Case 1:15-cv-00372-RP Document 70 Filed 04/20/17 Page 1 of 4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEFENSE DISTRIBUTED, et al.,

Plaintiffs,

v. No. 1:15-cv-372-RP

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

MOTION TO STAY PROCEEDINGS PENDING ACTION BY THE SUPREME COURT

ON PLAINTIFFS PETITION FOR A WRIT OF CERTIORARI
Pursuant to Federal Rule of Civil Procedure 15(a)(3), the official capacity Defendants
respectfully move this Court to stay further proceedings as to the claims against the official
capacity Defendants pending the filing of Plaintiffs petition for a writ of certiorari, and
subsequent action by the Supreme Court on Plaintiffs petition.
On August 31, 2015, the Court granted the official capacity Defendants unopposed
motion to extend the time for a response to Plaintiffs First Amended Complaint. See ECF Nos.
51, 52. This order set the date for a responsive pleading by the official capacity Defendants for
no later than 21 days after a mandate issues from the United States Court of Appeals for the
Fifth Circuit on Plaintiffs pending interlocutory appeal. ECF No. 52. The individual capacity
Defendants did not join in this motion, and filed a motion to dismiss Plaintiffs claims as to the
individual capacity defendants. See ECF No. 61. Plaintiffs then moved to stay proceedings,
proposing that Plaintiffs response to the Individual Defendants Motion to Dismiss [be] due 35
days following the issuance of the Fifth Circuits mandate in the pending appeal. [Proposed]
Order, ECF No. 63-1; see ECF No. 63.
On October 1, 2015, the Court granted Plaintiffs Motion to Stay Proceedings Pending
Appeal for the pendency of Plaintiffs interlocutory appeal. See ECF No. 66. Following briefing
and oral argument, on September 20, 2016, a divided panel of the Fifth Circuit affirmed this
Courts denial of Plaintiffs motion for a preliminary injunction. See Defense Distributed, et al.
 Case 1:15-cv-00372-RP Document 70 Filed 04/20/17 Page 2 of 4

v. U.S. Dept of State, et al., No. 15-50759, 838 F.3d 451 (5th Cir. 2016). 1 On March 15, 2017,
the Fifth Circuit denied Plaintiffs petition for rehearing en banc. See Dkt. 36, No. 15-50759 (5th
Cir.). 2 Plaintiffs sought a stay of the Fifth Circuits mandate, representing that they intend to
petition the Supreme Court for a writ of certiorari to review the panels decision. Dkt. No. 37 at
3, No. 15-50759 (Mar. 21, 2017). The Court of Appeals denied Plaintiffs motion, and the
mandate issued on April 4, 2017. See Dkt. No. 38, No. 15-50759.
As noted in the official capacity Defendants prior stay motion, it would not serve the
interests of judicial economy or facilitate the efficient management of this litigation to proceed
while the parties are briefing overlapping issues on appeal. See ECF No. 51. The same is true
with regard to the certiorari proceedings before the Supreme Court now that appellate
proceedings in the Fifth Circuit are complete. Under the circumstances, the Court should
exercise its discretion to continue its stay of the official capacity Defendants obligation to
respond to Plaintiffs claims until certiorari proceedings are complete.
Undersigned counsel has consulted with counsel for the individual capacity Defendants,
who do not oppose this motion, and counsel for the Plaintiffs, who stated that Plaintiffs oppose
the motion as unnecessary, as the matter is stayed (Dkt. 66) and should remain so until the
Supreme Court has had an opportunity to express itself on the matter. 3

Dated: April 20, 2017 Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General
Civil Division

ANTHONY J. COPPOLINO

1
Judge Jones authored a dissent from the panel opinion. See 838 F.3d 451, 461-75 (5th Cir.
2016).
2
Judge Elrod authored a dissent from the denial of rehearing en banc, which three other judges
joined. See --- F.3d ---, 2017 WL 1032309 (5th Cir. 2017) (a fifth judge dissented from the
denial of rehearing, but did not join in the dissenting opinion).
3
In the event the Court denies this motion, the official capacity Defendants respectfully request
an extension of 14 days, to May 9, 2017, in which to respond to Plaintiffs Amended Complaint.

2
Case 1:15-cv-00372-RP Document 70 Filed 04/20/17 Page 3 of 4

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 U.S. Government Defendants

3
 Case 1:15-cv-00372-RP Document 70 Filed 04/20/17 Page 4 of 4

CERTIFICATE OF SERVICE

I certify that on April 20, 2017, I electronically filed this document with the Clerk of
Court using the CM/ECF system, which will send notification to

Alan Gura, alan@gurapllc.com

William B. Mateja, mateja@polsinelli.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

Siegmund Fred Fuchs

siegmund.f.fuchs@usdoj.gov
Attorney for Individual Capacity Defendants

/s/ Eric J. Soskin

ERIC J. SOSKIN
Trial Attorney