Case: 10-2207 Document: 00116150090 Page: 1 Date Filed: 12/21/2010 Entry ID: 5513648

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

COMMONWEALTH OF MASSACHUSETTS )
Plaintiff-Appellee, )
) No. 10-2204
v. )
)
UNITED STATES DEPARTMENT OF HEALTH )
AND HUMAN SERVICES, et al., )
Defendants-Appellants. )
)
)
DEAN HARA, )
Plaintiff-Appellee/Cross-Appellant, )
)
NANCY GILL, et al., )
Plaintiffs-Appellees )
) Nos. 10-2207;
v. ) 10-2214
)
OFFICE OF PERSONNEL MANAGEMENT, et al., )
Defendants-Appellants/Cross-Appellees. )
)

UNOPPOSED MOTION FOR A 21-DAY EXTENSION OF TIME

TO FILE APPELLANT’S BRIEF AND JOINT APPENDIX

For the reasons set forth below, the federal government appellants—United

States Department of Health and Human Services, et al., and the Office of Personnel

Management, et al.—respectfully request an extension of time of twenty-one (21)

days, from December 23, 2010, to and including January 13, 2011, within which to

file appellants’ consolidated opening brief and joint appendix in these appeals. We

also request a corresponding adjustment of the current briefing schedule with respect
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to the due dates of the remaining briefs, as detailed below. Counsel for plaintiffs-

appellees Commonwealth of Massachusetts and Nancy Gill, et al., and for cross-

appellant Dean Hara, have authorized us to state that they consent to this motion.

1. These consolidated cases present challenges to the constitutionality of

Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7.

2. The government’s opening brief in Commonwealth of Massachusetts v.

United States Department of Health and Human Services, et al., No. 10-2204, was

originally due on December 13, 2010, and in Nancy Gill, et al. v. Office of Personnel

Management, et al., No. 10-2207, was originally due on December 27, 2010.

Pursuant to the government’s prior motion, this Court consolidated these cases, along

with the cross-appeal in Dean Hara, No. 2214, and established a coordinated appellate

briefing schedule. Under this schedule, the government’s opening consolidated brief

is currently due December 23, 2010. Oral argument has not yet been scheduled. The

government has not sought any prior extensions.

3. The government respectfully requests a 21-day extension of time for

appellants’ consolidated opening brief because of the significance of these cases and

the need for further internal government review, as well as other appellate deadlines

faced by government counsel during the briefing period and the holidays that fall

within the briefing period.

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Specifically, because these two consolidated cases present challenges to the

constitutionality of a federal statute and involve many different federal agencies, the

internal government review for this brief has necessarily been extensive. This review

process is not yet complete, and many individuals reviewing the brief will be on

vacation during the upcoming holidays, from Thursday, December 23, 2010, until

Monday, January 3, 2011. A 21-day extension is necessary to enable the orderly

completion of this process.

Additionally, the attorneys within the Civil Division’s Appellate Staff assigned

principal responsibility for preparing the government’s brief are subject to various

other briefing deadlines and holidays. Benjamin Kingsley, one of the principal

attorney’s preparing the government’s brief, has briefs due in Hamad, et al. v.

Obama, et al., No. 5117 (D.C. Cir.), on December 23, 2010; in a sealed case on

January 5, 2011; and in Cote, et al. v. Shinseki, et al., No. 09-16371 (11th Cir.), on

January 20, 2011. August Flentje, the other principal attorney preparing the

government’s brief, has briefs due in Madhwani v. Obama, No. 10-5172 (D.C. Cir.),

on December 22, 2010; in Latif v. Obama, No. 05-5319 (D.C. Cir.), on January 6,

2011; in Awad v. Obama, No. 10-736 (S.Ct.), on January 3, 2011; and in Ameziane

v. Obama, No. 10-447 (S. Ct.), on January 18, 2011.

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4. Maura Healey, counsel for plaintiff-appellee Commonwealth of

Massachusetts, and Mary Bonauto, counsel for plaintiffs-appellees Nancy Gill, et al.,

and cross-appellant Dean Hara, have authorized us to indicate that they consent to

this motion so long as the briefing schedule with respect to the remaining briefs is

adjusted accordingly. In that regard, we also respectfully request that the Court add

21 days to the current due dates of the subsequent briefs, so that the adjusted schedule

will be as follows:

• Appellees’ response brief in Gill and Cross-Appellant’s opening

principal brief in Hara due March 1, 2011.

• Appellee’s response brief in Massachusetts due March 1, 2011.

• Federal appellants’ consolidated reply brief in Gill and Massachusetts,

combined with response brief in Hara cross-appeal, due April 4, 2011.

• Cross-Appellant’s reply brief in Hara due April 21, 2011.

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CONCLUSION

For the foregoing reasons, the federal government appellants respectfully

request that the deadline for filing their consolidated opening brief be extended to

January 13, 2011.

Respectfully submitted,

s/ Michael Jay Singer

MICHAEL JAY SINGER
(202) 514-5432

s/ August Flentje
AUGUST FLENTJE
(202) 514-3309

s/ Benjamin S. Kingsley
BENJAMIN S. KINGSLEY
(202) 353-8253

Attorneys, Appellate Staff

Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W., Rm. 7261
Washington, D.C. 20530-0001

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CERTIFICATE OF SERVICE

I hereby certify that on December 21, 2010, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the First Circuit

by using the appellate CM/ECF system. I further certify that all participants in the

case are registered CM/ECF users and will be served by the appellate CM/ECF

system.

s/ Benjamin S. Kingsley
BENJAMIN S. KINGSLEY
(202) 353-8253

Attorney, Appellate Staff

Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W., 7261
Washington, D.C. 20530-0001