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1:11-cv-11905 #33

1:11-cv-11905 #33

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Doc #33 - BLAG's Memo in support of motion to intervene.
Doc #33 - BLAG's Memo in support of motion to intervene.

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Case 1:11-cv-11905-RGS Document 33 Filed 05/01/12 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS __________________________________________ ) SHANNON L. MCLAUGHLIN, et al., ) ) Plaintiffs, ) ) v. ) ) LEON PANETTA, et al., ) ) Defendants. ) __________________________________________)

No. 1:11-cv-11905

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO INTERVENE Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 (202) 234-0090 (phone) (202) 234-2806 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives

Of Counsel: Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Kirsten W. Konar, Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (phone) (202) 226-1360 (fax)

May 1, 2012

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. ii INTRODUCTION ...................................................................................................1 BACKGROUND .....................................................................................................2 ARGUMENT ...........................................................................................................7 I. II. III. IV. House Intervention Is Appropriate Under Rule 24(a)(2). ................7 House Intervention Is Appropriate Under Rule 24(b)(1)(B) .........11 House Intervention Is Appropriate Under Rules 24(a)(1) and/or 24(b)(1)(A) .........................................................................12 The House Has Standing. ...............................................................13 A. B. The House Need Not Demonstrate Independent Standing To Intervene Here ...............................................14 The House Satisfies Article III Standing Requirements. ...15

CONCLUSION ......................................................................................................17 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES Cases Adolph Coors Co. v. Brady, 944 F.2d 1543 (10th Cir. 1991) .....................................................................6, 16 Am. Fed’n of Gov’t Emps. v. United States, 634 F. Supp. 336 (D.D.C. 1986) ....................................................................5 Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153 (1989) .......................................................................................5 Ameron, Inc. v. U.S. Army Corps of Eng’rs, 607 F. Supp. 962 (D.N.J. 1985) .....................................................................6 Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875 (3d Cir. 1986)...........................................................................15-16 Assoc’d Builders & Contractors v. Perry, 16 F.3d 688 (6th Cir. 1994) ...........................................................................14 B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541 (1st Cir. 2006) ..........................................................................8 Barnes v. Carmen¸ 582 F. Supp. 163 (D.D.C. 1984) ....................................................................6, 16 Beverly Enters., Inc. v. Trump, 182 F.3d 183 (3d Cir. 1999)...........................................................................5 Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla.) ....................................................................3, 4, 6, 10 Cooper-Harris v. United States, No. 2:12-cv-00887 (C.D. Cal) ......................................................................4, 7 Cotter v. Mass. Ass'n of Minority Law Enforcement Officers, 219 F.3d 31 (1st Cir. 2000) ............................................................................16 Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa.) ........................................................................6, 10 Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104 (1st Cir. 1999) ..........................................................................16

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Dickerson v. United States, 530 U.S. 428 (2000) .......................................................................................5 Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-01564 (N.D. Cal.) ...........................................................................3, 6, 10 Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc) ...........................................................5 Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal.) ........................................................................3, 4, 6, 10 Helstoski v. Meanor, 442 U.S. 500 (1979) .......................................................................................5 Hunt v. Ake, No. 8:04-cv-1852 (M.D. Fla.) ........................................................................3 In re Benny, 44 B.R. 581 (N.D. Cal. 1984) .......................................................................6, 16 In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) .....................................................................5 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ......................................................3 In re Koerner, 800 F.2d 1358 (5th Cir. 1986) .......................................................................6, 15 In re Moody, 46 B.R. 231 (M.D.N.C. 1985) .......................................................................6, 16 In re Prod. Steel, Inc., 48 B.R. 841 (M.D. Tenn. 1985) .....................................................................6 In re Search of the Rayburn House Office Bldg., 432 F. Supp. 2d 100 (D.D.C. 2006) ..............................................................5 In re Tom Carter Enters., Inc., 44 B.R. 605 (C.D. Cal. 1984) ........................................................................6, 16 INS v. Chadha, 462 U.S. 919 (1983) .......................................................................................passim Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) .......................................................................................5 iii

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Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal.) ......................................................................4, 6, 10, 14 Maine v. Dir., U.S. Fish and Wildlife Serv., 262 F.3d 13 (1st Cir. 2001) ............................................................................10 Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.) ...............................................passim Morrison v. Olson, 487 U.S. 654 (1988) .......................................................................................5 Neponset Landing Corp. v. Nw. Mut. Life Ins. Co., No. 10-cv-11963, 2011 WL 2417128 (D. Mass. June 10, 2011) ...................9 North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987) ....................................................................5 P.R. Tel. Co. v. Sistema de Retiro de los Empleados del Gobierno y la Judicata, 637 F.3d 10 (1st Cir. 2011) ............................................................................8 Pedersen v. U.S. Office of Pers. Mgmt., No. 3:10-cv-01750 (D. Conn.) .......................................................................6, 10 Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197 (1st Cir. 1998) ..........................................................................8, 10 R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1 (1st Cir. 2009) ..............................................................................8 Raines v. Byrd, 521 U.S. 811 (1997) .......................................................................................5 Renzi v. United States, No. 11-557 (U.S.)...........................................................................................5 Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill.) ........................................................................6 Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998) .........................................................................14 San Juan Cnty., Utah v. United States, 503 F.3d 1163 (10th Cir. 2007) .....................................................................14

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Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ............................................................3 Sullivan v. Bush, No. 1:04-cv-21118 (S.D. Fla.) .......................................................................3 Synar v. United States, 626 F. Supp. 1374 (D.D.C. 1986) ..................................................................6 Torres-Barragan v. Holder, No. 10-55768 (9th Cir.) .................................................................................6 Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal.) ......................................................................3 Transamerica. Ins. Co. v. South, 125 F.3d 392 (7th Cir. 1997) .........................................................................16 Travelers Indem. Co. v. Dingwell, 884 F.2d 629 (1st Cir. 1989) ..........................................................................9 Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) .......................................................................................10 U.S. Postal Serv. v. Brennan, 579 F.2d 188 (2d Cir. 1978)...........................................................................14 United States v. AVX Corp., 962 F.2d 108 (1st Cir. 1992) ..........................................................................14 United States v. Helstoski, 442 U.S. 477 (1979) .......................................................................................5 United States v. Lovett, 328 U.S. 303 (1946) .......................................................................................9 United States v. McDade, 28 F.3d 283 (3d Cir. 1994).............................................................................5 United States v. Renzi, 651 F.3d 1012 (9th Cir. 2011) .......................................................................5 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .........................................................3 Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y.).......................................................................6, 10, 14 v

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Constitutional Authorities U.S. Const. art. I, § 1..................................................................................................9 U.S. Const. art. I, § 7..................................................................................................9 U.S. Const. art. I, § 8..................................................................................................9 U.S. Const. art. II, § 3 ................................................................................................2

Statutes and Legislative Authorities 1 U.S.C. § 7 ................................................................................................................passim 10 U.S.C. § 101 ..........................................................................................................1 28 U.S.C. § 530D .......................................................................................................13 28 U.S.C. § 2403 ........................................................................................................12, 13 32 U.S.C. § 101 ..........................................................................................................1 38 U.S.C. § 101 ..........................................................................................................passim Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(1), 89 Stat. 1013 (1975) ..........................2 Fed. R. Civ. P. 24 .......................................................................................................7, 9, 11, 12, 13 121 Cong. Rec. (1975) ...............................................................................................2 142 Cong. Rec. (1996) ...............................................................................................2 11 Weekly Comp. Pres. Doc. (1975) .........................................................................2 32 Weekly Comp. Pres. Doc. (1996) .........................................................................2

Other Authorities 6 James Wm. Moore, et al., Moore’s Federal Practice § 24.11 (3d ed. 2011) ............................................11, 12 Press Release, Speaker of the House John Boehner, House Will Ensure DOMA Constitutionality Is Determined by Courts (Mar. 9, 2011)................................................................................4 vi

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Mem. for the Fed. Resp’t, U.S. House of Representatives v. INS, Nos. 80-2170 & 80-2171, 1981 U.S. S. Ct. Briefs LEXIS 1423 (Aug. 28, 1981) .............................................................................................15

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INTRODUCTION Plaintiffs are eight same-sex couples who allege that they are married pursuant to the laws of states that permit such unions. See Compl. for Declaratory, Injunctive, and Other Relief ¶¶ 29, 34, 38, 42, 46, 50, 54, 59 (Oct. 27, 2011) (ECF No. 1) (“Complaint”). The Complaint alleges that each couple includes at least one current or former military service member, id. ¶¶ 30, 35, 39, 43, 47, 51, 55, 59, and that the respective couples are being denied spousal benefits currently provided to opposite-sex spouses of current and former service members. Id. ¶¶ 1, 33, 37, 41, 45, 49, 53, 58, 62. According to the Complaint, the denial of these benefits is attributable to: ● ● ● ● Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (“DOMA”), codified at 1 U.S.C. § 7; 10 U.S.C. § 101(f)(5); 32 U.S.C. § 101(18); and/or 38 U.S.C. § 101(3) & (31).

Plaintiffs ask this Court, among other things, to declare DOMA Section 3 and 38 U.S.C. § 101(3) & (31) unconstitutional under the equal protection and substantive due process components of the Fifth Amendment’s Due Process Clause. See Compl. ¶¶ 3, 87, 98, 107, 118, 127, 138 and p. 32 (¶¶ (a)-(c)). For the reasons set forth below, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) should be permitted to intervene as a defendant in this matter for the purpose of defending DOMA Section 3 and 38 U.S.C. § 101(3) & (31) against Plaintiffs’ equal protection and substantive due process challenges (and litigating related jurisdictional issues, if any).

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BACKGROUND 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 of Justice, in particular, in furtherance of that responsibility, to defend the constitutionality of duly enacted federal laws when they are challenged in court. DOMA and 38 U.S.C. § 101(3) & (31) are such laws. Congress Enacts DOMA. 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 (daily ed. July 12, 1996) (House vote on H.R. 3396); 142 Cong. Rec. S10129 (daily ed. 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. 30, 1996). Congress Enacts Subsections 101(3) & (31) of Title 38. The provisions currently codified at 38 U.S.C. § 101(3) & (31) initially were adopted by the 94th Congress in 1975 as part of the Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(1), 89 Stat. 1013 (1975). The House passed the bill that eventually became that law by a vote of 400-0; the Senate amended and then passed that bill by unanimous consent; and the House then agreed to the Senate’s amendment, also by unanimous consent. See 121 Cong. Rec. 34941 (Nov. 4, 1975) (House vote on H.R. 10355); 121 Cong. Rec. 41316 (Dec. 17, 1975) (amendment and passage by Senate); 121 Cong. Rec. 41758 (Dec. 18, 1975) (House agreement to Senate Amendment). President Ford signed the bill into law on December 23, 1975. See 11 Weekly Comp. Pres. Doc. 1397 (Dec. 29, 1975). The Department Carries Out – Then Abandons – Its Constitutional Responsibilities. From 2004-2011, during both the Bush and Obama administrations, the Department repeatedly

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defended the constitutionality of DOMA Section 3 against all constitutional challenges.1 In February 2011, however, the Attorney General abruptly reversed course and announced his conclusion that Section 3, “as applied to same sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment,” and that, as a result, the Department no longer would defend the statute in court against equal protection challenges. Letter from Eric H. Holder, Jr., Att’y Gen., to the Honorable John A. Boehner, Speaker, U.S. House of Representatives at 1, 5 (Feb. 23, 2011) (“First Holder Letter”), attached as Exhibit to Am. Notice to the Ct. (Feb. 22, 2012) (ECF No. 29). The Attorney General’s candid acknowledgement (i) that ten U.S. circuit courts of appeal [actually eleven] had rejected his conclusion that sexual orientation classifications are subject to a heightened standard of scrutiny, id. at 3-4 nn.4-6, and (ii) that “professionally responsible” arguments can be advanced in defense

Bush Administration – E.g., Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part, 447 F.3d 673 (9th Cir.) (plaintiffs lacked standing to challenge DOMA Section 3), cert. denied, 549 U.S. 959 (2006); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (constitutional challenges to DOMA dismissed for failure to state claim); Order, Sullivan v. Bush, No. 1:04-cv-21118 (S.D. Fla. Mar. 16, 2005) (ECF No. 68) (granting plaintiff’s motion for voluntary dismissal after defendants moved to dismiss); Order, Hunt v. Ake, No. 8:04-cv-01852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35) (constitutional challenges to DOMA Section 3 dismissed for failure to state claim); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (holding that DOMA Section 3 does not violate Fifth Amendment). Obama Administration – E.g., Corrected Br. for the U.S. Dep’t of Health and Human Servs., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 19, 2011) (ECF No. 5520069); Fed. Defs.’ . . . Mot. to Dismiss, Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-cv-01564 (N.D. Cal. July 2, 2010) (ECF No. 25); Mem. in Supp. of Defs.’ Mot. to Dismiss Pl.’s First Am. Compl., Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv0257 (N.D. Cal. May 10, 2010) (ECF No. 49); Defs.’ . . . Mot. to Dismiss, Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. Mar. 5, 2010) (ECF No. 7); Br. in Supp. of Mot. to Dismiss . . . , Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla. Oct 13, 2009) (ECF No. 138). There were no constitutional challenges to DOMA Section 3 prior to 2004. 3

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of DOMA Section 3, id. at 5, suggested very pointedly that this decision was not predicated primarily on constitutional or other legal considerations.2 At the same time, the Attorney General articulated the Department’s “interest in providing Congress a full and fair opportunity to participate in the litigation in [the] cases [at issue].” Id. at 6. In response, the House determined on March 9, 2011, to defend DOMA Section 3 in civil actions in which that statute’s constitutionality has been challenged. See Press Release, Speaker of the House John Boehner, House Will Ensure DOMA Constitutionality Is Determined by Court (Mar. 9, 2011) (“House General Counsel has been directed to initiate a legal defense of [DOMA Section 3]”), available at http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539. Insofar as we are aware, prior to the filing of the complaints in this case and in CooperHarris v. United States, No. 2:12-cv-00887 (C.D. Cal. Feb. 1, 2012) (ECF No. 1), 38 U.S.C. § 101(3) & (31) had never been the subject of a constitutional challenge. As a result of the filing of those two complaints, however, the Attorney General informed the House on February 17,

While the First Holder Letter did not specifically mention the substantive due process component of the Fifth Amendment, in practice, the Department, since February 2011, has declined to advance any meaningful defense of DOMA Section 3 against substantive due process challenges. For example, in Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla.), the Department mounted no defense of its own to the plaintiffs’ substantive due process challenges to DOMA Section 3; the Department merely stated in a footnote, after leaving the House to defend against that claim, that the Department agreed with the House’s defense. See Resp. of Defs. [Dep’t] to [House’s] Cross-Mot. for Summ. J. at 3 n.4, 4:04-cv-00848 (Nov. 18, 2011) (ECF No. 225). In other cases, the Department has not even gone that far. See, e.g., Superseding Br. for the U.S. Dep’t of Health and Human Services at 46 n.20, Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082) (failing to respond to plaintiffs’ substantive due process claim); Defs.’ Opp’n to [House]’s Mot. to Dismiss, Lui v. Holder, No. 11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28) (same); Defs.’ Br. in Opp’n to Mots. to Dismiss, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal. July 1, 2011) (ECF No. 145) (same). 4

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2012, that the Department also would not defend that statute against claims that it violates the equal protection component of the Fifth Amendment. See Letter from Eric H. Holder, Jr., Att’y Gen., to the Honorable John A. Boehner, Speaker, U.S. House of Representatives (Feb. 17, 2012) (“Second Holder Letter”), attached as Exhibit 2 to Notice to the Ct. (Feb. 21, 2012) (ECF No. 28). As before, the Attorney General articulated the Department’s interest in “providing Congress a full and fair opportunity to participate in the litigation” in this case. Id. at 2. Consistent with its prior decision to defend DOMA Section 3 against equal protection challenges, the House then determined that it also would defend 38 U.S.C. § 101(3) & (31) in this and other cases in which that statute’s constitutionality has been challenged.3 The House’s Participation as Intervenor in Similar Litigation. While the House most often appears in judicial proceedings as amicus curiae,4 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

As with the First Holder Letter, the Second Holder Letter does not specifically mention substantive due process claims. However, because the Department, in practice since February 2011, has not vigorously defended DOMA Section 3 against substantive due process challenges, see supra, p. 4 n. 2, it is fair to assume that the Department also will not meaningfully defend 38 U.S.C. § 101(3) & (38) against plaintiffs’ substantive due process claims in this case. For this reason, it is appropriate for the House to defend the statutes against those claims. See, e.g., Br. of Amicus Curiae the Bipartisan Legal Advisory Group of the U.S. House of Representatives in Supp. of Pet’r, Renzi v. United States, No. 11-557 (U.S. Dec. 2, 2011); 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, 651 F.3d 1012, 1015 (9th Cir. 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., Inc. v. Trump, 182 F.3d 183, 186 (3d Cir. 1999); United States v. McDade, 28 F.3d 283, 286 (3d Cir. 1994); In re Search of the 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). 5
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House has intervened to defend the constitutionality of federal statutes when the Department has abandoned its responsibility 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); In re Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986); Synar v. United States, 626 F. Supp. 1374, 1378-79 (D.D.C.), aff’d sub nom. Bowsher v. Synar, 478 U.S. 714 (1986); Ameron, Inc. v. U.S. Army Corps 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. Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1985), rev’d on mootness grounds sub nom. Burke v. Barnes, 479 U.S. 361, 362 (1987); In re Prod. Steel, Inc., 48 B.R. 841, 842 (M.D. Tenn. 1985); In re Moody, 46 B.R. 231, 233 (M.D.N.C. 1985); In re Tom Carter Enters., Inc., 44 B.R. 605, 606 (C.D. Cal. 1984); In re Benny, 44 B.R. 581, 583 (N.D. Cal. 1984), aff’d in part & dismissed in part, 791 F.2d 712 (9th Cir. 1986). Over the past ten months, the House has moved to intervene in eleven other cases that present the issue of DOMA Section 3’s constitutionality. All ten federal courts that have ruled on such House motions to intervene to date – including the First Circuit – have permitted House intervention.5

See Order, Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Apr. 10, 2012) (ECF No. 56), attached as Exhibit A; Order of Ct., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. June 16, 2011) (ECF No. 5558549), attached as Exhibit B; Mem. Op. & Order at 16-20, Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. Jan. 5, 2012) (ECF No. 33), attached as Exhibit C; Order, Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Dec. 16, 2011) (ECF No. 82), attached as Exhibit D; Order, Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla. Aug. 5, 2011) (ECF No. 181), attached as Exhibit E; Order, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. July 13, 2011) (ECF No. 25), attached as Exhibit F; Order Granting Mot. of [the House] to Intervene for a Limited Purpose, Dragovich v. U.S. Dep’t of the Treasury, No. 4:10-cv-01564 (N.D. Cal. June 10, 2011) (ECF No. 88), attached as Exhibit G; Order Granting the Mot. of the [House] to Intervene for a Limited Purpose, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal. June 3, 2011) (ECF No. 116), attached as Exhibit H; Mem. & Order, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 2, 2011) (ECF No. 26), attached as Exhibit I; Minute Order, Pedersen v. U.S. Office of Pers. Mgmt., No. 3:10-cv-01750 (D. Conn. May 27, 2011) (ECF No. 55), attached as Exhibit J.
(Continued . . .)

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Accordingly, in light of the First and Second Holder Letters, this Court should permit the House to intervene here for the purpose of defending the constitutionality of DOMA Section 3 and 38 U.S.C § 101(3) & (31) against claims that those statutes violate the equal protection and substantive due process components of the Due Process Clause of the Fifth Amendment, as well as litigating related jurisdictional issues, if any. ARGUMENT As the Supreme Court has made clear, “Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha, 462 U.S. at 940. It is unsurprising, then, that ten courts already have permitted the House to intervene to defend DOMA (and none has refused intervention), and that the House qualifies for intervention on numerous bases here. I. House Intervention Is Appropriate Under Rule 24(a)(2). Federal Rule 24(a)(2) provides that: On timely motion, the court must permit anyone to intervene who: * * * *

(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 action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. Under the law of this Circuit:

One motion remains outstanding at this time. See Mot. of the [House] for Leave to Intervene, Cooper-Harris v. United States, No. 2:12-cv-00887 (C.D. Cal. Apr. 2, 2012) (ECF No. 17). 7

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a putative intervenor must establish (i) the timeliness of its motion to intervene; (ii) the existence of an interest relating to the property or transaction that forms the basis of the pending action; (iii) a realistic threat that the disposition of the action will impede its ability to protect that interest; and (iv) the lack of adequate representation of its position by any existing party. R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 7 (1st Cir. 2009); see also B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544-45 (1st Cir. 2006) (citing Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998)). The House easily satisfies each of the requirements here. Timeliness. “[T]he concept of timeliness of a petition . . . derives meaning from assessment
of prejudice in the context of the particular litigation.” P.R. Tel. Co. v. Sistema de Retiro de los

Empleados del Gobierno y la Judicata, 637 F.3d 10, 15 (1st Cir. 2011). This lawsuit was filed on October 27, 2011. The House promptly notified the Court of its status as a potential intervenor on November 18, 2011. See Notice of Potential Intervenor the [House] (Nov. 18, 2011) (ECF No. 12). While the Plaintiffs already have moved for summary judgment, see Pls.’ Mot. for Summ. J. (Nov. 21, 2011) (ECF No. 13), a response is not yet due because (i) the Court thereafter stayed all proceedings until April 28, 2012, see Minute Order (Feb. 15, 2012) (granting motion to stay case for sixty days until April 28, 2012); and (ii) the Court more recently stayed the defendants’ obligation to respond to the summary judgment motion until 21 days after the First Circuit rules in Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, & 10-2207 (1st Cir.). See Minute Order (Apr. 22, 2012).6 Moreover, given that all proceedings in the case were stayed until Saturday, April 28, 2012, the House was unable to file until the stay expired, which it only just did. See also Minute

6

The Massachusetts case was argued on April 4, 2012, and is now under submission. 8

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Order (Apr. 12, 2012) (summarily denying Plaintiffs’ motion for order requiring House to move to intervene by April 20, 2012). Finally, as detailed above, it was only when the House received the Second Holder Letter on February 17, 2012, that the House learned of the Department’s intentions regarding the defense of 38 U.S.C. § 101(3) & (31), thereby making it possible for the House to determine the necessary scope of its intervention. See supra at pp. 4-5. Accordingly, the House’s motion causes no delay in the proceedings and no prejudice to any of the parties and is, therefore, timely under Rule 24(a)(2). Interest. Fulfillment of the interest element requires that the intervenor’s claims must bear a “sufficiently close relationship” to the dispute between the original litigants, and the interest must be “direct, not contingent.” Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638 (1st Cir. 1989); see also Neponset Landing Corp. v. Nw. Mut. Life Ins. Co., No. 10-cv-11963, 2011 WL 2417128, at *4 (D. Mass. June 10, 2011). Here, the House self-evidently has a direct interest in defending the constitutionality of its legislative handiwork, given the House’s central constitutional role in creating the legislation, U.S. Const. art. I, §§ 1, 7, 8, and particularly where, as here, the House bill including the provision that became 38 U.S.C § 101(3) & (31) was enacted without a single dissenting vote, and the House bill that became DOMA passed the House by a substantial and bipartisan majority a mere 16 years ago. See supra p. 2; see also Chadha, 462 U.S. at 940; United States v. Lovett, 328 U.S. 303 (1946). Impairment. With respect to the impairment prong of the analysis, “the applicant must be so situated that the disposition of the action may as a practical matter impair or impede her ability to protect that interest.” Dingwell, 884 F.2d at 637. The disposition of this case threatens the House’s ability to protect its interest in seeing that the statutes’ constitutionality is upheld 9

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because (i) the Plaintiffs contend that DOMA Section 3 and 38 U.S.C. § 101(3) & (31) are unconstitutional under the Due Process Clause; (ii) the Department refuses to defend the statutes against those challenges; and (iii) the Department almost certainly affirmatively will attack the constitutionality of DOMA Section 3 and 38 U.S.C. § 101(3) & (31), just as it has in other cases presenting the issue of DOMA Section 3’s constitutionality.7 Therefore, unless the House intervenes here, it will have no ability to protect its constitutional interests. Adequacy of Representation. Finally, regarding the adequacy of the representation of existing parties, the Supreme Court has said that would-be intervenors need only make a minimal showing in this regard, and only to the effect that representation may be inadequate (not that it actually is). See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972) (cited in Maine v. Dir., U.S. Fish and Wildlife Serv., 262 F.3d 13, 18 (1st Cir. 2001)). That showing need only include “some tangible basis to support a claim of purported inadequacy.” Patch, 136 F.3d at 207.

See, e.g., Superseding Br. for U.S. Dep’t of HHS at 25-45, Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082) (taking position that DOMA Section 3 is subject to heightened constitutional scrutiny and is unconstitutional under that standard); Fed Defs.’ Br. in Partial Supp. of Pls.’ Mot. for Summ. J. at 4-24, Dragovich v. U.S. Dep’t of Treasury, 4:10-cv-01564 (N.D. Cal. Jan. 19, 2012) (ECF No. 108) (same); Br. of [Dep’t] Regarding the Constitutionality of Section 3 of DOMA at 6-31, Cozen O’Connor, P.C. v. Tobits, 2:11-cv-00045 (E.D. Pa Dec. 30, 2012) (ECF No. 97) (same); Resp. of Defs. [Dep’t] to [House]’s Cross-Mot. for Summ. J. at 5-21, Bishop v. United States, 4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225) (same); Defs.’ Mem. of Law in Supp. of Pls.’ Mot. for Summ. J. & [House’s] Mot. to Dismiss at 8-34, Pedersen v. U. S. Office of Pers. Mgmt., 3:10-cv-01750 (D. Conn. Sept. 14, 2011) (ECF No. 98) (same); Defs.’ Opp’n to [House]’s Mot. to Dismiss at 6-21, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28) (same); Def. [Dep’t]’s Mem. of Law in Resp. to Pl.’s Mot. for Summ. J. & [House]’s Mot. to Dismiss at 4-27, Windsor v. United States, 10-cv-08435 (S.D.N.Y. Aug. 19, 2011) (ECF No. 71) (same); Defs.’ Br. in Opp’n to [House]’s Mots. to Dismiss, Golinski v. U. S. Office of Pers. Mgmt. at 3-18, No. 3:10-cv-00257 (N.D. Cal. July 1, 2011) (ECF No. 145) (same). 10

7

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Given that the Department has wholly forsaken in this case its constitutional responsibility to defend DOMA Section 3 and 38 U.S.C. § 101(3) & (31), and given the nearcertainty that the Department will align itself with Plaintiffs in affirmatively attacking the statutes’ constitutionality, it is self-evident that none of the existing parties represent the House’s interest in defending the constitutionality of DOMA Section 3 and 38 U.S.C. § 101(3) & (31) against equal protection challenges. See Chadha, 462 U.S. at 940. Accordingly, intervention by the House as of right under Rule 24(a)(2) is appropriate. II. House Intervention Is Appropriate Under Rule 24(b)(1)(B). Federal Rule of Civil Procedure 24(b)(1)(B) provides that: On timely motion, the court may permit anyone to intervene who: * * * *

(B) has a claim or defense that shares with the main action a common question of law or fact. The House’s motion to intervene satisfies both these requirements. The House’s motion is timely for purposes of Rule 24(b)(1)(B) for the same reasons it is timely for purposes of Rule 24(a)(2). See supra pp. 8-9. With respect to the “common question of law or fact” requirement, that language “should be given its plain meaning and read in the disjunctive.” 6 James Wm. Moore et al., Moore’s Federal Practice § 24.11 (3d ed. 2012). The House plainly has a defense here – i.e., that DOMA Section 3 and 38 U.S.C. § 101(3) & (31) are constitutional – that shares with the main action a “common question of law.” See, e.g., Compl. ¶¶ 3, 87, 98, 107, 118, 127, 138 and p. 32 (¶¶ (a)(c)) (asserting that DOMA Section 3 violates the equal protection and substantive due process component of the Fifth Amendment’s Due Process Clause); id. ¶¶ 128, 139, and p. 32 ¶ (c) (asserting same with respect to 38 U.S.C. § 101(3) & (31)).

11

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Finally, in ruling on requests for permissive intervention, this Court also should take into account (i) the fact that the House only seeks to intervene for a limited purpose, see 6 Moore’s Federal Practice § 24.11 (“A less stringent standard [as to the question of the commonality of law or fact required] may be applied if a movant seeks intervention for a very limited purpose rather than full participation in the litigation.”); (ii) the fact that the House has been permitted to intervene in every other case presenting the issue of the constitutionality of DOMA Section 3 in which the House has sought to intervene, see supra p. 6 & n.5; (iii) the House’s unique perspective, as one of the enacting legislative bodies, on the question of the constitutionality of DOMA Section 3 and 38 U.S.C. § 101(3) & (31); and (iv) the added value the House will bring to this litigation in terms of aiding the Court in resolving the constitutional questions presented, given that no other party will be defending the statutes. III. House Intervention Is Appropriate Under Rules 24(a)(1) and/or 24(b)(1)(A). Federal Rule 24(a)(1) provides for intervention as of right where the proposed intervenor “is given an unconditional right to intervene by a federal statute,” while Rule 24(b)(1)(A) provides for permissive intervention where the proposed intervenor “is given a conditional right to intervene by a federal statute.” A “federal statute,” namely 28 U.S.C. § 2403(a), clearly contemplates that the federal government will defend the constitutionality of acts of Congress when they are challenged: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court . . . shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States 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 to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. 12

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Id. (emphasis added). Here, of course, officers of the United States are parties but, in light of the Department’s refusal to play the role contemplated by Section 2403(a), it is appropriate for the House to intervene to discharge that function. See 28 U.S.C. § 530D(b)(2) (specifically contemplating that House and/or Senate may intervene to defend constitutionality of federal statute where the Department refuses to do so). Moreover, where, as here, the Department abdicates its responsibility to defend a challenged statute, the Supreme Court has held that the Legislative Branch may, if it wishes, accept that responsibility: “Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha, 462 U.S. at 940 (emphasis added). That is precisely the situation here. As noted above, numerous other courts have followed Chadha’s direction and permitted the House to intervene to defend the constitutionality of federal statutes. See supra p. 6 & n.5. Accordingly, whether the Court construes 28 U.S.C. §§ 2403(a), 530D(b)(2), considered together, as vesting the Legislative Branch with an “unconditional right to intervene,” Rule 24(a)(1), or a “conditional right to intervene,” Rule 24(b)(1)(A), intervention here by the House to defend the constitutionality of DOMA Section 3 and 38 U.S.C. § 101(3) & (31) clearly is appropriate. IV. The House Has Standing. In other cases in which the House has moved to intervene, the Department has contended that the House lacked standing to intervene. We fully expect the Department will do so again here, notwithstanding that it does not oppose our motion to intervene, and notwithstanding that

13

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such a contention has absolutely no merit. See, e.g., Order, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. July 13, 2011) (ECF No. 25) (“adopt[ing] the reasoning in Windsor v. United States, No. 1:10-cv-08435 . . . (S.D.N.Y. June 2, 2011) (ECF No. 26),” which held expressly that the House “has standing to intervene . . . to defend the constitutionality of Section 3 of DOMA.” Id. at 10.). Indeed, none of the ten courts that to date have ruled on House motions to intervene – including the First Circuit, see Order of Ct., Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. June 16, 2011) (ECF No. 5558549) – have held that the House lacked standing. See supra p. 6 n.5. And with good reason, as we now explain. A. The House Need Not Demonstrate Independent Standing To Intervene Here.

So long as the Executive Branch Defendants are parties to this action – and they will remain parties, regardless of the role the Department chooses to play or not play in this litigation, until the claims against them are dismissed or the case concludes, neither of which has occurred – the House need not demonstrate any standing here. See United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992) (“[I]ntervenor’s standing was immaterial in the lower court [because of the presence of original parties]”); U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (“The question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to cases and controversies. The existence of a case or controversy having been established as between the [existing parties], there was no need to impose the standing requirement upon the proposed intervenor [defendant].” (quotation marks, citations, and parentheses omitted)); San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc) (Article III standing not required for defendant intervention where ongoing case or controversy); Ruiz v. Estelle, 161 F.3d 814, 830-32 (5th Cir. 1998) (same); Assoc’d Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (same).

14

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B.

The House Satisfies Article III Standing Requirements.

Although the Court need not reach this issue, it is clear from Chadha that the House does have independent standing to intervene here. In Chadha, a private party challenged the constitutionality of a federal statute that the Department refused to defend. After the Ninth Circuit ruled for the plaintiff, the House (and the Senate) moved to intervene for the purpose of filing a petition for certiorari. Chadha, 462 U.S. at 930 n.5. The Ninth Circuit granted that motion, and the Supreme Court granted the subsequent House and Senate petitions for certiorari, holding – over the Department’s suggestion otherwise, see Mem. for the Fed. Resp’t, U.S. House of Representatives v. INS, Nos. 80-2170 & 80-2171, 1981 U.S. S. Ct. Briefs LEXIS 1423, at *4 (Aug. 28, 1981) – that “Congress is both a proper party to defend the constitutionality of [the statute] and a proper petitioner under [the statute governing petitions for writs of certiorari].” Chadha, 462 U.S. at 939. In so holding, the Supreme Court made crystal clear that the House (and the Senate) had Article III standing: “[A]n appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists . . . because of the presence of the two Houses of Congress as adverse parties.” Id. at 931 n.6 (emphasis added). Therefore, when the Department defaults on its constitutional responsibilities to defend the constitutionality of statutes, as it has here, the House may intervene and, when it does, it has Article III standing. In keeping with Chadha’s holding, congressional entities – including specifically the House through its Bipartisan Legal Advisory Group – repeatedly have intervened to defend the constitutionality of legislation the Department has refused to defend. See, e.g, In re Koerner, 800 F.2d at 1360 (“In response [to the Department’s support for plaintiff’s constitutional challenge to the Bankruptcy and Federal Judgeship Act of 1984], the United States Senate and the House Bipartisan Leadership Group intervened to defend the constitutionality of the 1984 Act.”); Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787 F.2d 875, 879, 880 (3d Cir.) (President 15

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Reagan declared Competition in Contracting Act [“CICA”] unconstitutional and “upon the advice of the Attorney General . . . ordered the executive department not to observe it”; the district court “grant[ed] the motion of the Senate, the Speaker, and the Bipartisan Leadership Group of the House to intervene as plaintiffs to support the constitutionality of CICA”), aff’d 809 F.2d 979 (3d Cir. 1986); Adolph Coors Co., 944 F.2d at 1545; Barnes, 582 F. Supp. at 164; In re Moody, 46 B.R. at 233; In re Tom Carter Enters., Inc., 44 B.R. at 606; In re Benny, 44 B.R. at 583. Moreover, and in any event, in this Circuit, “an applicant who satisfies the ‘interest’ requirement of the intervention rule is almost always going to have a sufficient stake in the controversy to satisfy Article III as well.” Cotter v. Mass. Ass’n of Minority Law Enforcement Officers, 219 F.3d 31, 34 (1st Cir. 2000) (citing Transamerica Ins. Co. v. South, 125 F.3d 392, 396 n.4 (7th Cir. 1997)); see also Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 110 (1st Cir. 1999) (“Although the two are not identical, the ‘interest’ required under Rule 24(a) has some connection to the interest that may give the party a sufficient stake in the outcome to support standing under Article III.”). The House’s strong interest in defending the constitutionality of its legislative handiwork easily satisfies this requirement here. See supra p. 9.

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CONCLUSION For all the foregoing reasons, the Court should grant the House’s Motion to Intervene. Respectfully submitted, Paul D. Clement /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 (phone) (202) 234-2806 (fax) cbartolomucci@bancroftpllc.com Counsel for Proposed Intervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives Of Counsel Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Kirsten W. Konar, Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (phone) (202) 226-1360 (fax) May 1, 2012

17

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CERTIFICATE OF SERVICE I hereby certify that on May 1, 2012, I electronically filed the foregoing Memorandum of Points and Authorities in Support of Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives for Leave to Intervene with the Clerk of the Court for the U.S. District Court for Massachusetts using the appellate CM/ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Kerry W. Kircher Kerry W. Kircher

Case 1:11-cv-11905-RGS Document 33-1 Filed 05/01/12 Page 1 of 3

EXHIBIT A

Case: 10-55768 04/10/2012 ID: 8133749 Filed 05/01/12 Page 2 ofof 2 Case 1:11-cv-11905-RGS Document 33-1 DktEntry: 56 Page: 1 3

FILED
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APR 10 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

LUIS FRANCISCO TORRESBARRAGAN; et al., Plaintiffs - Appellants, v. BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor, and ERIC H. HOLDER, Jr., Attorney General, Department of Justice; et al., Defendants - Appellees.

No. 10-55768 D.C. No. 2:09-cv-08564-RGK Central District of California, Los Angeles

ORDER

Before: PREGERSON, CANBY, and FISHER, Circuit Judges. The unopposed motion of the Bipartisan Legal Advisory Group of the United States House of Representatives to intervene on behalf of appellees is granted. The motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. See Fed. R. App. P. 42(b).
AT/MOATT

Case: 10-55768 04/10/2012 ID: 8133749 Filed 05/01/12 Page 3 ofof 2 Case 1:11-cv-11905-RGS Document 33-1 DktEntry: 56 Page: 2 3

All other pending motions are denied as moot. DISMISSED.

AT/MOATT

2

10-55768

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EXHIBIT B

Case: 10-2204 Case 1:11-cv-11905-RGS Document1 Document: 00116221480 Page: 33-2Date Filed: 06/16/2011 2 of 4 ID: 5558549 Filed 05/01/12 Page Entry

United States Court of Appeals
For the First Circuit

No. 10-2204 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Defendants, Appellants. ________________________ No. 10-2207 NANCY GILL, ET AL., Plaintiffs, Appellees, KEITH TONEY; ALBERT TONEY, III, Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants, HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State, Defendant. _________________________ No. 10-2214

Case: 10-2204 Case 1:11-cv-11905-RGS Document2 Document: 00116221480 Page: 33-2Date Filed: 06/16/2011 3 of 4 ID: 5558549 Filed 05/01/12 Page Entry

DEAN HARA, Plaintiff, Appellee/Cross - Appellant, NANCY GILL, ET AL., Plaintiffs - Appellees, KEITH TONEY, ET AL., Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants/Cross - Appellees, HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State, Defendant.

ORDER OF COURT Entered: June 16, 2011 The motion of the Bipartisan Legal Advisory Group of the United States House of Representatives ("the House") to intervene as a party appellant is granted. The federal defendants' motion to withdraw their opening brief is denied; however, the federal defendants may file a superseding brief. Briefing shall proceed on the following schedule: 30 days after order allowing intervention: Opening brief of intervenor (the House) in Nos. 10-2204 and 10-2207 Superseding brief of appellants (the federal defendants) in Nos. 10-2204 and 10-2207 30 days from above filings: Response brief of appellee (Commonwealth of Massachusetts) in No. 10-2204 Response brief of appellees (the Gill plaintiffs) in No. 10-2207 combined with opening brief of cross-appellant (Dean Hara) in No. 10-2214 30 days from above filings: Reply brief of intervenor (the House) in Nos. 10-2204 and 10-2207 Reply brief of appellants (the federal defendants) in Nos. 10-2204 and 10-2207, combined with response brief of cross-appellees (the federal defendants) in No. 10-2214

Case: 10-2204 Case 1:11-cv-11905-RGS Document3 Document: 00116221480 Page: 33-2Date Filed: 06/16/2011 4 of 4 ID: 5558549 Filed 05/01/12 Page Entry

14 days from above filings: Reply brief of cross-appellant (Dean Hara) in No. 10-2214 So ordered. By the Court: /s/ Margaret Carter, Clerk.

cc: Counsel of Record

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EXHIBIT C

Case: 1:11-cv-01991 DocumentDocument 33-3 Filed Page 1 of 20 PageID21 Case 1:11-cv-11905-RGS #: 34 Filed: 01/05/12 05/01/12 Page 2 of #:228

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DEMOS REVELIS and MARCEL MAAS, Plaintiff, v. JANET NAPOLITANO, Secretary, Department of Homeland Security, and ERIC H. HOLDER, JR., Attorney General of the United States, Defendants. Case No. 11 C 1991

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER The Plaintiffs, Demos Revelis (“Revelis”) and Marcel Maas

(“Maas”) (collectively, the “Plaintiffs”), are a same-sex couple who married in Iowa. They seek to challenge the constitutionality of

Section 3 of the Defense of Marriage Act (the “DOMA”), 1 U.S.C. § 7. Defendants, Secretary of the Department of Homeland Security Janet Napolitano and Attorney General Eric Holder (collectively, the

“Defendants”) move to dismiss pursuant to FED . R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction. Additionally, in the event the

motion is denied, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the “BLAG”) seeks leave to intervene to defend the constitutionality of the DOMA. For the reasons stated BLAG’s Motion to

herein, Defendants’ Motion to Dismiss is denied. Intervene for a Limited Purpose is granted.

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I.

BACKGROUND A. Facts

The following facts are taken from the Plaintiffs’ Complaint. Revelis is a United States citizen, while Maas is a native and citizen of the Netherlands. The couple lives in Chicago, Illinois.

Maas last entered the country through the Visa Waiver Program in 1999. He and Revelis began dating, moved in together in 2002, and The couple

were married in Davenport, Iowa on Christmas Eve in 2010.

wants to remain in the United States, so Revelis has filed a visa petition, called an I-130 Petition for Alien Relative, on behalf of Maas. Such a visa petition, if approved, would allow Maas to apply 8 U.S.C. §

for lawful permanent residency in the United States. 1151(b)(2)(A)(I); 8 U.S.C. § 1154(a)(1)(A)(I).

On March 10, 2011, the couple was interviewed on the visa petition at the Chicago field office of the U.S. Citizenship and Immigration Services (the “USCIS”), an agency of the Department of Homeland Security. Plaintiffs assert that there has been no

allegation that their marriage was entered into in bad faith, but that regardless of the validity of their marriage, DOMA prohibits the USCIS from approving the visa petition. The agency has not yet ruled on the petition. B. Regulatory and Legal Framework

Under the Immigration and Nationality Act (the “INA”), United States citizens may petition the Attorney General to classify their - 2 -

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spouses as immediate relatives.

8 U.S.C. § 1101, et seq.

If

approved, this allows non-citizen spouses to be granted permanent resident status ahead of other immigrants who want to make their home in the United States. 8 U.S.C. § 1151(b); Smith v. I.N.S., 684

F.Supp. 1113, 1115 (D. Mass. 1988). In order to determine whether a marriage is valid for

immigration purposes, the USCIS must determine whether the marriage is valid under state law and whether it qualifies under the INA. In

re Lovo-Lara, 23 I. & N. Dec. 746, 748 (citing Adams v. Howerton, 673 F.2d 1036, 1038 (9th Cir. 1982)). The validity of a marriage under

state law is generally determined by the law of the place where the marriage was celebrated. Lovo-Lara, 23 I. & N. Dec. at 748.

The INA does not define the word spouse or refer to the sex of the parties. Id. However, the USCIS follows the federal definition Id. at

of marriage and spouse as provided by Section 3 of the DOMA. 748–49. DOMA provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. As such, for immigration purposes “there is no

question that a valid marriage can only be between a man and a woman. Marriages between same-sex couples are excluded.” & N. Dec. at 749. - 3 Lovo-Lara, 23 I.

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The burden of proof is on the petitioners to prove eligibility for an immediate relative visa, including that the marriage is not a sham. See Gipson v. I.N.S., 284 F.3d 913 (8th Cir. 2002). If a visa

petition is denied, the petitioner may appeal to the Board of Immigration Appeals (the “BIA”), which has final administrative authority. Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006).

However, the BIA does not have jurisdiction to review constitutional challenges. 1998). Calderon v. Reno, 39 F.Supp.2d 943, 954 (N.D. Ill.

If an administrative appeal is unsuccessful, the couple may See Ghaly v. I.N.S., 48

seek review in the federal district court. F.3d 1426 (7th Cir. 1995).

In February 2011, the Obama Administration determined that it would no longer defend the constitutionality of Section 3 of DOMA, reasoning that heightened scrutiny should apply to DOMA and that under that standard, it was unconstitutional. See D.E. 15, Ex. A

(letter from Attorney General Holder to Kerry Kircher, General Counsel for the U.S. House of Representatives). However, President

Obama has instructed executive agencies to continue to comply with the law until it is repealed or the judiciary makes a definitive ruling as to its constitutionality. Id.

Although Defendants will not defend the constitutionality of DOMA (hence the motion to intervene by BLAG), they have moved to dismiss this action pursuant to FED. R. CIV . P. 12(b)(1). Defendants

argue that because the USCIS has not yet acted on the petition, - 4 -

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Plaintiffs lack standing and any dispute over the constitutionality of DOMA is unripe. The Court will consider each Motion and its

applicable law in turn. II. A. MOTION TO DISMISS Legal Standard

Federal courts are courts of limited jurisdiction and have only the power authorized by Article III of the Constitution to hear actual cases or controversies. Allen v. Wright, 468 U.S. 737, 750

(1984). Both standing and ripeness are case-or-controversy doctrines that limit federal judicial power. of establishing limitations. that jurisdiction Exp., Inc. Id. is v. Plaintiffs have the burden proper in light 246 of these 1018,

Transit

Ettinger,

F.3d

1023 (7th Cir. 2001).

The Court accepts Plaintiffs’ well-pleaded

factual allegations as true and draws reasonable inferences in their favor. Id. However, the Court may look beyond the pleadings if

necessary to determine whether subject-matter jurisdiction exists. Hay v. Ind. State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002). Plaintiffs’ Complaint sets forth three bases for this Court’s jurisdiction: federal question jurisdiction under 28 U.S.C. § 1331;

jurisdiction under the Administrative Procedures Act (the “APA”), 5 U.S.C. § 701 et seq.; and jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. Neither the APA nor the Declaratory Judgment See

Act provides an independent basis for jurisdiction, however. - 5 -

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Califano v. Sanders, 430 U.S. 99, 106–07 (1977); GNB Battery Techs., Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995). Coupled with an appropriate jurisdictional basis, the APA

provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. As a

preliminary matter, the Court agrees with Defendants that there has been no final action here under the APA. reviewable when: Agency action is final and

(1) the action marks the “consummation of the

agency’s decision-making process, and is not merely tentative or interlocutory; and (2) the action is one by which rights or legal obligations have been determined, or from which legal obligations flow. W. Ill. Home Health Care, Inc., v. Herman, 150 F.3d 659, 662 “The

(1998) (citing Bennett v. Spear, 520 U.S. 154, 178 (1997)).

core question is whether the agency has completed its decision-making process, and whether the result of the process is one that will directly affect the parties.” Herman, 150 F.3d at 662 (quoting

Franklin v. Mass., 505 U.S. 788, 797 (1992)). Plaintiffs argue that an agency’s decision to enforce a law amounts to a final agency action. They cite Abbott Labs. v.

Gardner, 387 U.S. 136, 149-51 (1967), abrogated in part on other grounds by Califano, 430 U.S. at 105, for the proposition that an agency action includes rules, and posit that the agency’s decision to enforce DOMA is a rule that amounts to a final action. Under the

APA, a rule “means the whole or a part of an agency statement of - 6 -

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general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . .” 5 U.S.C. § 551(4). However, a fair reading of Plaintiffs’ Complaint makes it

clear that Plaintiffs are not challenging an agency rule or action, but rather are challenging DOMA itself. This does not implicate the APA, but a federal question is presented on the face of the Complaint in that it presents a substantial, disputed question of federal law; namely, whether the imminent application of DOMA to the petition violates Plaintiffs’ constitutional rights. Federal question jurisdiction exists, then,

provided that the claim is ripe and that Plaintiffs have standing to pursue it. See Wikberg v. Reich, 21 F.3d 188, 189 (7th Cir. 1994). B. In order to have Standing Plaintiffs must meet three

standing,

prerequisites. Plaintiffs must have suffered an “injury in fact,” or an invasion of a legally protected interest that is concrete and particularized, not merely hypothetical. Wildlife, 504 U.S. 555, 560 (1992). Lujan v. Defenders of

Second, there must be a causal

connection between the injury and the complained-of conduct, so that the injury is fairly traceable to the defendant’s actions. Id.

Third, it must be likely, and not merely speculative, that a ruling in favor of the Plaintiffs will redress the injury. Id. at 561.

Plaintiffs argue they have a legally protected interest in the processing of the visa petition because the INA gives Maas a

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statutory right to apply for permanent residence if the I-130 is approved, but DOMA prevents the USCIS from considering their petition on the merits. There can be no question that both Revelis and Maas

have “a valuable right at stake in the marriage petition process.” Ali v. INS, 661 F.Supp. 1234, 1242 n.5 (D. Mass. 1986). citizen, like Revelis, has a statutory right to Further, a the

petition

government to have his alien spouse declared an immediate relative. Id. at 1246 n.6; see 8 U.S.C. § 1154 (providing that, after an investigation, the Attorney General shall approve an immediate

relative petition if he determines that the facts in the petition are true and the alien on behalf of whom the petition is made qualifies as an immediate relative under the INA) (emphasis added). Plaintiffs argue that because of DOMA, Maas can never meet the definition of an immediate relative under INA, even if the USCIS decides that his marriage would otherwise qualify him. See Lovo-Lara, 23 I. & N. Dec. at 749. In arguing that Plaintiffs lack standing, Defendants contend that Plaintiffs cannot have been injured by DOMA because no decision has yet been reached on Revelis’ I-130 petition. It could be

granted, Defendants contend, or denied for a reason having nothing to do with DOMA. See Ali, 661 F.Supp. at 1238–39 (noting that

immigration officials use a variety of investigatory techniques to determine whether marriages between citizens and aliens are shams).

- 8 -

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The

Court

notes

that

the

Administration’s

approach

to

immigration issues involving same-sex couples appears to be in flux, at least in regard to its use of discretion in removal cases. In

April, Attorney General Holder ordered the Board of Immigration Appeals to vacate its decision applying Section 3 of DOMA to deny an alien’s request for cancellation of removal. N. Dec. 485 (2011). In re Dorman, 25 I. &

However, the Administration followed that up

with public statements indicating that the Dorman case did not signal a sea change, and that the Administration would continue to enforce DOMA until and unless it is ruled unconstitutional. Julia Preston,

Justice Dept. to Continue Policy Against Same-Sex Marriage, N.Y. Times, May 9, 2011, at A15. Subsequently, in June, the Administration issued a memorandum providing guidance to Immigration and Customs Enforcement (“ICE”) personnel about the exercise of discretion in removal cases. The

memorandum, from U.S. Department of Homeland Security Director John Morton, notes that ICE has limited personnel and must prioritize its efforts to focus on the removal of those aliens with criminal records or who pose a threat to national security. In exercising discretion, Morton advised that ICE officers and attorneys should take into account a person’s family relationships, including whether the person has a U.S. citizen spouse. Memorandum from John Morton, Director of

the U.S. Department of Homeland Security, to ICE Field Directors, Special Agents in Charge, and Chief Counsel (June 17, 2011),

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available

at

http://www.ice.gov/doclib/secure(the “Morton

communities/pdf/prosecutorial-discretion-memo.pdf Memo”).

The Morton Memo does not address same-sex married couples, although the policies behind it have been used to extend relief from removal to same-sex couples in certain instances. See Julia Preston, U.S. Issues New Deportation Policy’s First Reprieves, N.Y. Times, Aug. 23, 2011, at A15 (noting that an immigration judge in Denver postponed the deportation of a Mexican woman in a legal same-sex marriage on the basis of their family relationship). It is clear that the Administration has exercised discretion to stop the removal of at some immigrants who are parties to legal samesex marriages. But despite this, DOMA remains a barrier to same-sex

spouses like Maas who are seeking lawful status in this country. DOMA remains the law, and it remains the official policy of the Administration to enforce it. Defendants acknowledge this in their

brief in response to BLAG’s motion to intervene, noting that “the Executive departments and agencies will continue to comply with Section 3, pursuant to the President’s direction, unless and until Section 3 is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.” Defs.’

Resp. to Motion of BLAG to Intervene for a Limited Purpose, at 2. This acknowledgment is in some tension with Defendants’ indication in

- 10 -

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their reply brief that Plaintiffs can only speculate as to the outcome of the petition. Given the current state of the law, it seems clear that DOMA precludes the granting of Revelis’ spousal visa petition for Maas. While it is true that the petition could be denied for a variety of reasons having nothing to do with DOMA, that could happen to any couple. While perhaps inartfully pleaded, the injury that Plaintiffs allege is broader than the expected denial of the petition. They

contend that because of DOMA, they will not be treated like any other couple. See Pls.’ Compl. ¶ 24–28. There is a thumb on the scale

against them, and even if they are otherwise qualified, it is a practical certainty that Revelis’ petition will be denied. This is

a government-imposed barrier to obtaining a benefit available to other legally married couples, and it confers standing upon

Plaintiffs.

See Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37

F.3d 1216, 1220 (7th Cir. 1994) (noting that the denial of equal protection itself is an injury that confers standing). It is this imminent injury — their inability to be treated on equal footing with other married couples — that Plaintiffs ask this Court to redress. Pre-enforcement challenges are within Article III See In

despite the fact that events may unfold in uncertain ways. Brandt v. Vill. of Winnetka, 612 F.3d 647, 649 (7th Cir 2010).

the equal protection context, the Supreme Court has held that “[w]hen the government erects a barrier that makes it more difficult for - 11 -

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members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’

in an equal protection case . . . is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” See Ne. Fla. Chap. of Associated

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). While Revelis has no right to have his visa petition on

Maas’ behalf granted, he does have a right to have the petition considered “without the burden of invidiously discriminatory

disqualifications.”

Turner v. Fouche, 396 U.S. 346, 362 (1970).

Defendants argue that until a decision is reached on the visa petition, it is not clear that DOMA is the cause of Plaintiffs’ injury or that any ruling invalidating DOMA will redress that injury. However, this argument misapprehends the nature of the injury, which is the denial of equal access to the visa program, not the expected denial of the petition. Although in equal protection cases the

constitutional challenge often comes after a plaintiff has applied for a benefit and been rejected, there is nothing that mandates that a plaintiff wait until rejection to file suit. See Regents of Univ.

of Cal. v. Bakke, 438 U.S. 265, 281 n. 14 (1978) (noting that plaintiff was injured not only by his rejection from medical school, but by his inability to compete for all the places in the class). - 12 -

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In a similar context, in Dragovich v. U.S. Department of the Treasury, 764 F.Supp.2d 1178, 1187 (N.D. Cal. 2011), the court held that the plaintiffs, a same-sex married couple, did not have to apply to a benefit program in order to have standing to challenge it because it would have been futile to apply and because the couple adequately alleged that they were eligible for the program. See id.

(“A plaintiff sufficiently alleges injury when a discriminatory policy has interfered with the plaintiff's otherwise equal ability to compete for the program benefit.”). Here, Plaintiffs have asked to be considered for the benefit of a spousal visa, and there is nothing in their Complaint that Cf.

indicates they are otherwise disqualified from consideration.

Filozof v. Monroe Community College, 583 F.Supp.2d 393, 403 (W.D.N.Y. 2008) (finding no standing where plaintiff was not “able and ready” to attempt to participate in the challenged programs). It is true

that if an applicant could not have obtained the desired benefit even in the absence of discrimination, “such an applicant lacks the requisite personal stake in the outcome” of the proceeding to have standing. See Day v. Bond, 500 F.3d 1127, 1134 (10th Cir. 2007).

But Plaintiffs do not have to show that they will obtain the benefit, but merely that they could. Id. at 1135. In this case, Plaintiffs

assert that they are otherwise eligible for approval of the spousal visa petition, but DOMA bars its approval.

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This burden is fairly traceable to Section 3 of DOMA, and a ruling by this Court invalidating that statute would redress the injury. See Ne. Fla. Gen. Contractors, 508 U.S. at 666 n. 5 (holding that when injury is the erection of a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, the barrier is the cause of the injury, and a ruling removing it redresses the injury). So the Plaintiffs do

have standing, provided that their claim is ripe. The Court notes that it has not prejudged the merits of

Plaintiffs’ equal protection challenge; standing and entitlement to relief are two separate inquiries. 788, 795 (7th Cir. 2008). C. Ripeness See Arreola v. Godinez, 546 F.3d

In order for this Court to exercise jurisdiction, a case or controversy must be ripe, meaning that it is neither premature nor speculative. Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002).

Defendants contend that because Revelis’ petition is still pending, it cannot be ripe for review before this Court. Like standing, ripeness is a justiciability doctrine. As noted

above, to assert standing, the plaintiff must present either an actual or threatened harm resulting from the allegedly illegal action. Warth v. Seldin, 422 U.S. 490, 498-99 (1975). Ripeness is

a related question in that it concerns whether the harm has matured sufficiently to warrant judicial relief. - 14 Id. at 499 n. 10. The

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ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat. Park Hospitality Ass'n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57, n. 18 (1993)). Here, the inquiries as to ripeness

and standing overlap in that Defendants’ main argument as to both is that Plaintiffs cannot know if they will be injured until the USCIS acts on the petition. Ripeness involves two inquiries: (1) the fitness of the issues

for judicial decision; and (2) the hardship to the parties of withholding court consideration. Nat. Park Hospitality Ass’n, 538 In terms of the fitness of

U.S. at 808 (internal citations omitted).

the issues for judicial decision, the constitutionality of Section 3 of DOMA presents a purely legal question. This weighs in favor of

finding the dispute ripe, because the question of whether applying DOMA to Plaintiffs violates their right to equal protection does not require further factual development. See Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995). Defendants

argue, correctly, that courts should exercise caution in deciding even purely legal issues when constitutional issues are involved, particularly when there are inadequacies or ambiguities in the record. See Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646,

662 (9th Cir. 2002).

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However, the record is adequate to decide the issues presented here. As noted in regard to the standing inquiry, Plaintiffs are not requesting that this Court order the government to grant the visa petition. Instead, they are requesting that their petition be

reviewed and decided on the same basis as other married couples. This is a legal question that is fit for judicial review because Revelis has filed a pending visa petition. Additionally, because

Plaintiffs cannot raise the constitutionality of DOMA during the marriage petition process, no further administrative record will be developed on that issue. As for the question of hardship, “the hallmark of cognizable hardship is usually direct and immediate harm.” F.3d at 536. Ernst & Young, 45

This is not the type of case in which the harm at issue

depends on “a lengthy chain of speculation as to what the future has in store.” Id. at 538. As noted above, it is nearly certain that

USCIS will apply DOMA as at least one basis to deny Plaintiffs’ petition, given that the official policy of the Administration is that DOMA will be enforced. This alleged imminent denial of equal As such, this dispute is

protection is a direct and immediate harm.

ripe, and Defendants’ Rule 12(b)(1) Motion to Dismiss is denied. III. MOTION TO INTERVENE

Plaintiff opposes BLAG’s motion to intervene, arguing that it should be limited to amicus curiae status. Defendants ask that

BLAG’s involvement be limited to making substantive arguments in - 16 -

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support of DOMA, while they continue to file all procedural notices. BLAG argues that intervention as a matter of right under FED. R. CIV . P. 24(a)(2) is appropriate for the limited purpose of defending the constitutionality of the law. (a) That rule states, in relevant part:

Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) (2) is given an unconditional right to intervene by a federal statute; or claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

The Court agrees with BLAG that intervention as of right is appropriate under Rule 24(a)(2). The Seventh Circuit has held that

intervention is appropriate under this rule when the petitioner: (1) makes a timely application; (2) has an interest relating to the subject matter of the action; (3) that would potentially be impaired by the disposition by the of the action; parties and to (4) the is not adequately Reich v.

represented

existing

action.

ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995). Here, there is no dispute that BLAG’s application was timely. But Plaintiffs argue that BLAG merely has a general interest in the outcome of this litigation that is no greater than that of an ordinary taxpayer. The Court disagrees. The House has an interest

in defending the constitutionality of legislation which it passed - 17 -

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when the executive branch declines to do so.

See I.N.S. v. Chadha,

462 U.S., 919, 940 (1983) (“We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable that BLAG does or not

unconstitutional.”).

Plaintiffs’

argument

represent Congress as a whole is similarly unpersuasive.

BLAG, a

five-member bipartisan group, is the mechanism through which the House presents its position in litigation, and courts have allowed it to intervene in cases where appropriate. See, e.g., In re Matter of

Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986) (allowing intervention by BLAG predecessor when administration declined to defend law retroactively extending the term of bankruptcy judges); Barnes v. Kline, 759 F.2d 21, 23, n.3 (D.C. Cir. 1985) (similarly allowing intervention under Rule 24(a)(2) in dispute over “pocket vetoes.”), vacated on other grounds sub. nom. by Burke v. Barnes, 479 U.S. 361 (1987). Impairment under the meaning of Rule 24(a)(2) depends on whether a ruling on a legal question would as a practical matter foreclose the intervenor’s rights in a subsequent proceeding. See Zurich

Capital Mkts. Inc. v. Coglianese, 236 F.R.D. 379, 386 (N.D. Ill. 2006). Such foreclosure is measured by the general standards of Id. (internal citations omitted). BLAG’s interest

stare decisis.

in upholding the constitutionality of DOMA in this and subsequent - 18 -

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proceedings plainly would be impaired by a ruling in favor of Plaintiffs. Finally, it is clear that BLAG’s interests are not protected by anyone else in this litigation. Plaintiffs and Defendants agree that DOMA violates equal protection. The Court finds the recent ruling in United States v. Windsor, 797 F.Supp.2d 320 (S.D.N.Y. 2011) to be persuasive. There, BLAG moved to intervene in a dispute over the Id. at 322. The

constitutionality of DOMA in a tax refund case.

Court noted that while the Department of Justice had made it clear that it would not defend the statute, that was exactly what BLAG wanted to do. sought to Id. at 324. to file In Windsor, as in this case, the DOJ all procedural motions, while BLAG

continue

appeared only to argue the constitutionality of DOMA. Id. at 324–25. The Court rejected that argument, finding that there was no precedent supporting the executive branch’s request that BLAG’s participation in the case be circumscribed in that manner. Id. This Court agrees.

One potential difference between this case and Windsor, however, is that the Second Circuit, in which that dispute is pending, does not require intervenors to establish independent Article III standing as long as there is a case or controversy pending between the existing parties. on this issue. Id. at 325. The Seventh Circuit has not yet ruled

See Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, However, the Seventh Circuit has observed that

946 (7th Cir. 2000).

any interest of such magnitude as to allow intervention of right is - 19 -

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sufficient

to

satisfy

the

Article

III

standing

requirement.

Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th Cir. 1997). Because of the magnitude of the interest at stake here, and because no other party in this litigation will represent the interests of BLAG, the Court finds that intervention as of right is appropriate, and grants BLAG’s motion. defending the BLAG may intervene for the purpose of of DOMA, and is to answer or

constitutionality

otherwise plead within thirty (30) days of the date of this Order. IV. CONCLUSION

For the reasons stated herein, Defendants’ Motion to Dismiss is denied. BLAG’s Motion to Intervene for a Limited Purpose is granted. BLAG is to answer or otherwise plead within thirty (30) days of the date of this Order.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge United States District Court DATE: 1/5/2012

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EXHIBIT D

Case 1:11-cv-11905-RGS Document 33-4 Filed 12/16/11 Page 12of 12 Case 2:11-cv-00045-CDJ Document 82 Filed 05/01/12 Page of

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA COZEN O’CONNOR, P.C., Plaintiff, v. JENNIFER J. TOBITS, et al. Defendants. : : ORDER AND NOW, this 15th day of December, 2011, it is hereby ORDERED that: 1. 2. The Motion to Intervene (Docket No. 58) is GRANTED. The Motions for Leave to File Amicus Brief (Docket Nos. 75; 76; 77; 78; 79; and 80) are GRANTED. The Clerk of Court shall appropriately docket the proposed amicus briefs. 3. The Motion for Leave to File a Reply Brief (Docket No. 51) is GRANTED and the Motion to Strike (Docket No. 56) is DENIED. However, the parties are strongly cautioned that future filings which do not comport in every respect with this Court’s Policies and Procedures (available at www.paed.uscourts.gov) may be stricken either sua sponte or upon motion. The Court expects the parties to familiarize themselves with relevant rules and adhere to them. 4. The oral argument on the Motion to Intervene scheduled for January 10, 2012, is canceled. : : : : : : CIVIL ACTION NO. 11-45

BY THE COURT: /s/ C. Darnell Jones, II _____________________________ C. DARNELL JONES, II, U.S.D.J.

Case 1:11-cv-11905-RGS Document 33-5 Filed 05/01/12 Page 1 of 3

EXHIBIT E

Case 4:04-cv-00848-TCK -TLW Document 181 Filed in USDC ND/OK on 08/05/11 Page 1 of 2 Case 1:11-cv-11905-RGS Document 33-5 Filed 05/01/12 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHO MA (1) MARY BISHOP; (2) SHARON BALDWIN; (3) SUSAN G. BARTON; and (4) GAY E. PHILLIPS, individuals. Plaintiffs, v. (1) UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States of America; and (2) SALLY HOWE SMITH, in her official` capacity as Court Clerk for Tulsa County, State of Oklahoma. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 04-CV-848-TCK-TLW

ORDER Before the Court is the Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) to Intervene for a Limited Purpose (Doc. 178), which is unopposed to the extent it seeks intervention pursuant to Federal Rule of Civil Procedure 24(b)(1)(A). Such motion (Doc. 178) is GRANTED. BLAG shall be permitted to intervene pursuant to Rule 24(b)(1)(A). BLAG’s motion to intervene is sufficient to satisfy Rule 24(c), and BLAG is not required to file an Answer. Also before the Court is Plaintiffs’ Motion for Scheduling Conference (Doc. 176), which is unopposed. Such motion (Doc. 176) is GRANTED. The Court refers the matter of conducting the scheduling conference to Magistrate Judge T. Lane Wilson.

1

Case 4:04-cv-00848-TCK -TLW Document 181 Filed in USDC ND/OK on 08/05/11 Page 2 of 2 Case 1:11-cv-11905-RGS Document 33-5 Filed 05/01/12 Page 3 of 3

IT IS SO ORDERED this 5th day of August, 2011.

____________________________________ TERENCE KERN UNITED STATES DISTRICT JUDGE

2

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EXHIBIT F

Case 2:11-cv-01267-SVW -JCG Document 25 33-6 07/13/11 Page Page 2 Page ID #:403 Case 1:11-cv-11905-RGS Document Filed Filed 05/01/12 1 of 1 of 2

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title CV 11-01267 SVW (JCGx) Date July 13, 2011

Handi Lui & Michael Ernest Roberts v. Eric H. Holder, Jr. et al.

Present: The Honorable Paul M. Cruz Deputy Clerk

STEPHEN V. WILSON, U.S. DISTRICT JUDGE N/A Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: N/A Proceedings:

Attorneys Present for Defendants: N/A

IN CHAMBERS ORDER re Motion to Intervene for a Limited Purpose filed by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives [12]

The Motion to Intervene is GRANTED. The Court adopts the reasoning in Windsor v. United States, No. 1:10-cv-08435-BSJ-JCF (S.D.N.Y. June 2, 2011) (ECF No. 26). Additionally, the Court notes that like the cases in the Second Circuit relied upon in Windsor, the Ninth Circuit has suggested that it "does not require independent Article III standing for intervenors." Prete v. Bradbury, 438 F.3d 949, 956 n.8 (9th Cir. 2006). Finally, as to Plaintiffs' objection to BLAG's request for a waiver of its obligation to file an answer, the Court notes that BLAG has now filed a Motion to Dismiss, eliminating Plaintiffs' concerns about BLAG's position in the litigation.

: Initials of Preparer
CV-90 (06/04) CIVIL MINUTES - GENERAL

PMC
Page 1 of 1

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EXHIBIT G

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) MICHAEL DRAGOVICH, et al., ) ) Plaintiff, ) ) vs. ) ) U.S. DEPARTMENT OF THE TREASURY, et al., ) ) Defendants. ) __________________________________________) 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”), the Opposition, and the entire record herein, it is by the Court this 10th day of June, 2011, ORDERED THAT the Motion is GRANTED. The group may intervene for the limited purpose of litigating--in the context of a motion or cross-motions for summary judgment--the constitutionality of Section III of DOMA under the equal protection component of the Fifth Amendment's Due Process Clause, and/or noticing an appeal from any final judgment of this Court holding that DOMA is not constitutional under the equal protection component of the Fifth Amendment's Due Process Clause. ______________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 1 No. CV 4:10-01564-CW ORDER GRANTING MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO INTERVENE FOR A LIMITED PURPOSE

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EXHIBIT H

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) KAREN GOLINSKI, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) __________________________________________) Case No. 3:10-cv-0257-JSW

ORDER GRANTING THE MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO INTERVENE FOR A 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 3rd Opposition, if any, and the entire record herein, it is by the Court this ____ day of _________, June 2011, ORDERED that the Motion is GRANTED. JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 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

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

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EXHIBIT I

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -: EDITH SCHLAIN WINDSOR, in her : capacity as Executor of the : Estate of THEA CLARA SPYER, : : Plaintiff, : : - against : : THE UNITED STATES OF AMERICA, : : Defendant. : - - - - - - - - - - - - - - - - - -: JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

(ECF)

10 Civ. 8435 (BSJ) (JCF) MEMORANDUM AND ORDER

Plaintiff Edith Schlain Windsor brings this action challenging the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. The Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) has filed a motion to intervene as a party defendant pursuant to Rule 24 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted. Background Ms. Windsor and Thea Clara Spyer were married in 2007

following a 40-year engagement. (Amended Complaint (“Am. Compl.”), ¶¶ 2, 3, 26). In 2009, Ms. Spyer passed away. (Am. Compl., ¶ 51). Although their marriage was recognized by New York State, DOMA prevented the federal government, and, in particular, the Internal Revenue Service (“IRS”), from treating them as a married couple. 1

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(Am. Compl., ¶¶ 42-45, 60-61).

As a result, Ms. Spyer’s estate was

required to pay $363,053 in federal tax that would have been waived by the estate tax marital deduction had the IRS recognized their marriage. (Am. Compl., ¶¶ 62, 72-75, 78). Ms. Windsor, the

executor of Ms. Spyer’s estate, filed a Claim for Refund with the IRS, seeking return of the $363,053; her request was denied on the ground that DOMA restricts the definition of “spouse” to “a person of the opposite sex.”1 (Am. Compl., ¶¶ 76-77).

Ms. Windsor filed this action on November 9, 2010, arguing that the IRS’s refusal to apply the estate tax marital deduction to her wife’s estate -- and by extension DOMA itself -- discriminated against her on the basis of her sexual orientation in violation of the equal protection clause of the Fifth Amendment to the United States Constitution. (Am. Compl., ¶¶ 84-85). The Department of

Justice (the “DOJ”) appeared on behalf of the defendant, the United States of America, and an amended complaint was filed on February

1

Section 3 of DOMA provides that

[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. 2

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2, 2011.

Soon thereafter, however, the Department of Justice gave

notice to the plaintiff and this Court that it would “cease defending the constitutionality” of Section 3 of DOMA because the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; [and] that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law . . . . (Notice to the Court by Defendant United States of America dated Feb. 25, 2011 (“2/25/11 Notice”) at 1 & Exh. 1). The DOJ also notified Representative John A. Boehner, Speaker of the United States House of Representatives (the “House”), of its change in position and expressed its “interest in providing

Congress a full and fair opportunity to participate in [this] litigation” while still “remain[ing] parties to the case and continu[ing] to represent the interests of the United States throughout the litigation.” (Letter of Eric H. Holder, Jr., dated On

Feb. 23, 2011, attached as Exh. 2 to 2/25/11 Notice, at 5-6).

March 9, 2011, BLAG decided to seek approval to intervene in this litigation to defend the constitutionality of Section 3 of DOMA. (Memorandum of Points and Authorities in Support of the Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose (“BLAG Memo.”)

3

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at

2).

Neither

the

plaintiff

nor

the

DOJ

opposes

BLAG’s

intervention; however, the DOJ asks that BLAG’s involvement be limited to making substantive arguments in defense of Section 3 of DOMA while the DOJ continues to file all procedural notices. (Defendant’s Memo.”)). Response to the Motion to Intervene (“DOJ Opp.

BLAG does not acquiesce in this request, which it (Reply

contends would relegate it to the status of amicus curiae.

of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG Reply Memo.”) at 2, 6-9). Discussion A. Intervention BLAG seeks intervention pursuant to Rule 24 of the Federal Rules of Civil Procedure, which states in relevant part: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (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 action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene 4

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by a federal statute . . . . BLAG first argues that its intervention is appropriate

pursuant to subsection (a)(1), or, in the alternative, subsection (b)(1)(A), because it is authorized by 28 U.S.C. § 2403(a). Memo. at 4-5). (BLAG

However, that statute only authorizes “the United

States to intervene” in an action where “the United States or any agency, officer or employee thereof is not a party.” § 2403(a) (emphasis added). 28 U.S.C.

Here, the United States of America is

already a party to the litigation, and thus the statute does not authorize BLAG’s intervention, either permissively or as of right.2 BLAG also seeks to intervene pursuant to subsection (a)(2) of Rule 24 of the Federal Rules of Civil Procedure. at 9 n.3). (BLAG Reply Memo.

Such intervention is appropriate where:

“(1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the other parties.”

Although there is a statute that contemplates intervention by the Senate in defense of the constitutionality of statutes, see 2 U.S.C. §§ 288a-288n, and federal law requires the Attorney General to notify both houses of Congress when it intends not to defend the constitutionality of any statute, see 28 U.S.C. § 530D, there is no statute explicitly authorizing intervention by the House (or any subgroup or representative thereof) to defend the constitutionality of a statute. 5

2

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United States v. New York State Board of Elections, 312 Fed. Appx. 353, 354 (2d Cir. 2008) (quoting MasterCard International Inc. v.

Visa International Service Association, Inc., 471 F.3d 377, 389 (2d Cir. 2006)). Although failure to satisfy any of these requirements justifies denial of the motion, courts apply them in a “‘flexible and discretionary’” way, considering “‘all four factors as a whole rather than focusing narrowly on any one of the criteria.’” Cole

Mechanical Corp. v. National Grange Mutual Insurance Co., No. 06 Civ. 2875, 2007 WL 2593000, at *2 (S.D.N.Y. Sept. 7, 2007) (quoting Tachiona ex rel. Tachiona v. Mugabe, 186 F. Supp. 2d 383, 394 (S.D.N.Y. 2002) (“Tachiona I”)). BLAG has fulfilled all four prerequisites. First, the DOJ

does not dispute that this motion is timely, and there is no evidence of delay in its filing. See id. at *4 (finding motion to

intervene timely absent excessive delay or prejudice to existing parties). Second, BLAG has a cognizable interest in defending the

enforceability of statutes the House has passed when the President declines to enforce them. See Barnes v. Kline, 759 F.2d 21, 23 n.3

(D.C. Cir. 1985) (noting district court allowed BLAG’s intervention pursuant to Rule 24(a)(2) to challenge presidential “pocket veto” of legislation passed by House), vacated on other grounds sub nom. Burke v. Barnes, 479 U.S. 361 (1987). In recognition of this

interest, courts have permitted Congress to intervene as a full 6

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party in numerous cases where the Executive Branch declines to enforce a statute that is alleged to be unconstitutional, although they have often neglected to explain their rationale for doing so. See, e.g., Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th Cir. 1991); Lear Siegler, Inc., Energy Products Division v. Lehman, 893 F.2d 205, 206 (9th Cir. 1989); In re Benny, 812 F.2d 1133, 1135 (9th Cir. 1987); Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir. 1986); Matter of Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986). Third, BLAG may be unable to

advance its arguments regarding the constitutionality of Section 3 of DOMA in any forum should it be denied intervention here and should the statute subsequently be declared unconstitutional in the course of this litigation. Finally, BLAG’s interests are not

currently being adequately represented in this action, particularly in light of the “‘minimal’” burden for demonstrating inadequacy of representation. New York State Board of Elections, 312 Fed. Appx.

at 354 (quoting Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001)); see also Brennan v. New York City Board of Education, 260 F.3d 123, 132-33 (2d Cir. 2001) (“The test [] is not whether [the defendant] did well on behalf of [the intervenors] . . . but whether the [defendant]’s interests were so similar to those of [the intervenors] that adequacy of

representation was assured.”). The DOJ has made clear that it will 7

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not defend the constitutionality of Section 3 of DOMA in any way, while such a defense is precisely what BLAG wishes to undertake here. Therefore, intervention pursuant to Rule 24(a)(2) of the

Federal Rules of Civil Procedure is justified. The DOJ asks that BLAG be permitted to appear in this action only for the limited purpose of “present[ing] arguments in support of the constitutionality of Section 3” of DOMA, while the DOJ would continue to file all procedural motions, including notices of appeal and petitions for certiorari, that are necessary “to ensure that this Court can consider arguments on both sides of the constitutional issue.” (DOJ Opp. Memo. at 2-3). As established

above, however, BLAG is entitled to intervene in this action as a party defendant, which enables it to make such procedural motions on its own. See INS v. Chadha, 462 U.S. 919, 930 n.5, 939 (1983)

(finding House to be “proper petitioner” for certiorari following its intervention to defend constitutionality of statute that

executive agency had declined to defend).

Furthermore, there is

no clear precedent for the DOJ’s requested protocol. The DOJ cites two cases to support its contention that “[t]his approach is consistent with what the [DOJ] has done in prior cases in which the Executive Branch has taken the position that an Act of Congress is unconstitutional but announced its intention to enforce or comply with the law pending a final judicial determination . . . .” 8 (DOJ

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Opp. Memo. at 2-3).

However, in the first of these, the Houses of

Congress were plainly also parties to the litigation with authority to petition for review if desired. Chadha, 462 U.S. at 930-31 nn.

5, 6. In the second, a case from 1946, the procedural necessity of the Solicitor General’s filing the petition for certorari review is never discussed or made explicit. U.S. 303, 305-07 (1946). United States v. Lovett, 328

The DOJ continues to represent a party

to the present litigation and may certainly file any petitions or appeals that it chooses. However, there is no good precedent for Therefore, the

preventing BLAG from intervening as a full party.

DOJ’s request that BLAG’s participation be circumscribed is denied. B. Standing The DOJ’s desire to remain the sole defendant for procedural purposes appears premised on the contention that BLAG does not have standing to intervene in this action as a party “any more than citizens with a generalized grievance would have standing to do so” because “Congress’s interest in the constitutional validity of a law does not confer standing.” (DOJ Opp. Memo. at 2). This

characterization is incorrect. The Second Circuit does not require intervenors to establish independent Article III standing as long as there is an ongoing case or controversy between the existing parties to the litigation. See United States Postal Service v.

Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (“The existence of a case 9

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or controversy having been established as between the [named parties], there was no need to impose the standing requirement upon the proposed intervenor.”); 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1908 (3d ed. 2007); see also Chadha, 462 U.S. at 939 (“Congress is . . . a proper party to defend the constitutionality of [the challenged statute].”); Ameron, 787 F.2d at 888 n.8 (“However, the parties agree, and we concur, that Congress has standing to intervene whenever the executive declines to defend a statute or, as in this case, actually argues that it is unconstitutional.”); cf. Tachiona v. United States, 386 F.3d 205, 211 (2d Cir. 2004) (requiring intervenor to demonstrate standing where intervention was solely for purpose of appeal and losing party did not join appeal (citing Diamond v. Charles, 476 U.S. 54, 68 (1986))). standing to intervene in this Therefore, BLAG has to defend the

litigation

constitutionality of Section 3 of DOMA. C. Pleading Requirements Rule 24(c) of the Federal Rules of Civil Procedure requires all intervenors to submit a pleading setting out “the claim or defense for which intervention is sought.” “Where, however, the

position of the movant is apparent from other filings and where the opposing party will not be prejudiced, Rule 24(c) permits a degree of flexibility with technical requirements.” 10 Tachiona I, 186 F.

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Supp. 2d at 393 n.8; see also Official Committee of Asbestos Claimants of G-I Holding, Inc. v. Heyman, No. 01 Civ. 8539, 2003 WL 22790916, at *4 (S.D.N.Y. Nov. 25, 2003) (allowing intervenor to adopt “claims already asserted” by plaintiff where no prejudice would be caused to either party). BLAG asks this Court to waive its obligation to file an answer, arguing that its motion to intervene is sufficient to put the plaintiff on notice of its intent to “defend[] Section [3 of DOMA] on equal protection grounds.” does not oppose this request. (BLAG Memo. at 7). The DOJ

(BLAG Memo. at 7; DOJ Opp. Memo.).

Waiver of the pleading requirement is justified here because BLAG’s position on the subject matter of the litigation is clearly

articulated in its motion papers.

Furthermore, the plaintiff

appears to have waived the DOJ’s obligation to file an answer, and the parties are preparing to make cross-motions dated May for 11, summary 2011).

judgment.

(Revised

Scheduling

Order

Therefore, BLAG is not required to file an answer at this time. Conclusion For the reasons set forth above, BLAG’s motion to intervene as a party defendant (Docket No. 12) is granted.

11

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SO ORDERED.

C. FRANCIS IV ITED STATES MAGISTRATE JUDGE

Dated: New York, New York June 2, 2011 Copies mailed this date:
Roberta A. Kaplan, Andrew J. Ehrlich, Paul Weiss Rifkind 1285 Avenue of the New York, New York Esq.
Esq.
Wharton & Garrison LLP
Americas
10019

Alexis B. Karteron, Esq.
Arthur N. senberg, Esq.
Melissa Goodman, Esq.
New York Civil Liberties Union Foundation
125 Broad Street, 19th Floor
New York, New York 10004
James D. Esseks, Esq.
Rose A. Saxe, Esq.
American Civil Liberties Union Foundation
Lesbian and Gay Rights Project
125 Broad Street, 18th Floor
New York, New York 10004
H. Christopher Bartolomucci, Esq. Paul D. Clement, Esq. Bancroft PLLC 1919 M Street, NW Suite 470 Washington, DC 20036
Jean Lin, Esq.

U.S. Department of Justice Civil Division 20 Massachusetts Avenue, N.W., 7th Fl. Washington, DC 20530

12

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EXHIBIT J

SDSD District Version 1.3

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EFILE

U.S. District Court United States District Court for the District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:10-cv-01750-VLB

Pedersen et al v. Office of Personnel Management et al Assigned to: Judge Vanessa L. Bryant Cause: 28:2201 Declaratory Judgment Plaintiff Joanne Pedersen

Date Filed: 11/09/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

represented by Gary D Buseck Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 Email: gbuseck@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Janson Wu Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 Email: jwu@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Karen L. Dowd Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 Email: kdowd@hortonshieldsknox.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Kenneth James Bartschi Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 Email: kbartschi@hsklawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Mary L Bonauto

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(Attachments: # 1 Exhibit Proposed Scheduling Order)(Wu, Janson) (Entered: 05/25/2011) 05/27/2011 05/27/2011 54 ORDER granting 53 Consent Motion for Entry of Scheduling Order. See attached. Signed by Judge Vanessa L. Bryant on 5/27/11. (Engel, J.) (Entered: 05/27/2011) 55 ORDER granting 48 Motion to Intervene by the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the "House"). As all parties to this action agree that the House should be permitted to intervene in this matter to defend the constitutionality of Section III of the Defense of Marriage Act, 1 U.S.C. § 7, the House's motion is GRANTED. The House and the Department of Justice dispute the specific scope of the House's role in this litigation. The Court reserves judgment on this issue at this time, and will address it in a later ruling. The parties shall proceed with this case in accordance with the Court's Scheduling Order entered with the consent of all parties [Doc. # 54 ]. Signed by Judge Vanessa L. Bryant on 5/27/11. (Engel, J.) (Entered: 05/27/2011) Set Deadlines/Hearings: Discovery due by 7/11/2011; Dispositive Motions due by 7/15/2011 (LaLone, L.) (Entered: 06/01/2011) 56 Joint MOTION for Protective Order by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss.Responses due by 7/29/2011 (Attachments: # 1 Text of Proposed Order Joint Stipulation and Proposed Order Governing Protection and Exchange of Confidential Information)(Dowd, Karen) (Entered: 07/08/2011) 57 MOTION for Leave to File Excess Pages up to 60 Pages in Support of Motion for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/08/2011) 58 ORDER granting 57 Plaintiffs' Motion for Leave to File Memorandum of Law of up to 60 pages. Signed by Judge Vanessa L. Bryant on 7/9/11. (Engel, J.) (Entered: 07/09/2011) 59 ORDER granting 56 Joint Motion for Approval of Stipulation and Order Governing Protection and Exchange of Confidential Information. The Court notes, however, that the Stipulation and Order of Confidentiality shall not effect the parties' obligations regarding documents sought to be filed under seal pursuant to Local Rule 5(e). In accordance with that rule, if the parties seek to seal specific documents, they must file an accompanying motion to seal that includes sufficient factual and legal authority to enable the Court to make "particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons." Signed by Judge Vanessa L. Bryant on 7/9/11. (Engel, J.) (Entered: 07/09/2011) 60 MOTION for Summary Judgment by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss.Responses due by 8/5/2011 (Buseck, Gary) (Entered: 07/15/2011) 61 Statement of Material Facts re 60 MOTION for Summary Judgment pursuant to Local Rule 56(a)1 filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet Geller, Bradley Kleinerman, Joanne Marquis, Ann Meitzen, Gerald V. Passaro, II, Joanne Pedersen, Damon Savoy, John Weiss. (Buseck, Gary) (Entered: 07/15/2011) 62 Statement of Material Facts re 60 MOTION for Summary Judgment Non-Adjudicative filed by Raquel Ardin, Geraldine Artis, Suzanne Artis, Lynda Deforge, James Gehre, Janet

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