Federal Defendants' Motion for Protective Order — Wall v. CDC

Summary

Federal Defendants' Short-Form Motion for a Protective Order in Lucas Wall v. Centers for Disease Control and Prevention, et al., Case No. 6:21-cv-975-PGB-DCI, Document 150, United States District Court, Middle District of Florida, Orlando Division, filed 09/22/21. The motion states that Plaintiff has emailed Federal Defendants five sets of discovery requests and asks for a protective order confirming that there is no discovery in this Administrative Procedure Act (APA) case. In the alternative, it asks the Court to stay all discovery pending resolution of the parties' fully-briefed dispositive motions. The Local Rule 3.01(g) certification states that Plaintiff opposes the requests but does not oppose tolling the Federal Defendants' discovery obligations.

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Case 6:21-cv-00975-PGB-DCI Document 150 Filed 09/22/21 Page 1 of 6 PageID 4842




                         UNITED STATES DISTRICT COURT
                          MIDDLE DISTRICT OF FLORIDA
                              ORLANDO DIVISION


  LUCAS WALL,

                      Plaintiff,

            v.                                       Case No. 6:21-cv-975-PGB-DCI

  CENTERS FOR DISEASE
  CONTROL AND PREVENTION,
  et al.,

                      Defendants.


                     FEDERAL DEFENDANTS’ SHORT-FORM1
                      MOTION FOR A PROTECTIVE ORDER

                                              BRIAN M. BOYNTON
                                              Acting Assistant Attorney General
                                              KARIN HOPPMANN
                                              Acting United States Attorney
                                              ERIC B. BECKENHAUER
                                              Assistant Branch Director
                                              MARCIA K. SOWLES
                                               Senior Trial Counsel
                                              STEPHEN M. PEZZI
                                               Trial Attorney
                                              United States Department of Justice
                                              Civil Division, Federal Programs Branch
                                              ADAM R. SMART
                                              Assistant United States Attorney
                                              Counsel for the Federal Defendants

        1
          Pursuant to the Court’s standing order on discovery motions, ECF No. 34, the body of this
 motion is limited to 500 words. Federal Defendants stand ready to provide further briefing if
 necessary.
Case 6:21-cv-00975-PGB-DCI Document 150 Filed 09/22/21 Page 2 of 6 PageID 4843




       Despite previously acknowledging that this is a record-review case, Plaintiff has

 emailed Federal Defendants five sets of discovery requests. See Exs. 1-5. Federal

 Defendants thus respectfully request a protective order confirming that there is no

 discovery in this Administrative Procedure Act (APA) case. In the alternative, the

 Court should stay all discovery pending resolution of the parties’ fully-briefed

 dispositive motions. Federal Defendants also respectfully request a temporary stay of

 all discovery pending resolution of this motion.

                                     ARGUMENT

 I.    Under settled principles of APA record review, no discovery in this case is
       necessary or appropriate.

       As Plaintiff himself has recognized, this is “an action for review on an

 administrative record[.]” ECF No. 131; see also ECF No. 143. Accordingly, “[t]he

 district court may order discovery beyond the administrative record only where there

 is ‘a strong showing of bad faith or improper behavior.’” Marllantas, Inc. v. Rodriguez,

 806 F. App’x 864, 867 (11th Cir. 2020) (quoting Dep’t of Commerce v. New York, 139 S.

 Ct. 2551, 2574 (2019)). Plaintiff has not made (and cannot make) that showing. See

Dep’t of Commerce, 139 S. Ct. at 2573.

       Plaintiff cannot evade       record-review principles merely by         including

constitutional claims. See 5 U.S.C. § 706(2)(B); Almaklani v. Trump, 444 F. Supp. 3d

425, 431-34 (E.D.N.Y. 2020). Regardless, Plaintiff has not focused his requests on his

constitutional claims, and all of his claims turn on questions of law, not fact.



                                            1
Case 6:21-cv-00975-PGB-DCI Document 150 Filed 09/22/21 Page 3 of 6 PageID 4844




 II.   In the alternative, all discovery should be stayed pending resolution of the
       parties’ fully-briefed dispositive motions.

       Even if this were not an APA case, a “preliminary peek,” McCabe v. Foley, 233

 F.R.D. 683, 685 (M.D. Fla. 2006), at Federal Defendants’ dispositive motion confirms

 that it is likely to be granted. The Court lacks jurisdiction over many of Plaintiff’s

 claims.   See 49 U.S.C. § 46110.      And Plaintiff cannot overcome the deferential

 standards of review in challenging the CDC’s reasonable public-health judgments.

 The motion is particularly straightforward with respect to the claims on which Plaintiff

has focused his discovery requests (which mostly target DOT, TSA, and FAA, despite

clear jurisdictional problems). And Plaintiffs’ proposed fishing expedition across the

Executive Branch (including discovery of non-parties like the National Security

Council) is particularly inappropriate, at least until the Court considers Federal

Defendants’ threshold arguments. See In re United States, 138 S. Ct. 443, 445 (2017).

Finally, “the high respect that is owed to the office of the Chief Executive . . . is a

matter that should inform the conduct of the entire proceeding, including the timing

and scope of discovery.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 385 (2004).

III.   Any discovery obligations should be stayed pending resolution of this motion
       for a protective order.

       Plaintiff seems to believe that the deadline to respond to his first set of requests

is September 27, 2021. Federal Defendants disagree, see Fed. R. Civ. P. 26(d)(2)(B),

34(b)(2)(A), but, regardless, out of an abundance of caution, respectfully request that

the Court temporarily stay any discovery pending resolution of this motion.



                                            2
Case 6:21-cv-00975-PGB-DCI Document 150 Filed 09/22/21 Page 4 of 6 PageID 4845




                      LOCAL RULE 3.01(g) CERTIFICATION

        Pursuant to Local Rule 3.01(g), on September 21st and 22nd, 2021, counsel for

 the Federal Defendants conferred with all other parties (or their counsel) by email and

 by telephone. Counsel for Defendants GOAA and LYNX each reported that they do

 not oppose this motion. After discussing the matter via email and over the phone,

 Plaintiff reported his position as follows:

       “1.    Plaintiff opposes the Federal Defendants’ request that the Court prohibit

 all discovery from them in this case. Although the government has filed a lengthy

 administrative record, there are nonetheless important documents held by its

 defendant agencies that are necessary for me to discover to prove certain counts of the

 Complaint whose issues go beyond the administrative record (e.g. Counts 7, 11, 14,

 and 15).

       2.     Plaintiff opposes the Federal Defendants’ alternative request that the

 Court stay discovery against them pending rulings on the three dispositive motions

 that have been fully briefed. The discovery requests I’ve made pertain to causes of

 action that I have not yet moved for summary judgment because, pending discovery,

 there exists a genuine dispute over material facts. While the Court deliberates on the

 three fully briefed dispositive motions, plaintiff maintains it is imperative discovery

 proceed.

       3.     As a courtesy to the Federal Defendants, plaintiff does not oppose their

 request to toll their obligations to timely respond to discovery requests I have served



                                               3
Case 6:21-cv-00975-PGB-DCI Document 150 Filed 09/22/21 Page 5 of 6 PageID 4846




 from today until the Court’s ruling on this motion or 10 days after the date my

 opposition is filed, whichever comes first.”

       Dated: September 22, 2021                Respectfully submitted,

                                                BRIAN M. BOYNTON
                                                Acting Assistant Attorney General

                                                KARIN HOPPMANN
                                                Acting United States Attorney

                                                ERIC B. BECKENHAUER
                                                Assistant Branch Director

                                           By: /s/ Stephen M. Pezzi
                                               MARCIA K. SOWLES
                                                 Senior Trial Counsel
                                               STEPHEN M. PEZZI
                                                 Trial Attorney
                                               United States Department of Justice
                                               Civil Division
                                               Federal Programs Branch
                                               1100 L Street NW
                                               Washington, DC 20005
                                               Telephone: 202-305-8576
                                               Email: stephen.pezzi@usdoj.gov

                                                ADAM R. SMART
                                                Assistant United States Attorney
                                                USA No. 195
                                                400 W. Washington Street, Suite 3100
                                                Orlando, Florida 32801
                                                Telephone: (407) 648-7500
                                                Facsimile: (407) 648-7588
                                                Email: adam.smart@usdoj.gov

                                                Counsel for the Federal Defendants




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Case 6:21-cv-00975-PGB-DCI Document 150 Filed 09/22/21 Page 6 of 6 PageID 4847




                           CERTIFICATE OF SERVICE

       Although Plaintiff is proceeding pro se, he has been authorized by the Court to

 use the CM/ECF system. ECF No. 14. Accordingly, Plaintiff will receive service of

 this filing through the CM/ECF system.



                                       /s/Stephen M. Pezzi
                                       STEPHEN M. PEZZI
                                       Trial Attorney
                                       United States Department of Justice




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