UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.,
             Plaintiffs,

       v.                       Civil Action No. 88-3130 JHG

RONALD WILSON REAGAN, et al..
             Defendants.

FEDERAL DEFENDANTS' MOTION
FOR PROTECTIVE ORDER AND OPPOSITION
TO PLAINTIFFS' MOTION TO COMPEL DISCOVERY

The federal defendants, hereby move this Court, pursuant to Rule 26 of the Federal Rules of Civil Procedure, for a Protective Order preventing all discovery in this matter until after the Court rules on the federal defendants' pending Motion to Dismiss. That motion asserts, inter alia, that the individual federal defendants are each entitled to immunity from suit. It also asserts several other bases for dismissal which, if granted, would be dispositive of plaintiffs' claims. The primary basis for this motion is that in accordance with Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and Fludd v. U.S. Secret Service, 771 F.2d 549, 554 (D.C. Cir. 1985), no discovery should be permitted until the dispositive motion is resolved.

In support of this motion, the Court is respectfully referred to the attached memorandum of points and authorities. The attached memorandum also opposes plaintiffs' Motion to Compel Discovery.

Respectfully submitted,

//s// Jay B. Stephens
JAY B. STEPHENS DC Bar #177840
United States Attorney

/s/ John D. Bates
JOHN D. BATES DC Bar #934927.
Assistant United States Attorney
MICHAEL F.. MARTINEZ, DC Bar #347310
Assistant United States Attorney


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.,
             Plaintiffs,

       v.                       Civil Action No. 88-3130 JHG

RONALD WILSON REAGAN, et al..
             Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF THE FEDERAL DEFENDANTS' MOTION
FOR PROTECTIVE ORDER AND OPPOSITION TO
PLAINTIFFS' MOTION TO COMPEL DISCOVERY

Introduction

Plaintiffs filed this action against several agencies of the United States of America and numerous federal officials in their individual capacities. 1/ The federal defendants responded by filing, in December 1988, a Motion to Dismiss asserting, inter alia, the entitlement to official immunity by each individual federal defendant. Several other bases for dismissal were also advanced. That motion has been fully briefed and awaiting decision by this Court since January 1989.

On September 26, 1989, plaintiff William Thomas wrote a letter to Assistant United States Attorney ("AUSA") Michael L. Martinez asking that voluminous amounts of discovery materials be provided to him. 2/ On October 3, 1989, AUSA John D. Bates responded by letter, declining to provide the requested discovery. AUSA Bates explained that discovery would not be provided because: (1) a fully dispositive motion is pending; (2) the motion asserts immunity defenses which must be resolved prior to discovery; and (3) Mr. Thomas already possesses most of the documents he requests, having obtained them in prior lawsuits. 3/ on October 18, 1989, plaintiffs filed their Motion to Compel.
____________________

1/ Plaintiffs also sued the District of Columbia and one D.C. official

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As we explain below, because there is a dispositive motion pending which asserts, inter alia, immunity defenses, a Protective Order should issue. Such an Order is all the more compelling in this case because plaintiffs received most of the requested discovery in their earlier, now dismissed civil actions.

Argument

This Court has broad authority to regulate discovery and "should not hesitate to exercise appropriate control over the discovery process." Herbert v. Lando, 441 U.S. 153, 177 (1979); see Fed. R. Civ. P. 26(c). It is particularly appropriate to stay discovery pending the outcome of dispositive motions. See Brennan v. Local Union No. 639, International Brotherhood of Teamsters, 494 F.2d 1092, 1100 (D.C. Cir. 1974), cert denied, 429 U.S. 1123 (1977). When "the determination of a preliminary question may dispose of the entire suit, applications for discovery may properly be deferred until the determination of such questions." O'Brien v. Avco Corp., 309 F. Supp. 703, 705 (S.D.N.Y. 1969). A Protective Order is also warranted in a case like this where plaintiffs are simply attempting, for the most part, to relitigate issues previously dismissed and rejected by this Court.
________________________

2/ Plaintiffs did not file this letter or a corresponding discovery request with the Court. A copy of Mr. Thomas' letter is attached hereto as Exhibit 1 for the Court's convenience.

3/ AUSA Bates' letter is attached hereto as Exhibit 2. A letter was sent rather than moving at that time for a Protective Order because plaintiffs had not filed their discovery requests. The federal defendants also hoped to resolve the issue without having to involve the Court needlessly in this issue.

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A deferral of discovery similarly is particularly warranted where an action raises claims against individually sued federal defendants. In the context of tort actions against federal officials, the Supreme Court has frequently admonished the lower federal courts not to perpetuate lawsuits otherwise crying out for dismissal:

Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Butz v. Economou, 439 U.S. 478, 507-08 (1978); accord, Harlow v. Fitzgerald, 457 U.S. 800, 808, 817-18 (1982).

Where, as here, dispositive motions raise the threshold question of the availability of official immunity, a stay of discovery is virtually mandated. The Supreme Court has thus firmly established that where immunity from suit in an individual capacity is involved, all proceedings must await resolution of that issue until th[e] threshold immunity question is resolved, discovery should not be allowed. Harlow v. Fitzgerald, supra, 457 U.S. at 818.

The rationale for this rule is clear:

The [qualified immunity] entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (l985)(emphasis in original).

Moreover, in Fludd v. U.S. Secret Service, 771 F.2d 549 (D.C. Cir. 1985), our Court of Appeals reviewed the Harlow Court's admonishment that discovery should not be permitted until immunity is resolved and then outlined the proper procedure in such a case.

Thus, as outlined in our earlier order, we think the proper procedure for the district court to follow at this juncture is first to decide whether there are any material facts in dispute that are necessary to its legal conclusion that qualified immunity lies. If no material facts are in dispute and on the basis of the undisputed facts it can make its decision on qualified immunity, it should do so. Likewise, if material facts are in dispute, but looking at those facts "in the light most favorable to [Fludd]..., drawing all inferences most favorable to that party," id., it can still decide that immunity lies it may grant summary judgment for the defendants. But if, considering the undisputed facts and/or the disputed facts in the light most favorable to Fludd, it cannot find, as a matter of law, that defendants

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violated no clearly established constitutional right of the plaintiff, summary judgment on the issue of qualified immunity is inappropriate, and the parties should be afforded the opportunity to establish the factual predicates for their contentions by discovery and trial. Id. at 554. That is precisely the procedure the federal defendants contemplate and have urged in this case. Until that process has run its course and this Court has decided the immunity defenses, no discovery should be permitted.

Finally, a Protective Order is appropriate in this case because William Thomas previously has been provided with most of the documents he now seeks. As we detailed in our December 21, 1988 Motion to Dismiss at 5-6, Judge Oberdorfer, after substantially narrowing the issues, permitted some discovery in the earlier Thomas case, C.A. No. 84-3553-LFO. In the course of that discovery Thomas was provided with voluminous documents, reports, photographs, tapes, etc., relevant to his activities in Lafayette Park and around the White House and covering the period from 1981-1986. Plaintiffs now seek those materials anew. Plainly defendants should not again be forced to go through the time-consuming and tedious exercise of pulling these materials together in a case so clearly devoid of merit.

Conclusion

For the foregoing reasons, the federal defendants' Motion for Protective Order should be granted, staying all discovery in this case until the Court rules on the pending dispositlve motion. Similarly, the plaintiffs' Motion to Compel should be denied. A proposed Order is attached.

Respectfully submitted,

//s// Jay B. Stephens
JAY B. STEPHENS, DC Bar #177840
United States Attorney

//s// John D. Bates
JOHN D. BATES, DC Bar #934927
Assistant United States Attorney

//s// Michael L. Martinez
MICHAEL L. MARTINEZ, DC Bar #347310
Assistant United States Attorneys

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this 25th day of October, 1989, I sent one copy of the foregoing Federal Defendants' Motion for Protective Order and Opposition to Plaintiffs' Motion to Compel via first class U.S. mail to

WILLIAM THOMAS
1440 N Street, NW.
#410
Washington, D.C. 20005

ARTHUR BURGER
Assistant Corporation Counsel
Third Floor, District Building
1350 Pennsylvania Avenue, NW.
Washington, D.C. 20004

//s// Michael L. Martinez

MICHAEL L. MARTINEZ, DC Bar #347310
Assistant United States Attorney
Judiciary Center Building
555 4th Street, NW. Room 4810
Washington, D.C. 20001
(202) 272-9195