                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
______________________________________
                                          )
WILLIAM E. SHEA,                          )
                                          )
               Plaintiff,                 )
                                          )
       v.                                 )
                                          )       Civil Action No. 02-577(RCL)
HILLARY CLINTON,                          )
(In her official capacity as              )
Secretary of State)                       )
                                          )
               Defendant.                 )
______________________________________ )

                                                               MEMORANDUM AND ORDER

              Pending before the Court is plaintiff’s Motion [106] asking the Court to apply judicial

estoppel to bar the defendant from filing an Opposition to plaintiff’s Motion for Summary

Judgment [74]. Upon consideration of the Motion [106], the Opposition [115], the Reply [116],

the entire record herein and the applicable law, plaintiff’s Motion will be DENIED.

I.            BACKGROUND AND PROCEDURAL HISTORY

              This is a Title VII reverse discrimination claim brought by pro se plaintiff William Shea

(“plaintiff” or “Shea”), a career foreign service officer, against the State Department

(“defendant,” “State,” or “government”). Compl. [1] at 2, Mar. 3, 2002.1 In 1992, when Shea

was offered an appointment to the Foreign Service, the State Department had in place a Mid–

Level Affirmative Action Hiring Program (“MLAAP”) that allowed certain candidates to be

hired directly into higher, non-entry-level grades. Id. In a nutshell, Shea claims that his career
                                                            
1
 The pending action’s ten-year history was related in this Court’s recent Opinion, and so only facts relevant to the
pending Motion [106] are stated here. See Shea v. Clinton, ---F. Supp. 2d ---, No. 02-cv-577, 2012 WL 983120, at
*1, (D.D.C. Mar. 23, 2012).


                                                                        1
advancement and pay were handicapped by his race because, as a Caucasian of Irish decent, he

was ineligible for MLAAP. Compl. [1] at 3–4.

              In the present motion, Shea asks the Court to apply the doctrine of judicial estoppel to bar

defendant from filing an opposition to his Motion for Summary Judgment [74], or from

“presenting evidence or argument contradicting the facts and arguments” plaintiff asserted in his

Motion [74]. Mot. [106] at 1, Nov. 7, 2011. In what Shea terms as “more-limited” relief, he

asks, in the alternative, that the Court bar defendant from “challenging with evidence or

argument” both his qualifications to give opinion testimony and the analysis he uses to support

his Title VII claim.2 Id. at 1, 22–23.

              Shea’s current Motion [106] has its genesis in a status conference held before Judge

Robertson on December 18, 2009. At that hearing, the Court ordered that expert and fact

discovery close by April 15, 2010, and gave the parties until May 15, 2010, to file Motions for

Summary Judgment. Hr’g Tr. [115-1] at 11, Dec. 18, 2009. Judge Robertson specifically

advised Shea that he need not wait for the close of discovery to file his motion for summary

judgment, but that the government might respond to a motion filed before the close of discovery

by asking for time to complete discovery under Rule 56. Id. at 6–7. Accepting Judge

Robertson’s invitation, Shea promptly filed his Motion for Summary Judgment on New Year’s
                                                            
2
 Plaintiff’s request is so far reaching that it deserves a full recitation: Shea asks the Court to bar the defendant from:
         [C]hallenging with evidence or argument [plaintiff’s] qualifications to give opinions concerning
         this matter; [his] methodology in arriving at [his] opinions; [his] use of the comparator population
         of Public Administrators in [his] analysis; [his] lack of any back-up analysis using other
         comparator populations or more recent data; any calculations into the statistical significance and
         standard deviation of [his] results; and whether [his] methods are the kind to be accepted by courts
         so as to be admissible.
Mot. [106] at 22–23. With regard to “matters of [] possible career advancement in the Foreign Service and [] lost
pay had [he] been accepted and placed in the Foreign Service through MLAAP,” plaintiff asks the Court to bar
defendant from challenging his:
         [Q]ualifications and background to offer opinions on those matters; [his] methodology in coming
         to [his] opinions; alternative likely career paths or results as demonstrated by other entrants’
         history in the MLAAP; and all other matters that form the basis or demonstrate a lack of basis for
         [his] opinions regarding these matters.
Id.

                                                               2
Day 2010. Pl’s. Mot. Summ. J. [74]. Defendant responded by filing a Motion to Strike under

Federal Rule of Civil Procedure 56(e) (now Rule 56(c)), or in the alternative to deny the motion

pending further discovery pursuant to Federal Rule of Civil Procedure 56(f) (now Rule 56(d)).

Mot. Strike [77] at 1, Feb. 1, 2010. Defendant asserted that because plaintiff was incompetent to

testify on statistical matters vital to his Title VII case and provided no expert testimony, other

than his own analysis, he failed to meet Rule 56(e)’s requirement to “set out facts that would be

admissible in evidence.” Id. at 1–2. In the alternative, defendant requested more time for

discovery because of plaintiff’s failure to make Rule 26(a)(2)(B) disclosures, which were

required to accompany his “expert” statistical analysis.3 Id. at 2. Defendant, therefore, desired

to depose Shea in order to obtain information regarding his qualifications and background, and

the analytical methods he used to create his statistical evidence. Id. at 2; Decl. of Counsel [77-4]

at 2. Defendant also requested time to “find persons knowledgeable about the Department’s

1990-92 MLAAP” program and to retain their own rebuttal expert witness. Id. at 2–3.

              One day later, with little discussion or guidance and before plaintiff even filed an

opposition, the Court denied the government’s Motion to Strike [77]. Order [78] at 2, Feb. 2,

2010. The Court held in abeyance plaintiff’s Motion for Summary Judgment and instructed the

government that it had no obligation to respond to it until discovery was complete. Id.

Defendant then filed a Motion for Reconsideration asking the Court to review its Order [78].

Mot. Recons. [93] at 1, Apr. 5, 2011. The next day, in a hearing before Judge Sullivan on April

6, 2011, the parties stipulated that discovery had been completed. See Shea v. Clinton, ---F.

Supp. 2d ---, No. 02-cv-577, 2012 WL 983120, at *9, (D.D.C. Mar. 23, 2012). The case was

                                                            
3
 At the time of plaintiff’s Motion [77], Rule 26(a)(2) required disclosure of a written report from each expert witness
identified by a party at least 70 days before the close of discovery. The expert witness’s report had to include the
data or other information considered by the witness in forming his expert opinions, and the witness’s qualifications
to form such opinions. Fed. R. Civ. P. 26(a)(2) (West 2010).


                                                               3
transferred to the undersigned Judge on October 10, 2011, and defendant’s Motion for

Reconsideration [93] was denied on March 23, 2012. Id. at *1. The Court held that its original

decision was not clearly erroneous “as it simply reserve[d] judgment on defendant’s argument

until the motion [for summary judgment] . . . [was] fully briefed.” Id. at *7. The Court then

ordered the present Motion [106] to be briefed, and ordered that plaintiff’s Motion for Summary

Judgment [74] remain in abeyance pending the resolution of this Motion. Id. at *10.

II.           LAW

              Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.” New

Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037

(9th Cir.1990)); see also Moses v. Howard Univ. Hosp., 606 F.3d 789, 792 (D.C. Cir. 2010).4

The purpose of judicial estoppel is to “protect the integrity of the judicial process” by

“prohibiting parties from deliberately changing positions according to the exigencies of the

moment,” thereby playing “fast and loose with the courts.” Id. (citations omitted). Indeed, the

public policy behind the judicial estoppel doctrine is to “‘exalt[] the sanctity of the oath . . . [and]

to safeguard the administration of justice by placing a restraint upon the tendency to reckless and

false swearing . . . .’” Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C. Cir. 1980) (quoting

Melton v. Anderson, 222 S.W.2d 666, 669 (Tenn. Ct. App. 1948)). While “the circumstances

under which judicial estoppel may appropriately be invoked are probably not reducible to any

general formulation of principles,” Id. (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166

(4th Cir. 1982), it is generally invoked where a party takes one stance during a legal proceeding


                                                            
4
 The government’s averment that “there is some question as to whether the D.C. Circuit has even recognized the
availability of ‘judicial estoppel’ doctrine in this Circuit” is simply incorrect. Def’s. Opp. [115] at 8, Apr. 5, 2012.
Not only has the Supreme Court acknowledged the existence of the doctrine, a simple search of case law
demonstrates that this Circuit has wisely followed the Supreme Court’s lead. See, e.g. Moses v. Howard Univ.
Hosp., 606 F.3d 789, 792 (D.C. Cir. 2010).

                                                               4
and succeeds, and later, because the party’s interests have changed, assumes a contrary position,

Moses, 606 F.3d at 798 (citations omitted). The inconsistent stances can be in the same or

different proceedings. Contech Const. Prod., Inc. v. Heierli, 764 F.Supp.2d 96, 106 (D.D.C.

2011) (citing Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara,

364 F.3d 274, 293–94 (5th Cir. 2004)).

        Nevertheless, the Supreme Court has identified three factors that, while not being

“inflexible prerequisites,” should be considered by courts before invoking the doctrine. Maine,

532 U.S. at 751. These are: (1) whether the “party’s later position . . . [is] ‘clearly inconsistent’

with its earlier position;” (2) whether “the party has succeeded in persuading a court to accept

that party’s earlier position, so that judicial acceptance of an inconsistent position in a later

proceeding would create ‘the perception that either the first or the second court was misled;’”

and (3) whether “the party seeking to assert an inconsistent position would derive an unfair

advantage or impose an unfair detriment on the opposing party if not estopped.” Maine, 532

U.S. at 750–51 (internal citations omitted). “Doubts about inconsistency often should be

resolved by assuming there is no disabling inconsistency, so that the second matter may be

resolved on the merits.” Contech, 764 F. Supp. 2d at 116 (citing 18B Charles Alan Wright &

Arthur Miller, Federal Practice & Procedure § 4477, at 594 (2d ed. 2002)).

III.    ANALYSIS

        The gravamen of plaintiff’s argument is his reading of both defendant’s Motion [77] to

Strike and the Court’s Order [78] denying that motion. Plaintiff asserts that the government took

the sworn position that it “could not present facts essential to justify its opposition to . . .

[plaintiff’s Motion for Summary Judgment] without first deposing [plaintiff] to obtain certain

‘essential’ and ‘necessary’ information.” Mot [106] at 1, 11–15 (quoting Def.’s Mot. Strike [77]


                                                    5
and accompanying affidavits [77-3–4]). Plaintiff reads Judge Robertson’s brief Order [78],

which he issued the day after defendant filed his Motion to Strike [77], as granting defendant’s

Rule 56(f) motion for continued discovery based on the assertions regarding defendant’s inability

to respond to plaintiff’s Summary Judgment Motion [74]. Id. at 11.

       Unfortunately for plaintiff, his reading of both defendant’s Motion [77] and the Court’s

Order [78] are inaccurate. Defendant requested time to continue discovery for multiple reasons,

not solely to take plaintiff’s deposition. Mot. Strike [77] at 11–13. The necessary discovery

included plaintiff’s “qualifications to [give expert testimony],” more time to find persons with

historical knowledge about the MLAAP program, and to retain a rebuttal expert witness. Id. at

11–13. Defendant also requested that the court “deny” plaintiff’s Motion [74] for summary

judgment “until the close of discovery and until Plaintiff has fully complied with the

requirements of Fed. R. Civ. P. 26(a)(2).” Id.

       In support of defendant’s Motion [77], Assistant United States Attorney Darrell Valdez,

in his sworn declaration, stated that because plaintiff had not made any Rule 26 disclosures,

defendant “was unable to inquire into Plaintiff’s qualifications to . . . [give expert testimony],

and was further unable to consult and obtain its own expert to rebut the Plaintiff’s opinion

testimony.” Decl. of Counsel [77-4] at 2. It is clear that defense counsel expected plaintiff to

submit a Rule 26 report, and would, thereafter, need time to both depose plaintiff regarding his

background and qualifications, and to obtain a rebuttal expert. Id. Mr. Shea, however, was

never deposed, Decl. of William Shea [106-3] at 1 (undated), nor does it appear that he ever filed

a Rule 26 report, see Shea-Valdez Email Exchange [106-2] at 1, Oct. 21, 2011. The pleadings

are devoid of evidence regarding the other requested discovery.




                                                  6
       Even if the Court read the government’s position as duplicitous, Shea’s motion would

still fail because the Court never explicitly accepted the government’s first position, and thus

there would be no appearance that the Court was misled. Order [78] at 2. Shea asks the Court to

read its April 2, 2010, Order [74] as the Court ruling for the defendant. Mot. [106] at 11. In

reality, it explicitly denied State’s Motion without reservation, [77] but held plaintiff’s Summary

Judgment Motion [74] in abeyance until the close of discovery. Order [78] at 2. Thus, the

Court’s Order [78] did nothing more than affirm the original discovery schedule set by Judge

Robertson at the December 18, 2009, hearing. Hr’g Tr. [115-1] at 11. Because any “[d]oubts

about inconsistency often should be resolved by assuming there is no disabling inconsistency,” it

would be incorrect to find for plaintiff here, because the inconsistency here is tenuous at best.

Contech, 764 F. Supp. 2d at 116 (citing 18B Charles Alan Wright & Arthur Miller, Federal

Practice & Procedure § 4477, at 594 (2d ed. 2002)).

       Shea finally argues that the government need not derive an unfair advantage or cause an

unfair detriment in order for the Court to rule in his favor. Pl.’s Reply [116] at 5–6, Apr. 10,

2012. In light of the Supreme Court’s admonishment that the factors it set out in Maine were not

“inflexible prerequisites or an exhaustive formula for determining the applicability of judicial

estoppel,” the Court must agree with plaintiff’s assessment. 532 U.S. at 751. However, the

Court, in its discretion, views the unfair advantage/detriment factor as important, because such a

determination sheds light on the opposing party’s motives for taking contrary positions. A

party’s motivation goes directly to the public policy underlying the doctrine: “placing a restraint

upon the tendency to reckless and false swearing.” Chen, 626 F.2d at 937 (citations omitted).

For example, the Court would be much more likely to judicially estop a party if the Court

determined that the party’s actions were deliberate and calculated so as to play “fast and loose



                                                 7
with the [C]ourt[].” Maine, 532 U.S. at 750. Here, however, it appears that both plaintiff and

defendant got lost in the fog of litigation and failed to follow through with their anticipated

discovery.

         The Court also notes that judicial estoppel “is an equitable doctrine invoked by a court at

its discretion,” and that “[a]dditional considerations may inform the doctrine’s application in

specific factual contexts.” Id. One of those considerations must be the requested relief. Here,

plaintiff asks the Court to deny the government an opportunity to respond to plaintiff’s Motion

for Summary Judgment [74], or to handicap the government’s opposition by effectively requiring

the government to admit that plaintiff is qualified to give expert analysis, and to accept his

analysis. Mot. [106] at 1, 22–23. Under our local rules, an unopposed motion can be treated as

conceded. LCvR 7(b). Thus, granting plaintiff’s Motion could, de facto, resolve the case in the

plaintiff’s favor. However, “[O]ur [justice] system favors the disposition of cases on the merits.”

Trakas v. Quality Brands, Inc., 759 F. 2d 185, 186–87 (D.C. Cir. 1985). The D.C. Circuit has

also warned against issuing default judgments for attorney misconduct when less drastic

sanctions are available to rectify the harm. See Butera v. District of Columbia, 235 F.3d 637,

661 (D.C. Cir. 2001); Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074–75 (D.C. Cir. 1986).

Therefore, ruling for plaintiff, even if the Court was inclined to do so, would likely be reversible

error.

         The purpose of judicial estoppel is to “protect the integrity of the judicial process.”

Maine, 532 U.S. at 750 (citations omitted). Holding for the plaintiff here would not serve that

interest, but would instead give plaintiff a shortcut to the result he desires. Far from being

equitable, resolving this case in this fashion would create a manifest injustice.




                                                   8
IV.    CONCLUSION

       For the aforementioned reasons, the court will not grant plaintiff’s Motion for the

Application of Judicial Estoppel [106]. Accordingly, it is hereby

       ORDERED, that the plaintiff’s Motion be, and hereby is, DENIED.

       It is FURTHER ORDERED that defendant’s Opposition to plaintiff’s Motion for

Summary Judgment is due on or before August 13, 2012, and plaintiff’s Reply, if any, is due on

or before August 20, 2012.

SO ORDERED

       Signed by Royce C. Lamberth, Chief Judge, on July 30, 2012.




                                                9
