Case: 15-50759 Document: 00513920142 Page: 1 Date Filed: 03/21/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DEFENSE DISTRIBUTED, et al., ) No. 15-50759

)
)
Plaintiffs-Appellants, )
)
v. )
)
U.S. Dept. of State, et al., )
)
Defendants-Appellees )
________________________________________)

MOTION TO STAY THE MANDATE PENDING

A PETITION FOR WRIT OF CERTIORARI

Pursuant to Fed. R. App. P. 41, Plaintiffs-Appellants Defense

Distributed and Second Amendment Foundation, Inc. respectfully move

this Court to stay the issuance of its mandate in this case for ninety

days pending the filing of their petition for a writ of certiorari, without

prejudice to further extensions if the Supreme Court extends the time

to petition.

Pursuant to 5th Cir. R. 27.4, Plaintiffs-Appellants aver that counsel

have met and conferred regarding the motion, and that the Appellees

oppose this motion.

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CERTIFICATE OF INTERESTED PERSONS

Defense Distributed, et al. v. U.S. Dept of State, et al., No. 15-50759

The undersigned counsel of record certifies that the following listed

persons and entities as described in the fourth sentence of Rule 28.2.1

have an interest in the outcome of this case. These representations are

made in order that the judges of this Court may evaluate possible

disqualification or recusal.

Plaintiffs:
Defense Distributed, Second Amendment Foundation, Inc.

Defendants:
U.S. Dept of State, Rex Tillerson, Directorate of Defense Trade
Controls, Kenneth B. Handelman, Brian H. Nilsson, C. Edward
Peartree, Sarah J. Heidema, Glenn Smith

Plaintiffs Counsel:
Alan Gura, Gura & Possessky, PLLC; Matthew A. Goldstein, Matthew
A. Goldstein, PLLC; William B. Mateja, Polsinelli P.C.; William T.
Tommy Jacks, David Morris, Fish & Richardson P.C.; Josh Blackman

Defendants Counsel:
Loretta Lynch, Michael S. Raab, Daniel Bentele Hahs Tenny, Eric J.
Soskin, Stuart J. Robinson, Richard L. Durban, Benjamin C. Mizer,
Anthony J. Coppolino, Zachary C. Richter, U.S. Department of
Justice

Amici Curiae for Plaintiffs-Appellants

Representative Thomas Massie (Kentucky)
Representative Brian Babin (Texas)
Representative K. Mike Conaway (Texas)
Representative Jeff Duncan (South Carolina)

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Representative Blake Farenthold (Texas)

Representative John Fleming (Louisiana)
Representative Paul Gosar (Arizona)
Representative Walter Jones (North Carolina)
Representative Mike Kelly (Pennsylvania)
Representative Steve King (Iowa)
Representative Ral Labrador (Idaho)
Representative Jeff Miller (Florida)
Representative Bill Posey (Florida)
Representative Todd Rokita (Indiana)
Representative Daniel Webster (Florida)
Cato Institute
Electronic Frontier Foundation
Madison Society Foundation, Inc.
Reporters Committee for Freedom of the Press
Texas Public Policy Foundation
Thomas Jefferson Center for the Protection of Free Expression

Counsel for Amici Members of Congress

Raffi Melkonian, Wright & Close, LLP

Counsel for Amicus Curiae Cato Institute

Ilya Shapiro, Randal J. Meyer

Counsel for Amicus Curiae Electronic Frontier Foundation

Kit Walsh, Adam Schwartz

Counsel for Amicus Madison Society Foundation, Inc.

David T. Hardy; Leif A. Olson, The Olson Firm, PLLC

Counsel for Amicus Curiae Reporters Committee:

Bruce D. Brown, Gregg P. Leslie, Hannah Bloch-Wehba

Counsel for Amicus Curiae Texas Public Policy Foundation

Robert Henneke
Joel Stonedale

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Counsel for Amicus Curiae Thomas Jefferson Center

J. Joshua Wheeler

Amicus Curiae for Defendants-Appellees

Brady Center to Prevent Gun Violence

Counsel for Amicus Curiae Brady Center:

John D. Kimball, Martin S. Krezalek, Nicholas R. Tambone, Blank
Rome LLP

/s/ Alan Gura

Alan Gura
Counsel for Appellants

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STATEMENT OF FACTS

1. On September 20, 2016, a divided panel affirmed the District

Courts denial of Plaintiffs motion for a preliminary injunction. In so

doing, the majority noted that [t]his case presents a number of novel

issues, making for difficult questions. Slip op. at 14. The majority

further noted the importance of the issues presented. Id.

2. On March 15, 2017, the Court denied Plaintiffs petition for

rehearing en banc by a vote of 9-5. Dissenting from the denial of

rehearing, Judge Elrod offered that the panel opinion permits perhaps

the most egregious deprivation of First Amendment rights possible,

Dkt. 36 at 3, and creates a split with ten circuits, id. at 4.

3. Plaintiffs intend to petition the Supreme Court for a writ of

certiorari to review the panels decision.

4. On September 1, 2015, the District Court extended the official

capacity defendants deadline to respond to the complaint until 21 days

following the issuance of the mandate. Dist. Ct. Dkt. 52.

5. On September 14, 2015, the individual capacity defendants moved

to dismiss the complaint. Dist. Ct. Dkt. 61.

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6. On October 1, 2015, the District Court stayed proceedings until

the termination of the appeal proceedings. Dist. Ct. Dkt. 66, at 2.

ARGUMENT

A party may move to stay the mandate pending the filing of a

petition for a writ of certiorari in the Supreme Court. The motion
must be served on all parties and must show that the certiorari
petition would present a substantial question and that there is good
cause for a stay.

Fed. R. App. 41(d)(2)(A). To stay the mandate pending certiorari,

[t]here must be a reasonable probability that four members of the

Court would consider the underlying issue sufficiently meritorious
for the grant of certiorari or the notation of probable jurisdiction;
there must be a significant possibility of reversal of the lower courts
decision; and there must be a likelihood that irreparable harm will
result if that decision is not stayed.

Baldwin v. Maggio, 715 F.2d 152, 153 (5th Cir. 1983) (quoting

Barefoot v. Estelle, 463 U.S. 880, 895 (1983)).

All three factors are established here.

1. Reasonable Probability of Certiorari

If five judges of this Court believed that the case should be reheard,

there is a reasonable probability that four Supreme Court Justices

might share that view. As Judge Elrod noted, ten other circuits take a

different approach to First Amendment preliminary injunctions. The

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Supreme Court has stressed the primacy of the likelihood of success

prong. Sole v. Wyner, 551 U.S. 74, 84 (2007); Ashcroft v. ACLU, 542

U.S. 656, 666 (2004). The panel majority might not have agreed with

Plaintiffs, but its opinion acknowledged that this is a substantial and

important case.

Certiorari is never guaranteed. But it is as reasonably probable here

as it might be in any case.

2. Significant Possibility of Reversal

Again, with five judges of this Court agreeing that the case should

be reheard, four of them signing on to strong criticisms of the majoritys

approach, the significant possibility that five Supreme Court Justices

might feel the same way is readily apparent.

3. Likelihood of Irreparable Harm

The Government would suffer no harm were the mandates issuance

stayed. It has not been enjoined, and nothing bars it from continuing to

enforce its prior restraint.

But the harm to Plaintiffs, from the mandates issuance at this

juncture, could be severe. Should the District Court proceed to rule on

the merits, and enter a final judgment against Plaintiffs, it would

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thereby moot Plaintiffs case before the Supreme Court. Louisiana

World Exposition, Inc. v. Logue, 746 F.2d 1033, 1038 (5th Cir. 1984).

Plaintiffs could thus be denied the opportunity to have the Supreme

Court hear their case.

Should the Supreme Court hear their case and rule in their favor,

Plaintiffs might have an injunction by next June and perhaps much

sooner. Potentially starting over with a new appeal, but without an

injunction, could add years to what the courts might eventually

determine to be a violation of fundamental constitutional rights,

including the freedom of speech. Plaintiffs, and the courts, would have

also wasted significant litigation and judicial resources. The prospect of

intervening mootness pending certiorari provides a sufficient ground

upon which to stay the mandates issuance. Nor should Plaintiffs be

forced to litigate the case in the District Court and the Supreme Court

simultaneously.

Withholding consent from this motion, the Government suggested

that this might be a matter for the District Court. And true, the District

Court would technically retain the inherent power to stay its

proceedings pending the outcome on certiorari. But that would be an

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odd way to proceed, considering that the power to stay this Courts

mandatewith obvious and specific reference to the concept of

preserving the status quo for certiorariis reserved to this Court and

to the Supreme Court, not to the District Court. 28 U.S.C. 2101(f).1

Plaintiffs are not required to forego the relief that Rule 41 and

Section 2101(f) specifically afford them in this Court, for the

preservation of their substantial certiorari petition, so that they might

instead rely on the District Courts exercise of its docket-management

discretion. District Courts might always control their own schedules,

but the question here is whether Plaintiffs have satisfied Rule 41s

requirements. They have.2

1
Courts interpreting the language of 28 U.S.C. 2101(f) have
universally concurred that the language is exclusive, prohibiting the
district court from staying the enforcement of a court of appeals'
judgment pending an appeal to the Supreme Court." Metavante Corp. v.
Emigrant Sav. Bank, No. 05-CV-1221, 2010 U.S. Dist. LEXIS 108787,
at *5-*6 (E.D. Wis. Sept. 28, 2010) (collecting cases); see also
WesternGeco LLC v. ION Geophysical Corp., No. 4:09-CV-1827, 2016
U.S. Dist. LEXIS 64056, at *10 (S.D. Tex. May 4, 2016).
2
At least one circuit considers the balance of the equities,
including the public interest, in weighing Rule 41 motions. Doe v.
Miller, 418 F.3d 950, 951 (8th Cir. 2005). As the mandates issuance is
irrelevant to the Governments enforcement of ITAR, there are no
equities to balance in its favor. The public interest, however, may yet
prove to have favored the Supreme Court reviewing this case.
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CONCLUSION

Plaintiffs-Appellants respectfully request that the motion be

granted.

Dated: March 21, 2017 Respectfully submitted,

/s/ Matthew Goldstein /s/ Alan Gura

Matthew Goldstein Alan Gura
Matthew A. Goldstein, PLLC Counsel of Record
1875 Connecticut Avenue, N.W. GURA PLLC
10th Floor 916 Prince Street, Suite 107
Washington, DC 20009 Alexandria, VA 22314
202.550.0040/Fax 202.683.6679 703.835.9085/Fax 703.997.7665

/s/ William B. Mateja /s/ Josh Blackman

William B. Mateja Josh Blackman
POLSINELLI P.C. 1303 San Jacinto Street
2950 N. Harwood, Suite 2100 Houston, TX 77002
Dallas, TX 75201 202.294.9003/Fax 713.646.1766
214.397.0030/Fax 214.397.0033

/s/ David S. Morris

William T. Tommy Jacks
David S. Morris
FISH & RICHARDSON P.C.
One Congress Plaza, Suite 810
111 Congress Avenue
Austin, TX 78701
512.472.5070/Fax 512.320.8935

Counsel for Appellants

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,

TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

1. This document complies with the type-volume limitation of Fed.

R. App. P. 27(d)(2)(A) because, excluding the parts of the
documented exempted by Fed. R. App. P. 32(f) and 5th Cir. R. 32.2,
this document contains 1,049 words.

2. This document complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this document has been prepared in a
proportionately spaced typeface using WordPerfect X4 in 14 point
Century Schoolbook font.

/s/ Alan Gura

Alan Gura
Attorney for Plaintiffs-Appellants
Dated: March 21, 2017
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CERTIFICATE OF SERVICE

On this, the 21st day of March, 2017, I electronically filed the

attached motion with the Clerk of the Court for the United States

Court of Appeals for the Fifth Circuit by using the CM/ECF system.

Participants in this appeal are registered CM/ECF users who will be

served by the CM/ECF system on March 21, 2017.

I declare under penalty of perjury that the foregoing is true and

correct.

Executed this the 21st day of March, 2017.

/s/ Alan Gura

Alan Gura