United States District Court, W.D. Texas, Austin Division
DEFENSE DISTRIBUTED and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs,
UNITED STATES DEPARTMENT OF STATE, et al., Defendants.
PITMAN UNITED STATES DISTRICT JUDGE
the Court in the above-entitled matter is a Motion to Stay
Proceedings filed by those Defendants sued in their official
capacities (“official-capacity Defendants”).
(Dkt. 70). Having considered the filings, relevant case law,
and the entire case file, the Court hereby issues the
April 29, 2015, Plaintiffs Defense Distributed and the Second
Amendment Foundation (“SAF”) (collectively,
“Plaintiffs) filed this action against the United
States Department of State, Secretary of State Rex Tillerson,
the Directorate of Defense Trade Controls
(“DDTC”), and employees of the DDTC in their
official and individual capacities. Plaintiffs assert that
the imposition by Defendants of a prepublication approval
requirement for “technical data” related to
“defense articles” constitutes: (1) an ultra
vires government action; (2) a violation of Plaintiffs'
rights to free speech under the First Amendment; (3) a
violation of Plaintiffs' right to keep and bear arms
under the Second Amendment; and (4) a violation of Plaintiffs
right to due process of law under the Fifth Amendment.
Plaintiffs also contend these alleged violations of their
constitutional rights entitle them to monetary damages.
filed a Motion for Preliminary Injunction on May 11, 2015.
(Dkt. 7). After conducting a hearing, the Court denied
Plaintiffs' motion. (Dkt. 43). Plaintiffs appealed, and
the Court granted their Motion to Stay Proceedings. (Dkt.
66). In that Order, the Court specified that the action was
stayed “during the pendency of Plaintiffs'
interlocutory appeal” and that “[a]ll pending
matters and settings [were abated] pending further order from
this Court.” (Id. at 2). On September 20,
2016, a divided panel of the U.S. Court of Appeals for the
Fifth Circuit affirmed this Court's denial of
Plaintiffs' Motion for Preliminary Injunction.
Defense Distributed, e t al. v. U.S. Dep't of State,
et al., 838 F.3d 451 (5th Cir. 2016). On March 15, 2017,
the Fifth Circuit denied Plaintiffs' petition for
rehearing en banc. (Defense Distributed, No.
15-50759, Doc. 513913565). Plaintiffs then sought a stay of
the Fifth Circuit's mandate, representing that they
“intend to petition the Supreme Court for a writ of
certiorari to review the panel's decision.”
(Id., Doc. 513920142). The Fifth Circuit denied
Plaintiffs' motion, and the mandate issued on April 4,
2017. (Dkt. 68).
Motion to Stay
instant motion asks the 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. (Mot.
Stay, Dkt. 70, at 1). The official-capacity Defendants
represent that the individual-capacity Defendants do not
oppose the motion. (Id. at 2). In response,
Plaintiffs argue that the Motion to Stay is unnecessary given
the language of the Court's October 1, 2015 order
imposing the stay. (Resp., Dkt. 71).
Court agrees with Plaintiffs. The Order imposing the stay
made clear that this action would be stayed “during the
pendency of Plaintiffs' interlocutory appeal” and
until further order from this Court. (Order, Dkt. 66, at 2).
Given both (1) Plaintiffs' stated intent to continue
their appeal with a petition to the Supreme Court for a writ
of certiorari, and (2) the absence of any order from this
Court terminating or modifying the stay, there is no need for
the relief sought in the instant motion. This matter will
remain stayed pending a further order from this Court, which
will not issue prior to (1) the expiration of Plaintiffs'
deadline for filing their petition for writ of certiorari; or
(2) the Supreme Court's resolution of Plaintiffs'
timely filed petition for writ of certiorari.
Motion to Strike
April 25, 2017, Defendants Kenneth B. Handelman, C. Edward
Peartree, Sarah J. Heidema, and Glenn Smith
(“individual-capacity Defendants”) filed a
Response to the official-capacity Defendants' Motion to
Stay. (Dkt. 72). In their Response, the individual-capacity
Defendants clarified that they “do not oppose the
motion . . . as to the official capacity claims.”
(Id. at 1). The individual-capacity Defendants do
oppose, however, what they construe as Plaintiffs'
request to “continue to stay all proceedings.”
(Id.). Plaintiffs then filed a Motion to Strike the
individual-capacity Defendants' Response, arguing that
the purported Response violates Federal Rule of Civil
Procedure 7(b)(1)'s requirement that “[a] request
for a court order must be made by motion.” (Dkt. 73).
Court agrees with Plaintiffs. The Court's Order imposing
a stay in this matter applied to all defendants, including
those named in their individual capacities. As that Order
remains in effect, (see supra Section II(A)), any
request to lift the stay as to the individual-capacity
Defendants must be made by way of a separate motion.
THEREFORE ORDERED that the official-capacity Defendants'