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1 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 1 of 18
2The Honorable Robert S. Lasnik
3UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
4 STATE OF WASHINGTON, et al. Plaintiffs,
5v.
6UNITED STATES DEPARTMENT OF STATE, et al.,
7Defendants.
8No. 2:18-cv-01115-RSL
9PRIVATE DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
10  
11 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 2 of 18
12Table of Contents
13I. Standing does not exist. .......................................................................................................... 2
14A. The Plaintiffs States’ own filings defeat their standing argument.......................... 3
15B. Traceability and redressability are missing............................................................. 4
16C. Parens patriae standing cannot be used against the federal government............... 5
17II. Defense Distributed should be dismissed for lack of personal jurisdiction............................ 6
18A. No waiver occurred................................................................................................. 6
19B. DEFCAD’s free downloads do not create minimum contacts................................ 7
20III. The APA cannot require abridgement of First Amendment freedoms. .............................. 9
21IV. The Plaintiff States’ APA claims against the Federal Defendants fail. ............................ 10
22A. Notification issues do not support any relief. ....................................................... 10
23B. There was no reversal of longstanding regulation with regard to the license or temporary modification......................................................................................... 11
24C. The record shows compelling justifications for the Temporary Modification and License. ................................................................................................................. 13
25D. The proposed transfer is valid............................................................................... 14
26Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
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302 Suppose that in the wake of Brown v. Board of Education, 347 U.S. 483 (1954), and Bolling
313 v. Sharpe, 347 U.S. 497 (1954), federal agencies stopped segregating school services but failed to
324 satisfy all APA technicalities in doing so. Could recalcitrant states use an APA suit to force federal
335 officials to reinstitute segregation policies? Of course not. The Constitution is always paramount.
346 Suppose that in the wake of United States v. Windsor, 570 U.S. 744 (2013), and Obergefell
357 v. Hodges, 135 S. Ct. 2584 (2015), federal tax agencies ceased discriminating against same-sex
368 couples but violated an APA technicality in doing so. Could states use the APA to force federal
379 officials to reinstitute the discriminatory policies? No. The Constitution still prevails.
3810 And yet here we are. In the wake of Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015)
3911 (“Content-based laws . . . are presumptively unconstitutional and may be justified only if the
4012 government proves that they are narrowly tailored to serve compelling state interests.”), Sorrell v.
4113 IMS Health Inc., 564 U.S. 552, 570 (2011) (“[T]he creation and dissemination of information are
4214 speech within the meaning of the First Amendment.”), Ashcroft v. Free Speech Coalition, 535 U.S.
4315 234, 253 (2002) (“The mere tendency of speech to encourage unlawful acts is not a sufficient
4416 reason for banning it.”), and Bartnicki v. Vopper, 532 U.S. 514, 529-30 (2001) (“[I]t would be
4517 quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed
4618 in order to deter conduct by a non-law-abiding third party.”)—not to mention District of Columbia
4719 v. Heller, 554 U.S. 570 (2008)—the State Department rightly ceased violating Defense Distributed
4820 and the Second Amendment Foundation’s constitutional rights by freeing them from ITAR’s
4921 content-based prior restraint. But now recalcitrant states want an order forcing federal officials to
5022 re-impose that unconstitutional regime on the theory that the “First Amendment is irrelevant.”
5123 Dkt. 186 at 20. That cannot be so. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
52Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 1 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
53Argument
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561 On the merits, the Plaintiff States’ attempt to have the Administrative Procedure Act
572 override the First Amendment can never work. For in this Union, states can neither violate the
583 Constitution themselves nor commandeer the federal government to do their unconstitutional
594 bidding. But the merits should not be reached because of a more fundamental fault: no standing.
605 The Plaintiff States have suffered no legally cognizable injury at all, let alone one inflicted
616 by a defendant in this case. Nor do traceability or redressability exist because the whole world
627 already has the files at issue, and always will. Defense Distributed published them to the internet’s
638 public domain for five full days before the preliminary injunction, and ever since then, a multitude
649 of independent users has persistently and increasingly republished them despite the injunction.
6510 This state of affairs simply cannot be controlled by a court judgment. The case must be dismissed.
6611 I. Standing does not exist.
6712
6813 which is lack of standing. Dkt. 174 at 4-8. These issues must be evaluated in full—not discounted
6914 due to prior briefing—because “federal courts have a continuing, independent obligation to
7015 determine whether subject matter jurisdiction exists.” Mashiri v. Dep’t of Educ., 724 F.3d 1028,
7116 1031 (9th Cir. 2013). That obligation is especially strong because of an important new decision
7217 about the legal doctrine being invoked and because of new jurisdictional evidence.
7318 The Plaintiff States give standing short shrift. In a quiet footnote, their most recent filing
7419 says nothing but that “previous briefing . . . addresses the Private Defendants’ already-rejected
7520 challenges to standing.” Dkt. 186 at 9 n.9. This will not suffice. Fortunately, though, the Plaintiff
7621 States supplied their true view about standing law in another brief. It just so happens to have been
7722 submitted to another court.
78Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 2 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
79The Court lacks subject-matter jurisdiction for five separate reasons, the most drastic of
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96A. The Plaintiffs States’ own filings defeat their standing argument.
97Standing questions just like the ones in this case arose in United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam) (No. 15-674). There, fifteen of the instant Plaintiff States filed an amicus brief focusing on standing law for state APA actions against the federal government. Amicus Brief of the States of Washington, et al. in Support of Petitioners, United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam), 2016 WL 922867. That brief’s reasoning shows why no standing exists here.
98First, the Plaintiff States’ Supreme Court brief said that state standing did not exist because that case’s plaintiffs “filed this suit, not because they are suffering any meaningful harm, but rather to achieve a political goal that they could not achieve through the political process.” Id. at *1. So too here. The plaintiffs’ politicians loathe citizens who speak about realizing the Second Amendment’s guarantees; but the speech they want to ban has broken no law, state or federal.
99Next, the Plaintiff States’ Supreme Court brief said that state standing did not exist because that state’s injury argument “relies on a false premise - that the [agency action] requires States to do anything at all.” Id. at *3. So too here. The Temporary Modification and License require literally nothing of the Plaintiff States, who remain as free as they have ever been to both enact and enforce criminal laws of their choosing (subject, of course, to the Constitution).
100Next, the Plaintiff States’ Supreme Court brief said that “self-inflicted ‘harms’” cannot suffice to create a state’s standing. Id. at 5. So too here. If the Plaintiff States decide to update security practices because of technological change, “doing so will be a state choice, ‘not the result of federal coercion.’” Id. at *4 (quoting Texas v. United States, 106 F.3d 661, 666 (5th Cir. 1997)).
101If the rules that the Plaintiff States embraced in their Supreme Court brief were applied here, they would compel the conclusion that no standing exists. The Plaintiff States should be held to their own standards, even when political tables have turned.
102Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 3 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
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1061 B. Traceability and redressability are missing.
1072 This action’s lack of traceability and redressability gets worse with every passing day. In
1083 March, the Private Defendants supplied a wealth of evidence proving that the “computer files that
1094 the Plaintiff States have made this litigation about already belong to the public domain.” Dkt. 174
1105 at 3 & nn.5-6. Since then, even more authority confirms the standing problem’s factual basis.
1116 Just last month, a leading technologist confirmed that the internet’s publication of Defense
1127 Distributed’s digital firearms information is “unstoppable”: “There is no way to stop the
1138 anonymous file sharing of 3D-printed guns online.” Jake Hanrahan, 3D-printed guns are back,
1149 and this time they are unstoppable, Wired Magazine, May 20, 2019, available at
11510 http://bit.ly/2MtWcZf. “As of now,” the report says, the “thousands many more 3D-printed gun
11611 enthusiasts connected to each other worldwide” have “essentially let the cat out the bag.” Id.
11712 Defense Distributed’s files are “available for free.” Id. It is “already too late to stop.” Id.
11813 This reality’s technical basis bears emphasis. “A decentralised network of gun-printing
11914 advocates is mobilising online, they’re anonymously sharing blueprints, advice and building a
12015 community.” Id. “Unlike previous attempts to popularise 3D-printed guns, this operation is
12116 entirely decentralised.” Id. “There’s no headquarters, no trademarks, and no real leader.” Id.
12217 Hosts include a network of gun-printing advocates that communicate across multiple peer-to-peer
12318 (“P2P”) networks beyond any government’s reach. See John Crump, The Unstoppable 3D Gun
12419 Revolution Continues to Heat Up, Ammoland, May 30, 3019, available at http://bit.ly/2WkgpjV.
12520 “Since there is not a central server, there is nothing to shut down.” Id. “If one node is shut down
12621 multiple other nodes pop up.” Id. The “distributors of these files seem to be unstoppable.” Id.
12722 Hence, all of the files at issue in this case remain easily accessible by way of rudimentary
12823 Google queries. Every website exhibited in the Private Defendants’ last brief remains intact,
129Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 4 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
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1321 continuing to make their files available for anyone to download for free. See Dkt. 174 at 3 nn.5-6.1
1332 Critically, all of this has taken place despite the Court’s entry of a preliminary injunction
1343 that does everything the Plaintiff States seek in their prayer for permanent relief. In effect, the
1354 preliminary injunction has proven to be impotent. This experience shows that the requested final
1365 judgment will be ineffective at redressing the Plaintiff States’ supposed injuries.
1376 C. Parens patriae standing cannot be used against the federal government.
1387 The Plaintiff States’ only serious standing argument invokes the parens patriae doctrine,
1398 which sometimes “allows a State to sue in a representative capacity to vindicate its citizens’
1409 interests.” Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 178 (D.C. Cir. 2019). But as a matter
14110 of law, the Plaintiff States cannot use parens patriae here because their claims are against the
14211 federal government. “The traditional rule, the so-called ‘Mellon bar,’ declares that a State lacks
14312 standing as parens patriae to bring an action against the federal government.” Id. at 179.
14413 The solution suggested by previous briefs was Massachusetts v. EPA, 549 U.S. 497 (2007).
14514 According to the Plaintiff States’ prior filings, footnote 17 of Massachusetts v. EPA eliminated
14615 this limitation and held that states can use parens patriae standing against the federal government.
14716 Dkt. 68 at 11. But a new precedent decisively establishes that the Plaintiff States’ reading of
14817 Massachusetts v. EPA is wrong. Footnote 17 does not change standing law as they say. The bar
14918 on states using parens patriae standing against the federal government remains.
15019 Last month, the D.C. Circuit confronted and rejected the exact parens patriae argument
15120 being made by the Plaintiff States here. Bernhardt, 923 F.3d at 181-83. There, as here, a state
15221 tried to argue that footnote 17 of Massachusetts v. EPA lets states employ parens patriae standing
15322 in APA actions against the federal government. Id. But in a unanimous and thorough decision,
1541 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.
155Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 5 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
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172the D.C. Circuit rejected that argument: “In the end, we are unpersuaded by Missouri’s argument that Massachusetts v. EPA alters our longstanding precedent that a State in general lacks parens patriae standing to sue the federal government.” Id. at 183.
173The argument stemming from footnote 17 is both an incorrect reading of Massachusetts v. EPA and wrong in principle. “The general supremacy of federal law” means “that the federal parens patriae power should not, as a rule, be subject to the intervention of states seeking to represent the same interest of the same citizens.” Id. For that reason, a “state can not have a quasi-sovereign interest because” matters of federal law “fall[ ] within the sovereignty of the Federal Government.” Id. (omission in original).
174Bernhardt is decisive. Massachusetts v. EPA did not eliminate the bar on states using parens patriae standing against the federal government. The Plaintiff States have no answer to this categorial flaw in their case, which is why their latest brief ignores the issue entirely.
175II.
176Defense Distributed should be dismissed for lack of personal jurisdiction.
177A. No waiver occurred.
178The Plaintiff States argue that Defense Distributed waived its personal jurisdiction defense
179Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 8 of 18
180because Rule 12(h)(1)(A) supposedly says that “a party waives the defense of lack of personal jurisdiction by ‘omitting it from a motion’ under Rule 12.” Dkt. 186 at 19. But the cited provision never says that (and neither does sole cited case). The waiver argument plainly misreads the rule.
181What Rule 12(h)(1)(A) does say is that waiver occurs if the defense is omitted a “from a motion in the circumstances described in Rule 12(g)(2).” Fed. R. Civ. P. 12(h)(1)(A) (emphasis added). The “circumstances described in Rule 12(g)(2),” in turn, exist by definition only when a defendant files multiple Rule 12 motions:
182Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
183Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 6 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
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199Fed. R. Civ. P. 12(g)(2) (emphasis added).2 Not so here.
200Defense Distributed made only one motion under Rule 12. Dkt. 114. They never filed
201“another motion under this rule” (Rule 12) because the instant summary-judgment filings are under Rule 56. These are not “the circumstances described in Rule 12(g)(2).” No Rule 12(h)(1)(A) waiver occurred.
202Support for Defense Distributed’s method of challenging personal jurisdiction comes from Rule 12(b)’s use of “must” and “may.” That provision says that litigants “must” assert a personal jurisdiction defense in a pleading (Defense Distributed did that, see Dkt. 81 at 42), and that litigants “may” assert the defense in a Rule 12 motion. Fed. R. Civ. P. 12(b). Since “may” is permissive, asserting the defense in a Rule 12 motion is not required. It is optional.
203Support for Defense Distributed’s method of challenging personal jurisdiction also comes from Rule 12(h)(1)(B)(ii)’s use of “either” and “or.” That provision shows that the defense of personal jurisdiction is preserved where, as here, the defendant has “either” made it by a Rule 12 motion “or” “include[d] it in a responsive pleading.” Fed. R. Civ. P. 12(h)(1)(B)(ii).
204This is not a “convoluted non-waiver theory.” Dkt. 186 at 19. It is straightforward construction that gives a logical meaning to each part of Rule 12. The Plaintiff States’ position, in contrast, would work only if Rule 12(b) changed “may” to “must” and Rule 12(h)(1)(B)(ii) changed “either” and “or” to “both” and “and.” As it stands, Rule 12 says no such thing.
205B. DEFCAD’s free downloads do not create minimum contacts.
206Substantively, the Plaintiff States say that personal jurisdiction exists because Defense Distributed’s website (DEFCAD) “actively invites visitors to download CAD files.” Dkt. 186 at 19. But the Plaintiff States did not plead anything about how interactive the website is, let alone
2072 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).
208Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 7 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
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2121 prove it with any evidence. The complaint says nothing more than that the website makes files
2132 “available for download,” Dkt. 29 at 4, 10, because that is the fact of the matter.
2143 Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), does
2154 not support personal jurisdiction here. The Plaintiff States try to shoehorn Defense Distributed’s
2165 situation into this quotation: “If the defendant enters into contracts with residents of a foreign
2176 jurisdiction that involve the knowing and repeated transmission of computer files over the Internet,
2187 personal jurisdiction is proper.” Dkt. 186 at 19 (quoting Zippo, 952 F. Supp. at 1124). But the
2198 keystone fact of business “contracts with residents” is missing. The complaint never speaks of the
2209 website creating contractual relationships for these downloads, and neither does evidence. See
22110 Dkt. 174-01 at 3 (“Defense Distributed posted . . . on DEFCAD for free download by the public.”).
22211 The Court should look not to the sentence quoted by the Plaintiff States, but to the one right
22312 after it. DEFCAD fits squarely within what Zippo frames as the “opposite end” of the spectrum.
22413 Zippo, 952 F. Supp. at 1124. Under Zippo, Defense Distributed’s online file publications constitute
22514 the kind of “passive” website activity that does not confer personal jurisdiction:
22615 At one end of the spectrum are situations where a defendant clearly does business
22716 over the Internet. If the defendant enters into contracts with residents of a foreign
22817 jurisdiction that involve the knowing and repeated transmission of computer files
22918 over the Internet, personal jurisdiction is proper. At the opposite end are situations
23019 where a defendant has simply posted information on an Internet Web site which is
23120 accessible to users in foreign jurisdictions. A passive Web site that does little more
23221 than make information available to those who are interested in it is not grounds for
23322 the exercise personal jurisdiction.
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23524 Id. at 1124 (emphasis added) (citations omitted).
23625 Besides quoting the wrong part of Zippo, the Plaintiff States refuse to address three critical
23726 jurisdictional faults in their position. They never address the rule that “contacts count towards
23827 purposeful availment only if they are created by the ‘defendant himself’—not if they are created
23928 by ‘plaintiffs or third parties.’” Dkt. 174 at 10 (quoting Walden v. Fiore, 571 U.S. 277, 284
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2431 (2014)). They never address the rule that “‘minimum contacts’ analysis looks to the defendant’s
2442 contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”
2453 Id. (quoting Walden, 571 U.S. at 285). And they never address the rule that hypothesized future
2464 forum contacts cannot count towards what must be a present purposeful availment inquiry. Id. at
2475 10-11. Each of these unanswered arguments presents an independent reason to dismiss the case
2486 against Defense Distributed for lack of personal jurisdiction.
2497 III. The APA cannot require abridgement of First Amendment freedoms.
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25113 requires the reviewing court to “deny relief” on this Constitutional “ground.” See Dkt. 174 at 20.
25214 Indeed, this would be required even in § 702’s absence due to elementary principles of
25315 constitutional law. See infra at 1. Like every other statute, the APA is subject to the rule that
25416 “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. Am 1. So even
25517 if the APA purported to authorize judgments that abridge the freedom of speech (it does not), the
25618 First Amendment’s overriding command would nullify it.
25719 The other ignored authorities are NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462
25820 (1958), Bates v. City of Little Rock, 361 U.S. 516, 523 (1960), and Perry v. Schwarzenegger, 591
25921 F.3d 1147, 1160-61 (9th Cir. 2010). They stand for the proposition that courts cannot issue orders
26022 of any kind—even things as relatively commonplace as discovery orders—that have the “practical
26123 effect” of denying First Amendment rights. Dkt. 174 at 20. This doctrine is one of the “appropriate
262Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 9 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
263Two crucial sets of authority about the Constitution’s interaction with the APA have gone
2649 totally ignored. First is 5 U.S.C. § 702, which says that, even when the APA’s internal thresholds
26510 for relief are met, reviewing courts must still determine whether or not there is a “duty of the court
26611 to . . . deny relief on any other appropriate legal or equitable ground.” 5 U.S.C. § 702. Thus, to
26712 the extent that an APA plaintiff’s requested relief would violate the First Amendment, § 702
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2701 legal or equitable ground[s]” that has to be evaluated before APA relief can be issued.
2712 All of these principles carry special weight where, as here, the law’s constitutional infirmity
2723 comes not just from instances of its enforcement against the citizenry, but also from the chilling
2734 effect created by its mere existence on the books. See Laird v. Tatum, 408 U.S. 1, 11 (1972)
2745 (“constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental
2756 regulations that fall short of a direct prohibition against the exercise of First Amendment rights.”);
2767 Dana’s R.R. Supply v. Att’y Gen., Flo., 807 F.3d 1235, 1241 (11th Cir. 2015) (“Litigants who are
2778 being ‘chilled from engaging in constitutional activity,’ . . . suffer a discrete harm independent of
2789 enforcement . . . .”).
27910 None of this is addressed in the Plaintiff States’ brief. Talk about what a court can and
28011 cannot consider under Chenery is inapposite, for that goes only to the predicate determination of
28112 what the APA’s internal procedural requirements entail. After the internal APA analysis occurs,
28213 courts are always obliged to ensure that a sought-after judgment does not violate the Constitution.
28314 IV. 15
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28517 deregulating 3D-printed firearm files violate AECA’s congressional notice provisions . . . .” Dkt.
28618 186 at 1. But they never show why notification requirements at 22 U.S.C. § 2778(f) apply to the
28719 License or Temporary Modification. In truth, “[n]othing has been removed from the USML by
28820 the Settlement Agreement, and, thus, no section 38(f) notice was required as a result of the
28921 Settlement Agreement.” Dkt. 48-1 at 110.
290The Plaintiff States’ APA claims against the Federal Defendants fail.
291A. Notification issues do not support any relief.
292The Plaintiff States continue to argue that “[t]he Temporary Modification and Letter
29322 Additionally, the Plaintiff States fail to realize that, apart from a notification about a
29423 commodity or item itself, no separate notification for technical data about a commodity or item is
29524 needed. “The jurisdiction of the technical data follows the jurisdiction of the related commodity
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2991 or item.” 78 Fed. Reg. 22740, 22748 (April 16, 2013). This follow-on structure is how all transfers
3002 to the EAR under export control reform work. See 81 Fed. Reg. 70340 (Oct. 12, 2016) at 70357;
3013 81 Fed. Reg. 49531 (July 28, 2016) at 49538 and 49539; 79 Fed. Reg. 37536 (July 1, 2014) at
3024 37545; 79 Fed. Reg. 27180 (May 13, 2014) at 27185 to 27186 and 27188; 79 Fed. Reg. 34 (Jan.
3035 2, 2014) at 41, 44, 45, and 46; 78 Fed. Reg. 40922 (July 8, 2013) at 40928, 40929, and 40931; 78
3046 Fed. Reg. 22740 (April 16, 2013) at 22757 and 22758.
3057 Even if the License and Temporary Modification constitute removals (they do not),
3068 notification of the proposed removal of firearms and associated technical data (which includes the
3079 subject files) was reportedly provided to Congress on February 4, 2019. Dkt. 174 at 18. Since
30810 this notice, Congress could have blocked the removal (by, for example, Joint Resolution), but has
30911 chosen not to do so.
31012 B. There was no reversal of longstanding regulation with regard to the license or
31113
31214 The Plaintiff States are wrong to assert that the State Department’s actions entail an “abrupt
31315 reversal of its longstanding regulation of the subject files.” Dkt. 186 at 1. The State Department
31416 has disclaimed control of public speech under the ITAR for 30 years.
31517 In 1980, responding to concerns that a vague footnote in the ITAR could be read to restrain
31618 public speech, the State Department announced: “[a]pproval is not required for publication of data
31719 within the United States . . . [the footnote] does not establish a prepublication review requirement.”
31820 Dkt. 158-3 at DOSWASHINGTONSUP00342-43. The State Department then removed the
31921 footnote from the ITAR, expressly stating its intent to address First Amendment concerns. See 49
32022 Fed. Reg. 47,682, 47,683 (Dec. 6, 1984).
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3281 In addition to the State Department’s express removal of any prior restraint in 1984, the
3292 ITAR expressly excludes from its scope information found in the public domain. See 22 C.F.R.
3303 § 120.10(b). Any reasonable person reading ITAR’s expansive definition of “public domain” at
3314 22 C.F.R. § 120.11 would conclude that U.S. persons without connections to foreign enterprises
3325 can publish technical information in public venues without U.S. government preapproval. See,
3336 e.g., United States v. Edler Indus., 579 F.2d 516, 521 (9th Cir. 1978) (“So confined, the statute and
3347 regulations are not overbroad [or] an unconstitutional prior restraint on speech.”).
3358 In the Bernstein litigation3, the State Department again confirmed that the ITAR does not
3369 impose a prior restraint on public speech, noting: “Since 1984, the ITAR has been amended in
33710 order to indicate more clearly that publicly available information and academic exchanges are not
33811 treated as technical data.” Ex. S at 10, ¶ 20 (Second Declaration of William J. Lowell, Department
33912 of State Office of Defense Trade Controls, Bernstein v. U.S. Dep’t of State, No. C 95-0582 (N.D.
34013 Cal.) (July 26, 1996)). It declared: “the Department does not seek to regulate the means themselves
34114 by which information is placed in the public domain.” Id. at 11, ¶ 22 (emphasis in the original).
34215 Moreover, it forcefully rejected any interpretation of ITAR’s public domain provision as imposing
34316 a prior restraint on public speech as “by far the most un-reasonable interpretation of the provision.”
34417 Id. at 23 (Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment and in Further
34518 Support of Defendants’ Motion for Summary Judgment, Bernstein v. U.S. Dep’t of State, No. C
34619 95-0582 (N.D. Cal.) (Aug. 30, 1996)) (emphasis in original).
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348   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)
349Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 12 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
350
351 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 15 of 18
3521 The 2013 State Department letter to Defense Distributed demanding the takedown of the
3532 subject files was the abrupt reversal of longstanding regulation. The State Department then issued
3543 a proposed rule to restrain public speech. See 80 Fed. Reg. 31,525, 31,528 (June 3, 2015). This
3554 proposal drew over 9,000 public comments.4 Most commenters opposed the proposal, including
3565 technology industry leaders (e.g., IBM, GE, and others), export control attorneys, and even former
3576 State Department employees. See, e.g., Dkt. 63-1 at 38 (“The ITAR proposed requirement for USG
3587 authorization to put information into the ‘public domain’ in 120.11(b) is a reversal of actions 30
3598 years ago to comply with the free speech first amendment to the Constitution.”). Not surprisingly,
3609 the ITAR was never amended to impose a prior restraint.
36110 C. The record shows compelling justifications for the Temporary Modification
36211
36312 Consistent with the 30-year history of the State Department disclaiming any control of
36413 public speech under the ITAR, the record includes decades of Justice Department legal opinions
36514 concluding that controlling public speech under the ITAR violates the First Amendment.5 These
36615 opinions pose a compelling justification—“the licensing requirement is presumptively
36716 unconstitutional as a prior restraint on speech protected by the First Amendment.”6
36817 The Plaintiff States further argue that the Justice Department opinions are irrelevant
36918 because “the Federal Defendants have not purported to rely on any of these statements . . . .” Dkt.
37019 186 at 24. But there can be no reasonable dispute that the State Department relied on the Justice
37120 Department statements because those opinions are part of the Administrative Record and the State
3724 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)).
3735 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.
3746 See Dkt. 48-1 at 20.
375and License.
376 Private Defendants’ MSJ Reply
377No 2:18-cv-01115-RSL - 13 -
378Beck Redden LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
379
380 Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 16 of 18
3811 Department publicly stated that it settled the case based on the Justice Department’s advice that
3822 the agency would lose on First Amendment grounds. Dkt. 35-1 at 5.
3833 D. The proposed transfer is valid.
3844 As detailed in Private Defendants’ Motion for Summary Judgment, the proposed rule offers
3855 various justifications for the list transfers, including reduced burden hours, reduced costs, and
3866 decreased taxpayer costs. Dkt. 174 at 17-18. Plaintiffs do not provide any reasonable explanation
3877 for why these justifications do not satisfy the APA. Instead, the Plaintiff States harp on “106,000
3888 emails from members of the public between July 23 and July 27, 2018, urging the Department not
3899 to exempt 3D-printable guns.” Dkt. 186 at 3. But according to the record, these emails came not
39010 from actual individuals, but from a BOT conducting a targeted spam campaign on behalf of an
39111 interest group. See Dkt. 184-11 at WASHAR0003428; id. at WASHAR0003435 (“These are not
39212 individuals attempting to contact the Secretary, but this appears to be a BOT conducting a targeted
39313 spam campaign . . . .”); see also Dkt. 184-5 at WASHAR0000008-9.
39414 The Plaintiff States further argue that the State Department’s action was arbitrary and
39515 capricious because of “multiple letters from Congressional leaders urging reconsideration of the
39616 deregulation of 3D-printable gun files; detailed comment letters from U.S. Senators and public
39717 policy organizations,” Dkt. 186 at 3; and because the State Department allegedly failed to address
39818 Democrat staffer requests. Dkt. 186 at 3-5. But Democrat concerns were countered by requests
39919 from over 100 Republican members of Congress. See, e.g., Dkt. 184-6 at WASHAR0001093;
40020 Dkt. 184-6 at W ASHAR0001098; Dkt. 184-6 at W ASHAR0001091-1092; Dkt. 184-8 at
40121 WASHAR0002058-2068; Dkt. 184-10 at WASHAR0003034-3035.
40222 No merit lies in the Plaintiff States’ complaints about comments not receiving bespoke
40323 responses. Several well-established rules of administrative procedure make this clear.
40424
405Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 14 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
406
407 1 2 3 4 5 6 7 8 9
40810
40911
41012
41113
41214
41315
41416
41517
41618
41719
41820
41921
42022
42123
422A failure to respond to comments means nothing unless it somehow “demonstrates that the agency’s decision was not ‘based on a consideration of the relevant factors.’” Thompson v. Clark, 741 F.2d 401, 409 (D.C. Cir. 1984). None of the Plaintiff States’ cherrypicked comments do so.
423Comments without “meaningful analysis or data” certainly warrant no response, and neither do comments that “brought to the attention of the agency nothing which it had not already considered.” Id. These rules apply to virtually all of the Plaintiff States highlighted comments, which add nothing meaningful or new to the State Department’s deliberative calculus.
424This was also an instance in which agencies need not respond to comments that are “diametrically” or “directly opposed” to the policy’s overall “thrust.” Sherley v. Sebelius, 689 F.3d 776, 784-85 (D.C. Cir. 2012). In other words, the State Department had no obligation to “comment on policy-based challenges to the basic premise of the proposed rule where the agency has already chosen a particular reconciliation of conflicting congressional directives and has previously explained its reasoning.” Baltimore Gas & Elec. Co. v. United States, 817 F.2d 108, 116 (D.C. Cir. 1987).
425Under these principles, the Federal Defendants need not have responded to the Plaintiff States’ favorite comments with anything more than the existing explanations. The Plaintiff States’ side of this political debate did not get mistreated. They were heard fairly. They just lost.
426Conclusion
427The Court should issue a summary judgment dismissing this action for lack of subject-matter jurisdiction. Alternatively, the Court should issue a summary judgment dismissing the Private Defendants from the action. In the further alternative, the Court should issue a summary judgment that the Plaintiff States take nothing. Any relief that is awarded to the Plaintiff States should be restricted to conduct taking place in the Plaintiff States’ jurisdictions.
428Private Defendants’ MSJ Reply Beck Redden LLP No 2:18-cv-01115-RSL - 15 - 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700
429Case 2:18-cv-01115-RSL Document 188 Filed 06/07/19 Page 17 of 18
430
431 Case 2:18-cv-01115-RSL
432Document 188 Filed 06/07/19 Page 18 of 18
433Date: June 7, 2019. BECK REDDEN LLP
434/s/Charles Flores
435Charles Flores cflores@beckredden.com Beck Redden LLP
4361221 McKinney, Suite 4500 Houston, TX 77010
437Phone: (713) 951-3700 *Admitted Pro Hac Vice
438Attorney for Defendant Defense Distributed
439Respectfully submitted, FARHANG & MEDCOFF
440/s/Matthew Goldstein
441Matthew Goldstein
442Farhang & Medcoff
4434801 E. Broadway Blvd., Suite 311 Tucson, AZ 85711
444Phone: (202) 550-0040 mgoldstein@farhangmedcoff.com *Admitted Pro Hac Vice
445ARD LAW GROUP PLLC /s/Joel B. Ard
446Joel B. Ard, WSBA # 40104 joel@ard.law
447Ard Law Group PLLC
448P.O. Box 11633
449Bainbridge Island, WA 98110 Phone: (206) 701-9243
450Attorneys for Defendants
451Defense Distributed, Second Amendment Foundation, Inc., and Conn Williamson
452CERTIFICATE OF SERVICE
453   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.
454 Private Defendants’ MSJ Reply No 2:18-cv-01115-RSL
455- 16 -
456/s/Charles Flores
457Charles Flores cflores@beckredden.com Beck Redden LLP
4581221 McKinney, Suite 4500 Houston, TX 77010
459Phone: (713) 951-3700 *Admitted Pro Hac Vice
460Attorney for Defendant Defense Distributed
461Beck Redden LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010 (713) 951-3700