Case 1:15-cv-00372-RP Document 65 Filed 09/29/15 Page 1 of 6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DEFENSE DISTRIBUTED, et al.,
Plaintiffs,
v.
U.S. DEPARTMENT OF STATE, et al.,
Defendants.

No. 1:15-cv-372-RP

U.S. GOVERNMENT DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO

STAY PROCEEDINGS PENDING APPEAL AND REQUEST
FOR EXPEDITED BRIEFING SCHEDULE
The U.S. Department of State, the Directorate of Defense Trade Controls, and the
official-capacity Defendants in this matter (hereinafter U.S. Government Defendants), hereby
oppose Plaintiffs Motion to Stay Proceedings Pending Appeal and Request for Expedited
Briefing Schedule, ECF No. 63 (Pl. Mot.). 1
Although the U.S. Government Defendants previously negotiated a postponement of
deadlines related to Plaintiffs claims for injunctive relief, the U.S. Government Defendants
oppose Plaintiffs requested stay of proceedings on Plaintiffs claims for damages. The U.S.
Government Defendants oppose due to concerns intrinsic to the U.S. Government, as follows:
1.

The public interest is served by immediate resolution of the threshold

defenses of federal officials named in their personal capacities.

Officials of the United States are named as personal-capacity defendants frequently in

venues throughout the United States. Taken in aggregate, these suits present an immense risk of
distraction of officials from their governmental duties, inhibition of discretionary action, and
deterrence of able people from public service. Nieto v. San Perlita Independent School Dist.,
1

Plaintiffs did not confer with the U.S. Government Defendants regarding their request for an
expedited briefing schedule. This request, which the U.S. Government Defendants oppose, is
now moot.

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894 F.2d 174, 177 (5th Cir. 1990) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). It is
therefore to protect the public interest in the ability of the federal government to function here,
in the fields of national defense and foreign affairs that the Supreme Court and the Fifth Circuit
have mandated that officials named in their personal-capacity be afforded the opportunity to
raise defenses at the earliest possible stage. Id.; accord Harlow v. Fitzgerald, 457 U.S. 800,
814 (1982) (Bivens-styled claims frequently run against the innocent as well as the guiltyat a
cost not only to the defendant officials, but to society as a whole . . . [by] the diversion of official
energy from pressing public issues, and the deterrence of able citizens from acceptance of public
office); Pahls v. Thomas, 718 F.3d 1210, 1226-27 (10th Cir. 2013) (public officials enjoy
qualified immunity because of the substantial social costs of [d]amages actions against
public officials.).
Under the theory set forth in Plaintiffs motion, however, the ability of federal officials to
raise such defenses could be postponed at length, potentially for years, whenever a plaintiff
sought a preliminary injunction in a case raising damages claims against federal officials. Indeed,
Plaintiffs theory would postpone consideration of qualified immunity whenever a plaintiff
asserted that a proposed preliminary injunction raised a complex constitutional[] question that
involved a serious legal question. 2 Pl. Mot. at 3, 7. This would eviscerate the principle of
action on the defenses of personal-capacity defendants at the earliest possible stage. Mitchell,
472 U.S. at 526. Fortunately, Plaintiffs position is not the law the Supreme Court has
recognized that courts may reach the question of whether the law was clearly established, and

Plaintiffs separately assert that the Court should grant the stay because resolving the personalcapacity claims would encroach upon the Court of Appeals jurisdiction. Pl. Mot. at 3. Yet
this argument is in direct tension with Plaintiffs own litigation judgment that this Court had
jurisdiction to entertain Plaintiffs modification of those claims in the First Amended Complaint.
See ECF No. 47 (filed Aug. 21, 2015, eight days after Plaintiffs Notice of Appeal).
2

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thus, whether individual defendants are entitled to qualified immunity, without reference to the
underlying constitutional question. See, e.g., Mordi v. Zeigler, 770 F.3d 1161, 1165 (7th Cir.
2014) (applying Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
2.

Postponing Consideration of the Individual Defendants Claims Is Likely to

Delay Resolution of the Claims Against the U.S. Government Defendants, to
the Detriment of the Parties and the Public Interest.

Plaintiffs concede that their requested stay is likely to cause a delay in proceedings in
resolving the claims against the individual defendants, see Pl. Br. at 9, but notably absent from
Plaintiffs motion is recognition of the likelihood that a stay will also delay resolution of the
claims against the U.S. Government Defendants. Such a delay could be substantial, and the
harm to the U.S. Government Defendants and the public interest caused by such a delay provides
ample reason to deny Plaintiffs motion.
The individual defendants have twice moved to dismiss the claims brought against them,
in part on the basis of qualified immunity. See ECF Nos. 44, 61. As noted above, it is beyond
cavil that the individual defendants are entitled to have this defense resolved at the earliest
possible stage in litigation. Pearson, 555 U.S. at 232. If the Court delays resolution of this
defense for as long as it takes the Court of Appeals to act on the interlocutory appeal, the
individual defendants will likely then seek to proceed with their defense while further
proceedings on the claims against the U.S. Government Defendants are stayed. And such a stay
would likely extend to crucial matters such as discovery into Plaintiffs claims. See, e.g., Backe
v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (One of the most salient benefits of qualified
immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive
. . . .). The delay occasioned while the individual defendants claims are resolved could
potentially be lengthy should the Court deny the individual defendants motion to dismiss, they

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would be entitled (if they choose) to bring a second interlocutory appeal in this case, during
which time the stay would likely continue. See id. (As the Supreme Court has emphatically
directed, qualified immunity is an immunity from suit . . . [and] a denial of qualified immunity
may be immediately appealed.).
At this stage in the litigation, only Plaintiffs motion for preliminary relief against the
U.S. Government Defendants is before the Court of Appeals. It is therefore likely that regardless
of the outcome of Plaintiffs interlocutory appeal, further proceedings in this Court will be likely
to ultimately resolve Plaintiffs claims against the U.S. Government Defendants. And, as the
U.S. Government Defendants have explained previously, those claims challenge a regulatory
scheme intended to prevent irreversible harm to national security and foreign policy, ECF No.
32 at 20, n.16, by regulat[ing] the trafficking of articles, particularly military articles, across
[national] borders. Id. at 2. The eventual delay in resolving these claims from Plaintiffs
requested stay thus runs the risk of leaving in doubt the U.S. Government Defendants ability to
fulfill Congress will that they further[] world peace and the security and foreign policy of the
United States [by] control[ling] the import and the export of defense articles and defense
services. Arms Export Control Act, 22 U.S.C. 2778(a)(1).
Where these paramount interests of the U.S. Government Defendants are at stake, the
public interest is no different than the defendants interest. See Nken v. Holder, 556 U.S. 418,
435 (2009). As the Supreme Court explained in Nken, where the [U.S.] Government is the
opposing party to a stay, the factors assessing the harm to the opposing party and weighing the
public interest . . . merge. Id.; U.S. v. Transocean Deepwater Drilling, Inc., 537 Fed. Appx.
358, 360 (5th Cir. 2013); accord U.S. v. Stanley, 112 A.F.T.R.2d 2013-7227, 2013 WL 6330505
(S.D. Miss. 2013).

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Neither the interests of the U.S. Government nor the interests of the public will be served
by the possibility of a long delay in resolving Plaintiffs claims against the U.S. Government
Defendants. Because such a delay can best be avoided by proceeding with the individual
defendants motion to dismiss now, the U.S. Government Defendants respectfully request that
Plaintiffs request to stay consideration of the individual defendants motion to dismiss be
denied.
Dated: September 29, 2015

Respectfully submitted,

RICHARD L. DURBIN, JR.

United States Attorney
Western District of Texas

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
Civil Division

ZACHARY C. RICHTER
Assistant United States Attorney
Western District of Texas

ANTHONY J. COPPOLINO
Deputy Branch Director
Federal Programs Branch
/s/ Eric J. Soskin
ERIC J. SOSKIN
Pennsylvania Bar No. 200663
STUART J. ROBINSON
California Bar No. 267183
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW, Room 7116
Washington, DC 20530
Phone: (202) 353-0533
Fax: (202) 616-8470
Email: Eric.Soskin@usdoj.gov
Attorneys for Official-Capacity Defendants

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CERTIFICATE OF SERVICE
I certify that on September 29, 2015, 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 B. Mateja, mateja@fr.com
William T. Tommy Jacks, jacks@fr.com
David S. Morris, dmorris@fr.com
Matthew Goldstein, matthew@goldsteinpllc.com
Joshua M. Blackman, joshblackman@gmail.com

Attorneys for Plaintiffs

/s/ Eric J. Soskin

ERIC J. SOSKIN
Trial Attorney