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12-15409 #141

12-15409 #141

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Published by Equality Case Files
Doc #141 - DOJ motion to address, in its reply brief, Plaintiff's additional arguments.
Doc #141 - DOJ motion to address, in its reply brief, Plaintiff's additional arguments.

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Published by: Equality Case Files on Aug 06, 2012
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08/06/2012

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IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITKAREN GOLINSKI)Plaintiff-Appellee,) ) v.) )OFFICE OF PERSONNEL MANAGEMENT et al.)No. 12-15388Defendants-Appellees,) )and) )BIPARTISAN LEGAL ADVISORY GROUP)OF THE U.S. HOUSE OF REPRESENTATIVES)Intervenor-Appellant.) )KAREN GOLINSKI)Plaintiff-Appellee,) ) v.) )OFFICE OF PERSONNEL MANAGEMENT et al.)No. 12-15409Defendants-Appellants,) )and) )BIPARTISAN LEGAL ADVISORY GROUP)OF THE U.S. HOUSE OF REPRESENTATIVES)Intervenor-Appellee.) )
MOTION TO ADDRESS PLAINTIFF’S ADDITIONAL ARGUMENTS IN FEDERAL DEFENDANTS’ REPLY BRIEF
 The federal defendants seek leave to address in their reply brief, which is being filed concurrently with this motion, the additional arguments raised by plaintiff-appelleein her responsive brief.
Case: 12-15409 07/31/2012 ID: 8270530 DktEntry: 141 Page: 1 of 5
 
1. On February 23, 2011, the Attorney General notified Congress of thePresident’s and his determination that Section 3 of DOMA violates the equal protectioncomponent of the Fifth Amendment as applied to same-sex couples who are legally married under state law. Based on this decision, the President and the Attorney Generaldetermined that “the Department will cease defense of Section 3,” on this basis.Supplemental Excerpts of Record 1020-21. The Department has continued to defendSection 3 of DOMA against other constitutional and statutory challenges.
See, e.g.
, D. Ct.Doc. No. 118, Def’s Motion to Dismiss Pl’s 2d Am. Compl. (defending Section 3 againstplaintiff’s statutory claim);
see also
Superseding Brief of the U.S. Dep’t of Health andHuman Servs. at 55-61,
 Massachusetts v. HHS 
, Nos. 10-2204, 10-2207, 10-2214 (consol.)(1st Cir. Sept. 22, 2011) (defending Section 3 of DOMA against a Tenth Amendmentchallenge).2. In its April 11, 2012 Order, this Court established the following briefing schedule:BLAG shall file its opening brief in no. 12-15388 on or before June 4, 2012;responsive briefs are due July 3, 2012 for plaintiff (answering brief in no.12-15388) and for the other federal defendants (answering brief in no. 12-15388and nominal opening brief in no. 12-15409); on or before July 17, 2012, BLAGmay file a reply brief in no. 12-15388 and answering brief in no. 12-15409 andplaintiff may file an answering brief in no. 12-15409. On or before July 31, 2012,the government may file a reply in appeal no. 12-15409 limited to thejurisdictional issue.Plaintiff and the federal defendants filed their briefs on the same day, July 3, 2012. In
2
Case: 12-15409 07/31/2012 ID: 8270530 DktEntry: 141 Page: 2 of 5
 
her brief, plaintiff raises alternative grounds for affirming the district court’s judgment.
See 
Pl. Br. 25-28 (arguing that DOMA Section 3 violates her substantive due processrights and is an unconstitutional sex-based classification). The briefing scheduleprovides that the federal defendant’s reply brief is “limited to the jurisdictional issue”raised by BLAG in the answering brief BLAG filed on July 17, 2012. The briefing schedule, therefore, does not currently provide an opportunity for the federal defendantsto respond to the alternative grounds for affirmance raised in plaintiff’s responsive brief.2. The federal defendants seek leave to respond to plaintiff’s alternative groundsfor affirming the district court’s judgment in their reply brief due July 31, 2012. Thatreply brief is being filed concurrently with this motion. The federal defendants shouldbe permitted an opportunity to respond to plaintiff’s alternative arguments because theDepartment continues to defend Section 3 of DOMA against other constitutionalchallenges, and the federal defendants are the proper party to respond to plaintiff’salternative bases for affirming the district court’s judgment.3. Counsel for federal defendants has contacted counsel for plaintiff and counselfor BLAG. Counsel for BLAG, Kerry Kircher, stated that BLAG does not oppose thismotion. Counsel for plaintiff, Tara Borelli, stated that plaintiff opposes this motionbecause the federal defendants did not respond to these arguments in the district court,and would consent to the motion if plaintiff were given an opportunity to file a brief of equal length in response. These alternative arguments were fully briefed by plaintiffs and
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Case: 12-15409 07/31/2012 ID: 8270530 DktEntry: 141 Page: 3 of 5

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