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NEW ENGLAND MERCHANTS NATL. BANK v. IRAN POWER GEN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


November 5, 1980

NEW ENGLAND MERCHANTS NATIONAL BANK, Plaintiff, against IRAN POWER GENERATION AND TRANSMISSION COMPANY, et al., Defendants.

The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

The executive department of the government has requested leave to intervene in these cases to seek certification to the Court of Appeals of the question of my denial of the government's request for an indefinite stay, and assuming that I would certify such a question, the government also seeks a stay pending the resolution of that question by the Court of Appeals. The issues raised by the government in no way relate to the requests by various parties to these actions for certification of questions that they believe are raised by my prior decision of September 26, 1980. The requests by the parties for certification of questions relating to substituted service and to the validity of the attachments will be dealt with in an opinion which I will file shortly. This memorandum deals solely with the government's motions, which by their nature must be construed as opposing the motions made by parties hereto.

 The government's motions must be denied as meritless. The only basis for intervention is a showing of some need by the executive department to intervene. There is no such need. *fn1" The situation whereby the President invoked his extraordinary powers under the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., in effect, suspended all litigation involving the frozen Iranian assets. These lawsuits are permitted by a general license issued by the executive, 31 C.F.R. Part 535. That license can be suspended by the executive acting alone. Such a suspension would effectively stay all of this litigation. Thus, the executive has within its sole power the means to obtain all of the relief it now seeks. To request this Court to stay proceedings for which the executive branch has issued a special license, revocable at will, is explicable only in terms that could not properly be expressed in a judicial forum.

 To certify the questions suggested by the Department of Justice would also subvert the process of certification as envisioned by the statutes under which this motion is brought. Certification is appropriate only where it would "materially advance the ultimate termination of the litigation...." 28 U.S.C. § 1292(b). Here the government does not seek to advance the ultimate termination of the litigation. Instead, the Department of Justice wishes solely to delay it. There is nothing presented that would be proper to certify under governing law.

 The motions are denied.

 SO ORDERED.


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