In Re Special Proceedings

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

:
:
In Re SPECIAL PROCEEDINGS : Misc. No. 09-0198 (EGS)
: UNDER SEAL
:

MEMORANDUM OPINION

On February 8, 2012, this Court issued a Memorandum Opinion

and Order denying two motions to permanently seal from public

disclosure the Report to the Honorable Emmet G. Sullivan of

Investigation Conducted Pursuant to the Court’s April 7, 2009

Order (“Mr. Schuelke’s Report” or “Report”). In that Order, the

Court provided the six attorneys who were the subject of Mr.

Schuelke’s investigation (“subject attorneys”) with the

opportunity to submit their comments related to the Report by no

later than March 8, 2012, and ordered Mr. Schuelke to file his

Report on the public docket on March 15, 2012, including any

submissions by the subject attorneys to be attached as addenda

to the Report.

Edward P. Sullivan, one of the subject attorneys, now moves

this Court to stay the February 8, 2012 Order pending an appeal

to the U.S. Court of Appeals for the District of Columbia

Circuit (“Motion to Stay”). He also moves to file his Notice of

Appeal and his Motion to Stay under seal. Senator Stevens’s
attorneys oppose the motions, and Mr. Sullivan has filed a reply

to thir opposition.

Upon consideration of the motions, opposition and reply

thereto, and for the reasons discussed herein, the Court DENIES

the Motion to Stay, and GRANTS IN PART AND DENIES IN PART the

Motions to Seal. Mr. Sullivan’s Memorandum in Support of his

Motion to Stay and his Reply in Support of Motion to Stay shall

remain sealed until Mr. Schuelke’s Report is publicly filed on

March 15, 2012. Mr. Sullivan’s Notice of Appeal and Motion to

Stay shall be posted on the public docket on Thursday, March 1,

2012.

I. DISCUSSION

A. Motion to Stay

1. Standard of Review

In determining whether to stay an order pending appeal, the

Court considers the same four factors as it would in resolving a

motion for a preliminary injunction: “(1) whether the stay

applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will

substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.”   Nken v.

Holder, 556 U.S. 418, --, 129 S. Ct. 1749, 1761 (2009)

(citations omitted); see also Wash. Metro. Area Transit Comm’n

2

v. Holiday Tours, 559 F.2d 841, 842, n.1, 843 (D.C. Cir. 1977).

On a motion to stay, “it is the movant’s obligation to justify

the court’s exercise of such an extraordinary remedy.” Cuomo v.

United States Nuclear Regulatory Comm’n, 772 F.2d 972, 978 (D.C.

Cir. 1985).

The four factors have typically been evaluated on a

“sliding scale,” whereby if the movant makes an unusually strong

showing on one of the factors, then he does not necessarily have

to make as strong a showing on another factor. Sherley v.

Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (citing Davenport

v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir.

1999)). While it is unclear whether the “sliding scale” is

still controlling in light of the Supreme Court’s decision in

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008),

the Court need not decide that issue because Mr. Sullivan’s

request for a stay fails even under the less demanding “sliding

scale” analysis of Davenport. See Sherley, 644 F.3d at 393.

2. Analysis of the Four Factors Relevant to a Motion
to Stay

a. Likelihood of Success on the Merits

Mr. Sullivan advances three arguments which, he asserts,

“raise[] serious legal questions” related to his ability to

demonstrate a likelihood of success on the merits. Mot. to Stay

at 8, citing Holiday Tours, 559 F.2d at 844-45, see also Reply

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at 5-6. As an initial matter, the Court is not persuaded that

merely raising a “serious legal question” on the merits is

sufficient for Mr. Sullivan to obtain a stay based on this

factor. Typically, a movant must show a likelihood of success

on the merits to achieve a stay. It is only when the other

three factors tip sharply in the movant’s favor that the

standard for success on the merits changes. “An order

maintaining the status quo is appropriate when a serious legal

question is presented, when little if any harm will befall other

interested persons or the public and when denial of the order

would inflict irreparable injury on the movant.” Holiday Tours,

559 F.2d at 844; see also Davis Pension Benefit Guar. Corp., 571

F.3d 1288, 1292 (D.C. Cir. 2009). As discussed infra, Mr.

Sullivan has not met his burden as to the other three factors;

accordingly, the Court considers whether he has demonstrated

“probable success” on the merits. Id. (quoting Charlie’s Girls,

Inc. v. Revlon, Inc., 483 F.2d 953, 54 (2d Cir. 1973)).

The legal arguments in Mr. Sullivan’s Motion to Stay and

his Reply are identical to the arguments he asserted in his

Motion to Permanently Seal the Report, all of which the Court

carefully and thoroughly considered and ultimately rejected in

its February 8, 2012 Opinion. In his Motion to Stay, Mr.

Sullivan has offered neither new argument nor new support for

his previously-raised arguments. Presented with no new

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information, authority, or analysis to persuade the Court to

reconsider its February 8, 2012 decision, the Court has no basis

to conclude that Mr. Sullivan has demonstrated a probability of

success on the merits.

The Court is likewise unpersuaded by Mr. Sullivan’s claim

that the “unique circumstances” of this case present a “novel

and admittedly difficult legal question that weighs in favor of

a stay.” Mot. to Stay at 9 (citing Ctr. For Int’l Envtl. Law v.

Office of U.S. Trade Rep., 240 F. Supp. 2d 21, 22 (D.D.C.

2003)); see also Reply at 9. In its February 8, 2012 Opinion,

after a thorough analysis of the facts and the law, the Court

concluded that “the public has an overriding and compelling

right to access the Report, and that right is protected by the

First Amendment.” February 8, 2012 Opinion, 2012 U.S. Dist.

LEXIS 15656, *14. Nowhere in its Opinion does the Court state

or indicate that the decision was a close call.

To the contrary, the Court found that Mr. Schuelke’s Report

fits squarely within the category of criminal judicial

proceedings to which the First Amendment provides a clear and

long-standing public right of access. Id. *16 (collecting cases

finding a right of access to pre- and post-trial proceedings),

*18-22 (detailing public interest in, and access to, all aspects

of the Stevens proceedings), *24 (explaining that the Report

addresses the prosecutors’ conduct throughout the investigation

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and prosecution of Senator Stevens, and therefore “relates and

pertains to the Stevens prosecution.”). The Court likewise

concluded that one of the core purposes of the First Amendment

right of access – “monitoring prosecutorial or judicial

misconduct” – compels public access to the Report. Id. *26

(quoting Washington Post v. Robinson, 935 F.2d 282, 288 (D.C.

Cir. 1991)). Finally, the Court found that access to the Report

would inform the public about still-unrevealed events in the

Stevens case, shed light on this Court’s decision not to

initiate criminal contempt proceedings, aid public understanding

of criminal trials, and safeguard against further prosecutorial

misconduct. Id. *26-37.

After concluding that the First Amendment protects public

access to the Report, the Court’s February 8, 2012 Opinion went

on to consider the opposing attorneys’ argument – primarily

advanced by Mr. Sullivan - that the investigation conducted by

Mr. Schuelke was “substantially the same as a grand jury

proceeding and should be bound by the same secrecy rules

governing grand jury investigations.” Id. *40 (quoting Mr.

Sullivan’s Motion to Permanently Seal Report at 6). The Court

squarely rejected this argument, finding that Mr. Schuelke’s

investigation differed from a grand jury proceeding in many

important respects, id. *47-48, and further finding that most

reasons for grand jury secrecy, such as protecting witnesses

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from intimidation and mitigating the risk that targets of

investigation would flee, were not relevant to Mr. Schuelke’s

investigation. Id. *49-50. Finally, the Court concluded that

under the circumstances of this case, any claimed prejudice to

the subject attorneys from disclosure of the Report was

significantly less than potential prejudice to unindicted

targets of grand jury investigations. Id. *56-62 (explaining

that the scope and subjects of Mr. Schuelke’s investigation were

publicized from the outset; the subject attorneys were

represented during the investigation and presented defenses;

their employer, the Department of Justice, is already aware of

the information in the Report and continues to employ them; and

any claimed prejudice is addressed by providing the opportunity

for the subjects to submit comments and objections which will be

attached as addenda to the published Report).

Finally, in its February 8, 2012 Opinion, the Court looked

to In re North, 16 F.3d 1234 (D.C. Cir. 1994), in which the D.C.

Circuit weighed whether to publicly release the Independent

Counsel’s report on the Iran-contra affair. Acknowledging the

differences between this case and North, the Court nevertheless

found the case “instructive” because it squarely addressed the

propriety of releasing a report containing allegations of

wrongdoing when those allegations would not be the subject of

future criminal proceedings. Id. *62. The Court found that the

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factors considered by the court in North “overwhelmingly weigh

in favor of disclosure” of Mr. Schuelke’s Report. Id. *64, 65-

70 (the subjects of investigation are publicly known; the Report

addresses a trial about which much is known, and much is

incorrectly known, therefore disclosure will help set the record

straight; the Report will shed light on information which should

be publicly available to facilitate understanding of the Stevens

case in particular and prosecutorial misconduct in general.)

In short, while the specific circumstances of this case may

be unusual, the application of those circumstances to

controlling, well-established law do not present the degree of

difficulty or novelty required to meet the movant’s heavy burden
1
to obtain a stay.

b. Irreparable Harm

As discussed supra, Mr. Sullivan has not established a

likelihood of success on the merits. Accordingly, he must show

1
It is significant that, as stated in the February 8, 2012
Opinion, the Department of Justice and one subject attorney
raised no objection to the public release of the Report, and a
second subject attorney agreed to its release. February 8, 2012
Opinion at *9-10 (citations omitted). Moreover, two other
subject attorneys filed very brief objections to disclosure (one
was two pages, the other was four) which contained little or no
argument. Id. *11, n.5 (citations omitted). The absence of
significant, legally-supported objection to disclosure from the
Department of Justice and four of the six subject attorneys, all
of whom were participants in a prosecution which, the Report
concludes, was “permeated by the systematic concealment of
significant exculpatory evidence,” Mr. Schuelke’s Report at 1,
further weighs against Mr. Sullivan’s claim that he is likely to
succeed on the merits.
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a high degree of irreparable harm to justify the granting of a

stay. “Probability of success is inversely proportional to the

degree of irreparable injury evidenced. A stay may be granted

with either a high probability of success and some injury, or

vice versa.” Cuomo, 772 F.2d at 974. Moreover, to establish

irreparable harm, “[a] party moving for a stay is required to

demonstrate that the injury claimed is ‘both certain and

great.’” Id. at 976 (quoting Wisconsin Gas Co. v. FERC, 758

F.2d 669, 674 (D.C. Cir. 1985). Mr. Sullivan has not

established any irreparable harm, much less one that is “certain

and great.”

Mr. Sullivan claims that his professional reputation will

be irreparably harmed by publication of the Report. This

argument is unavailing, especially in light of Mr. Sullivan’s

own submissions and statements related to the Report.2 In his

Motion to Stay, Mr. Sullivan claims that “the Report correctly

exonerates [him], and accurately concludes that he was not on

2
As explained in the February 8, 2012 Opinion, any claimed
harm to the subjects’ professional reputations flowing from the
release of the Report is speculative for a number of reasons,
including: (1) the issues under investigation and the subjects’
identities have been known and widely publicized from the
outset; (2) the subjects work for the Department of Justice,
which conducted its own investigation into the same conduct and
which is already aware of the information in the Report; (3)
some of the subjects have themselves made statements to the
press regarding the investigation; and (4) the subjects will
have the opportunity to submit comments to the Report, and those
submissions will be attached as addenda and published
simultaneously with the Report. Feb. 8, 2012 Opinion at *59-62.
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the trial team, did not meaningfully participate in the

decisions and actions under review, and merely assisted his

veteran supervisors and the experienced attorneys on the trial

team in a limited, ‘back office’ role.” Mot. to Stay at 2,

citing Mr. Schuelke’s Report at 3, 507. Given Mr. Sullivan’s

own characterizations of the Report, the Court cannot conclude

that Mr. Sullivan will be harmed at all – much less irreparably

so – by publication of a Report that he himself maintains

exonerates him.

Mr. Sullivan nevertheless argues that, regardless of his

own exoneration in the Report, he will be irreparably harmed

“through unwarranted association with the alleged conduct and

decision-making of” the other subject attorneys. Mot. to Stay

at 6; see also Reply at 3-4. Again, this argument is

unavailing. For years, Mr. Sullivan has been widely identified

as one of the prosecutors responsible for the investigation and

prosecution of Senator Stevens. Mr. Sullivan’s name has been

associated with the other prosecutors, in an undifferentiated

fashion, in a case which has come “to symbolize the dangers of

an overzealous prosecution and the risks inherent when the

government does not abide by its discovery obligations.”

February 8, 2012 Opinion at *35 (collecting citations). To the

extent the Report exonerates Mr. Sullivan and distinguishes his

conduct from the other subject attorneys’ as he claims,

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publication of the Report would presumably help, not harm, his

professional reputation.3 This is particularly true because the

Court’s February 8, 2012 Order provides him, as well as the

other subject attorneys, with the “opportunity to submit

comments on the Report. These comments shall be published with

the Report, to enable the public to consider the subject

attorneys’ comments simultaneously with the Report.” February 8,

2012 Opinion at *62; see also North, 16 F.3d at 1237 (providing

for the subjects of the Independent Counsel’s Report to file

comments on the Report, which would be appended to the Report

and serve as “the final word on the merits of the []

investigation.”).

Publication of the Report itself, which Mr. Sullivan

maintains “exonerates” him, combined with his own, unedited

comments which provide him with the opportunity to clarify

events and/or further distance him from the misconduct “of

others,” cannot possibly comprise irreparable harm. See North,

16 F.3d at 1241 (the subjects’ “right of comment, both in the

3
Mr. Sullivan’s Reply in Support of Motion to Stay underscores
the Court’s conclusion that he has not demonstrated irreparable
harm. His reply is replete with references to the Report which,
he asserts, support the “indisputable determination[]” that Mr.
Sullivan was not responsible for the misconduct in Stevens.
Reply at 1, see also id. at 3-4 (discussing Report’s findings
regarding Mr. Sullivan). Mr. Sullivan’s claim that,
notwithstanding these clear conclusions, the public may “wrongly
conclude that the Report’s generalized criticism of the
government . . . applies to Mr. Sullivan,” Reply at 2, is
insufficient to meet his high burden to show irreparable harm.
11

report and other fora, may do them more good than the order

[denying publication] they seek from us.”)

Deprived of his argument that release of the Report will

irreparably harm his professional reputation, Mr. Sullivan is

left only with his claim that a stay is justified because once

the Report is released, with his comments, the appellate court

will not be able to “unring the bell” on appeal. Mot. to Stay

at 7 (quoting Maness v. Meyers, 419 U.S. 449, 460 (1975)). The

Court is not persuaded that this argument is sufficient to

warrant a stay in this case, where, as discussed throughout, the

movant has not demonstrated a serious question on the merits,

the balance of harms favors disclosure, and the public interest

weighs heavily in support of release.4

4
The cases Mr. Sullivan cites are not to the contrary. In
Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979), the
First Circuit stayed an order disclosing FBI documents regarding
a wiretap to the plaintiff, a newspaper. The court found that
the movant established “serious legal questions” on the merits,
and further found that “once the documents are surrendered . . .
confidentiality will be lost for all time.” Id. at 890. By
contrast, the Court does not find Mr. Sullivan has established a
serious legal question on the merits. Moreover, as discussed
throughout the February 8, 2012 Opinion, the existence of Mr.
Schuelke’s investigation, its scope, and its subjects have been
widely publicized from the outset, and some of the subject
attorneys, including Mr. Sullivan, have made statements to the
press about the investigation. See Feb. 8, 2012 Opinion at *60
(citations omitted). The other cases cited by Mr. Sullivan are
likewise distinguishable. See Ctr. for Envtl. Law v. Office of
the U.S. Trade Rep., 240 F. Supp. 2d 21, 22 (D.D.C. 2003)
(concluding that the movant “made out a substantial case on the
merits [in] an issue of first impression . . . [the] Court’s
decision centered on a novel and admittedly difficult legal
12

 c. Harm to Other Interested Parties

Mr. Sullivan argues that no party will be harmed by a stay.

The Court disagrees. Senator Stevens’s attorneys have

persuasively argued that the Senator’s family and former staff,

colleagues and close friends, who suffered the effects of the

prosecution along with him, have not been permitted to review

the Report. Opp’n to Motion for Stay Pending Appeal at 9.

Moreover, one subject attorney “welcomes the release” of the

Report. See Brenda Morris Concurs with the Court’s Intent, as

Stated in Its November 21, 2011 Order, to Release the Full

Report. Accordingly, the Court finds the balance of harms tips

in favor of disclosure.

d. The Public Interest

“The fourth and final factor to be considered by the

Court when analyzing the . . . request for a stay and injunction

is where the public interest lies. The public interest is a

uniquely important consideration in evaluating a request for

[interim relief].” Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp.

2d 68, 77 (D.D.C. 2008) (citations omitted). As this Court has

question.” (internal citations omitted)); People for Am. Way
Found. v. U.S. Dep’t of Educ., 518 F. Supp. 2d 174, 177 (D.D.C.
2007) (opposing party consented to stay). The final case cited
by movant, Maness v. Meyers, does not concern a stay pending
appeal; it addresses whether an attorney is subject to contempt
by advising his client to resist compliance with a court order
to produce documents where production would implicate his Fifth
Amendment privilege against self-incrimination.
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repeatedly stated over the course of this case, the public has a

compelling interest in the Stevens case, and that interest

weighs overwhelmingly in favor of the prompt release of the

Report. See, e.g., Transcript of Hearing 46:7-11, U.S. v.

Stevens, Case 08-cr-231 (April 7, 2009) (“[T]he events and

allegations in this case are too serious and too numerous to

leave to an internal investigation that has no outside

accountability. The court has an independent obligation to

ensure that any misconduct is fully investigated and addressed

in an appropriate public forum.”); see also Feb. 8, 2012 Opinion

at *34-35 (collecting Supreme Court authority in support of

public access to criminal trials in order to facilitate public

understanding of the process and safeguard against prosecutorial

misconduct). In this case in particular, which involved the

trial of a sitting United States Senator and which has “come []

to symbolize the dangers of an overzealous prosecution . . . and

[] has also been credited with changing the way other courts,

prosecutors, and defense counsel approach discovery in criminal

cases,” February 8, 2012 Opinion *35-36 (collecting citations),

the public interest in timely disclosure of the results of Mr.

Schuelke’s investigation is evidenced by the public statements

of members of the United States Senate, the national media, and

the Attorney General himself. Press Release, Senator Chuck

Grassley, Distrust of the Justice Dept., Televising Supreme

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Court Proceedings, (Feb. 9, 2012)

http://www.grassley.senate.gov/news/Article.cfm?customel_dataPag

eID_1502=38980 (last visited Feb, 27, 2012) (“[T]he public has a

right to know what the special investigator found and how

pervasive the misconduct was inside the Public Integrity Unit at

the Justice Department.”); Editorial, Release the Stevens

Report, THE NEW YORK TIMES, (Feb. 7, 2012),

http://www.nytimes.com/2012/02/08/opinion/release-the-ted-

stevens-report.html?scp=1&sq=Ted%20Stevens&st=Search (last

visited Feb. 26, 2012); Oversight of the U.S. Dep’t of Justice:

Hearing Before the Senate Judiciary Comm., Webcast at 66:00:66-

10 (Nov. 8, 2011),

http://www.judiciary.senate.gov/hearings/hearing.cfm?id=9b6937d5

e931a0b792d258d9b32d21a8 (last visited Feb. 26, 2012),

(statement of Attorney General Holder that “I want to share as

much of [the Department of Justice report on its investigation

of the Stevens prosecution] as we possibly can given the very

public nature of that matter and the very public nature of the

decision I made to dismiss the case[.]”)

Mr. Sullivan does not acknowledge or attempt to dispute

these compelling interests. Rather, he argues that there is “a

substantial public interest in ensuring that a prosecutor does

not accuse uncharged individuals of wrongdoing.” Mot. to Stay

at 11. As discussed in the Irreparable Harm section supra, this

15

argument is unavailing, especially in view of Mr. Sullivan’s

claim that the Report “correctly exonerates” and “rightfully

clears” his name. Id. at 2, 5. The only other argument Mr.

Sullivan asserts in support of public interest in further delay

is “the right to effective appellate review.” Id. at 11. But,

again, as discussed supra, this unsupported assertion does not

erase or negate the stringent requirements for a stay, none of

which have been met in this case. It also does not trump the

overwhelming public interest in, and right to, the results of

Mr. Schuelke’s investigation, as detailed in his Report.

For the foregoing reasons, the Court will DENY movant’s

Motion to Stay Pending Appeal.

B. Mr. Sullivan’s Motions to Seal His Motion to Stay
and His Notice of Appeal

In addition to his Motion to Stay Pending Appeal, Mr.

Sullivan has moved the Court to file the Motion to Stay, as well

as his Notice of Appeal, under seal. Mr. Sullivan cites no

authority for his requested relief, which would hide the fact of

appeal and all subsequent litigation in this case from the

public record. Therefore, with the exception of his Memorandum

and his Reply in Support of Motion to Stay, which reference the

16

contents of the Report, Mr. Sullivan’s motions to seal will be

DENIED.5

As recent decisions in this case have made clear, judicial

proceedings in the United States are presumptively open to the

public. Proceedings, records, and the identities of litigants

are withheld from the public only when the movant overcomes

strong presumptions in favor of disclosure. See, e.g., Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 589-93 (1980)

(presumption of public access to criminal cases, overcome only

by overriding interest that closure is essential to preserve

higher values and narrowly tailored to serve that interest);

Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)

(“[i]t is clear that the courts of this country recognize a

general right to inspect and copy public records and documents,

including judicial records and documents.”); U.S. v. Microsoft

Corp, 56 F.3d 1448, 1464 (D.C. Cir. 1995) (courts grant “rare

dispensation” of anonymity sparingly); Coe v. U.S. Dist. Court

for Colorado, 676 F.2d 411, 415-16 (10th Cir. 1982) (courts

generally allow anonymity to preserve privacy only in highly

personal matters such as abortion and welfare of children, or

when identification poses risk of physical or mental harm;

5
In accordance with the Court’s Opinion of February 8, 2012, all
pleadings related to Mr. Schuelke’s Report will be unsealed on
March 15, 2012, when the Report is placed on the public docket.
Feb. 8, 2012 Opinion at *72.
17

anonymity not permitted in an action involving a litigant’s

future professional and economic life.). 

In this case, the Court has sealed only those pleadings and

portions of pleadings which would reveal the contents of the

Report.6 The subjects’ identities have never been sealed; to the

contrary, they have been widely publicized from the outset of

the investigation. Mr. Sullivan’s Notice of Appeal contains no

information regarding the content of the Report, nor does his

Motion to Stay. Accordingly, in the absence of any argument by

Mr. Sullivan to overcome the presumption of openness, his

motions to seal the Notice of Appeal and Motion to Stay are

DENIED. The Clerk of the Court is directed to post the Notice

of Appeal and Motion to Stay on the public docket on March 1,

2012. Because his Memorandum in Support of Motion to Stay and

his Reply in Support of Motion to Stay reference the content of

the Report, the Court will GRANT Mr. Sullivan’s motion to file

6
Mr. Sullivan points out that the Court redacted from the
February 8, 2012 Opinion the identities of the attorneys who
filed motions, notices or memoranda in response to the Court’s
November 21, 2011 Order announcing its intention to publish the
Report and providing the attorneys an opportunity to file
pleadings in response to that Order. Mot. for Leave to File
Under Seal at 1-2. The Court made these redactions in order to
avoid the possibility of linking an attorney with a substantive
argument regarding the Report, thereby inadvertently revealing
that content prematurely. Mr. Sullivan nowhere explains,
because he cannot, how these limited redactions in an otherwise
public opinion and order translate into a right to complete
anonymity, or a right to withhold all future litigation in this
case from the public record.
18

those memoranda under seal. In accordance with the Court’s

February 8, 2012 Opinion and Order, all pleadings related to Mr.

Schuelke’s Report shall be unsealed when the Report is published

on March 15, 2012, and Mr. Sullivan’s Memorandum in Support of a

Stay shall likewise be unsealed at that time.

II. CONCLUSION

For the foregoing reasons, Mr. Sullivan’s Motion to Stay is

DENIED, and his motions to file under seal are GRANTED IN PART

AND DENIED IN PART.

An appropriate Order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
February 27, 2012

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