Reply in Support of Motion to Clarify Effect of Vacatur — Feds for Medical Freedom v. Biden (5th Cir.)

Date: 2023-12-22

Summary

Reply in support of Plaintiffs-Appellees' motion for an order clarifying the effect of the Supreme Court's vacatur of the court's judgment, filed December 22, 2023 as Document 338 in Feds for Medical Freedom v. Biden, No. 22-40043, in the U.S. Court of Appeals for the Fifth Circuit, on appeal from the Southern District of Texas, No. 3:21-cv-356. Counsel of record R. Trent McCotter of Boyden Gray PLLC argues that the court has authority to issue a clarifying order despite mootness, citing U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship and 28 U.S.C. § 2106. The reply contends that an ordinary Munsingwear vacatur reaches only the circuit court's judgment, not its en banc opinion, relying on Camreta v. Greene and Fifth Circuit precedent. It asks the court to grant the motion and closes with certificates of compliance and service.

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“Reply in Support of Motion to Clarify Effect of Vacatur — Feds for Medical Freedom v. Biden (5th Cir.).” Dated 2023-12-22. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/22-40043-recap-gov-uscourts-ca5-206309-338-0-dfe1c80397/, SHA-256 e0e56ce0ab391ab7a6b4bcc236f4900ddb1dc6766ad8c400c50fe788a3e43f6b.

Full text

Case: 22-40043 Document: 338 Page: 1 Date Filed: 12/22/2023

No. 22-40043
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________________
FEDS FOR MEDICAL FREEDOM; LOCAL 918, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES; HIGHLAND
ENGINEERING, INCORPORATED; RAYMOND A. BEEBE, JR.;
JOHN ARMBRUST; et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., in his official capacity as President of the
United States; THE UNITED STATES OF AMERICA; PETE
BUTTIGIEG, in his official capacity as Secretary of Transportation;
DEPARTMENT OF TRANSPORTATION; JANET YELLEN, in her
official as Secretary of Treasury; et al.,
Defendants-Appellants.
________________________________________
On Appeal from the U.S. District Court for the Southern District of
Texas, No. 3:21-cv-356, Hon. Jeffrey V. Brown presiding
________________________________________

REPLY IN SUPPORT OF PLAINTIFFS-APPELLEES’ MOTION
FOR ORDER CLARIFYING EFFECT OF SUPREME COURT’S
VACATUR OF THIS COURT’S JUDGMENT
________________________________________
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY PLLC
801 17th Street NW., Suite 350
Washington, DC 20006
202-706-5488
tmccotter@boydengray.com
Counsel for Plaintiffs-Appellees

Case: 22-40043 Document: 338 Page: 2 Date Filed: 12/22/2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................... ii
ARGUMENT ............................................................................................. 1
I. This Court Has Authority to Issue a Clarifying Order ............... 1
II. The Ordinary Munsingwear Vacatur Applies Only to the
Circuit Court’s Judgment, Not Its Opinion ................................ 2
A. Munsingwear Itself Makes Clear That Only the Judgment
Is Affected by Vacatur .......................................................... 3
B. The Supreme Court’s Opinion in Camreta Confirms a
Munsingwear Order Does Not Strip the Circuit Court
Opinion of Its Precedential Value ........................................ 4
C. Numerous Other Supreme Court Opinions Support
Plaintiffs-Appellees’ Position ................................................ 8
D. This Court’s Opinions Also Support Plaintiffs-Appellees’
Position ................................................................................. 9
III. A Clarification Order Would Be Immensely Beneficial to
Judicial Administration............................................................. 13
CONCLUSION ........................................................................................ 14

Case: 22-40043 Document: 338 Page: 3 Date Filed: 12/22/2023

TABLE OF AUTHORITIES

Page(s)

Cases

Acheson Hotels, LLC v. Laufer,
2023 WL 8378965 (U.S. Dec. 5, 2023) .................................................. 8

Bennett v. West Texas State University,
799 F.2d 155 (5th Cir. 1986) ..................................................... 9, 10, 11

Boyd v. Puckett, 905 F.2d 895 (5th Cir. 1990) ........................................ 11

Camreta v. Greene, 563 U.S. 692 (2011) ............................... 2, 4, 5, 6, 8, 9

FTC v. Food Town Stores, Inc., 547 F.2d 247 (4th Cir. 1977) .................. 7

Gahagan v. USCIS, 911 F.3d 298 (5th Cir. 2018) .................................. 10

Hand v. Desantis, 946 F.3d 1272 (11th Cir. 2020) ................................... 6

Innovation L. Lab v. Mayorkas, 5 F.4th 1099 (9th Cir. 2021) ................ 12

Jackson Womens’ Health Org. v. Currier,
940 F. Supp. 2d 416 (S.D. Miss. 2013) ............................................... 13

Jones v. Michaels Stores, Inc., 991 F.3d 614 (5th Cir. 2021).................. 10

Los Angeles County v. Davis, 440 U.S. 625 (1979) ............................. 6, 11

Mata v. Lynch, 576 U.S. 143 (2015) .......................................................... 9

Moody v. Albemarle Paper Co., 417 U.S. 622 (1974) ................................ 9

O’Connor v. Donaldson, 422 U.S. 563 (1975)...................................... 6, 11

Retail Store Emps. Union, Loc. 1001, Retail Clerks Int’l
Ass’n, AFL-CIO v. NLRB,
1978 WL 4933 (D.C. Cir. Dec. 5, 1978) ................................................. 3

Ridley v. McCall, 496 F.2d 213 (5th Cir. 1974) ............................ 9, 10, 11

Case: 22-40043 Document: 338 Page: 4 Date Filed: 12/22/2023

Spell v. Edwards, 579 F. Supp. 3d 806 (M.D. La. 2022) ........................ 13

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994) ................................................................... 1, 2, 8, 13

U.S. Navy SEALs 1–26 v. Biden, 72 F.4th 666 (5th Cir. 2023) ................ 7

United States v. Kirk, 528 F.2d 1057 (5th Cir. 1976) ............................. 11

United States v. Lee, 358 F.3d 315 (5th Cir. 2004) ................................... 2

United States v. Lewis, 475 F.2d 571 (5th Cir. 1972) ............................. 11

United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) ................................ 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13

Statutes

28 U.S.C. § 2106 .................................................................................. 1, 13

Other Authorities

Bryan Garner et al., The Law of Judicial Precedent (2016) ..................... 3

Wright & Miller, 13C Fed. Prac. & Proc. Juris. (3d ed. Apr.
2023 update) ............................................................................... 1, 3, 13

iii

Case: 22-40043 Document: 338 Page: 5 Date Filed: 12/22/2023

ARGUMENT

I. This Court Has Authority to Issue a Clarifying Order.

The government suggests this Court lacks the power to grant

Plaintiffs-Appellees’ motion to clarify because the appeal is now moot.

Opp. 1. That is wrong. The Supreme Court has held in the Munsingwear

context that “[i]f a judgment has become moot while awaiting review,” a

court may still issue orders addressing “matters of judicial

administration and practice.” U.S. Bancorp Mortg. Co. v. Bonner Mall

P’ship, 513 U.S. 18, 21–22 (1994); see 28 U.S.C. § 2106 (court may “direct

the entry of such appropriate judgment, decree, or order, or require such

further proceedings to be had as may be just under the circumstances”);

Wright & Miller, 13C Fed. Prac. & Proc. Juris. § 3533.10 (3d ed. Apr.

2023 update) (“The stare decisis effect of decisions rendered before

mootness likewise must be settled.”).

The government also contends that the “mandate rule” prohibits

this Court from doing anything beyond ordering the District Court to

vacate its preliminary injunction order. Opp. 10. Again, that is incorrect.

The mandate rule “compels compliance on remand with the dictates of a

superior court and forecloses relitigation of issues expressly or impliedly

Case: 22-40043 Document: 338 Page: 6 Date Filed: 12/22/2023

decided by the appellate court.” United States v. Lee, 358 F.3d 315, 321

(5th Cir. 2004). In other words, this Court cannot countermand the

Supreme Court’s order.

If anything, the mandate rule supports Plaintiffs-Appellees’ view

that this Court should not vacate its prior en banc opinion or deprive it

of its stare decisis effect, as the Supreme Court did not “dictate[]” that

this Court do so. That absence is especially telling because, as explained

below, the Supreme Court has indicated that the “ordinary”

Munsingwear order does not automatically deprive the circuit court

opinion of precedential effect, and thus the Supreme Court must

expressly vacate the opinion if it wishes to achieve that effect. See

Camreta v. Greene, 563 U.S. 692, 714 & n.11 (2011); Part II.A, infra.

In short, nothing prohibits this Court from explaining the

precedential status of its prior opinion, given the Supreme Court’s silence

on the matter here. See Bancorp, 513 U.S. at 21–22.

II. The Ordinary Munsingwear Vacatur Applies Only to the
Circuit Court’s Judgment, Not Its Opinion.

The government seeks to turn Munsingwear into a freewheeling

writ of erasure for circuit court opinions. That view is contradicted not

Case: 22-40043 Document: 338 Page: 7 Date Filed: 12/22/2023

only by Munsingwear itself but also by the Supreme Court’s and this

Court’s post-Munsingwear precedents.

A. Munsingwear Itself Makes Clear That Only the
Judgment Is Affected by Vacatur.

In Munsingwear, the Court explained that “the rights of all parties

are preserved” simply by “revers[ing] or vacat[ing] the judgment below

and remand[ing] with a direction to dismiss.” United States v.

Munsingwear, Inc., 340 U.S. 36, 39–40 (1950). That procedure will

“clear[] the path for future relitigation of the issues between the parties.”

Id.

Nothing more is required, given the distinction between judgments

(which bind the parties) and opinions (which bind only certain courts and

even then can be overruled)—a distinction the government does not

appear to dispute. See also Motion 9–10; Bryan Garner et al., The Law of

Judicial Precedent 77 (2016) (a court’s “‘opinion forms no part of the

judgment’”); Retail Store Emps. Union, Loc. 1001, Retail Clerks Int’l

Ass’n, AFL-CIO v. NLRB, 1978 WL 4933, at *7–9 (D.C. Cir. Dec. 5, 1978)

(Robinson, J., dissenting); Wright & Miller, 13C Fed. Prac. & Proc. Juris.

§ 3533.10.3 (“Denial of an otherwise available opportunity to seek

appellate review warrants a denial of preclusion, but that is because

Case: 22-40043 Document: 338 Page: 8 Date Filed: 12/22/2023

preclusion forecloses further inquiry. Precedential value, on the other

hand, need not have such stern consequences.”).

Thus, Munsingwear—the only case the Supreme Court cited in its

order here—focuses exclusively on vacating the judgment and says

nothing about removing the precedential effect of the lower court’s

opinion.

B. The Supreme Court’s Opinion in Camreta Confirms a
Munsingwear Order Does Not Strip the Circuit Court
Opinion of Its Precedential Value.

The government faults Plaintiffs-Appellees for relying on older

opinions about the effects of a Munsingwear vacatur, see Opp. 12–13, but

recent opinions, including from the Supreme Court, also support

Plaintiffs-Appellees’ position.

For example, a 2011 Supreme Court opinion confirms that a

Munsingwear order does not inherently vacate the underlying circuit

court opinion. In Camreta v. Greene, 563 U.S. 692 (2011), the appeal was

mooted, and the Supreme Court held that in the “unique” context of the

qualified-immunity determinations at issue there, the Court would

“vacate the part of the Ninth Circuit’s opinion that addressed [the Fourth

Amendment] issue,” id. at 714 & n.11.

Case: 22-40043 Document: 338 Page: 9 Date Filed: 12/22/2023

Most importantly, the Court expressly held that this was a “unique

disposition” under Munsingwear because it went beyond “vacating the

lower court’s judgment” and extended to vacating part of the lower court’s

opinion. Id. at 714 n.11. The Court announced that this disposition

“signals no endorsement of deviations from the usual Munsingwear

order.” Id. The “usual Munsingwear order”—of the type the Supreme

Court issued here—requires only “vacating the lower court’s judgment

and remanding the case with instructions to dismiss the relevant claim,”

while saying nothing about the circuit opinion below. Id.

If Munsingwear automatically rendered the lower court’s opinion

nonprecedential, there would have been no point in Camreta’s discussion

about taking the “unique” step of vacating part of the lower court’s

opinion. “None of that analysis would have made sense had the Court

subscribed to the [government’s] view that the vacatur of a judgment

[necessarily] disturb[s] the precedential force of the supporting opinion.”

Opp. 4. By choosing not to take the Camreta route here (perhaps because

Case: 22-40043 Document: 338 Page: 10 Date Filed: 12/22/2023

the government never asked for it), the Supreme Court didn’t address

this Court’s en banc opinion.1

For the same reasons, Camreta confirms the government overreads

the passing dicta in older cases like O’Connor v. Donaldson, 422 U.S. 563,

577 n.12 (1975), and Los Angeles County v. Davis, 440 U.S. 625, 634 n.6

(1979), as alleged support for depriving a lower-court opinion of its

precedential effect whenever a case is deemed moot on appeal. Camreta

makes clear that is not the case.

The government’s reliance on the dicta in O’Connor and Davis is

misplaced for the independent reason that those cases did not arise in

the posture of a preliminary-stay ruling. Motion 14–15. That distinction

matters because “Munsingwear does not address what a circuit court

must do with its own prior stay order when a case has become moot,”

Hand v. Desantis, 946 F.3d 1272, 1275 n.5 (11th Cir. 2020), as there is

certainly no res judicata effect from the accompanying circuit court

1 The government suggests Plaintiffs-Appellees have “changed their
minds” by arguing that this Court’s opinion is not precedential, Opp. 2,
but the government itself is the party that failed to ask the Supreme
Court to vacate this Court’s opinion even though it could have done so,
and the Supreme Court subsequently didn’t grant that unrequested
relief.

Case: 22-40043 Document: 338 Page: 11 Date Filed: 12/22/2023

opinion on a preliminary injunction, see FTC v. Food Town Stores, Inc.,

547 F.2d 247, 249 (4th Cir. 1977). This Court’s precedent agrees with this

distinction. U.S. Navy SEALs 1–26 v. Biden, 72 F.4th 666, 675 n.9 (5th

Cir. 2023) (“‘[V]acatur of a prior stay-panel opinion once a case becomes

moot on appeal is inappropriate’ under Munsingwear ‘because that stay-

panel opinion cannot spawn binding legal consequences regarding the

merits of the case.’”).

Contrary to the government’s view, the distinction for preliminary-

stay rulings is not an attempt to relitigate whether Munsingwear applies

in the first instance. Opp. 8–9. Rather, it demonstrates that even when

Munsingwear does apply, it does not inherently vacate a circuit court’s

opinion. The government ultimately seems to acknowledge that whether

to vacate a “stay opinion” will turn on “the equities … in a given case.”

Id. at 8. Plaintiffs-Appellees contend the equities in this case do not

warrant this Court depriving its prior en banc opinion of precedential

effect, given that it addressed only a preliminary stay and given that the

Supreme Court was silent on the matter.

Case: 22-40043 Document: 338 Page: 12 Date Filed: 12/22/2023

C. Numerous Other Supreme Court Opinions Support
Plaintiffs-Appellees’ Position.

The government next invokes language in Bancorp about the value

of opinions, Opp. 3–4, but that discussion supports Plaintiffs-Appellees.

The Court noted that “[j]udicial precedents are … valuable to the legal

community as a whole,” Bancorp, 513 U.S. at 26, separating them as a

conceptual matter from the judgments that bind the parties (but not “the

legal community”). The majority opinion in Bancorp never once speaks

about vacating opinions but instead, like Munsingwear, focuses on

vacating judgments, referring to that form of relief a total of twenty

times.

The government also extensively cites the concurring opinion in

Acheson Hotels, LLC v. Laufer, 2023 WL 8378965, at *2 (U.S. Dec. 5,

2023) (Jackson, J., concurring in judgment), and argues the majority

opinion “presumably” agreed with the concurrence’s framing of

Munsingwear, Opp. 4. But the majority opinion expressly “decline[d]” to

follow the concurring opinion’s views. Acheson, 2023 WL 8378965, at *2.

Moreover, the majority opinion’s one passing remark about Munsingwear

was that the Court’s “Munsingwear practice is well settled.” Id. Camreta

had already made clear that the “well-settled practice” to which Acheson

Case: 22-40043 Document: 338 Page: 13 Date Filed: 12/22/2023

alludes is to vacate the judgment, and it is only in the “unique”

Munsingwear scenario that the Court vacates a circuit court’s opinion.

563 U.S. at 714 n.11.

Buttressing Plaintiffs-Appellees’ view is the Supreme Court’s

longstanding recognition that the circuit courts “are largely free to devise

whatever procedures they choose” when it comes to deciding whether to

overrule or adhere to their own prior opinions because it “is essentially a

policy decision of judicial administration.” Moody v. Albemarle Paper Co.,

417 U.S. 622, 626, 627 (1974); cf. Mata v. Lynch, 576 U.S. 143, 150 n.3

(2015) (suggesting the determination of circuit court precedent is made

“according to the Circuit” itself).

Absent express overruling by the Supreme Court, the stare decisis

effect that this Court chooses to give its own opinions is a matter reserved

to this Court, not an issue implicitly decided by a Munsingwear order. If

the Supreme Court wants to deprive a circuit court’s opinion of its

precedential value after mootness, it certainly knows how to do so.

D. This Court’s Opinions Also Support Plaintiffs-
Appellees’ Position.

The government next invokes this Court’s opinions in Ridley v.

McCall, 496 F.2d 213, 214 (5th Cir. 1974), and Bennett v. West Texas

Case: 22-40043 Document: 338 Page: 14 Date Filed: 12/22/2023

State University, 799 F.2d 155, 159 n.3 (5th Cir. 1986), and claims Ridley

provides the “most thorough discussion” of why an opinion loses its

precedential value upon vacatur of the judgment. Opp. 5–6. But Ridley

simply stated that a particular prior opinion “has no precedential value”

after the judgment was vacated. 496 F.2d at 214. There is no further

“discussion” at all. The rationale in West Texas is just as sparse. 799 F.2d

at 159 n.3

Plaintiffs-Appellees addressed those cases in their opening brief,

Motion 15, explaining they are difficult to square with this Court’s prior-

panel rule, which states that a prior opinion of this Court remains

binding unless the Supreme Court “unequivocally overrule[s]” it.

Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018); Jones v. Michaels

Stores, Inc., 991 F.3d 614, 616 (5th Cir. 2021). The Supreme Court’s order

in this case says nothing about the merits, let alone “unequivocally

overrules” this Court’s rationale. The government’s only response is to

insist that a Munsingwear vacatur means “this Court’s precedent should

no longer be binding,” Opp. 8, but that just begs the question (and is also

Case: 22-40043 Document: 338 Page: 15 Date Filed: 12/22/2023

wrong for all the reasons above). Because there has been no unequivocal

overruling, this Court’s en banc opinion in this case remains binding.2

To the extent the passing statements by this Court in Ridley and

West Texas conflict with this Court’s prior-panel rule, it is the prior-panel

rule that must prevail because it pre-dates Ridley and West Texas. See,

e.g., United States v. Lewis, 475 F.2d 571, 574 (5th Cir. 1972) (recognizing

the prior-panel rule years before Ridley and West Texas were issued); see

also Boyd v. Puckett, 905 F.2d 895, 897 (5th Cir. 1990) (“[W]here holdings

in two of our opinions are in conflict, the earlier opinion controls and

constitutes the binding precedent in the circuit.”).

Plaintiffs-Appellees also demonstrated that Ridley and West Texas

are difficult to square with this Court’s adherence to opinions where the

judgment has been vacated on other grounds. Motion 15; see United

States v. Kirk, 528 F.2d 1057, 1063–64 (5th Cir. 1976) (holding a prior

panel opinion that had been vacated on other grounds “is still binding on

this panel”). The government claims that scenario is different because “it

is possible to discern from the Supreme Court’s reasoning the parts of the

2 Also, like O’Connor and Davis, the opinions in Ridley and West Texas

did not address preliminary-stay rulings, and they are distinguishable on
that basis. See Part II.A, supra.

Case: 22-40043 Document: 338 Page: 16 Date Filed: 12/22/2023

court of appeals’ opinion that the Supreme Court saw fit to disturb,” Opp.

7, so the undisturbed portions remain binding. But that reasoning

supports Plaintiffs-Appellees. The Supreme Court saw fit not “to disturb”

any part of this Court’s en banc opinion. Because the judgment was

vacated on grounds unrelated to the merits, the entirety (not just a

portion) of the en banc opinion remains binding even under the

government’s logic.

In response to this Court’s recent Munsingwear practice, Motion 16,

the government agrees that the post-remand orders issued by this Court

“did not expressly address the effect of the Supreme Court’s

Munsingwear vacatur orders on the precedential status of this Court’s

opinions,” Opp. 9. The government argues it was “unnecessary” to do so,

id., but that simply repeats the government’s incorrect arguments

(addressed above at length) about the inherent effects of an ordinary

Munsingwear vacatur. The noteworthy aspect of this Court’s recent post-

Munsingwear orders is that they did not vacate the prior panel opinions,

even though some circuits do so. See, e.g., Innovation L. Lab v. Mayorkas,

5 F.4th 1099, 1100 (9th Cir. 2021). The government has no response to

Case: 22-40043 Document: 338 Page: 17 Date Filed: 12/22/2023

that aspect of this Court’s post-Munsingwear practice, which supports

the view that the prior opinions remain precedential.

III. A Clarification Order Would Be Immensely Beneficial to
Judicial Administration.

The lower courts in this Circuit are also in tension regarding the

precedential value of opinions of this Court where the accompanying

judgment has been vacated. Compare, e.g., Spell v. Edwards, 579 F.

Supp. 3d 806, 824 (M.D. La. 2022) (referring to an opinion as “Fifth

Circuit precedent” even after it had been subject to a Munsingwear order

by the Supreme Court), with Jackson Womens’ Health Org. v. Currier,

940 F. Supp. 2d 416, 422 (S.D. Miss. 2013) (concluding a Fifth Circuit

opinion “lacks precedential value” where the judgment was “vacated on

other grounds”).

As explained above, the Supreme Court has made clear that this

Court can issue an order clarifying the effect of its opinion even after the

appeal has become moot, without that clarification being labeled an

advisory opinion. Bancorp, 513 U.S. at 21–22; see 28 U.S.C. § 2106. This

Court should do so here because the “stare decisis effect of decisions

rendered before mootness … must be settled.” Wright & Miller, 13C Fed.

Prac. & Proc. Juris. § 3533.10 (emphasis added).

Case: 22-40043 Document: 338 Page: 18 Date Filed: 12/22/2023

CONCLUSION

The Court should grant Plaintiffs-Appellees’ motion. They stand

ready to present oral argument on this matter, in the event the Court

would find it useful. The government notes that it similarly “would of

course be pleased to present oral argument if it would assist the Court.”

Opp. 14.

December 22, 2023 Respectfully submitted,

/s/ R. Trent McCotter
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY PLLC
801 17th Street NW, Suite 350
Washington, DC 20006
202-706-5488
tmccotter@boydengray.com

Counsel for Plaintiffs-Appellees

Case: 22-40043 Document: 338 Page: 19 Date Filed: 12/22/2023

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume
limitations of Fifth Circuit Rule 27.4 and Federal Rule of Appellate
Procedure 27(d)(2) because it contains 2570 words, excluding the portions
exempted by Rule 27(a)(2)(B). This brief complies with the typeface and
type style requirements of Federal Rule of Appellate Procedure Rule
32(a)(5)–(6) because it has been prepared in a proportionally spaced
typeface using Microsoft Word in Century Schoolbook and 14-point font.

/s/ R. Trent McCotter

CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who have consented to
electronic service are being served today with a copy of this document via
the Court’s CM/ECF. All parties in this case are represented by counsel
consenting to electronic service.