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FOR THE THIRD CIRCUIT
Whitewood, et al.,
Secretary, Pennsylvania Department of
Health, et al.
PLAINTIFFS’/APPELLEES’ MEMORANDUM OF LAW IN
SUPPORT OF SUMMARY AFFIRMANCE AND DISMISSAL
OF THE APPEAL OF THERESA SANTAI-GAFFNEY
The district court was unquestionably within its discretion to deny the post-
judgment motion of Theresa Santai-Gaffney, Clerk of the Orphans’ Court for
Schuylkill County (“Clerk Gaffney”) to intervene in this action. Clerk Gaffney’s
ministerial duty to issue marriage licenses under Pennsylvania law does not give
her an interest in this action sufficient to support her proposed intervention. Clerk
Gaffney’s appeal of denial of intervention therefore does not present a substantial
question and the order should be summarily affirmed pursuant to Local Appellate
Rule 27.4 and Internal Operating Procedure 10.6.
Moreover, and again because of the ministerial nature of her duties under
Pennsylvania law and the corresponding lack of harm to her resulting from the
district court’s May 20, 2014 order enjoining the enforcement of Pennsylvania’s
Case: 14-3048 Document: 003111661491 Page: 1 Date Filed: 06/25/2014
statutes banning marriages of same-sex couples, Clerk Gaffney would lack
standing to appeal that injunction, even if she were permitted to intervene.
Accordingly, Plaintiffs ask this Court to summarily dismiss her appeal of the May
20, 2014 Order.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiffs – eleven lesbian and gay couples, one widow, and two teenage
children of one of the Plaintiff couples – filed this action to challenge the
constitutionality of Pennsylvania’s laws excluding same-sex couples from
marriage and voiding within Pennsylvania the marriages of same-sex couples
entered into in other states (the “Marriage Exclusion”). The Amended Complaint
named as defendants the Commonwealth of Pennsylvania’s Secretary of Health, its
Secretary of Revenue, and Donald Petrille, the register of wills of Bucks County,
who had refused to issue marriage licenses to certain Plaintiffs. On February 20,
2014, by stipulation, Mr. Petrille elected not to participate in the litigation but
agreed to remain a party and that he would be bound by any judgment entered.
On May 20, 2014, J udge J ohn E. J ones, III of the U.S. District Court for the
Middle District of Pennsylvania entered an Order granting Plaintiffs’ Motion for
Summary J udgment and enjoining the enforcement of the Marriage Exclusion (the
“Summary J udgment Order”). The next day, Governor Corbett announced that the
Commonwealth would not appeal the decision.
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Two weeks later, on J une 6, 2014, Clerk Gaffney filed in the district court
her Motion to Intervene (the “Intervention Motion”), seeking to intervene both as
of right pursuant and permissively. After briefing by the parties, J udge J ones
denied the Intervention Motion on J une 18, 2014 (the “Intervention Opinion”).
J udge J ones concluded that Clerk Gaffney did not meet the requirements for
intervention under either Rule 24(a) or Rule 24(b); instead, he found that “we have
before us a contrived argument by a private citizen who seeks to accomplish what
the chief executive of the Commonwealth, in his wisdom, has declined to do.”
Intervention Op. at 9.
Later that same day, Clerk Gaffney filed this appeal.
A. Standard of Review
An appellate court’s review of a district court’s decision to deny
intervention, whether as of right or permissive, is deferential. United States v.
Territory of Virgin Islands, 748 F.3d 514, 519 (3d Cir. 2014). Denial of
permissive intervention is “highly discretionary” and such a denial “‘has virtually
never been reversed.’” Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 227
(3d Cir. 2005) (quoting Catanzano v. Wing, 103 F.3d 223, 234 (2d Cir. 1996)).
The Court of Appeals reviews a denial of intervention as of right for abuse of
Together with the Intervention Motion, Clerk Gaffney also filed a motion
for a stay in the district court. After denying the Intervention Motion, J udge J ones
denied the motion for a stay as moot.
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discretion and may reverse “if the court ‘has applied an improper legal standard or
reached a decision that [it is] confident is incorrect.’” Harris v. Pernsley, 820 F.2d
592, 597 (3d Cir. 1987) (quoting United States v. Hooker Chems. & Plastics Corp.,
749 F.2d at 968, 992 (2d Cir. 1984)).
Local Appellate Rule 27.4 and Internal Operating Procedure 10.6 allow this
Court to “take summary action” to resolve a pending appeal “if it clearly appears
that no substantial question is presented.” I.O.P. 10.6; see also N.C.A.A. v.
Governor of N.J., 520 F. App’x 61, 63 (3d Cir. 2013) (summarily affirming denial
of intervention where proposed intervenor’s “interest was insufficient to warrant
B. The District Court Properly Denied Clerk Gaffney’s Motion For
Intervention As Of Right Under Rule 24(a).
J udge J ones properly denied Clerk Gaffney’s request to intervene as of right
pursuant to Rule 24(a), finding that she failed to assert a sufficient interest in the
proceeding that would be impaired or affected, for practical purposes, by the
disposition of the underlying matter.
In the district court, Clerk Gaffney asserted
A person seeking leave to intervene must demonstrate that: (1) the
application for intervention is timely; (2) the applicant has a sufficient interest in
the litigation; (3) the interest may be affected or impaired, as a practical matter, by
the disposition of the action; and (4) the interest is not adequately represented by
an existing party in the litigation. Kleissler v. U.S. Forest Serv., 157 F.3d 964,
969 (3d Cir. 1998). The applicant bears the burden of demonstrating that he has
met all four prongs of this conjunctive test. United States v. Alcan Aluminum, Inc.,
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two purported interests: (1) her statutory role in administering marriage licenses;
and (2) a purported lack of clarity regarding her legal obligations.
Mot. at 12-14. As J udge J ones correctly found, Clerk Gaffney’s role in issuing
marriage licenses is purely ministerial; her sole obligation is to follow the law,
which is clear from the district court’s injunction and the Defendants’ decision not
to appeal. Moreover, the Secretary of the Department of Health, the Pennsylvania
official with the duty to ensure that laws regarding marriage licenses are uniformly
enforced throughout the Commonwealth, has already instructed all clerks in Clerk
Gaffney’s position of their obligation to perform their duties in accordance with
the Summary J udgment Order. Accordingly, neither of these asserted interests
supports intervention as of right.
1. Clerk Gaffney’s ministerial duties under the Marriage Law do
not give her an interest in whether same-sex couples may
marry in Pennsylvania.
Clerk Gaffney seeks to intervene in her official capacity as the Clerk of
Orphans’ Court for Schuylkill County. The scope of a government official’s
25 F.3d 1174, 1181 n.9 (3d Cir. 1994); Sch. Dist. of. Phila. v. Pa. Milk Mktg. Bd.,
160 F.R.D. 66, 68 (E.D. Pa. 1995).
Clerk Gaffney also claims a protectable interest in “appealing the
Injunction,” noting that intervention for purposes of appeal is permissible.
Intervention Mot. at 14-15. This does not and cannot constitute a separate interest
permitting appeal. While it is true that an intervenor may intervene after judgment
for purposes of appeal, such intervenor must first meet the requirements for
intervention set forth above.
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interest in intervention “is defined by the scope of his legal duties” under state law.
Harris, 820 F.2d at 597. Specifically, Clerk Gaffney must show that her “rights
and duties, as defined by Pennsylvania law, may be affected directly by the
disposition of this litigation.” Id. She “must do more than show that . . . her
interests may be affected in some incidental manner. Rather, [she] must
demonstrate that there is a tangible threat to a legally cognizable interest to have
the right to intervene.” Id. at 601. Her Motion for Intervention did not and cannot
meet this standard.
Under Pennsylvania law, the Department of Health, not Clerk Gaffney, is
responsible for deciding how the Commonwealth’s marriage laws should be
enforced. See 71 P.S. § 534(c) (“The Department of Health shall have the power,
and its duty shall be . . . [t]o see that the laws requiring the registration of births,
deaths, marriages, and diseases, are uniformly and thoroughly enforced throughout
the State, and prompt returns of such registrations made to the department.”). The
Commonwealth Court of Pennsylvania has made clear that county clerks’ authority
to issue marriage licenses is “purely ministerial” and that they must perform their
duties “in a prescribed manner in obedience to the mandate of legal authority and
without regard to [their] own judgment or opinion concerning the propriety or
impropriety of the act to be performed.” Intervention Op. at 5 (quoting Dep’t of
Health v. Hanes, 78 A.3d 676, 686-88 (Pa. Commw. Ct. 2013); Council of the City
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of Phila. v. Street, 856 A.2d 893, 896 (Pa. Commw. Ct. 2004)); see also
Whitewood v. Wolf, Memorandum and Order at 9 n.5, No. 13-1861, Dkt. No. 67
(Nov. 15, 2013) (in denying Mr. Petrille’s Motion to Dismiss, finding that county
clerks and registers of wills have no “legally protected interest relative to whether
marriage licenses are issued to same-sex couples”). Clerk Gaffney and other clerks
are not authorized “to exercise any discretion or judgment” in doing so. Hanes, 78
A.3d at 689. The law simply requires them “to furnish and use the appropriate
forms” and to issue marriage licenses where applicants meet the applicable
requirements. Id.; see also Hines v. D’Artois, 531 F.2d 726, 737-38 (5th Cir. 1976)
(drawing a distinction relevant to the intervention determination between (i)
government officials who have their own “decisional duties” with respect to the
challenged policy, and (ii) those whose duties are “at the direction” of others),
cited in Intervention Mot. at 12.
Even Clerk Gaffney recognizes, as she must, the purely ministerial nature
of her role. See Stay Mot. at 19-20.
Clerk Gaffney makes much of the fact that Plaintiffs named Donald Petrille,
the Bucks County Register of Wills, as a defendant in their Amended Complaint.
Mr. Petrille was included as a defendant because he had enforced the Marriage
Exclusion and denied a marriage license to certain Plaintiffs. He acknowledged
that his role in issuing marriage licenses is purely ministerial, Stipulation and
Order ¶ 11, Whitewood v. Wolf, No. 13-1861, Dkt. No. 102 (Feb. 24, 2014), and
was treated as a nominal defendant, Intervention Op. at 7, n.3.
That a clerk who has denied an application for a marriage license is a proper
defendant in an action in which a plaintiff sues to challenge the Marriage
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Clerk Gaffney relies on this Court’s statement in Harris that if a government
official’s “rights and duties” as defined by state law “may be affected directly by
the disposition of [the] litigation,” the official would have a “sufficient interest to
intervene as of right in [the] action.” See Stay Mot. at 19. But she overlooks the
fact that in Harris, this Court denied the government official’s request to intervene.
820 F.2d at 602. And Clerk Gaffney’s interest in this case is far more attenuated
than the interest the Court rejected in Harris. In Harris, this Court concluded that
intervention was properly denied even though the decree at issue (a consent decree
in litigation regarding overcrowding in the Philadelphia prisons) would have an
effect on the district attorney’s ability to perform his office’s function. Id. The
Court recognized that the decree “may result in some people not appearing for their
scheduled trial dates and some individuals not having to post bond before being
released.” Id. Although the district attorney argued that the proposed prison cap
Exclusion does not mean that clerks have a protectable interest in the litigation that
would permit them to intervene. For a government official to be a proper
defendant in a constitutional challenge seeking to enjoin enforcement of a law, a
plaintiff need only show that the official had some connection to the enforcement
of the law, not that the official has a protectable interest in the litigation. See
Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980) (a government official is a
proper defendant in a constitutional challenge to enjoin enforcement of a law as
long as he or she has some connection with enforcement of the challenged law,
even if the official’s duties are “entirely ministerial”) For this reason, the fact that
Mr. Petrille is a defendant in this action and the fact that county clerks have been
defendants in litigation over marriage bans in other states, see Intervention Mot. at
11 n.1, are irrelevant.
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would “hinder his ability to prosecute cases because some of the pre-trial detainees
released will not appear for trial,”
the Court nevertheless concluded that the “by-
product” of the decree impacting prosecutions was “not sufficient” for
Cases that Clerk Gaffney cites from other jurisdictions regarding various
county officials speak neither to the scope of her duties under Pennsylvania law
nor her corresponding interest in intervening in this action and therefore are of no
help to her here. See, e.g., Am. Ass’n of People with Disabilities v. Herrera, 257
F.R.D. 236, 256 (D.N.M. 2008) (finding New Mexico county clerk to have a
protectable interest because the injunction would actually prohibit her from
“performing certain electoral duties that New Mexico law requires”); Bogaert v.
Land, No. 08-0687, 2008 WL 2952006, at *2-3 (W.D. Mich. J uly 29, 2009)
Here, Clerk Gaffney does not even allege that the district court’s injunction
hinders her ability to do her job. Nor could she, as she has admitted that she can
and will issue licenses in compliance with the Court’s order: “Santai-Gaffney said
she will continue to follow J ones’s ruling unless it is overturned, although she
wants to intervene in the case in order to clarify what her official duties are.” Peter
E. Bortner, Santai-Gaffney Seeks to Intervene in Gay Marriage Lawsuit, The
Republican Herald (J une 7, 2014), http://republicanherald.com/news /santai-
gaffney-seeks-to-intervene-in-gay-marriage-lawsuit-1.1699458, attached to
Plaintiffs’ Opposition to the Intervention Motion as Exhibit A.
Unlike Clerk Gaffney’s ministerial role in issuing marriage licenses, a
district attorney exercises his or her discretion in choosing which cases to
prosecute. See, e.g., United States v. Batchelder, 442 U.S. 114, 124 (1979)
(“Whether to prosecute and what charge to file or bring before a grand jury are
decisions that generally rest in the prosecutor’s discretion.”).
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(finding Michigan county clerk and election commission to have protectable
interests because administering the recall election sought through the action might
place them in violation of Michigan laws other than those challenged in the
As set out above, Pennsylvania law is clear concerning the duties and
authority of clerks with respect to issuing marriage licenses.
In summary, as an official with purely ministerial duties under Pennsylvania
law with respect to issuance of marriage licenses, Clerk Gaffney has no protectable
interest at stake in the litigation over the marriage exclusion. Accordingly, the
district court did not abuse its discretion by denying her Intervention Motion and
this Court should affirm that order.
Clerk Gaffney’s reliance on Bostic v. Rainey, No. 13-0395, Dkt. No. 91
(E.D. Va. J an 17, 2014), is also misplaced for the additional reason that the court
allowed permissive intervention of a county clerk in a marriage case only because
no party in that case opposed it.
Clerk Gaffney misconstrues the scope of the injunction issued by the
district court in her Stay Motion, asserting that “[t]he District Court ruled that
Clerk Gaffney is bound by its Injunction, yet has denied her request to intervene
for the purposes of appeal and to stay the enforcement of the Injunction pending
appeal.” Stay Mot. at 4. The injunction, however, binds only the parties to the
case, including the Secretary of the Department of Health. Clerk Gaffney must
issue marriage licenses to couples regardless of gender because the Department of
Health, the agency responsible for uniform enforcement of the marriage laws, has
acceded to the district court’s injunction and instructed her to do so. Clerk Gaffney
does not and cannot contest the Department’s power to take these actions.
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2. Clerk Gaffney has no need to “clarify” her present obligations
with respect to the issuance of marriage licenses.
In her Intervention Motion, Clerk Gaffney also asserted a protectable legal
interest in “clarity,” contending that she is uncertain about the “nature of her
marriage-related duties going forward” and the “precise contours of her post-
judgment responsibilities.” Intervention Mot. at 13. But Clerk Gaffney’s claimed
uncertainty about her “post-judgment responsibilities” fails to state a protectable
interest supporting this Court’s overruling of the Intervention Opinion.
To begin, there is no lack of clarity about Clerk Gaffney’s responsibilities.
The language of the Summary J udgment Order declaring that the exclusion of
same-sex couples from marriage is unconstitutional and enjoining the defendants –
including the Secretary of Health – from enforcing the challenged marriage laws is
clear and unambiguous. The defendants have said that they will abide by the
district court’s decision and have not appealed.
The decision of the Department of Health – the government agency charged
with ensuring compliance and uniform application of Pennsylvania’s marriage law
– to accept the district court’s decision leaves no doubt about the effect of the
decision on Clerk Gaffney’s obligations. As described in Part III.B.1, above,
Pennsylvania’s county officials responsible for issuing marriage licenses must do
so in accordance with the Department of Health’s direction because the
Department is charged within ensuring uniform enforcement of the marriage law
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across the Commonwealth. The Department eliminated any possible confusion in
its recent instruction to Clerks of Orphans Courts:
The decision in Whitewood requires every government
official who administers the Marriage Law – including
every clerk of the orphans’ court – to perform his or her
duties in accordance with the court’s order. That means
that a clerk of the orphans’ court must consider
applications for the issuance of a marriage license
without regard to the gender of the applicants.
Pa. Dep’t of Health, General Notice to All Clerks of the Orphans’ Court (J une 11,
2014), attached to Plaintiffs’ Opposition to the Intervention Motion as Exhibit C.
Moreover, the clarity Clerk Gaffney seeks is the epitome of an advisory
opinion. See, e.g., Rhone-Poulenc Surfactants & Specialties, L.P. v. C.I.R., 249
F.3d 175, 182 (3d Cir. 2001) (“This Court is without power to give advisory
opinions. It has long been its considered practice not to decide abstract,
hypothetical or contingent questions.”) (quoting Ala. State Fed’n of Labor v.
McAdory, 325 U.S. 450, 461 (1945)). Clerk Gaffney does not allege an actual case
According to the Commonwealth, other than Clerk Gaffney, “none of the
clerks of the orphans’ courts serving in Pennsylvania’s 67 counties have expressed
to the Department of Health confusion or concerns about their obligations to
comply with the Decision.” Resp. of Sec’y Wolf & Sec’y Meuser to J une 18, 2014
Court Order at 5 n.3 (J une 25, 2014).
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or controversy, but rather asks, in the abstract, for her the “precise contours of her
post-judgment responsibility” to be defined for her. Intervention Mot. at 13.
For these reasons, Clerk Gaffney’s claimed uncertainty about her duties is
baseless and, even if it were not, she is not entitled to an advisory opinion.
* * *
For the reasons discussed above, the district court’s Intervention Order
should be affirmed.
Then, because, in the absence of intervention, Clerk Gaffney
is not a party and cannot appeal, her appeal should be dismissed. See, e.g.,
Pennsylvania v. Rizzo, 530 F.2d 501, 507-08 (3d Cir. 1976).
B. Clerk Gaffney Lacks Standing To Appeal.
Even if this Court were to conclude that the district court’s denial of
intervention was an abuse of discretion – which, as discussed above, it was not –
Clerk Gaffney’s appeal should be dismissed for lack of standing. “An intervenor’s
Although Clerk Gaffney alleges that she “faces potential fines and
conviction of a misdemeanor for missteps in her official duties” (Intervention
Motion at 14), such “potential” punishment, arising from a hypothetical
“misstep” does not create a justiciable case or controversy. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (injury for standing purposes must be “actual or
imminent,” not “conjectural” or “hypothetical”). Moreover, as explained above,
Clerk Gaffney’s legal duties are perfectly clear.
For the same reasons that J udge J ones did not abuse his discretion in
denying Clerk Gaffney’s motion for intervention as of right, his denial of her
motion for permissive intervention – reviewed under an even less searching
standard – should likewise be affirmed. Indeed, as discussed below, because she
lacks standing to appeal, such intervention would be futile.
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right to continue a suit in the absence of the party on whose side the intervention
was permitted is contingent upon a showing by the intervenor that he fulfills the
requirements of Article III.” McLaughlin v. Pernsley, 876 F.2d 308, 313-314 (3d
Cir. 1989) (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)). Clerk Gaffney
cannot meet the standing requirements of Article III because she has no “direct
stake in the outcome” of the case. Hollingsworth v. Perry, 133 S. Ct. 2652, 2662
(2013) (holding that intervenor-defendant lacked standing to appeal).
The requirements for standing “must be met by persons seeking appellate
review, just as [they] must be met by persons appearing in courts of first instance.”
Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). Thus, to have
standing to appeal, Clerk Gaffney must “seek relief for an injury that affects [her]
in a ‘personal and individual way.’” Perry, 133 S. Ct. at 2662 (quoting Lujan, 504
U.S. at 560 n.1.
Clerk Gaffney has suffered no such injury. As a ministerial official,
responsible only for carrying out the Commonwealth’s marriage law, she has no
protectable interest in determining what that law is. Like every citizen, the fact
that she is compelled to comply with the laws that apply to her does not give her
standing to challenge those laws unless and until she has “suffered a concrete and
particularized injury that is either actual or imminent.” Massachusetts v. E.P.A.,
549 U.S. 497, 517 (2007). Now that the Commonwealth has decided not to appeal
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the district court’s injunction, Clerk Gaffney’s “attempt to maintain the litigation
is, then, simply an effort to compel the State to enact a code in accord with [her]
interests.” Diamond, 476 U.S. at 65.
Clerk Gaffney’s lack of an injury is made manifest by her Stay Motion, filed
in this Court the same day as her appeal. In attempting – unsuccessfully – to carry
her burden to show irreparable harm, Clerk Gaffney focuses on harm that she
alleges will be suffered by “the Commonwealth and individuals.” Stay Mot. at 14.
Importantly, she nowhere alleges that she herself will suffer any harm at all. In
addition to dooming her Stay Motion – as discussed in Plaintiffs’ opposition to that
motion, filed contemporaneously with this brief – that glaring absence
demonstrates her own lack of standing to pursue an appeal that the Commonwealth
has elected to forego. She has suffered and will suffer no harm as a result of the
injunction against the enforcement of the Marriage Exclusion.
For the reasons set forth above, Clerk Gaffney’s appeal of the Intervention
Opinion presents no substantial question. Summary affirmance of the denial of
intervention is appropriate and her appeal of the Summary J udgment Order should,
accordingly, be dismissed. In addition, because it is clear from the face of the
appeal that Clerk Gaffney lacks standing to appeal the Summary J udgment Order,
dismissal would be appropriate even if Clerk Gaffney were permitted to intervene.
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Dated: J une 25, 2014 HANGLEY ARONCHICK SEGAL
PUDLIN & SCHILLER
By: /s/ Mark A. Aronchick
Mark A. Aronchick
J ohn S. Stapleton
Dylan J . Steinberg
Rebecca S. Melley
One Logan Square, 27th Floor
Philadelphia, PA 19103
Helen E. Casale
401 DeKalb Street, 4th Floor
Norristown, PA 19401
ACLU FOUNDATION OF
By: /s/ Witold J . Walczak
Witold J . Walczak
313 Atwood Street
Pittsburgh, PA 15213
Mary Catherine Roper
P.O. Box 40008
Philadelphia, PA 19106
Case: 14-3048 Document: 003111661491 Page: 16 Date Filed: 06/25/2014
J ames D. Esseks
AMERICAN CIVIL LIBERTIES
125 Broad Street, 18th Floor
New York, NY 10004
Seth F. Kreimer
3400 Chestnut St.
Philadelphia, Pa. 19104
Counsel for Plaintiffs/Appellees
Case: 14-3048 Document: 003111661491 Page: 17 Date Filed: 06/25/2014
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of J une, 2014, I caused the foregoing
Memorandum of Law in Support of Summary Affirmance and Dismissal of the
Appeal of Theresa Santai-Gaffney to be filed electronically using the Court’s
electronic filing system, and that the filing is available to counsel for all parties for
downloading and viewing from the electronic filing system.
/s/ Mark A. Aronchick
Mark A. Aronchick
Case: 14-3048 Document: 003111661491 Page: 18 Date Filed: 06/25/2014
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