Case No.

11-3083

EQCF Dkt #189 Filed 08/02/2013

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS __________________________________ ) CARMEN CARDONA, ) ) Claimant-Appellant, ) ) v. ) Vet. App. No. 11-3083 ) ERIC K. SHINSEKI, ) Secretary of Veterans Affairs, ) ) Respondent-Appellee, ) ) and ) ) BIPARTISAN LEGAL ADVISORY ) GROUP OF THE U.S. HOUSE OF ) REPRESENTATIVES, ) ) Intervenor-Appellee. ) ) UNOPPOSED MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO WITHDRAW AS INTERVENOR-APPELLEE The Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) sought, and was granted, leave to intervene in this case for the purpose of defending Section 3 of the Defense of Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7, and 38 U.S.C. 101(3), (31). See Mot. of the [House] to Intervene (May 23, 2012); Judges Stamp Order [Granting Mot. to Intervene] (May 23, 2012).

The Supreme Court recently resolved the issue of DOMA Section 3s constitutionality. See United States v. Windsor, 570 U.S. __ (2013), 2013 WL 3196928 (U.S. June 26, 2013). The Windsor decision necessarily resolves the issue of DOMA Section 3s constitutionality in this case. While the question of whether 38 U.S.C. 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Courts opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party appellee. 1 On August 1, 2013, counsel for the House conferred with Michael J. Wishnie, counsel for claimant-appellant Carmen Cardona, and Ronen Z. Morris, counsel for respondent-appellee Eric K. Shinseki, both of whom advised that their clients do not oppose this motion. Respectfully submitted, /s/ Kerry W. Kircher Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel Eleni M. Roumel, Assistant Counsel
1

In its merits brief, the House argued that even assuming Congress could vest Article I courts, such as this Court, with the statutory authority to invalidate Acts of Congress a dubious constitutional proposition at best, given that the heavy responsibility of reviewing the constitutionality of Acts of Congress is an attribute of the judicial Power of the United States, U.S. Const. art. III, 1, and that the judicial Power of United States must be reposed in Article III judges, Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60 (1982) Congress has not vested this Court with that authority here. See Br. of Intervenor-Appellee [the House] at 3 n.4 (Aug. 31, 2012). In now seeking to withdraw as Intervenor-Appellee, the House affirms that its position on this important underlying jurisdictional issue is unchanged.
2

OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (telephone) (202) 226-1360 (facsimile) Kerry.Kircher@mail.house.gov Counsel for Intervenor-Appellee the Bipartisan Legal Advisory Group of the U.S. House of Representatives August 2, 2013

CERTIFICATE OF SERVICE I hereby certify that, on August 2, 2013, a copy of the foregoing Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Withdraw as Intervenor-Appellee was filed electronically via the courts CM/ECF system and served by mail on anyone unable to accept electronic filing. Parties may access this filing through the courts CM/ECF system. Notice of this filing will be sent by e-mail to all parties by operation of the courts electronic filing system.

/s/ Kerry W. Kircher Kerry W. Kircher