Case 1:18-cv-09433-LGS Document 101 Filed 06/11/20 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PEN AMERICAN CENTER, INC., No. 18 Civ. 9433 (LGS)

Plaintiff,

- against -

DONALD J. TRUMP, in his official capacity as Presi-

dent of the United States,

Defendant.

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO

CERTIFY THE COURT’S MARCH 24 OPINION & ORDER FOR INTERLOCUTORY
APPEAL AND TO STAY DISCOVERY

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York
Attorney for the United States
86 Chambers Street, Third Floor
New York, New York 10007
Tel: (212) 637-2715
Attorney for Defendant

Steven J. Kochevar
Assistant United States Attorney
– Of Counsel –
 Case 1:18-cv-09433-LGS Document 101 Filed 06/11/20 Page 2 of 15

TABLE OF CONTENTS

ARGUMENT ...................................................................................................................................1

I. AN IMMEDIATE APPEAL WILL MATERIALLY ADVANCE

TERMINATION OF THIS LITIGATION ..............................................................1

II. THE ORDER PRESENTS CONTROLLING QUESTIONS OF LAW AS

TO WHICH THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE
OF OPINION ...........................................................................................................2

A. Whether Declaratory Relief Is Available Against the President in His

Official Capacity ......................................................................................................3

B. Whether Generalized Allegations of a Chilling Effect on Third Parties Are

Sufficient to Support Standing .................................................................................5

C. Whether Plaintiff’s Allegations Plausibly State a Claim for Relief ........................8

III. THE COURT SHOULD STAY DISCOVERY.....................................................10

CONCLUSION ..............................................................................................................................10

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TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) .................................................................................................................... 5
Balintulo v. Daimler AG,
727 F.3d 174 (2d Cir. 2013)........................................................................................................ 1
Baltimore Sun Co. v. Ehrlich,
437 F.3d 410 (4th Cir. 2006) ...................................................................................................... 9
Batalla Vidal v. Nielsen,
Nos. 16-cv-4756, 17-cv-5228, 2018 WL 333515 (E.D.N.Y. Jan. 8, 2018) .............................. 10
Baur v. Veneman,
352 F.3d 625 (2d Cir. 2003)........................................................................................................ 7
Cheney v. U.S. Dist. Court,
542 U.S. 367 (2004) .......................................................................................................... 1, 2, 10
City of New York v. Beretta U.S.A. Corp.,
524 F.3d 384 (2d Cir. 2008)........................................................................................................ 3
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ................................................................................................................ 6, 7
Clinton v. Jones,
520 U.S. 681 (1997) .................................................................................................................... 1
Comm. on the Judiciary of the U.S. House of Reps. v. Miers,
542 F.3d 909 (D.C. Cir. 2008) .................................................................................................... 3
Cooper Indus., Inc. v. Aviall Servs., Inc.,
543 U.S. 157 (2004) .................................................................................................................... 5
Dorsett v. County of Nassau,
732 F.3d 157 (2d Cir. 2013)................................................................................................ 5, 7, 8
Florio v. City of New York,
No. 06 Civ. 6473, 2008 WL 3068247 (S.D.N.Y. Aug. 5, 2008) ................................................ 1
Franklin v. Massachusetts
505 U.S. 788 (1992) .................................................................................................................... 3
Gill v. Pidlypchak,
389 F.3d 379 (2d Cir. 2004)........................................................................................................ 8
In re Duplan Corp.,
591 F.2d 139 (2d Cir. 1978)........................................................................................................ 3
In re Facebook IPO Secs. and Deriv. Litig.,
986 F. Supp. 2d 524 (S.D.N.Y. 2014)................................................................................. 3, 5, 8
Karem v. Trump,
No. 19-5255, 2020 WL 3023052 (D.C. Cir. June 5, 2020) ........................................................ 9
Klinghoffer v. S.N.C. Achille Lauro,
921 F.2d 21 (2d Cir. 1990)...................................................................................................... 3, 5
Knight First Amendment Inst. v. Trump,
928 F.3d 226 (2d Cir. 2019)........................................................................................................ 5

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Lance v. Coffman,
549 U.S. 437 (2007) .................................................................................................................... 7
Mohawk Indus. v. Carpenter,
558 U.S. 100 (2009) .................................................................................................................... 1
Mozzochi v. Borden,
959 F.2d 1174 (2d Cir. 1992)...................................................................................................... 8
National Endowment for Arts v. Finley,
524 U.S. 569 (1998) .................................................................................................................... 9
Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) .................................................................................................. 3
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ................................................................................................................ 4, 9
Pleasant Grove City v. Summum,
555 U.S. 460 (2009) .................................................................................................................... 9
Ragbir v. Homan
923 F.3d 53 (2d Cir. 2019).......................................................................................................... 8
Sanchez-Espinoza v. Reagan,
770 F.2d 202 (D.C. Cir. 1985) .................................................................................................... 4
Sherrill v. Knight
569 F.2d 124 (D.C. Cir. 1977) .................................................................................................... 9
Singer v. Fulton Cty. Sheriff,
63 F.3d 110 (2d Cir. 1995).......................................................................................................... 8
Spargo v. New York State Comm’n on Judicial Conduct,
351 F.3d 65 (2d Cir. 2003).......................................................................................................... 6
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) .................................................................................................... 4
Webster v. Fall,
266 U.S. 507 (1925) .................................................................................................................... 5
Zherka v. Amicone,
634 F.3d 642 (2d Cir. 2011)........................................................................................................ 4

Statutes

28 U.S.C. § 1292 ................................................................................................................... 1, 3, 10

28 U.S.C. § 2201 ............................................................................................................................. 4

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ARGUMENT
The Court should certify its March 24 Order for interlocutory appeal under 28 U.S.C.

§ 1292(b). The Supreme Court has made clear that “[s]pecial considerations applicable to the Pres-

ident . . . suggest that the courts should be sensitive to requests by the Government for interlocutory

appeals.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 391-92 (2004). These considerations weigh

especially strongly when a lawsuit seeks to subject the President’s interactions with the press to

judicial scrutiny. An immediate appeal will “materially advance the ultimate termination of the

ligation,” and the order involves “controlling question[s] of law as to which there is a substantial

ground for difference of opinion.” 28 U.S.C. § 1292(b). “When a ruling satisfies [the § 1292(b)]

criteria and ‘involves a new legal question or is of special consequence,’ then the district court

‘should not hesitate to certify an interlocutory appeal.’” Balintulo v. Daimler AG, 727 F.3d 174,

186 (2d Cir. 2013) (quoting Mohawk Indus. v. Carpenter, 558 U.S. 100, 111 (2009)).

I. An Immediate Appeal Will Materially Advance Termination of This Litigation

Immediate appeal of the Order will materially advance the termination of this litigation. In

assessing whether the requirements of 28 U.S.C. § 1292(b) are met, courts in this district have

“place[d] particular weight on” that factor. Florio v. City of New York, No. 06 Civ. 6473, 2008

WL 3068247, at *1 (S.D.N.Y. Aug. 5, 2008). If the Second Circuit determines that the President

is not amenable to suit for a declaratory judgment, that plaintiff lacks standing, or that plaintiff’s

remaining allegations fail to state plausible claims for relief, the litigation would terminate or be

substantially narrowed.

Avoiding protracted litigation and streamlining any possible discovery is a particularly com-

pelling reason to certify the Order because of “the unique position in the constitutional scheme

that [the Office of the Presidency] occupies.” Clinton v. Jones, 520 U.S. 681, 698 (1997) (quotation
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marks omitted). This is an exceptional case where protracted litigation raising separation-of-pow-

ers issues is likely, and the opportunity to narrow or terminate the litigation at an early stage should

be given substantial weight. The sole defendant in this case is the sitting President of the United

States, and plaintiff challenges his subjective, individual motivations for taking discretionary ac-

tions in his official capacity. The Supreme Court has repeatedly held that the President is not an

ordinary defendant in civil litigation. See Letter dated June 1, 2020, at 2, ECF No. 97 (collecting

cases). Instead, “special considerations control when the Executive Branch’s interests in maintain-

ing the autonomy of its office and safeguarding the confidentiality of its communications are im-

plicated.” Cheney, 542 U.S. at 385. These “special considerations” alone warrant immediate ap-

pellate review of decisions related to the legality of the President’s discretionary actions. See id.

at 391-92.

The possibility of discovery against the President in this action makes immediate appellate

review essential. Plaintiff has indicated its intent to “obtain documents; answers to interrogatories,

and requests for admission; and deposition testimony.” Joint Letter dated April 9, 2020, at 3, ECF

No. 80. The discovery sought by plaintiff will raise sensitive issues of executive privilege and

constitutional separation of powers because it will necessarily be targeted at the head of the Exec-

utive branch and his motivations for taking discretionary actions. The Supreme Court has specifi-

cally held that such “occasions for constitutional confrontation between the two branches should

be avoided whenever possible.” Cheney, 542 U.S. at 389-90 (brackets and quotation marks omit-

ted). Here, immediate appellate review offers an opportunity to avoid constitutional confrontation

altogether.

II. The Order Presents Controlling Questions of Law as to Which There Is Substantial
Ground for Difference of Opinion
The Order presents four controlling questions of law as to which “there is substantial ground

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for difference of opinion.” 28 U.S.C. § 1292(b). 1 Whether a question of law is “controlling” is

closely related to whether its resolution would “materially advance the ultimate termination of the

litigation.” In re Duplan Corp., 591 F.2d 139, 148 n.11 (2d Cir. 1978); see Klinghoffer v. S.N.C.

Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990). “A substantial ground for difference of opinion

exists when (1) there is conflicting authority on the issue, or (2) the issue is particularly difficult

and of first impression for the Second Circuit.” In re Facebook IPO Secs. and Deriv. Litig., 986 F.

Supp. 2d 524, 539-40 (S.D.N.Y. 2014) (quotation marks omitted).

A. Whether Declaratory Relief Is Available Against the President in His Official

Capacity
Substantial ground for difference of opinion exists as to whether this Court has jurisdiction

to enter declaratory relief concerning the President’s official, discretionary actions. 2 In his concur-

ring opinion in Franklin v. Massachusetts, Justice Scalia explained that declaratory relief is una-

vailable against the President for “similar reasons” to why injunctive relief is unavailable, namely

that such relief is “incompatible with his constitutional position.” 505 U.S. 788, 827-28 (1992)

(Scalia, J., concurring). After Franklin, the D.C. Circuit held that “declaratory relief” against the

President for non-ministerial conduct “is unavailable.” Newdow v. Roberts, 603 F.3d 1002, 1012-

13 (D.C. Cir. 2010) (“With regard to the President, courts do not have jurisdiction to enjoin him,

and have never submitted the President to declaratory relief.” (citations omitted)). The D.C. Circuit

has also explained that a declaratory judgment directed to an Executive branch official “is the

functional equivalent of an injunction” because it is “presumed that officials of the Executive

Branch will adhere to the law as declared by the court.” Comm. on the Judiciary of the U.S. House

1
The court need only identify one such question to certify the entire order for appeal. City
of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 391-92 (2d Cir. 2008).
2
This question is controlling as the action would terminate if the Circuit determines de-
claratory relief—the only relief remaining—is unavailable. Klinghoffer, 921 F.2d at 24.

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of Reps. v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (citing Sanchez-Espinoza v. Reagan, 770

F.2d 202, 208 n.8 (D.C. Cir. 1985)). For these reasons, “similar considerations regarding a court’s

power to issue [injunctive] relief against the President himself apply to [a] request for a declaratory

judgment.” Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir. 1996).

The constitutional considerations preventing declaratory and injunctive relief against a sit-

ting President weigh particularly heavily in the present case, where plaintiff seeks to subject the

sitting President’s interactions with the press to judicial scrutiny. Article II of the Constitution

“entrust[s] [the President] with supervisory and policy responsibilities of utmost discretion and

sensitivity.” Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). By entrusting the President with such

discretion, the Constitution secures an arena of political engagement in which the leader of the

Executive branch may operate without judicial scrutiny. That arena “can at times be rough and

tough.” Zherka v. Amicone, 634 F.3d 642, 647 (2d Cir. 2011). But this does not mean that the

federal courts may properly regulate the President’s actions there. Instead, “the President’s consti-

tutional responsibilities and status [are] factors counseling judicial deference and restraint,” par-

ticularly when the relief sought would effectively amount to judicial control over the President’s

public speech. Nixon, 457 U.S. at 753. Accordingly, even if a declaratory judgment could conceiv-

ably lie against the President in some situations, this context, which involves the President’s inter-

actions with the press and with the public through the press, is not one of them.

Even assuming, arguendo, the Constitution allows declaratory relief against the President,

Congress must speak clearly before it subjects the President to suit for declaratory relief. In Frank-

lin and Nixon, the Supreme Court applied a clear-statement requirement before the President could

be subjected to certain relief. But the Declaratory Judgment Act contains no express statement that

it extends to the President. See 28 U.S.C. § 2201.

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In its Order, this Court noted that the Second Circuit affirmed a declaratory judgment against

the President in Knight First Amendment Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), reh’g en

banc denied, 953 F.3d 216 (2d Cir. 2020). March 24 Order at 22, ECF No. 76. However, because

the issue of the availability of declaratory relief against the President was neither raised by the

parties before the Second Circuit nor addressed in the Circuit’s opinion, Knight does not have

precedential value on this issue. See Knight, 928 F.3d at 233-34 n.3 (mentioning declaratory relief

only to recite the steps taken by the district court and to observe that this did not render the case

moot); see Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (“‘Questions which

merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute precedents.’” (quoting Webster v. Fall, 266

U.S. 507, 511 (1925))); Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144-45 (2011).

Additionally, the declaratory judgment in Knight ran against multiple defendants and was not en-

tered against the President alone, unlike in the present case where the President is the sole defend-

ant.

B. Whether Generalized Allegations of a Chilling Effect on Third Parties Are

Sufficient to Support Standing
Substantial ground for difference of opinion also exists as to whether plaintiff’s generalized

allegations of a chilling effect on third parties’ expression are sufficient to support plaintiff’s as-

sociational or organizational standing. 3 For both theories of standing, the Court erred in permitting

plaintiff to rely on alleged threats to individuals who are not alleged to have been chilled or other-

wise injured, see Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (to demonstrate

standing to bring a First Amendment claim, plaintiff must show “his speech has been adversely

3
This question is controlling because “reversal of the district court’s opinion could result
in dismissal of the action [or] . . . could significantly affect the conduct of the action.” In re Face-
book IPO, 986 F. Supp. 2d at 536; see Klinghoffer, 921 F.2d at 24.

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affected” or “he has suffered some other concrete harm”), and the alleged chill of individuals who

are not alleged to have been threatened, see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416

(2013) (plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on

their fears of hypothetical future harm that is not certainly impending”). Plaintiff identifies no

individual who has been both threatened and chilled by those threats, and this disconnect forecloses

plaintiff’s standing.

First, plaintiff’s generalized allegations of the chilling of some unnamed individuals are in-

sufficient to support Jim Acosta’s standing—and therefore associational standing. Plaintiff has not

alleged that Acosta himself has been chilled or that he has suffered any other concrete harm suffi-

cient to support standing under Dorsett. Although plaintiff alleges generally that “all members of

the White House press corps” were chilled by rules of conduct sent by the Press Secretary follow-

ing the return of Acosta’s press pass, Am. Compl. ¶ 48, this only amounts to a self-inflicted injury

based on “fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U.S. at

416, 418. 4 Because these generalized allegations of chilling are insufficient for members of the

White House press corps to sue for a First Amendment violation, those allegations necessarily

cannot support standing for Acosta under a receipt-of-information theory. Spargo v. New York

State Comm’n on Judicial Conduct, 351 F.3d 65, 83-84 (2d Cir. 2003) (explaining that recipient

of speech “may claim no greater First Amendment protection than [the speaker]” and that the

recipient’s success on the merits is “entirely derivative” of the rights of the speaker).

Plaintiff cannot demonstrate organizational standing due to a similar disconnect between

plaintiff’s allegations concerning who was threatened and who was chilled. The President’s alleged

4
Plaintiff also does not allege that the unnamed 31% of its members who have allegedly
been chilled have plausibly been threatened, or that Acosta is among this 31%. Am. Compl. ¶ 96.

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threats and retaliation targeting specific journalists and alleged holders of security clearances do

not support organizational standing because plaintiff does not allege that those targets have cur-

tailed their speech—and therefore plaintiff’s claim to have received less information from them

cannot amount to a “concrete injury.” Dorsett, 732 F.3d at 160-61. While plaintiff alleges chilling

of 31% of its unnamed members and the White House press corps generally, it cannot rest organ-

izational standing on those allegations because, in the absence of plausible threats against these

speakers (emailed rules of conduct not being a plausible threat), any injury would be based on

“fears of hypothetical future harm that is not certainly impending.” Clapper, 568 U.S. at 416.

Even assuming, arguendo, that plaintiff had been deprived of information from journalists

or former officials, that injury is insufficiently concrete and particularized. “To have standing . . .

a plaintiff must have more than a general interest common to all members of the public.” Lance v.

Coffman, 549 U.S. 437, 440 (2007) (quotation marks omitted); see Baur v. Veneman, 352 F.3d

625, 632 (2d Cir. 2003). Plaintiff alleges that it is being deprived of the substantive reporting that

journalists and former officials would have engaged in but for the President’s alleged threats and

retaliation. But this allegedly chilled reporting has no connection to plaintiff’s alleged mission of

“long-term advocacy on behalf of individual writers who are being punished because of their

work.” Am. Compl. ¶ 103. To defend its members against alleged interference with free reporting,

plaintiff needs information about threats and retaliation, and plaintiff does not allege that it is being

deprived of that type of information. Accordingly, plaintiff’s alleged receipt-of-information injury

based on chilled reporting is indistinguishable from that of the public at large.

This Court’s error in concluding that plaintiff has standing perhaps reflects the ambiguity in

the Second Circuit’s case law about what a plaintiff must show to establish standing to bring a

First Amendment retaliation claim. See Dorsett, 732 F.3d at 160 (recognizing “some tension in

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[the Circuit’s] First Amendment standing cases”); Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.

2004) (discussing “apparent inconsistency” in the Circuit’s case law). In Gill, the Second Circuit

explained that “one line of cases in [the] Circuit . . . impose[s] an actual chill requirement for First

Amendment retaliation claims,” before acknowledging another line of cases using an “objective

test” for First Amendment retaliation claims. Id. In Dorsett, the Second Circuit disclaimed the

actual chill requirement as an “imprecise statement of law” and held that a plaintiff could also

demonstrate standing if “he has suffered some other concrete harm.” Dorsett, 732 F.3d at 160. But

more recently in Ragbir v. Homan, the Second Circuit appears to have again characterized its First

Amendment retaliation cases as requiring an actual chilling of plaintiff’s speech. 923 F.3d 53, 67

(2d Cir. 2019) (discussing Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992), and Singer

v. Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995)). The ambiguity surrounding the proper

standard to be applied in First Amendment retaliation cases is even more pronounced where, as

here, plaintiff premises its standing on a receipt-of-information injury, which is not among

Dorsett’s examples of “concrete harm[s].” 732 F.3d at 160. For all of these reasons, there is sub-

stantial ground for disagreement on the controlling question of whether plaintiff can demonstrate

standing. See In re Facebook IPO, 986 F. Supp. 2d at 540 (“The [substantial-ground] standard is

met when . . . there is genuine doubt as to whether the district court applied the correct legal stand-

ard in its order.” (quotation marks omitted)).

C. Whether Plaintiff’s Allegations Plausibly State a Claim for Relief

Whether plaintiff has plausibly alleged a claim upon which relief can be granted through its

claim concerning White House press access is another controlling question of law as to which

there is substantial ground for difference of opinion. Our constitutional structure provides that the

President must be afforded broad discretion in determining how he interacts with the press, and

with the public through the press. The Constitution “entrust[s] [the President] with supervisory

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and policy responsibilities of utmost discretion and sensitivity,” Nixon, 457 U.S. at 750, and the

courts should not inhibit the President in his various roles as a leader, policymaker, persuader, and

politician by imposing a requirement of viewpoint neutrality. See National Endowment for Arts v.

Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring in judgment) (“It is the very business of

government to favor and disfavor points of view . . . .”). “Indeed, it is not easy to imagine how

government could function if it lacked this freedom,” Pleasant Grove City v. Summum, 555 U.S.

460, 468 (2009), and it is especially difficult to see how the President could perform his duties

under such restrictions.

The Fourth Circuit has upheld a State Governor’s restriction on state employees providing

information to certain reporters based on their viewpoints. Baltimore Sun Co. v. Ehrlich, 437 F.3d

410, 413 (4th Cir. 2006). The court explained that it was permissible to provide “relatively less

information” to one journalist “on account of [that journalist’s] reporting,” because such decisions

are “a pervasive feature of journalism and of journalists’ interaction with government.” Id. at 418.

Although in Sherrill v. Knight the D.C. Circuit stated that the First Amendment “requires that . . .

access [to White House press facilities] not be denied arbitrarily or for less than compelling rea-

sons,” 569 F.2d 124, 129 (D.C. Cir. 1977), the court only found a due process violation, based on

the lack of a fair process and clear standards surrounding the denial of a press pass to an “otherwise

eligible journalist,” id. at 130-31; see also Karem v. Trump, No. 19-5255, 2020 WL 3023052, at

*8 (D.C. Cir. June 5, 2020) (affirming grant of preliminary injunction restoring White House press

pass against Press Secretary, but not against President, on due process grounds).

With respect to plaintiff’s claims relating to security clearances, the Court should certify the

additional controlling question of whether a plaintiff can assert a claim based on its generalized

interest in hearing the hypothetically self-censored speech of third parties, where plaintiff has not

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alleged that the speech of any specific third party has actually been chilled. The President’s alleged

actions toward the former officials have not violated plaintiff’s own First Amendment rights. Plain-

tiff has not alleged that the speech of the former officials has been chilled, and so plaintiff’s alle-

gations do not show injury to any possible right to receive information.

III. The Court Should Stay Discovery

The Court should stay discovery pending this Court’s resolution of the President’s certifica-

tion motion and any appellate proceedings. See, e.g., Batalla Vidal v. Nielsen, Nos. 16-cv-4756,

17-cv-5228, 2018 WL 333515, at *5 (E.D.N.Y. Jan. 8, 2018) (staying discovery and certifying

decision on government’s motion to dismiss in cases against high-ranking Executive officials, in-

cluding the President). The discovery sought by plaintiff will raise significant issues of executive

privilege and separation of powers because the President is the sole defendant in this matter. Such

“occasions for constitutional confrontation between the two branches should be avoided whenever

possible.” Cheney, 542 U.S. at 389-90 (brackets and quotation marks omitted). Certification under

§ 1292(b) could obviate or narrow discovery and thus avoid constitutional confrontations.

CONCLUSION
The Court should certify the Order under 28 U.S.C. § 1292(b) and stay discovery.

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Dated: New York, New York

June 11, 2020
Respectfully submitted,

GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York,
Attorney for Defendant

By: /s/ Steven J. Kochevar

Steven J. Kochevar
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Tel. (212) 637-2715
Fax (212) 637-2717
steven.kochevar@usdoj.gov

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