AFIFI v. HOLDER et al

Filing 15

REPLY to opposition to motion re 11 MOTION to Stay Proceedings by YASIR AFIFI (Al-Khalili, Nadhira) Modified on 8/17/2011 to correct event (rdj).

Nadhira F. Al-Khalili (DSB #997827)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East
Washington, D.C. 20003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

YASIR AFIFI
Plaintiff
v.
ERIC H. HOLDER, et al
Defendants

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CASE NO.:1:11-00460
HON.: Judge Howell

PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION TO STAY PROCEEDINGS
PENDING THE SUPREME COURT’S REVIEW OF A
MATERIALLY IDENTICAL LEGAL ISSUE
Defendants argue that this Court may address their Motion to Dismiss without reaching
the issue before the Supreme Court in US v. Jones. But this is simply not the case. The legality
of the warrantless use of GPS tracking devices is the single core issue before this Court. To
resolve the Bivens action against Unknown Defendants, the Administrative Procedures Act claim
against Defendants Mueller and Holder, and the Privacy Act claim against Defendants Mueller
and Holder requires this Court to apply case law currently in flux that the Supreme Court will
definitively fix in US v. Jones. In the absence of an identifiable burden that a stay in proceedings
would impose on Defendants, basic tenets of judicial economy justify this Court’s grant of
Plaintiff’s stay.

I. Privacy Act Claim
Whether Defendants Holder and Mueller continue to violate the Privacy Act by
maintaining records of Plaintiff’s first amendment activities that are not “pertinent to and within
the scope of an authorized law enforcement activity” requires this Court to determine whether
Defendants have surpassed their capacity to “authorize[e]” certain law enforcement activities. 5
U.S.C. § 552a(e)(7).

Defendants Holder and Mueller—in their official capacity—lack the

authority to “authorize” unconstitutional law enforcement activities.

Thus, if US v. Jones

determines that the warrantless use of GPS tracking devices violates the Fourth Amendment,
then any records Defendants Holder and Mueller maintain derived from such unconstitutional
activities would violate the Privacy Act. This is because such records would not be “within the
scope of an authorized law enforcement activity.” Id. The dispositive effect US v. Jones will
have on Plaintiff’s case before this Court justify a grant of Plaintiff’s motion to stay proceedings.
II. Administrative Procedures Act Claim
The Administrative Procedures Act claim is properly against Defendant Holder and
Mueller for furnishing Unknown Defendants “approval . . . or [an]other form of permission” to
place a tracking device under Plaintiff’s vehicle. 5 U.S.C. § 551(8). Because Plaintiff has
alleged that Defendants Holder and Mueller did affirmatively grant their approval to place the
tracking device under Plaintiff’s vehicle, this Court must decide whether that approval itself was
contrary to the law. The resolution then of whether the approval was contrary to law turns on
what the Supreme Court decides in US v. Jones. Again, the dispositive effect of US v. Jones on
Plaintiff’s case is apparent and warrants a stay in the proceedings.

III. Bivens Action
Defendants attempt to obscure the propriety of a stay by emphasizing that a Bivens action
is not available against Defendants acting in their official capacity. This argument, however,
misses the point because to litigate Plaintiff’s Bivens action against Unknown Defendants—
irrespective of whether this claim is ultimately tenable against Defendants Holder and Mueller in
their official capacity—would require a not negligible outlay of discovery efforts to file a motion
to conduct limited discover, to retrieve documents from Defendants to establish the identity of
Unknown Defendants, and to solicit testimony determining whether the jurisdictional contacts of
Unknown Defendants are sufficient to allow this Court to exercise personal jurisdiction over
them and maintain proper venue. A Supreme Court decision—whatever its content--in US v.
Jones may absolve this Court of the need to oversee these intensive tasks. Thus, because the
Supreme Court’s decision will bear significantly on the need to proceed through discovery at this
initial stage of the litigation, judicial economy is best served by granting Plaintiff’s stay.
CONCLUSION
For the foregoing reasons, Plaintiff Afifi respectfully requests that the Court grant his
motion to stay proceedings pending the Supreme Court’s decision in US v. Jones.
Dated: August 15, 2011
Respectfully submitted,
By: __/s/__Nadhira Al-Khalili________________
Nadhira F. Al-Khalili (DSB #997827)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East
Washington, D.C. 20003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2011, a true and correct copy of the foregoing was served
electronically by the U.S. District Court for the District of Columbia Electronic Case Filing
System (ECF) and that the documents are available on the ECF system.

By: __/s/__Nadhira Al-Khalili________________
Nadhira F. Al-Khalili (DSB #997827)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East
Washington, D.C. 20003
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]