United States District Court, D. Colorado
Y. Wang Magistrate Judge
before this court is Plaintiff Drew Miller's
(“Plaintiff” or “Dr. Miller”)
“Notification of Government Accountability Office
Contact and Request for Approval to Release All Documents on
this Case to GAO and Decision on IDA MSJ” (the
“Motion”), filed February 19, 2019. See
[#70]. The court considers the Motion pursuant to 28 U.S.C.
§ 636(c) and the Order of Reference for all purposes
dated December 27, 2017 [#14]. The court concludes that oral
argument will not materially assist in the resolution of this
matter. Accordingly, upon review of the Motion, Defendant
Institute For Defense Analyses' Response in opposition to
the Motion [#73], and the applicable case law, the court
hereby DENIES the Motion to the extent that
Plaintiff seeks to modify the Protective Order in this matter
to allow him to disclose documents produced by Defendant
Institute for Defense Analyses (“IDA”) to the
Government Accountability Office.
court has discussed the background of this case in prior
Orders, see [#34; #75], and, therefore, it will
limit its discussion herein to only the facts most relevant
to the pending Motion. Dr. Miller initiated this action on
October 6, 2017, asserting federal claims against IDA for:
False Claims Act retaliation (“Claim 1”), Defense
Contractor Whistleblower Protection Act retaliation
(“Claim 2”), and non-payment of earned wages
under the Fair Labor Standards Act (“FLSA”)
(“Claim 3”); as well as state law claims for:
wrongful discharge in violation of public policy
(“Claim 4”), termination for lawful off-duty
activity (“Claim 5”), and unlawful prevention of
an employee's political participation (“Claim
6”). See generally [#1]. The court granted
Defendant's Partial Motion to Dismiss and dismissed Claim
3, and Plaintiff did not seek leave to further amend Claim 3
despite an opportunity to do so. See [#34; #35].
court entered a Scheduling Order on February 7, 2018. [#20].
During a Status Conference held before the court on April 13,
2018, Defendant indicated its intent to seek a Protective
Order, and Dr. Miller objected to any Protective Order.
[#30]. The court ordered briefing, which followed.
See [#31; #32]. On July 2, 2018, the court granted
in part and denied in part IDA's Motion for Protective
Order. See [#36]. The court concluded that: (1)
IDA's status as a Federally Funded Research and
Development Center (“FFRDC”) did not, standing
alone, prohibit the issuance of a protective order; (2)
Plaintiff's desire to unilaterally share discovery in
this litigation to third parties did not defeat the issuance
of an appropriate protective order; and (3) IDA's
proposed Protective Order needed further refinement as to the
definitions of “proprietary and confidential” and
to the identification of those non-parties that could receive
and/or review confidential information. See
generally [id.]. Upon review of the
Parties' second proposed Protective Order [#39], the
court issued a Protective Order that defined
“proprietary” and “confidential” and
precluded the Parties from sharing or using such information
“for any purpose except the preparation and trial of
this case unless otherwise authorized by the disclosing
party or the court.” [#40 at 3 (emphasis in
then filed the instant Motion on February 19, 2019.
See [#70]. In it, Dr. Miller represents to the court
that the GAO contacted Plaintiff because it “is doing a
review of FFRDCs and emailed me with a request to talk to
their investigative team about the allegations in this
case.” [Id. at 1]. Dr. Miller seeks guidance
from the court about his ability to communicate with the GAO
about this litigation, and requests “the Court's
approval to communicate with GAO and provide all information
I have filed on this case.” [Id. at
court directed to IDA to respond to the Motion on or before
February 26, 2019, prohibited any replies, and set this
matter for a Telephonic Status Conference. See
[#71]. IDA opposes the requested relief, arguing that despite
Plaintiff's representations, it was he that initiated
contact with the GAO; that the GAO's communication with
Plaintiff does not necessarily seek disclosure of documents
filed in this litigation, rendering such a situation
speculative; and that Dr. Miller should not be able to flout
the Protective Order in this case by providing confidential
information to the GAO, especially since IDA is purportedly
working independently with the GAO, and thus any request for
documentation shall come from IDA. See [id.
at 1-3]. Having reviewed the Motion and Response, the court
concludes that the Motion is ripe for disposition prior to
the March 1 Status Conference, and therefore considers the
Parties' arguments below.
is “an instrumentality of the United States Government
independent of the executive departments.” 31 U.S.C.
§ 702(a). “Congress has consistently viewed the
Comptroller General as an officer of the Legislative
Branch.” Walker v. Cheney, 230 F.Supp.2d 51,
53 (D.D.C. 2002). Under the authorizing statute, the
Comptroller General is granted broad authority to carry out
investigations and evaluations for the benefit of Congress.
Walker, 230 F.Supp.2d at 53. To that end, the GAO
has its own investigative authority, including the power to
issue administrative subpoenas should an entity decline to
voluntarily comply with requests for documents by the GAO. 31
U.S.C. §§ 712, 716(c).
extent that Dr. Miller is seeking a court order with respect
to his first inquiry, i.e., “whether I have an
independent obligation to cooperate with the GAO's
inquiry, ” this court declines to pass on whether Dr.
Miller's participation in a separate GAO inquiry is
required or not. Dr. Miller has cited no authority, and this
court has found none independently, to suggest that it has
jurisdiction over or any role with advising Dr. Miller
regarding his participation in the GAO inquiry at this
juncture. Indeed, the doctrine of separation of powers
counsels against such a ruling, except to the extent it
implicates Dr. Miller's obligations in this action.
court now turns to this second issue, i.e., “whether
[the court] wants a Protective Order to apply to a federal
agency conducting an investigation of a federally funded
organization.” [#70 at 1]. Framed another way, this
court does maintain jurisdiction as to whether the Protective
Order entered by the court in this action should be modified
to permit Dr. Miller to disclose documents and information
produced by IDA and/or designated confidential under the
Protective Order to the GAO. To the extent that there are
public filings on the court's dockets, those materials
are open to all, and can be shared by Dr. Miller with the
GAO. But to the extent that Dr. Miller is “requesting
the Court's approval … to provide all information
I have filed on this case, ” including those documents
designated under the Protective Order or information drawn
from those documents, the court declines to do so. A party
has no right to make unrestricted disclosure of information
obtained through discovery. See Boulder Valley School
Dist. RE-2, 196 F.R.D. 382, 387 (D. Colo. 2000). If Dr.
Miller believes that certain materials have been improperly
designated under the Protective Order, the Protective Order
provides a mechanism by which he can seek relief after a
robust meet and confer with opposing counsel.
for the reasons set forth herein, IT ...