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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):

Nos. 12-2335 & 12-2435

Caption [use short title]

Motion for: Enlarge Time to File Petition for Rehearing En Banc Set forth below precise, complete statement of relief sought:

Windsor v. United States

The House respectfully requests an order enlarging its time to file a petition for rehearing en banc in this matter until 21 days after the Supreme Court rules on two pending petitions for certiorari.
MOVING PARTY: Bipartisan 9 Plaintiff 9 Appellant/Petitioner ✔

Legal Advisory Group
9 Defendant 9 Appellee/Respondent

OPPOSING PARTY:

Edith Schlain Windsor

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

A. Kaplan

Bancroft PLLC 1919 M Street. NW Suite 470 Washington, DC 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: ✔ Unopposed* ✔ Opposed 9 Don’t Know 9 9 Does opposing counsel intend to file a response: 9 Yes ✔ No 9 Don’t Know 9 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 212-373-3000; rkaplan@paulweiss.com

S.D.N.Y. - Hon. Barbara S. Jones
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

Argument heard on 9/27/12 ✔ Yes 9 No If yes, enter date:__________________________________________________________ 9
9 Service by: ✔ CM/ECF 9 Other [Attach proof of service]

Signature of Moving Attorney: 11/29/12 /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)

* The U.S. Department of Justice does not oppose the relief requested herein, 1 of 8 however, counsel for Ms. Windsor partially opposes this motion.

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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 ENLARGE TIME TO FILE PETITION FOR REHEARING EN BANC

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Pursuant to Rules 26(b), 27, 35 and 40(a)(1) of the Federal Rule of Appellate Procedure, and for the reasons state below, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“House”) – appellant in No. 12-2335 – respectfully moves for an order enlarging its time to file a petition for rehearing en banc in this matter until 21 days after the Supreme Court rules on two petitions for certiorari that now are pending before that Court in this matter. On November 29, 2012, counsel for the House conferred with Michael Singer of the Department of Justice, counsel for the United States, and Jaren Janghorbani, counsel for Appellee Edith Windsor. Mr. Singer advised that the United States does not object to this motion. Ms. Janghorbani articularted Ms. Windsor’s position as follows: “Without conceding the propriety of BLAG’s intended filing of a petition for rehearing en banc, Ms. Windsor does not oppose a fourteen day extension from December 3 to December 17 of the time to file such petition. However, Ms. Windsor does oppose the open-ended extension BLAG seeks as inappropriate and unnecessary.” DISCUSSION On October 18, 2012, this Court, in a 2-1 decision, ruled against the House and in favor of Ms. Windsor and the United States with respect to Ms. Windsor’s challenge to the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. See Op. of Ct., Nos. 12-2335 & 12-2435 (Oct. 18, 2012)

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(ECF No. 447-1); Op. of Judge Straub, Dissenting in Part & Concurring in Part, Nos. 12-2335 & 12-2435 (Oct. 18, 2012) (ECF No. 448). Under normal circumstances, the House would have 45 days, or until December 2, 2012, to file a petition for rehearing en banc. See Fed. R. App. P. 35 (incorporating time limits of Fed. R. App. P. 40(a)(1)). Since December 2 falls on a Sunday, the House effectively has until Monday, December 3, 2012, to file such a petition. See Fed. R. App. P. 26(a)(1)(C). This, however, is not a normal case. Prior to the Court’s October 18 ruling in this matter – indeed, well prior to oral argument in this matter – both Ms. Windsor and the United States already had petitioned the Supreme Court for a writ of certiorari before judgment. See [Ms. Windsor’s] Pet. for Writ of Cert. Before J., Windsor v. United States, S. Ct. No. 12-63 (July 16, 2012), 2012 WL 2904038; [Dep’t’s] Pet. for a Writ of Cert. Before J., United States v. Windsor, S. Ct. No. 12307 (Sept. 11, 2012), 2012 WL 3991414. Those petitions remain pending at this time, as do six other petitions for certiorari that have been filed in three other cases that concern the constitutionality of DOMA Section 3. The Supreme Court recently announced that it will consider on Friday, November 30, 2012, whether to grant one or both of the petitions filed in this case,1 and/or one or more of the six

See Docket Text, Windsor v. United States, S. Ct. No. 12-63 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), (Continued . . .) 2
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petitions filed in the three other cases.2 What the Supreme Court decides to do with the eight pending petitions for certiorari – including the two pending in this case – will have a direct impact on whether the House decides to file a petition for rehearing en banc in this case. (For example, if the Supreme Court were to grant one or both of the petitions filed in this case, it would be unnecessary for the House to seek en banc review in this Court.)

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-63.htm; Docket Text, United States v. Windsor, S. Ct. No. 12-307 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-307.htm. See Docket Text, Bipartisan Legal Advisory Grp. of the U.S. House of Representatives v. Gill, S. Ct. No. 12-13 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-13.htm; Docket Text, U.S. Dep’t of HHS v. Massachusetts, S. Ct. No. 12-15 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-15.htm; Docket Text, Massachusetts v. U.S. Dep’t of HHS, S. Ct. No. 12-97 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-97.htm; Docket Text, U.S. Office of Pers. Mgmt. v. Golinski, S. Ct. No. 12-16 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-16.htm; Docket Text, Pedersen v. Office of Pers. Mgmt., S. Ct. No. 12-231 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-231.htm; Docket Text, Office of Pers. Mgmt. v. Pedersen, S. Ct. No. 12-302 (Nov. 13, 2012) (conference scheduled for Nov. 30, 2012), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-302.htm.
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However, the House may not know how the Supreme Court has decided to handle these various petitions for certiorari until Monday, December 3, 2012, the very day its petition for rehearing en banc otherwise would be due in this Court. See Supreme Court Case Distribution Schedule Information Page, http://www.supremecourt.gov/casedistribution/casedistributionschedule.aspx (last visited Nov. 28, 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 9:30 a.m. the following Monday.”). Accordingly, the House respectfully requests that its time for filing a petition for rehearing en banc in this matter be enlarged until 21 days after the Supreme Court rules on the two petitions for certiorari that now are pending before that Court in this matter. This will enable the House to (i) learn how the Supreme Court will handle the pending petitions for certiorari before the House makes a decision on whether it is appropriate to file a petition for rehearing en banc in this matter, and (ii) have adequate time to prepare such a petition in the event the House determines it is appropriate to file such a petition. CONCLUSION For the reasons stated above, this motion should be granted. Respectfully submitted, /s/ Paul D. Clement Paul D. Clement 4
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H. Christopher Bartolomucci Nicholas J. Nelson Michael H. McGinley 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 Representatives3

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 Eleni M. Roumel, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 November 29, 2012

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 Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this case.

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CERTIFICATE OF SERVICE I 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 November 29, 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/ Kerry W. Kircher Kerry W. Kircher

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