Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 1 of 18 The Honorable Robert S. Lasnik UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE STATE OF WASHINGTON, et al. No. 2:18-cv-01115-RSL Plaintiffs, PRIVATE DEFENDANTS’ v. REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT UNITED STATES DEPARTMENT OF STATE, et al., Defendants. Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 2 of 18 Table of Contents I. Standing does not exist. .......................................................................................................... 2 A. The Plaintiffs States’ own filings defeat their standing argument. ......................... 3 B. Traceability and redressability are missing............................................................. 4 C. Parens patriae standing cannot be used against the federal government. .............. 5 II. Defense Distributed should be dismissed for lack of personal jurisdiction. ........................... 6 A. No waiver occurred. ................................................................................................ 6 B. DEFCAD’s free downloads do not create minimum contacts. ............................... 7 III. The APA cannot require abridgement of First Amendment freedoms. .............................. 9 IV. The Plaintiff States’ APA claims against the Federal Defendants fail. ............................ 10 A. Notification issues do not support any relief. ....................................................... 10 B. There was no reversal of longstanding regulation with regard to the license or temporary modification. ........................................................................................ 11 C. The record shows compelling justifications for the Temporary Modification and License. ................................................................................................................. 13 D. The proposed transfer is valid. .............................................................................. 14 Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 3 of 18 1 Argument 2 Suppose that in the wake of Brown v. Board of Education, 347 U.S. 483 (1954), and Bolling 3 v. Sharpe, 347 U.S. 497 (1954), federal agencies stopped segregating school services but failed to 4 satisfy all APA technicalities in doing so. Could recalcitrant states use an APA suit to force federal 5 officials to reinstitute segregation policies? Of course not. The Constitution is always paramount. 6 Suppose that in the wake of United States v. Windsor, 570 U.S. 744 (2013), and Obergefell 7 v. Hodges, 135 S. Ct. 2584 (2015), federal tax agencies ceased discriminating against same-sex 8 couples but violated an APA technicality in doing so. Could states use the APA to force federal 9 officials to reinstitute the discriminatory policies? No. The Constitution still prevails. 10 And yet here we are. In the wake of Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) 11 (“Content-based laws . . . are presumptively unconstitutional and may be justified only if the 12 government proves that they are narrowly tailored to serve compelling state interests.”), Sorrell v. 13 IMS Health Inc., 564 U.S. 552, 570 (2011) (“[T]he creation and dissemination of information are 14 speech within the meaning of the First Amendment.”), Ashcroft v. Free Speech Coalition, 535 U.S. 15 234, 253 (2002) (“The mere tendency of speech to encourage unlawful acts is not a sufficient 16 reason for banning it.”), and Bartnicki v. Vopper, 532 U.S. 514, 529-30 (2001) (“[I]t would be 17 quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed 18 in order to deter conduct by a non-law-abiding third party.”)—not to mention District of Columbia 19 v. Heller, 554 U.S. 570 (2008)—the State Department rightly ceased violating Defense Distributed 20 and the Second Amendment Foundation’s constitutional rights by freeing them from ITAR’s 21 content-based prior restraint. But now recalcitrant states want an order forcing federal officials to 22 re-impose that unconstitutional regime on the theory that the “First Amendment is irrelevant.” 23 Dkt. 186 at 20. That cannot be so. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -1- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 4 of 18 1 On the merits, the Plaintiff States’ attempt to have the Administrative Procedure Act 2 override the First Amendment can never work. For in this Union, states can neither violate the 3 Constitution themselves nor commandeer the federal government to do their unconstitutional 4 bidding. But the merits should not be reached because of a more fundamental fault: no standing. 5 The Plaintiff States have suffered no legally cognizable injury at all, let alone one inflicted 6 by a defendant in this case. Nor do traceability or redressability exist because the whole world 7 already has the files at issue, and always will. Defense Distributed published them to the internet’s 8 public domain for five full days before the preliminary injunction, and ever since then, a multitude 9 of independent users has persistently and increasingly republished them despite the injunction. 10 This state of affairs simply cannot be controlled by a court judgment. The case must be dismissed. 11 I. Standing does not exist. 12 The Court lacks subject-matter jurisdiction for five separate reasons, the most drastic of 13 which is lack of standing. Dkt. 174 at 4-8. These issues must be evaluated in full—not discounted 14 due to prior briefing—because “federal courts have a continuing, independent obligation to 15 determine whether subject matter jurisdiction exists.” Mashiri v. Dep’t of Educ., 724 F.3d 1028, 16 1031 (9th Cir. 2013). That obligation is especially strong because of an important new decision 17 about the legal doctrine being invoked and because of new jurisdictional evidence. 18 The Plaintiff States give standing short shrift. In a quiet footnote, their most recent filing 19 says nothing but that “previous briefing . . . addresses the Private Defendants’ already-rejected 20 challenges to standing.” Dkt. 186 at 9 n.9. This will not suffice. Fortunately, though, the Plaintiff 21 States supplied their true view about standing law in another brief. It just so happens to have been 22 submitted to another court. Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -2- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 5 of 18 1 A. The Plaintiffs States’ own filings defeat their standing argument. 2 Standing questions just like the ones in this case arose in United States v. Texas, 136 S. Ct. 3 2271 (2016) (per curiam) (No. 15-674). There, fifteen of the instant Plaintiff States filed an amicus 4 brief focusing on standing law for state APA actions against the federal government. Amicus Brief 5 of the States of Washington, et al. in Support of Petitioners, United States v. Texas, 136 S. Ct. 2271 6 (2016) (per curiam), 2016 WL 922867. That brief’s reasoning shows why no standing exists here. 7 First, the Plaintiff States’ Supreme Court brief said that state standing did not exist because 8 that case’s plaintiffs “filed this suit, not because they are suffering any meaningful harm, but rather 9 to achieve a political goal that they could not achieve through the political process.” Id. at *1. So 10 too here. The plaintiffs’ politicians loathe citizens who speak about realizing the Second 11 Amendment’s guarantees; but the speech they want to ban has broken no law, state or federal. 12 Next, the Plaintiff States’ Supreme Court brief said that state standing did not exist because 13 that state’s injury argument “relies on a false premise - that the [agency action] requires States to 14 do anything at all.” Id. at *3. So too here. The Temporary Modification and License require 15 literally nothing of the Plaintiff States, who remain as free as they have ever been to both enact 16 and enforce criminal laws of their choosing (subject, of course, to the Constitution). 17 Next, the Plaintiff States’ Supreme Court brief said that “self-inflicted ‘harms’” cannot 18 suffice to create a state’s standing. Id. at 5. So too here. If the Plaintiff States decide to update 19 security practices because of technological change, “doing so will be a state choice, ‘not the result 20 of federal coercion.’” Id. at *4 (quoting Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997)). 21 If the rules that the Plaintiff States embraced in their Supreme Court brief were applied 22 here, they would compel the conclusion that no standing exists. The Plaintiff States should be held 23 to their own standards, even when political tables have turned. Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -3- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 6 of 18 1 B. Traceability and redressability are missing. 2 This action’s lack of traceability and redressability gets worse with every passing day. In 3 March, the Private Defendants supplied a wealth of evidence proving that the “computer files that 4 the Plaintiff States have made this litigation about already belong to the public domain.” Dkt. 174 5 at 3 & nn.5-6. Since then, even more authority confirms the standing problem’s factual basis. 6 Just last month, a leading technologist confirmed that the internet’s publication of Defense 7 Distributed’s digital firearms information is “unstoppable”: “There is no way to stop the 8 anonymous file sharing of 3D-printed guns online.” Jake Hanrahan, 3D-printed guns are back, 9 and this time they are unstoppable, Wired Magazine, May 20, 2019, available at 10 http://bit.ly/2MtWcZf. “As of now,” the report says, the “thousands many more 3D-printed gun 11 enthusiasts connected to each other worldwide” have “essentially let the cat out the bag.” Id. 12 Defense Distributed’s files are “available for free.” Id. It is “already too late to stop.” Id. 13 This reality’s technical basis bears emphasis. “A decentralised network of gun-printing 14 advocates is mobilising online, they’re anonymously sharing blueprints, advice and building a 15 community.” Id. “Unlike previous attempts to popularise 3D-printed guns, this operation is 16 entirely decentralised.” Id. “There’s no headquarters, no trademarks, and no real leader.” Id. 17 Hosts include a network of gun-printing advocates that communicate across multiple peer-to-peer 18 (“P2P”) networks beyond any government’s reach. See John Crump, The Unstoppable 3D Gun 19 Revolution Continues to Heat Up, Ammoland, May 30, 3019, available at http://bit.ly/2WkgpjV. 20 “Since there is not a central server, there is nothing to shut down.” Id. “If one node is shut down 21 multiple other nodes pop up.” Id. The “distributors of these files seem to be unstoppable.” Id. 22 Hence, all of the files at issue in this case remain easily accessible by way of rudimentary 23 Google queries. Every website exhibited in the Private Defendants’ last brief remains intact, Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -4- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 7 of 18 1 continuing to make their files available for anyone to download for free. See Dkt. 174 at 3 nn.5-6.1 2 Critically, all of this has taken place despite the Court’s entry of a preliminary injunction 3 that does everything the Plaintiff States seek in their prayer for permanent relief. In effect, the 4 preliminary injunction has proven to be impotent. This experience shows that the requested final 5 judgment will be ineffective at redressing the Plaintiff States’ supposed injuries. 6 C. Parens patriae standing cannot be used against the federal government. 7 The Plaintiff States’ only serious standing argument invokes the parens patriae doctrine, 8 which sometimes “allows a State to sue in a representative capacity to vindicate its citizens’ 9 interests.” Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 178 (D.C. Cir. 2019). But as a matter 10 of law, the Plaintiff States cannot use parens patriae here because their claims are against the 11 federal government. “The traditional rule, the so-called ‘Mellon bar,’ declares that a State lacks 12 standing as parens patriae to bring an action against the federal government.” Id. at 179. 13 The solution suggested by previous briefs was Massachusetts v. EPA, 549 U.S. 497 (2007). 14 According to the Plaintiff States’ prior filings, footnote 17 of Massachusetts v. EPA eliminated 15 this limitation and held that states can use parens patriae standing against the federal government. 16 Dkt. 68 at 11. But a new precedent decisively establishes that the Plaintiff States’ reading of 17 Massachusetts v. EPA is wrong. Footnote 17 does not change standing law as they say. The bar 18 on states using parens patriae standing against the federal government remains. 19 Last month, the D.C. Circuit confronted and rejected the exact parens patriae argument 20 being made by the Plaintiff States here. Bernhardt, 923 F.3d at 181-83. There, as here, a state 21 tried to argue that footnote 17 of Massachusetts v. EPA lets states employ parens patriae standing 22 in APA actions against the federal government. Id. But in a unanimous and thorough decision, 1 Meanwhile, the summary judgment record indicates that Defense Distributed and the Second Amendment Foundation are the only Second Amendment advocates to have received any serious legal attention from the Plaintiff States. Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -5- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 8 of 18 1 the D.C. Circuit rejected that argument: “In the end, we are unpersuaded by Missouri’s argument 2 that Massachusetts v. EPA alters our longstanding precedent that a State in general lacks parens 3 patriae standing to sue the federal government.” Id. at 183. 4 The argument stemming from footnote 17 is both an incorrect reading of Massachusetts v. 5 EPA and wrong in principle. “The general supremacy of federal law” means “that the federal 6 parens patriae power should not, as a rule, be subject to the intervention of states seeking to 7 represent the same interest of the same citizens.” Id. For that reason, a “state can not have a 8 quasi-sovereign interest because” matters of federal law “fall[ ] within the sovereignty of the 9 Federal Government.” Id. (omission in original). 10 Bernhardt is decisive. Massachusetts v. EPA did not eliminate the bar on states using 11 parens patriae standing against the federal government. The Plaintiff States have no answer to 12 this categorial flaw in their case, which is why their latest brief ignores the issue entirely. 13 II. Defense Distributed should be dismissed for lack of personal jurisdiction. 14 A. No waiver occurred. 15 The Plaintiff States argue that Defense Distributed waived its personal jurisdiction defense 16 because Rule 12(h)(1)(A) supposedly says that “a party waives the defense of lack of personal 17 jurisdiction by ‘omitting it from a motion’ under Rule 12.” Dkt. 186 at 19. But the cited provision 18 never says that (and neither does sole cited case). The waiver argument plainly misreads the rule. 19 What Rule 12(h)(1)(A) does say is that waiver occurs if the defense is omitted a “from a 20 motion in the circumstances described in Rule 12(g)(2).” Fed. R. Civ. P. 12(h)(1)(A) (emphasis 21 added). The “circumstances described in Rule 12(g)(2),” in turn, exist by definition only when a 22 defendant files multiple Rule 12 motions: 23 Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this 24 rule must not make another motion under this rule raising a defense or objection 25 that was available to the party but omitted from its earlier motion. Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -6- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 9 of 18 1 Fed. R. Civ. P. 12(g)(2) (emphasis added).2 Not so here. 2 Defense Distributed made only one motion under Rule 12. Dkt. 114. They never filed 3 “another motion under this rule” (Rule 12) because the instant summary-judgment filings are under 4 Rule 56. These are not “the circumstances described in Rule 12(g)(2).” No Rule 12(h)(1)(A) 5 waiver occurred. 6 Support for Defense Distributed’s method of challenging personal jurisdiction comes from 7 Rule 12(b)’s use of “must” and “may.” That provision says that litigants “must” assert a personal 8 jurisdiction defense in a pleading (Defense Distributed did that, see Dkt. 81 at 42), and that litigants 9 “may” assert the defense in a Rule 12 motion. Fed. R. Civ. P. 12(b). Since “may” is permissive, 10 asserting the defense in a Rule 12 motion is not required. It is optional. 11 Support for Defense Distributed’s method of challenging personal jurisdiction also comes 12 from Rule 12(h)(1)(B)(ii)’s use of “either” and “or.” That provision shows that the defense of 13 personal jurisdiction is preserved where, as here, the defendant has “either” made it by a Rule 12 14 motion “or” “include[d] it in a responsive pleading.” Fed. R. Civ. P. 12(h)(1)(B)(ii). 15 This is not a “convoluted non-waiver theory.” Dkt. 186 at 19. It is straightforward 16 construction that gives a logical meaning to each part of Rule 12. The Plaintiff States’ position, in 17 contrast, would work only if Rule 12(b) changed “may” to “must” and Rule 12(h)(1)(B)(ii) 18 changed “either” and “or” to “both” and “and.” As it stands, Rule 12 says no such thing. 19 B. DEFCAD’s free downloads do not create minimum contacts. 20 Substantively, the Plaintiff States say that personal jurisdiction exists because Defense 21 Distributed’s website (DEFCAD) “actively invites visitors to download CAD files.” Dkt. 186 at 22 19. But the Plaintiff States did not plead anything about how interactive the website is, let alone 2 Those circumstances existed in the lone cited case because the defendant filed multiple Rule 12 motions. Schnabel v. Lui, 302 F.3d 1023, 1027-28 (9th Cir. 2002). Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -7- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 10 of 18 1 prove it with any evidence. The complaint says nothing more than that the website makes files 2 “available for download,” Dkt. 29 at 4, 10, because that is the fact of the matter. 3 Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), does 4 not support personal jurisdiction here. The Plaintiff States try to shoehorn Defense Distributed’s 5 situation into this quotation: “If the defendant enters into contracts with residents of a foreign 6 jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, 7 personal jurisdiction is proper.” Dkt. 186 at 19 (quoting Zippo, 952 F. Supp. at 1124). But the 8 keystone fact of business “contracts with residents” is missing. The complaint never speaks of the 9 website creating contractual relationships for these downloads, and neither does evidence. See 10 Dkt. 174-01 at 3 (“Defense Distributed posted . . . on DEFCAD for free download by the public.”). 11 The Court should look not to the sentence quoted by the Plaintiff States, but to the one right 12 after it. DEFCAD fits squarely within what Zippo frames as the “opposite end” of the spectrum. 13 Zippo, 952 F. Supp. at 1124. Under Zippo, Defense Distributed’s online file publications constitute 14 the kind of “passive” website activity that does not confer personal jurisdiction: 15 At one end of the spectrum are situations where a defendant clearly does business 16 over the Internet. If the defendant enters into contracts with residents of a foreign 17 jurisdiction that involve the knowing and repeated transmission of computer files 18 over the Internet, personal jurisdiction is proper. At the opposite end are situations 19 where a defendant has simply posted information on an Internet Web site which is 20 accessible to users in foreign jurisdictions. A passive Web site that does little more 21 than make information available to those who are interested in it is not grounds for 22 the exercise personal jurisdiction. 23 24 Id. at 1124 (emphasis added) (citations omitted). 25 Besides quoting the wrong part of Zippo, the Plaintiff States refuse to address three critical 26 jurisdictional faults in their position. They never address the rule that “contacts count towards 27 purposeful availment only if they are created by the ‘defendant himself’—not if they are created 28 by ‘plaintiffs or third parties.’” Dkt. 174 at 10 (quoting Walden v. Fiore, 571 U.S. 277, 284 Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -8- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 11 of 18 1 (2014)). They never address the rule that “‘minimum contacts’ analysis looks to the defendant’s 2 contacts with the forum State itself, not the defendant’s contacts with persons who reside there.” 3 Id. (quoting Walden, 571 U.S. at 285). And they never address the rule that hypothesized future 4 forum contacts cannot count towards what must be a present purposeful availment inquiry. Id. at 5 10-11. Each of these unanswered arguments presents an independent reason to dismiss the case 6 against Defense Distributed for lack of personal jurisdiction. 7 III. The APA cannot require abridgement of First Amendment freedoms. 8 Two crucial sets of authority about the Constitution’s interaction with the APA have gone 9 totally ignored. First is 5 U.S.C. § 702, which says that, even when the APA’s internal thresholds 10 for relief are met, reviewing courts must still determine whether or not there is a “duty of the court 11 to . . . deny relief on any other appropriate legal or equitable ground.” 5 U.S.C. § 702. Thus, to 12 the extent that an APA plaintiff’s requested relief would violate the First Amendment, § 702 13 requires the reviewing court to “deny relief” on this Constitutional “ground.” See Dkt. 174 at 20. 14 Indeed, this would be required even in § 702’s absence due to elementary principles of 15 constitutional law. See infra at 1. Like every other statute, the APA is subject to the rule that 16 “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. Am 1. So even 17 if the APA purported to authorize judgments that abridge the freedom of speech (it does not), the 18 First Amendment’s overriding command would nullify it. 19 The other ignored authorities are NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 20 (1958), Bates v. City of Little Rock, 361 U.S. 516, 523 (1960), and Perry v. Schwarzenegger, 591 21 F.3d 1147, 1160-61 (9th Cir. 2010). They stand for the proposition that courts cannot issue orders 22 of any kind—even things as relatively commonplace as discovery orders—that have the “practical 23 effect” of denying First Amendment rights. Dkt. 174 at 20. This doctrine is one of the “appropriate Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 -9- Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 12 of 18 1 legal or equitable ground[s]” that has to be evaluated before APA relief can be issued. 2 All of these principles carry special weight where, as here, the law’s constitutional infirmity 3 comes not just from instances of its enforcement against the citizenry, but also from the chilling 4 effect created by its mere existence on the books. See Laird v. Tatum, 408 U.S. 1, 11 (1972) 5 (“constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental 6 regulations that fall short of a direct prohibition against the exercise of First Amendment rights.”); 7 Dana’s R.R. Supply v. Att’y Gen., Flo., 807 F.3d 1235, 1241 (11th Cir. 2015) (“Litigants who are 8 being ‘chilled from engaging in constitutional activity,’ . . . suffer a discrete harm independent of 9 enforcement . . . .”). 10 None of this is addressed in the Plaintiff States’ brief. Talk about what a court can and 11 cannot consider under Chenery is inapposite, for that goes only to the predicate determination of 12 what the APA’s internal procedural requirements entail. After the internal APA analysis occurs, 13 courts are always obliged to ensure that a sought-after judgment does not violate the Constitution. 14 IV. The Plaintiff States’ APA claims against the Federal Defendants fail. 15 A. Notification issues do not support any relief. 16 The Plaintiff States continue to argue that “[t]he Temporary Modification and Letter 17 deregulating 3D-printed firearm files violate AECA’s congressional notice provisions . . . .” Dkt. 18 186 at 1. But they never show why notification requirements at 22 U.S.C. § 2778(f) apply to the 19 License or Temporary Modification. In truth, “[n]othing has been removed from the USML by 20 the Settlement Agreement, and, thus, no section 38(f) notice was required as a result of the 21 Settlement Agreement.” Dkt. 48-1 at 110. 22 Additionally, the Plaintiff States fail to realize that, apart from a notification about a 23 commodity or item itself, no separate notification for technical data about a commodity or item is 24 needed. “The jurisdiction of the technical data follows the jurisdiction of the related commodity Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 10 - Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 13 of 18 1 or item.” 78 Fed. Reg. 22740, 22748 (April 16, 2013). This follow-on structure is how all transfers 2 to the EAR under export control reform work. See 81 Fed. Reg. 70340 (Oct. 12, 2016) at 70357; 3 81 Fed. Reg. 49531 (July 28, 2016) at 49538 and 49539; 79 Fed. Reg. 37536 (July 1, 2014) at 4 37545; 79 Fed. Reg. 27180 (May 13, 2014) at 27185 to 27186 and 27188; 79 Fed. Reg. 34 (Jan. 5 2, 2014) at 41, 44, 45, and 46; 78 Fed. Reg. 40922 (July 8, 2013) at 40928, 40929, and 40931; 78 6 Fed. Reg. 22740 (April 16, 2013) at 22757 and 22758. 7 Even if the License and Temporary Modification constitute removals (they do not), 8 notification of the proposed removal of firearms and associated technical data (which includes the 9 subject files) was reportedly provided to Congress on February 4, 2019. Dkt. 174 at 18. Since 10 this notice, Congress could have blocked the removal (by, for example, Joint Resolution), but has 11 chosen not to do so. 12 B. There was no reversal of longstanding regulation with regard to the license or 13 temporary modification. 14 The Plaintiff States are wrong to assert that the State Department’s actions entail an “abrupt 15 reversal of its longstanding regulation of the subject files.” Dkt. 186 at 1. The State Department 16 has disclaimed control of public speech under the ITAR for 30 years. 17 In 1980, responding to concerns that a vague footnote in the ITAR could be read to restrain 18 public speech, the State Department announced: “[a]pproval is not required for publication of data 19 within the United States . . . [the footnote] does not establish a prepublication review requirement.” 20 Dkt. 158-3 at DOSWASHINGTONSUP00342-43. The State Department then removed the 21 footnote from the ITAR, expressly stating its intent to address First Amendment concerns. See 49 22 Fed. Reg. 47,682, 47,683 (Dec. 6, 1984). 23 24 Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 11 - Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 14 of 18 1 In addition to the State Department’s express removal of any prior restraint in 1984, the 2 ITAR expressly excludes from its scope information found in the public domain. See 22 C.F.R. 3 § 120.10(b). Any reasonable person reading ITAR’s expansive definition of “public domain” at 4 22 C.F.R. § 120.11 would conclude that U.S. persons without connections to foreign enterprises 5 can publish technical information in public venues without U.S. government preapproval. See, 6 e.g., United States v. Edler Indus., 579 F.2d 516, 521 (9th Cir. 1978) (“So confined, the statute and 7 regulations are not overbroad [or] an unconstitutional prior restraint on speech.”). 8 In the Bernstein litigation3, the State Department again confirmed that the ITAR does not 9 impose a prior restraint on public speech, noting: “Since 1984, the ITAR has been amended in 10 order to indicate more clearly that publicly available information and academic exchanges are not 11 treated as technical data.” Ex. S at 10, ¶ 20 (Second Declaration of William J. Lowell, Department 12 of State Office of Defense Trade Controls, Bernstein v. U.S. Dep’t of State, No. C 95-0582 (N.D. 13 Cal.) (July 26, 1996)). It declared: “the Department does not seek to regulate the means themselves 14 by which information is placed in the public domain.” Id. at 11, ¶ 22 (emphasis in the original). 15 Moreover, it forcefully rejected any interpretation of ITAR’s public domain provision as imposing 16 a prior restraint on public speech as “by far the most un-reasonable interpretation of the provision.” 17 Id. at 23 (Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and in Further 18 Support of Defendants’ Motion for Summary Judgment, Bernstein v. U.S. Dep’t of State, No. C 19 95-0582 (N.D. Cal.) (Aug. 30, 1996)) (emphasis in original). 20 21 3 See, e.g., Bernstein v. U.S. Dep’t of Justice, 176 F.3d 1132 (9th Cir.), reh’g in banc granted, 192 F.3d 1308 (9th Cir. 1999); Bernstein v. U.S. Dep’t of State, 974 F. Supp. 1288 (N.D. Cal. 1997); Bernstein v. U.S. Dep’t of State, 945 F. Supp. 1279 (N.D. Cal. 1996); Bernstein v. U.S. Dep’t of State, 922 F. Supp. 1426 (N.D. Cal. 1996) Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 12 - Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 15 of 18 1 The 2013 State Department letter to Defense Distributed demanding the takedown of the 2 subject files was the abrupt reversal of longstanding regulation. The State Department then issued 3 a proposed rule to restrain public speech. See 80 Fed. Reg. 31,525, 31,528 (June 3, 2015). This 4 proposal drew over 9,000 public comments.4 Most commenters opposed the proposal, including 5 technology industry leaders (e.g., IBM, GE, and others), export control attorneys, and even former 6 State Department employees. See, e.g., Dkt. 63-1 at 38 (“The ITAR proposed requirement for USG 7 authorization to put information into the ‘public domain’ in 120.11(b) is a reversal of actions 30 8 years ago to comply with the free speech first amendment to the Constitution.”). Not surprisingly, 9 the ITAR was never amended to impose a prior restraint. 10 C. The record shows compelling justifications for the Temporary Modification 11 and License. 12 Consistent with the 30-year history of the State Department disclaiming any control of 13 public speech under the ITAR, the record includes decades of Justice Department legal opinions 14 concluding that controlling public speech under the ITAR violates the First Amendment.5 These 15 opinions pose a compelling justification—“the licensing requirement is presumptively 16 unconstitutional as a prior restraint on speech protected by the First Amendment.”6 17 The Plaintiff States further argue that the Justice Department opinions are irrelevant 18 because “the Federal Defendants have not purported to rely on any of these statements . . . .” Dkt. 19 186 at 24. But there can be no reasonable dispute that the State Department relied on the Justice 20 Department statements because those opinions are part of the Administrative Record and the State 4 See Ex. T (Regulations.gov, “International Traffic in Arms: Definitions of Defense Services, Technical Data, and Public Domain; Definition of Product of Fundamental Research; Electronic Transmission and Storage of Technical Data; and Related Definitions,” available at http://bit.ly/2XtSDn0 (last visited June 6, 2018)). 5 See Dkt. 48-1 at Exhibits A-D; Dkt. 158-3 at DOSWASHINGTONSUP00236-252, 239 at n.7, 254-266, 268-272, 274-288, 290-333, and 313; Dkt. 174 at 14-16. 6 See Dkt. 48-1 at 20. Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 13 - Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 16 of 18 1 Department publicly stated that it settled the case based on the Justice Department’s advice that 2 the agency would lose on First Amendment grounds. Dkt. 35-1 at 5. 3 D. The proposed transfer is valid. 4 As detailed in Private Defendants’ Motion for Summary Judgment, the proposed rule offers 5 various justifications for the list transfers, including reduced burden hours, reduced costs, and 6 decreased taxpayer costs. Dkt. 174 at 17-18. Plaintiffs do not provide any reasonable explanation 7 for why these justifications do not satisfy the APA. Instead, the Plaintiff States harp on “106,000 8 emails from members of the public between July 23 and July 27, 2018, urging the Department not 9 to exempt 3D-printable guns.” Dkt. 186 at 3. But according to the record, these emails came not 10 from actual individuals, but from a BOT conducting a targeted spam campaign on behalf of an 11 interest group. See Dkt. 184-11 at WASHAR0003428; id. at WASHAR0003435 (“These are not 12 individuals attempting to contact the Secretary, but this appears to be a BOT conducting a targeted 13 spam campaign . . . .”); see also Dkt. 184-5 at WASHAR0000008-9. 14 The Plaintiff States further argue that the State Department’s action was arbitrary and 15 capricious because of “multiple letters from Congressional leaders urging reconsideration of the 16 deregulation of 3D-printable gun files; detailed comment letters from U.S. Senators and public 17 policy organizations,” Dkt. 186 at 3; and because the State Department allegedly failed to address 18 Democrat staffer requests. Dkt. 186 at 3-5. But Democrat concerns were countered by requests 19 from over 100 Republican members of Congress. See, e.g., Dkt. 184-6 at WASHAR0001093; 20 Dkt. 184-6 at WASHAR0001098; Dkt. 184-6 at WASHAR0001091-1092; Dkt. 184-8 at 21 WASHAR0002058-2068; Dkt. 184-10 at WASHAR0003034-3035. 22 No merit lies in the Plaintiff States’ complaints about comments not receiving bespoke 23 responses. Several well-established rules of administrative procedure make this clear. 24 Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 14 - Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 17 of 18 1 A failure to respond to comments means nothing unless it somehow “demonstrates that the 2 agency’s decision was not ‘based on a consideration of the relevant factors.’” Thompson v. Clark, 3 741 F.2d 401, 409 (D.C. Cir. 1984). None of the Plaintiff States’ cherrypicked comments do so. 4 Comments without “meaningful analysis or data” certainly warrant no response, and 5 neither do comments that “brought to the attention of the agency nothing which it had not already 6 considered.” Id. These rules apply to virtually all of the Plaintiff States highlighted comments, 7 which add nothing meaningful or new to the State Department’s deliberative calculus. 8 This was also an instance in which agencies need not respond to comments that are 9 “diametrically” or “directly opposed” to the policy’s overall “thrust.” Sherley v. Sebelius, 689 10 F.3d 776, 784-85 (D.C. Cir. 2012). In other words, the State Department had no obligation to 11 “comment on policy-based challenges to the basic premise of the proposed rule where the agency 12 has already chosen a particular reconciliation of conflicting congressional directives and has 13 previously explained its reasoning.” Baltimore Gas & Elec. Co. v. United States, 817 F.2d 108, 14 116 (D.C. Cir. 1987). 15 Under these principles, the Federal Defendants need not have responded to the Plaintiff 16 States’ favorite comments with anything more than the existing explanations. The Plaintiff States’ 17 side of this political debate did not get mistreated. They were heard fairly. They just lost. 18 Conclusion 19 The Court should issue a summary judgment dismissing this action for lack of 20 subject-matter jurisdiction. Alternatively, the Court should issue a summary judgment dismissing 21 the Private Defendants from the action. In the further alternative, the Court should issue a 22 summary judgment that the Plaintiff States take nothing. Any relief that is awarded to the Plaintiff 23 States should be restricted to conduct taking place in the Plaintiff States’ jurisdictions. Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 15 - Houston, Texas 77010 (713) 951-3700 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 18 of 18 Date: June 7, 2019. Respectfully submitted, BECK REDDEN LLP FARHANG & MEDCOFF /s/Charles Flores /s/Matthew Goldstein Charles Flores Matthew Goldstein cflores@beckredden.com Farhang & Medcoff Beck Redden LLP 4801 E. Broadway Blvd., Suite 311 1221 McKinney, Suite 4500 Tucson, AZ 85711 Houston, TX 77010 Phone: (202) 550-0040 Phone: (713) 951-3700 mgoldstein@farhangmedcoff.com *Admitted Pro Hac Vice *Admitted Pro Hac Vice Attorney for Defendant ARD LAW GROUP PLLC Defense Distributed /s/Joel B. Ard Joel B. Ard, WSBA # 40104 joel@ard.law Ard Law Group PLLC P.O. Box 11633 Bainbridge Island, WA 98110 Phone: (206) 701-9243 Attorneys for Defendants Defense Distributed, Second Amendment Foundation, Inc., and Conn Williamson CERTIFICATE OF SERVICE I certify that on June 7, 2019, I used the CM/ECF system to file this document with the Clerk of the Court and serve it upon all counsel of record. /s/Charles Flores Charles Flores cflores@beckredden.com Beck Redden LLP 1221 McKinney, Suite 4500 Houston, TX 77010 Phone: (713) 951-3700 *Admitted Pro Hac Vice Attorney for Defendant Defense Distributed Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 - 16 - Houston, Texas 77010 (713) 951-3700