Dougherty v. DHS ( 2023 )

Case: 22-40665 Document: 00516900626 Page: 1 Date Filed: 09/19/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 19, 2023
No. 22-40665 Lyle W. Cayce
____________ Clerk
Marlene A. Dougherty, doing business as Law Office of
Marlene A. Dougherty,
Plaintiff—Appellant,
versus
United States Department of Homeland Security;
Unknown John and Jane Does, Employed by DHS,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:21-CV-154
______________________________
Before Davis, Southwick, and Oldham, Circuit Judges.
Per Curiam: *
Plaintiff-appellant, Marlene A. Dougherty, proceeding pro se, filed suit
against Defendants-Appellees, the Department of Homeland Security
(“DHS”) and unnamed DHS officers (“Unnamed Defendants”), alleging
that Defendants unlawfully accessed and tampered with her computer
network and telecommunications systems, in violation of her rights under the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40665
First, Fourth, and Fifth Amendments, the Electronic Communications
Privacy Act, 18 U.S.C. §§ 2510-2523, the Computer Fraud and Abuse Act,
18 U.S.C. § 1030, the Stored Communications Act, 18 U.S.C. §§ 2701-2712,
and state law. The district court dismissed Dougherty’s amended complaint
for lack of subject matter jurisdiction and for failure to state a claim. We
AFFIRM but MODIFY THE JUDGMENT to dismiss without
prejudice Dougherty’s claims over which we lack subject matter jurisdiction.
I. BACKGROUND
Dougherty is an attorney practicing immigration law in Brownsville,
Texas. She characterizes her practice as focusing on the “lawful defense of
undocumented immigrants” who are “victims of the unauthorized practice
of immigration law.” As part of this work, Dougherty contends that she
regularly appears before “the immigration agencies” and often is required to
criticize “employees of the [a]gencies, including immigration judges.”
In light of Dougherty’s advocacy, she contends that DHS has
retaliated against her by “unlawfully monitoring . . . her electronic and aural
communications” and interfering in her “right to practice law on behalf of
undocumented immigrants.” As detailed in her amended complaint and
attached exhibits, Dougherty alleges that she first became aware of this
alleged unlawful monitoring in 2010 and continued to experience problems
through 2021.
Specifically, in 2010, Dougherty’s amended complaint implies that
her phone conversation with a client about a filing fee payment was
intercepted and resulted in her checks not being returned with a “receipt
number” from DHS. In early 2018, Dougherty states that she mentioned her
concern about these checks in conversation at her office and afterwards her
checks “began to be blacked out.” Also in 2018, Dougherty noticed
2
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“changes to information stored in her QuickBooks,” unauthorized edits to a
legal brief, and the loss of computer access to her email account.
From 2019-2020, Dougherty had repeated issues registering for and
signing into DHS-run websites and accounts. In October of 2019, Dougherty
alleges that she received an anonymous voicemail that noted “where [she]
was going [and] mischaracterizing her private religious activities.” She
further asserts that a year later an anonymous user posted on Twitter details
from Dougherty’s private conversation with her mother. On June 14, 2021,
Dougherty alleges she “inadvertently found that the Office of the Principal
Legal Advisor (OPLA)[,] a division of ICE[,] was logged in to and was the
control organization to [her] Office 365 and Outlook Mail.” And within the
past two years, Dougherty alleges that she has received phone messages “in
which law enforcement could be heard in the background.”
Dougherty has reported the above issues several times throughout the
years. In 2016, 2018, and 2020, she hired security experts to investigate the
alleged unauthorized access and surveillance. Additionally, Dougherty has
twice reported these issues to the Federal Bureau of Investigation (“FBI”),
but no issues were found with her devices.
On October 7, 2021, Dougherty filed her original complaint seeking
damages, injunctive relief, and a temporary restraining order. After the
district court denied her request for a temporary restraining order,
Dougherty filed her amended complaint—the operative pleading for this
appeal—reasserting claims against DHS and the Unnamed Defendants. 1
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1
Dougherty’s amended complaint does not state whether she is asserting claims
against the Unnamed Defendants in their official or personal capacities. However,
Dougherty’s opening brief on appeal clarifies that she intended to sue the Unnamed
Defendants in their individual capacities. To the extent she also intended to sue the officers
in their official capacities, such claims would face the same fate as those brought against
3
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Specifically, Dougherty’s amended complaint asserts claims under the
Electronic Communications Privacy Act (“ECPA”), the Computer Fraud
and Abuse Act (“CFAA”), and the Stored Communications Act (“SCA”)
against DHS and the Unnamed Defendants. She additionally brings claims
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics 2 and a state-law antitrust claim against the Unnamed Defendants.
On January 11, 2022, Dougherty issued third-party subpoenas to
AT&T and Twitter in order to identify the Unnamed Defendants. In
response, Defendants filed an emergency motion to quash these subpoenas
as prematurely issued under Rule 45 of the Federal Rules of Civil Procedure.
After giving Dougherty a chance to respond, the district court granted
Defendants’ motion to quash and denied Dougherty’s request for expedited
discovery. On February 28, 2022, Defendants moved to dismiss
Dougherty’s claims for lack of subject matter jurisdiction and for failure to
state a claim.
On March 1, 2022, the district court heard arguments on the
Defendants request for a stay of discovery pending the court’s resolution of
the pending motion to dismiss. The court granted the stay, citing the
strength of Defendants’ motion to dismiss and Dougherty’s lack of any
allegation “that ties these particular defendants to the specific technological
issues that . . . [she] allege[d].”
The district court also granted Defendants’ motion to dismiss under
Rule 12(b)(1) and Rule 12(b)(6), dismissed Dougherty’s claims with
prejudice, and denied her request for a temporary and permanent injunction.
_____________________
DHS. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.” (citation omitted)).
2
403 U.S. 388 (1971).
4
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Dougherty moved to amend the judgment, which the district court granted
in part, agreeing with Dougherty that the dismissal of her SCA claims should
have been without prejudice. As amended, the district court’s judgment
dismissed with prejudice Dougherty’s ECPA and CFAA claims and
dismissed without prejudice her SCA claims. 3 Dougherty timely appealed.
II. DISCUSSION
On appeal, Dougherty reasserts her claims and argues that the district
court erred by dismissing them with prejudice and by denying her early
discovery to identify the DHS agents. We address these contentions in turn.
A. Rule 12(b)(1)
1. Standard of Review
A dismissal for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1) is reviewed de novo, applying the same standard
as the district court. 4 “The burden of proof for a Rule 12(b)(1) motion to
dismiss is on the party asserting jurisdiction.” 5 “When a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions, the court should
consider the Rule 12(b)(1) jurisdictional attack before addressing any attack
on the merits.” 6
_____________________
3
The district court again denied Dougherty’s request for injunctive relief in its
amended order. Although Dougherty appeals this order, she does not brief the issue of
injunctive relief. Accordingly, she has “waived or abandoned this issue on appeal.” Al-
Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995).
4
Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (citing Musslewhite v. State Bar.
of Tex., 32 F.3d 942, 945 (5th Cir. 1994)).
5
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citation
omitted).
6
Id. (citing Hitt v City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)).
5
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2. Sovereign Immunity
The district court correctly dismissed Dougherty’s ECPA and CFAA
claims against DHS because the Government has not waived sovereign
immunity under either statute. “Absent a waiver, sovereign immunity
shields the Federal Government and its agencies from suit.” 7 And because
sovereign immunity goes to the court’s subject matter jurisdiction,
“Congress’s waiver of [it] must be unequivocally expressed in statutory text
and will not be implied.” 8
Here, Dougherty asserts that DHS violated the ECPA’s prohibition
on the unauthorized interception and disclosure of wire, oral, or electronic
communications, codified at 18 U.S.C. § 2511. Although “[s]ection 2511 is .
. . primarily a criminal provision,” § 2520(a) “expressly allows private civil
suits by any person whose electronic communication is intercepted in
violation of ‘this chapter’ of the statute.” 9 Section 2520(a) states that an
aggrieved party has a cause of action against “the person or entity, other than
the United States, which engaged in that violation.” 10 Because Dougherty
seeks relief under § 2520(a), which expressly bars relief against the United
States and its agencies, the district court correctly dismissed her claim for
lack of subject matter jurisdiction. 11
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7
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted).
8
Freeman v. United States, 556 F.3d 326, 335 (5th Cir. 2009) (internal quotation
marks and citation omitted).
9
DIRECTV, Inc. v. Bennett, 470 F.3d 565, 566-67 (5th Cir. 2006) (per curiam).
10
18 U.S.C. § 2520(a) (emphasis added).
11
See Voinche v. Obama, 744 F. Supp. 2d 165, 175-76 (D.D.C. 2010) (dismissing
plaintiff’s claims against federal agencies and officers because under § 2520 “the United
States is specifically exempted” (internal quotation marks and citation omitted)).
6
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However, as Dougherty points out, another section of the ECPA,
titled the Stored Communications Act, does provide a cause of action for
money damages against the United States. Specifically, 18 U.S.C. § 2712permits suits against the United States for willful violations of the SCA and
“chapter 119” of title 18. 12 However, like other courts, we determine that
the express language of § 2520 prohibits claims against the United States
brought under that section, regardless of whether immunity is waived for
claims raised under § 2712. 13
Dougherty has similarly failed to demonstrate that the United States
has waived sovereign immunity for claims under the CFAA. The CFAA
provides a civil cause of action to “[a]ny person who suffers damage or loss
by reason of a violation of this section.” 14 Dougherty argues that because the
statute defines “person” to include the United States and its agencies, the
Government has waived sovereign immunity because DHS is a “‘person’
‘who’ can be sued for a violation of the statute.” We find this argument not
only misreads the statute, but also falls short of the requirement that
_____________________
12
Chapter 119 includes 18 U.S.C. §§ 2510-2523.
13
See Thomas v. Seth, 317 F. App’x 279, 282 (3d Cir. 2009) (per curiam)
(unpublished) (“[T]he Wiretap Act exempts the United States . . . from liability, barring
certain conditions not present in this case.” (citing 18 U.S.C. §§ 2520(a) and 2712)); see
also Lott v. United States, No. 4:10-2862, 2011 WL 13340702, at *4 (S.D. Tex. May 31,
2011), report and recommendation adopted, No. 10-2862, 2011 WL 13340701 (S.D. Tex. June
17, 2011) (“Although a person may bring a civil cause of action under the Federal Wiretap
Act under some circumstances, the United States is specifically excepted as a permissible
defendant.” (citing 18 U.S.C. § 2520(a)). Even assuming there was ambiguity between
§ 2520 and § 2712 regarding the Government’s waiver of sovereign immunity, we
“construe any ambiguities in the scope of a waiver in favor of the sovereign.” F.A.A. v.
Cooper, 566 U.S. 284, 290 (2012).
14
18 U.S.C. § 1030(g).
7
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Congress’s waiver of sovereign immunity be “unequivocally expressed in
statutory text.” 15
Accordingly, because the United States has not expressly waived its
sovereign immunity for claims under § 2520 and § 1030, the district court
correctly dismissed these claims against DHS for lack of jurisdiction.
3. Administrative Exhaustion
Dougherty alleges that DHS violated § 2701(a) of the SCA by gaining
access to her electronic communications while the messages were in storage
with her email providers. As noted above, although the SCA allows for suits
against the United States for willful violations of the Act,
§ 2712 preconditions such suits on compliance with an administrative
scheme. Specifically, a plaintiff may file suit against the United States “only
after a claim is presented to the appropriate department or agency under the
procedures of the Federal Tort Claims Act.” 16
Under the Federal Tort Claims Act (“FTCA”), “a plaintiff must give
notice of his claim to the appropriate federal agency.” 17 Such notice “is a
jurisdictional prerequisite to filing suit under the FTCA.” 18 Dougherty’s
amended complaint does not allege that she presented her claim to DHS prior
to filing suit. Instead, she asserts that she satisfied the jurisdictional
prerequisite by serving DHS with notice on the same day she filed suit. We
find this argument unavailing in light of § 2712’s explicit requirement that a
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15
Lane v. Pena, 518 U.S. 187, 192 (1996) (citing United States v. Nordic Vill., Inc.,
503 U.S. 30, 33-34 (1992)).
16
18 U.S.C. § 2712(b)(1).
17
Cook v. United States, 978 F.2d 164, 165-66 (5th Cir. 1992) (per curiam) (citations
omitted).
18
Id.8
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plaintiff can bring suit “only after a claim is presented to the appropriate
department.” 19 Accordingly, the district court correctly held that it lacked
subject matter jurisdiction over Dougherty’s SCA claim against DHS.
4. Dismissal Without Prejudice
The district court dismissed Dougherty’s claims against DHS for lack
of subject matter jurisdiction. Specifically, the court dismissed her ECPA
and CFAA claims with prejudice and her SCA claims without prejudice.
However, this Court has made “clear that a jurisdictional dismissal must be
without prejudice to refiling in a forum of competent jurisdiction.” 20 Because
“[t]his rule applies with equal force to sovereign-immunity dismissals,” 21 the
district court erred when it dismissed Dougherty’s ECPA and CFAA claims
with prejudice.
B. Rule 12(b)(6)
1. Standard of Review
We review the grant of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) de novo. 22 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” 23 In considering a motion to dismiss, “a
district court must limit itself to the contents of the pleadings, including
_____________________
19
18 U.S.C. § 2712(b)(1) (emphasis added).
20
Carver v. Atwood, 18 F.4th 494, 498-99 (5th Cir. 2021) (citing Mitchell v. Bailey,
982 F.3d 937, 944 (5th Cir. 2020)).
21
Id. (citing Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996)).
22
Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012) (en banc).
23
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted).
9
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attachments thereto.” 24 Although “pro se complaints are held to less
stringent standards,” this Court has made clear that even for pro se litigants
“conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” 25
2. Chapter 15 of the Texas Business & Commerce Code Claim
Dougherty additionally alleges that Unnamed Defendants violated the
Texas Business and Commerce Code § 15.05(a) by conspiring to “reduce the
output” of her legal practice. Under § 15.05(a), “[e]very contract,
combination, or conspiracy in restraint of trade or commerce is unlawful.”
The district court dismissed this claim on the grounds that Dougherty had
failed to state a claim against the Unnamed Defendants “absent actionable
identifying information” regarding the identity of the defendants or
sufficient information to render it conceivable that discovery would prove
fruitful in uncovering their identities.
On appeal, Dougherty does not dispute that she has not plausibly
alleged a state-law antitrust claim and instead argues that dismissal should be
without prejudice, allowing her to refile and obtain discovery to identify the
unknown officers. We agree that Dougherty’s amended complaint does not
“contain sufficient factual matter, accepted as true,” to state a Texas
antitrust claim against the Unnamed Defendants. 26
Even setting aside the fact that Dougherty’s amended complaint lacks
any identifying information about the Unnamed Defendants, the complaint
_____________________
24
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (citing
Fed. R. Civ. P. 12(b)(6)).
25
Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal
quotation marks and citations omitted).
26
Iqbal, 556 U.S. at 678 (citation omitted).
10
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fails to survive a Rule 12(b)(6) motion for the independent reason that it is
devoid of any allegations that these officers were part of an antitrust
conspiracy that resulted in significant market control over the relevant
industry. The totality of Dougherty’s allegation under this claim is that
“[t]he Doe Defendants violated . . . § 15.05(a) by acting in combination
and/or conspiring in their acts to reduce the output of plaintiff’s lawful
business activities which are in opposition to the unauthorized practice of
immigration law and to remedy the injury thereby imposed.” Notably
lacking is any allegation—plausible or otherwise—that the Unnamed
Defendants were conspiring to unreasonably restrain trade, which is an
essential element of the Texas antitrust statute. 27 Accordingly, Dougherty
has failed to state a plausible state-law antitrust claim against the Unnamed
Defendants.
3. Bivens Claims
Finally, Dougherty brings claims under Bivens against the Unnamed
Defendants for violating her First, Fourth, and Fifth Amendments by
“exceeding every state and/or federal statut[e] . . . which concerns wiretaps,
protected information, and computer access.” The district court dismissed
Dougherty’s Bivens claims after concluding there was no “compelling
argument” to extend Bivens to this new context.
_____________________
27
See In re Champion Printing & Copying, L.L.C., No. 21-51234, 2023 WL 179851,
at *4 (5th Cir. Jan. 13, 2023) (per curiam) (unpublished) (analyzing claims filed under
Texas Business and Commercial Code § 15.05(a) and noting that under that provision
“plaintiffs cannot ‘demonstrate the unreasonableness of a restraint merely by showing that
it caused [one person] economic injury.” (citing Regal Ent. Grp. v. iPic-Gold Class Ent.,
LLC, 507 S.W.3d 337, 348 (Tex. App.—Houston [1st Dist.] 2016, no pet.)). Unpublished
opinions issued in or after 1996 are “not controlling precedent” except in limited
circumstances, but they “may be persuasive authority.” Ballard v. Burton, 444 F.3d 391,
401 n.7 (5th Cir. 2006).
11
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The Supreme Court has set forth a two-step inquiry to determine
whether a cognizable Bivens remedy exists. At step one, the court must
determine whether a claim “presents a new Bivens context.” 28 A Bivens
claim arises in a “new context” if “the case is different in a meaningful way
from previous Bivens cases decided by” the Supreme Court. 29 If a case arises
in a new context, “a Bivens remedy is unavailable if there are ‘special factors’
indicating that the Judiciary is at least arguably less equipped than Congress
to ‘weigh the costs and benefits of allowing a damages action to proceed.’” 30
As to the first step, we agree with the district court that Dougherty’s
claims arise in a “new Bivens context.” The Supreme Court has never
recognized a First Amendment Bivens claim, and Dougherty’s Fourth and
Fifth Amendment Bivens claims differ meaningfully from previous Bivens
cases involving those constitutional provisions. 31 As recognized by the
Fourth Circuit, “a claim based on unlawful electronic surveillance presents
wildly different facts and a vastly different statutory framework from a
warrantless search and arrest.” 32
At the second step, we find that “special factors” counsel hesitation
against recognizing a new Bivens remedy. Specifically, because “Congress
has provided alternative remedies for aggrieved parties in [Dougherty’s]
_____________________
28
Ziglar v. Abbasi, 582 U.S. 120, 139 (2017).
29
Id.30
Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting Ziglar, 582 U.S. at 136).
31
In Bivens, the Court created an implied damages remedy under the Fourth
Amendment for an allegedly unconstitutional search and seizure. 403 U.S. at 389. And in
Davis v. Passman, the Court recognized a Bivens remedy in a Fifth Amendment gender-
discrimination case. 442 U.S. 228, 230 (1979).
32
Attkisson v. Holder, 925 F.3d 606, 621 (4th Cir. 2019).
12
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position,” that “independently foreclose a Bivens action.” 33 As evidenced
by Dougherty’s federal statutory claims, “Congress has created several
private causes of actions under various statutes governing the surveillance
and the integrity of personal computing devices, including the SCA, FISA,
and the CFAA.” 34 Accordingly, we affirm the district court’s dismissal of
Dougherty’s First, Fourth, and Fifth Amendment Bivens claims with respect
to the Unnamed Defendants.
4. Dismissal With Prejudice
Dougherty argues that the district court erred in dismissing her state-
law antitrust claim and Bivens claims with prejudice given that she has not
been able to conduct discovery into the identity of the Unnamed Defendants.
Although the decretal language in the district court’s amended order did not
explicitly dismiss these claims with or without prejudice, “a dismissal is
presumed to be with prejudice unless the order explicitly states otherwise.” 35
“Generally[,] a district court errs in dismissing a pro se complaint for
failure to state a claim under Rule 12(b)(6) without giving the plaintiff an
opportunity to amend.” 36 However, dismissal without prejudice is not
required “if the plaintiff has already pleaded his ‘best case.’” 37 We find that
Dougherty has pleaded her “best case.” She has presented her arguments
several times before the district court in both her initial and amended
_____________________
33
Egbert, 142 at 1806.
34
Attkisson, 925 F.3d at 621.
35
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n.8 (5th Cir. 1993)
(citations omitted).
36
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam) (citing Moawad
v. Childs, 673 F.2d 850, 851-52 (5th Cir. 1982)).
37
Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per curiam) (citation
omitted).
13
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complaint, as well as her opposition to the Defendants’ motion to dismiss
and her Rule 59(e) motion to “alter or amend” the district court’s order.
Despite these opportunities, Dougherty remains unable to state plausible
antitrust and Bivens claims against the Unnamed Defendants.
Further, Dougherty’s appellate filings fail to identify “what facts [s]he
would have added or how [s]he could have overcome the deficiencies found
by the district court if [s]he had been granted an opportunity to amend.” 38
Although Dougherty contends that she would not refile these claims without
identifying the Unnamed Defendants, she does not explain how uncovering
the identity of the officers would cure the deficiencies in her Bivens claims or
her failure to even allege the basic components of an antitrust conspiracy.
Therefore, because Dougherty has failed to show the district court erred in
dismissing her Bivens and antitrust claims presumably with prejudice.
5. Statute of Limitations
Dougherty’s complaint also appears to assert violations of the ECPA,
CFAA, and SCA against the Unnamed Defendants in their individual
capacities. The district court dismissed these claims as time barred under 18
U.S.C. § 2520(e) (ECPA), 18 U.S.C. § 1030(g) (CFAA), and 18 U.S.C.
§ 2707(f) (SCA). We find no reversable error in the district court’s dismissal
of Dougherty’s ECPA, SCA, and CFAA claims against the Unnamed
Defendants.
C. Entitlement to Discovery
Finally, Dougherty asserts the district court abused its discretion in
staying discovery pending resolution of Defendants’ motion to dismiss and
_____________________
38
Goldsmith v. Hood Cnty. Jail, 299 F. App’x 422, 423 (5th Cir. 2008) (per curiam)
(unpublished).
14
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granting Defendants’ motion to quash her third-party subpoenas. The
district court explained that the subpoenas were premature under the Federal
Rules, and that the court had concerns about potential First Amendment
issues as to the Twitter subpoena. We review a district court’s order to stay
discovery pending a dispositive motion for abuse of discretion. 39 And we
review a district court’s grant of a motion to quash a subpoena under the
same standard. 40 As the party seeking discovery, Dougherty bears the
burden of showing its necessity. 41
A plaintiff is not entitled to jurisdictional discovery “if the record
shows that the requested discovery is not likely to produce the facts needed
to withstand” a motion to dismiss. 42 In this case, we are unable to see how
discovery into the identities of the Unnamed Defendants would have
impacted our dismissal of Dougherty’s claims on the grounds of sovereign
immunity, exhaustion, timeliness, failure to plausibly state an antitrust
injury, and the creation of a new Bivens context. Accordingly, we can discern
no abuse of discretion in the district court’s decision to grant a motion to stay
discovery and quash Dougherty’s third-party subpoenas.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s amended
judgment as modified. Specifically, we modify the judgment to state that
Dougherty’s ECPA and CFAA claims against DHS are dismissed without
_____________________
39
Davila v. United States, 713 F.3d 248, 263-64 (5th Cir. 2013) (citation omitted);
see also Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987) (“A trial court has broad discretion
and inherent power to stay discovery until preliminary questions that may dispose of the
case are determined.”).
40
Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994).
41
Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009) (citation omitted).
42
Davila, 713 F.3d at 264.
15
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prejudice. We otherwise affirm the district court’s judgment that
Dougherty’s SCA claims are dismissed without prejudice and the remainder
of her claims are dismissed with prejudice. AFFIRMED AS
MODIFIED.
16