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PAUL D. CLEMENT (DC Bar 433215) pclement@bancroftpllc.com

 

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H. CHRISTOPHER BARTOLOMUCCI (DC Bar 453423) cbartolomucci@bancroftpllc.com

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CONOR B. DUGAN (MI Bar P66901) cdugan@bancroftpllc.com

 

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BANCROFT PLLC

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1919 M Street, NW, Suite 470 Washington, DC 20036

 

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202-234-0090 (phone); 202-234-2806 (fax)

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OF COUNSEL:

KERRY W. KIRCHER (DC Bar 386816)

 

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Kerry.Kircher@mail.house.gov JOHN D. FILAMOR (DC Bar 476240)

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John.Filamor@mail.house.gov CHRISTINE DAVENPORT (NJ Bar)

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Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON (DC Bar 486335)

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Katherine.McCarron@mail.house.gov WILLIAM PITTARD (DC Bar 482949)

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William.Pittard@mail.house.gov KIRSTEN W. KONAR (DC Bar 979176)

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Kirsten.Konar@mail.house.gov

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OFFICE OF GENERAL COUNSEL U.S. House of Representatives

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219 Cannon House Office Building Washington, DC 20515

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202-225-9700 (phone); 202-226-1360 (fax)

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Counsel for Proposed Intervenor The Bipartisan Legal Advisory Group of the U.S. House of Representatives

 

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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)

 

KAREN GOLINSKI,

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Case No. 3:10-cv-0257-JSW

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Hearing: June 17, 2011, 9:00 am

 

Plaintiff,

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NOTICE OF MOTION AND MOTION OF THE BIPARTISAN

 

vs.

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LEGAL ADVISORY GROUP OF

 

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

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UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al.,

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THE U.S. HOUSE OF REPRESENTATIVES TO

 

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INTERVENE FOR A LIMITED PURPOSE

Defendants.

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TABLE OF CONTENTS

 

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MOTION TO INTERVENE FOR A LIMITED PURPOSE

1

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MEMORANDUM OF POINTS AND AUTHORITIES

 

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INTRODUCTION

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ARGUMENT

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I. Intervention by the House Is Appropriate Under Rule 24(a)(1)

 

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and/or Rule 24(b)(1)(A)

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II. Intervention by the House Is Appropriate Under Rule 24(a)(2)

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III. The Court Should Allow Intervention Without Requiring the Filing of a “Pleading”

in Conjunction with the Motion to Intervene

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CONCLUSION

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CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

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Cases

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Adolph Coors Co. v. Brady, 944 F.2d 1543 (10th Cir. 1991)

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Am. Fed’n of Gov’t Emps. v. United States, 634 F. Supp. 336 (D.D.C. 1986)

4

5

Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153 (1989)

4

6

Ameron, Inc. v. U.S. Army Corp of Eng’rs, 607 F. Supp. 962 (D.N.J. 1985), aff’d, 809 F.2d 979

(3d Cir. 1986)

4

7

 

Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003)

7

8

 

Barnes v. Carmen¸ 582 F. Supp. 163 (D.D.C. 1984), rev’d sub nom. Barnes v. Kline, 759 F.2d 21

9

(D.C. Cir. 1984), rev’d on mootness grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987) 4-5

10

Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470 (9th Cir. 1992)

9

11

 

Beverly Enters. v. Trump, 182 F.3d 183 (3d Cir. 1999)

4

12

 

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968)

6

13

 

Cnty. of Orange v. Air Cal., 799 F.2d 535 (9th Cir. 1986)

7

14

 

Dickerson v. United States, 530 U.S. 428 (2000)

4

15

 

Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006)

4

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Helstoski v. Meanor, 442 U.S. 500 (1979)

4

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In re Benny, 44 B.R. 581 (Bankr. N.D. Cal. 1984), aff’d in part & dismissed in part, 791

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F.2d 712 (9th Cir. 1986)

5

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In re Moody, 46 B.R. 231 (Bankr. M.D.N.C. 1985)

5

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In re Prod. Steel, Inc., 48 B.R. 841 (Bankr. M.D. Tenn. 1985)

5

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In re Tom Carter Enters., Inc., 44 B.R. 605 (Bankr. C.D. Cal. 1984)

5

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In re: Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009)

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In the Matter of Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100 (D.D.C. 2006), rev’d sub nom. United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir.

2

2007)

4

3

INS v. Chadha, 462 U.S. 919 (1983)

4,

6, 8, 9

4

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986)

4

5

League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997)

7

6

 

Morrison v. Olson, 487 U.S. 654 (1988)

4

7

 

North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987)

4

8

 

Raines v. Byrd, 521 U.S. 811 (1997)

4

9

 

Shores v. Hendy Realization Co., 133 F.2d 738 (9th Cir. 1943)

9

10

 

Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1981)

9

11

 

Synar v. United States, 626 F. Supp. 1374 (D.D.C. 1986), aff’d sub nom. Bowsher v. Synar, 478

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U.S. 714 (1986)

4

13

United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004)

7,

8

14

United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002)

8

15

United States v. Helstoski, 442 U.S. 477 (1979)

4

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United States v. Lovett, 328 U.S. 303 (1946)

6

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United States v. McDade, 28 F.3d 283 (3d Cir. 1996)

4

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United States v. Renzi, No. 10-10088, 10-10122 (9th Cir. argued Feb. 17, 2011)

4

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Statutes and Legislative Authorities

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Fed. R. Civ. P. 7

9

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Fed. R. Civ. P. 24

passim

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2 U.S.C. § 130f

10

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28

U.S.C. § 516

6

2

28

U.S.C. § 530D

1,

6

3

28

U.S.C. § 2403

1,

5, 6

4

Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7

1

5

U.S. Const. art. II, § 3

2

6

U.S. Const. art. I, §§ 1, 7, 8

8

7

Other Authorities

8

Rule I.11, Rules of the House of Representatives, 103d Cong. (1993)

1

9

Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)

1

10

142

Cong. Rec. H7505-06 (July 12, 1996)

3

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142

Cong. Rec. S10129 (Sept. 10, 1996)

3

12

 

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PLEASE TAKE NOTICE that the Bipartisan Legal Advisory Group of the U.S. House of

Representatives will move this Court on Friday, June 17, 2011, at 9:00 a.m., or as soon thereafter

as counsel may be heard, in the San Francisco Branch of the U.S. District Court, Courtroom 11,

19th Floor, 450 Golden Gate Avenue, San Francisco, California, for an order granting the

Bipartisan Legal Advisory Group’s Motion to Intervene for a Limited Purpose.

MOTION TO INTERVENE FOR A LIMITED PURPOSE

Pursuant to Rule 24(a), (b) of the Federal Rules of Civil Procedure, and 28 U.S.C. §§

530D(b)(2), 2403, and for the reasons set forth in the accompanying Memorandum of Points and

Authorities, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the

“House”) respectfully moves for leave to intervene as a party defendant in this matter for the

limited purpose of defending the constitutionality of Section III of the Defense of Marriage Act,

Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”), from attack on

the ground that it violates the equal protection component of the Fifth Amendment’s Due Process

Clause. 1 The Department of Justice has stated that it will continue to “represent the interests of

1 The House has articulated its institutional position in litigation matters through a five- member bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103d Cong. (1993), available on-line at http://web.lexis-

nexis.com/congcomp/attachment/a.pdf?_m=2cf9fa66f3eda78dd0cb4e3d5d218d8b&wchp=dGLb

Vtz-zSkSA&_md5=4fb7cdee607612e0b648fc2261f21d1e&ie=a.pdf; Rule II.8, Rules of the House of Representatives, 112th Cong. (2011), available on-line at

http://rules.house.gov/Media/file/PDF_112_1/legislativetext/112th%20Rules%20Pamphlet.pdf.

While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group 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 (continued ….)

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the United States” in this litigation. Letter from Ronald Weich, Assistant Attorney General, to

the Honorable John A. Boehner, Speaker, U.S. House of Representatives (Feb. 25, 2011)

(“Weich Letter”), attached to Defendants’ Response to Order to Show Cause of February 23,

2011 (Feb. 28, 2011). We understand this to mean that the Department will take full

responsibility for litigating all issues other than Section III’s constitutionality under the equal

protection component of the Due Process Clause.

Counsel for the House has conferred with James R. McGuire, Esq., counsel for plaintiff,

who has advised that plaintiff does not consent to the relief sought by this motion and reserves

her right to respond as she deems appropriate. Counsel for the House has also conferred with the

Department of Justice which has informed us that the federal defendants do not oppose this

motion to intervene for purposes of presenting arguments in support of the constitutionality of

Section III of DOMA, but will be filing a response to explain their position. In addition, the

federal defendants agree that this motion need not be accompanied by a “pleading” under Rule

24(c). A proposed Order is submitted herewith.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Plaintiff asks this Court to declare unconstitutional as applied to her, under the equal

protection component of the Fifth Amendment’s Due Process Clause, Section III of DOMA. See

Second Am. Compl. at 15, 17 (April 14, 2011). 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

Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this motion.

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constitutionality of duly enacted federal laws when they are challenged in court. DOMA, of

course, 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. H7505-

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 has repeatedly defended the constitutionality of Section III of

DOMA in the intervening years -- see, e.g., Corrected Br. for the U.S. Dep’t of Health and

Human Servs., et al. (Jan. 19, 2011), Commonwealth of Massachusetts v. United States

Department of Health and Human Services, et al., Nos. 10-2204, 10-2207, 10-2214 (1st Cir.);

Federal Defendants’ Notice of Motion and Motion to Dismiss (July 2, 2010), Dragovich v. Dep’t

of the Treasury, et al., No. 4:10-01564-CW (N.D. Calif.) -- the Attorney General announced on

February 23, 2011, that the Department would no longer 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”), available on-line at

http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. 2 In particular, the Department

announced that it would not defend the statute’s constitutionality in this case. See Weich Letter

2 In so announcing, the Attorney General acknowledged that (i) nine U.S. circuit courts of appeal have rejected his conclusion that sexual orientation classifications are subject to a heightened standard of scrutiny, id. at 3-4 nn.4-6, and (ii) “professionally responsible” arguments can be advanced in defense of Section III of DOMA. Id. at 5.

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at 2. 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 [the] cases [at issue].” Holder Letter at 6.

In response, the House formally determined on March 9, 2011, to defend the statute in

civil actions in which Section III’s constitutionality has been challenged. See Press Release,

Speaker of the House John Boehner, House Will Ensure DOMA Constitutionality Is Determined

by Courts (March 9, 2011) (“House General Counsel has been directed to initiate a legal defense

of [Section III of DOMA]”), available online at

http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539. While the House

most often appears in judicial proceedings as amicus curiae, 3 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. Fed’n of Gov’t 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 declined 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 States, 626 F.

Supp. 1374, 1378-79 (D.D.C. 1986), aff’d sub nom. Bowsher v. Synar, 478 U.S. 714 (1986);

Ameron, Inc. v. U.S. Army Corp of Eng’rs, 607 F. Supp. 962, 963 (D.N.J. 1985), aff’d, 809 F.2d

979 (3d Cir. 1986); Barnes v. Carmen¸ 582 F. Supp. 163, 164 (D.D.C. 1984), rev’d sub nom.

3 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. Ass’n v. Garfinkel, 490 U.S. 153, 154 (1989);

Morrison v. Olson, 487 U.S. 654, 659 (1988); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 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, No. 10-10088, 10-10122 (9th Cir. argued Feb.

17, 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) (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 the Matter of Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100, 104-05 (D.D.C. 2006), rev’d sub nom. United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007).

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Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1984), rev’d on mootness grounds sub nom. Burke v.

2

Barnes, 479 U.S. 361, 362 (1987); In re Prod. Steel, Inc., 48 B.R. 841, 842 (Bankr. M.D. Tenn.

 

3

1985); In re Moody, 46 B.R. 231, 233 (Bankr. M.D.N.C. 1985); In re Tom Carter Enters., Inc.,

4

44 B.R. 605, 606 (Bankr. C.D. Cal. 1984); In re Benny, 44 B.R. 581, 583 (Bankr. N.D. Cal.

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1984), aff’d in part & dismissed in part, 791 F.2d 712 (9th Cir. 1986).

6

 

In light of the Attorney General’s February 23, announcement, we respectfully request

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that the Court allow the House to intervene here for the limited purpose of defending the

 

8

constitutionality of Section III of DOMA against arguments that it violates the equal protection

9

component of the Fifth Amendment’s Due Process Clause.

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ARGUMENT

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I.

Intervention by the House Is Appropriate Under Rule 24(a)(1) and/or Rule

24(b)(1)(A).

12

 
 

Rule 24(a)(1) provides for intervention as of right where the proposed intervenor “is

13

 

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

 

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intervene by a federal statute.” A “federal statute,” namely 28 U.S.C. § 2403, clearly

 

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contemplates that the federal government will defend the constitutionality of acts of Congress

 

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when they are challenged:

 

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In any action, suit or proceeding in a court of the United States to

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which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress

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affecting the public interest is drawn in question, the court shall permit the United States to intervene for presentation of

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evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States

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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

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to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

2

Id. § 2403(a) (emphasis added). Here, of course, agencies and officers of the United States are

3

parties but, in light of the Department’s decision to decline to play the role contemplated by §

4

2403(a), it is appropriate for the House to intervene to discharge that function. See 28 U.S.C. §

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530D(b)(2) (specifically contemplating that House and/or Senate may intervene to defend

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constitutionality of federal statute where Department declines to do so).

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Ordinarily the Department not only intervenes under § 2403(a) where appropriate, but

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also more generally represents the United States and its agencies and officers in the defense of

9

such challenged statutes. See 28 U.S.C. § 516 (“Except as otherwise authorized by law, the

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conduct of litigation in which the United States, an agency, or officer thereof is a party, or is

11

interested, and securing evidence therefor, is reserved to officers of the Department of Justice,

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under the direction of the Attorney General.”). However, where, as here, the Department

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declines to defend a challenged statute, the Supreme Court has held that the Legislative Branch

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may, if it wishes, accept that responsibility: “Congress is the proper party to defend the validity

15

of a statute when an agency of government, as a defendant charged with enforcing the statute,

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agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha, 462 U.S. at

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940 (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968); United States v. Lovett, 328

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U.S. 303 (1946)) (emphasis added). That is precisely the situation here. As noted above,

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numerous other courts have followed Chadha’s direction and permitted the House to intervene to

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defend the constitutionality of federal statutes. See supra 4-5.

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Accordingly, whether the Court construes 28 U.S.C. § 2403(a) as vesting the Legislative

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Branch with an “unconditional right to intervene,” Rule 24(a)(1), or a “conditional right to

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intervene,” Rule 24(b)(1)(A), intervention here by the House to defend the constitutionality of

 

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Section III of DOMA is clearly appropriate.

3

II.

Intervention by the House Is Appropriate Under Rule 24(a)(2).

4

Rule 24(a)(2) provides that:

5

 

On timely motion, the court must permit anyone to intervene who:

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(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

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action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately

8

represent that interest.

9

Under the law of this Circuit:

10

 

A

party seeking to intervene [under Rule 24(a)(2)] must meet four

requirements: (1) the applicant must timely move to intervene; (2)

 

11

the applicant must have a significantly protectable interest relating

to

the property or transaction that is the subject of the action; (3)

12

the applicant must be situated such that the disposition of the action may impair or impede the party’s ability to protect that

 

13

interest; and (4) the applicant’s interest must not be adequately

represented by existing

Each of these four requirements

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must be satisfied to support a right to intervene.

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Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (internal citations omitted). These

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criteria are “broadly interpreted in favor of intervention,” United States v. Alisal Water Corp.,

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370 F.3d 915, 919 (9th Cir. 2004), and the House easily satisfies each of the requirements here.

18

First, the House’s motion is timely. In this Circuit, “[t]imeliness is a flexible concept; its

19

determination is left to the district court's discretion,” id. at 921, and three factors are considered:

20

“(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to

 

21

other parties; and (3) the reason for and length of the delay.” League of United Latin Am.

22

Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting Cnty. of Orange v. Air Cal., 799

23

F.2d 535, 537 (9th Cir. 1986)). Here, the Attorney General only announced on February 23,

 

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2011, his and the President’s decision to no longer defend Section III of DOMA from equal

2

protection challenges, and the House only determined on March 9, 2011, to accept the

3

responsibility for defending the statute. Moreover, although this case has been pending since

4

January 2010, it was only on April 14, 2011, that plaintiff challenged, for the very first time, the

5

constitutionality of Section III of DOMA. See Second Am. Compl. 15, 17. Accordingly, the

6

short delay between the date the House became aware the Department was abandoning its

7

responsibilities and today is justifiable, and that brief delay will not prejudice the plaintiff,

8

particularly given that her equal protection challenge to DOMA is a mere three weeks old.

9

Second, “[a]n applicant for intervention has a significantly protectable interest if the

10

interest is protected by law and there is a relationship between the legally protected interest and

11

the plaintiff's claims.” Alisal, 370 F.3d at 919. Here, the House self-evidently has a strong

12

interest in defending the constitutionality of its legislative handiwork, given the House’s central

13

constitutional role in creating the legislation, U.S. Const. art. I, §§ 1, 7, 8, and particularly where,

14

as here, the House bill that became DOMA passed the House by a substantial and bipartisan

15

majority a mere 16 years ago. See Chadha, 462 U.S. at 940-41.

16

Third, with respect to the impairment prong of the analysis, “the relevant inquiry is

17

whether the [issue of the litigation] ‘may’ impair rights ‘as a practical matter’ rather than

18

whether the decree will ‘necessarily’ impair them.” United States v. City of Los Angeles, 288

19

F.3d 391, 401 (9th Cir. 2002). The disposition of this case obviously threatens the House’s

20

ability to protect its interest in seeing that the statute’s constitutionality is upheld because (i) the

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plaintiff contends that Section III of DOMA is unconstitutional under the equal protection

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component of the Fifth Amendment’s Due Process Clause, and (ii) the Department refuses to

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defend against that challenge. Therefore, unless the House intervenes, it will have no ability to

 

2

protect its constitutional interests.

3

 

Fourth, for exactly the same reasons, it is self-evidently the case that none of the existing

4

parties represent the House’s interest in defending the constitutionality of Section III of DOMA

 

5

against equal protection challenges. See Chadha, 462 U.S. at 940-41.

6

 

Accordingly, intervention by the House as of right under Rule 24(a)(2) is plainly

7

appropriate.

8

III.

The Court Should Allow Intervention Without Requiring the Filing of a “Pleading” in Conjunction with the Motion to Intervene.

9

 
 

Finally, Rule 24(c) provides that a motion to intervene should “be accompanied by a

10

 

pleading that sets out the claim or defense for which intervention is sought.” In light of Rule

 

11

 

7(a), the only “pleading” the House could conceivably file here would be an Answer to the

 

12

 

Second Am. Compl.

 

13

 
 

This Circuit, however, has construed Rule 24(c) as a technical requirement to be applied

14

 

flexibly in light of its obvious purpose to ensure that the court and the parties are informed about

15

the would-be intervenor’s claims or defenses. See, e.g., Beckman Indus., Inc. v. Int’l Ins. Co.,

 

16

 

966 F.2d 470, 474 (9th Cir. 1992) (“Courts, including this one, have approved intervention

 

17

 

motions without a pleading where the court was otherwise apprised of the grounds for the

 

18

 

motion.”); Smith v. Pangilinan, 651 F.2d 1320, 1326 (9th Cir. 1981) (one sentence in

 

19

 

intervenor’s motion was sufficient to satisfy requirements of Rule 24(c)); Shores v. Hendy

 

20

 

Realization Co., 133 F.2d 738, 742 (9th Cir. 1943).

 

21

 
 

Here, the Court should apply Rule 24(c) flexibly to dispense with the need for the House

22

 

to file an Answer for several reasons. First, under the circumstances of this case, the motion to

 

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intervene itself and this memorandum place the Court and the parties on notice of the defense the

House will assert in this case, viz., that Section III of DOMA is constitutional under the equal

protection component of the Fifth Amendment’s Due Process Clause. Moreover, to the extent

this litigation requires the resolution of other issues, the House will not participate. Intervention

is sought for the limited purpose of defending Section III on equal protection grounds. Second, it

appears that the constitutional issue can be most appropriately resolved in the context of a

motion to dismiss, without the need for the filing of an Answer. Third, the Department agrees

that the House should not be required to file an Answer in conjunction with its motion to

intervene and, insofar as we can ascertain, the plaintiff also does not contend that the House

should be required to file an Answer.

CONCLUSION

For all the foregoing reasons, the Court should grant the House’s motion to intervene for

the limited purpose of defending the constitutionality of Section III of the Defense of Marriage

Act from attack on equal protection grounds.

Respectfully submitted,

/s/ Paul D. Clement

Paul D. Clement, Esq. H. Christopher Bartolomucci, Esq. Conor B. Dugan, Esq.

BANCROFT PLLC 4

4 Bancroft PLLC has been “specially retained by the Office of General Counsel” of the

House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its attorneys are, therefore, “entitled, for the purpose of performing [that] function[], to enter an

appearance in any proceeding before any court of the United States

any requirement for admission to practice before such court

without compliance with

.” 2 U.S.C. § 130f(a).

(continued ….)

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

Kerry W. Kircher, Esq., as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatories Paul D. Clement, Esq., H. Christopher Bartolomucci, Esq., and Conor B. Dugan,. Esq.

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CERTIFICATE OF SERVICE

 

2

I certify that on May 4, 2011, I served one copy of the foregoing Notice of Motion and

3

Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to

4

Intervene for a Limited Purpose by CM/ECF, by electronic mail (.pdf format), and by first-class

5

mail, postage prepaid, on the following:

 

6

 

James R. McGuire, Esq.

 

7

Gregory P. Dresser, Esq. Rita F. Lin, Esq.

8

MORRISON & FOERSTER LLP 425 Market Street

 

9

San Francisco, CA

94105-2482

 

10

Jon W. Davidson, Esq.

Tara L. Borelli, Esq.

11

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd.

12

Suite 1300

Los Angeles, CA

90010-1729

13

 

Christopher R. Hall, Trial Attorney

 

14

U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch

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Room 7128 20 Massachusetts Ave., N.W.

 

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Washington, DC

20001

17

 

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/s/ Kerry W. Kircher

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Kerry W. Kircher

20

 

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

 

)

KAREN GOLINSKI,

)

Case No. 3:10-cv-0257-JSW

)

Plaintiff,

)

)

ORDER GRANTING

vs.

)

THE MOTION OF THE

)

BIPARTISAN LEGAL

UNITED STATES OFFICE OF PERSONNEL

)

ADVISORY GROUP OF THE U.S.

MANAGEMENT, et al.,

)

HOUSE OF REPRESENTATIVES

)

TO INTERVENE FOR A

Defendants.

)

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”), Plaintiff’s

Opposition, if any, and the entire record herein, it is by the Court this

day of

2011, ORDERED that the Motion is GRANTED.

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

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

,

Case3:10-cv-00257-JSW

Document103-1

James R. McGuire Gregory P. Dresser Rita F. Lin Aaron D. Jones MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482

Filed05/04/11

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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