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Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com H. Christopher Bartolomucci (DC Bar 453423) cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) nnelson@bancroftpllc.com Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com

BANCROFT PLLC 8 1919 M Street, N.W. Suite 470 9 Washington, D.C. 20036 10 202-234-0090 (telephone) 202-234-2806 (facsimile) 11 12 Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov 14 William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) 16 Christine.Davenport@mail.house.gov Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov 18 Mary Beth Walker, Assistant Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) 20 Eleni.Roumel@mail.house.gov 21 OFFICE OF GENERAL COUNSEL, 22 U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building 23 Washington, D.C. 20515 24 202-225-9700 (telephone) 202-226-1360 (facsimile) 25 26 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 8:12-cv-01137-CBM (AJWx) INTERVENORDEFENDANTS RESPONSE TO DEFENDANTS PROCEDURAL MOTION TO DISMISS AND PARTIAL MOTION TO DISMISS Hearing: November 20, 2012 Time: 10:00a.m. Hon. Consuelo B. Marshall

MARTIN R. ARANAS, et al., Plaintiffs,

v.

9 JANET NAPOLITANO, et al., 10 11 12 BIPARTISAN LEGAL ADVISORY 13 GROUP OF THE U.S. HOUSE 14 OF REPRESENTATIVES, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Intervenor-Defendant. Defendants,

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1 2 3 4 TABLE OF AUTHORITIES .................................................................. iii 5 INTRODUCTION .................................................................................. 1 6 BACKGROUND .................................................................................... 1 7 8 9 10 11 12 13 14 15 16 17 ARGUMENT .......................................................................................... 8 18 19 20 21 22 23 24 25 26 27 28 II. I. This Court Should Deny DOJs Procedural Motion to Dismiss ............................................................................. 8 A. This Court Has Already Rejected the Idea That DOJs Procedural Motion Is Necessary or Appropriate ....... 8 B. DOJs Tactics Damage the Integrity of the Judicial Process ........................................................................... 11 The Court Should Grant DOJs Partial Motion to Dismiss ............................................................................. 12 A. Plaintiffs Lack Standing to Challenge DOMA Section 3 ........................................................................ 12 B. Section 3 of DOMA Is Constitutional and Satisfies Substantive Due Process Principles .............................. 14 i I. II. Rule 12(b)(1): Subject Matter Jurisdiction ....................... 6 Rule 12(b)(6): Failure to State a Claim ............................. 7 I. II. Factual Background, as Alleged......................................... 1 Relevant Procedural History .............................................. 4 A. DOJ Declines to Defend DOMA Section 3, and House Intervenes ........................................................... 5 B. DOJ Takes Conflicting Positions, Moving to Dismiss and Affirmatively Opposing Dismissal on the Exact Same Issue ..................................................................... 6 STANDARD OF REVIEW .................................................................... 6 TABLE OF CONTENTS

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1. No Fundamental Liberty Interest Is at Stake ........... 15 2. DOMA Does Not Infringe Plaintiffs Purported Liberty Interest ......................................................... 18 C. Plaintiffs Fail to State a Claim for Any Purported Sex Discrimination Claim .................................................... 20

5 CONCLUSION ....................................................................................... 21 6 CERTIFICATE OF SERVICE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii

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TABLE OF AUTHORITIES Statutes and Federal Rules of Civil Procedure

4 1 U.S.C. 7 ............................................................................................. 1 5 8 U.S.C. 1101 ....................................................................................... 1 6 7 8 8 U.S.C. 1152 ....................................................................................... 2, 20, 21 9 8 U.S.C. 1153 ....................................................................................... 2 10 8 U.S.C. 1182 ....................................................................................... 3, 12, 13 11 12 13 14 15 16 17 Cases 18 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ...................................................... 13 19 20 Andersen v. King Cnty., 138 P.3d 963, 158 Wash. 2d 1 (Wash. 2006) ............................... 21 21 22 Balistreri v. Pacifica Police Dept, 901 F.2d 696 (9th Cir. 1988) ........................................................ 7 23 24 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ........... 7 25 26 Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla.)................................................... 14 27 28 iii Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002) ................................ 2 Fed. R. Civ. P. 12 .................................................................................... 7, 12, 20, 21 8 U.S.C. 1255 ....................................................................................... 3 8 U.S.C. 1151 ....................................................................................... 2, 13

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1 Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) ............. 18 2 3 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996) .......................................................... 7 4 5 Cal. ex rel. Lockyer v. United States, 450 F.3d 436 (9th Cir. 2006) ........................................................ 10 6 7 Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) ..................... 19, 20 8 Catholic Soc. Servs., Inc. v. Reno, 9 134 F.3d 921 (9th Cir. 1997) ........................................................ 18 10 Cheng Fan Kwok v. INS, 11 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 1037 (1968) .................. 9 12 City of S. Lake Tahoe v. Cal. Tahoe Regl Planning Agency, 13 625 F.2d 231 (9th Cir. 1980) ........................................................ 6 14 Collins v. City of Harker Heights, Tex., 15 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) ........... 15 16 Conaway v. Deane, 932 A.2d 571, 401 Md. 219 (Md. 2007) ...................................... 21 17 18 Cozen OConnor v. Tobits, No. 2:11-cv-00045 (E.D. Pa.) ....................................................... 14 19 20 DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) ............. 18 21 22 Dragovich v. U.S. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal.) ..................................................... 14 23 24 Druker v. Commr, 697 F.2d 46 (2d Cir. 1982) ........................................................... 20 25 26 Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) ................. 17 27 28 iv

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1 Golinski v. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.) .......................................... 11, 14 2 3 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .......................................... 9 4 5 Hamilton v. City of San Bernardino, 107 F. Supp. 2d 1239 (C.D. Cal. 2000) ........................................ 7 6 7 Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) ............. 19 8 INS v. Pangilinan, 9 486 U.S. 875, 108 S. Ct. 2210, 100 L. Ed. 2d 882 (1988) ........... 17 10 In re Kandu, 11 315 B.R. 123 (Bankr. W.D. Wash. 2004)..................................... 21 12 In re Marriage Cases, 13 183 P.3d 384, 76 Cal. Rptr. 683 (Cal. 2008) ................................ 21 14 INS v. Chadha, 15 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) ............. 9 16 Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193 (C.D. Cal. 2008) ........................................ 7 17 18 Jackson v. Abercrombie, No. 11-00734, -- F. Supp. 2d --, 2012 WL 3255201 19 (D. Haw. Aug. 8, 2012) ................................................................ 17, 21 20 21 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ........... 19 22 23 Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th Cir. 1988) ...................................................... 11 24 Lui v. Holder, 25 No. 2:11-cv-01267 (C.D. Cal.) ..................................................... 1 26 27 28 v

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1 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) ........... 7, 14 2 3 Lyng v. Auto. Workers, 485 U.S. 360, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) ............. 19 4 5 McConnell v. FEC, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) ............... 13 6 7 Mier v. Owens, 57 F.3d 747 (9th Cir. 1995) .......................................................... 7 8 Miller v. Albright, 9 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) ........... 18 10 Mullins v. Oregon, 11 57 F.3d 789 (9th Cir. 1995) .......................................................... 17 12 New Hampshire v. Maine, 13 532 U.S. 742, 121 S. Ct. 1808, 1815, 149 L. Ed. 2d 968 (2001) . 10 14 Nuclear Info. & Res. Serv. v. Nuclear Reg. Commn, 15 457 F.3d 941 (9th Cir. 2006) ........................................................ 14 16 Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704 (D. Ariz. 1996) ................................................. 6 17 18 Pedersen v. Office of Personnel Mgmt., No. 3:10-cv-1750, -- F. Supp. 2d. --, 2012 WL 3113883 19 (D. Conn. July 31, 2012) .............................................................. 9 20 21 Phila. Police & Fire Assn for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989) .................................. 20 22 23 Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007) ........................................................ 16 24 Regan v. Taxation With Representation of Wash., 25 461 U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) ............. 19 26 27 28 vi

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1 Renne v. Geary, 501 U.S. 312, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) .......... 14 2 3 Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) ............... 16 4 5 Rockwell Int'l Corp. v. Hanford Atomic Metal Trades Council, 851 F.2d 1208 (9th Cir. 1988) ...................................................... 10 6 7 Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729 (9th Cir. 1987) ........................................................ 7 8 Scarano v. Cert. Ry. Co. of N.J., 9 203 F.2d 510 (3d Cir. 1953) ......................................................... 11 10 Shabani v. Classic Design Servs., Inc., 11 699 F. Supp. 2d 1138 (C.D. Cal. 2010) ....................................... 7 12 Torres-Barragan v. Holder, 13 No. 2:09-cv-08564 (C.D. Cal.) ..................................................... 1, 21 14 United States v. Lovett, 15 328 U.S. 303, 103 S. Ct. 2764, 77 L. Ed. 317 (1946) .................. 9 16 Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) ........... 15, 16, 17 17 18 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) .......................................... 9 19 20 21 22 23 8 C.F.R. 214.2 (1989) .......................................................................... 2 24 U.S. Dept of State, Visa Bulletin for Oct. 2012 .................................... 2 25 26 27 28 vii Regulations and Other Agency Rules

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1 Other Authorities 2 7C Charles Alan Wright et al., Federal Practice & Procedure 1920 (3d ed. 2012) ................................................................................. 10 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viii

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INTRODUCTION This case concerns the constitutionality of Section 3 of the Defense of

3 Marriage Act (DOMA), Pub. L. No. 104-199, 110 Stat. 2419 (1996), 1 U.S.C. 4 7, in the context of certain benefits provided under the Immigration and Nationality 5 Act (INA), 8 U.S.C. 1101, et seq. See Compl. for Declaratory & Injunctive 6 Relief 3, 4 (July 12, 2012) (ECF No. 1) (Complaint). It is the third such case 7 to challenge DOMA Section 3 in the immigration context in this district in the past 8 two years. In both earlier cases, the district court dismissed the complaints on their 9 merits. See Order, Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011) 10 (ECF No. 38) (Lui Order) (dismissing both equal protection and substantive due 11 process claims); Order, Torres-Barragan v. Holder, No. 2:09-cv-08564 (C.D. Cal. 12 Apr. 30, 2010) (ECF No. 24) (Torres-Barragan Order) (same). The Department of Justice (DOJ), on behalf of the Executive Branch 13 14 Defendants, has filed two motions to dismiss: a Procedural Motion to Dismiss 15 and a Partial Motion to Dismiss. See [DOJs] Procedural Mot. to Dismiss & 16 Partial Mot. to Dismiss (Sept. 28, 2012) (ECF No. 46) (DOJ Motion). 17 Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of 18 Representatives (House) now responds to both. For the reasons set forth below, 19 the House urges the Court to deny DOJs Procedural Motion to Dismiss and 20 grant the relief requested by its Partial Motion to Dismiss. BACKGROUND 21 22 I. 23 Factual Background, as Alleged. Plaintiff Jane DeLeon is a non-U.S. citizen and non-resident alien. Compl.

24 19. She entered the U.S. in 1989 on a non-immigrant visitors visa. Id. 20. At 25 the time she entered, she represented to federal authorities that she was married to 26 Joseph Aranas, even though that was untrue. Id. 22; Decision, U.S. Citizenship 27 28 1

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1 & Imm. Servs. at 3 (Sept. 1, 2011) (First USCIS Dec.) (Ex. 2 to [Pls.] Notice of 2 Mot. & Mot. for Prelim. Inj.) (Aug. 23, 2012) (ECF No. 12) (Mot. for PI)). 3 When Ms. DeLeon entered from the Philippines on or about June 19, 4 1989, she was authorized to remain in the United States for a temporary period, 5 not to exceed December 18, 1989. First USCIS Dec. at 3.1 However, when 6 December 18, 1989, arrived, Ms. DeLeon did not depart. Instead, she remained 7 and has resided here continuously since that time. Compl. 20. In other words, 8 Ms. DeLeon illegally overstayed her visitors visa for the next nearly 23 years (and 9 counting). Based on the record before this Court, Ms. DeLeon has been an 10 unlawfully present, undocumented alien during that entire period of time. 11 Ms. DeLeon twice has attempted to obtain legal status. First, in March 12 2001, her U.S. citizen father filed a family-based immigrant petition on her behalf. 13 First USCIS Dec. at 3.2 The father filed under 8 U.S.C. 1153(a)(1), which 14 allocates a certain number of visas each year for unmarried sons and daughters of 15 U.S. citizens. But the INA also allocates the total number of family-based 16 immigrant visas available each year, 8 U.S.C. 1151(c), on a per country basis, id. 17 1152(a)(2) and the preference category under which Ms. DeLeons fathers 18 petition was approved is heavily oversubscribed for citizens of the Philippines. 19 Thus, although USCIS approved the petition, Ms. DeLeon is not eligible to adjust 20 her status to that of a permanent resident because her priority date (March 19, 21 2001) has not yet become current.3 22
1

23 year. 8 C.F.R. 214.2(b)(1) (1989). 2 24 At the time, the responsibilities currently assigned to USCIS were carried out by the

At the time, the maximum period of validity for a visitors visa was not more than one

25 the enactment of the Homeland Sec. Act of 2002, Pub. L. No. 106-296, 116 Stat. 2135 (2002). 3 26 See U.S. Dept of State, Visa Bulletin for Oct. 2012, at 2, available at 27 28

Immigration and Naturalization Service (INS). The INS ceased to exist in 2003, as a result of

http://www.travel.state.gov/visa/bulletin/bulletin_5770.html (visas currently available for (Continued.)

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Second, in March 2006, Promax Systems filed an employment-based

2 immigrant visa petition on Ms. DeLeons behalf. Compl. 26; First USCIS Dec. 3 at 2. Although that petition was approved, Ms. DeLeon was statutorily ineligible 4 to adjust her status to that of a lawful permanent resident because she was not then 5 in a lawful nonimmigrant status, 8 U.S.C. 1255(c)(7), and because she had 6 misrepresented a material fact at the time of her initial entry in 1989, see id. 7 1182(a)(6)(C)(i); Compl. 27; First USCIS Dec. at 3. 8 Ms. DeLeon nevertheless applied for adjustment of status in 2007. Compl. 9 26; First USCIS Dec. at 3. USCIS, predictably, advised her that she appeared to be 10 ineligible because she had misrepresented a material fact at the time of her initial 11 entry in 1989. Compl. 27; First USCIS Dec. at 3. However, USCIS also advised 12 Ms. DeLeon that she might be eligible for a waiver of such inadmissibility if she 13 could establish that denial of her application for adjustment of status would result 14 in extreme hardship to her U.S. citizen father. Compl. 28; First USCIS Dec. at 3; 15 see also 8 U.S.C. 1182(i)(1) (providing Attorney General with discretion to 16 waive inadmissibility in certain cases if alien established that refusal of admission 17 . . . would result in extreme hardship to . . . [a] parent of alien). 18 Ms. DeLeon applied for such a waiver in July 2011, see Compl. 29; First 19 USCIS Dec. at 3, and, in September 2011, USCIS denied that waiver application 20 on the ground that she failed to establish that denial of her application to adjust 21 would cause extreme hardship to her U.S. citizen father (who apparently resided a 22 significant portion of the time in the Philippines). Id.; Compl. 30; Mot. to 23 Reopen or Reconsider, U.S. Citizenship & Imm. Servs. at 1 (Nov. 9, 2011) 24 25 citizens of the Philippines, who are unmarried sons and daughters of U.S. citizens, with priority 26 dates on or before April 1, 1996). In due course, Ms. DeLeons priority date will become current
and she will be eligible to apply to adjust her status to that of a permanent resident.

27 28 3

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1 (Second USCIS Dec.) (Ex. 1 to Mot. for PI). At the same time, USCIS also 2 denied Ms. DeLeons application for adjustment of status. Id. at 2; First USCIS 3 Dec. at 3-4. 4 In the meantime, in August 2008, Ms. DeLeon and Plaintiff Irma Rodriguez 5 (a U.S. citizen) obtained a marriage certificate from the State of California. 6 Second USCIS Dec. at 2 (marriage date Aug. 28, 2008); Compl. 2, 8, 9, 25 7 (marriage date Aug. 22, 2008). As a result, Ms. DeLeon moved on September 27, 8 2011, for reconsideration of the denial of her waiver application on the ground that 9 denial of her application to adjust would cause extreme hardship to Ms. Rodriguez. 10 Id. 32. USCIS denied that motion in November 2011 on the basis of Section 3 of 11 DOMA. Id. 37; Second USCIS Dec. at 2. USCIS did not reach the question of 12 whether Ms. DeLeon had established extreme hardship to Ms. Rodriguez, even 13 assuming Section 3 did not otherwise bar reconsideration. Id. 14 II. Relevant Procedural History. 15 Eight months later, Ms. DeLeon, Ms. Rodriguez, and Ms. DeLeons 16 biological son, Mr. Aranas, filed this lawsuit. They allege for themselves and 17 purportedly on behalf of a class consisting of [a]ll members of lawful marriages 18 whom the Department of Homeland Security [DHS], pursuant to 3 of [DOMA], 19 refuses to recognize as spouses for purposes of conferring lawful status and related 20 benefits under the [INA] . . . , Compl. 14 that DOMA Section 3, as applied to 21 them (and others similarly situated), violates their Fifth Amendment equal 22 protection and substantive due process rights by refusing to recognize their 23 lawful marriages for purposes of conferring family-based immigration waivers and 24 benefits. Id. 3, 4, 69-70 (equal protection), 71-73 (substantive due process). 25 26 27 28 4

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A. DOJ Declines to Defend DOMA Section 3, and House Intervenes. As the Court is aware, DOJ has declined in this case, as well as fourteen

3 others, to defend DOMA Section 3 against challenges predicated on the equal 4 protection component of the Fifth Amendment. As a result, the House moved to 5 intervene to shoulder that responsibility. See Mot. of [House] for Leave to 6 Intervene (Aug. 23, 2012) (ECF No. 18). DOJ did not oppose the Houses Motion 7 to Intervene, but did suggest that it was necessary for DOJ to take the procedural 8 steps . . . to enable [the House] to present arguments in support of the 9 constitutionality of Section 3 in order to ensure[] the continuing existence of a 10 justiciable case or controversy . . . . [DOJs] Resp. to the Mot. of the [House] for 11 Leave to Intervene at 2 (Aug. 31, 2012) (ECF No. 25) (DOJ Response to 12 Intervention). The House explained in considerable detail that it did not need DOJ to take 13 14 procedural steps on the Houses behalf, and that the House clearly has standing to 15 defend the constitutionality of DOMA Section 3 where, as here, DOJ had shirked 16 its responsibility to do so. Reply to [DOJs] Resp. to Mot. of [House] for Leave to 17 Intervene at 8 (Sept. 7, 2012) (ECF No. 29) (House Reply). 18 On September 26, 2012, this Court granted the Houses Motion to Intervene. 19 See In Chambers Order (Sept. 26, 2012) (ECF No. 43) (House is permitted to 20 intervene to defend the constitutionality of Section 3 of the Defense of Marriage 21 Act (1 U.S.C. 7)) (Intervention Order). Notably, this Court, like every other to 22 have considered this issue, declined to adopt DOJs proposed order which 23 suggested that the House be permitted to intervene consistent with the [DOJs] 24 role in this case as counsel for Defendants as agencies and officers of the United 25 States. Compare [DOJs] [Proposed] Order (Aug. 31, 2012) (ECF No. 25-1), with 26 Intervention Order. The Court thus has not accepted and indeed has implicitly 27 rejected DOJs argument that the Court cannot consider and enter judgment on 28 5

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1 the Houses DOMA Section 3 arguments without DOJ filing shadow procedural 2 motions to dismiss on behalf of the House. 3 4 5 B. DOJ Takes Conflicting Positions, Moving to Dismiss and Affirmatively Opposing Dismissal on the Exact Same Issue. On September 14, 2012, the House moved to dismiss Plaintiffs Complaint,

6 as it is entitled to do as an Intervenor-Defendant under the Federal Rules of Civil 7 Procedure. See Mot. of [House] to Dismiss (Sept. 14, 2012) (ECF No. 36). 8 Notwithstanding this Courts Intervention Order and the fact that the House is a 9 party to this litigation, DOJ subsequently filed a Procedural Motion to Dismiss 10 along with its Partial Motion to Dismiss. See DOJ Mot. In its Procedural 11 Motion, DOJ again pronounces without any legal support and contrary to Local 12 Rule 7.5, without any supportive memoranda that it must file such a motion to 13 ensure that the Court can consider the Houses arguments regarding the 14 constitutionality of DOMA Section 3. Id. at 2-3. 15 At the same time, DOJ opposed the Houses Motion to Dismiss, and thus, in 16 effect its own Procedural Motion to Dismiss. See [DOJs] Oppn to the 17 [Houses] Mot. to Dismiss (Oct. 9, 2012) (ECF No. 51) (DOJ Oppn). That is, 18 DOJ is now in the procedurally untenable position of having filed two directly 19 conflicting pleadings on the same exact issue a Procedural Motion to Dismiss 20 Plaintiffs equal protection claim, and an Opposition, which opposes the Houses 21 Motion to Dismiss, on the very same claim. 22 23 I. 24 STANDARD OF REVIEW Rule 12(b)(1): Subject Matter Jurisdiction. Standing is an essential element of federal-court subject matter

25 jurisdiction. Orient v. Linus Pauling Inst. of Sci. & Med., 936 F. Supp. 704, 706 26 (D. Ariz. 1996); see also, e.g., City of S. Lake Tahoe v. Cal. Tahoe Regl Planning 27 Agency, 625 F.2d 231, 233 (9th Cir. 1980). A plaintiff lacks standing where her 28 6

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1 alleged injury could not be redressed by the relief that she seeks. See, e.g., Lujan 2 v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 3 (1992) ([T]he irreducible constitutional minimum of standing contains three 4 elements. First, the plaintiff must have suffered an injury in fact . . . . Second, 5 there must be a causal connection between the injury and the conduct complained 6 of . . . . Third, it must be likely, as opposed to merely speculative, that the injury 7 will be redressed by a favorable decision. The party invoking federal jurisdiction 8 bears the burden of establishing these elements. (quotation marks omitted)). 9 II. 10 Rule 12(b)(6): Failure to State a Claim. A 12(b)(6) motion tests the legal sufficiency of the complaint. Hamilton

11 v. City of San Bernardino, 107 F. Supp. 2d 1239, 1241 (C.D. Cal. 2000) (citing 12 Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987)). 13 Claims should be dismissed . . . when there is either a lack of a cognizable legal 14 theory or the absence of sufficient facts alleged under a cognizable legal theory. 15 Shabani v. Classic Design Servs., Inc., 699 F. Supp. 2d 1138, 1141 (C.D. Cal. 16 2010) (quoting Balistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 17 1988)). Thus, the Court properly may grant a Rule 12(b)(6) motion if it is clear 18 from the face of the complaint, judicially-noticed documents, and cognizable non19 adjudicative facts that the plaintiff cannot prevail as a matter of law. 20 While [t]he court must accept all factual allegations pleaded in the 21 complaint as true, . . . [i]t need not . . . accept as true unreasonable inferences or 22 conclusory legal allegations cast in the form of factual allegations. Izenberg v. 23 ETS Servs., LLC, 589 F. Supp. 2d 1193, 1198 (C.D. Cal. 2008) (citing Bell Atl. 24 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Cahill 25 v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 26 F.3d 747, 750 (9th Cir. 1995)). 27 28 7

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1 2

ARGUMENT This Court should deny DOJs unnecessary and irrelevant Procedural

3 Motion to Dismiss because (i) the Court already has rejected the theory on which 4 that motion is predicated; and (ii) DOJs attempt to act as a self-appointed 5 gatekeeper is an improper power-grab that, if permitted, would give the Executive 6 Branch unilateral authority to prevent the Judicial Branch from deciding the 7 constitutionality of challenged statutes. 8 The Court should grant DOJs Partial Motion to Dismiss Plaintiffs claims 9 for (1) lack of standing; (2) failure to state a claim for violation of substantive due 10 process rights; and (3) failure to state a claim for violation of statutory sex 11 discrimination protections. 12 I. This Court Should Deny DOJs Procedural Motion to Dismiss. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 A. This Court Already Has Rejected the Idea That DOJs Procedural Motion Is Necessary or Appropriate. As noted above, on September 26, this Court granted the Houses unopposed Motion for Leave to Intervene. See Intervention Order. The precise issue that DOJ now seeks to resurrect the need for and propriety of a shadow motion to dismiss was litigated in the context of the Houses intervention motion. The Courts Intervention Order permitted the House to intervene as a party, and, in so doing, the Court rejected DOJs proposed order on this precise issue. See supra pp. 4-7. DOJs Procedural Motion to Dismiss appears to be based on DOJs position that only it, and not the House as Intervenor-Defendant, properly can seek dismissal of Plaintiffs claims and that the Court therefore is powerless to consider the Houses motion unless DOJ files a parallel motion of its own. DOJ fails to cite any support for this pronouncement, and with good reason.

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First, to the extent that DOJ takes the position that its procedural motions

2 somehow ensure that a case or controversy exists between Plaintiffs and the House, 3 see DOJ Mot. at 2-3, it is plainly wrong. Where, as here, DOJ abandons its 4 constitutional responsibility to defend a federal statute, the Legislative Branch has 5 Article III standing to intervene to defend the law at all stages of the litigation. 6 The Supreme Court ha[s] long held that Congress is the proper party to defend the 7 validity of a statute when an agency of government, as a defendant charged with 8 enforcing the statute, agrees with plaintiffs that the statute is inapplicable or 9 unconstitutional. INS v. Chadha, 462 U.S. 919, 940, 103 S. Ct. 2764, 77 L. Ed. 10 2d 317 (1983) (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9, 88 S. Ct. 11 1970, 20 L. Ed. 1037 (1968), and United States v. Lovett, 328 U.S. 303, 103 S. Ct. 12 2764, 77 L. Ed. 317 (1946)). Further, DOJ already has conceded here that such a 13 case or controversy exists between the House and Plaintiffs. See DOJs Resp. to 14 Intervention at 2. 15 Second, every other District Court that has faced this issue in the context of 16 DOMA Section 3 litigation has simply ignored DOJs shadow procedural motions, 17 thereby treating them as unnecessary and irrelevant. See Pedersen v. Office of 18 Pers. Mgmt., No. 3:10-cv-01750, -- F. Supp. 2d --, 2012 WL 3113883 (D. Conn. 19 July 31, 2012) (no reference or comment on DOJs shadow motion to dismiss or 20 arguments therein); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 21 (N.D. Cal. 2012) (same); Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 22 2012) (terminating DOJs shadow motion to dismiss by docket number without 23 comment). None of those three district courts recognized or even referenced 24 DOJs position that it must act as a jurisdictional enabler for the House to litigate 25 DOMA Section 3 issues. 26 Third, DOJs position flies in the face of the Federal Rules of Civil 27 Procedure. DOJ has cited no law, and we are not aware of any, that would permit 28 9

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1 an adverse party to act as a procedural gatekeeper, dictating what motions an 2 intervenor such as the House can or cannot bring. It is well-established that the 3 intervenor, once allowed to become a party, is treated in the same way as any other 4 party. 7C Charles Alan Wright et al., Federal Practice & Procedure 1920 (3d 5 ed. 2012) (Unless conditions have been imposed, the intervenor is treated as if the 6 intervenor were an original party and has equal standing with the original 7 parties.); see also Cal. ex rel. Lockyer v. United States, 450 F.3d 436, 445 (9th 8 Cir. 2006) (instructing district court to make proposed intervenors parties to 9 litigation and advising: The district court should take all reasonable steps to put 10 the new parties on equal footing with the original parties . . . .). Further, the 11 intervenor is entitled to litigate fully on the merits once intervention has been 12 granted. The intervenor may move to dismiss the proceeding and may challenge 13 the subject-matter jurisdiction of the court. 7C Charles Alan Wright et al., 14 Federal Practice & Procedure 1920 (3d ed. 2012) (footnote omitted). 15 Finally, DOJs position is directly adverse to the Houses regarding the 16 subject matter of the Houses motion to dismiss namely, the constitutionality of 17 DOMA Section 3 on equal protection grounds. See DOJ Oppn. As a practical 18 matter, and as an ethical matter, DOJ cannot simultaneously defend Section 3 19 against Plaintiffs equal protection claim and affirmatively seek to invalidate the 20 statute based on that same claim. See House Reply at 8-9. At minimum, DOJ 21 should be estopped from filing directly conflicting motions on the same issue in the 22 same litigation. See New Hampshire v. Maine, 532 U.S. 742, 751, 121 S. Ct. 1808, 23 1815, 149 L. Ed. 2d 968 (2001) ([T]he party seeking to assert an inconsistent 24 position would derive an unfair advantage or impose an unfair detriment on the 25 opposing party if not estopped.); Rockwell Intl Corp. v. Hanford Atomic Metal 26 Trades Council, 851 F.2d 1208, 1210 (9th Cir. 1988) (The doctrine [of estoppel] 27 is intended to protect against a litigant playing fast and loose with the courts by 28 10

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1 asserting inconsistent positions.); Scarano v. Cert. Ry. Co. of N.J., 203 F.2d 510, 2 513 (3d Cir. 1953) (estoppel forbids use of intentional self-contradiction . . . as a 3 means of obtaining unfair advantage). 4 B. DOJs Tactics Damage the Integrity of the Judicial Process. 5 As we pointed out earlier, the legal implication of DOJs position here is that 6 7 it has the power effectively to preclude judicial determination of a statutes 8 constitutionality by simply failing to seek dismissal or summary judgment in any 9 case filed against a statute it dislikes. House Reply at 7. Vesting DOJ with the 10 authority to control the Courts consideration of the Houses constitutional 11 arguments by acknowledging that such consideration is contingent on DOJs 12 willingness to file a shadow procedural motion to dismiss therefore would be 13 tantamount to providing the Executive Branch with an extra-constitutional post14 enactment veto over federal statutes to which it objects, as the Department has
4 15 tacitly admitted before the Ninth Circuit. But this is the kind of power the Ninth 16 Circuit rightly has said does not exist. See Lear Siegler, Inc. v. Lehman, 842 F.2d

17 1102, 1122 (9th Cir. 1988) (law does not permit the executive branch to interpret 18 the Constitution so as to assume additional powers or thwart the constitutional 19 functions of a coordinate branch), vacated in part on other grounds, 893 F.2d 205 20 (9th Cir. 1989). 21 22 ________ In sum, this Court should not countenance DOJs procedural game-playing.

23 Rather, it should deny DOJs Procedural Motion to Dismiss and proceed to 24 consider the merits of the Houses Motion to Dismiss, as well as DOJs Partial 25 26 27 28 Motion to Dismiss, which we address below.
See Reply Br. for the Office of Pers. Mgmt. et al. at 16 n.7, Golinski v. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (July 31, 2012) (ECF No. 149).
4

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1 II. 2

The Court Should Grant DOJs Partial Motion to Dismiss. DOJ seeks partial dismissal of Plaintiffs Complaint on three grounds: (1)

3 lack of standing; (2) failure to adequately plead a claim for violation of Plaintiffs 4 substantive due process rights under the Fifth Amendment; and (3) failure to state a 5 claim for sex discrimination. For the reasons set forth in DOJs Partial Motion to 6 Dismiss, and for the additional reasons described below, this Court should grant 7 DOJs Partial Motion to Dismiss. 8 A. Plaintiffs Lack Standing to Challenge DOMA Section 3. 9 In its Partial Motion to Dismiss, DOJ asserts that Plaintiffs Aranas and. 10 Rodriguez lack standing and should be dismissed from this action pursuant to Fed. 11 R. Civ. P. 12(b)(1). DOJ Mot. at 6-8. DOJ contends that Ms. Rodriguez and Mr. 12 Aranas lack third party standing to assert the purported constitutional rights of Ms. 13 DeLeon, who is actively prosecuting her own claim. See id. Specifically, DOJ 14 argues that Mr. Aranas lacks standing to claim that DOMA Section 3 discriminates 15 against him on the basis of sexual orientation because he is not being discriminated 16 against on the basis of his own orientation; and (2) Ms. Rodriguez lacks standing 17 because, in the immigration context, an individual does not have standing based 18 solely on alleged harm to a spouse. See id. The House concurs with DOJ these 19 two Plaintiffs should be dismissed for lack of subject matter jurisdiction. 20 In addition, however, all three Plaintiffs lack standing to challenge DOMA 21 Section 3 because they have failed to challenge a statutory provision that 22 independently bars them from obtaining their requested relief: INA Section 23 212(i)(1), 8 U.S.C. 1182(i)(1). 24 Ms. DeLeon seeks a waiver from the denial of her application to adjust 25 under INA Section 212(i)(1), 8 U.S.C. 1182(i)(1). See supra pp. 2-4. But, 26 Section 212(i)(1) applies solely to a spouse, and it is well-established that Ms. 27 DeLeon is not a spouse within the meaning of that statute: the Ninth Circuit has 28 12

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1 long held that the INAs use of the term spouse is limited solely to persons of the 2 opposite sex. See Adams v. Howerton, 673 F.2d 1036, 1029-41 (9th Cir. 1982). 3 The Adams Court interpreted the word spouse in the INAs definition of 4 immediate relatives, INA Section 201(b), 8 U.S.C. 1151(b). The Ninth Circuit 5 assumed that the plaintiffs were recognized as married under state law, but after 6 considering the INA as a whole and its legislative history, the court concluded that 7 for federal purposes, the INAs use of the word spouse refers only to persons of 8 the opposite sex. See id. at 1039-40 (It is clear to us that Congress did not intend 9 the mere validity of a marriage under state law to be controlling.). 10 For the same reasons that INA Section 201(b), 8 U.S.C. 1151(b), did not 11 refer to same-sex couples in using the term spouse, INA Section 212(i)(1), 8 12 U.S.C. 1182(i)(1), does not do so either. See, e.g., Adams, 673 F.2d at 1040 (As 13 our duty is to ascertain and apply the intent of Congress, we strive to interpret 14 language in one section of a statute consistently with the language of other sections 15 and with the purposes of the entire statute considered as a whole.). Congress 16 always has used the term spouse to refer only to traditional, opposite-sex 17 couples, and certainly that was the case at the enactment of INA Section 212(i)(1), 18 8 U.S.C. 1182(i)(1) in 1961. 19 Because INA Section 212(i)(1), 8 U.S.C. 1182(i)(1) independently 20 forecloses their claim for relief, and because Plaintiffs have not challenged the 21 validity of Section 212(i)(1), their alleged injuries would not be redressed even if 22 they prevailed on all of their DOMA Section 3 arguments. Accordingly, they lack 23 standing to challenge Section 3. See, e.g., McConnell v. FEC, 540 U.S. 93, 229, 24 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) (challenge to constitutionality of statutory 25 26 27 28 13

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1 provision fails where other, unchallenged statutory provisions independently bar 2 plaintiffs from requested relief).5 3 4 5 B. Section 3 of DOMA Is Constitutional and Satisfies Substantive Due Process Principles. In its Partial Motion to Dismiss, DOJ also contends that this Court should

6 dismiss Plaintiffs claim that DOMA Section 3 violates substantive due process 7 principles under the Fifth Amendment for failure to state a claim. DOJ argues 8 correctly that to any extent that DOMA prevents Plaintiffs from obtaining a federal 9 benefit, there is no substantive due process right to a federal benefit. See [DOJ]s 10 Mem. of P. & A. in Supp. of Partial Mot. to Dismiss at 8-9 (Sept. 28, 2012) (ECF 11 No. 46-1) (DOJs Partial Motion to Dismiss Memorandum). The House concurs 12 with DOJ, and respectfully requests that this Court dismiss Plaintiffs substantive
6 13 due process claim for the reasons set forth in DOJs Partial Motion to Dismiss.

14 15 16 17 18 19 20 21
See also, e.g., Renne v. Geary, 501 U.S. 312, 319, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) (noting, in First Amendment challenge to local governments removal of party endorsements from materials submitted by political candidates for distribution by county, that there was reason to doubt . . . that the injury alleged by these voters can be redressed by a declaration of [the ordinance]s invalidity or an injunction against its enforcement because separate and unchallenged state statute likely also required the redaction); Nuclear Info. & Res. Serv. v. Nuclear Reg. Commn, 457 F.3d 941, 955 (9th Cir. 2006) (no redressibility available where failure to challenge agency rule prohibited court from remanding). See generally Lujan, 504 U.S. at 560-61.
6 5

DOJ repeatedly has argued that DOMA Section 3 does not violate the substantive due

22 process component of the Fifth Amendment. See, e.g., Reply Br. for the Office of Pers. Mgmt. 23 in Supp. of Their Cross-Mot. for Summ. J. at 9-11, Dragovich v. U.S. Dept of the Treasury, No. 24 4:10-cv-01564 (N.D. Cal. Apr. 12, 2012) (ECF No. 121); Fed. Defs. Oppn to Pls. Mot. for
Summ. J. . . . at 9-14, Dragovich (Feb. 21, 2012) (ECF No. 114); Br. of the United States 25 Regarding the Constitutionality of Section 3 of DOMA at 5 n.3, Cozen OConnor v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Dec. 30, 2011) (ECF No. 97); Resp. of Defs. United States . . . to 26 [Houses] Cross-Mot. for Summ. J. at 3-4 n.4, Bishop v. Holder, No. 4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225). at 17-21, Golinski, Nos. 12-15388 & 12-15409 (July 31, 2012) (ECF No. 149); Fed. Defs. Reply

27 28

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In addition, Plaintiffs claim that DOMA Section 3 violates the substantive

2 due process component of the Fifth Amendment depends entirely on their 3 argument that a heightened standard of review applies. See Compl. 72, 73. But 4 heightened substantive due process review applies only where a fundamental 5 liberty interest is both at stake and infringed. Here, neither is the case. 6 1. No Fundamental Liberty Interest Is at Stake. 7 In the substantive due process context, only those fundamental rights and 8 liberties which are, [i] objectively, deeply rooted in this Nations history and 9 tradition, and [ii] implicit in the concept of ordered liberty should be recognized 10 for heightened scrutiny. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. 11 Ct. 2258, 138 L. Ed. 2d 772 (1997) (quotation marks and citations omitted). In 12 defining the right or interest at issue, the courts may not readily generalize to an 13 abstract description so as to implicate such a right or interest; rather, courts must 14 careful[ly] describe the asserted right or interest at issue. Id. at 721 (quotation 15 marks omitted). 16 17 18 19 20 By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.

21 Id. at 720 (quotation marks and citation omitted); see also Collins v. City of Harker 22 Heights, Tex., 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) 23 ([T]he Court has always been reluctant to expand the concept of substantive due 24 process because guideposts for responsible decisionmaking in this unchartered 25 [sic] area are scarce and open-ended.). 26 27 28 15

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In Glucksberg, for example, the Supreme Court considered a state law

2 barring an individual from assisting another in ending his or her own life. 521 U.S. 3 at 707. The Court did not define the interest at issue in the broad terms suggested 4 by those attacking the statute e.g., as a right to determin[e] the time and manner 5 of ones death, the right to die, a liberty to choose how to die, a right to 6 control of ones final days, the right to choose a humane, dignified death, or 7 the liberty to shape death but rather as the more narrow right to assistance in 8 committing suicide. Id. at 722-23, 726 (quotation marks omitted). As so defined, 9 the Court found no fundamental right or liberty. Id. at 723-28.7 10 The Ninth Circuit likewise has required the courts to adopt a narrow 11 definition of the interest at stake in considering an asserted substantive due 12 process fundamental right or liberty interest. Raich v. Gonzalez, 500 F.3d 850, 863 13 (9th Cir. 2007); see also id. at 864 ([T]he right must be carefully stated and 14 narrowly identified before the ensuing analysis can proceed.). Raich defined the 15 interest at stake there not as the right to make life-shaping medical decisions that 16 are necessary to preserve the integrity of her body, avoid intolerable physical pain, 17 and preserve her life, but rather as the right to use marijuana to preserve bodily 18 integrity . . . an interest that it had little trouble concluding was not entitled to 19 heightened substantive due process protection. Id. at 864-66 (brackets and 20 quotation marks omitted; emphasis in original). 21 22 23 24 25 26 27 28 16
See also Reno v. Flores, 507 U.S. 292, 302-03, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (narrowly defining right at issue as alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution rather than an asserted right to freedom from physical restraint or to be released from all other custody into the custody of its parents, legal guardian, or even close relatives; also noting: The mere novelty of . . . a claim is reason enough to doubt that substantive due process sustains it (quotation marks omitted)).
7

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Here, the Complaint as pled indicates that Plaintiffs seek to vindicate an

2 alleged right of Ms. DeLeon to obtain reconsideration of USCISs determination 3 that she is not eligible to adjust to lawful permanent resident status (because she 4 misrepresented to the federal government a material fact about herself at the time 5 of her initial entry into this country in 1989), based on her obtaining a state 6 marriage certificate after many years of unlawful presence in this country. See 7 Compl. 27; First USCIS Dec. at 3. That is not a fundamental right or liberty 8 interest. Certainly there is no objective[], deeply rooted . . . history and 9 tradition in this country of allowing such a reopening on that basis (or any other). 10 Glucksberg, 521 U.S. at 720-21; see also, e.g., Mullins v. Oregon, 57 F.3d 789, 11 793-95 (9th Cir. 1995) (considering history, traditions, and practices to determine 12 that proposed right not appropriate for substantive due process recognition). Nor is 13 such an opportunity to reopen implicit in the concept of ordered liberty, which 14 serves as an independent reason why Plaintiffs proposed fundamental right or 15 interest must be rejected. Glucksberg, 521 U.S. at 721 (quotation marks omitted).8 16 Indeed, Congress at any time could remove any opportunity of a petitioner to seek 17 re-opening of the denial of a waiver of a determination of non-eligibility for 18 adjustment of status.9 19 8

20 Ninth Circuit to define the interest at stake broadly as the denial of any right based on status as 21 fact, same-sex marriage first was allowed in this country only eight years ago. See Jackson v. 22 Abercrombie, No. 1:11-cv-00734, -- F. Supp. 2d -- , 2012 WL 3255201, at *22 (D. Haw. Aug. 8,
a same-sex spouse, there is no long history in the United States of recognition of such a right. In

Even were this Court contrary to the express direction of the Supreme Court and

2012) (In fact, [opposite sex marriage] is the historically and traditionally understood definition; 23 [same-sex marriage] was first allowed by a state in 2004 . . . .), appeal docketed, No. 12-16998 (9th Cir. Sept. 10, 2012).

24

See, e.g., INS v. Pangilinan, 486 U.S. 875, 882-83, 108 S. Ct. 2210, 100 L. Ed. 2d 882 (1988) (Congress has exclusive constitutional power over immigration and nationalization 25 matters); Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) ([O]ver no 26 conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. (quotation marks omitted)). More than that, Congress at any time could 27 (Continued.)

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14

2. DOMA Does Not Infringe Plaintiffs Purported Liberty Interest. Plaintiffs seek to avoid the force of this argument by defining their asserted interest at an extremely high level of generality. In Plaintiffs telling, the right at issue is the integrity of their lawful marriage and their most intimate family relationships. Compl. 72. This, of course, is precisely what the Supreme Court and Ninth Circuit have instructed courts not to do. However, even if this Court were to accept this articulation of Plaintiffs interest, and to deem it fundamental, Plaintiffs asserted liberty interest is not infringed by DOMA Section 3 and, accordingly, heightened scrutiny is not triggered. The failure of the government to facilitate the exercise of a fundamental right does not amount to an infringement of that right, as the Supreme Court repeatedly has held.10 Put another way, while substantive due process principles bar the government from directly infringing certain rights, e.g., by criminalizing

15 remove any opportunity for a waiver at all, or even flatly preclude any opportunity for an alien to 16 obtain adjustment of status, period. See, e.g., Miller v. Albright, 523 U.S. 420, 456, 118 S. Ct.
1428, 140 L. Ed. 2d 575 (1998) (Because only Congress has the power to set the requirements courts cannot exercise that power under the guise of their remedial authority.); Catholic Soc. respect to immigration matters is . . . ingrained in our law.). There simply exists no

17 for acquisition of citizenship by persons not born within the territory of the United States, federal 18 Servs., Inc. v. Reno, 134 F.3d 921, 926 (9th Cir. 1997) ([Congresss] plenary authority with

19 fundamental right of the sort envisioned by Plaintiffs. Plaintiffs claim actually sounds in equal 20 protection, that is, where Congress provides for certain procedural rights in the immigration
supporting Memorandum.

context, it may not deny those rights to same-sex spouses while simultaneously granting them to

21 opposite-sex spouses. That claim fails for reasons stated in the Houses Motion to Dismiss and 22 23 24 25 26 27 28 18
See, e.g., DeShaney v. Winnebago Cnty. Dept of Soc. Servs., 489 U.S. 189, 196, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) ([T]he Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.); Bowen v. Gilliard, 483 U.S. 587, 601-02, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) (That some families may decide to modify their living arrangements in order to avoid the effect of the amendment, does not transform the amendment into an act whose design and direct effect are to intrude on choices concerning family living arrangements. (quotation marks omitted)).
10

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1 the exercise of that right, see Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 2 156 L. Ed. 2d 508 (2003), the government is not obligated to facilitate the exercise 3 of such rights in its allocation of benefits.11 4 Here, DOMA Section 3 does not prohibit Ms. DeLeon and Ms. Rodriguez 5 from marrying, or from forming or maintaining any other family relationship; it 6 merely defines marriage for the purpose of distributing certain federal benefits and 7 burdens. The governments unwillingness to waive the consequences of a persons 8 already-committed illegal act, based on that persons subsequent procurement of a 9 marriage certificate, is hardly a cognizable burden on the right to marry. 10 Immigration determinations inevitably have a large practical effect on how a 11 couple is able to conduct their relationship but so do many other consequences of 12 unlawful conduct imposed by the state, such as incarceration, that never have been 13 thought to interfere with any nebulous right to integrity of family 14 relationships. Plaintiffs cite no authority for the proposition that states can 15 commandeer federal immigration law simply by issuing marriage licenses to aliens 16 17 18 19 20 21 22 23 24 25 26 27 28 19
See also, e.g., Califano v. Jobst, 434 U.S. 47, 54, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977) (no infringement of substantive due process rights; government withdrawal of certain social security benefits upon marriage does not interfere with the individuals freedom to make a decision as important as marriage); Lyng v. Auto. Workers, 485 U.S. 360, 368, 108 S. Ct. 1184, 99 L. Ed. 2d 380 (1988) (denial of food stamps to striking households does not infringe First Amendment right of association, even though denial burdens exercise of that right); Regan v. Taxation with Representation, 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) (noting that Court has held in several contexts that a legislatures decision not to subsidize the exercise of a fundamental right does not infringe the right; appropriations [at issue] are comparable to tax exemptions and deductions, which are also a matter of grace that Congress can, of course, disallow as it chooses (quotation marks, brackets, and ellipsis omitted)); Harris v. McRae, 448 U.S. 297, 316-17 & n.19, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (A refusal to fund protected activity, without more, cannot be equated with the imposition of a penalty on that activity).
11

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1 who entered and remained in the country unlawfully. Accordingly, DOMA 2 Section 3 does not infringe substantive due process.12 3 Pursuant to Fed. R. Civ. P. 12(b)(6), therefore, this Court should grant 4 DOJs Partial Motion to Dismiss Plaintiffs allegation that DOMA Section 3 5 violates their substantive due process rights. 6 7 8 C. Plaintiffs Fail to State a Claim for Any Purported Sex Discrimination. Finally, DOJ argues that Plaintiffs fail to state a claim that the denial of Ms.

9 DeLeons I-601 waiver on DOMA Section 3 grounds constitutes sex 10 discrimination under the INA, 8 U.S.C. 1152(a)(1)(A). See DOJ Partial Mot. to 11 Dismiss Mem. at 2 n.1, 10 n.8. It does not appear that Plaintiffs actually have 12 pleaded any such claim, a point on which even Plaintiffs apparently agree. In their 13 Opposition to Defendants Motion to Dismiss, Plaintiffs do not address DOJs 14 argument, implicitly conceding that no such claim exists. See Pls. Oppn to Defs. 15 Mot. to Dismiss (ECF No. 56). Plaintiffs assert only two counts in their complaint, 16 both solely related to the constitutionality of DOMA Section 3 a substantive due 17 process claim and an equal protection claim under the Fifth Amendment. 18 Plaintiffs complaint fails to raise any sex discrimination claim, much less even 19 plead or recite the elements of a viable sex discrimination claim. 20 Plaintiffs do suggest, in passing, that DOMA Section 3 discriminates on the 21 basis of gender in violation not of the INA but of the equal protection principles of 22 23 24 25 26 27 28 20
See, e.g., Druker v. Commr, 697 F.2d 46, 50 (2d Cir. 1982) (marriage penalty in federal tax code does not violate substantive due process principles; The adverse effect of the marriage penalty, . . . like the effect of the termination of social security benefits in Jobst, is merely indirect); Phila. Police & Fire Assn for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 165-66 (3d Cir. 1989) (reduction in services for mentally handicapped persons does not violate substantive due process principles because it does not in itself require members of the class to leave their family homes or enter institutions . . . although it may make it more likely that they will do so).
12

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1 the Fifth Amendment. Compl. 3, 42, 54, 70; Mot. for PI at 4, 17. But it does 2 not. Each gender male and female is treated the same under Section 3. Section 3 3 does not disadvantage either men or women in practice, either, and there is no 4 plausible argument that it was intended to do so. No Article III court has held 5 otherwise, and other judges of this Court have squarely rejected the argument. See 6 Lui Order at 3 (Plaintiffs have failed to assert any facts to suggest the Defendants 7 discriminated against them on the basis of their sex, as opposed to their sexual 8 orientation.); Torres-Barragan Order at 3 (Defendants denied the I-130 Petition 9 not for Plaintiffs sex, but because of their sexual orientation.).13 10 Accordingly, to the extent that Plaintiffs have asserted a claim for sex 11 discrimination pursuant to 8 U.S.C. 1152(a)(1)(A) stemming from the denial of 12 Ms. DeLeons I-601 waiver application, the House concurs with DOJ that that 13 claim should be dismissed under Rule 12(b)(6). 14 CONCLUSION 15 For all the foregoing reasons, this Court should (1) deny the Executive 16 Branch Defendants Procedural Motion to Dismiss, and (2) grant the relief 17 requested by the Executive Branch Defendants Partial Motion to Dismiss. 18 19 20 21 22 23
See also Jackson, 2012 WL 3255201, at *27 (opposite-sex definition of marriage does not constitute gender discrimination); In re Kandu, 315 B.R. at 143 (same); In re Marriage 24 Cases, 183 P.3d 384, 401, 76 Cal. Rptr. 3d 683 (Cal. 2008) ([W]e do not agree with the claim . . . that the applicable statutes properly should be viewed as an instance of discrimination on the 25 basis of the suspect characteristic of sex or gender.); Conaway v. Deane, 932 A.2d 571, 598, 26 401 Md. 219 (Md. 2007) (state marriage statute does not discriminate on the basis of sex); Andersen v. King Cnty, 138 P.3d 963, 969, 158 Wash. 2d 1 (Wash. 2006) (same).
13

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1 2 3 4 5 6 7 8 9 October 15, 2012 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives14

The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, currently is comprised of the Honorable John A. Boehner, Speaker of the House, the 25 Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic 26 Whip. The Democratic Leader and Democratic Whip decline to support the filing of this Response.

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CERTIFICATE OF SERVICE I hereby certify that on October 15, 2012, I electronically filed the foregoing

4 Intervenor-Defendants Response to Defendants Procedural Motion to Dismiss 5 6 7 system, which provided an electronic notice and electronic link of the same to the and Partial Motion to Dismiss with the Clerk of Court by using the CM/ECF

8 following attorneys of record through the Courts CM/ECF system: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Peter A. Schey, Esq. Carlos Holguin, Esq. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 South Occidental Boulevard Los Angeles, CA 90057 Julie Greenwald Marzouk, Esq. Monica Nikole Ashiku, Esq. PUBLIC LAW CENTER 601 Civic Center Drive West Santa Ana, CA 92701 Beatrice Ann M. Pangilinan, Esq. ASIAN LAW ALLIANCE 184 Jackson Street San Jose, CA 95112 Gary H. Manulkin, Esq. Reyna M. Tanner, Esq. LAW OFFICES OF MANULKIN & BENNETT 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708

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Jesi J. Carlson, Esq. Timothy Michael Belson, Esq. Lana L. Vahab, Esq. Katherine E.M. Gottel, Esq. UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044

/s/

Eleni M. Roumel Eleni M. Roumel