Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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BARRY MICHAELS,
43 Diamond Run Street
Las Vegas, NV 89148,
Plaintiff,

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v.

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MATTHEW G. WHITAKER, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530;

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ROD J. ROSENSTEIN, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530;

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NOEL J. FRANCISCO, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530;
Defendants.

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Case No. 18-cv-2906

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AND

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BARRY MICHAELS, ex rel. UNITED
STATES OF AMERICA,
43 Diamond Run Street
Las Vegas, NV 89148,
Plaintiff,

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*

v.

*

MATTHEW G. WHITAKER, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530,
Defendant.

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 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 2 of 8

MOTION FOR JURISDICTIONAL DISCOVERY
Plaintiff respectfully requests that this court order the Government to respond to a limited
set of interrogatories, see Attachment, to establish the extent of Matthew Whitaker’s involvement
in this case and Plaintiff’s Supreme Court case, which goes to the heart of Plaintiff’s standing to
challenge Mr. Whitaker’s authority. Plaintiff has shown, and the Government concedes, that this
Court has inherent authority to supervise and manage these proceedings, including the behavior of
anyone involved in the case.1 And Plaintiff alleged facts plausibly establishing that Mr. Whitaker
has inserted himself into decisions affecting Plaintiff directly, including both directly in these
proceedings and in decisionmaking related to his pending Supreme Court Petition.

The

Government has attacked the factual basis of Plaintiff’s allegations. Thus, Plaintiff is entitled to
jurisdictional discovery that may be dispositive of whether this case may proceed.
1.

As Plaintiff alleged, Matthew Whitaker was and continues to be directly involved

in this case and Plaintiff’s case before the Supreme Court—on the general question whether to
defend the constitutionality of 18 U.S.C. § 922(g)(1) as well as the response to Plaintiff’s highly
publicized challenge to Mr. Whitaker’s authority. Plaintiff also established another basis for
standing—Mr. Whitaker’s involvement in Plaintiff’s request that the Attorney General seek a writ
of quo warranto that Mr. Whitaker is not the Acting Attorney General. Am. Compl., ECF 14 ¶¶

                                                            
1

Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (“It has long been understood that
‘[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their
institution,’ powers ‘which cannot be dispensed with in a Court, because they are necessary to the
exercise of all others.’”) (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812));
Ryan v. Astra Tech, Inc., 772 F.3d 50, 58 (1st Cir. 2014) (“Certainly the district court possesses
inherent authority to . . . control who may appear before it.”) (citing Chambers, 501 U.S. at 4246); In re Atl. Pipe Corp., 304 F.3d 135, 145 (1st Cir. 2002) (district court has inherent authority
to order parties to participate in mediation); In re United States, 149 F.3d 332, 333 (5th Cir. 1998)
(district court has inherent authority to compel attendance at mediation by a government attorney
with suitable authority).
1

 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 3 of 8

1-2, 4, 14-16, 20-24, 28-29; also Pl.’s Mot. for Prelim. Inj., ECF 2 ¶¶ 1, 3-4. Mr. Whitaker’s direct
involvement in Plaintiff’s cases and his request for a writ of quo warranto are sufficient injuries
to challenge his authority. See Landry v. FDIC, 204 F.3d 1125, 1130-32 (D.C. Cir. 2000).
2.

Shortly after oral argument, the Government voluntarily disclosed that Mr.

Whitaker is not involved in the decision whether to act on Plaintiff’s quo warranto request, thus
using that voluntary targeted disclosure as a sword to defeat one of Plaintiff’s grounds for standing.
At the same time, the Government refuses to disclose Mr. Whitaker’s involvement in any other
respect—using its control over the same information as a shield to defeat Plaintiff’s other grounds
for standing. This alone entitles Plaintiff to an order compelling answers to his proposed
interrogatories. Even when material is privileged, selective disclosure for tactical advantage opens
the door to discovery on the entire subject matter. “The prohibition against selective disclosure of
confidential materials derives from the appropriate concern that parties do not employ privileges
both as a sword and as a shield.” Koch v. Cox, 489 F.3d 384, 390 (D.C. Cir. 2007) (waiver of
psychotherapist-patient privilege) (internal quotation marks omitted); S.E.C. v. Lavin, 111 F.3d
921, 933 (D.C. Cir. 1997) (waiver of marital privilege). “When a party reveals part of a privileged
communication in order to gain an advantage in litigation, it waives the privilege as to all other
communications relating to the same subject matter because the privilege of secret consultation is
intended only as an incidental means of defense and not as an independent means of attack, and to
use it in the latter character is to abandon it in the former.” In re Sealed Case, 676 F.2d 793, 818
(D.C. Cir. 1982) (waiver of attorney-client and work-product privileges) (internal quotation marks
omitted). Here, the Government agrees that the fact of Mr. Whitaker’s involvement is not even
privileged to begin with. And it is unquestionably material, or else the Government would not
have disclosed his recusal as to quo warranto. The Government cannot disclose Mr. Whitaker’s

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 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 4 of 8

involvement in order to defeat standing in some instances, while it withholds such information to
also defeat standing in others.
3.

The Government’s disclosure relating to the quo warranto proceedings cannot be

explained away on the ground that Plaintiff inevitably would have learned of Mr. Whitaker’s
recusal. That is entirely circular. Plaintiff would have learned it only because the Government
would disclose it—precisely what it is refusing to do here. The Government generally does not
even provide a response to quo warranto petitions at all. See, e.g., Sibley v. Obama, 866 F. Supp.
2d 17, 20 (D.D.C. 2012), aff’d, No. 12-5198, 2012 WL 6603088 (D.C. Cir. Dec. 6, 2012) (Attorney
General’s “lack of response” to plaintiff’s quo warranto request does not meet “the refusal
condition of D.C. Code § 16–3503”); Taitz v. Obama, 707 F. Supp. 2d 1, 3 (D.D.C. 2010) (plaintiff
could not seek quo warranto writ herself, even though, as complaint described, “[n]o response was
received for ten months” on plaintiff’s quo warranto request). If it did respond, nothing would
prevent it from doing so by letter from its lawyers in this case simply saying, without elaboration,
that the request was denied. Although the Attorney General must consider a quo warranto request
(assuming he is not recused), nothing says he has to write a response. So the Government’s
voluntary, selective disclosure was purely tactical for its own advantage.
4.

Plaintiff is independently entitled to jurisdictional discovery in any event. The

Supreme Court recognizes that when “issues arise as to jurisdiction or venue, discovery is available
to ascertain the facts bearing on such issues.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 n.13 (1978). This is true whether the case involves “personal jurisdiction or subject matter
jurisdiction.” Wright & Miller, 8 Fed. Prac. & Proc. Civ. § 2008.3 (3d ed.) (collecting cases).
Thus, “jurisdictional discovery is appropriate to assist the Court in resolving issues of fact relevant

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 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 5 of 8

to standing.” Food & Water Watch v. Trump, No. 17-1485 (ESH), 2018 WL 6448634, at *5
(D.D.C. Dec. 10, 2018).
5.

Although the “district court retains ‘considerable latitude in devising the procedures

it will follow to ferret out the facts pertinent to jurisdiction,’” it “must give the plaintiff ‘ample
opportunity to secure and present evidence relevant to the existence of jurisdiction.’” Phoenix
Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (quoting Prakash v.
American University, 727 F.2d 1174, 1179-80 (D.C. Cir. 1984)) (emphasis added). Indeed, the
D.C. Circuit will remand for jurisdictional discovery when “allegations indicate its likely utility,”
Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1024 (D.C. Cir. 1998), and plaintiff “sufficiently
demonstrate[s] that it is possible that he could supplement” his jurisdictional allegations “through
discovery,” El–Fadl v. Central Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996). See Edmond
v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C. Cir. 1991) (remanding
because “it is an abuse of discretion to deny jurisdictional discovery” in light of allegations
suggesting jurisdiction); Crane v. Carr, 814 F.2d 758 (D.C. Cir. 1987) (similar). In selectively
disclosing Mr. Whitaker’s recusal to defeat Plaintiff’s standing based on his quo warranto request,
the Government admits the “utility” of this information. If Mr. Whitaker is involved in these
proceedings or those in Plaintiff’s Supreme Court case, Plaintiff is entitled to challenge his
authority under Landry, 204 F.3d at 1131, and this Court must resolve the Appointments Clause
issue.
6.

The Government will argue, as it did in its purported “status report,” that Plaintiff

is not entitled to jurisdictional discovery while he concurrently moves for summary judgment.
Defs.’ Status Report, ECF 21 at 5. The Government does not deny, though, that courts “often
permit discovery while motions to dismiss and other threshold motions are pending.” Sai v. Dep’t

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 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 6 of 8

of Homeland Security, 99 F. Supp. 3d 50, 58 (D.D.C. 2015) (Moss, J.). It is up to the district court
to decide, in its sound discretion, because here as always “[c]ourts are vested with broad discretion
to manage the conduct of discovery.” Id. at 58 (internal quotation marks omitted). So too in the
context of jurisdictional discovery. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1093-94
(D.C. Cir. 2008) (it is “well established” that district courts have “broad discretion” to order
jurisdictional discovery).
7.

This case is a prime example of when a court should exercise its discretion and

order discovery simultaneous with the set schedule for cross-summary-judgment briefing.
Inevitably, Plaintiff would be able to file a Fed. R. Civ. P. 56(d) affidavit in opposition to the
Government’s cross-motion for summary judgment, specifying why he cannot present facts
essential to justify his opposition, and seeking the same jurisdictional discovery he requests here.
Moreover, the underlying issues are purely legal and as the Government admits “undoubtedly
important,” see Defs.’ Status Report, ECF 21 at 1, and Plaintiff’s proposed discovery is
exceedingly limited. It is striking that the Government did not previously assert that the discovery
is unduly burdensome. The only reason that there would be any burden at all is if Mr. Whitaker
is participating, so there is something to discovery. If not, responding will take little time at all.
Defendants’ answers to only a few discrete interrogatories will establish whether there is a basis
to proceed to the merits of important legal issues. See supra. 2

                                                            
2

Defendants’ reference to Fed. R. Civ. P. 26(f) has no bearing on the Court’s authority to
compel—and indeed, Plaintiff’s entitlement to—jurisdictional discovery. See Local Rule 26.2(f)
(“a party may not seek discovery before the parties have conferred as required by Fed. R. Civ. P.
26(f)” “[e]xcept . . . by order” of the court). Plaintiff requested that Defendants voluntarily provide
the information, as Defendants did for the quo warranto recusal. They’ve refused, requiring
Plaintiff to file this motion. Defendants do not suggest any other process that is available, other
than by order of the Court.
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 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 7 of 8

8.

If the Government refuses to provide any answers despite Plaintiff’s entitlement to

jurisdictional discovery, Plaintiff is entitled to the negative inference that, in fact, Mr. Whitaker
was directly involved in Plaintiff’s Supreme Court case and the proceedings in this Court, or else
the Government would have said otherwise as it did with Plaintiff’s quo warranto request. U.S.
Bank Nat’l Ass’n v. Poblete, No. CV 15-312 (BAH), 2017 WL 598471, at *3 (D.D.C. Feb. 14,
2017) (failure to “respond to the plaintiff’s propounded interrogatories” may result in “negative
inferences” under Fed. R. Civ. P. 37); In re Vitamins Antitrust Litig., 120 F. Supp. 2d 58, 68
(D.D.C. 2000) (court “may draw an adverse inference from [defendant’s] refusal to answer
plaintiffs’ questions about his jurisdictional contacts”).
9.

For the foregoing reasons, Plaintiff respectfully requests that the Court enter an

order requiring Defendants to provide answers to the attached interrogatories by January 14, 2019,
see Attachment, the date their combined opposition and cross-motion for summary judgment is
due.

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 Case 1:18-cv-02906-RDM Document 28 Filed 12/21/18 Page 8 of 8

By: /s/ Thomas C. Goldstein
Thomas C. Goldstein (Bar No. 458365)
TGoldstein@goldsteinrussell.com
Eric Citron (pro hac vice)
ECitron@goldsteinrussell.com
Daniel Woofter (pro hac vice)
dhwoofter@goldsteinrussell.com
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Avenue
Suite 850
Bethesda, MD 20814
(202) 362-0636
Michael E. Zapin (pro hac vice)
michaelezapin@gmail.com
20283 State Rd. 7
Suite 400
Boca Raton, FL 33498
(561) 367-1444
Attorneys for Plaintiff Barry Michaels

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 Case 1:18-cv-02906-RDM Document 28-1 Filed 12/21/18 Page 1 of 1

PROPOSED INTERROGATORIES
1. With respect to each meeting or communication in which Matthew Whitaker was the
sender, recipient, or participant that addressed the subject of the constitutionality or
legality of his designation as Acting Attorney General, identify:
a. the meeting or communication;
b. the participants; and
c. the relevant general topic of discussion (including any particular litigation that
was addressed), without disclosing any privileged material relating to the content
of the communication.
2. In the event that Mr. Whitaker has recused from any matters or issues relating to the
constitutionality or legality of his designation as Acting Attorney General, identify:
a. the issue or matter;
b. when the recusal occurred; and
c. whether Mr. Whitaker participated in those matters or issues prior to his recusal.
3. With respect to each meeting or communication in which Mr. Whitaker was the sender,
recipient, or participant that addressed any issues presented in Plaintiff’s Supreme Court
case, Michaels v. Whitaker, No. 18-496 (U.S. June 27, 2018), identify:
a. the meeting or communication;
b. the participants; and
c. the relevant general topic of discussion, without disclosing any privileged
material relating to the content of the communication.
 

 Case 1:18-cv-02906-RDM Document 28-2 Filed 12/21/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
*
BARRY MICHAELS,
43 Diamond Run Street
Las Vegas, NV 89148,
Plaintiff,

*
*

v.

*

MATTHEW G. WHITAKER, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530;

*
*
*

ROD J. ROSENSTEIN, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530;

*
*

NOEL J. FRANCISCO, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530;
Defendants.

*
Case No. 18-cv-2906

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*

AND

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BARRY MICHAELS, ex rel. UNITED
STATES OF AMERICA,
43 Diamond Run Street
Las Vegas, NV 89148,
Plaintiff,

*
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v.

*

MATTHEW G. WHITAKER, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530,
Defendant.

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 Case 1:18-cv-02906-RDM Document 28-2 Filed 12/21/18 Page 2 of 2

[PROPOSED] ORDER GRANTING PLAINTIFF’S
MOTION FOR JURISDICTIONAL DISCOVERY
On full consideration of plaintiff’s motion for jurisdictional discovery, the motion is
GRANTED, and Defendants are hereby ORDERED to respond to the following interrogatories by
January 14, 2019:
1. With respect to each meeting or communication in which Matthew Whitaker was the
sender, recipient, or participant that addressed the subject of the constitutionality or
legality of his designation as Acting Attorney General, identify:
a. the meeting or communication;
b. the participants; and
c. the relevant general topic of discussion (including any particular litigation that
was addressed), without disclosing any privileged material relating to the content
of the communication.
2. In the event that Mr. Whitaker has recused from any matters or issues relating to the
constitutionality or legality of his designation as Acting Attorney General, identify:
a. the issue or matter;
b. when the recusal occurred; and
c. whether Mr. Whitaker participated in those matters or issues prior to his recusal.
3. With respect to each meeting or communication in which Mr. Whitaker was the sender,
recipient, or participant that addressed any issues presented in Plaintiff’s Supreme Court
case, Michaels v. Whitaker, No. 18-496 (U.S. June 27, 2018), identify:
a. the meeting or communication;
b. the participants; and
c. the relevant general topic of discussion, without disclosing any privileged
material relating to the content of the communication.
IT IS SO ORDERED.
__________________________
United States District Judge

Dated: January ___, 2019

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