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Case 16-1176, Document 137-1, 02/20/2019, 2501320, Page1 of 1

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT


16-1176
Docket Number(s): ________________________________________ _______________Caption [use short title]_____________________
stay of mandate
Motion for: ______________________________________________

________________________________________________________

________________________________________________________

Set forth below precise, complete statement of relief sought:


Stay the mandate to allow the Solicitor General of the
________________________________________________________
Tanvir v. Tanzin
United States, or potentially private counsel, to decide
________________________________________________________
whether to file a petition for a writ of certiorari in the
________________________________________________________
Supreme Court.
________________________________________________________

________________________________________________________

________________________________________________________
Tanzin et al. (all defendant-appellees) OPPOSING PARTY:____________________________________________
MOVING PARTY:_______________________________________ Tanvir et al.

___Plaintiff ✔
___Defendant

___Appellant/Petitioner ✔
___Appellee/Respondent

Sarah S. Normand
MOVING ATTORNEY:___________________________________ Ramzi Kassem, Esq.
OPPOSING ATTORNEY:________________________________________
[name of attorney, with firm, address, phone number and e-mail]
U.S. Attorney's Office, SDNY
________________________________________________________ Main Street Legal Services, Inc., CUNY School of Law
_______________________________________________________________
86 Chambers St., New York, NY 10007
________________________________________________________ 2 Court Square, Long Island City, NY 11101
_______________________________________________________________
sarah.normand@usdoj.gov, 212.637.2709
________________________________________________________ 718.340.4630; ramzi.kassem@law.cuny.edu
_______________________________________________________________
US District Court, SDNY (Abrams, J.)
Court- Judge/ Agency appealed from: _________________________________________________________________________________________

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUCTIONS PENDING APPEAL:
Has movant notified opposing counsel (required by Local Rule 27.1): Has this request for relief been made below? ✔
___Yes ___No

___Yes ___No (explain):__________________________ Has this relief been previously sought in this court? ✔
___Yes ___No
_______________________________________________ Requested return date and explanation of emergency: ________________
_____________________________________________________________
Opposing counsel’s position on motion:
_____________________________________________________________

___Unopposed ___Opposed ___Don’t Know
_____________________________________________________________
Does opposing counsel intend to file a response:
_____________________________________________________________

___Yes ___No ___Don’t Know

Is oral argument on motion requested? ✔ (requests for oral argument will not necessarily be granted)
___Yes ___No

Has argument date of appeal been set? ___ March 1, 2017


✔ Yes ___No If yes, enter date:_______________________________________________________

Signature of Moving Attorney:

Sarah S. Normand
_________________________________ February 20, 2019 Service by: ___CM/ECF
Date:__________________ ✔ ___Other [Attach proof of service]

Form T
F T-1080
1080 ((rev.12-13)
12 13)
Case 16-1176, Document 137-2, 02/20/2019, 2501320, Page1 of 4

UNITED STATES COURT OF APPEALS


FOR THE SECOND CIRCUIT
-------------------------------------------------- x
TANVIR v. TANZIN Docket No. 16-1176
-------------------------------------------------- x

DECLARATION OF SARAH S. NORMAND

SARAH S. NORMAND, pursuant to 28 U.S.C. § 1746, declares as follows:

1. I am an Assistant United States Attorney in the office of Geoffrey S.

Berman, United States Attorney for the Southern District of New York, attorney

for defendants-appellees (collectively, the “individual defendants”) in the above-

named appeal. Along with Assistant U.S. Attorneys Ellen Blain and Benjamin

Torrance, I have been assigned to litigate this matter, and I am fully familiar with

the facts pertaining to it.

2. The individual defendants respectfully move this Court, pursuant to

Fed. R. App. P. 41(d)(1), to stay the mandate for the purpose of allowing the

Solicitor General of the United States, or potentially private counsel, to decide

whether to file a petition for a writ of certiorari in the Supreme Court.

3. In this appeal, plaintiffs-appellants challenged the district court’s

decision that the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.

§ 2000bb et seq., does not permit suits for money damages against individual

federal employees in their personal capacities.

4. A panel of this Court (Katzmann, Pooler and Lynch, C. JJ.) reversed


Case 16-1176, Document 137-2, 02/20/2019, 2501320, Page2 of 4

the district court’s judgment, holding that RFRA does permit money-damages suits

against federal employees in their personal capacities.

5. The individual defendants petitioned for rehearing en banc. That

petition was denied on February 14, 2019. Two dissents were filed from the

denial of rehearing. See ECF No. 135 (Jacobs, C.J., joined by Cabranes and

Sullivan, C.JJ.), ECF No. 136 (Cabranes, C.J., joined by Jacobs and Sullivan,

C.JJ.).

6. The individual defendants respectfully submit that the Court should

stay the mandate to allow the Solicitor General, or potentially private counsel, to

decide whether to file a petition for a writ of certiorari in the Supreme Court. A

petition for certiorari “would present a substantial question” and “there is good

cause for a stay.” Fed. R. App. P. 41(d)(1).

7. Judge Jacobs’ dissent from the denial of rehearing en banc

demonstrates that a petition for certiorari would present a substantial question as to

whether RFRA’s authorization of a cause of action to “obtain appropriate relief

against a government,” 42 U.S.C. § 2000bb-1(c), creates a money-damages remedy

against individual federal officers in their personal capacities—particularly given

that identical language in the Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. § 2000cc-2(a), has been held not to create such a remedy,

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Washington v. Gonyea, 731 F.3d 143, 146 (2d Cir. 2013). See ECF No. 135 at 2-

3. Judge Jacobs’ dissent also underscores the importance of this issue. See id. at

9 (“A private right of action for money damages against individual officers of ‘a

government’ entails ‘substantial societal costs, including the risk that the fear of

personal monetary liability and harassing litigation will unduly inhibit officials in

the discharge of their duties.’ We must consider ‘the burdens on Government

employees who are sued personally,’ and the ‘costs and consequences to the

Government itself when the tort and monetary liability mechanisms of the legal

system are used to bring about the proper formulation and implementation of

public policies.’” (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987), and

Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017))).

8. There is good cause to stay the mandate to allow the Solicitor

General, or potentially private counsel, to decide whether to file a petition for

certiorari. The individual defendants are unable to represent that they will file

such a petition because they are represented by the Department of Justice, and the

Solicitor General would need to authorize the Department’s filing of any petition

for certiorari on their behalf. However, in the event the Solicitor General were to

decline to authorize such a filing, the individual defendants could retain private

counsel to file a petition for certiorari. The individual defendants should not be

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required to participate in further district court litigation while the Solicitor General,

or potentially private counsel, considers whether to file a petition for certiorari, or

during the pendency of any petition that may be filed.

9. Assistant U.S. Attorney Ellen Blain notified counsel for plaintiffs-

appellants Ramzi Kassem this afternoon by electronic mail that the individual

defendants intended to file a motion to stay the mandate, and she asked whether

counsel consented to the motion. As of the filing of this motion, we have not yet

received a response.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: New York, New York


February 20, 2019
/s/ Sarah S. Normand
SARAH S. NORMAND
Assistant United States Attorney