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14-1167 #240

14-1167 #240

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Published by Equality Case Files
Doc 24 - McQuigg's Reply in support of motion to stay mandate
Doc 24 - McQuigg's Reply in support of motion to stay mandate

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Published by: Equality Case Files on Aug 04, 2014
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08/06/2014

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Case Nos. 14-1167(L), 14-1169, 14-1173 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
 
TIMOTHY B. BOSTIC
, et al.,
Plaintiffs-Appellees
, and
CHRISTY BERGHOFF, JOANNE HARRIS, JESSICA DUFF, AND VICTORIA KIDD,
 on behalf of themselves and all others similarly situated,
 Intervenors
,
 
v.
GEORGE E. SCHAEFER, III
, in his official capacity as the Clerk of Court for Norfolk Circuit Court,
 Defendant-Appellant 
,
 
and
JANET M. RAINEY
, in her official capacity as State Registrar of Vital Records,
 Defendant-Appellant 
, and
MICHÈLE B. MCQUIGG
, in her official capacity as Prince William County Clerk of Circuit Court,
 Intervenor/Defendant-Appellant 
. On appeal from the United States District Court for the Eastern District of Virginia,  Norfolk Division, Case No. 2:13-cv-00395-AWA-LRL The Honorable Arenda L. Wright Allen
 
REPLY TO
HARRIS  
 CLASS’S OPPOSITION TO APPELLANT MCQUIGG’S MOTION FOR STAY OF MANDATE
Byron J. Babione Kenneth J. Connelly J. Caleb Dalton Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (t); (480) 444-0028 (f)  bbabione@alliancedefendingfreedom.org David Austin R. Nimocks Alliance Defending Freedom 801 G Street N.W., Suite 509 Washington, D.C. 20001 (202) 393-8690 (t); (480) 444-0028 (f) animocks@alliancedefendingfreedom.org
 Attorneys for Michèle B. McQuigg
Appeal: 14-1167 Doc: 240 Filed: 08/03/2014 Pg: 1 of 6
 
1 Appellant Michèle B. McQuigg, in her official capacity as Prince William County Clerk of Circuit Court, (Clerk McQuigg) hereby replies to the
 Harris
 class’s opposition to her motion for a stay of the mandate. That opposition does not undermine the basis for Clerk McQuigg’s motion; if anything, it provides even further support for staying the mandate here. The
 Harris
 class does not frame their arguments using the two factors  prescribed in Federal Rule of Appellate Procedure 41(d)(2) and Fourth Circuit Rule 41. Instead, relying on an Eighth Circuit case, they cast their arguments within the four-prong analysis that appellate courts, including the Supreme Court, apply when asked to stay district-court judgments.
See
 
 Harris
 Opposition at 2. Although it does not appear that this Court has ever adopted that analysis when evaluating a request to stay its mandate, if this Court were to apply that standard here, the Supreme Court has not left any doubt what the outcome should be. Indeed, in
 Herbert v. Kitchen
, 134 S. Ct. 893 (2014), the Supreme Court
already unanimously determined 
 that those factors
weigh in favor 
 of issuing a stay and retaining the status quo on marriage pending full appellate review. When the State of Utah asked the Supreme Court for a stay in
 Herbert v. Kitchen
, the State was required to establish the same factors that the
 Harris
 class asks this Court to consider—“(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect
Appeal: 14-1167 Doc: 240 Filed: 08/03/2014 Pg: 2 of 6
 
2 that a majority of the Court will vote to reverse the judgment below; . . . (3) a likelihood that irreparable harm will result from the denial of a stay”; and (4) a showing that the “balance [of] the equities and . . . the relative harms” weighs in favor of issuing a stay.
 Hollingsworth v. Perry
, 558 U.S. 183, 190 (2010) (per curiam). By issuing the stay in
 Herbert v. Kitchen
 without dissent, the Supreme Court unanimously determined that those factors were satisfied. Because this case is nearly identical to that one, the Supreme Court has thus foreclosed the arguments that the
 Harris
 class raises here. The
 Harris
 class attempts to sweep away the Supreme Court’s stay in
 Herbert v. Kitchen
 by noting that “‘[t]he propriety of [a stay’s issuance] is dependent upon the circumstances of the particular case.’”
 Harris
 Opposition at 6 (quoting
 Nken v. Holder 
, 556 U.S. 418, 433 (2009)). But they do not even attempt to argue that the facts of this case are materially distinguishable from the facts in
 Herbert v. Kitchen
.
1
 Their silence on this point is not only telling, it is also  prudent, for there is no credible basis upon which to distinguish that case.
 Herbert v. Kitchen
 thus controls here and dictates that this Court should stay its mandate. Additionally, the
 Harris
 class’s discussion of the harms and equities is unpersuasive.
See
 
 Harris
 Opposition at 4-5. Throughout those arguments, they
1
 The
 Harris
 class arguably tries to distinguish this case from
 Herbert v. Evans
, the other case where the Supreme Court recently stayed a district court’s injunction addressing the issue of marriage in Utah.
See
 
 Harris
 Opposition at 7. But they do not attempt to distinguish
 Herbert v. Kitchen
.
Appeal: 14-1167 Doc: 240 Filed: 08/03/2014 Pg: 3 of 6

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