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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT Docket Number(s): Motion for:

12-2335, 12-2435

Caption [use short title]

Suspending Oral Argument Windsor v. United States

Set forth below precise, complete statement of relief sought:

The House seeks an order suspending oral argument until after the Supreme Court determines if it will grant certiorari for this case or one of two other cases challenging DOMA Section 3.
MOVING PARTY: The Bipartisan Legal Advisory Group of the U.S. House of Representatives OPPOSING PARTY: 9 Plaintiff 9 ✔ Defendant 9 Appellant/Petitioner 9 Appellee/Respondent ✔

Edith Windsor

MOVING ATTORNEY: Paul D. Clement OPPOSING ATTORNEY: Roberta A. Kaplan [name of attorney, with firm, address, phone number and e-mail]

Bancroft PLLC 1919 M St., NW, Suite 470 Washington, D.C. 20036 202-234-0090 PClement@bancroftpllc.com
Court-Judge/Agency appealed from: Please check appropriate boxes: Has movant notified opposing counsel (required by Local Rule 27.1): ✔ Yes 9 No (explain): 9 Opposing counsel’s position on motion: 9 Unopposed ✔ Opposed 9 Don’t Know 9 Does opposing counsel intend to file a response: 9 ✔ Yes 9 No 9 Don’t Know Is oral argument on motion requested? Has argument date of appeal been set?

Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 212-373-3086 rkaplan@paulweiss.com

Hon. Barbara S. Jones; S.D.N.Y.
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: 9 Yes 9 No Has request for relief been made below? Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency:

9 Yes

✔ No (requests for oral argument will not necessarily be granted) 9

9/27/2012 (but this motion seeks to suspend that date) ✔ Yes 9 No If yes, enter date:__________________________________________________________ 9
9 Service by: ✔ CM/ECF 9 Other [Attach proof of service]

Signature of Moving Attorney: 08/13/2012 8/15/2012 /s/ Paul D. Clement ___________________________________Date: ___________________

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court Date: _____________________________________________ By: ________________________________________________

Form T-1080 (rev. 7-12)

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Nos. 12-2335 & 12-2435 ____________________ UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ EDITH SCHLAIN WINDSOR, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. EDITH SCHLAIN WINDSOR, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant. ____________________ MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES TO SUSPEND ORAL ARGUMENT PENDING SUPREME COURT RULING ON PENDING PETITIONS FOR WRIT OF CERTIORARI

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Pursuant to Rule 34(b) of the Federal Rule of Appellate Procedure, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) respectfully moves for an order suspending the oral argument in this matter – currently scheduled for September 27, 2012 – until after the Supreme Court determines whether to grant certiorari in this case, or either of two other cases that raise the same issue as this case: whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, comports with the equal protection component of the Fifth Amendment’s Due Process Clause. We anticipate that the Supreme Court will act on these petitions by early October. Counsel for the United States, Helen Gilbert of the Department of Justice, has advised that the Department takes no position on this motion. Roberta Kaplan, counsel for Appellee Edith Windsor, has advised that Ms. Windsor opposes this motion (although she articulated no reason for that opposition). BACKGROUND Ms. Windsor’s case challenges the constitutionality, on equal protection grounds, of DOMA Section 3 which defines “marriage” and “spouse,” for purposes of federal law, as “the legal union between one man and one woman” or a person in such a union. Ms. Windsor, who had obtained a foreign marriage certificate to

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Thea Spyer at the time of Ms. Spyer’s death, 1 claims that, absent DOMA Section 3, she would have been entitled to a marital deduction that would have prevented her from paying approximately $363,000 in federal estate taxes. This case is one of 13 now pending in federal courts around the country in which plaintiffs are mounting equal-protection challenges to DOMA Section 3. 2

According to the Complaint, Ms. Windsor and Thea Spyer obtained a marriage certificate in Ontario, Canada in 2007, but, although they were domiciled in New York at all relevant times, took no action to have their foreign marriage certificate recognized for purposes of New York law during Ms. Spyer’s lifetime. One such case already has been decided by a circuit court of appeal: see Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. May 31, 2012) (ECF No. 5645268), published at 682 F.3d 1 (1st Cir. 2012), cert. petitions pending, Nos. 12-13, 12-15, 12-97 (S. Ct.). Three such cases, including this case, are pending before circuit courts of appeal: see also Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.), cert. petition before judgment pending, No. 12-16 (S. Ct.); Dragovich v. U.S. Dep’t of the Treasury, Nos. 12-16461 & 12-16628 (9th Cir.). One such case recently was decided by a district court in this circuit, but no notice of appeal has yet been filed: see Pedersen v. U.S. Office of Pers. Mgmt., No. 3:10-cv-01750, 2012 WL 3113883 (D. Conn. July 31, 2012) (ECF No. 116). Two such cases are awaiting decision in district courts: see Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa.); Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla.). Two such cases are pending in district courts, but are in the very early stages of the litigation. See Cooper-Harris v. United States, No. 2:12-cv-00887 (C.D. Cal.); Aranas v. Napolitano, No. 8:12-cv-01137 (C.D. Cal.). Three such cases, pending in district courts, currently are stayed: Blesch v. Holder, No. 1:12-cv-01578 (E.D.N.Y.); McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass.); Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill.). (Continued . . .) 2
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When the House noticed its appeal in this case on June 8, 2012, Ms. Kaplan immediately sought an expedited appeal schedule – see Mot. for Expedited Appeal (June 11, 2012) (ECF No. 8-1) (corrected June 13, 2012 (ECF No. 25-1)) – a request to which the House largely acquiesced. See [House’s] Resp. to Mot. for Expedited Review (June 20, 2012) (ECF No. 49). On June 22, 2012, this Court entered an expedited briefing schedule which required the House to file its opening brief on August 10, 2012; Ms. Windsor to file her brief on August 31, 2012; and the House to file its reply brief on September 14, 2012. See Order (June 22, 2012) (ECF No. 56). The House in fact filed its opening brief on August 10, 2012, and it intends to file its reply brief on September 14, 2012, in accordance with the Court’s Order. In other words, the House does not seek here to alter the briefing schedule. Notwithstanding her professed eagerness to have this Court consider this case promptly, Ms. Kaplan, on July 16, 2012, filed with the Supreme Court a petition for writ of certiorari before judgment. See Pet. for Writ of Cert. Before J., Windsor v. United States, No. 12-63 (S. Ct. July 16, 2012), attached as an exhibit to Letter from Roberta A. Kaplan, to Catherine O’Hagan Wolfe, Clerk of Court

Finally, one such case is pending before an Article I court: see Cardona v. Shinseki, No. 11-3083 (Vet. Ct. App.).

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(July 16, 2012) (ECF 89-1) (“Pet. for Cert.”). The House’s response to Ms. Windsor’s petition is due August 31, 2012. In addition, four other petitions seeking Supreme Court review have been filed in two other DOMA Section 3 cases: • On June 29, 2012, the House asked the Supreme Court to review the First Circuit’s decision in Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. May 31, 2012) (ECF No. 5645268). See Pet. for Writ of Cert., Bipartisan Legal Advisory Grp. of U.S. House of Reps. v. Gill, No. 12-13 (S. Ct. June 29, 2012), 2012 WL 2586935. No party has opposed the House’s petition, and the time for filing responses is now past. • On July 3, 2012, the Executive Branch parties petitioned for a writ of certiorari in the same case. See Pet. for Writ of Cert., Dep’t of HHS v. Massachusetts, No. 12-15 (S. Ct July 3, 2012), 2012 WL 2586937. The House’s response to that petition is due August 31, 2012. • On July 20, 2012, the Commonwealth of Massachusetts filed a “conditional” cross-petition for writ of certiorari in the same case. See Conditional Cross-Pet. for Writ of Cert., Massachusetts v. Dep’t of HHS, No. 12-97 (S. Ct. July 20, 2012), 2012 WL 3027167. The House’s response to that petition is due August 23, 2012.

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• On July 3, 2012, the Executive Branch parties in Golinski v. U.S. Office of Pers. Mgmt., Nos. 15388 & 15409 (9th Cir.), petitioned for prejudgment Supreme Court review in that case. See Pet. for Writ of Cert. Before J., Office of Pers. Mgmt. v. Golinski, No. 12-16 (S. Ct July 3, 2012), 2012 WL 2586938. The House’s response to that petition is due August 31, 2012. 3 Under the Supreme Court’s rules, all of these petitions will be ready for distribution to the Justices 10 days after responses are due. See S. Ct. Rules 15.3, 15.5. This means that all these petitions will be ready for consideration by the Justices when they return from the summer recess in late September. 4 The Court’s general custom is to issue orders disposing of certiorari petitions on the Monday following the conference at which they are considered. 5 The opening conference for the new term is scheduled for September 24, 2012. See Supreme Court Karen Golinski, the plaintiff-appellee in that case, has supported the Executive Branch parties’ request for pre-judgment review. See Resp. to Pet. for Cert. Before J., U.S. Office of Pers. Mgmt. v. Golinski, No. 12-16 (S. Ct July 25, 2012), 2012 WL 3027182. See Case Distribution Schedule—October Term ’12, http://www.supremecourt.gov/casedistribution/casedistributionschedule2012.pdf (last visited Aug. 10, 2012). See Supreme Court Case Distribution Schedule Information Page, http://www.supremecourt.gov/casedistribution/casedistributionschedule.aspx (last visited Aug. 10, 2012) (“Generally, if a case is considered at a Conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10:00 a.m. the following Monday.”).
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Calendar, October Term 2012, available on-line at http://www.supremecourt.gov/oral_arguments/2012termcourtcalendar.pdf. Thus, it is likely that the Supreme Court will act on the above petitions – including the petition in this case – in early October, a very short period of time after September 27, when oral argument in this case currently is scheduled. ARGUMENT The First Circuit recognized in its Massachusetts decision that “only the Supreme Court can finally decide” DOMA’s constitutionality. Massachusetts, 682 F.3d at 8. Given the importance of the constitutional question presented in Massachusetts – the same question presented in this case and in Golinski – the First Circuit noted that “Supreme Court review of DOMA [Section 3] is highly likely.” Id. at 17. In urging the Supreme Court to take the extraordinary measure of granting her petition for certiorari before judgment, Ms. Windsor concurs that the question of the constitutionality of DOMA Section 3 presents an “issue of exceptional importance.” [Windsor] Pet. for Cert. at 12. In the Golinski case in which the Executive Branch parties – like Ms. Windsor here – have petitioned for pre-judgment review, the Ninth Circuit sua sponte vacated the oral argument in that case which was scheduled for September 10, 2012, and held the case “in abeyance pending resolution of the petition for a writ of certiorari,” and “if certiorari is granted . . . , pending determination of the

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case on the merits.” Order, Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir. July 27, 2012) (ECF No. 147). That is a sensible determination, and we urge this Court to follow the Ninth Circuit’s lead. As matters now stand, the Supreme Court will consider whether to grant certiorari in this case, as well as in two other cases presenting the identical legal issue, within a very short period of time after oral argument is currently scheduled before this Court. Under these circumstances, it makes sense to postpone oral argument in this case for a brief period pending the Supreme Court’s consideration of these petitions. The Court, counsel, and the parties should not expend time and resources preparing for oral argument, the need for which will be obviated if the Supreme Court grants certiorari in this case. In addition, the taxpayers’ resources will be preserved by not requiring the House’s outside counsel to engage in potentially useless oral argument a very short time before the Supreme Court considers the pending petitions. In the event the Supreme Court grants certiorari in the Windsor case, presumably this Court would, and should, automatically stay its hand pending the Supreme Court’s resolution of the merits. In the event the Supreme Court grants certiorari in Massachusetts and/or Gill, but not Windsor, the House will move this Court to stay consideration of Windsor pending the Supreme Court’s resolution of the merits of one or both of those cases inasmuch as the Supreme Court’s decision

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almost certainly will be entirely dispositive of this case. On the other hand, in the unlikely event that the Supreme Court denies all pending DOMA Section 3 certiorari petitions, argument in this case this Court can easily reschedule oral argument, and Ms. Windsor certainly would not be prejudiced by the short delay. CONCLUSION For all the foregoing reasons, the House respectfully requests that this Court suspend oral argument in this case pending the Supreme Court’s disposition of the petitions for writ of certiorari currently pending in this case, the Gill/Massachusetts case and the Golinski case – and, in the event that the Supreme Court grants Ms. Windsor’s petition, pending disposition of this case before the Supreme Court. Respectfully submitted, /s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives

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Of Counsel Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 August 15, 2012

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on August 15, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Paul D. Clement Paul D. Clement

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