USA v. Andrew Auernheimer

Filing 52

ECF FILER: Response filed by Appellee USA to Motion to Strike. Certificate of Service dated 09/24/2013. (GJM)

No. 13-1816
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES
v.
ANDREW AUERNHEIMER,
Appellant

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Reply To Appellant’s Opposition
To United States’ Motion For A
Word Limit Extension And Stay of
Briefing Schedule

Marcia M. Waldron, Clerk
United States Court of Appeals
for the Third Circuit
U.S. Courthouse
601 Market Street, Room 21400
Philadelphia, PA 19106-1790
Dear Ms. Waldron and Counsel:
The United States submits this letter in opposition to Appellant’s Motion To
Reject Appellee’s Brief.
1. On August 5, 2013, the Government filed a motion requesting that it be
permitted to file a brief not exceeding 26,500 words, and requesting an extension
of time until September 20, 2013, within which to file its brief. That motion was
not ruled upon prior to the Government’s submission of its brief on September 20,
2013. The brief the Government submitted for filing contains 26,495 words.
2. The Government’s original request for 26,500 was based on a formula,
which gave the Government 14,000 words, plus an additional 12,500, which was

one-half of the more than 25,000 words used by the four amici who filed briefs in
support of Auernheimer.
3. The Government disagrees with one factual assertion in Appellee’s
motion to strike the Goverment’s brief. Appellee has stated that “despite urging
the Court to grant it additional space to address the arguments of amici, it actually
devotes only 11 of the 118 substantive pages in the brief to the arguments raised by
amici.” Motion at ¶ 9. That is not accurate. Appellee is referring to the final 12
pages of the Government’s brief, which address only those issues argued by amici
that the Government suggests are not properly before this Court. The Government
chose to address those issues briefly in case this Court disagrees. But the amici
also addressed, at substantial length, issues that are properly before this Court, and
which the Government addressed throughout the remaining 106 pages of its brief.
4. For example, the NACDL spent a significant portion of its amicus brief
discussing venue, an issue that is properly before this Court. The Government, in
its response, has an extensive discussion of venue which addresses the arguments
advanced by both Auernheimer and the NACDL. Indeed, the Government’s
argument section goes further and discusses what it believes to be a particularly
significant precedent from this Circuit which was not discussed by either
Auernheimer or the NACDL. Doubtless that contention and venue in general will
be further explored in Auernheimer’s reply brief.
–2–

5. Most of the amicus briefs discuss various aspects of the CFAA that are
directly relevant to the CFAA issues raised by Auerheimer, and which are properl
before this Court. References to amici’s various arguments are made throughout
the remaining 106 pages of the Government’s brief. It is simply incorrect to assert
that amici’s arguments are addressed in only the last 11 or 12 pages of the
Government’s brief.
6. In light of the extensive briefing filed by amici on behalf of Auernheimer,
it is entirely appropriate for the Government’s brief to exceed the 14,000 words
submitted by Auernheimer alone. The Government did not request a word for
word addition based on the amicus briefs filed on Auerheimer’s behalf, but instead
requested only one-half of the words filed by amici in support of Auernheimer’s
arguments. In the end, the Government nevertheless was forced to cut substantial
portions of its draft brief in order to fit within the 26,500 words requested a month
ago.
7. It is the Government’s considered judgment that the brief as submitted
will be helpful to the Court in addressing the issues raised by Auernheimer, as
further developed by the amici. The Government requests that this Court accept
the brief as submitted. The Government has no objection to Auerheimer’s request
that he be allowed to file a reply brief containing 13,300 words.

–3–

Respectfully submitted,
PAUL J. FISHMAN
United States Attorney

By:

s/ Glenn J. Moramarco
GLENN J. MORAMARCO
Assistant United States Attorney

Dated: September 24, 2013

–4–

CERTIFICATION OF SERVICE
I hereby certify that on September 24, 2013, I caused the attached motion to
be filed with the Clerk of the United States Court of Appeals for the Third Circuit
and served on the relevant parties via the Court’s ECF filing system.

/s/ Glenn J. Moramarco
GLENN J. MORAMARCO
Dated: September 24, 2013