United States District Court, D. Colorado
ORDER
Nina
Y. Wang, United States Magistrate Judge.
This
matter comes before the court on two motions filed today, May
2, 2019, by Defendant Institute for Defense Analyses
(“Defendant” or “IDA”):
(1) Motion for Leave to File Under Restriction Exhibits to
Emergency Motion to Enforce Protective Order and Request for
Forthwith Hearing (the “Motion to Restrict”),
[#83]; and
(2) Emergency Motion to Enforce Protective Order and Request
For Forthwith Hearing (the “Emergency Motion”),
[#84].
This
civil action was referred to the undersigned Magistrate Judge
to preside over fully for all purposes pursuant to 28 U.S.C.
§ 636(c) and the Order of Reference dated December 27,
2017 [#14]. Upon review of the Motions and applicable law,
the court hereby ORDERS the Parties to
address the issue of the court's jurisdiction over the
Emergency Motion no later than May 9, 2019, and
GRANTS the Motion to Restrict.
BACKGROUND
The
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].
The
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
original)].
On
February 26, 2019, the court entered a Memorandum Opinion and
Order granting Defendant's Motion for Summary Judgment
and dismissing Plaintiff's claims with prejudice.
See [#75]. That same day, the court denied
Plaintiff's Notification of Government Accountability
Office Contact and Request for Approval to Release All
Documents on This Case to GAO and Decision on IDA MSJ [#70].
See [#76]. Final Judgment entered in favor of
Defendant and against Plaintiff on February 28, 2019, [#77],
and the case terminated accordingly. Dr. Miller appealed the
court's Final Judgment to the United States Court of
Appeals for the Tenth Circuit (“Tenth Circuit”)
on March 25, 2019. See [#78]. The Clerk of the Court
certified to the Tenth Circuit that the record was complete
on April 16, 2019. See [#81].
IDA
filed the instant Motions today, May 2, 2019. See
[#83; #84]. The Motion to Restrict seeks leave to restrict
several documents filed as exhibits to the Emergency Motion,
namely, a report compiled by Dr. Miller that quotes and
intends to use as exhibits documents that were deemed
confidential under the Protective Order entered in this
matter. See [#83]. The Emergency Motion seeks an
Order from the court enforcing the terms of the Protective
Order, including the threat of contempt, to prohibit Dr.
Miller from releasing his report “to the GAO FraudNET,
whistleblower and government watchdog groups, Professional
Services Council, and some IDA Board Members[.]” [#84
at 4]. Dr. Miller has not responded to the Motions, but due
to the exigent circumstances articulated by Defendant, this
court finds it to be appropriate to address both motions at
this time. See D.C.COLO.LCivR 7.1(d); D.C.COLO.LCivR
7.2(d) (“Absent exigent circumstances, no ruling on a
motion to restrict shall be made until the time for objection
has passed.”).
ANALYSIS
It is
axiomatic that “a federal district court and a court of
appeals should not attempt to assert jurisdiction over a case
simultaneously, ” that is, “[t]he filing of a
notice of appeal is an event of jurisdictional
significance-it confers jurisdiction on the court of appeals
and divests the district court of its control over those
aspects of the case involved in the appeal.”
Stewart v. Donges, 915 F.2d 572, 574 (10th Cir.
1990) (internal quotation marks omitted); see also Smith
v. Phillips, 881 F.2d 902, n.5 (10th Cir. 1989)
(“We also note that the December 21, 1988, notice of
appeal of summary judgment in favor of Hatch divested the
district court of jurisdiction.”). Indeed, any
subsequent action by the district court following a notice of
appeal is null and void. See Riggins v. City of
Louisville, No. CIV.A 06-CV-02261-WYD, 2008 WL 4293652,
at *1 (D. Colo. Sept. 16, 2008) (overruling the magistrate
judge's Order on a motion for protective order given the
interlocutory appeal before the Tenth Circuit, because the
motion for protective order was not a tangential or
ministerial matter to the appeal). Only for matters
considered peripheral or collateral, such as attorney's
fees, see Howard v. Mail-Well Envelope Co., 150 F.3d
1227, 1229 (10th Cir. 1998), or for “performing certain
ministerial functions in aid of the appeal, such as
correcting clerical mistakes in the record, approving appeal
bonds, and issuing stays or injunctions pending the appeal,
” Stewart, 915 F.2d at 575 n.3, may a district
court retain jurisdiction pending a general appeal.
Here,
it is not clear to this court that it has jurisdiction to
adjudicate the Emergency Motion. At the heart of Dr.
Miller's Complaint were his allegations that he was
retaliated against based on his whistleblowing activities,
and the Emergency Motion involves Dr. Miller's further
attempts to publicize what he believes to be Defendant's
wrongdoings. Dr. Miller's pending appeal addresses some
of the same allegations. Indeed, several of the documents
quoted and sought to be used as exhibits were documents this
court considered in reaching its ruling on summary judgment
that is before the Tenth Circuit on appeal. See
Riggins, 2008 WL 4293652, at *2 (“Instead, one of
the documents at issue in the motion directly concerned the
issues on appeal since it was relied on by Plaintiff to
defend the Defendants' summary judgment motion that is
pending on appeal.”)
Defendant
does not discuss this court's jurisdiction to entertain
the Emergency Motion or order the requested relief, and this
court's limited research today did not yield a definitive
answer. Compare Riggins, 2008 WL 4293652 with
Knight ex rel. P.K. v. Colvin, No. CIV 12-0382 JB/LFG,
2014 WL 59994, at *6 (D.N.M. Jan. 2, 2014)
(“Furthermore, a district court retains jurisdiction to
enforce its orders or judgments through contempt proceedings
following the filing of an appeal.”). And from this
court's review of the docket of the Tenth Circuit, it
does not appear that Defendant has sought to abate the appeal
pending the resolution of this instant Motion. See Miller
v. Institute of Defense Analyses, No. 19-1110 (10th Cir.
2019); Hansen v. Harper Excavating, Inc., 641 F.3d
1216, 1219 n.2 (10th Cir. 2011) (A court may also take
judicial notice of other courts' files and records from
the Electronic Court Filing (“ECF”) system, as
facts “capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned.”). Accordingly, this court
ORDERS the Parties to address the issue of
this court's jurisdiction no later than May 9,
2019. And, though not passing on the merits of the
Emergency Motion, Dr. Miller is reminded that a party
has no right to make unrestricted disclosure of information
...