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Case: 12-3273 Document: 24 Page: 1 08/27/2012 704914 30

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AddendumAdditional Opposing Party:

Office of Personnel Management

Additional Opposing Attorney:Judson O. Littleton, Trial AttorneyUnited States Department of JusticeCivil Division, Federal Programs Branch20 Massachusetts Ave., NWWashington, DC 20530Telephone: (202) 305-8714

[email protected]


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CERTIFICATE OF SERVICE

I certify that on August 27, 2012, I served one copy of the foregoing Motion

of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for

Recognition of Status as a Party to the Appeal by electronic mail to the Second

Circuit address, [email protected], and on the following by

electronic mail (.pdf format) and first-class mail, postage prepaid:

Karen L. DowdKenneth J. Bartschi

HORTON, SHIELDS & KNOX, P.C.90 Gillett StreetHartford, CT [email protected]@hortonshieldsknox.com

Gary D. Buseck Mary L. BonautoVickie L. HenryJanson WuGAY & LESBIAN ADVOCATES & DEFENDERS30 Winter Street, Suite 800Boston, MA [email protected]@[email protected]

[email protected]


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Paul M. SmithLuke C. PlatzerMatthew J. DunneMelissa CoxJENNER & BLOCK1099 New York Avenue, NW, Suite 900Washington, DC [email protected]@[email protected]@jenner.com

David J. NagleSULLIVAN & WORCESTER LLP

One Post Office SquareBoston, MA [email protected]

Judson O. LittletonUNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISIONFederal Programs Branch20 Massachusetts Ave., NWWashington, DC 20530

[email protected]

Helen L. GilbertUNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISIONRoom 7228950 Pennsylvania Avenue, NWWashington, DC [email protected]

Sandra Slack Glover

UNITED STATES ATTORNEYS OFFICE, DISTRICT OFCONNECTICUT23rd Floor157 Church StreetNew Haven, CT [email protected]


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David Christopher NelsonUNITED STATES ATTORNEYS OFFICE, DISTRICT OFCONNECTICUT450 Main StreetHartford, CT [email protected]

/s/ William Pittard

William Pittard


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No. 12-3273____________________

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

____________________

JOANNE PEDERSEN, et al.

Plaintiffs-Appellees ,

v.

OFFICE OF PERSONNEL MANAGEMENT, et al.

Defendants-Appellants ,

and

BIPARTISAN LEGAL ADVISORY GROUPOF THE U.S. HOUSE OF REPRESENTATIVES,

Defendant .____________________

UNOPPOSED MOTION OF THE BIPARTISAN LEGAL ADVISORYGROUP OF THE U.S. HOUSE OF REPRESENTATIVES

FOR RECOGNITION OF STATUS AS A PARTY TO THE APPEAL

The Bipartisan Legal Advisory Group of the U.S. House of Representatives

(House) a party in the court below and the only party defending the

constitutionality of Section 3 of the Defense of Marriage Act against Plaintiffs-

Appellees equal-protection challenge hereby moves the Court to recognize the

House as a party to this appeal.


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The House contacted counsel for Plaintiffs-Appellees and the Executive

Branch. Neither Plaintiffs-Appellees nor the Executive Branch opposes the relief

sought by this motion; both consent to the Houses participation in this appeal.

BACKGROUND

This case concerns the constitutionality of 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, which defines marriage and spouse for purposes of federal law.

Plaintiffs-Appellees, same-sex couples who have obtained marriage certificates

from various states, claim that DOMAs definition of marriage violates the

Constitutions guarantees of equal protection as to them.

As the Court is aware, it is the constitutional responsibility of the President

to take Care that the Laws be faithfully executed, U.S. Const. art. II, 3, and of

the United States Department of Justice (DOJ) in furtherance of that

responsibility to defend the constitutionality of duly-enacted federal laws when

they are challenged in court. Accordingly, prior to February 2011, DOJ repeatedly

defended the constitutionality of DOMA Section 3 against all constitutional

challenges.

In February 2011, however, DOJ abruptly reversed course. The Attorney

General publicly notified Congress of the Presidents and his conclusion that

DOMA Section 3, as applied to same-sex couples who are legally married under


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state law, violates the equal protection component of the Fifth Amendment, and

their decision that, as a result, DOJ no longer would defend Section 3 in court

against equal protection challenges. Letter from Eric H. Holder, Jr., Atty Gen., to

the Honorable John A. Boehner, Speaker, U.S. House of Representatives at 1, 5

(Feb. 23, 2011) (Holder Letter), attached as Ex. 1. 1 The Attorney General,

however, recognized the role of the judiciary as the final arbiter of the

constitutional claims raised, and the need for adversarial presentation of the issues

to the judiciary, and so committed to providing Congress a full and fair

opportunity to participate in the litigation. Id. at 5, 6.

In response, the House determined to defend DOMA Section 3 in civil

actions in which that statutes constitutionality has been challenged. Specifically,

the Bipartisan Legal Advisory Group, through which the House articulates its

institutional litigation positions, and which directs the House General Counsel,

1 In so deciding, the Attorney General acknowledged, correctly, that (i) DOJhas a longstanding practice of defending the constitutionality of duly-enactedstatutes if reasonable arguments can be made in their defense, Holder Letter at 5;(ii) binding precedents of ten U.S. Circuit Courts of Appeals (actually eleven) hadrejected his conclusion that sexual orientation classifications are subject to aheightened standard of scrutiny, and instead had held that rational-basis scrutiny is

appropriate for such classifications, id . at 3-4 nn.4-6; and (iii) reasonableargument[s] for Section 3s constitutionality may be proffered under th[e] [rationalbasis] standard, id. at 6. In short, the Attorney General effectively conceded thatthe decision to abandon the defense of DOMA Section 3 was a sharp departurefrom past precedent and was not predicated primarily on constitutional or otherlegal considerations.


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instructed the General Counsel to initiate a legal defense of [DOMA Section 3].

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.

While the House most often appears in judicial proceedings as amicus

curiae ,2 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 abandoned its responsibility to do so. 3

2 See, e.g ., Br. of Amicus Curiae the Bipartisan Legal Advisory Group of the U.S. House of Representatives in Supp. of Petr, Renzi v. United States (U.S.Dec. 2, 2011) (No. 11-557), 2011 WL 6019914; Dickerson v. United States , 530U.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); In re Grand Jury Subpoenas , 571 F.3d 1200 (D.C. Cir. 2009);Fields v. Office of Eddie Bernice Johnson , 459 F.3d 1, 3 (D.C. Cir. 2006) (enbanc); Beverly Enters., Inc. v. Trump , 182 F.3d 183, 186 (3d Cir. 1999); United States v. McDade , 28 F.3d 283, 286 (3d Cir. 1994); In re Search of the 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).

3 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); In re Koerner , 800 F.2d 1358,1360 (5th Cir. 1986); Synar v. United States , 626 F. Supp. 1374, 1378-79 (D.D.C.),affd sub nom. Bowsher v. Synar , 478 U.S. 714 (1986); Ameron, Inc. v. U.S. Army

(Continued . . . )


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With respect to its defense of DOMA, over the past twelve months, the

House has moved to intervene in fifteen cases, including this case, that present the

issue of DOMA Section 3s constitutionality. All fourteen federal courts that have

ruled to date on such House motions to intervene, including the district court

below, have permitted House intervention. 4

Corps of Engrs , 607 F. Supp. 962, 963 (D.N.J. 1985), affd , 809 F.2d 979 (3d 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. 1985), revd on mootness grounds subnom. 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); Inre Tom Carter Enters., Inc. , 44 B.R. 605, 606 (C.D. Cal. 1984); In re Benny , 44B.R. 581, 583 (N.D. Cal. 1984), affd in part & dismissed in part , 791 F.2d 712(9th Cir. 1986).

4 See Minute Order, Pedersen v. U.S. Office of Pers. Mgmt. , No. 3:10-cv-01750 (D. Conn. May 27, 2011) (ECF No. 55); see also Order, Torres-Barragan v.

Holder , No. 10-55768 (9th Cir. Apr. 10, 2012) (ECF No. 56); Order of Ct., Massachusetts v. U.S. Dept of HHS , Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.June 16, 2011) (ECF No. 5558549); Order, Blesch v. Holder , No. 1:12-cv-01578(E.D.N.Y. May 31, 2012); Minutes (In Chambers): Order, Cooper-Harris v. United States , No. 2:12-cv-00887 (C.D. Cal. May 22, 2012); Electronic Order,

McLaughlin v. Panetta , No. 1:11-cv-11905 (D. Mass. May 16, 2012); Mem. Op. &Order at 16-20, Revelis v. Napolitano , No. 1:11-cv-01991 (N.D. Ill. Jan. 5, 2012)(ECF No. 33); Order, Cozen OConnor, P.C. v. Tobits , No. 2:11-cv-00045 (E.D.Pa. Dec. 16, 2011) (ECF No. 82); Order, Bishop v. United States , No. 4:04-cv-00848 (N.D. Okla. Aug. 5, 2011) (ECF No. 181); Order, Lui v. Holder , No. 2:11-cv-01267 (C.D. Cal. July 13, 2011) (ECF No. 25); Order Granting Mot. of [the

House] to Intervene for a Limited Purpose, Dragovich v. U.S. Dept of theTreasury , No. 4:10-cv-01564 (N.D. Cal. June 10, 2011) (ECF No. 88); OrderGranting 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); Windsor v. United States , 797 F. Supp.2d 320, 323-24 (S.D.N.Y. 2011);Stamp Order, Cardona v. Shinseki , No. 11-3083 (Vet. App. May 23, 2012).


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PROCEDURAL HISTORY

The Houses Intervention in This Case, and the Current Appeal: Plaintiffs-

Appellees in this case are several same-sex couples who have obtained marriage

certificates from various states. They seek, among other things, declarations that

DOMA Section 3 is unconstitutional in various broad contexts, and corresponding

injunctions against its enforcement. See First Am. Compl. pp. 77-80 (Prayers for

Relief), Pedersen v. OPM , No. 3:10-cv-01750 (Jan. 14, 2011) (ECF No. 33).

Following the Attorney Generals public announcement in February 2011,

DOJ notified the district court that it no longer would defend the constitutionality

of DOMA Section 3 in this case. See Notice to Ct. at 1, Pedersen , No. 3:10-cv-

01750 (Feb. 25, 2011) (ECF No. 39). The district court then suspended all

deadlines in the case to permit Congress to intervene. Order, Pedersen , No. 3:10-

cv-01750 (Mar. 9, 2011) (ECF No. 43). The House then intervened, without

opposition from any party. See Mot. to Intervene for a Limited Purpose at 2,

Pedersen , No. 3:10-cv-01750 (Apr. 26, 2011) (ECF No. 48); Order, Pedersen , No.

3:10-cv-01750 (May 27, 2011) (ECF No. 55) (granting House motion to

intervene).

In July 2011, Plaintiffs-Appellees moved for summary judgment, see Mot.

for Summ. J., Pedersen , No. 3:10-cv-01750 (July 15, 2011) (ECF No. 60), and in

August 2011 the House moved to dismiss, see [House]s Mot. to Dismiss, No.


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3:10-cv-01750 (Aug. 15, 2011) (ECF No. 80). DOJ aligned itself with Plaintiffs-

Appellees, as it has done in other cases, and filed a brief arguing that DOMA is

unconstitutional and indeed that the Congress that enacted DOMA many of

whose Members still serve did so out of animus. Defs Mem. of Law in Resp.

to Pls. Mot. for Summ. J. & [House]s Mot. to Dismiss at 9 n.1, 28-30, 34,

Pedersen , No. 3:10-cv-01750 (Sept. 14, 2011) (ECF No. 98). DOJ has filed

similar briefs attacking DOMAs constitutionality in other DOMA cases. 5 The

House was the only party to defend DOMAs constitutionality.

On July 31, 2012, the district court ruled, without oral argument, that

DOMA violates the equal protection principles incorporated in the Fifth

Amendment. Order at 104, Pedersen , No. 3:10-cv-01750 (ECF No. 116).

5 See, e.g. , Br. for the United States, Windsor v. United States , Nos. 12-2335, 12-2435 (2d Cir. Aug. 10, 2012) (ECF No. 120); Superseding Br. for theU.S. Dept of HHS, Massachusetts v. U.S. Dept of HHS , Nos. 10-2204, 10-2207,& 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082); Mem. in Oppn to[House]s Mot. to Dismiss Pls. Compl., Revelis v. Napolitano , No. 1:11-cv-01991(N.D. Ill. Apr. 9, 2012) (ECF No. 50); Fed. Defs. Br. in Partial Supp. of Pls. Mot.for Summ. J., Dragovich v. U.S. Dept of Treasury , No. 4:10-cv-01564 (N.D. Cal.Jan. 19, 2012) (ECF No. 108); Br. of [DOJ] Regarding the Constitutionality of Section 3 of DOMA, Cozen OConnor, P.C. v. Tobits , No. 2:11-cv-00045 (E.D.Pa. Dec. 30, 2011) (ECF No. 97); Resp. of Defs. [DOJ] to [House]s Cross-Mot.

for Summ. J., Bishop v. United States , No. 4:04-cv-00848 (N.D. Okla. Nov. 18,2011) (ECF No. 225); Defs. Oppn to [House]s Mot. to Dismiss, Lui v. Holder ,No. 2:11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28); Defs. Br. in Oppn toMots. to Dismiss at 3-23, Golinski v. OPM , No. 3:10-cv-00257 (N.D. Cal. July 1,2011) (ECF No. 145) (arguing in all of these briefs that Section 3 is subject toheightened scrutiny and is unconstitutional under that standard).


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Judgment was entered on August 2, 2012. See Judgment, Pedersen , No. 3:10-cv-

01750 (ECF No. 118). Fifteen days later, despite having obtained all the relief it

sought in the district court, DOJ filed a notice of appeal, see Notice of Appeal,

Pedersen , No. 3:10-cv-01750 (Aug. 17, 2012) (ECF No. 119). The House, as an

intervenor-defendant, is entitled to notice its own appeal, see, e.g. , Stringfellow v.

Concerned Neighbors in Action , 480 U.S. 370, 375-76 (1987) (An intervenor,

whether by right or by permission, normally has the right to appeal an adverse final

judgment by a trial court.), which would be due by October 1, 2012. See 28

U.S.C. 2107(b). The House currently is considering whether to file its own

appeal.

The Need for the Instant Motion: DOJs appeal was docketed in this Court

on August 21, 2012. That same day, Plaintiffs-Appellees filed a Motion to

Expedite Appeal (ECF No. 9) and also a Petition for a Writ of Certiorari Before

Judgment in the United States Supreme Court, see Pet. for Writ of Cert. Before J.,

Pedersen v. OPM (S. Ct. Aug. 21, 2012) (No. 12-231), 2012 WL 3613467 (Cert.

Pet.). In their Motion to Expedite, Plaintiffs-Appellees named the House as the

opposing party. ECF No. 9 at 1. Plaintiffs-Appellees expressly requested that

the Houses merits brief in this case be filed by September 12, 2012. Mem. of L.

in Supp. of Mot. for Expedited Appeal at 3 (ECF No. 9). In their Cert. Petition,

Plaintiffs-Appellees listed the House as one of the Parties to the Proceeding and


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referred to the House as the Intervenor-Appellant in the Court of Appeals. Cert.

Pet. at ii.

On August 22, 2012, personnel from this Courts Clerks Office contacted

counsel for the House, inquiring whether the House intended to file a response to

the motion to expedite. However, the Clerks Office personnel now have advised

the House that, because the House is not designated as a party in this case, it will

not be permitted to file documents with the Court unless the House receives such

status (or else files its own appeal and obtains consolidation of the two). Further

discussions between counsel for the House and the Clerks Office have made clear

that a motion such as this one is the appropriate way to clarify the Houses status

as a party to this appeal.

ARGUMENT

The House seeks an order of the Court recognizing the House as a party to

this appeal. The Supreme Court has long held that Congress is the proper party to

defend the validity of a statute when an agency of government agrees with

Plaintiffs-Appellees that the statute is inapplicable or unconstitutional. INS v.

Chadha , 462 U.S. 919, 940 (1983). And in this case, from the Attorney Generals

initial letter regarding DOJs abandonment of DOMAs defense, to the Houses

intervention in the court below, to Plaintiffs-Appellees filings in this appeal and

before the Supreme Court in this case, every party has contemplated that the


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defense of DOMA would be undertaken by the House. But that is not possible if

the House is prevented from filing pleadings because the Clerk does not recognize

the House as a party to the appeal.

Consistent with the Supreme Courts holding in Chadha , the House was a

party to the proceedings and judgment below, having been granted intervention by

the district court. Indeed, the House is the only party in this case whose interests

are adverse to those of the other parties DOJ and Plaintiffs-Appellees all share

the position that DOMA is unconstitutional and that Plaintiffs-Appellees are

entitled to the relief they seek. DOJs purported appeal of the district courts

judgment certainly is not an expression of disagreement with it. In this Court and

the Ninth Circuit, DOJ has submitted merits briefs in other DOMA cases arguing

that DOMA is unconstitutional and defending district court judgments to that

effect. See Br. for the U.S., Windsor v. United States , Nos. 12-2335 & 12-2435 (2d

Cir. Aug. 10, 2012) (ECF No. 120); Br. for the Office of Pers. Mgmt., et al.,

Golinski v. OPM , Nos. 12-15388 & 12-15409 (9th Cir. July 3, 2012) (ECF No. 82).

It has taken the same position before the Supreme Court. E.g. , Pet. for a Writ of

Cert., U.S. Dept of HHS v. Massachusetts (S. Ct. July 3, 2012) (No. 12-15), 2012

WL 2586937. The instant appeal, then, is merely DOJs attempt to obtain this

Courts affirmance of the judgment below. It makes no sense for the Court to


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proceed with an appeal without the participation of the only party to the case that

opposes the appellant, and the relief the appellant seeks from this Court.

The House urges the Court to rule promptly on this unopposed motion. As

noted above, Plaintiffs-Appellees moved on August 21, 2012, to expedite this

appeal, and earlier today they asked the Court to shorten the Houses time to

respond to that motion from Tuesday, September 4, 2012, to Wednesday, August

29, 2012. See Letter to Clerk (Aug. 27, 2012) (ECF No. 21). 6

CONCLUSION

The Court should enter an order permitting the House to file documents on

the docket as a party to this appeal.

Respectfully submitted,

/s/ H. Christopher BartolomucciPaul D. ClementH. Christopher BartolomucciNicholas J. Nelson

BANCROFT PLLC1919 M Street, N.W., Suite 470Washington, D.C. 20036(202) 234-0090

6 Because the House cannot yet use the ECF system to file in this case,

attached as Ex. 2 is the Houses response to Plaintiffs-Appellees August 27, 2012letter (ECF No. 21).


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Counsel for the Bipartisan Legal AdvisoryGroup of the U.S. House of Representatives 7

Of Counsel:

Kerry W. Kircher, General CounselWilliam Pittard, Deputy General CounselChristine Davenport, Senior Assistant CounselTodd B. Tatelman, Assistant CounselMary Beth Walker, Assistant Counsel

OFFICE OF GENERAL COUNSELU.S. HOUSE OF REPRESENTATIVES219 Cannon House Office Building

Washington, D.C. 20515(202) 225-9700

August 27, 2012

7 The Bipartisan Legal Advisory Group, which speaks for the House in

litigation matters, currently is comprised of the Honorable John A. Boehner,Speaker of the House, the Honorable Eric Cantor, Majority Leader, the HonorableKevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader,and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leaderand the Democratic Whip have declined to support the position taken by the Groupon the merits of DOMA Section 3s constitutionality in this case.


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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Second Circuit by electronic

mail to the Second Circuit address, [email protected], and on the

following by electronic mail (.pdf format) and first-class mail, postage prepaid:

Karen L. DowdKenneth J. BartschiHORTON, SHIELDS & KNOX, P.C.90 Gillett Street

Hartford, CT [email protected]@hortonshieldsknox.com

Gary D. Buseck Mary L. BonautoVickie L. HenryJanson WuGAY & LESBIAN ADVOCATES & DEFENDERS30 Winter Street, Suite 800Boston, MA [email protected]@[email protected]

[email protected]


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Paul M. SmithLuke C. PlatzerMatthew J. DunneMelissa CoxJENNER & BLOCK1099 New York Avenue, NW, Suite 900Washington, DC [email protected]@[email protected]@jenner.com

David J. NagleSULLIVAN & WORCESTER LLP

One Post Office SquareBoston, MA [email protected]

Judson O. LittletonUNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISIONFederal Programs Branch20 Massachusetts Ave., NWWashington, DC 20530

[email protected]

Helen L. GilbertUNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISIONRoom 7228950 Pennsylvania Avenue, NWWashington, DC [email protected]

Sandra Slack Glover

UNITED STATES ATTORNEYS OFFICE, DISTRICT OFCONNECTICUT23rd Floor157 Church StreetNew Haven, CT [email protected]


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David Christopher NelsonUNITED STATES ATTORNEYS OFFICE, DISTRICT OFCONNECTICUT450 Main StreetHartford, CT [email protected]

/s/ William Pittard William Pittard


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Exhibit 1


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http:///reader/full/F.Supp.2d

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Exhibit 2


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1919 M Street, N.W. Suite 470 Washington D.C. 20036Telephone 202.234.0090 www.bancroftpllc.com Facsimile 202.234.2806

August 27, 2012

Catherine OHagan Wolfe, Clerk of the CourtU.S. Court of Appeals for the Second CircuitThurgood Marshall U.S. Courthouse40 Foley SquareNew York, NY 10007

Re: Pedersen v. Office of Personnel Management, et al. and the Bipartisan Legal Advisory Group of the U.S. House of Representatives, No. 12-3273 (2d Cir.)

Dear Ms. OHagan Wolfe:

I write on behalf of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) the intervenor-defendant below in response to Plaintiffs-Appellees counsels August 27, 2012 letter (ECF No. 21) (August 27 Letter). That letterpurports to supplement Plaintiffs-Appellees Motion for Expedited Appeal (Aug. 21, 2012) (ECFNo. 9) (Motion to Expedite); in reality, it seeks additional relief from the Court in the form of an order shortening, from September 4, 2012, to August 29, 2012, the time for the House (andthe Department of Justice) to respond to the Motion to Expedite. The Court should not considerthis request because it is not in the form of a motion, as required by Rule 27(a)(1) of the Federal

Rules of Appellate Procedure and Local Rule 27.1(a)(1). If the Court does consider Plaintiffs-Appellees request, the Court should deny that request for the following reasons.

1. Clerks Office personnel advised counsel for the House last week that, because theHouse is not designated as a party in this case, the House will not be permitted to file documentswith the Court unless the House receives such status. The House today has filed a Motion . . . forRecognition of Status as Party to the Appeal (Aug. 27, 2012) (Motion for Recognition). Untilthe Motion for Recognition is granted, it appears the House will not be permitted by the Clerk torespond to the Motion to Expedite at all, let alone two days hence. Assuming the Motion forRecognition is granted promptly, the House intends to respond to the Motion to Expedite by

September 4, 2012, consistent with Rule 27(a)(3)(A) of the Federal Rules of AppellateProcedure.

2. The underlying appeal by the Executive Branch parties is improper because theExecutive Branch parties prevailed below and, accordingly, lack standing to appeal. The Houseintends to raise this issue by way of a motion to dismiss once the Houses Motion forRecognition is granted. The Court should not rush to judgment on the Motion to Expedite until it


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Catherine OHagan Wolfe, Clerk of the CourtAugust 27, 2012Page 2 of 2

rules on the antecedent question of the legitimacy of the Executive Branch parties appeal.

3. Nothing in Plaintiffs-Appellees August 27 Letter suggests any legitimate reason forrequiring the House (and the Department) to respond to the Motion to Expedite on such anaccelerated schedule. On the other hand, that proposed accelerated schedule would work asevere hardship on the House which is currently working on, and must file by Friday, August 31,2012, substantial briefs in four other cases that, like this one, raise the issue of whether Section 3of the Defense of Marriage Act, 1 U.S.C. 7, comports with the equal protection component of the Fifth Amendments Due Process Clause: (i) response to plaintiff-appellees Pet. for Writ of Cert. Before J., Windsor v. United States , No. 12-63 (S. Ct. July 16, 2012), 2012 WL 2904038;(ii) response to Executive Branch parties Pet. for a Writ of Cert., U.S. Dept of HHS v.

Massachusetts , No. 12-15 (S. Ct. July 3, 2012), 2012 WL 2586937; (iii) response to Executive

Branch parties Pet. for Writ of Cert. Before J., Office of Pers. Mgmt. v. Golinski , No. 12-16 (S.Ct. July 3, 2012), 2012 WL 2586938; and (iv) a merits brief in Cardona v. Shinseki , No. 11-3083(Vet. Ct. App.).

Respectfully submitted,

/s/ H. Christopher BartolomucciH. Christopher Bartolomucci

Counsel for the Bipartisan Legal AdvisoryGroup of the U.S. House of Representatives

cc: Gary D. Buseck, Esq.Paul M. Smith, Esq.Karen L. Dowd, Esq.David J. Nagle, Esq.Judson O. Littleton, Esq.Helen L. Gilbert, Esq.Sandra Slack Glover, Esq.


Date post:	04-Apr-2018
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12-3273 #24

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