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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

__________________________________________

)

SHANNON L. MCLAUGHLIN, et al., ))

Plaintiffs, )

)v. ) No. 1:11-cv-11905

)

LEON PANETTA, et al., ))

Defendants. )

__________________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE

U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO INTERVENE

Of Counsel: Paul D. Clement

Kerry W. Kircher, General Counsel H. Christopher Bartolomucci

William Pittard, Deputy General Counsel Conor B. Dugan

Christine Davenport, Senior Assistant Counsel

Nicholas J. Nelson

Kirsten W. Konar, Assistant Counsel

Todd B. Tatelman, Assistant Counsel BANCROFT PLLC

Mary Beth Walker, Assistant Counsel 1919 M Street, N.W.

Suite 470OFFICE OF GENERAL COUNSEL Washington, D.C. 20036

U.S. House of Representatives (202) 234-0090 (phone)

219 Cannon House Office Building (202) 234-2806 (fax)Washington, D.C. 20515

(202) 225-9700 (phone) Counsel for Intervenor-Defendant the

(202) 226-1360 (fax) Bipartisan Legal Advisory Group of theU.S. House of Representatives

May 1, 2012

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

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. ii

INTRODUCTION ...................................................................................................1

BACKGROUND .....................................................................................................2

ARGUMENT ...........................................................................................................7

I. House Intervention Is Appropriate Under Rule 24(a)(2). ................7

II. House Intervention Is Appropriate Under Rule 24(b)(1)(B) .........11

III. House Intervention Is Appropriate Under Rules 24(a)(1)

and/or 24(b)(1)(A) .........................................................................12

IV. The House Has Standing. ...............................................................13

A. The House Need Not Demonstrate Independent

Standing To Intervene Here ...............................................14

B. The House Satisfies Article III Standing Requirements. ...15

CONCLUSION ......................................................................................................17

CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

Cases

Adolph Coors Co. v. Brady,

944 F.2d 1543 (10th Cir. 1991) .....................................................................6, 16

Am. Fedn of Govt Emps. v. United States,

634 F. Supp. 336 (D.D.C. 1986) ....................................................................5

Am. Foreign Serv. Assn v. Garfinkel,

490 U.S. 153 (1989) .......................................................................................5

Ameron, Inc. v. U.S. Army Corps of Engrs,

607 F. Supp. 962 (D.N.J. 1985) .....................................................................6

Ameron, Inc. v. U.S. Army Corps of Engrs,787 F.2d 875 (3d Cir. 1986)...........................................................................15-16

Assocd Builders & Contractors v. Perry,

16 F.3d 688 (6th Cir. 1994) ...........................................................................14

B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc.,

440 F.3d 541 (1st Cir. 2006) ..........................................................................8

Barnes v. Carmen

582 F. Supp. 163 (D.D.C. 1984) ....................................................................6, 16

Beverly Enters., Inc. v. Trump,

182 F.3d 183 (3d Cir. 1999)...........................................................................5

Bishop v. United States,

No. 4:04-cv-00848 (N.D. Okla.) ....................................................................3, 4, 6, 10

Cooper-Harris v. United States,

No. 2:12-cv-00887 (C.D. Cal) ......................................................................4, 7

Cotter v. Mass. Ass'n of Minority Law Enforcement Officers,

219 F.3d 31 (1st Cir. 2000) ............................................................................16

Cozen OConnor, P.C. v. Tobits,

No. 2:11-cv-00045 (E.D. Pa.) ........................................................................6, 10

Daggett v. Commn on Governmental Ethics & Election Practices,

172 F.3d 104 (1st Cir. 1999) ..........................................................................16


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Dickerson v. United States,

530 U.S. 428 (2000) .......................................................................................5

Dragovich v. U.S. Dept of the Treasury,

No. 4:10-01564 (N.D. Cal.) ...........................................................................3, 6, 10

Fields v. Office of Eddie Bernice Johnson,

459 F.3d 1 (D.C. Cir. 2006) (en banc) ...........................................................5

Golinski v. U.S. Office of Pers. Mgmt.,

No. 3:10-cv-0257 (N.D. Cal.) ........................................................................3, 4, 6, 10

Helstoski v. Meanor,

442 U.S. 500 (1979) .......................................................................................5

Hunt v. Ake,

No. 8:04-cv-1852 (M.D. Fla.) ........................................................................3

In re Benny,

44 B.R. 581 (N.D. Cal. 1984) .......................................................................6, 16

In re Grand Jury Subpoenas,571 F.3d 1200 (D.C. Cir. 2009) .....................................................................5

In re Kandu,315 B.R. 123 (Bankr. W.D. Wash. 2004) ......................................................3

In re Koerner,

800 F.2d 1358 (5th Cir. 1986) .......................................................................6, 15

In re Moody,

46 B.R. 231 (M.D.N.C. 1985) .......................................................................6, 16

In re Prod. Steel, Inc.,

48 B.R. 841 (M.D. Tenn. 1985) .....................................................................6

In re Search of the Rayburn House Office Bldg.,432 F. Supp. 2d 100 (D.D.C. 2006) ..............................................................5

In re Tom Carter Enters., Inc.,44 B.R. 605 (C.D. Cal. 1984) ........................................................................6, 16

INS v. Chadha,462 U.S. 919 (1983) .......................................................................................passim

Japan Whaling Assn v. Am. Cetacean Socy,

478 U.S. 221 (1986) .......................................................................................5


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Lui v. Holder,No. 2:11-cv-01267 (C.D. Cal.) ......................................................................4, 6, 10, 14

Maine v. Dir., U.S. Fish and Wildlife Serv.,

262 F.3d 13 (1st Cir. 2001) ............................................................................10

Massachusetts v. U.S. Dept of HHS,

Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.) ...............................................passim

Morrison v. Olson,

487 U.S. 654 (1988) .......................................................................................5

Neponset Landing Corp. v. Nw. Mut. Life Ins. Co.,

No. 10-cv-11963, 2011 WL 2417128 (D. Mass. June 10, 2011) ...................9

North v. Walsh,656 F. Supp. 414 (D.D.C. 1987) ....................................................................5

P.R. Tel. Co. v. Sistema de Retiro de los Empleados del Gobierno y la Judicata,

637 F.3d 10 (1st Cir. 2011) ............................................................................8

Pedersen v. U.S. Office of Pers. Mgmt.,

No. 3:10-cv-01750 (D. Conn.) .......................................................................6, 10

Pub. Serv. Co. of N.H. v. Patch,

136 F.3d 197 (1st Cir. 1998) ..........................................................................8, 10

R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp.,

584 F.3d 1 (1st Cir. 2009) ..............................................................................8

Raines v. Byrd,

521 U.S. 811 (1997) .......................................................................................5

Renzi v. United States,

No. 11-557 (U.S.)...........................................................................................5

Revelis v. Napolitano,

No. 1:11-cv-01991 (N.D. Ill.) ........................................................................6

Ruiz v. Estelle,

161 F.3d 814 (5th Cir. 1998) .........................................................................14

San Juan Cnty., Utah v. United States,

503 F.3d 1163 (10th Cir. 2007) .....................................................................14


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Smelt v. Cnty. of Orange,

374 F. Supp. 2d 861 (C.D. Cal. 2005) ............................................................3

Sullivan v. Bush,

No. 1:04-cv-21118 (S.D. Fla.) .......................................................................3

Synar v. United States,

626 F. Supp. 1374 (D.D.C. 1986) ..................................................................6

Torres-Barragan v. Holder,

No. 10-55768 (9th Cir.) .................................................................................6

Torres-Barragan v. Holder,

No. 2:09-cv-08564 (C.D. Cal.) ......................................................................3

Transamerica. Ins. Co. v. South,

125 F.3d 392 (7th Cir. 1997) .........................................................................16

Travelers Indem. Co. v. Dingwell,

884 F.2d 629 (1st Cir. 1989) ..........................................................................9

Trbovich v. United Mine Workers of Am.,404 U.S. 528 (1972) .......................................................................................10

U.S. Postal Serv. v. Brennan,579 F.2d 188 (2d Cir. 1978)...........................................................................14

United States v. AVX Corp.,

962 F.2d 108 (1st Cir. 1992) ..........................................................................14

United States v. Helstoski,

442 U.S. 477 (1979) .......................................................................................5

United States v. Lovett,

328 U.S. 303 (1946) .......................................................................................9

United States v. McDade,28 F.3d 283 (3d Cir. 1994).............................................................................5

United States v. Renzi,651 F.3d 1012 (9th Cir. 2011) .......................................................................5

Wilson v. Ake,354 F. Supp. 2d 1298 (M.D. Fla. 2005) .........................................................3

Windsor v. United States,

No. 1:10-cv-08435 (S.D.N.Y.) .......................................................................6, 10, 14


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Constitutional Authorities

U.S. Const. art. I, 1..................................................................................................9

U.S. Const. art. I, 7..................................................................................................9

U.S. Const. art. I, 8..................................................................................................9

U.S. Const. art. II, 3 ................................................................................................2

Statutes and Legislative Authorities

1 U.S.C. 7 ................................................................................................................passim

10 U.S.C. 101 ..........................................................................................................1

28 U.S.C. 530D .......................................................................................................13

28 U.S.C. 2403 ........................................................................................................12, 13

32 U.S.C. 101 ..........................................................................................................1

38 U.S.C. 101 ..........................................................................................................passim

Veterans and Survivors Pension Interim Adjustment Act of 1975,

Pub. L. No. 94-169, Title I, 101(1), 89 Stat. 1013 (1975) ..........................2

Fed. R. Civ. P. 24 .......................................................................................................7, 9, 11, 12, 13

121 Cong. Rec. (1975) ...............................................................................................2

142 Cong. Rec. (1996) ...............................................................................................2

11 Weekly Comp. Pres. Doc. (1975) .........................................................................2

32 Weekly Comp. Pres. Doc. (1996) .........................................................................2

Other Authorities

6 James Wm. Moore, et al.,

Moores Federal Practice 24.11 (3d ed. 2011) ............................................11, 12

Press Release, Speaker of the House John Boehner,House Will Ensure DOMA Constitutionality Is Determined

by Courts (Mar. 9, 2011)................................................................................4


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Mem. for the Fed. Respt, U.S. House of Representatives v. INS,Nos. 80-2170 & 80-2171, 1981 U.S. S. Ct. Briefs LEXIS 1423

(Aug. 28, 1981) .............................................................................................15


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INTRODUCTION

Plaintiffs are eight same-sex couples who allege that they are married pursuant to the

laws of states that permit such unions. See Compl. for Declaratory, Injunctive, and Other Relief

29, 34, 38, 42, 46, 50, 54, 59 (Oct. 27, 2011) (ECF No. 1) (Complaint). The Complaint

alleges that each couple includes at least one current or former military service member, id.

30, 35, 39, 43, 47, 51, 55, 59, and that the respective couples are being denied spousal benefits

currently provided to opposite-sex spouses of current and former service members. Id. 1, 33,

37, 41, 45, 49, 53, 58, 62. According to the Complaint, the denial of these benefits is attributable

to:

Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat.

2419 (1996) (DOMA), codified at 1 U.S.C. 7;

10 U.S.C. 101(f)(5);

32 U.S.C. 101(18); and/or

38 U.S.C. 101(3) & (31).

Plaintiffs ask this Court, among other things, to declare DOMA Section 3 and 38 U.S.C.

101(3) & (31) unconstitutional under the equal protection and substantive due process

components of the Fifth Amendments Due Process Clause. See Compl. 3, 87, 98, 107, 118,

127, 138 and p. 32 ( (a)-(c)).

For the reasons set forth below, the Bipartisan Legal Advisory Group of the U.S. House

of Representatives (House) should be permitted to intervene as a defendant in this matter for

the purpose of defending DOMA Section 3 and 38 U.S.C. 101(3) & (31) against Plaintiffs

equal protection and substantive due process challenges (and litigating related jurisdictional

issues, if any).


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BACKGROUND

As the Court is aware, ordinarily it is the duty of the Executive Branch to take Care that

the Laws be faithfully executed, U.S. Const. art. II, 3, and of the Department of Justice, in

particular, in furtherance of that responsibility, to defend the constitutionality of duly enacted

federal laws when they are challenged in court. DOMA and 38 U.S.C. 101(3) & (31) are such

laws.

Congress Enacts DOMA. DOMA was enacted by the 104th Congress in 1996. The

House and Senate bills which became DOMA passed by votes of 342-67 and 85-14, respectively.

See 142 Cong. Rec. H7505-06 (daily ed. July 12, 1996) (House vote on H.R. 3396); 142 Cong.

Rec. S10129 (daily ed. Sept. 10, 1996) (Senate vote on S. 1999). President Clinton signed the

bill into law on September 21, 1996. See 32 Weekly Comp. Pres. Doc. 1891 (Sept. 30, 1996).

Congress Enacts Subsections 101(3) & (31) of Title 38. The provisions currently

codified at 38 U.S.C. 101(3) & (31) initially were adopted by the 94th Congress in 1975 as part

of the Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169,

Title I, 101(1), 89 Stat. 1013 (1975). The House passed the bill that eventually became that

law by a vote of 400-0; the Senate amended and then passed that bill by unanimous consent; and

the House then agreed to the Senates amendment, also by unanimous consent. See 121 Cong.

Rec. 34941 (Nov. 4, 1975) (House vote on H.R. 10355); 121 Cong. Rec. 41316 (Dec. 17, 1975)

(amendment and passage by Senate); 121 Cong. Rec. 41758 (Dec. 18, 1975) (House agreement

to Senate Amendment). President Ford signed the bill into law on December 23, 1975. See 11

Weekly Comp. Pres. Doc. 1397 (Dec. 29, 1975).

The Department Carries Out Then Abandons Its Constitutional Responsibilities.

From 2004-2011, during both the Bush and Obama administrations, the Department repeatedly


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defended the constitutionality of DOMA Section 3 against all constitutional challenges.1

In

February 2011, however, the Attorney General abruptly reversed course and announced his

conclusion that Section 3, as applied to same sex couples who are legally married under state

law, violates the equal protection component of the Fifth Amendment, and that, as a result, the

Department no longer would defend the statute in court against equal protection challenges.

Letter from Eric H. Holder, Jr., Atty Gen., to the Honorable John A. Boehner, Speaker, U.S.

House of Representatives at 1, 5 (Feb. 23, 2011) (First Holder Letter), attached as Exhibit to

Am. Notice to the Ct. (Feb. 22, 2012) (ECF No. 29). The Attorney Generals candid

acknowledgement (i) that ten U.S. circuit courts of appeal [actually eleven] had rejected his

conclusion that sexual orientation classifications are subject to a heightened standard of scrutiny,

id. at 3-4 nn.4-6, and (ii) that professionally responsible arguments can be advanced in defense

1 Bush Administration E.g., Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal.

2005), affd in part and vacated in part, 447 F.3d 673 (9th Cir.) (plaintiffs lacked standing to

challenge DOMA Section 3), cert. denied, 549 U.S. 959 (2006); Wilson v. Ake, 354 F. Supp. 2d1298 (M.D. Fla. 2005) (constitutional challenges to DOMA dismissed for failure to state claim);

Order, Sullivan v. Bush, No. 1:04-cv-21118 (S.D. Fla. Mar. 16, 2005) (ECF No. 68) (grantingplaintiffs motion for voluntary dismissal after defendants moved to dismiss); Order, Hunt v.Ake, No. 8:04-cv-01852 (M.D. Fla. Jan. 20, 2005) (ECF No. 35) (constitutional challenges to

DOMA Section 3 dismissed for failure to state claim);In re Kandu, 315 B.R. 123 (Bankr. W.D.

Wash. 2004) (holding that DOMA Section 3 does not violate Fifth Amendment).

Obama Administration E.g., Corrected Br. for the U.S. Dept of Health and Human

Servs.,Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 19,2011) (ECF No. 5520069); Fed. Defs. . . . Mot. to Dismiss,Dragovich v. U.S. Dept of the

Treasury, No. 4:10-cv-01564 (N.D. Cal. July 2, 2010) (ECF No. 25); Mem. in Supp. of Defs.Mot. to Dismiss Pl.s First Am. Compl., Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal. May 10, 2010) (ECF No. 49); Defs. . . . Mot. to Dismiss, Torres-Barragan v.Holder, No. 2:09-cv-08564 (C.D. Cal. Mar. 5, 2010) (ECF No. 7); Br. in Supp. of Mot. to

Dismiss . . . ,Bishop v. United States, No. 4:04-cv-00848 (N.D. Okla. Oct 13, 2009) (ECF No.

138).

There were no constitutional challenges to DOMA Section 3 prior to 2004.


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of DOMA Section 3, id. at 5, suggested very pointedly that this decision was not predicated

primarily on constitutional or other legal considerations.2

At the same time, the Attorney General articulated the Departments interest in

providing Congress a full and fair opportunity to participate in the litigation in [the] cases [at

issue]. Id. at 6.

In response, the House determined on March 9, 2011, to defend DOMA Section 3 in civil

actions in which that statutes constitutionality has been challenged. See Press Release, Speaker

of the House John Boehner,House Will Ensure DOMA Constitutionality Is Determined by Court

(Mar. 9, 2011) (House General Counsel has been directed to initiate a legal defense of [DOMA

Section 3]), available at

http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539.

Insofar as we are aware, prior to the filing of the complaints in this case and in Cooper-

Harris v. United States, No. 2:12-cv-00887 (C.D. Cal. Feb. 1, 2012) (ECF No. 1), 38 U.S.C.

101(3) & (31) had never been the subject of a constitutional challenge. As a result of the filing

of those two complaints, however, the Attorney General informed the House on February 17,

2While the First Holder Letter did not specifically mention the substantive due process

component of the Fifth Amendment, in practice, the Department, since February 2011, has

declined to advance any meaningful defense of DOMA Section 3 against substantive due process

challenges. For example, inBishop v. United States, No. 4:04-cv-00848(N.D. Okla.), theDepartment mounted no defense of its own to the plaintiffs substantive due process challenges

to DOMA Section 3; the Department merely stated in a footnote, after leaving the House to

defend against that claim, that the Department agreedwith the Houses defense. See Resp. of

Defs. [Dept] to [Houses] Cross-Mot. for Summ. J. at 3 n.4, 4:04-cv-00848 (Nov. 18, 2011)(ECF No. 225). In other cases, the Department has not even gone that far. See, e.g.,SupersedingBr. for the U.S. Dept of Health and Human Services at 46 n.20,Massachusetts v. U.S. Dept of

HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082) (failing to

respond to plaintiffs substantive due process claim); Defs. Oppn to [House]s Mot. to Dismiss,Lui v. Holder, No. 11-cv-01267 (C.D. Cal. Sept. 2, 2011) (ECF No. 28) (same); Defs. Br. in

Oppn to Mots. to Dismiss, Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal.

July 1, 2011) (ECF No. 145) (same).


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2012, that the Department also would not defend that statute against claims that it violates the

equal protection component of the Fifth Amendment. See Letter from Eric H. Holder, Jr., Atty

Gen., to the Honorable John A. Boehner, Speaker, U.S. House of Representatives (Feb. 17,

2012) (Second Holder Letter), attached as Exhibit 2 to Notice to the Ct. (Feb. 21, 2012) (ECF

No. 28). As before, the Attorney General articulated the Departments interest in providing

Congress a full and fair opportunity to participate in the litigation in this case. Id. at 2.

Consistent with its prior decision to defend DOMA Section 3 against equal protection

challenges, the House then determined that it also would defend 38 U.S.C. 101(3) & (31) in

this and other cases in which that statutes constitutionality has been challenged.

3

The Houses Participation as Intervenor in Similar Litigation. While the House most

often appears in judicial proceedings as amicus curiae,4

it also intervenes in judicial proceedings

where appropriate. See, e.g.,North v. Walsh, 656 F. Supp. 414, 415 n.1 (D.D.C. 1987); Am.

Fedn of Govt Emps. v. United States, 634 F. Supp. 336, 337 (D.D.C. 1986). In particular, the

3 As with the First Holder Letter, the Second Holder Letter does not specifically mentionsubstantive due process claims. However, because the Department, in practice since February

2011, has not vigorously defended DOMA Section 3 against substantive due process challenges,seesupra, p. 4 n. 2, it is fair to assume that the Department also will not meaningfully defend 38U.S.C. 101(3) & (38) against plaintiffs substantive due process claims in this case. For this

reason, it is appropriate for the House to defend the statutes against those claims.

4 See, e.g., Br. ofAmicus Curiae the Bipartisan Legal Advisory Group of the U.S. House

of Representatives in Supp. of Petr,Renzi v. United States, No. 11-557 (U.S. Dec. 2, 2011);Dickerson v. United States, 530 U.S. 428, 430 n.* (2000);Raines v. Byrd, 521 U.S. 811, 818 n.2

(1997);Am. Foreign Serv. Assn v. Garfinkel, 490 U.S. 153, 154 (1989);Morrison v. Olson, 487

U.S. 654, 659 (1988);Japan Whaling Assn v. Am. Cetacean Socy, 478 U.S. 221, 223 (1986);Helstoski v. Meanor, 442 U.S. 500, 501 (1979); United States v. Helstoski, 442 U.S. 477, 478(1979); United States v. Renzi, 651 F.3d 1012, 1015 (9th Cir. 2011);In re Grand Jury

Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009); Fields v. Office of Eddie Bernice Johnson, 459 F.3d

1, 3 (D.C. Cir. 2006) (en banc);Beverly Enters., Inc. v. Trump, 182 F.3d 183, 186 (3d Cir. 1999);United States v. McDade, 28 F.3d 283, 286 (3d Cir. 1994);In re Search of the Rayburn House

Office Bldg., 432 F. Supp. 2d 100, 104-05 (D.D.C. 2006), revd sub nom.United States v.

Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007).


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House has intervened to defend the constitutionality of federal statutes when the Department has

abandoned its responsibility to do so. See, e.g.,INS v. Chadha, 462 U.S. 919, 930 n.5 (1983);

Adolph Coors Co. v. Brady, 944 F.2d 1543, 1545 (10th Cir. 1991);In re Koerner, 800 F.2d 1358,

1360 (5th Cir. 1986); Synar v. United States, 626 F. Supp. 1374, 1378-79 (D.D.C.), affd sub

nom.Bowsher v. Synar, 478 U.S. 714 (1986);Ameron, Inc. v. U.S. Army Corps of Engrs, 607 F.

Supp. 962, 963 (D.N.J. 1985), affd, 809 F.2d 979 (3d Cir. 1986);Barnes v. Carmen 582 F.

Supp. 163, 164 (D.D.C. 1984), revd sub nom.Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1985),

revd on mootness grounds sub nom.Burke v. Barnes, 479 U.S. 361, 362 (1987);In re Prod.

Steel, Inc., 48 B.R. 841, 842 (M.D. Tenn. 1985);In re Moody, 46 B.R. 231, 233 (M.D.N.C.

1985);In re Tom Carter Enters., Inc., 44 B.R. 605, 606 (C.D. Cal. 1984);In re Benny, 44 B.R.

581, 583 (N.D. Cal. 1984), affd in part & dismissed in part, 791 F.2d 712 (9th Cir. 1986).

Over the past ten months, the House has moved to intervene in eleven other cases that

present the issue of DOMA Section 3s constitutionality. All ten federal courts that have ruled

on such House motions to intervene to date including the First Circuit have permitted House

intervention.5

5See Order, Torres-Barragan v. Holder, No. 10-55768 (9th Cir. Apr. 10, 2012) (ECF

No. 56), attached as Exhibit A; Order of Ct.,Massachusetts v. U.S. Dept of HHS, Nos. 10-2204,

10-2207, & 10-2214 (1st Cir. June 16, 2011) (ECF No. 5558549), attached as Exhibit B; Mem.

Op. & Order at 16-20,Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill. Jan. 5, 2012) (ECFNo. 33), attached as Exhibit C; Order, Cozen OConnor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D.

Pa. Dec. 16, 2011) (ECF No. 82), attached as Exhibit D; Order,Bishop v. United States, No.

4:04-cv-00848 (N.D. Okla. Aug. 5, 2011) (ECF No. 181), attached as Exhibit E; Order,Lui v.

Holder, No. 2:11-cv-01267 (C.D. Cal. July 13, 2011) (ECF No. 25), attached as Exhibit F; OrderGranting Mot. of [the House] to Intervene for a Limited Purpose,Dragovich v. U.S. Dept of theTreasury, No. 4:10-cv-01564 (N.D. Cal. June 10, 2011) (ECF No. 88), attached as Exhibit G;

Order Granting the Mot. of the [House] to Intervene for a Limited Purpose, Golinski v. U.S.

Office of Pers. Mgmt., No. 3:10-cv-0257 (N.D. Cal. June 3, 2011) (ECF No. 116), attached asExhibit H; Mem. & Order, Windsor v. United States, No. 1:10-cv-08435 (S.D.N.Y. June 2, 2011)

(ECF No. 26), attached as Exhibit I; Minute Order, Pedersen v. U.S. Office of Pers. Mgmt., No.

3:10-cv-01750 (D. Conn. May 27, 2011) (ECF No. 55), attached as Exhibit J.(Continued . . .)


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7

Accordingly, in light of the First and Second Holder Letters, this Court should permit the

House to intervene here for the purpose of defending the constitutionality of DOMA Section 3

and 38 U.S.C 101(3) & (31) against claims that those statutes violate the equal protection and

substantive due process components of the Due Process Clause of the Fifth Amendment, as well

as litigating related jurisdictional issues, if any.

ARGUMENT

As the Supreme Court has made clear, Congress is the proper party to defend the

validity of a statute when an agency of government, as a defendant charged with enforcing the

statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. Chadha, 462

U.S. at 940. It is unsurprising, then, that ten courts already have permitted the House to

intervene to defend DOMA (and none has refused intervention), and that the House qualifies for

intervention on numerous bases here.

I. House Intervention Is Appropriate Under Rule 24(a)(2).

Federal Rule 24(a)(2) provides that:

On timely motion, the court must permit anyone to intervene who:

* * * *

(2) claims an interest relating to the property or transaction that isthe subject of the action, and is so situated that disposing of the

action may as a practical matter impair or impede the movants

ability to protect its interest, unless existing parties adequatelyrepresent that interest.

Under the law of this Circuit:

One motion remains outstanding at this time. See Mot. of the [House] for Leave to

Intervene, Cooper-Harris v. United States, No. 2:12-cv-00887 (C.D. Cal. Apr. 2, 2012) (ECF

No. 17).


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a putative intervenor must establish (i) the timeliness of its motion

to intervene; (ii) the existence of an interest relating to the propertyor transaction that forms the basis of the pending action; (iii) a

realistic threat that the disposition of the action will impede its

ability to protect that interest; and (iv) the lack of adequate

representation of its position by any existing party.

R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 7 (1st Cir. 2009); see also B.

Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 544-45 (1st Cir. 2006) (citing Pub.

Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998)). The House easily satisfies each of

the requirements here.

Timeliness. [T]he concept of timeliness of a petition . . . derives meaning from assessment

of prejudice in the context of the particular litigation. P.R. Tel. Co. v. Sistema de Retiro de los

Empleados del Gobierno y la Judicata, 637 F.3d 10, 15 (1st Cir. 2011). This lawsuit was filed

on October 27, 2011. The House promptly notified the Court of its status as a potential

intervenor on November 18, 2011. See Notice of Potential Intervenor the [House] (Nov. 18,

2011) (ECF No. 12). While the Plaintiffs already have moved for summary judgment, see Pls.

Mot. for Summ. J. (Nov. 21, 2011) (ECF No. 13), a response is not yet due because (i) the Court

thereafter stayed all proceedings until April 28, 2012, see Minute Order (Feb. 15, 2012) (granting

motion to stay case for sixty days until April 28, 2012); and (ii) the Court more recently stayed

the defendants obligation to respond to the summary judgment motion until 21 days after the

First Circuit rules inMassachusetts v. U.S. Dept of HHS, Nos. 10-2204, & 10-2207 (1st Cir.).

See Minute Order (Apr. 22, 2012).6

Moreover, given that all proceedings in the case were stayed until Saturday, April 28,

2012, the House was unable to file until the stay expired, which it only just did. See also Minute

6TheMassachusetts case was argued on April 4, 2012, and is now under submission.


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Order (Apr. 12, 2012) (summarily denying Plaintiffs motion for order requiring House to move

to intervene by April 20, 2012).

Finally, as detailed above, it was only when the House received the Second Holder Letter

on February 17, 2012, that the House learned of the Departments intentions regarding the

defense of 38 U.S.C. 101(3) & (31), thereby making it possible for the House to determine the

necessary scope of its intervention. See supra at pp. 4-5.

Accordingly, the Houses motion causes no delay in the proceedings and no prejudice to

any of the parties and is, therefore, timely under Rule 24(a)(2).

Interest. Fulfillment of the interest element requires that the intervenors claims must

bear a sufficiently close relationship to the dispute between the original litigants, and the

interest must be direct, not contingent. Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638

(1st Cir. 1989); see alsoNeponset Landing Corp. v. Nw. Mut. Life Ins. Co., No. 10-cv-11963,

2011 WL 2417128, at *4 (D. Mass. June 10, 2011).

Here, the House self-evidently has a direct interest in defending the constitutionality of its

legislative handiwork, given the Houses central constitutional role in creating the legislation,

U.S. Const. art. I, 1, 7, 8, and particularly where, as here, the House bill including the

provision that became 38 U.S.C 101(3) & (31) was enacted without a single dissenting vote,

and the House bill that became DOMA passed the House by a substantial and bipartisan majority

a mere 16 years ago. See suprap. 2; see also Chadha, 462 U.S. at 940; United States v. Lovett,

328 U.S. 303 (1946).

Impairment. With respect to the impairment prong of the analysis, the applicant must be

so situated that the disposition of the action may as a practical matter impair or impede her

ability to protect that interest. Dingwell, 884 F.2d at 637. The disposition of this case threatens

the Houses ability to protect its interest in seeing that the statutes constitutionality is upheld


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because (i) the Plaintiffs contend that DOMA Section 3 and 38 U.S.C. 101(3) & (31) are

unconstitutional under the Due Process Clause; (ii) the Department refuses to defend the statutes

against those challenges; and (iii) the Department almost certainly affirmatively will attackthe

constitutionality of DOMA Section 3 and 38 U.S.C. 101(3) & (31), just as it has in other cases

presenting the issue of DOMA Section 3s constitutionality.7

Therefore, unless the House

intervenes here, it will have no ability to protect its constitutional interests.

Adequacy of Representation. Finally, regarding the adequacy of the representation of

existing parties, the Supreme Court has said that would-be intervenors need only make a minimal

showing in this regard, and only to the effect that representation may be inadequate (not that it

actually is). See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972) (cited in

Maine v. Dir., U.S. Fish and Wildlife Serv., 262 F.3d 13, 18 (1st Cir. 2001)). That showing need

only include some tangible basis to support a claim of purported inadequacy. Patch, 136 F.3d

at 207.

7 See, e.g., Superseding Br. for U.S. Dept of HHS at 25-45,Massachusetts v. U.S. Dept

of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 22, 2011) (ECF No. 5582082) (takingposition that DOMA Section 3 is subject to heightened constitutional scrutiny and is

unconstitutional under that standard); Fed Defs. Br. in Partial Supp. of Pls. Mot. for Summ. J.

at 4-24,Dragovich v. U.S. Dept of Treasury, 4:10-cv-01564 (N.D. Cal. Jan. 19, 2012) (ECF No.

108) (same);Br. of [Dept] Regarding the Constitutionality of Section 3 of DOMA at 6-31,Cozen OConnor, P.C. v. Tobits, 2:11-cv-00045 (E.D. Pa Dec. 30, 2012) (ECF No. 97) (same);

Resp. of Defs. [Dept] to [House]s Cross-Mot. for Summ. J. at 5-21,Bishop v. United States,

4:04-cv-00848 (N.D. Okla. Nov. 18, 2011) (ECF No. 225) (same); Defs. Mem. of Law in Supp.

of Pls. Mot. for Summ. J. & [Houses] Mot. to Dismiss at 8-34, Pedersen v. U. S. Office of Pers.Mgmt., 3:10-cv-01750 (D. Conn. Sept. 14, 2011) (ECF No. 98) (same); Defs. Oppn to[House]s Mot. to Dismiss at 6-21,Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 2, 2011)

(ECF No. 28) (same); Def. [Dept]s Mem. of Law in Resp. to Pl.s Mot. for Summ. J. &

[House]s Mot. to Dismiss at 4-27, Windsor v. United States, 10-cv-08435 (S.D.N.Y. Aug. 19,2011) (ECF No. 71) (same); Defs. Br. in Oppn to [House]s Mots. to Dismiss, Golinski v. U. S.

Office of Pers. Mgmt. at 3-18, No. 3:10-cv-00257 (N.D. Cal. July 1, 2011) (ECF No. 145)

(same).


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Given that the Department has wholly forsaken in this case its constitutional

responsibility to defend DOMA Section 3 and 38 U.S.C. 101(3) & (31), and given the near-

certainty that the Department will align itself with Plaintiffs in affirmatively attacking the

statutes constitutionality, it is self-evident that none of the existing parties represent the Houses

interest in defending the constitutionality of DOMA Section 3 and 38 U.S.C. 101(3) & (31)

against equal protection challenges. See Chadha, 462 U.S. at 940.

Accordingly, intervention by the House as of right under Rule 24(a)(2) is appropriate.

II. House Intervention Is Appropriate Under Rule 24(b)(1)(B).

Federal Rule of Civil Procedure 24(b)(1)(B) provides that:

On timely motion, the court may permit anyone to intervene who:

* * * *

(B) has a claim or defense that shares with the main action a

common question of law or fact.

The Houses motion to intervene satisfies both these requirements.

The Houses motion is timely for purposes of Rule 24(b)(1)(B) for the same reasons it is

timely for purposes of Rule 24(a)(2). See suprapp. 8-9.

With respect to the common question of law or fact requirement, that language should

be given its plain meaning and read in the disjunctive. 6 James Wm. Moore et al., Moores

Federal Practice 24.11 (3d ed. 2012). The House plainly has a defense here i.e., that DOMA

Section 3 and 38 U.S.C. 101(3) & (31) are constitutional that shares with the main action a

common question of law. See, e.g.,Compl. 3, 87, 98, 107, 118, 127, 138 and p. 32 ( (a)-

(c)) (asserting that DOMA Section 3 violates the equal protection and substantive due process

component of the Fifth Amendments Due Process Clause); id. 128, 139, and p. 32 (c)

(asserting same with respect to 38 U.S.C. 101(3) & (31)).


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Finally, in ruling on requests for permissive intervention, this Court also should take into

account (i) the fact that the House only seeks to intervene for a limited purpose, see 6 Moores

Federal Practice 24.11 (A less stringent standard [as to the question of the commonality of

law or fact required] may be applied if a movant seeks intervention for a very limited purpose

rather than full participation in the litigation.); (ii) the fact that the House has been permitted to

intervene in every other case presenting the issue of the constitutionality of DOMA Section 3 in

which the House has sought to intervene, seesupra p. 6 & n.5; (iii) the Houses unique

perspective, as one of the enacting legislative bodies, on the question of the constitutionality of

DOMA Section 3 and 38 U.S.C. 101(3) & (31); and (iv) the added value the House will bring

to this litigation in terms of aiding the Court in resolving the constitutional questions presented,

given that no other party will be defending the statutes.

III. House Intervention Is Appropriate Under Rules 24(a)(1) and/or 24(b)(1)(A).

Federal Rule 24(a)(1) provides for intervention as of right where the proposed intervenor

is given an unconditional right to intervene by a federal statute, while Rule 24(b)(1)(A)

provides for permissive intervention where the proposed intervenor is given a conditional right

to intervene by a federal statute.

A federal statute, namely 28 U.S.C. 2403(a), clearly contemplates that the federal

government will defend the constitutionality of acts of Congress when they are challenged:

In any action, suit or proceeding in a court of the United States towhich the United States or any agency, officer or employee thereof

is not a party, wherein the constitutionality of any Act of Congress

affecting the public interest is drawn in question, the court . . .shall permit the United States to intervene for presentation of

evidence, if evidence is otherwise admissible in the case, and for

argument on the question of constitutionality. The United Statesshall, subject to the applicable provisions of law, have all the rights

of a party and be subject to all liabilities of a party as to court costs

to the extent necessary for a proper presentation of the facts and

law relating to the question of constitutionality.


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Id. (emphasis added).

Here, of course, officers of the United States are parties but, in light of the Departments

refusal to play the role contemplated by Section 2403(a), it is appropriate for the House to

intervene to discharge that function. See 28 U.S.C. 530D(b)(2) (specifically contemplating that

House and/or Senate may intervene to defend constitutionality of federal statute where the

Department refuses to do so).

Moreover, where, as here, the Department abdicates its responsibility to defend a

challenged statute, the Supreme Court has held that the Legislative Branch may, if it wishes,

accept that responsibility: Congress is the proper party to defend the validity of a statute when

an agency of government, as a defendant charged with enforcing the statute, agrees with

plaintiffs that the statute is inapplicable or unconstitutional. Chadha, 462 U.S. at 940

(emphasis added). That is precisely the situation here. As noted above, numerous other courts

have followed Chadhas direction and permitted the House to intervene to defend the

constitutionality of federal statutes. Seesupra p. 6 & n.5.

Accordingly, whether the Court construes 28 U.S.C. 2403(a), 530D(b)(2), considered

together, as vesting the Legislative Branch with an unconditional right to intervene, Rule

24(a)(1), or a conditional right to intervene, Rule 24(b)(1)(A), intervention here by the House

to defend the constitutionality of DOMA Section 3 and 38 U.S.C. 101(3) & (31) clearly is

appropriate.

IV. The House Has Standing.

In other cases in which the House has moved to intervene, the Department has contended

that the House lacked standing to intervene. We fully expect the Department will do so again

here, notwithstanding that it does not oppose our motion to intervene, and notwithstanding that


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such a contention has absolutely no merit. See, e.g., Order,Lui v. Holder, No. 2:11-cv-01267

(C.D. Cal. July 13, 2011) (ECF No. 25) (adopt[ing] the reasoning in Windsor v. United States,

No. 1:10-cv-08435 . . . (S.D.N.Y. June 2, 2011) (ECF No. 26), which held expressly that the

House has standing to intervene . . . to defend the constitutionality of Section 3 of DOMA. Id.

at 10.). Indeed, none of the ten courts that to date have ruled on House motions to intervene

including the First Circuit, see Order of Ct.,Massachusetts v. U.S. Dept of HHS, Nos. 10-2204,

10-2207, & 10-2214 (1st Cir. June 16, 2011) (ECF No. 5558549) have held that the House

lacked standing. See supra p. 6 n.5. And with good reason, as we now explain.

A. The House Need Not Demonstrate Independent Standing To Intervene Here.

So long as the Executive Branch Defendants are parties to this action and they will

remain parties, regardless of the role the Department chooses to play or not play in this litigation,

until the claims against them are dismissed or the case concludes, neither of which has occurred

the House need not demonstrate any standing here. SeeUnited States v. AVX Corp., 962 F.2d

108, 114 (1st Cir. 1992) ([I]ntervenors standing was immaterial in the lower court [because of

the presence of original parties]); U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir.

1978) (The question of standing in the federal courts is to be considered in the framework of

Article III which restricts judicial power to cases and controversies. The existence of a case or

controversy having been established as between the [existing parties], there was no need to

impose the standing requirement upon the proposed intervenor [defendant]. (quotation marks,

citations, and parentheses omitted)); San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1172

(10th Cir. 2007) (en banc) (Article III standing not required for defendant intervention where

ongoing case or controversy);Ruiz v. Estelle, 161 F.3d 814, 830-32 (5th Cir. 1998) (same);

Assocd Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (same).


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B. The House Satisfies Article III Standing Requirements.

Although the Court need not reach this issue, it is clear from Chadha that the House does

have independent standing to intervene here. In Chadha, a private party challenged the

constitutionality of a federal statute that the Department refused to defend. After the Ninth

Circuit ruled for the plaintiff, the House (and the Senate) moved to intervene for the purpose of

filing a petition for certiorari. Chadha, 462 U.S. at 930 n.5. The Ninth Circuit granted that

motion, and the Supreme Court granted the subsequent House and Senate petitions for certiorari,

holding over the Departments suggestion otherwise, see Mem. for the Fed. Respt, U.S. House

of Representatives v. INS, Nos. 80-2170 & 80-2171, 1981 U.S. S. Ct. Briefs LEXIS 1423, at *4

(Aug. 28, 1981) that Congress is both a proper party to defend the constitutionality of [the

statute] and a proper petitioner under [the statute governing petitions for writs of certiorari].

Chadha, 462 U.S. at 939. In so holding, the Supreme Court made crystal clear that the House

(and the Senate) had Article III standing: [A]n appeal must present a justiciable case or

controversy under Art. III. Such a controversy clearly exists . . . because of the presence of the

two Houses of Congress as adverse parties. Id. at 931 n.6 (emphasis added). Therefore, when

the Department defaults on its constitutional responsibilities to defend the constitutionality of

statutes, as it has here, the House may intervene and, when it does, it has Article III standing.

In keeping with Chadhas holding, congressional entities including specifically the

House through its Bipartisan Legal Advisory Group repeatedly have intervened to defend the

constitutionality of legislation the Department has refused to defend. See, e.g,In re Koerner,

800 F.2d at 1360 (In response [to the Departments support for plaintiffs constitutional

challenge to the Bankruptcy and Federal Judgeship Act of 1984], the United States Senate and

the House Bipartisan Leadership Group intervened to defend the constitutionality of the 1984

Act.);Ameron, Inc. v. U.S. Army Corps of Engrs, 787 F.2d 875, 879, 880 (3d Cir.) (President


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Reagan declared Competition in Contracting Act [CICA] unconstitutional and upon the

advice of the Attorney General . . . ordered the executive department not to observe it; the

district court grant[ed] the motion of the Senate, the Speaker, and the Bipartisan Leadership

Group of the House to intervene as plaintiffs to support the constitutionality of CICA), affd809

F.2d 979 (3d Cir. 1986);Adolph Coors Co., 944 F.2d at 1545;Barnes, 582 F. Supp. at 164;In re

Moody, 46 B.R. at 233;In re Tom Carter Enters., Inc., 44 B.R. at 606;In re Benny, 44 B.R. at

583.

Moreover, and in any event, in this Circuit, an applicant who satisfies the interest

requirement of the intervention rule is almost always going to have a sufficient stake in the

controversy to satisfy Article III as well. Cotter v. Mass. Assn of Minority Law Enforcement

Officers, 219 F.3d 31, 34 (1st Cir. 2000) (citing Transamerica Ins. Co. v. South, 125 F.3d 392,

396 n.4 (7th Cir. 1997)); see also Daggett v. Commn on Governmental Ethics & Election

Practices, 172 F.3d 104, 110 (1st Cir. 1999) (Although the two are not identical, the interest

required under Rule 24(a) has some connection to the interest that may give the party a sufficient

stake in the outcome to support standing under Article III.). The Houses strong interest in

defending the constitutionality of its legislative handiwork easily satisfies this requirement here.

See supra p. 9.


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CONCLUSION

For all the foregoing reasons, the Court should grant the Houses Motion to Intervene.

Respectfully submitted,

Paul D. Clement/s/ H. Christopher Bartolomucci

H. Christopher BartolomucciConor B. Dugan

Nicholas J. Nelson

BANCROFT PLLC

1919 M Street, N.W., Suite 470

Washington, D.C. 20036(202) 234-0090 (phone)

(202) 234-2806 (fax)[email protected]

Counsel for Proposed Intervenor the Bipartisan

Legal Advisory Group of the U.S. House of

Representatives

Of Counsel

Kerry W. Kircher, General Counsel

William Pittard, Deputy General CounselChristine Davenport, Senior Assistant Counsel

Kirsten W. Konar, Assistant Counsel

Todd B. Tatelman, Assistant CounselMary Beth Walker, Assistant Counsel

Office of General CounselU.S. House of Representatives219 Cannon House Office Building

Washington, D.C. 20515

(202) 225-9700 (phone)(202) 226-1360 (fax)

May 1, 2012


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CERTIFICATE OF SERVICE

I hereby certify that on May 1, 2012, I electronically filed the foregoing Memorandum of

Points and Authorities in Support of Motion of the Bipartisan Legal Advisory Group of the U.S.

House of Representatives for Leave to Intervene with the Clerk of the Court for the U.S. District

Court for Massachusetts using the appellate CM/ECF system. I further certify that all parties in

this case are registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Kerry W. Kircher

Kerry W. Kircher


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EXHIBIT A

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

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AT/MOATT

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS FRANCISCO TORRES-

BARRAGAN; et al.,

Plaintiffs - Appellants,

v.

BIPARTISAN LEGAL ADVISORY

GROUP OF THE U.S. HOUSE OFREPRESENTATIVES,

Intervenor,

and

ERIC H. HOLDER, Jr., Attorney General,

Department of Justice; et al.,

Defendants - Appellees.

No. 10-55768

D.C. No. 2:09-cv-08564-RGK

Central District of California,

Los Angeles

ORDER

Before: PREGERSON, CANBY, and FISHER, Circuit Judges.

The unopposed motion of the Bipartisan Legal Advisory Group of the

United States House of Representatives to intervene on behalf of appellees is

granted.

The motion for voluntary dismissal of this appeal is granted. This appeal is

dismissed. See Fed. R. App. P. 42(b).

FILED

APR 10 2012

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

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

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AT/MOATT 10-557682

All other pending motions are denied as moot.

DISMISSED.

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

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EXHIBIT B


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United States Court of AppealsFor the First Circuit

No. 10-2204

COMMONWEALTH OF MASSACHUSETTS,

Plaintiff, Appellee,

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,

Defendants, Appellants.

________________________

No. 10-2207

NANCY GILL, ET AL.,

Plaintiffs, Appellees,

KEITH TONEY; ALBERT TONEY, III,

Plaintiffs,

v.

OFFICE OF PERSONNEL MANAGEMENT, ET AL.,

Defendants, Appellants,

HILARY RODHAM CLINTON, in her official capacity as United States

Secretary of State,

Defendant.

_________________________

No. 10-2214

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

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DEAN HARA,

Plaintiff, Appellee/Cross - Appellant,

NANCY GILL, ET AL.,

Plaintiffs - Appellees,

KEITH TONEY, ET AL.,

Plaintiffs,

v.

OFFICE OF PERSONNEL MANAGEMENT, ET AL.,

Defendants, Appellants/Cross - Appellees,

HILARY RODHAM CLINTON, in her official capacity as United States

Secretary of State,

Defendant.

ORDER OF COURT

Entered: June 16, 2011

The motion of the Bipartisan Legal Advisory Group of the United States House of

Representatives ("the House") to intervene as a party appellant is granted. The federal defendants'

motion to withdraw their opening brief is denied; however, the federal defendants may file a

superseding brief. Briefing shall proceed on the following schedule:

30 days after order allowing intervention:

Opening brief of intervenor (the House) in Nos. 10-2204 and 10-2207

Superseding brief of appellants (the federal defendants) in Nos. 10-2204 and 10-2207

30 days from above filings:

Response brief of appellee (Commonwealth of Massachusetts) in No. 10-2204Response brief of appellees (the Gill plaintiffs) in No. 10-2207 combined with opening brief

of cross-appellant (Dean Hara) in No. 10-2214

30days from above filings:

Reply brief of intervenor (the House) in Nos. 10-2204 and 10-2207

Reply brief of appellants (the federal defendants) in Nos. 10-2204 and 10-2207, combined

with response brief of cross-appellees (the federal defendants) in No. 10-2214


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14 days from above filings:

Reply brief of cross-appellant (Dean Hara) in No. 10-2214

So ordered.

By the Court:

/s/ Margaret Carter, Clerk.

cc:

Counsel of Record


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EXHIBIT C


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMOS REVELIS and MARCEL MAAS,

Plaintiff,

v.

JANET NAPOLITANO, Secretary,

Department of Homeland

Security, and ERIC H. HOLDER,

JR., Attorney General of the

United States,

Defendants.

Case No. 11 C 1991

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

The Plaintiffs, Demos Revelis (Revelis) and Marcel Maas

(Maas) (collectively, the Plaintiffs), are a same-sex couple who

married in Iowa. They seek to challenge the constitutionality of

Section 3 of the Defense of Marriage Act (the DOMA), 1 U.S.C. 7.

Defendants, Secretary of the Department of Homeland Security Janet

Napolitano and Attorney General Eric Holder (collectively, the

Defendants) move to dismiss pursuant to FED.R.CIV.P. 12(b)(1) for

lack of subject matter jurisdiction. Additionally, in the event the

motion is denied, the Bipartisan Legal Advisory Group of the U.S.

House of Representatives (the BLAG) seeks leave to intervene to

defend the constitutionality of the DOMA. For the reasons stated

herein, Defendants Motion to Dismiss is denied. BLAGs Motion to

Intervene for a Limited Purpose is granted.

Case: 1:11-cv-01991 Document #: 34 Filed: 01/05/12 Page 1 of 20 PageID #:228Case 1:11-cv-11905-RGS Document 33-3 Filed 05/01/12 Page 2 of 21

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I. BACKGROUND

A. Facts

The following facts are taken from the Plaintiffs Complaint.

Revelis is a United States citizen, while Maas is a native and

citizen of the Netherlands. The couple lives in Chicago, Illinois.

Maas last entered the country through the Visa Waiver Program in

1999. He and Revelis began dating, moved in together in 2002, and

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

wants to remain in the United States, so Revelis has filed a visa

petition, called an I-130 Petition for Alien Relative, on behalf of

Maas. Such a visa petition, if approved, would allow Maas to apply

for lawful permanent residency in the United States. 8 U.S.C.

1151(b)(2)(A)(I); 8 U.S.C. 1154(a)(1)(A)(I).

On March 10, 2011, the couple was interviewed on the visa

petition at the Chicago field office of the U.S. Citizenship and

Immigration Services (the USCIS), an agency of the Department of

Homeland Security. Plaintiffs assert that there has been no

allegation that their marriage was entered into in bad faith, but

that regardless of the validity of their marriage, DOMA prohibits the

USCIS from approving the visa petition. The agency has not yet ruled

on the petition.

B. Regulatory and Legal Framework

Under the Immigration and Nationality Act (the INA), United

States citizens may petition the Attorney General to classify their

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spouses as immediate relatives. 8 U.S.C. 1101, et seq. If

approved, this allows non-citizen spouses to be granted permanent

resident status ahead of other immigrants who want to make their home

in the United States. 8 U.S.C. 1151(b); Smith v. I.N.S., 684

F.Supp. 1113, 1115 (D. Mass. 1988).

In order to determine whether a marriage is valid for

immigration purposes, the USCIS must determine whether the marriage

is valid under state law and whether it qualifies under the INA. In

re Lovo-Lara, 23 I. & N. Dec. 746, 748 (citing Adams v. Howerton, 673

F.2d 1036, 1038 (9th Cir. 1982)). The validity of a marriage under

state law is generally determined by the law of the place where the

marriage was celebrated. Lovo-Lara, 23 I. & N. Dec. at 748.

The INA does not define the word spouse or refer to the sex of

the parties. Id. However, the USCIS follows the federal definition

of marriage and spouse as provided by Section 3 of the DOMA. Id. at

74849. DOMA provides:

In determining the meaning of any Act of Congress, or ofany ruling, regulation, or interpretation of the variousadministrative bureaus and agencies of the United States,the word marriage means only a legal union between oneman and one woman as husband and wife, and the wordspouse refers only to a person of the opposite sex who isa husband or a wife.

1 U.S.C. 7. As such, for immigration purposes there is no

question that a valid marriage can only be between a man and a woman.

Marriages between same-sex couples are excluded. Lovo-Lara, 23 I.

& N. Dec. at 749.

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The burden of proof is on the petitioners to prove eligibility

for an immediate relative visa, including that the marriage is not a

sham. SeeGipson v. I.N.S., 284 F.3d 913 (8th Cir. 2002). If a visa

petition is denied, the petitioner may appeal to the Board of

Immigration Appeals (the BIA), which has final administrative

authority. Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006).

However, the BIA does not have jurisdiction to review constitutional

challenges. Calderon v. Reno, 39 F.Supp.2d 943, 954 (N.D. Ill.

1998). If an administrative appeal is unsuccessful, the couple may

seek review in the federal district court. See Ghaly v. I.N.S., 48

F.3d 1426 (7th Cir. 1995).

In February 2011, the Obama Administration determined that it

would no longer defend the constitutionality of Section 3 of DOMA,

reasoning that heightened scrutiny should apply to DOMA and that

under that standard, it was unconstitutional. See D.E. 15, Ex. A

(letter from Attorney General Holder to Kerry Kircher, General

Counsel for the U.S. House of Representatives). However, President

Obama has instructed executive agencies to continue to comply with

the law until it is repealed or the judiciary makes a definitive

ruling as to its constitutionality. Id.

Although Defendants will not defend the constitutionality of

DOMA (hence the motion to intervene by BLAG), they have moved to

dismiss this action pursuant to FED.R.CIV.P.12(b)(1). Defendants

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

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Plaintiffs lack standing and any dispute over the constitutionality

of DOMA is unripe. The Court will consider each Motion and its

applicable law in turn.

II. MOTION TO DISMISS

A. Legal Standard

Federal courts are courts of limited jurisdiction and have only

the power authorized by Article III of the Constitution to hear

actual cases or controversies. Allen v. Wright, 468 U.S. 737, 750

(1984). Both standing and ripeness are case-or-controversy doctrines

that limit federal judicial power. Id. Plaintiffs have the burden

of establishing that jurisdiction is proper in light of these

limitations. Transit Exp., Inc. v. Ettinger, 246 F.3d 1018,

1023 (7th Cir. 2001). The Court accepts Plaintiffs well-pleaded

factual allegations as true and draws reasonable inferences in their

favor. Id. However, the Court may look beyond the pleadings if

necessary to determine whether subject-matter jurisdiction exists.

Hay v. Ind. State Bd. of Tax Commrs, 312 F.3d 876, 879 (7th Cir.

2002).

Plaintiffs Complaint sets forth three bases for this Courts

jurisdiction: federal question jurisdiction under 28 U.S.C. 1331;

jurisdiction under the Administrative Procedures Act (the APA), 5

U.S.C. 701 et seq.; and jurisdiction under the Declaratory Judgment

Act, 28 U.S.C. 2201. Neither the APA nor the Declaratory Judgment

Act provides an independent basis for jurisdiction, however. See

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Califano v. Sanders, 430 U.S. 99, 10607 (1977); GNB Battery Techs.,

Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995).

Coupled with an appropriate jurisdictional basis, the APA

provides for judicial review of final agency action for which there

is no other adequate remedy in a court. 5 U.S.C. 704. As a

preliminary matter, the Court agrees with Defendants that there has

been no final action here under the APA. Agency action is final and

reviewable when: (1) the action marks the consummation of the

agencys decision-making process, and is not merely tentative or

interlocutory; and (2) the action is one by which rights or legal

obligations have been determined, or from which legal obligations

flow. W. Ill. Home Health Care, Inc., v. Herman, 150 F.3d 659, 662

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

core question is whether the agency has completed its decision-making

process, and whether the result of the process is one that will

directly affect the parties. Herman, 150 F.3d at 662 (quoting

Franklin v. Mass., 505 U.S. 788, 797 (1992)).

Plaintiffs argue that an agencys decision to enforce a law

amounts to a final agency action. They cite Abbott Labs. v.

Gardner, 387 U.S. 136, 149-51 (1967), abrogated in part on other

grounds byCalifano, 430 U.S. at 105, for the proposition that an

agency action includes rules, and posit that the agencys decision to

enforce DOMA is a rule that amounts to a final action. Under the

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

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general or particular applicability and future effect designed to

implement, interpret, or prescribe law or policy. . . . 5 U.S.C.

551(4). However, a fair reading of Plaintiffs Complaint makes it

clear that Plaintiffs are not challenging an agency rule or action,

but rather are challenging DOMA itself.

This does not implicate the APA, but a federal question is

presented on the face of the Complaint in that it presents a

substantial, disputed question of federal law; namely, whether the

imminent application of DOMA to the petition violates Plaintiffs

constitutional rights. Federal question jurisdiction exists, then,

provided that the claim is ripe and that Plaintiffs have standing to

pursue it. See Wikberg v. Reich, 21 F.3d 188, 189 (7th Cir. 1994).

B. Standing

In order to have standing, Plaintiffs must meet three

prerequisites. Plaintiffs must have suffered an injury in fact, or

an invasion of a legally protected interest that is concrete and

particularized, not merely hypothetical. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). Second, there must be a causal

connection between the injury and the complained-of conduct, so that

the injury is fairly traceable to the defendants actions. Id.

Third, it must be likely, and not merely speculative, that a ruling

in favor of the Plaintiffs will redress the injury. Id. at 561.

Plaintiffs argue they have a legally protected interest in the

processing of the visa petition because the INA gives Maas a

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statutory right to apply for permanent residence if the I-130 is

approved, but DOMA prevents the USCIS from considering their petition

on the merits. There can be no question that both Revelis and Maas

have a valuable right at stake in the marriage petition process.

Ali v. INS, 661 F.Supp. 1234, 1242 n.5 (D. Mass. 1986). Further, a

citizen, like Revelis, has a statutory right to petition the

government to have his alien spouse declared an immediate relative.

Id. at 1246 n.6; see 8 U.S.C. 1154 (providing that, after an

investigation, the Attorney General shall approve an immediate

relative petition if he determines that the facts in the petition are

true and the alien on behalf of whom the petition is made qualifies

as an immediate relative under the INA) (emphasis added). Plaintiffs

argue that because of DOMA, Maas can never meet the definition of an

immediate relative under INA, even if the USCIS decides that his

marriage would otherwise qualify him. SeeLovo-Lara, 23 I. & N. Dec.

at 749.

In arguing that Plaintiffs lack standing, Defendants contend

that Plaintiffs cannot have been injured by DOMA because no decision

has yet been reached on Revelis I-130 petition. It could be

granted, Defendants contend, or denied for a reason having nothing to

do with DOMA. See Ali, 661 F.Supp. at 123839 (noting that

immigration officials use a variety of investigatory techniques to

determine whether marriages between citizens and aliens are shams).

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The Court notes that the Administrations approach to

immigration issues involving same-sex couples appears to be in flux,

at least in regard to its use of discretion in removal cases. In

April, Attorney General Holder ordered the Board of Immigration

Appeals to vacate its decision applying Section 3 of DOMA to deny an

aliens request for cancellation of removal. In re Dorman, 25 I. &

N. Dec. 485 (2011). However, the Administration followed that up

with public statements indicating that the Dorman case did not signal

a sea change, and that the Administration would continue to enforce

DOMA until and unless it is ruled unconstitutional. Julia Preston,

Justice Dept. to Continue Policy Against Same-Sex Marriage, N.Y.

Times, May 9, 2011, at A15.

Subsequently, in June, the Administration issued a memorandum

providing guidance to Immigration and Customs Enforcement (ICE)

personnel about the exercise of discretion in removal cases. The

memorandum, from U.S. Department of Homeland Security Director John

Morton, notes that ICE has limited personnel and must prioritize its

efforts to focus on the removal of those aliens with criminal records

or who pose a threat to national security. In exercising discretion,

Morton advised that ICE officers and attorneys should take into

account a persons family relationships, including whether the person

has a U.S. citizen spouse. Memorandum from John Morton, Director of

the U.S. Department of Homeland Security, to ICE Field Directors,

Special Agents in Charge, and Chief Counsel (June 17, 2011),

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a v a i l a b l e a t h t t p : / / w w w . i c e . g o v / d o c l i b / s e c u r e -

communities/pdf/prosecutorial-discretion-memo.pdf (the Morton

Memo).

The Morton Memo does not address same-sex married couples,

although the policies behind it have been used to extend relief from

removal to same-sex couples in certain instances. See Julia Preston,

U.S. Issues New Deportation Policys First Reprieves, N.Y. Times,

Aug. 23, 2011, at A15 (noting that an immigration judge in Denver

postponed the deportation of a Mexican woman in a legal same-sex

marriage on the basis of their family relationship).

It is clear that the Administration has exercised discretion to

stop the removal of at some immigrants who are parties to legal same-

sex marriages. But despite this, DOMA remains a barrier to same-sex

spouses like Maas who are seeking lawful status in this country.

DOMA remains the law, and it remains the official policy of the

Administration to enforce it. Defendants acknowledge this in their

brief in response to BLAGs motion to intervene, noting that the

Executive departments and agencies will continue to comply with

Section 3, pursuant to the Presidents direction, unless and until

Section 3 is repealed by Congress or there is a definitive ruling by

the Judicial Branch that Section 3 is unconstitutional. Defs.

Resp. to Motion of BLAG to Intervene for a Limited Purpose, at 2.

This acknowledgment is in some tension with Defendants indication in

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their reply brief that Plaintiffs can only speculate as to the

outcome of the petition.

Given the current state of the law, it seems clear that DOMA

precludes the granting of Revelis spousal visa petition for Maas.

While it is true that the petition could be denied for a variety of

reasons having nothing to do with DOMA, that could happen to any

couple. While perhaps inartfully pleaded, the injury that Plaintiffs

allege is broader than the expected denial of the petition. They

contend that because of DOMA, they will not be treated like any other

couple. See Pls. Compl. 2428. There is a thumb on the scale

against them, and even if they are otherwise qualified, it is a

practical certainty that Revelis petition will be denied. This is

a government-imposed barrier to obtaining a benefit available to

other legally married couples, and it confers standing upon

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

F.3d 1216, 1220 (7th Cir. 1994) (noting that the denial of equal

protection itself is an injury that confers standing).

It is this imminent injury their inability to be treated on

equal footing with other married couples that Plaintiffs ask this

Court to redress. Pre-enforcement challenges are within Article III

despite the fact that events may unfold in uncertain ways. See

Brandt v. Vill. of Winnetka, 612 F.3d 647, 649 (7th Cir 2010). In

the equal protection context, the Supreme Court has held that [w]hen

the government erects a barrier that makes it more difficult for

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members of one group to obtain a benefit than it is for members of

another group, a member of the former group seeking to challenge the

barrier need not allege that he would have obtained the benefit but

for the barrier in order to establish standing. The injury in fact

in an equal protection case . . . is the denial of equal treatment

resulting from the imposition of the barrier, not the ultimate

inability to obtain the benefit. See Ne. Fla. Chap. of Associated

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666

(1993). While Revelis has no right to have his visa petition on

Maas behalf granted, he does have a right to have the petition

considered without the burden of invidiously discriminatory

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

Defendants argue that until a decision is reached on the visa

petition, it is not clear that DOMA is the cause of Plaintiffs

injury or that any ruling invalidating DOMA will redress that injury.

However, this argument misapprehends the nature of the injury, which

is the denial of equal access to the visa program, not the expected

denial of the petition. Although in equal protection cases the

constitutional challenge often comes after a plaintiff has applied

for a benefit and been rejected, there is nothing that mandates that

a plaintiff wait until rejection to file suit. See Regents of Univ.

of Cal. v. Bakke, 438 U.S. 265, 281 n. 14 (1978) (noting that

plaintiff was injured not only by his rejection from medical school,

but by his inability to compete for all the places in the class).

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In a similar context, in Dragovich v. U.S. Department of the

Treasury, 764 F.Supp.2d 1178, 1187 (N.D. Cal. 2011), the court held

that the plaintiffs, a same-sex married couple, did not have to apply

to a benefit program in order to have standing to challenge it

because it would have been futile to apply and because the couple

adequately alleged that they were eligible for the program. See id.

(A plaintiff sufficiently alleges injury when a discriminatory

policy has interfered with the plaintiff's otherwise equal ability to

compete for the program benefit.).

Here, Plaintiffs have asked to be considered for the benefit of

a spousal visa, and there is nothing in their Complaint that

indicates they are otherwise disqualified from consideration. Cf.

Filozof v. Monroe Community College, 583 F.Supp.2d 393, 403 (W.D.N.Y.

2008) (finding no standing where plaintiff was not able and ready

to attempt to participate in the challenged programs). It is true

that if an applicant could not have obtained the desired benefit even

in the absence of discrimination, such an applicant lacks the

requisite personal stake in the outcome of the proceeding to have

standing. See Day v. Bond, 500 F.3d 1127, 1134 (10th Cir. 2007).

But Plaintiffs do not have to show that they will obtain the benefit,

but merely that they could. Id. at 1135. In this case, Plaintiffs

assert that they are otherwise eligible for approval of the spousal

visa petition, but DOMA bars its approval.

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This burden is fairly traceable to Section 3 of DOMA, and a

ruling by this Court invalidating that statute would redress the

injury. See Ne. Fla. Gen. Contractors, 508 U.S. at 666 n. 5 (holding

that when injury is the erection of a barrier that makes it more

difficult for members of one group to obtain a benefit than it is for

members of another group, the barrier is the cause of the injury, and

a ruling removing it redresses the injury). So the Plaintiffs do

have standing, provided that their claim is ripe.

The Court notes that it has not prejudged the merits of

Plaintiffs equal protection challenge; standing and entitlement to

relief are two separate inquiries. See Arreola v. Godinez, 546 F.3d

788, 795 (7th Cir. 2008).

C. Ripeness

In order for this Court to exercise jurisdiction, a case or

controversy must be ripe, meaning that it is neither premature nor

speculative. Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002).

Defendants contend that because Revelis petition is still pending,

it cannot be ripe for review before this Court.

Like standing, ripeness is a justiciability doctrine. As noted

above, to assert standing, the plaintiff must present either an

actual or threatened harm resulting from the allegedly illegal

action. Warth v. Seldin, 422 U.S. 490, 498-99 (1975). Ripeness is

a related question in that it concerns whether the harm has matured

sufficiently to warrant judicial relief. Id. at 499 n. 10. The

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ripeness doctrine is drawn both from Article III limitations on

judicial power and from prudential reasons for refusing to exercise

jurisdiction. Nat. Park Hospitality Ass'n v. Dept of Interior, 538

U.S. 803, 808 (2003) (quoting Reno v. Catholic Social Servs., Inc.,

509 U.S. 43, 57, n. 18 (1993)). Here, the inquiries as to ripeness

and standing overlap in that Defendants main argument as to both is

that Plaintiffs cannot know if they will be injured until the USCIS

acts on the petition.

Ripeness involves two inquiries: (1) the fitness of the issues

for judicial decision; and (2) the hardship to the parties of

withholding court consideration. Nat. Park Hospitality Assn, 538

U.S. at 808 (internal citations omitted). In terms of the fitness of

the issues for judicial decision, the constitutionality of Section 3

of DOMA presents a purely legal question. This weighs in favor of

finding the dispute ripe, because the question of whether applying

DOMA to Plaintiffs violates their right to equal protection does not

require further factual development. See Ernst & Young v. Depositors

Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995). Defendants

argue, correctly, that courts should exercise caution in deciding

even purely legal issues when constitutional issues are involved,

particularly when there are inadequacies or ambiguities in the

record. See Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646,

662 (9th Cir. 2002).

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However, the record is adequate to decide the issues presented

here. As noted in regard to the standing inquiry, Plaintiffs are not

requesting that this Court order the government to grant the visa

petition. Instead, they are requesting that their petition be

reviewed and decided on the same basis as other married couples.

This is a legal question that is fit for judicial review because

Revelis has filed a pending visa petition. Additionally, because

Plaintiffs cannot raise the constitutionality of DOMA during the

marriage petition process, no further administrative record will be

developed on that issue.

As for the question of hardship, the hallmark of cognizable

hardship is usually direct and immediate harm. Ernst & Young, 45

F.3d at 536. This is not the type of case in which the harm at issue

depends on a lengthy chain of speculation as to what the future has

in store. Id. at 538. As noted above, it is nearly certain that

USCIS will apply DOMA as at least one basis to deny Plaintiffs

petition, given that the official policy of the Administration is

that DOMA will be enforced. This alleged imminent denial of equal

protection is a direct and immediate harm. As such, this dispute is

ripe, and Defendants Rule 12(b)(1) Motion to Dismiss is denied.

III. MOTION TO INTERVENE

Plaintiff opposes BLAGs motion to intervene, arguing that it

should be limited to amicus curiae status. Defendants ask that

BLAGs involvement be limited to making substantive arguments in

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support of DOMA, while they continue to file all procedural notices.

BLAG argues that intervention as a matter of right under FED.R.CIV.

P. 24(a)(2) is appropriate for the limited purpose of defending the

constitutionality of the law. That rule states, in relevant part:

(a) Intervention of Right. On timely motion,

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