Schwebel v. Richardson et al

Filing 52

ORDER granting 51 Letter Motion to Stay. Fine. All proceedings stayed until the Second Circuit speaks. (Signed by Judge Colleen McMahon on 11/6/2020) (mml)

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US ATTORNEY OFFICE
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N[Jv-05-2020

P.01

Case 1:17-cv-08541-CM Document 51 Filed 11/05/20 Page 1 of 2
U.S. Department of Justice

United States Auomey
Southern District of New York

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New York. New Yurk 10007

By ECF and facsimHe
The Honorable Colleen McMahon
Chief United Stat.es District Judge

Re:

November 5, 2020

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TI,is Office represents the government in the above-referenced action . On October 29,
2020, the plaintiff filed a motion for attorney's fees and costs pursuant to the .Equal Access to
Justice Act ("EAJA"). See .FCF No. 50. The government's deadline to file an opposition to that
motion is cur.r.ently November I2, 2020. I write respectfully to request that the Court stay
briefing on the EA.IA motion pending the Second Circuit's resolution of the separate foe
application tiled in that court, for the reasons ex.plained bcl()w.
Dcar Chief Judge McMahon:

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On October 29, 2020, the plaintiff filed EAJA fee motions in both this Court and in the
Second Circuit. TI,e motion papers are identical in all material respectc;. Tn ther:n, the plaintiff
has asserted his belief Lhal the Second Circuit should resolve several thrcshol<l kgal issues in U1c
fast instance, which would "expedite proceedings, conserve judicial resources and make the
most sense in light of the purely legal question presented[.]" The government agrees antl
believes that it would be prudcnl for this Court to bold hrieting on the EAJA motion in abeyance
pending the Second Circuit's resolution of EAJA motion before that court. Plaintiff's counsel
has no objectio11 to th.is r.eque~tJf the Court declines to hold briefing on the moLion in abeyance, the government
respectfully requests that the Court grant the government a one-week extension of time, from
November 12 to Novcmbcr 19, to file its opposition brief. This request is based on the press of
business. Aside from my supervisory duties of reviewing other attorneys ' work in the
Immigration Unit, I have a deadline on Monday to file the government's opposition to the .
plaintiff's EAJA motion in the Second Circuit, a Rule 30(6)(6) deposition in another case that is
expected to go forward at the e:n<l of next week, for which a great deal of my time will be spent
preparing, and I also have an expedited deadline next 1:riday to file the government's opposition
to a motion in a different case concerning a detained individual (and next week is a four-day
week in light of the federal holiday on Wednesday). Thus, if the Court does not grant the
government' s unopposed request to hold the briefing on the plaintiff's EAJA motion .in abeyance

NOV-05-2020

17:50

US ATTORNEY OFFICE
S

P.02

Case 1:17-cv-08541-CM Document 51 Filed . 1/05/20 Page 2 of 2
1
The Honorable Colleen McMahon
November 5, 2020
I,agc 2
pending the Second Circuit's resolullon of the EAJA motion hefore that court, the government
respectfully requcsls that the Court grant a one-week extension of time to file it~ opposition.
While plaintiff's counsel does not object to holding briefing in abt:y~mce as noted ahove, counsel
does noL consent to this alternative request for an extension oftime. However, given the press of
business noted above, if the Court does not hold briefing in abeyance, the government would
need additional time to prepare its opposition lo the plaintiff's motion , and the government
reasonably asks only for one additional week.
Accordingly, the government respectfully requesLs that the Court stay briefing on the
plaintiffs EAJA moti.on pending the Second Circuit's resolution of the separate fee application
filed in Lhat court. And if the Court declines to hold the briefing in abeyance, the government
requfsts, in the altcrnalivc, that the Court grant the government a one-week extension oftime to
fjle its opposition , until November 19. This is the first request for an extension of time to
respond to the plaintifr s .EAJA motion. And as noted, the plaintiff does not ohject to holding the
briefing in abeyance pending a ruling by Lhc Second Circuit, hut the plaintiff would oppose Lhc
government's alternative request for an extension of the Court declines to hold briefing in
abeyance.
I thank the Court for its consideration of this request.
Respectfully,

AUDREY STRAUSS
Acting United States Attorney for the
Southern District of New York

Hy:

Isl Brandon M. Waterman
BRANDON M. WATERMAN
Assistant Onitc<l States Attorney ·
S6 Chambers Street, Third Fluor
New York, New York 10007
Tel.
[phone]

cc:

Jeffrey A. 1:einbloom, 1-:sq. (by ECF)

Counsel/or Plaintiff

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