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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

BRUCE JOINER, )
)
Plaintiff, )
)
v. )
) Case No. 3:17-cv-02692
UNITED STATES OF AMERICA, )
)
Defendant. )
____________________________________)

REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT UNITED STATES OF

AMERICA’S MOTION FOR RELIEF FROM ORDER REQUIRING A SCHEDULING
CONFERENCE AND REPORT AND FOR A STAY OF DISCOVERY

The United States filed a motion for relief from this Court’s order requiring a scheduling

conference and report and for a stay of discovery (Dkt. # 14), which Plaintiff opposes (Dkt. # 19,

hereinafter “Pls. Opp.”). For the reasons set forth in the United States’ motion and in this reply,

the motion should be granted.

ARGUMENT

Plaintiff argues that the burden is on the Government to demonstrate good cause for

staying discovery while a motion to dismiss is pending. However, Plaintiff cites to inapposite

cases, as they involved motions to dismiss pursuant to Rule 12(b)(6), not sovereign immunity.

Pls. Opp. at 2-5. By contrast, the United States moved to dismiss the entire action pursuant to

Rule 12(b)(1) for lack of subject matter jurisdiction (with grounds for dismissal pursuant to Rule

12(b)(6) argued in the alternative) on the ground that the United States has sovereign immunity

for Plaintiff’s claims. Because sovereign immunity has been raised as a threshold legal issue, it

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must be decided before the case proceeds any further. See cases cited at Dkt. # 15 at 5-6.

Even applying the standard espoused by Plaintiff, discovery still should not proceed due

to the burden it would place on the Government. As noted in the United States’ motion, the

discovery likely to be sought includes sensitive and classified information, and Plaintiff did not

dispute this. The burden of going through the painstaking process of reviewing such materials in

response to a discovery request is, quite frankly, self-evident. Placing such a burden on the FBI,

which already bears a heavy workload dealing with discovery in numerous legal actions

throughout the country as well as Congressional requests, is the very sort of intrusion into

sovereign immunity that should be avoided until the threshold legal issues are decided.

Plaintiff’s argument that discovery should proceed notwithstanding the pending issue of

sovereign immunity also misses the mark. In particular, Plaintiff’s take on Freeman v. United

States, 556 F.3d 326 (5th Cir. 2009) – to wit, that it involved a situation where a plaintiff sought

discovery after the case had been dismissed for lack of subject matter jurisdiction – is simply

wrong. Pl. Opp. at 7. In Freeman, like here, the plaintiff argued to the district court that he

should be allowed to take discovery while a motion to dismiss asserting sovereign immunity was

pending. The district court rejected the plaintiff’s argument. The Fifth Circuit upheld this

decision, based on the well-founded principle that discovery should not proceed if sovereign

immunity has been asserted because “immunity is intended to shield the defendant from the

burdens of defending the suit, including the burdens of discovery.” Id. at 342. The Fifth Circuit

did recognize, however, that a plaintiff may be able to seek discovery narrowly limited to the

issue of immunity, so long as the plaintiff carries his or her burden of demonstrating the need for

such discovery to prove that the claim is not barred by sovereign immunity. Id. at 342-43.

Plaintiff fails to appreciate this distinction between narrowly limited jurisdictional discovery and
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full-blown discovery, and makes no attempt in his response to explain what discovery, if any, is

necessary to resolve the issue of sovereign immunity.

Insofar as Plaintiff argues in his opposition to the United States’ motion to dismiss (Dkt.

# 18 at 4-5) for discovery on certain issues he contends to be relevant to the discretionary

function exception, the Court should reject this request for discovery for the reasons set forth in

the United States’ reply. See Dkt. # 20 at 9-10.

In sum, because the issue of whether the United States retains sovereign immunity from

Plaintiff’s claims is pending before this Court, and because that immunity would be lost if the

United States were subjected to discovery during the pendency of its motion to dismiss, a stay of

discovery should be granted until the motion is decided.

CONCLUSION

For the foregoing reasons, this Court should relieve the parties from the reporting

requirements set forth in the Court’s order dated January 16, 2018 (Dkt. # 12), abstain from

entering a scheduling order, and issue a stay of discovery while the United States’ motion to

dismiss is pending.

Dated: March 1, 2018 Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General

JAMES G. TOUHEY, JR.

Director, Torts Branch
Civil Division

RUPERT M. MITSCH
Assistant Director, Torts Branch
Civil Division

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/s/ Phil MacWilliams

PHILIP D. MACWILLIAMS
Trial Attorney
E-mail: phil.macwilliams@usdoj.gov
U.S. Department of Justice
Civil Division, Torts Branch
175 N Street, NE
Room 11-1330
Washington, DC 20530
Telephone: (202) 616-4285
Facsimile: (202) 616-5200
Attorneys for the United States of America

CERTIFICATE OF SERVICE

I hereby certify that on March 1, 2018, I caused to be served upon the following counsel

a true and correct copy of the United States’ Reply to Opposition to Motion For Relief From

Scheduling Report and For A Stay of Discovery and the accompanying memorandum in support
via ECF filing:
Trenton Roberts
Roberts & Willie, PLLC
2000 S. Dairy Ashford, Suite 390
Houston, Texas 77077
Phone: (832) 328-7345
Email: trenton@robertsandwillie.com
Attorney for Plaintiff
/s/ Phil MacWilliams
PHILIP D. MACWILLIAMS

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