memorandum of points and authorities in support of motion of the bipartisan legal advisory group of...

Case 2:11-cv-00045-CDJ Document 59

Filed 11/04/11 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA __________________________________________ ) COZEN OCONNOR, P.C., ) ) Plaintiff, ) ) v. ) ) JENNIFER J. TOBITS, et al., ) ) Defendants. ) __________________________________________)

No. 2:11-cv-00045 Judge: C. Darnell Jones, II

MEMORANDUM OF POINTS AND AUTHORIITES IN SUPPORT OF MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO INTERVENE FOR A LIMITED PURPOSE INTRODUCTION This interpleader action arises out of the grievously premature death in September 2010 of Sarah Ellyn Farley, an attorney with the law firm of Cozen OConnor, and a participant in the Cozen OConnor Profit Sharing Plan (Plan). The defendants David and Joan Farley, Ms. Farleys parents (the Farleys), and Jennifer Tobits, who married Ms. Farley in Canada in 2006 both claim to be the beneficiaries of Ms. Farleys interest in the Plan. See Cozen OConnors First Am. Compl. for Interpleader 11-14 (Jan. 24, 2011) (ECF No. 3). The Farleys contend that Ms. Tobits is not Ms. Farleys surviving spouse for purposes of the Plan, and therefore is not the beneficiary of the latters interest in the Plan, because, among other reasons, (i) Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (DOMA), codified at 1 U.S.C. 7, defines spouse as refer[ring] only to a person of the opposite sex who is a husband or a wife; (ii) that definition applies to the Plan; and (iii) Ms. Tobits is of the same sex as Ms. Farley. See [Farleys] Answer, Countercl. and Cross-Cl. 14-

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15 (Aug. 1, 2011) (ECF No. 14). Ms. Tobits argues, among other things, that the definition of spouse in DOMA Section 3 does not apply to the Plan, but that, if it does, then Section 3 is unconstitutional under the Fifth Amendment. See Def. Jennifer J. Tobitss Answer to Cross-Cl. of Defs. David M. Farley and Joan F. Farley 28 (Aug. 22, 2011) (ECF No. 24). Thus, it is possible although not at this time certain that this Court will be required to rule on DOMA Section 3s constitutionality at some point in this proceeding. Apparently in anticipation of possibly having to decide that issue, the Court has directed the parties to submit supplemental briefing on, among other issues, the question of [w]hether 1 U.S.C. 7 . . . violates the United States Constitution. Order at 2 (Oct. 27, 2011) (ECF No. 55). The parties initial supplemental briefs are due December 2, and response briefs are due December 21. Id. The October 27 Order also sets forth a time frame for the United States to intervene if it so chooses. Id. However, as the Court likely is already aware, and as explained in more detail below, the Department of Justice (Department) already has made clear that the Executive Branch will not intervene here to defend DOMA Section 3s constitutionality although it may intervene to attack the statute, as it has done in other cases that present the issue of Section 3s constitutionality.1 As a direct result of this fact and the Courts October 27 Order, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) is moving at this time to intervene so that it may brief the issue of Section 3s constitutionality in accordance with the

See, e.g., Superseding Br. for the U.S. Dept of Health & Human Servs., Massachusetts v. Dept of HHS, No. 10-2204 (1st Cir. Sept. 23, 2011) (ECF. No. 00116264873); Defs. Mem. of Law in Resp. to Pls. Mot. for Summ. J. & Intervenors Mot. to Dismiss, Pedersen v. U.S. Office of Pers. Mgmt., No. 3:10-cv-01750 (D. Conn. Sept. 14, 2011) (ECF No. 98); Defs. Oppn to [Houses] Mot. to Dismiss, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28); [Defs.] Mem. of Law in Resp. to Pl.s Mot. for Summ. J. & Intervenors Mot. to Dismiss, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y. Aug. 19, 2011) (ECF No. 71); Defs. Br. in Oppn to Mots. to Dismiss, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv0257 (N.D. Cal. July 1, 2011) (ECF No. 145).

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briefing schedule set out in the October 27 Order. The House previously has moved to intervene in nine other cases that, like this one, present the issue of DOMA Section 3s constitutionality. To date, seven of those motions have been granted,2 and two are pending.3 This Court should do the same here. In light of the Departments unwillingness to defend Section 3 itself, the House should be permitted to intervene to ensure that (i) the Court is presented with a robust defense of Section 3s constitutionality by the Legislative Branch, which has a compelling interest in seeing that Act of Congress upheld, and (ii) at least one federal government entity in this proceeding is defending DOMA a federal statute as a party. BACKGROUND As the Court is aware, ordinarily it is the duty of the Executive Branch to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and of the Department in particular, in furtherance of that responsibility, to defend the constitutionality of duly enacted federal laws when they are challenged in court. DOMA is such a law. DOMA was enacted by the 104th Congress in 1996. The House and Senate bills which became DOMA passed by votes of 342-67 and 85-14, respectively. See 142 Cong. Rec. H7505See Order of Ct., Massachusetts v. Dept of HHS, No. 10-2204 (1st Cir. June 16, 2011) (ECF No. 00116221480), attached as Exhibit A; Order at 1, Bishop v. United States ex rel. Holder, No. 4:04-cv-00848 (N.D. Okla. Aug. 5, 2011) (ECF No. 181), attached as Exhibit B; Order, Lui v. Holder, 2:11-cv-01267 (C.D. Cal. July 13, 2011) (ECF No. 25), attached as Exhibit C; Order Granting Mot. of [the House] to Intervene for a Limited Purpose, Dragovich v. U.S. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal. June 10, 2011) (ECF No. 88), attached as Exhibit D; Order Granting the Mot. of the [House] to Intervene for a Limited Purpose, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal. June 3, 2011) (ECF No. 116), attached as Exhibit E; Mem. & Order, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 2, 2011) (ECF No. 26), attached as Exhibit F; Minute Order, Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-01750 (D. Conn. May 27, 2011) (ECF No. 55), attached as Exhibit G. See Mot. of the [House] for Leave to Intervene, Torres-Barragan v. Holder, No. 1055768 (9th Cir. June 24, 2011) (ECF No. 31); Mot. of the [House] to Intervene for a Limited Purpose . . . , Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. May 31, 2011) (ECF No. 14).3 2

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06 (July 12, 1996) (House vote on H.R. 3396), and 142 Cong. Rec. S10129 (Sept. 10, 1996) (Senate vote on S. 1999). President Clinton signed the bill into law on September 21, 1996. See 32 Weekly Comp. Pres. Doc. 1891 (Sept. 21, 1996). While the Department repeatedly has defended the constitutionality of Section 3 in the intervening years,4 the Attorney General abruptly announced in February of this year that it no longer would do so. See Letter from Eric H. Holder, Jr., Attorney General, to the Honorable John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011) (Holder Letter), attached as Exhibit H.5 At the same time, the Attorney General articulated his intent to provid[e] Congress a full and fair opportunity to participate in the litigation in those cases [in which DOMAs constitutionality is placed at issue]. Id. at 6. Since then, the Department has

Bush Administration E.g., Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), affd in part and vacated in part, 447 F.3d 673 (9th Cir.) (plaintiffs lacked standing to challenge Section 3), cert. denied, 549 U.S. 959 (2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (constitutional challenges to DOMA dismissed for failure to state claim); Order, Sullivan v. Bush, No. 1:04-cv-21118 (S.D. Fla. Mar. 16, 2005) (ECF No. 68) (granting plaintiffs motion for voluntary dismissal after defendants moved to dismiss); Order, Hunt v. Ake, No. 8:04-cv-1852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35) (constitutional challenges to DOMA dismissed for failure to state claim); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (DOMA does not violate Fifth Amendment). Obama Administration E.g., Corrected Br. for the U.S. Dept of Health and Human Servs., Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, -2207, -2214 (1st Cir. Jan. 19, 2011) (ECF No. 00116160305); Fed. Defs. . . . Mot. to Dismiss, Dragovich v. Dept of the Treasury, No. 4:10-01564 (N.D. Cal. July 2, 2010) (ECF No. 25); Mem. in Support of Defs. Mot. to Dismiss Pls. First Amend. Compl., Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal. May 10, 2010) (ECF No. 49); Mot. to Dismiss by United States of America, Bishop v. United States ex rel. Holder, No. 4:04-cv-00848 (N.D. Okla. Oct. 13, 2009) (ECF No. 137). In so announcing, the Attorney General acknowledged that (i) ten U.S. Circuit Courts of Appeals have rejected his conclusion that sexual orientation classifications are subject to a heightened standard of scrutiny [there actually are 11 such Circuit Courts], Holder Letter at 3-4 nn.4-6, and (ii) professionally responsible arguments can be advanced in defense of DOMA Section 3. Id. at 5.5

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notified the House of a number of cases in which DOMA Section 3s constitutionality has been placed at issue, including this one, in order to permit the House to intervene.6 On March 9, 2011, in response to the Departments decision to shirk its constitutional responsibilities with respect to DOMA, the House formally determined to defend DOMA in civil actions in which Section 3s constitutionality was challenged. See Press Release, Speaker of the House John Boehner, House Will Ensure DOMA Constitutionality Is Determined by the Court (Mar. 9, 2011), available at http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539 (House General Counsel has been directed to initiate a legal defense of [Section 3 of DOMA]). While the House often appears in judicial proceedings as amicus curiae,7 it also intervenes in judicial proceedings where appropriate. See, e.g., North v. Walsh, 656 F. Supp. 414, 415 n.1 (D.D.C. 1987); Am. Fedn of Govt Emps. v. United States, 634 F. Supp. 336, 337 (D.D.C. 1986). In particular, the House has intervened to defend the constitutionality of federal statutes when the Department has refused to do so. See, e.g., INS v. Chadha, 462 U.S. 919, 930 n.5 (1983); Adolph Coors Co. v. Brady, 944 F.2d 1543, 1545 (10th Cir. 1991); Synar v. United

The Department notified the House that Section 3s constitutionality was potentially at issue in this case on September 23, 2011, by way of a phone call from Deputy Assistant Attorney General Michael F. Hertz to House General Counsel Kerry W. Kircher, presumably as a direct result of the Departments receipt of Def. Jennifer J. Tobitss Notice of Constitutional Question (Aug. 23, 2011) (ECF No. 27). See, e.g., Dickerson v. United States, 530 U.S. 428, 430 n.* (2000); Raines v. Byrd, 521 U.S. 811, 818 n.2 (1997); Am. Foreign Serv. Assn v. Garfinkel, 490 U.S. 153, 154 (1989); Morrison v. Olson, 487 U.S. 654, 659 (1988); Japan Whaling Assn v. Am. Cetacean Socy, 478 U.S. 221, 223 (1986); Helstoski v. Meanor, 442 U.S. 500, 501 (1979); United States v. Helstoski, 442 U.S. 477, 478 (1979); United States v. Renzi, 651 F.3d 1012, 1015 (9th Cir. 2011); Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 3 (D.C. Cir. 2006) (en banc); Beverly Enters. v. Trump, 182 F.3d 183, 186 (3d Cir. 1999); United States v. McDade, 28 F.3d 283, 286 (3d Cir. 1996); In re Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100, 104-05 (D.D.C. 2006), revd sub nom. United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007).7

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States, 626 F. Supp. 1374, 1378-79 (D.D.C. 1986), affd sub nom. Bowsher v. Synar, 478 U.S. 714 (1986); Ameron, Inc. v. U.S. Army Corp of Engrs, 607 F. Supp. 962, 963 (D.N.J. 1985), affd, 809 F.2d 979 (3d Cir. 1986); In re Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986); Barnes v. Carmen 582 F. Supp. 163, 164 (D.D.C. 1984), revd sub nom. Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1984), revd on mootness grounds sub nom. Burke v. Barnes, 479 U.S. 361, 362 (1987); In re Prod. Steel, Inc., 48 B.R. 841, 842 (M.D. Tenn. 1985); In re Moody, 46 B.R. 231, 233 (M.D.N.C. 1985); In re Tom Carter Enters., Inc., 44 B.R. 605, 606 (C.D. Cal. 1984); In re Benny, 44 B.R. 581, 583 (N.D. Cal. 1984), affd in part & dismissed in part, 791 F.2d 712 (9th Cir. 1986). As noted above, to date, seven of seven federal courts that have considered House motions to intervene in cases like this one have granted the Houses motions. See supra p. 3 n.2. While the Department has not yet decided whether to intervene here and is not obligated to so decide until December 30, see October 27 Order at 3 there is no chance, in light of the Holder Letter, that the Department will intervene here to defend DOMA Section 3s constitutionality. If the Department intervenes at all, it almost certainly will be for the purpose (possibly among others) of attacking Section 3s constitutionality, as it has done since February in other cases that have presented the issue of Section 3s constitutionality. See supra p. 2 n.1. The House is the only federal government entity that will seek to intervene here to defend DOMAs constitutionality. ARGUMENT I. House Intervention Is Appropriate Under Rule 24(a)(1) and/or 24(b)(1)(A). Rule 24(a)(1) provides for intervention as of right where the proposed intervenor is given an unconditional right to intervene by a federal statute, while Rule 24(b)(1)(A) provides

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for permissive intervention where the proposed intervenor is given a conditional right to intervene by a federal statute. A federal statute, namely 28 U.S.C. 2403(a), clearly contemplates that the federal government will defend the constitutionality of Acts of Congress when they are challenged: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court . . . shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. See, e.g., Smelt v. Cnty. of Orange, 447 F.3d 673, 676 n.5 (9th Cir. 2006) (noting that [t]he United States intervened pursuant to 28 U.S.C. 2403 to defend the constitutionality of DOMA). In this case, where the Attorney General already has affirmatively decided that the Department will not play the role contemplated by section 2403(a), it is appropriate for the House to intervene to discharge that function. See 28 U.S.C. 530D(b)(2) (specifically contemplating that House and/or Senate may intervene to defend constitutionality of federal statute where Department declines to do so). Indeed, where, as here, the Department declines to defend a statute, the Supreme Court has held that it is appropriate for the Legislative Branch to accept that responsibility: Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. Chadha, 462 U.S. at 940 (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968) (emphasis added); United States v. Lovett, 328 U.S. 303 (1946)) (emphasis added). This is precisely the situation here. See supra pp. 3 n.2, 7



5-6 (citing other decisions that have followed Chadha and permitted House and/or Senate to intervene to defend constitutionality of federal statutes). Accordingly, whether the Court construes 28 U.S.C. 2403(a) as vesting the House with an unconditional right to intervene, Rule 24(a)(1), or a conditional right to intervene, Rule 24(b)(1)(A), intervention here by the House to defend the constitutionality of DOMA Section 3 clearly is appropriate. II. House Intervention Is Appropriate Under Federal Rule 24(a)(2). Federal Rule of Civil Procedure 24(a)(2) provides that: On timely motion, the court must permit anyone to intervene who: * * * *

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest. Under the law of this Circuit, the House may intervene as a matter of right if it can establish 1) a timely application for leave to intervene, 2) a sufficient interest in the underlying litigation, 3) a threat that the interest will be impaired or affected by the disposition of the underlying action, and 4) that the existing parties to the action do not adequately represent the [Houses] interests. Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005). See also 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 1904 (3d ed. 1998) (It frequently has been said of Rule 24 . . . that it is to be given a liberal construction.). The House satisfies each of these requirements here. First, the timeliness of an intervention request is determined by the totality of the circumstances, United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir. 1994), and includes consideration of the following factors: (1) the stage of the proceeding; (2) the 8



prejudice that delay may cause the parties; and (3) the reason for the delay. In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005). The Houses motion obviously is timely and will not cause any delay. The House only first became aware of this case on September 23, 2011, see supra p. 5 n.6, and it is filing its motion to intervene a mere eight days after entry of this Courts October 27 Order, which is the procedural development that squarely teed up the issue of Section 3s constitutionality for the first time in this case (and which gives the Department until December 30 to move to intervene). No party will be prejudiced by the Houses intervention at this stage of the proceedings, particularly inasmuch as the House is prepared to file briefs on the Section 3 constitutional issue in accordance with the schedule set out in the October 27 Order. Second, the interest element is satisfied if the House has an interest that is significantly protectable, Donaldson v. United States, 400 U.S. 517, 531 (1971), which it does. The House self-evidently has a strong interest in defending the constitutionality of its legislative handiwork, given the Houses central constitutional role in creating the legislation, U.S. Const. art. I, 1, 7, 8 particularly where, as here, (i) the House bill that became DOMA passed the House by a substantial and bipartisan majority a mere 15 years ago, and (ii) the Department refuses to defend the statute. See Chadha, 462 U.S. at 940-41; Ameron, Inc., 607 F. Supp. at 963 ([M]otions to intervene were received from Speaker and Bipartisan Leadership Group of the House of Representatives [and others] . . . . These motions were all granted because of the importance of the issues presented, [and] the interest of those parties therein . . . .); Windsor v. United States, No. 10-cv-8435, 2011 WL 2207572, at *2 (S.D.N.Y. June 2, 2011) (Exhibit F at 6) (permitting House to intervene to defend DOMA Section 3 [The House] has a cognizable interest in defending the enforceability of statutes the House has passed when the President declines to enforce them.).

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Third, with respect to the impairment prong of the analysis, the House must only demonstrate that [its] interest might become affected or impaired, as a practical matter, by the disposition of the action in [its] absence. Mountain Top Condo. Assn v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 368 (3d Cir. 1995) (emphasis in original). The disposition of this case threatens the Houses interest in seeing that Section 3s constitutionality is upheld because (i) the Court may be required to rule on Section 3s constitutionality as a result of Ms. Tobits contingent contention that Section 3 is unconstitutional; (ii) the Department refuses to defend against that challenge; (iii) the Department is likely in this case to affirmatively attack the position taken by the House in defense of Section 3; and (iv) as discussed in the next paragraph, the House cannot be certain that any other party in this case will vindicate its interests. Finally, with respect to the adequacy of representation factor, the burden [on the House] of making that showing should be treated as minimal. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972); see also Kleissler v. U.S. Forest Serv., 157 F.3d 964, 980 n.6 (3d Cir. 1998) (Becker, J., concurring) (noting the minimal standard for finding that an applicants interests are not adequately represented). Here, the Farleys contest Ms. Tobits claim and presumably, therefore, will resist her contention that Section 3 is unconstitutional. However, the Farleys do not have the expertise in defending DOMA that the House possesses (as noted above, the House has been actively litigating the issue of Section 3s constitutionality in numerous other cases since February). The Farleys also lack the Houses global interest in obtaining a final, definitive ruling on the Section 3 issue by the Supreme Court and, therefore, may not be willing to pursue appeals that the House is willing and able to pursue in the event of an adverse ruling. And the Farleys have a pecuniary interest in the ultimate resolution of this matter, not shared by the House, which may lead to a divergence in the manner in which the Farleys and the House argue the question of Section 3s constitutionality, or which might lead the Farleys to accept a 10


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financial settlement in lieu of appealing an adverse ruling. For all these reasons, none of the existing parties adequately represent the Houses particular interests in defending Section 3 against Fifth Amendment challenges. See Chadha, 462 U.S. at 940-41. III. House Intervention Also Is Appropriate Under Federal Rule 24(b)(1)(B). Federal Rule of Civil Procedure 24(b)(1)(B) provides that: On timely motion, the court may permit anyone to intervene who: (B) has a claim or defense that shares with the main action a common question of law or fact. The Houses motion to intervene satisfies both these requirements. The Houses motion is timely for the reasons discussed above. See supra pp. 8-9. With respect to the common question of law or fact requirement, that language should be given its plain meaning and read in the disjunctive. 6 Moores Federal Practice 24.11 (3d ed. 2011). The House plainly has a defense here i.e., if DOMA Section 3 is implicated in this case, it is constitutional that shares with the main action a common question of law. Compare Answer of [the House] to Cozen OConnors First Am. Compl. at 1-2 (Nov. 4, 2011) (attached to motion to intervene), with [The Farleys] Answer, Countercl., and Cross-Cl. at 14 (Aug. 1, 2011) (ECF No. 14) (suggesting that Ms. Tobits cannot be the beneficiary of Ms. Farleys interest in the Plan because of DOMA Section 3); Def. Jennifer J. Tobitss Answer to Cross-Cl. of Defs. David M. Farley and Joan F. Farley 28 (Aug. 22, 2011) (ECF No. 24) (1 U.S.C. 7 has no legal bearing on this case . . . . To the extent the Court analyzes this statute, however, the [Farleys] CrossClaim is barred in whole or in part because 1 U.S.C. 7 violates the guarantees of equal protection and due process of law embodied in the U.S. Constitution.); [The Farleys] Mot. to Dismiss Jennifer J. Tobits Cross-Cls. Pursuant to FRCP 12(b)(6) at 2 (Aug. 22, 2011) (ECF No. 25) (The Plan is to be interpreted according to the laws of the United States . . . . [DOMA

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Section 3] provides the dispositive federal rule of decision. . . . Under federal law, Ms. Tobits cannot be the lawful spouse of someone of the same sex.). Finally, in resolving the permissive intervention issue, the Court also should take into account (i) the fact that the House only seeks to intervene for a limited purpose, see 6 Moores Federal Practice 24.11 (3d ed. 2011) (A less stringent standard [as to the question of the commonality of law or fact required] may be applied if a movant seeks intervention for a very limited purpose rather than full participation in the litigation.); (ii) the fact that the House has been permitted to intervene in numerous other cases in which the issue of Section 3s constitutionality has been presented, see supra p. 3 n.2; (iii) the Houses unique perspective, as one of the enacting legislative bodies, on the question of Section 3s constitutionality; and (iv) the added value the House will bring to this litigation in terms of aiding the Court in its constitutional inquiry. Cf. Johnson v. Mortham, 915 F. Supp. 1529, 1538-39 (N.D. Fla. 1995) (permitting NAACP to intervene in racial gerrymandering case because of its unique perspective and because it has been allowed to intervene in similar actions around the country). IV. The House Has Standing. The Third Circuit has not definitively determined whether a would-be intervenor is required to establish Article III standing in its own right where, as here, there is an ongoing case or controversy. See, e.g., Am. Auto. Ins. Co. v. Murray, Nos. 091106, 1248, 2011 WL 3966114, at *4 n.4 (3d Cir. Sept. 7, 2011) (neither this Court nor the Supreme Court has determined whether a potential intervenor must even have Article III standing); Greene/Guilford Envtl. Assn v. Wykle, 94 F. Appx 876, 878 n.2 (3d Cir. 2004) (noting disagreement between circuits as to whether intervenors must demonstrate standing to intervene under Fed. R. Civ. P. 24). 12


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The better reasoning, adopted by a number of other Circuits, is that Article III standing is not required for defendant intervention where there is an ongoing case or controversy. See, e.g., San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc); United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992) (intervenors standing was immaterial in the lower court [because of the presence of original parties]); U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (The existence of a case or controversy having been established as between the [existing parties], there was no need to impose the standing requirement upon the proposed intervenor [defendant].); Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir. 1998) (same); Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (same); Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991) (same); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989) (same). The Court should follow this line of cases and, if it does, then the question of whether the House has independent standing here does not arise because there is an ongoing case or controversy. However, even if this Court were required to address the standing question, it is clear from Chadha that the House possesses Article III standing. In Chadha, a private party challenged the constitutionality of a federal statute that the Department declined to defend. 462 U.S. 919. After the Ninth Circuit ruled for the plaintiff, the House and Senate moved to intervene for the purpose of filing a petition for certiorari. Id. at 930 n.5. The Ninth Circuit granted that motion, and the Supreme Court granted the subsequent House and Senate petitions for certiorari, holding over the Departments suggestion otherwise, see Mem. for the Fed. Respt, U.S. House of Representatives v. INS, Nos. 80-2170, -2171, 1981 U.S. S. Ct. Briefs LEXIS 1423, at *4 (Aug. 28, 1981) that Congress is both a proper party to defend the constitutionality of [the statute] and a proper petitioner under [the statute governing petitions for writs of certiorari]. Chadha, 462 U.S. at 939. In so holding, the Supreme Court made crystal 13


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clear that the House and Senate had Article III standing: [A]n appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists . . . because of the presence of the two Houses of Congress as adverse parties. Id. at 931 n.6 (emphasis added). In short, when the Department defaults on its constitutional obligation to defend Acts of Congress, as it has here, the House may intervene and, when it does, it has Article III standing. See also Ameron, Inc. v. U.S. Army Corps of Engrs, 787 F.2d 875, 880, 888 & n.8 (3d Cir.), affd, 809 F.2d 979 (3d Cir. 1986) (congressional intervenors were proper parties for purpose of supporting constitutionality of challenged federal statute and had standing: parties agree, and we concur, that Congress has standing to intervene whenever the executive declines to defend a statute or, as in this case, actually argues that it is unconstitutional). In keeping with Chadha, congressional entities including specifically the House through its Bipartisan Legal Advisory Group repeatedly have intervened to defend the constitutionality of legislation the Department has refused to defend. See supra pp. 3 n.2, 5-6. None of these cases suggest that the congressional entities lacked Article III standing when the Department refused to defend the constitutionality of legislation. CONCLUSION For all the foregoing reasons, the Court should grant the Houses motion to intervene for the limited purpose of defending DOMA, an Act of Congress, against constitutional challenge. Respectfully submitted, /s/ H. Christopher Bartolomucci Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson

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Filed 11/04/11 Page 15 of 16

BANCROFT PLLC8 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 202/234-0090 (phone) 202/234-2806 (fax) Counsel for Proposed Intervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives9

Of Counsel Kerry W. Kircher, General Counsel Christine Davenport, Sr. Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 202/225-9700 (phone) 202/226-1360 (fax) November 4, 2011

Kerry W. Kircher, as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory H. Christopher Bartolomucci. The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this memorandum.9

8

15


Filed 11/04/11 Page 16 of 16

CERTIFICATE OF SERVICE I hereby certify that on November 4, 2011, I electronically filed the foregoing Memorandum of Points and Authorities in Support of Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose, with the Clerk of the Court for the U.S. District Court for the Eastern District of Pennsylvania using the CM/ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the CM/ECF system.

/s/ Kerry W. Kircher Kerry W. Kircher

16

Case 2:11-cv-00045-CDJ Document 59-1


Exhibit A

Case: 10-2204 Case 2:11-cv-00045-CDJ Document 1 Document: 00116221480 Page: 59-1 Date Filed: 06/16/2011 2 of 4 ID: 5558549 Filed 11/04/11 Page Entry

United States Court of AppealsFor the First Circuit

No. 10-2204 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Defendants, Appellants. ________________________ No. 10-2207 NANCY GILL, ET AL., Plaintiffs, Appellees, KEITH TONEY; ALBERT TONEY, III, Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants, HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State, Defendant. _________________________ No. 10-2214


DEAN HARA, Plaintiff, Appellee/Cross - Appellant, NANCY GILL, ET AL., Plaintiffs - Appellees, KEITH TONEY, ET AL., Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants/Cross - Appellees, HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State, Defendant.

ORDER OF COURT Entered: June 16, 2011 The motion of the Bipartisan Legal Advisory Group of the United States House of Representatives ("the House") to intervene as a party appellant is granted. The federal defendants' motion to withdraw their opening brief is denied; however, the federal defendants may file a superseding brief. Briefing shall proceed on the following schedule: 30 days after order allowing intervention: Opening brief of intervenor (the House) in Nos. 10-2204 and 10-2207 Superseding brief of appellants (the federal defendants) in Nos. 10-2204 and 10-2207 30 days from above filings: Response brief of appellee (Commonwealth of Massachusetts) in No. 10-2204 Response brief of appellees (the Gill plaintiffs) in No. 10-2207 combined with opening brief of cross-appellant (Dean Hara) in No. 10-2214 30 days from above filings: Reply brief of intervenor (the House) in Nos. 10-2204 and 10-2207 Reply brief of appellants (the federal defendants) in Nos. 10-2204 and 10-2207, combined with response brief of cross-appellees (the federal defendants) in No. 10-2214


14 days from above filings: Reply brief of cross-appellant (Dean Hara) in No. 10-2214 So ordered. By the Court: /s/ Margaret Carter, Clerk.

cc: Counsel of Record



Exhibit B

Case 4:04-cv-00848-TCK -TLW Document 181 Filed in USDC ND/OK on 08/05/11 Page 1 of 2 Case 2:11-cv-00045-CDJ Document 59-2 Filed 11/04/11 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHO MA (1) MARY BISHOP; (2) SHARON BALDWIN; (3) SUSAN G. BARTON; and (4) GAY E. PHILLIPS, individuals. Plaintiffs, v. (1) UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States of America; and (2) SALLY HOWE SMITH, in her official` capacity as Court Clerk for Tulsa County, State of Oklahoma. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 04-CV-848-TCK-TLW

ORDER Before the Court is the Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) to Intervene for a Limited Purpose (Doc. 178), which is unopposed to the extent it seeks intervention pursuant to Federal Rule of Civil Procedure 24(b)(1)(A). Such motion (Doc. 178) is GRANTED. BLAG shall be permitted to intervene pursuant to Rule 24(b)(1)(A). BLAGs motion to intervene is sufficient to satisfy Rule 24(c), and BLAG is not required to file an Answer. Also before the Court is Plaintiffs Motion for Scheduling Conference (Doc. 176), which is unopposed. Such motion (Doc. 176) is GRANTED. The Court refers the matter of conducting the scheduling conference to Magistrate Judge T. Lane Wilson.

1

Case 4:04-cv-00848-TCK -TLW Document 181 Filed in USDC ND/OK on 08/05/11 Page 2 of 2 Case 2:11-cv-00045-CDJ Document 59-2 Filed 11/04/11 Page 3 of 3

IT IS SO ORDERED this 5th day of August, 2011.

____________________________________ TERENCE KERN UNITED STATES DISTRICT JUDGE

2



Exhibit C

Case 2:11-cv-01267-SVW -JCG Document 25 59-3 07/13/11 Page Page 2 Page ID #:403 Case 2:11-cv-00045-CDJ Document Filed Filed 11/04/11 1 of 1 of 2

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIACIVIL MINUTES - GENERAL Case No. Title CV 11-01267 SVW (JCGx) Date July 13, 2011

Handi Lui & Michael Ernest Roberts v. Eric H. Holder, Jr. et al.

Present: The Honorable Paul M. Cruz Deputy Clerk

STEPHEN V. WILSON, U.S. DISTRICT JUDGE N/A Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: N/A Proceedings:

Attorneys Present for Defendants: N/A

IN CHAMBERS ORDER re Motion to Intervene for a Limited Purpose filed by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives [12]

The Motion to Intervene is GRANTED. The Court adopts the reasoning in Windsor v. United States, No. 1:10-cv-08435-BSJ-JCF (S.D.N.Y. June 2, 2011) (ECF No. 26). Additionally, the Court notes that like the cases in the Second Circuit relied upon in Windsor, the Ninth Circuit has suggested that it "does not require independent Article III standing for intervenors." Prete v. Bradbury, 438 F.3d 949, 956 n.8 (9th Cir. 2006). Finally, as to Plaintiffs' objection to BLAG's request for a waiver of its obligation to file an answer, the Court notes that BLAG has now filed a Motion to Dismiss, eliminating Plaintiffs' concerns about BLAG's position in the litigation.

: Initials of PreparerCV-90 (06/04) CIVIL MINUTES - GENERAL

PMCPage 1 of 1



Exhibit D

Case 2:11-cv-00045-CDJ Document 59-4 Filed06/10/11 Page1 of 1 2 Case4:10-cv-01564-CW Document88 Filed 11/04/11 Page 2 of

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) MICHAEL DRAGOVICH, et al., ) ) Plaintiff, ) ) vs. ) ) U.S. DEPARTMENT OF THE TREASURY, et al., ) ) Defendants. ) __________________________________________) ORDER UPON CONSIDERATION OF the Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose (Motion), the Opposition, and the entire record herein, it is by the Court this 10th day of June, 2011, ORDERED THAT the Motion is GRANTED. The group may intervene for the limited purpose of litigating--in the context of a motion or cross-motions for summary judgment--the constitutionality of Section III of DOMA under the equal protection component of the Fifth Amendment's Due Process Clause, and/or noticing an appeal from any final judgment of this Court holding that DOMA is not constitutional under the equal protection component of the Fifth Amendment's Due Process Clause. ______________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 1 No. CV 4:10-01564-CW ORDER GRANTING MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO INTERVENE FOR A LIMITED PURPOSE



Exhibit E

Case 2:11-cv-00045-CDJ Document 59-5 Filed06/03/11 Page1 2 of22 Case3:10-cv-00257-JSW Document103-1 Filed 11/04/11 Page ofof 3 Case3:10-cv-00257-JSW Document116 Filed05/04/11 Page1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) KAREN GOLINSKI, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) __________________________________________) Case No. 3:10-cv-0257-JSW

ORDER GRANTING THE MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO INTERVENE FOR A LIMITED PURPOSE

[PROPOSED] ORDER UPON CONSIDERATION OF the Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose (Motion), Plaintiffs 3rd Opposition, if any, and the entire record herein, it is by the Court this ____ day of _________, June 2011, ORDERED that the Motion is GRANTED. JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE Copies to: Paul D. Clement, Esq. H. Christopher Bartolomucci, Esq. Conor B. Dugan, Esq. BANCROFT PLLC 1919 M Street, N.W. Suite 470 Washington, DC 20006 Kerry W. Kircher Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515

Case 2:11-cv-00045-CDJ Document 59-5 Filed06/03/11 Page2 3 of22 Case3:10-cv-00257-JSW Document103-1 Filed 11/04/11 Page ofof 3 Case3:10-cv-00257-JSW Document116 Filed05/04/11 Page2

James R. McGuire Gregory P. Dresser Rita F. Lin Aaron D. Jones MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Jon W. Davidson Tara L. Borelli LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010-1729 Christopher R. Hall, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch Room 7128 20 Massachusetts Ave., N.W. Washington, DC 20001



Exhibit F

Case 1:10-cv-08435-BSJ -JCF Document 26 Filed 11/04/11 Page 2 1 of 12 Case 2:11-cv-00045-CDJ Document 59-6 Filed 06/02/11 Page of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -: EDITH SCHLAIN WINDSOR, in her : capacity as Executor of the : Estate of THEA CLARA SPYER, : : Plaintiff, : : - against : : THE UNITED STATES OF AMERICA, : : Defendant. : - - - - - - - - - - - - - - - - - -: JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

(ECF)

10 Civ. 8435 (BSJ) (JCF) MEMORANDUM AND ORDER

Plaintiff Edith Schlain Windsor brings this action challenging the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7. The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) has filed a motion to intervene as a party defendant pursuant to Rule 24 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted. Background Ms. Windsor and Thea Clara Spyer were married in 2007

following a 40-year engagement. (Amended Complaint (Am. Compl.), 2, 3, 26). In 2009, Ms. Spyer passed away. (Am. Compl., 51). Although their marriage was recognized by New York State, DOMA prevented the federal government, and, in particular, the Internal Revenue Service (IRS), from treating them as a married couple. 1


(Am. Compl., 42-45, 60-61).

As a result, Ms. Spyers estate was

required to pay $363,053 in federal tax that would have been waived by the estate tax marital deduction had the IRS recognized their marriage. (Am. Compl., 62, 72-75, 78). Ms. Windsor, the

executor of Ms. Spyers estate, filed a Claim for Refund with the IRS, seeking return of the $363,053; her request was denied on the ground that DOMA restricts the definition of spouse to a person of the opposite sex.1 (Am. Compl., 76-77).

Ms. Windsor filed this action on November 9, 2010, arguing that the IRSs refusal to apply the estate tax marital deduction to her wifes estate -- and by extension DOMA itself -- discriminated against her on the basis of her sexual orientation in violation of the equal protection clause of the Fifth Amendment to the United States Constitution. (Am. Compl., 84-85). The Department of

Justice (the DOJ) appeared on behalf of the defendant, the United States of America, and an amended complaint was filed on February

1

Section 3 of DOMA provides that

[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7. 2


2, 2011.

Soon thereafter, however, the Department of Justice gave

notice to the plaintiff and this Court that it would cease defending the constitutionality of Section 3 of DOMA because the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; [and] that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law . . . . (Notice to the Court by Defendant United States of America dated Feb. 25, 2011 (2/25/11 Notice) at 1 & Exh. 1). The DOJ also notified Representative John A. Boehner, Speaker of the United States House of Representatives (the House), of its change in position and expressed its interest in providing

Congress a full and fair opportunity to participate in [this] litigation while still remain[ing] parties to the case and continu[ing] to represent the interests of the United States throughout the litigation. (Letter of Eric H. Holder, Jr., dated On

Feb. 23, 2011, attached as Exh. 2 to 2/25/11 Notice, at 5-6).

March 9, 2011, BLAG decided to seek approval to intervene in this litigation to defend the constitutionality of Section 3 of DOMA. (Memorandum of Points and Authorities in Support of the Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose (BLAG Memo.)

3


at

2).

Neither

the

plaintiff

nor

the

DOJ

opposes

BLAGs

intervention; however, the DOJ asks that BLAGs involvement be limited to making substantive arguments in defense of Section 3 of DOMA while the DOJ continues to file all procedural notices. (Defendants Memo.)). Response to the Motion to Intervene (DOJ Opp.

BLAG does not acquiesce in this request, which it (Reply

contends would relegate it to the status of amicus curiae.

of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG Reply Memo.) at 2, 6-9). Discussion A. Intervention BLAG seeks intervention pursuant to Rule 24 of the Federal Rules of Civil Procedure, which states in relevant part: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest. (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene 4


by a federal statute . . . . BLAG first argues that its intervention is appropriate

pursuant to subsection (a)(1), or, in the alternative, subsection (b)(1)(A), because it is authorized by 28 U.S.C. 2403(a). Memo. at 4-5). (BLAG

However, that statute only authorizes the United

States to intervene in an action where the United States or any agency, officer or employee thereof is not a party. 2403(a) (emphasis added). 28 U.S.C.

Here, the United States of America is

already a party to the litigation, and thus the statute does not authorize BLAGs intervention, either permissively or as of right.2 BLAG also seeks to intervene pursuant to subsection (a)(2) of Rule 24 of the Federal Rules of Civil Procedure. at 9 n.3). (BLAG Reply Memo.

Such intervention is appropriate where:

(1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicants ability to protect its interest; and (4) the applicants interest is not adequately represented by the other parties.

Although there is a statute that contemplates intervention by the Senate in defense of the constitutionality of statutes, see 2 U.S.C. 288a-288n, and federal law requires the Attorney General to notify both houses of Congress when it intends not to defend the constitutionality of any statute, see 28 U.S.C. 530D, there is no statute explicitly authorizing intervention by the House (or any subgroup or representative thereof) to defend the constitutionality of a statute. 5

2


United States v. New York State Board of Elections, 312 Fed. Appx. 353, 354 (2d Cir. 2008) (quoting MasterCard International Inc. v.

Visa International Service Association, Inc., 471 F.3d 377, 389 (2d Cir. 2006)). Although failure to satisfy any of these requirements justifies denial of the motion, courts apply them in a flexible and discretionary way, considering all four factors as a whole rather than focusing narrowly on any one of the criteria. Cole

Mechanical Corp. v. National Grange Mutual Insurance Co., No. 06 Civ. 2875, 2007 WL 2593000, at *2 (S.D.N.Y. Sept. 7, 2007) (quoting Tachiona ex rel. Tachiona v. Mugabe, 186 F. Supp. 2d 383, 394 (S.D.N.Y. 2002) (Tachiona I)). BLAG has fulfilled all four prerequisites. First, the DOJ

does not dispute that this motion is timely, and there is no evidence of delay in its filing. See id. at *4 (finding motion to

intervene timely absent excessive delay or prejudice to existing parties). Second, BLAG has a cognizable interest in defending the

enforceability of statutes the House has passed when the President declines to enforce them. See Barnes v. Kline, 759 F.2d 21, 23 n.3

(D.C. Cir. 1985) (noting district court allowed BLAGs intervention pursuant to Rule 24(a)(2) to challenge presidential pocket veto of legislation passed by House), vacated on other grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987). In recognition of this

interest, courts have permitted Congress to intervene as a full 6


party in numerous cases where the Executive Branch declines to enforce a statute that is alleged to be unconstitutional, although they have often neglected to explain their rationale for doing so. See, e.g., Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991); Lear Siegler, Inc., Energy Products Division v. Lehman, 893 F.2d 205, 206 (9th Cir. 1989); In re Benny, 812 F.2d 1133, 1135 (9th Cir. 1987); Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir. 1986); Matter of Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986). Third, BLAG may be unable to

advance its arguments regarding the constitutionality of Section 3 of DOMA in any forum should it be denied intervention here and should the statute subsequently be declared unconstitutional in the course of this litigation. Finally, BLAGs interests are not

currently being adequately represented in this action, particularly in light of the minimal burden for demonstrating inadequacy of representation. New York State Board of Elections, 312 Fed. Appx.

at 354 (quoting Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001)); see also Brennan v. New York City Board of Education, 260 F.3d 123, 132-33 (2d Cir. 2001) (The test [] is not whether [the defendant] did well on behalf of [the intervenors] . . . but whether the [defendant]s interests were so similar to those of [the intervenors] that adequacy of

representation was assured.). The DOJ has made clear that it will 7


not defend the constitutionality of Section 3 of DOMA in any way, while such a defense is precisely what BLAG wishes to undertake here. Therefore, intervention pursuant to Rule 24(a)(2) of the

Federal Rules of Civil Procedure is justified. The DOJ asks that BLAG be permitted to appear in this action only for the limited purpose of present[ing] arguments in support of the constitutionality of Section 3 of DOMA, while the DOJ would continue to file all procedural motions, including notices of appeal and petitions for certiorari, that are necessary to ensure that this Court can consider arguments on both sides of the constitutional issue. (DOJ Opp. Memo. at 2-3). As established

above, however, BLAG is entitled to intervene in this action as a party defendant, which enables it to make such procedural motions on its own. See INS v. Chadha, 462 U.S. 919, 930 n.5, 939 (1983)

(finding House to be proper petitioner for certiorari following its intervention to defend constitutionality of statute that

executive agency had declined to defend).

Furthermore, there is

no clear precedent for the DOJs requested protocol. The DOJ cites two cases to support its contention that [t]his approach is consistent with what the [DOJ] has done in prior cases in which the Executive Branch has taken the position that an Act of Congress is unconstitutional but announced its intention to enforce or comply with the law pending a final judicial determination . . . . 8 (DOJ

Case 1:10-cv-08435-BSJ -JCF Document 26 Filed 11/04/11 Page 109of 13 Case 2:11-cv-00045-CDJ Document 59-6 Filed 06/02/11 Page of 12

Opp. Memo. at 2-3).

However, in the first of these, the Houses of

Congress were plainly also parties to the litigation with authority to petition for review if desired. Chadha, 462 U.S. at 930-31 nn.

5, 6. In the second, a case from 1946, the procedural necessity of the Solicitor Generals filing the petition for certorari review is never discussed or made explicit. U.S. 303, 305-07 (1946). United States v. Lovett, 328

The DOJ continues to represent a party

to the present litigation and may certainly file any petitions or appeals that it chooses. However, there is no good precedent for Therefore, the

preventing BLAG from intervening as a full party.

DOJs request that BLAGs participation be circumscribed is denied. B. Standing The DOJs desire to remain the sole defendant for procedural purposes appears premised on the contention that BLAG does not have standing to intervene in this action as a party any more than citizens with a generalized grievance would have standing to do so because Congresss interest in the constitutional validity of a law does not confer standing. (DOJ Opp. Memo. at 2). This

characterization is incorrect. The Second Circuit does not require intervenors to establish independent Article III standing as long as there is an ongoing case or controversy between the existing parties to the litigation. See United States Postal Service v.

Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (The existence of a case 9

Case 1:10-cv-08435-BSJ -JCF Document 26 Filed 11/04/11 Page 11 ofof 12 Case 2:11-cv-00045-CDJ Document 59-6 Filed 06/02/11 Page 10 13

or controversy having been established as between the [named parties], there was no need to impose the standing requirement upon the proposed intervenor.); 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 1908 (3d ed. 2007); see also Chadha, 462 U.S. at 939 (Congress is . . . a proper party to defend the constitutionality of [the challenged statute].); Ameron, 787 F.2d at 888 n.8 (However, the parties agree, and we concur, that Congress has standing to intervene whenever the executive declines to defend a statute or, as in this case, actually argues that it is unconstitutional.); cf. Tachiona v. United States, 386 F.3d 205, 211 (2d Cir. 2004) (requiring intervenor to demonstrate standing where intervention was solely for purpose of appeal and losing party did not join appeal (citing Diamond v. Charles, 476 U.S. 54, 68 (1986))). standing to intervene in this Therefore, BLAG has to defend the

litigation

constitutionality of Section 3 of DOMA. C. Pleading Requirements Rule 24(c) of the Federal Rules of Civil Procedure requires all intervenors to submit a pleading setting out the claim or defense for which intervention is sought. Where, however, the

position of the movant is apparent from other filings and where the opposing party will not be prejudiced, Rule 24(c) permits a degree of flexibility with technical requirements. 10 Tachiona I, 186 F.


Supp. 2d at 393 n.8; see also Official Committee of Asbestos Claimants of G-I Holding, Inc. v. Heyman, No. 01 Civ. 8539, 2003 WL 22790916, at *4 (S.D.N.Y. Nov. 25, 2003) (allowing intervenor to adopt claims already asserted by plaintiff where no prejudice would be caused to either party). BLAG asks this Court to waive its obligation to file an answer, arguing that its motion to intervene is sufficient to put the plaintiff on notice of its intent to defend[] Section [3 of DOMA] on equal protection grounds. does not oppose this request. (BLAG Memo. at 7). The DOJ

(BLAG Memo. at 7; DOJ Opp. Memo.).

Waiver of the pleading requirement is justified here because BLAGs position on the subject matter of the litigation is clearly

articulated in its motion papers.

Furthermore, the plaintiff

appears to have waived the DOJs obligation to file an answer, and the parties are preparing to make cross-motions dated May for 11, summary 2011).

judgment.

(Revised

Scheduling

Order

Therefore, BLAG is not required to file an answer at this time. Conclusion For the reasons set forth above, BLAGs motion to intervene as a party defendant (Docket No. 12) is granted.

11




Exhibit G

SDSD District Version 1.3

https://ecf.ctd.uscourts.gov/cgi-bin/DktRpt.pl?97203586498136-L_452_0-1


Filed 11/04/11 Page 2 of 3EFILE

U.S. District Court United States District Court for the District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:10-cv-01750-VLB

Pedersen et al v. Office of Personnel Management et al Assigned to: Judge Vanessa L. Bryant Cause: 28:2201 Declaratory Judgment Plaintiff Joanne Pedersen

Date Filed: 11/09/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

represented by Gary D Buseck Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Janson Wu Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Karen L. Dowd Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Kenneth James Bartschi Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Mary L Bonauto

1 of 20

8/24/2011 12:20 PM

SDSD District Version 1.3

https://ecf.ctd.uscourts.gov/cgi-bin/DktRpt.pl?97203586498136-L_452_0-1



(Attachments: # 1 Exhibit Proposed Scheduling Order)(Wu, Janson) (Entered: 05/25/2011) 05/27/2011 05/27/2011 54 ORDER granting 53 Consent Motion for Entry of Scheduling Order. See attached. Signed by Judge Vanessa L. Bryant on 5/27/11. (Engel, J.) (Entered: 05/27/2011) 55 ORDER granting 48 Motion to Intervene by the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the "House"). As all parties to this action agree that the House should be permitted to intervene in this matter to defend the constitutionality of Section III of the Defense of Marriage Act, 1 U.S.C. 7, the House's motion is GRANTED. The House and the Department of Justice dispute the specific scope of the House's role in this litigation. The Court reserves judgment on this issue at this time, and will address it in a later ruling. The parties shall proceed with this case in accordance with the Court's Scheduling Order entered with the consent of all parties [Doc. # 54 ]. Signed by Judge Vanessa L. Bryant on 5/27/11. (Engel, J.) (Entered: 05/27/2011) Set Deadlines/Hearings: Discovery due by 7/11/2011; Dispositive Motions due by 7/15/2011 (LaLone, L.) (Entered: 06/01/2011) 56 Joint MOTION for Protective Order by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss.Responses due by 7/29/2011 (Attachments: # 1 Text of Proposed Order Joint Stipulation and Proposed Order Governing Protection and Exchange of Confidential Information)(Dowd, Karen) (Entered: 07/08/2011) 57 MOTION for Leave to File Excess Pages up to 60 Pages in Support of Motion for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/08/2011) 58 ORDER granting 57 Plaintiffs' Motion for Leave to File Memorandum of Law of up to 60 pages. Signed by Judge Vanessa L. Bryant on 7/9/11. (Engel, J.) (Entered: 07/09/2011) 59 ORDER granting 56 Joint Motion for Approval of Stipulation and Order Governing Protection and Exchange of Confidential Information. The Court notes, however, that the Stipulation and Order of Confidentiality shall not effect the parties' obligations regarding documents sought to be filed under seal pursuant to Local Rule 5(e). In accordance with that rule, if the parties seek to seal specific documents, they must file an accompanying motion to seal that includes sufficient factual and legal authority to enable the Court to make "particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons." Signed by Judge Vanessa L. Bryant on 7/9/11. (Engel, J.) (Entered: 07/09/2011) 60 MOTION for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss.Responses due by 8/5/2011 (Buseck, Gary) (Entered: 07/15/2011) 61 Statement of Material Facts re 60 MOTION for Summary Judgment pursuant to Local Rule 56(a)1 filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011) 62 Statement of Material Facts re 60 MOTION for Summary Judgment Non-Adjudicative filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet

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Exhibit H













memorandum of points and authorities in support of motion of the bipartisan legal advisory group of...

Documents

s constitutionality

issue of section

issue of doma section

robust defense of section

united states district

joan farley

farleys answer

jennifer tobits