Case 1:19-cv-00902-EAW Document 74 Filed 10/03/19 Page 1 of 3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________________

MICHAEL P. KEARNS, in his official capacity

as Clerk of the County of Erie, New York,

Plaintiff,

v.
1:19-CV-00902 EAW

ANDREW M. CUOMO, in his official capacity

as Governor of the State of NewYork,
LETITIA A. JAMES, in her official capacity as
Attorney General of the State of New York, and
MARK J.F. SCHROEDER, in his official capacity
as Commissioner of the New York State
Department of Motor Vehicles,

Defendants.

UNITED STATES’ MOTION TO EXTEND TIME

TO DETERMINE WHETHER TO INTERVENE

The United States respectfully requests, for good cause shown, an additional fifteen

(15) days in which to intervene or otherwise respond to this Court’s August 28, 2019 Notice

pursuant to Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403 in the above-captioned

matter.

1. On August 16, 2019, Defendants filed a memorandum of law in support of their

motion to dismiss in which they asserted that two federal statutes, 8 U.S.C. § 1373 and 8

U.S.C. § 1644, violated the Tenth Amendment to the United States Constitution. (ECF No.

25).
 Case 1:19-cv-00902-EAW Document 74 Filed 10/03/19 Page 2 of 3

2. Pursuant to Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403, on

August 28, 2019, the Court notified the Attorney General of the United States that the

constitutionality of 8 U.S.C. § 1373 and 8 U.S.C. § 1644 had been put at issue, and invited

the United States to intervene in the above-captioned action by October 28, 2019. (ECF No.

37).

3. Federal Rule of Civil Procedure 5.1 provides that, “[u]nless the court sets a later

time, the attorney general may intervene within 60 days . . . after the court certifies the

challenge.” While October 28, 2019 is the 60th day after the Court issued its certification, the

United States requests that the Court “set[ ] a later time.” Specifically, an additional fifteen

(15) days—until November 12, 2019—is necessary for the United States to adequately

consider whether to intervene and, in the event it chooses to intervene, to coordinate and

prepare a responsive filing.

4. Good cause exists for granting the extension. Any decision to intervene by the

United States requires the authorization of the Solicitor General of the United States. See 28

C.F.R. § 0.21. That, in turn, requires coordination between the Office of the Solicitor General

and the Department of Justice’s Civil Division. In the event that the Solicitor General

authorizes intervention, a responsive filing would need to be prepared and filed.

5. This Court has scheduled a hearing on Defendants’ motion to dismiss for

October 23, 2019 (ECF No. 29), which is prior to the current deadline of October 28, 2019

for the United States to choose to intervene. (ECF No. 37). It is highly unlikely that the

Solicitor General’s authorization process will be complete by the current deadline of October

28, 2019, much less the Court’s currently scheduled hearing date of October 23, 2019.
 Case 1:19-cv-00902-EAW Document 74 Filed 10/03/19 Page 3 of 3

6. Rule 5.1 contemplates that the United States will be heard prior to entry of a

judgment declaring a federal statute unconstitutional. See Fed. R. Civ. P. 5.1. Accordingly,

in the event that participation in this case is authorized, the United States requests a

meaningful opportunity to be heard regarding this issue, as set forth in the Rule.

7. The United States has notified the Parties that it intends to seek an extension

of time.

8. Plaintiff consents to the United States’ request for an extension of time subject

to and contingent upon the Court’s assurance that it can still issue a decision on the Plaintiff’s

motion for a preliminary injunction before December 14, 2019. (Ex. A).

9. Defendants take no position on the United States’ request for an extension of

time to intervene, but Defendants object to an adjournment of the October 23, 2019 hearing.

Defendants have indicated that they will set forth their position in response to this Motion.

WHEREFORE, the United States respectfully request the Court grant an extension of

time up to and including November 12, 2019 to determine whether to intervene pursuant to

Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403.

Respectfully submitted,

JAMES P. KENNEDY, JR.

United States Attorney
Western District of New York

BY: /s/ DAVID M. CORIELL

DAVID M. CORIELL
Assistant United States Attorney
138 Delaware Avenue
Buffalo, New York 14202
(716) 843-5731
David.Coriell@usdoj.gov

DATED: Buffalo, New York, October 3, 2019.