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Defendant's Memorandum of Law in Support of Motion To Certify The Court's March 24 Opinion and Order For Interlocutory Appeal and To Stay Discovery
Defendant's Memorandum of Law in Support of Motion To Certify The Court's March 24 Opinion and Order For Interlocutory Appeal and To Stay Discovery
Plaintiff,
- against -
Defendant.
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
CONCLUSION ..............................................................................................................................10
i
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TABLE OF AUTHORITIES
Page(s)
Cases
ii
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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
iii
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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)).
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
2
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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.
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
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.
3
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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
4
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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.
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.
5
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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’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.
6
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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
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
7
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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-
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
8
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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
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
9
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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-
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.
10
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GEOFFREY S. BERMAN
United States Attorney for the
Southern District of New York,
Attorney for Defendant
11