentions by discovery and trial).

The underlying rationale of this principle, as the precedents of our Court of Appeals and the Supreme Court have explained, is that the doctrine of official immunity refers to immunity from suit, and therefore from being subjected to procedures of litigation such as discovery, not simply to immunity from an adverse judgment. See Mitchell v. Forsvth, 472 U.S. 511, 526 (1985); Martin v. Metropolitan Police Department, 812 F.2d 1425, 1430 (D.C. Cir.), vacated in part, 817 F.2d 144 (D.C.Cir.), vacated part reinstated, 824 F.2d 1240 (D.C. Cir. 1987) (henceforth, "Martin"). As that Court expressed it, "Discovery is itself one of the burdens from which defendants are sheltered by the immunity doctrine." Martin, 812 F.2d at 1430.

Here, the plaintiffs have moved to take five hours of depositions -- but have failed even to indicate who they wish to depose. To the extent that the plaintiffs seek to take discovery from the defendants, this request should be denied. Moreover, although the Federal Rules allow for the recording of depositions by non-stenographic means, the Rules still require that "a deposition shall be conducted before an officer appointed or designated under Rule 28"[3] -- i.e., "an officer authorized to administer oaths by the laws of the United States or of the place

[3 Rule 30(b) (4), Fed.R.Civ.P.]

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where the examination is held, or before a person appointed by the Court ."[4]

To impose on a defendant asserting qualified immunity the burden of discovery prior to the resolution of the immunity issue is inconsistent with the above-governing precedent. Accordingly, the plaintiffs' motion to take videotaped depositions should be denied, and the defendants' motion for a protective order to stay discovery pending resolution of the motion to dismiss should be granted.


Respectfully submitted,

_____________________________
ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney

_____________________________
SALLY M. RIDER, D.C. BAR #436588
Assistant United States Attorney

OF COUNSEL:

RANDOLPH MYERS, Esq.
Office of the Solicitor

[4 Rule 28(a), Fed.R.Civ.P.]

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