Freedom From Religion Foundation Inc. et al v. Mercer County Board of Education et al

REPLY

S.D.W. Va.March 15, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BLUEFIELD DIVISION FREEDOM FROM RELIGION § FOUNDATION, INC., et al., § § Plaintiffs, § § Civil Action No.: 1:17-cv-00642 v. § § Hon. David A. Faber MERCER COUNTY BOARD § OF EDUCATION, et al., § § Defendants. § DEFENDANTS’ REPLY IN SUPPORT OF STAY Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 1 of 9 PageID #: 711 1 District courts regularly grant stays of proceedings when a case has been remanded for further proceedings while a court. Indeed, in the primary case cited by Plaintiffs for the proposition that the court cannot issue a stay, the Eighth Circuit upheld a district court’s stay of proceedings pending certiorari review. See In re Stumes, 681 F.2d 524, 525 (8th Cir. 1982). The District Court, in other words, seems to have taken the view that it would be unreasonable to release petitioner, or to require that the State begin to try him again, before the Supreme Court has acted on the State's petition. Certainly this is not an unreasonable view, and we are not prepared to say that the District Court abused its discretion. Id. Plaintiffs’ reliance on various interpretations of 28 U.S.C. § 2101(f) are not applicable here because that subsection applies only to a “final judgment or decree,” not to a generic remand for further proceedings, such as the one issued by the Fourth Circuit in this case. Furthermore, Plaintiffs have not shown that any harm would result from a temporary stay pending Supreme Court review of Defendants’ writ of certiorari. Plaintiffs instead rely on a need for discovery generally, but this need would be unaffected by granting the temporary stay requested by Defendants.1 Discovery in this matter is likely to be mostly documentary, and Defendants have circulated a litigation hold letter to all relevant custodians. On the other hand, going forward would mean devoting the parties’ and court’s limited resources to issues that may be eliminated by the Supreme Court on review. As Defendants noted in their initial motion, the question of deference to a governmental body on issues of voluntary cessation is substantial and now subject to a circuit split. The Supreme Court and numerous circuits have stated that governments are entitled to deference in such matters. For purposes of planning, local governments need clarity on when they can 1The term “Defendants” herein refers herein refers to the Mercer County Board of Education, Mercer County Schools, and Mercer County Schools’ Superintendent Dr. Deborah Akers. Ms. Rebecca Peery, who has only appeared specially, does not join this motion, but the undersigned counsel understand that she does not oppose the relief sought. Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 2 of 9 PageID #: 712 2 eliminate challenged policies and programs to preempt litigation. The Fourth Circuit’s opinion brings uncertainty of the sort that has traditionally prompted Supreme Court review. A temporary stay is warranted. ANALYSIS Defendants appropriately sought a stay from this court. Where, as here, a case is remanded to the district court for further proceedings, district courts regularly grant stays pending resolution of Supreme Court review. See, e.g., Burns v. AAF-McQuay, Inc., 980 F. Supp. 175, 176 (W.D. Va. 1997) (“[Following remand from the Fourth Circuit], [t]his court stayed proceedings pending resolution of plaintiff’s certiorari petition.”);CSX Transp., Inc. v. Gilkison, No. 5:05CV202, 2011 U.S. Dist. LEXIS 120991, at *5 (N.D.W. Va. 2011) (“[Following remand to the district court,] this Court also ordered that discovery in this case be stayed pending the resolution of the defendants' petition for certiorari to the United States Supreme Court.”); Miller v. Carolinas Healthcare Sys., No. 3:12-CV-00314, 2015 U.S. Dist. LEXIS 88696, at *3 (May 15, 2015) (“Plaintiff sought and was granted a stay of the case during the pendency of his Certiorari Petition.”); Carlson v. GMC, No. 2:86-2674-1, 1991 U.S. Dist. LEXIS 22101, at *1 (D.S.C. Mar. 13, 1991) (“[Following remand by the Fourth Circuit], the defendant wanted to stay discovery while it sought certiorari to the Supreme Court. Although the plaintiffs wanted to move ahead with discovery, this court stayed discovery.”).2 2 See also, e.g., Bank of Am., N.A. v. Willows Homeowners Ass’n, No. 2:16-cv-00678, 2017 U.S. Dist. 55868, at *5 (D. Nev. Apr. 12, 2017) (holding that “a stay pending the disposition of the certiorari proceedings will simplify the proceedings and promote the efficient use of the parties’ and the court’s resources”); Jackson v. Gordon, No. 3:03-CV-1725, 2014 U.S. Dist. LEXIS 22562, at *3 (M.D. Pa. Feb. 24, 2014) (granting stay of proceedings pending writ of certiorari following remand from the Third Circuit); Citibank, N.A. v. Stok & Assocs., P.A., No. 09-20770- MC-SEITZ, 2010 U.S. Dist. LEXIS 153436, at *3 & n.1 (S.D. Fla. Dec. 15, 2010 (granting stay pending resolution writ of certiorari and noting §2101(f) does not apply where the appellate court did not enter a final judgment); Peaceable Plant, Inc. v. Ty, Inc., No. 01-C07350, 2004 U.S. Dist. Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 3 of 9 PageID #: 713 3 Plaintiffs’ suggestion that Defendants were required to seek a stay from the Fourth Circuit is incorrect because the Fourth Circuit has not entered a “final judgment or decree.” 28 U.S.C. § 2101(f) (“In any case in which the final judgment or decree of any court is subject to review…” (emphasis added)); see also Richmond & D.R. Co. v. Thouron, 134 U.S. 45, 46 (1890) (“an order by the Circuit Court remanding a cause was not such a final judgment or decree”); Citibank, N.A., 2010 U.S. Dist. LEXIS 15346, at *3 n.1 (noting that §2101(f) is not applicable where appellate court did not enter a final judgment). Plaintiffs’ cited authority only accentuates the inapplicability of subsection (f) to this matter. For example, in In re Stumes, the primary case cited by Plaintiff, the Eighth Circuit upheld the district court’s issuance of a stay because it was “not unreasonable.” In re Stumes, 681 F.2d at 525. Although the Eighth Circuit questioned the district court’s reliance on § 2101(f) in granting a stay, it did not question the district court’s power to grant a stay pending Supreme Court review. Other cases relied on by Plaintiffs are equally inapposite because, unlike here, the circuit courts had entered final judgments. See William A. Graham Co. v. Haughey, 794 F. Supp. 2d 566, 567 (E.D. Pa. 2011) (“the Court of Appeals entered a judgment affirming the judgment of this court in favor of Graham and against the defendants in the amount of $23,542,028 plus postjudgment interest”); Brinkman v. Dep't of Corr., 857 F. Supp. 775, 776 (D. Kan. 1994) ( “The Tenth Circuit filed on April 11, 1994, its opinion affirming the district court on all issues . . . [and] entered judgment the same day.”); Studiengesellschaft Kohle, mbH v. Novamont Corp., 578 F. Supp. 78, 79 (S.D.N.Y. 1983) (“The judgment sought to be reviewed in the Supreme Court is the judgment of the Court of Appeals”). LEXIS 13006 (N.D. Ill. Jul 13, 2004) (granting stay of proceedings pending Supreme Court review after remand from Seventh Circuit). Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 4 of 9 PageID #: 714 4 Likewise, the court in United States v. Lentz recognized that the Fourth Circuit’s remand was arguably not a “final judgment or decree.” 352 F. Supp. 2d 718, 726 n.18 (E.D. Va. 2005). Instead, the court denied the stay because he had previously requested a stay from the Fourth Circuit, which was denied. Id. at 727 (“to grant the stay requested would permit Lentz to obtain in the district court that which the Fourth Circuit explicitly refused”). Here, the Fourth Circuit has not refused a stay, but rather expressly authorized this court to reach the ultimate issue of mootness. See Deal v. Mercer Cnty. Bd. of Educ., 911 F.3d 183, 192 (4th Cir. 2017) (“Of course, this does not prevent the district court from addressing mootness in the future if presented with that issue.”). The equities favor issuing a stay in this matter Defendants ask only for a temporary stay pending their appeal to the Supreme Court. This type of stay is commonly granted. See note 2 and accompanying text, supra. This stay would preserve the limited resources of the parties and the court by ensuring discovery is being conducted only on live, justiciable issues. Defendants’ writ of certiorari presents a substantial question to the Supreme Court Although Supreme Court review is discretionary, the question presented in this case is substantial. As noted in Plaintiff’s original memorandum in support of its request, the Fourth Circuit’s opinion creates a different mootness standard for government policy than other federal circuits. See e.g., Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (“[C]ourts are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude, mooting cases that might have been allowed to proceed had the defendant not been a public entity.”); Yarls v. Bunton, 905 F.3d 905, 911 (5th Cir. 2018) (“[W]ithout evidence to the contrary, we assume that formally announced changes to official Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 5 of 9 PageID #: 715 5 government policy are not mere litigation posturing.”); Marcavage v. Nat’l Park Serv., 666 F.3d 856, 861-862 (3d Cir. 2012) (“This presumption [that government officials act in good faith] and the changes to the Park Service’s regulations . . . make it unreasonable to expect that future constitutional violations will occur.”); see also Nelson v. Miller, 570 F.3d 868, 882 (7th Cir. 2009) (finding a case moot where the government changed its behavior “and there is no evidence in the record” that it would resume its old behavior). For purposes of planning and public stewardship, school boards and other government bodies need clarity on when they can preempt litigation by simply eliminating a challenged program or policy. Here, the Mercer County School Board terminated the challenged curriculum and did not renew the contracts of any of the teachers associated with the program. Despite the school board’s actions terminating the program, the Fourth Circuit nonetheless held that the school board’s actions did not satisfy the “heavy burden” of voluntary cessation. The Fourth Circuit’s opinion cannot be reconciled with the above-cited cases holding that announced changes to official policy are granted deference. The Fourth Circuit’s opinion therefore introduces the very type of legal uncertainty that the Supreme Court typically attempts to remedy. Plaintiffs have not identified any recognizable or likely harm from issuing a stay Plaintiffs don’t claim any irreparable harm from a stay, instead argue that a delay in discovery is not merited. Notably, the actual harms cited by Defendants assume a permanent, not temporary, stay in discovery. A permanent stay could only result from the Supreme Court granting certiorari and agreeing with this court that the case is moot. Moreover, if the Court denies Defendants’ writ, there is no reason to believe that Plaintiffs’ access to evidence would be unduly prejudiced by a temporary stay. Any relevant Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 6 of 9 PageID #: 716 6 documentary evidence in Defendants’ possession are subject to a litigation hold notice that counsel has issued to all relevant custodians. Due to this notice, the risk that relevant documents would be lost during a temporary stay is negligible. Moreover, because the main issue in this suit is a school curriculum, the most relevant evidence is likely to be in the form of documents. Additionally, Plaintiffs give no reason to believe that witnesses’ memories will be materially impaired as to relevant events by a temporary stay. This is especially so in this case, where Plaintiffs’ waited approximately two years after Roe left Mercer County Schools to file suit.3 An additional few months to bring clarity to the legal issues in this case will not deny Plaintiffs access to evidence. CONCLUSION This court unquestionably has the power to stay proceedings while the parties seek clarity from the Supreme Court on the legal doctrines at issue. A temporary stay will not prejudice any party, whereas proceeding to discovery on issues that may be eliminated by Supreme Court review would waste both the Court’s and the parties’ limited resources. A stay is therefore warranted. MERCER COUNTY BOARD OF EDUCATION; MERCER COUNTY SCHOOLS; DEBORAH S. AKERS, in her individual capacity. /s/ Kermit J. Moore Kermit J. Moore (WV State Bar No. 2611) W. Blake Belcher (WV State Bar No. 12212) Brewster, Morhous, Cameron, Caruth, 3 Indeed, Ms. Deal and Jessica Roe were not original plaintiffs in this matter and were added only in Plaintiffs’ Amended Complaint. Compare Doc. 1 to Doc. 21. Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 7 of 9 PageID #: 717 7 Moore, Kersey & Stafford, PLLC 418 Bland Street Post Office Box 529 Bluefield, West Virginia 24701 (304) 325-9177 (304) 324-0362 fax Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 8 of 9 PageID #: 718 8 CERTIFICATE OF SERVICE I, Kermit J. Moore, counsel for Defendants, hereby certify that on the 15th day of March, 2019, I electronically filed the preceding DEFENDANTS’ REPLY IN SUPPORT OF STAY with the Clerk of this Court using the CM/ECF system, which, in turn, will send notification of such filing to the following CM/ECF participants, counsel of record: Marcus B. Schneider, Esquire Steele Schneider 428 Forbes Avenue, Suite 700 Pittsburgh, Pennsylvania 15219 Kristina T. Whiteaker, Esquire David L. Grubb, Esquire The Grubb Law Group 1114 Kanawha Boulevard, East Charleston, West Virginia 25301 Patrick C. Elliott, Esquire Christopher Line, Esquire Freedom From Religion Foundation 10 North Henry Street Madison, Wisconsin 53703 Hiram S. Sasser, III, Esquire Jeremiah G. Dys, Esquire First Liberty Institute 2001 West Plano Parkway, Suite 1600 Plano, Texas 75075 David R. Dorey, Esquire O’Melveny & Myers LLP 1625 Eye Street, N.W. Washington, D.C. 20006 /s/ Kermit J. Moore Kermit J. Moore Case 1:17-cv-00642 Document 75 Filed 03/15/19 Page 9 of 9 PageID #: 719