No. 130-1 Emergency Motion To Stay Pending Appeal
No. 130-1 Emergency Motion To Stay Pending Appeal
No. 130-1 Emergency Motion To Stay Pending Appeal
No. 20-5969
v.
TABLE OF CONTENTS
INTRODUCTION .....................................................................................................2
BACKGROUND .......................................................................................................3
ARGUMENT ...........................................................................................................10
CONCLUSION ........................................................................................................23
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TABLE OF AUTHORITIES
Page(s)
Cases
Colautti v. Franklin,
439 U.S. 379 (1979) ................................................................................ 16, 17, 18
Daunt v. Benson,
956 F.3d 396 (6th Cir. 2020) .................................................................................9
Fowler v. Benson,
924 F.3d 247 (6th Cir. 2019) ...................................................................... 8, 9, 10
Gonzales v. Carhart,
550 U.S. 124 (2007) ...................................................................................... 15, 19
Karlin v. Foust,
188 F.3d 446 (7th Cir. 1999) ...............................................................................17
Kolender v. Lawson,
461 U.S. 352 (1983) .............................................................................................18
Maryland v. King,
567 U.S. 1301 (2012) ...........................................................................................21
Munaf v. Geren,
553 U.S. 674 (2008) ...............................................................................................8
Nken v. Holder,
556 U.S. 418 (2009) ...............................................................................................9
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Preterm-Cleveland v. McCloud,
994 F.3d 513 (6th Cir. 2021) (en banc) ........................................................ 12, 19
Roe v. Wade,
410 U.S. 113 (1973) ........................................................................................ 2, 11
State v. Tester,
879 S.W.2d 823 (Tenn. 1994) ..............................................................................19
Other
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The State respectfully requests that this Court fully stay the district court’s
preliminary injunction pending appeal so that the State can enforce both the Timing
Provisions of Section 216 and the Antidiscrimination Provision of Section 217. The
en banc Court has already stayed the preliminary injunction regarding Section 217.
And Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, No. 19-1392
(June 24, 2022), now makes clear that Section 216 constitutionally prohibits the
Because any delay costs the lives of Tennessee children, the State asks the
Court to grant this emergency motion as soon as possible. To that end, the State
proposes that Plaintiffs, who publicly stated a month ago that they anticipated this
motion, file their response by 2:30 PM Eastern Time today. If the Court does not
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INTRODUCTION
Today the U.S. Supreme Court held that the U.S. Constitution “does not
prohibit the citizens of each State from regulating or prohibiting abortion.” Dobbs,
slip op. at 79. The Supreme Court expressly overruled Roe v. Wade, 410 U.S. 113
833 (1992), returning the authority to regulate or prohibit abortion “to the people
and their elected representatives.” Dobbs, slip op. at 69. Rejecting Casey’s “undue
burden” test, which “has proved to be unworkable,” id. at 62, the Supreme Court
unborn children who have reached 15 weeks probable gestational age, id. at 78
In 2020, for many of the same reasons that justified Mississippi’s law, the
216(c)(1). When the unborn child’s gestational age is 6 weeks or older, the physician
record that, in the physician’s good faith medical judgment, the unborn child does
not have a fetal heartbeat at the time of the abortion.” Id. § 39-15-216(c)(2).
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Additional restrictions apply at 8, 10, 12, 15, 18, 20, 21, 22, 23, and 24 or more
The district court held that Section 216 violated Casey by “prohibit[ing]
abortions based solely on gestational age rather than viability” and thus preliminarily
PageID# 756. After this Court granted rehearing en banc, the full Court granted the
State’s motion for a partial stay of the preliminary injunction pending appeal to the
Order, Dkt. No. 122-2. Because the Supreme Court has now expressly overruled
Roe and Casey, the State is also likely to prevail on appeal regarding Section 216
(the Timing Provisions). Accordingly, this Court should fully stay the preliminary
injunction pending appeal so that Tennessee can enforce both Section 216 and
Section 217. As the Supreme Court recognized in Dobbs, the State has a valid
interest in protecting the lives of unborn Tennesseans. Those lives are at risk each
day the preliminary injunction remains in place, so this Court should grant the State’s
BACKGROUND
I. Statutory Background
legislative findings that additional abortion restrictions were necessary to further the
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State’s interests. Among other things, the legislature determined that the “presence
of life at every stage of human existence,” Tenn. Code Ann. § 39-15-214(a)(7); that
a “growing body of medical evidence and literature supports the conclusion that an
unborn child may feel pain from around eleven (11) to twelve (12) weeks gestational
age, or even as early as five and a half (5 ½) weeks,” id. § 39-15-214(a)(24); that
advances in science and neonatal care have “lowered the gestational limits of
“[a]bortions performed later in pregnancy pose an even higher medical risk to the
health and life of women, with the relative risk increasing exponentially at later
gestational ages after eight (8) weeks gestational age,” id. § 39-15-214(a)(44); that
abortion has been used for discriminatory and eugenic purposes in Tennessee and
undermines the integrity and public respect of the medical profession, id. § 39-15-
214(a)(64)-(69). Section 216 was intended to address those harms and to further
unborn child’s development. Id. § 39-15-216(c)(1). When the gestational age of the
unborn child is six weeks or older, the physician must “affirmatively determine[]
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and record[] in the pregnant woman’s medical record that, in the physician’s good
faith medical judgment, the unborn child does not have a fetal heartbeat at the time
“shall utilize generally accepted standards of medical practice using current medical
technology and methodology applicable to the gestational age of the unborn child
heartbeat.” Id. Additional restrictions apply at 8, 10, 12, 15, 18, 20, 21, 22, 23, and
judgment, based upon the facts known to the physician at the time, so complicates
serious risk of the substantial and irreversible impairment of a major bodily function
the same affirmative defense used in the Antidiscrimination Provision that this Court
has allowed to go into effect while the appeal is pending. See id. § 39-15-217(e)(1).
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Plaintiffs alleged that both Section 216 and Section 217: (1) violate the abortion
R. 1, PageID# 30-31; and (2) violate the void-for-vagueness doctrine because their
Once Sections 216 and 217 became law, the district court issued a temporary
injunction, PI Opinion, R. 41, PageID# 727-68; PI Order, R. 42, PageID# 769. The
district court held that Plaintiffs have standing both “to assert the constitutional
rights of their patients and to challenge a law that subjects [abortion providers] to
As relevant here, the district court then held that Plaintiffs were likely to
succeed on their substantive due process challenge to Section 216 because “Casey
1
Plaintiffs also alleged that the Antidiscrimination Provision violates the void-for-
vagueness doctrine because it “fail[s] to give Plaintiffs fair notice of how to comply
with [its] mandates.” Compl. ¶ 125, R. 1, PageID# 31.
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has established” that “a state may not prohibit abortions before viability.” Id. at
PageID#756. Because the court concluded that the Supreme Court had forbidden
legislatures from “defin[ing] viability by gestational age alone,” it did not consider
the State’s interests or determine to what extent the Timing Provisions burden a
Professional Corp. v. Voinovich, 130 F.3d 187, 205 (6th Cir. 1997), because “a
physician acting in ‘good faith’ may still be held criminally liable if, after the fact,
judgment.” PI Opinion, R. 41, PageID# 763. But the court did not consider whether
any vagueness in the affirmative defense could be cured by severing the term
With those rulings in hand, the district court determined that the “threatened
harm to the State or the public because they lack “a strong interest in enforcing an
2
The district court also concluded that Section 217 is unconstitutionally vague
because a physician “must determine what it means to ‘know’ that his or her patient
is seeking an abortion ‘because of’” the sex, race, or Down syndrome diagnosis of
the unborn child.” PI Opinion, R. 41, PageID# 759.
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The State appealed and simultaneously asked the district court for a stay
pending appeal, which the court denied. See Notice of Appeal, R. 46, PageID# 793-
94; Mot. for Stay Pending Appeal, R. 47, PageID# 797-802; Mem. Mot. for Stay
Pending Appeal, R. 48, PageID# 803-23; Order Denying Stay, R. 58, PageID# 893.
The State then sought and received a partial stay from this Court allowing the State
to enforce the Antidiscrimination Provision in Section 217. Mot. For Partial Stay,
Dkt. 14; Stay Op., Dkt. 33-2. (The State asked the district court but not this Court
to stay the district court’s ruling on the Timing Provisions in Section 216.)
The Court’s partial stay remained in effect until a divided panel of this Court
affirmed the preliminary injunction on the merits. Panel Op., Dkt. 97-2; Judgment,
97-3. The Court granted the State’s petition for rehearing en banc and then granted
the State’s renewed motion for partial stay of the preliminary injunction regarding
The U.S. Supreme Court issued its opinion in Dobbs this morning. In that
STANDARD OF REVIEW
Benson, 924 F.3d 247, 256 (6th Cir. 2019) (quoting Munaf v. Geren, 553 U.S. 674,
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689 (2008)), that “may only be awarded upon a clear showing that the plaintiff is
entitled to such relief,” id. (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22 (2008)). Courts consider four factors in determining whether that heavy burden
has been satisfied: “(1) whether the plaintiffs are likely to succeed on the merits,
(2) whether the plaintiffs will suffer irreparable injury in the absence of an
injunction, (3) whether granting the injunction will cause substantial harm to others,
and (4) whether the issuance of the injunction is in the public interest.” Mich. State
fatal to his request for preliminary relief. See id.; Daunt v. Benson, 956 F.3d 396,
421 (6th Cir. 2020). And when, as here, the government is the defendant, “the
these factors can be satisfied when the challenged provisions are constitutional.”
Daunt, 956 F.3d at 422 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).
pending appeal: (1) “the likelihood that the party seeking the stay will prevail on the
merits of appeal,” (2) “the likelihood that the moving party will be irreparably
harmed absent a stay,” (3) “the prospect that others will be harmed if the court grants
the stay,” and (4) “the public interest in granting the stay.” Serv. Emps. Int’l Union
Loc. 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (internal quotations omitted).
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A party seeking reversal of a preliminary injunction must show that the district
Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (quotations
omitted). A district court “necessarily abuses its discretion when it commits an error
of law.” S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d
844, 854 (6th Cir. 2017). And the court’s determination as to likelihood of success
ARGUMENT
This Court should fully stay the preliminary injunction so that the State can
enforce both Section 216 and Section 217 pending the en banc Court’s review on the
challenges to Section 216 because the Supreme Court has expressly overruled Roe
and Casey and returned the power to regulate or prohibit abortion back to the States.
The equities also weigh strongly in favor of a stay because the State and the public
are unquestionably harmed when a valid law is enjoined. That is particularly true
here because the State has a profound interest in protecting the lives of unborn
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The district court concluded that Plaintiffs are likely to prevail on their claims
that Section 216 (1) violated Casey by prohibiting pre-viability abortions, and
Those conclusions are untenable because (1) the Supreme Court today overruled
Casey, and (2) the en banc Court is likely to rule that the medical-emergency
affirmative defense is not unconstitutionally vague for the same reasons that the full
Court has allowed Section 217, which has the same affirmative defense, to come
into effect pending resolution of the appeal. The State is likely to prevail on appeal.3
For the past forty-nine years, the U.S. Supreme Court barred states from
enforcing abortion laws that are squarely within their power to enact. Cf. Roe, 410
U.S. at 222 (White, J., dissenting) (labeling this “an exercise of raw judicial power”).
That changed today. The district court had held that Plaintiffs were likely to succeed
on their substantive due process challenge to Section 216 because “Casey has
established” that “a state may not prohibit abortions before viability” such as by
3
The State is also likely to prevail if the Plaintiff abortionists lacked third-party
standing to bring their lawsuit on behalf of patients. Dobbs cast serious doubt on
June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020): the Dobbs majority
noted that “Roe and Casey have led to the distortion of many important but unrelated
legal doctrines,” and listed June Medical as one of the cases that “ignored the Court’s
third-party standing doctrine.” Dobbs, slip op. at 63 & n.61.
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prohibiting abortions after with Timing Provisions based on “gestational age alone,”
undue-burden standard, the Supreme Court has instructed lower courts to apply
abortions after the child reaches 15 weeks gestational age. Dobbs, slip op. at 77-78.
Reg’l Women’s Ctr., P.C. v. Slatery, 7 F.4th 478, 483 (6th Cir. 2021) (en banc)
(quotation marks omitted). “All that matters” under this standard “is whether the
state conceivably had a rational basis to enact the legislation.” Id. The State’s
rationales need not be supported with evidence and are not “subject to courtroom
fact-finding.” Id. at 484 (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315
judgments.’” Id. at 483 (quoting Preterm-Cleveland v. McCloud, 994 F.3d 513, 525
(6th Cir. 2021) (en banc)). “And they must defer to a state’s judgment that there is
interests in protecting unborn children, protecting the physical and mental health of
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of unborn children under Tennessee law, protecting the integrity and ethics of the
medical profession, and preventing discrimination. See Tenn. Code Ann. § 39-15-
214(a)(70)-(77).
Dobbs expressly held that many of the same reasons the Tennessee legislature
provided for enacting Section 216 justified Mississippi’s 15-week gestational age
respect for and preservation of prenatal life at all stages of development; the
profession; the mitigation of fetal pain; and the prevention of discrimination on the
Plaintiffs no doubt might “argue that the factual record does not support
Tennessee’s rationale[s]. But that turns the rational basis standard on its head.”
Bristol Reg’l Med. Ctr., 7 F.4th at 484. The State “has no obligation to produce
evidence to sustain the rationality of its action.” Id. (quoting TriHealth, Inc. v. Bd.
of Comm’rs, Hamilton Cnty., 430 F.3d 783, 790 (6th Cir. 2005)). Under this highly
“is not subject to courtroom fact-finding.” Id. at 483 (quoting Beach Commc’ns,
Inc., 508 U.S. at 315). Plaintiffs cannot carry their burden “to negative every
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conceivable basis which might support” Section 216, so their substantive due
process challenge cannot succeed under rational-basis review. Id. at 484 (quoting
than the ordinary version that applies to “other health and welfare laws,” Dobbs, slip
op. at 77, the State has already provided ample evidence in this case that the Timing
Provisions of Section 216 advance the State’s interests. Each of the restrictions,
from fetal heartbeat to 24 weeks, furthers the State’s interests in protecting unborn
life, the integrity of the medical profession, maternal health, and preventing
discrimination.
obligation to heal rather than harm. See Curlin Decl. ¶ 11, R. 27-2, PageID#383.
And abortions “pose a risk” to the mother’s health at any gestational age, with the
“relative risk increasing exponentially after” 8 weeks. Tenn. Code Ann. § 39-15-
the State further its interest in preventing discrimination, abortion has long served
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eugenic ends even when an aborted child’s mother does not have that intent. See id.
merely hypothetical.” (quoting Box v. Planned Parenthood of Ind. & Ky., Inc., 139
period. For fetal pain, an unborn child “develops neural circuitry capable of
abortion commonly used after 15 weeks involves grabbing the child with forceps in
the uterus, pulling it back through the cervix and vagina, tearing the child apart, and
“evacuating” the dead child’s body “piece by piece . . . until it has been completely
Some may disagree with Tennessee’s policy judgment, but the Timing
The district court also enjoined Sections 216 and 217 based on its conclusion
vague under Voinovich. But Voinovich was wrongly decided and should be
preliminarily enjoin the Timing Provisions of Section 216, just as this Court has
allowed the Antidiscrimination Provision of Section 217 to come into effect with the
determine “in good faith and in the exercise of reasonable medical judgment whether
an emergency exists.” 130 F.3d at 204 (quotations omitted). This Court concluded
vague, because physicians cannot know under which their conduct will ultimately
Franklin, 439 U.S. 379 (1979). Id. at 204. Colautti held that a law requiring a
was “unclear whether the statute import[ed] a purely subjective standard” or instead
a “mixed subjective and objective standard.” 439 U.S. at 391. That the law lacked
that Colautti “did not consider whether a mixed standard would be unconstitutional,”
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but nevertheless “f[ound] Colautti strongly indicative of the [Supreme] Court’s view
that in this area of the law, scienter requirements are particularly important.” 130
F.3d at 204-05.
Voinovich has been rightly and roundly criticized. Judge Boggs called the
panel’s reliance on Colautti “misplaced” since the Supreme Court had “specifically
Id. at 216 (Boggs, J., dissenting). And he explained that there is “nothing vague, or
faith and reasonableness.” Id. Justice Thomas, joined by Chief Justice Rehnquist
found the challenged Ohio law, which “plainly impose[d] both a subjective and
in Colautti. Voinovich v. Women’s Med. Pro. Corp., 523 U.S. 1036, 1348-49 (1998)
(Thomas, J., dissenting from the denial of certiorari). The Seventh Circuit has
requirement. Karlin v. Foust, 188 F.3d 446, 462-63 (7th Cir. 1999); see also Hope
Clinic v. Ryan, 195 F.3d 857, 866 (7th Cir. 1999) (en banc) (Easterbrook, J.).
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Before the Supreme Court’s decision in Dobbs, the en banc Court had ample
emergency exception. But even if the Court were reluctant to overrule Voinovich
due to Colautti, the Dobbs majority now expressly disagrees with the portions of
Colautti that Voinovich relied upon. Dobbs, slip op. at 54 (negatively citing Colautti,
still provided no basis for the district court to facially enjoin the Timing Provisions
at issue in Voinovich and the one here. The one at issue in Voinovich was an
exception to the definition of the crime. See Ohio Rev. Code Ann. § 2919.17(A)(1)
statute defin[es] the criminal offense with sufficient definiteness.” United States v.
Lopez, 929 F.3d 783, 784 (6th Cir. 2019) (quoting Kolender v. Lawson, 461 U.S.
352, 357 (1983)). An affirmative defense is not part of the definition of the crime,
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the void-for-vagueness doctrine. See United States v. Christie, 825 F.3d 1048, 1065
Second, this Court made clear in Preterm-Cleveland that “facial attacks are
not the proper procedure for challenging the lack of a health exception.” 994 F.3d
vague, they must rely on as-applied challenges to “‘protect the health of the woman
if it can be shown in discrete and well-defined instances’ her health or life is at risk.”
Third, at the very least, the district court should have “sever[ed] the
216 and 217 while leaving “the remainder intact.” Ayotte v. Planned Parenthood of
N. New England, 546 U.S. 320, 328-29 (2006). In Tennessee,4 the “doctrine of
elision allows a court, under appropriate circumstances when consistent with the
S.W.2d 823, 830 (Tenn. 1994). The Tennessee legislature undoubtedly would have
4
“Whether a portion of a state’s statute is severable is determined by the law of that
state.” Byrd v. Tenn. Wine & Spirits Retailers Ass’n, 883 F.3d 608, 626 (6th Cir.
2018) (internal quotations omitted).
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complete invalidation of Sections 216 and 217. Both sections contain broad
which “evidence an intent on the part of the legislature to have the valid parts of the
statute[s] in force if some other portion of the statute has been declared
unconstitutional,” Gibson Cnty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544, 551
(Tenn. 1985).
law capable of enforcement and fairly answering the object of its passage.” Id. The
which is the standard already employed in other Tennessee abortion regulations. See
The district court never considered whether severance was appropriate. That
failure was an abuse of discretion and is yet another reason that the State is likely to
succeed on appeal. See Leavitt v. Jane L., 518 U.S. 137, 143-46 (1996).
success infected its weighing of the equities, leading it to conclude that enforcement
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of the Timing Provisions would harm Plaintiffs and the public interest by violating
the Constitution. See PI Opinion, R. 41, PageID # 766-67. But Section 216 is not
unconstitutional, as Dobbs has made clear, so allowing the law to remain enjoined
harms the State and the public interest by preventing the State “from effectuating
statutes enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301
(2012) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)); see also
Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1011 (2022)
(“Paramount among the States’ retained sovereign powers is the power to enact and
The reason for this emergency motion is clear: Each day this Court allows
the injunction to remain in place is another day that the lives of unborn Tennesseans
are at risk. The CEO and president of one Plaintiff has publicly stated that they “will
continue to provide abortion care up to the very minute when we can no longer do
https://bit.ly/3HoiHb4. Plaintiffs will not suffer imminent harm from a stay because,
under Dobbs, they have no right to violate Section 216. And Plaintiffs are not
publicly stated early last month that they anticipated this motion to stay the
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president as saying “we have a six-week ban also and the Sixth Circuit could lift that
injunction immediately after the Supreme Court releases its final decision”).
It is true that change is imminent. With the overruling of Roe and Casey,
Tennessee has another law that will come into effect 30 days from now. See Tenn.
Code Ann. § 39-15-213. But under Tennessee law, which specifically provides that
there is no constitutional right to abortion, Tenn. Const. art. I, § 36, Section 216 is
heartbeat. The State requests that this Court allow Section 216 to come into effect
pending resolution of the appeal so that the State may begin the important work of
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CONCLUSION
Defendants respectfully request that this Court fully stay the preliminary
injunction so that the State can enforce both Section 216 and Section 217. Dobbs
makes clear that Section 216 is constitutional. The State proposes that Plaintiffs,
who publicly stated a month ago that they anticipated this motion, file their
response by 2:30 PM Eastern Time today. Because any delay costs the lives of
Tennessee children, the State asks the Court to grant the motion as soon as
possible. If the Court does not act by 4 PM Eastern Time today, the State plans to
Respectfully submitted,
ANDRÉE S. BLUMSTEIN
Solicitor General
TRAVIS J. ROYER
Honors Fellow
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CERTIFICATE OF COMPLIANCE
I certify that this motion complies with the type-volume limitation of Fed. R.
App. P. 27(d) because it contains 5,186 words, excluding the parts exempted by Fed.
R. App. P. 32(f).
This brief also complies with the typeface and type style requirements of Fed.
CERTIFICATE OF SERVICE
the Bar of this Court, certify that, on June 24, 2022, a copy of the Motion for Stay
appellate CM/ECF system. I further certify that all parties required to be served
25