Case 1:15-cv-00372-RP Document 72 Filed 04/25/17 Page 1 of 4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEFENSE DISTRIBUTED, et al.,

Plaintiffs,

v. No. 1:15cv372-RP

U.S. DEPARTMENT OF STATE, et al.,
Defendants.

INDIVIDUAL DEFENDANTS RESPONSE TO THE OFFICIAL CAPACITY

DEFENDANTS MOTION TO STAY DEADLINES AS TO OFFICIAL CAPACITY
DEFENDANTS, PENDING CERTIORARI PROCEEDINGS

Individual Defendants Kenneth B. Handelman, C. Edward Peartree, Sarah J. Heidema,

and Glenn Smith do not oppose the motion filed by the Official Capacity Defendants to stay

deadlines as to the official capacity claims, pending certiorari resolution. (ECF 70). However, in

response, Plaintiffs have asked this Court to continue to stay all proceedings, pending

certiorari resolution. (ECF 71, at 2) (emphasis added). The Individual Defendants oppose

Plaintiffs request for the following reasons:

Contrary to Plaintiffs assertion, (ECF 71, at 1), there is no overlap between the question
upon which they intend to seek certiorari the standard for issuing a preliminary
injunction and the defenses available to the Individual Defendants on the underlying
constitutional claims. The Fifth Circuit resolved Plaintiffs appeal without addressing the
merits at all. See Defense Distributed v. U.S. Dept of State, 838 F.3d 451 (5th Cir. 2016).

Although it is theoretically possible though unlikely at this point that some higher
court might still address whether Plaintiffs have established a likelihood of success on the
merits of their injunctive claims against the government itself, resolution of that question
would not affect the defenses available to the Individual Defendants on the individual-
capacity damages claims.

Resolution of the merits question would certainly not affect the personal jurisdiction and
standing questions raised by the Individual Defendants in their motion to dismiss.

Nor would resolution of the merits question answer the threshold legal questions of (1)
whether special factors counsel hesitation against recognizing a separate damages action
against the Individual Defendants under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), or (2) whether the asserted

Response to Official-Capacity Defendants Stay Motion Pending Certiorari 1

 Case 1:15-cv-00372-RP Document 72 Filed 04/25/17 Page 2 of 4

constitutional rights were clearly established such that the Individual Defendants are
entitled to qualified immunity. Indeed, the Fifth Circuit panel majority called these
constitutional questions novel and difficult, see Defense Distributed, 838 F.3d at 461,
and the differing opinions regarding the underlying constitutional claims offered by this
Court, the Fifth Circuit panel majority, and the panel dissent all but dictate that the
Individual Defendants are entitled to qualified immunity.1

This case has been pending for almost two years, even though the Supreme Court
repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest
possible stage in litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

This appeal has been pending for almost 20 months, demonstrating that Plaintiffs prior
representation that appeal of the Courts order is not likely to be lengthy has proven
untrue. (ECF 63, at 9).

After failing to have this Courts ruling overturned, Plaintiffs unsuccessfully sought a
stay in the Fifth Circuit. The court denied that motion and issued its mandate on April 4,
2017, thereby resolving any question of whether this Court has jurisdiction to entertain
briefing on the Individual Defendants motion to dismiss. The Fifth Circuit clearly saw
no reason for further delay pending any Supreme Court resolution.

Thus, while the Individual Defendants do not oppose a stay of the official-capacity

claims, a blanket stay of all proceedings is unwarranted. The Supreme Court has recognized that

individual-capacity suits can entail substantial social costs, Anderson v. Creighton, 483 U.S.

635, 638 (1987), not to mention the significant toll they can have on the named federal

employees. It is time to resolve that aspect of the case.

Respectfully submitted,

RICHARD L. DURBIN, JR. CHAD A. READLER

United States Attorney
Western District of Texas
ZACHARY C. RICHTER
Assistant United States Attorney
Western District of Texas
Acting Assistant Attorney General, Civil Division
C. SALVATORE DALESSIO, JR.
Acting Director, Torts Branch, Civil Division
MARY HAMPTON MASON
Senior Trial Counsel, Torts Branch, Civil Division

1
See Wilson v. Layne, 526 U.S. 603, 618 (1999) (where judges disagree on constitutional
question, it is unfair to subject individuals to money damages for picking the losing side of the
controversy); Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (where judges disagree on
constitutional question, qualified immunity is deserve[d]).

Response to Official-Capacity Defendants Stay Motion Pending Certiorari 2

 Case 1:15-cv-00372-RP Document 72 Filed 04/25/17 Page 3 of 4

/s/ Siegmund F. Fuchs

SIEGMUND F. FUCHS
Trial Attorney, Torts Branch, Civil Division
U.S. Department of Justice
Ben Franklin Station
P.O. Box 7146
Washington, D.C. 20044-7146
Tel (202) 616-4322; Fax (202) 616-4314
E-mail: siegmund.f.fuchs@usdoj.gov

Attorneys for the Individual Capacity Defendants

Response to Official-Capacity Defendants Stay Motion Pending Certiorari 3

 Case 1:15-cv-00372-RP Document 72 Filed 04/25/17 Page 4 of 4

CERTIFICATE OF SERVICE

I certify that on April 25, 2017, I electronically filed this document with the Clerk of
Court using the CM/ECF system, which will send notification to

Alan Gura, alan@gurapossessky.com

William Mateja, mateja@polsinelli.com
W. Thomas Jacks, jacks@fr.com
David Morris, dmorris@fr.com
Matthew Goldstein, matthew@goldsteinpllc.com
Josh Blackman, joshblackman@gmail.com
Attorneys for Plaintiffs

Eric Soskin, eric.soskin@usdoj.gov

Stuart Robinson, stuart.j.robinson@usdoj.gov
Zachary Richter, Zachary.c.richter@usdoj.gov
Attorneys for Defendants

/s/ Siegmund F. Fuchs

SIEGMUND F. FUCHS
Trial Attorney

Response to Official-Capacity Defendants Stay Motion Pending Certiorari 4