Kunstler v. Central Intelligence Agency

• Court: District Court, S.D. New York
• Decided: February 16, 2023
• Docket: 1:22-cv-06913
• Status: Unknown

Opinion

a U.S. Department of Justice ey United States Attorney Southern District of New York 86 Chambers Street New York, New York 10007 February 16, 2023 SE ST nll yo co} , be a oO ob . BY RCP A dale ee GSB Gaaiee | OO OP Hon. John G. Koeltl , 60 Onn & DE Dict United States District Judge □ OnBCRED United States Courthouse PIC, - lo fice fp 500 Pearl Street g. / OR ofthe ~ New York, New York 10007 { Le BS John G. Moelth LES a,

Re: Kunstler et al. v. Central Intelligence Agency et al., No. 22 Civ. 6913 (JGK) Dear Judge Koeltl: I write respectfully on behalf of defendants the Central Intelligence Agency (“CIA”) and Michael R. Pompeo, the former Director of the CIA (together, the “Federal Defendants”), to request a one-month extension of time for their anticipated motion to dismiss the plaintiffs’ amended complaint. At the pre-motion conference on January 20, the Court gave plaintiffs until January 27 to amend their complaint and set February 17 as the deadline for the defendants to meve to dismiss any amended complaint. ECF No. 26. The amended complaint includes a new claim against the CIA directly under the Fourth Amendment, ECF No. 27, {{§{ 57-59, as opposed to the original complaint, which improperly made a claim against the CIA under the doctrine of Bivens v. Six Unknown Named Agents, 402 U.S. 388 (1971), ECF No. 1,49]51. We require additional time to evaluate this new claim, as it raises different issues than plaintiffs’ original Bivens claim. See FDIC vy, Meyer, 510 U.S. 471, 486 (1994) (“An extension of Bivens to agencies of the Federal Government is not supported by the logic of Bivens itself.”), The additional time is also needed due to the press of business, as the undersigned is filing two substantial briefs in other cases this week. Because I wili be out of the Office for most of the week of March 6-10, I respectfully request that the Court extend the deadline for the Federal Defendants to file their motion to dismiss the amended complaint from February 17 to March 17, 2023, and adjust the remainder of the briefing schedule accordingly. Plaintiffs do not consent to the requested extension, and have asked that we provide the following explanation for their position: Unfortunately, we cannot agree to yet another delay. To rewind the clock, your clients were in default and the Court, on December 7, 2022 graciously granted your clients until January 13, 2023 in which to appear, answer or otherwise move with respect to the Complaint. On that date, rather than do any of the above, you sent a letter asking the Court to allow you to make a motion. We then had a

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conference and Plaintiffs timely filed its Amended Complaint. Your clients then had until February 17, 2023 on which to appear, answer or otherwise move. You are now asking for yet another four weeks to do so. In brief response to the above, the Federal Defendants reiterate that, as explained in their pre-motion conference letter, ECF No. 23, at 1 n.1, they were not in default of their time to respond to the complaint when the Court sua sponte extended the deadline for them to do so, ECE No, 21, as 60 days had not yet elapsed from the dates of service, pursuant to Federal Rule of Civil Procedure 12(a)(2) and (3). The Federal Defendants further note that they submitted a pre- motion conference letter rather than a motion to dismiss on the deadline for responding to Plaintiffs’ original complaint in accordance with Section of this Court’s Individual Practices. I thank the Court for its consideration of this request. Respectfully, DAMIAN WILLIAMS United States Attorney By: s/Jean-David Barnea JEAN-DAVID BARNEA Assistant United States Attorney Telephone: (212) 637-2679 Email: Jean-David.Barnea@usdoj.gov cc: All parties (by ECF) .