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Nos. 12-15388, 12-15409 (Consolidated)
United States Court of Appeals for the Ninth Circuit
KARENGOLINSKI,
Plaintiff-Appellee,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants-Appellees,
THEBIPARTISANLEGALADVISORYGROUPOFTHE
U.S.HOUSEOFREPRESENTATIVES,
Intervener-Defendant-Appellant.
KARENGOLINSKI,Plaintiff-Appellee,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants-Appellant,
THEBIPARTISANLEGALADVISORYGROUPOFTHE
U.S.HOUSEOFREPRESENTATIVES,
Intervener-Defendant.
ON APPEAL FROM U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
MOTION FOR LEAVE TO FILEAMICUS CURIAEBRIEF OF
EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND IN
OPPOSITION TO PETITION FOR HEARING EN BANC
Lawrence J. Joseph
Cal. State Bar No. 154908
1250 Connecticut Ave. NW, Ste. 200Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
Counsel for Amicus Curiae
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INTRODUCTION
Pursuant to Ninth Cir. R. 29-2 and by analogy to FED. R.APP.
PROC. 29(a), Eagle Forum Education & Legal Defense Fund (Eagle
Forum) requests leave to file the accompanying amicus curiae brief in
support of the opposition to initial hearing en banc filed by the
intervener-defendant Bipartisan Legal Advisory Group of the U.S.
House of Representatives (House). The House takes no position on
this motion. The plaintiff-appellee and the Executive-Branch
defendants have consented to the filing of the brief and to this motion.
I. INTEREST AND IDENTITY OFAMICUS CURIAE
Movant Eagle Forum is a nonprofit organization founded in 1981
and headquartered in Saint Louis, Missouri. For more than thirty
years, Eagle Forum has consistently traditional American values,
including the definition of marriage as the union of husband and wife.
In addition to its educational efforts on that topic, Eagle Forum has
participated as amicus curiae in litigation involving same-sex marriage
in various state and federal courts, including this Circuit, the First
Circuit, and the California Supreme Court.
For all of the foregoing reasons, Eagle Forum has a direct and
vital interest in the issues presented before this Court, and requests
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2
leave to file its accompanying brief, which Eagle Forum respectfully
submits will be directly useful to the Court in its consideration of its
jurisdiction in this matter and, thus, whether initial hearing en banc is
appropriate.
II. AUTHORITY TO FILE EAGLE FORUMS BRIEF
Motions under Rule 29(b) must explain the movants interest and
the reason why an amicus brief is desirable and why the matters
asserted are relevant to the disposition of the case. FED. R.APP. P.
29(b). The Advisory Committee Note to the 1998 amendments to Rule
29 quotes Sup. Ct. R. 37.1 to emphasize the value ofamicus briefs that
bring a courts attention to relevant matter not raised by the parties:
An amicus curiae brief which brings relevant
matter to the attention of the Court that has notalready been brought to its attention by the
parties is of considerable help to the Court.
Id. (quoting Sup. Ct. R. 37.1). As explained in the next section, the
Eagle Forum brief presents relevant matters to this Court.
As now-Justice Samuel Alito wrote while serving on the U.S.
Court of Appeals for the Third Circuit, I think that our court would be
well advised to grant motions for leave to file amicus briefs unless it is
obvious that the proposed briefs do not meet Rule 29s criteria as
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3
broadly interpreted. I believe that this is consistent with the
predominant practice in the courts of appeals. Neonatology Assocs.,
P.A. v. Commr, 293 F.3d 128, 133 (3d Cir. 2002) (citing Michael E.
Tigar and Jane B. Tigar, Federal Appeals Jurisdiction and Practice
181 (3d ed. 1999) and Robert L. Stern,Appellate Practice in the United
States 306, 307-08 (2d ed. 1989)). Now-Justice Alito quoted the Tigar
treatise favorably for the statement that [e]ven when the other side
refuses to consent to an amicus filing, most courts of appeals freely
grant leave to file, provided the brief is timely and well-reasoned. 293
F.3d at 133.
III. FILING EAGLE FORUMS BRIEF WILL SERVE THE
COURTS RESOLUTION OF THE ISSUES RAISED
The Eagle Forum brief raises one primary issue: this Courts
jurisdiction over these appeals. See Eagle Forum Br. at 3-8. As the
Eagle Forum brief explains, the plaintiff received an administrative
award to back pay from the Chief Judge of this Court and included that
allegation in her pleadings below. Id. at 1-2. She also pleaded
jurisdiction under the Little Tucker Act, along with other jurisdictional
bases. Id. at 2. Under 28 U.S.C. 1295(a)(2), however, so-called mixed
Little Tucker Act cases that incorporate equitable or declaratory actions
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under other authority with a Little Tucker Act claim must be appealed
to the U.S. Court of Appeals for the Federal Circuit. See id. at 3-4, 6-8;
U.S. v. Hohri, 482 U.S. 64, 73 (1987); Brant v. Cleveland Nat. Forest
Service, 843 F.2d 1222, 1223-24 (9th Cir. 1988). Because federal courts
have the obligation to consider their jurisdiction sua sponte, and no
party has briefed the jurisdictional issues that the Eagle Forum brief
raises, amicus Eagle Forum respectfully submits that its brief will aid
the Court as it considers whether to take the Executive defendants
unusual suggestion for an initial hearing en banc.
Because this Court has a jurisdictional and non-constitutional
basis on which to resolve this litigation, without considering the
constitutional question that the Executive defendants pose in their
petition, amicus Eagle Forum respectfully submits that this case
presents a prime candidate for a three-judge panel to clear these issues.
See Eagle Forum Br. at 8-9. Under the circumstances, taking this case
en banc now would be premature.
CONCLUSION
WHEREFORE, movant Eagle Forum respectfully requests leave
to file the accompanying amicus curiae brief.
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Dated: April 30, 2012 Respectfully submitted,
_____________________________________
Lawrence J. Joseph, Cal. Bar #154908
1250 Connecticut Avenue, NW
Suite 200
Washington, DC 20036
Tel: (202) 669-5135
Fax: (202) 318-2254
Email: [email protected]
Counsel for Movant Eagle ForumEducation & Legal Defense Fund
/s/ Lawrence J. Joseph
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CERTIFICATE OF SERVICE
I hereby certify that on April 30, 2012 I electronically transmitted
the foregoing document and the accompanying amicus brief and
disclosure statement to the Clerk for filing and transmittal of a Notice
of Electronic Filing to the participants in this appeal, all of whom are
registered CM/ECF users, and I understand that service will be
accomplished by the appellate CM/ECF system.
Dated: April 30, 2012 Respectfully submitted,
Lawrence J. Joseph, Cal. Bar #154908
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
Counsel for Movant Curiae Eagle Forum
Education & Legal Defense Fund
/s/ Lawrence J. Joseph
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Nos. 12-15388, 12-15409 (Consolidated)
United States Court of Appeals for the Ninth Circuit
KARENGOLINSKI,
Plaintiff-Appellee,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants-Appellees,
THEBIPARTISANLEGALADVISORYGROUPOFTHE
U.S.HOUSEOFREPRESENTATIVES,
Intervener-Defendant-Appellant.
KARENGOLINSKI,Plaintiff-Appellee,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al.,
Defendants-Appellant,
THEBIPARTISANLEGALADVISORYGROUPOFTHE
U.S.HOUSEOFREPRESENTATIVES,
Intervener-Defendant.
ON APPEAL FROM U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
AMICUS CURIAEBRIEF OF EAGLE FORUM EDUCATION
& LEGAL DEFENSE FUND IN OPPOSITION TO PETITION
FOR INITIAL HEARING EN BANC
Lawrence J. Joseph
Cal. State Bar No. 154908
1250 Connecticut Ave. NW, Ste. 200Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
Counsel for Amicus Curiae
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i
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the FEDERAL RULES OF APPELLATE
PROCEDURE, amicus curiae Eagle Forum Education & Legal Defense
Fund makes the following disclosures:
1) For non-governmental corporate parties please list all parent
corporations: None.
2) For non-governmental corporate parties please list all
publicly held companies that hold 10% or more of the partys stock:
None.
Dated: April 30, 2012 Respectfully submitted,
Lawrence J. Joseph, Cal. S.B. #1549081250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
Counsel for Amicus Curiae Eagle
Forum Education & Legal Defense
Fund
/s/ Lawrence J. Joseph
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TABLE OF CONTENTS
Corporate Disclosure Statement ................................................................. iTable of Contents ........................................................................................ iiTable of Authorities ...................................................................................iiiIdentity, Interest and Authority to File .................................................... 1Statement of the Case ................................................................................ 1Summary of Argument ............................................................................... 2
Argument .................................................................................................... 3I. Because the District Courts Jurisdiction Relied in Part
on the Little Tucker Act, Appellate Jurisdiction Lies in
the U.S. Court of Appeals for the Federal Circuit ........................... 3A. The Traditional Routes to Equitable and
Declaratory Relief Do Not Provide a Waiver of
Sovereign Immunity for Money Damages .............................. 4B. Other than the Little Tucker Act, the Routes to
Monetary Relief Are Unavailable ............................................ 5
C. 28 U.S.C. 1295(a)(2) Requires that MixedLittle Tucker Act Cases Go to the Federal Circuit ................. 6
II. The Executive Defendants Have Not Shown a Basis forInitial Hearing En Banc.................................................................... 8
Conclusion ................................................................................................... 9
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iii
TABLE OF AUTHORITIES
CASES
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ................ 5-6
Bowen v. Massachusetts, 487 U.S. 879 (1988) ........................................... 6
Brant v. Cleveland Nat. Forest Service,
843 F.2d 1222 (9th Cir. 1988) .............................................................. 7
City of Los Angeles v. County of Kern, 581 F.3d 841 (9th Cir. 2009) ....... 9
Consejo de Desarrollo Economico de Mexicali, A.C. v. United States,
482 F.3d 1157 (9th Cir. 2007) .............................................................. 6
Davis v. Passman, 442 U.S. 228 (1979) ..................................................... 6
Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) .................................... 6
Edelman v. Jordan, 415 U.S. 651 (1974) ................................................... 5
Ex parte Young, 209 U.S. 123 (1908) ......................................................... 4
F.D.I.C. v. Meyer, 510 U.S. 471 (1994) ...................................................... 3
Hagans v. Lavine, 415 U.S. 528 (1974)...................................................... 9
In re All Asbestos Cases, 849 F.2d 452 (9th Cir. 1988) ............................. 8
Lockhart v. Leeds, 195 U.S. 427 (1904) ..................................................... 7
McGuire v. U.S., 550 F.3d 903 (9th Cir. 2008) .......................................... 4
Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997) ............... 7
Molzof v. U.S., 502 U.S. 301 (1992) ........................................................... 5
Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243 (D.C. Cir. 1982) ........ 5
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) .......... 9
U.S. v. Hohri, 482 U.S. 64 (1987) ............................................................ 6-7
STATUTES
1 U.S.C. 7 .................................................................................................. 2
5 U.S.C. 702 .............................................................................................. 5
28 U.S.C. 1295(a)(2) ....................................................................... 2, 4, 6-8
28 U.S.C. 1346(a)(2) ............................................................................... 2-7
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28 U.S.C. 1491(a)(1) .................................................................................. 6
28 U.S.C. 1631........................................................................................... 4
28 U.S.C. 2671-2680, Federal Tort Claims Act ..................................... 5
28 U.S.C. 2680(a) ...................................................................................... 5RULES AND REGULATIONS
FED.R.APP.P. 29(c)(5) ............................................................................... 1
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1
IDENTITY, INTEREST AND AUTHORITY TO FILE
Amicus curiae Eagle Forum Education & Legal Defense Fund
(Eagle Forum), a nonprofit Illinois corporation, submits this amicus
brief with the accompanying motion for leave to file.1 Founded in 1981,
Eagle Forum has consistently defended traditional American values,
including marriage defined as the union of husband and wife. For these
reasons, Eagle Forum has a direct and vital interest in the issues before
this Court.
STATEMENT OF THE CASE
An employee of this Court, Karen Golinski, began this case in an
Employee Dispute Resolution Plan proceeding in this Court. Second
Am. Compl. 47. As a result of that process, Chief Judge Kozinski
sitting in his administrative capacity ordered the Executive defendants
to allow Ms. Golinski to add her same-sex spouse to her family health
plan, notwithstanding that federal law defines spouse and marriage
to apply only with respect to a legal union between one man and one
1 By analogy to FED. R.APP. P. 29(c)(5), the undersigned counsel
certifies that: counsel for amicus authored this brief in whole; no
counsel for a party authored this brief in any respect; and no person or
entity other than amicus, its members, and its counsel contributed
monetarily to this briefs preparation or submission.
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woman as husband and wife. 1 U.S.C. 7. He also awarded her back
pay to cover the time when she paid for the additional insurance
coverage as out-of-pocket costs. Second Am. Compl. 55. This action
ensued, first as a mandamus action to enforce the Chief Judges
administrative orders and then, by amendment, via the current
complaint. Id. 59-62. As now amended, Ms. Golinskis complaint
pleads jurisdiction based in part on the Little Tucker Act, 28 U.S.C.
1346(a)(2). Id. 11, 55. As is customary and for good reason, the
complaint includes a general prayer for such other and further relief as
the Court may deem just and proper. Id. at 17:17. The District Court
ruled for Ms. Golinski without addressing back pay, and the Executive
defendants and the intervener-defendant both appealed to this Court.
SUMMARY OF ARGUMENT
Ms. Golinski unmistakably pleaded, and the District Court
unmistakably had, jurisdiction based in part on the Little Tucker Act,
28 U.S.C. 1346(a)(2). See Second Am. Compl. 11, 55. She also had an
traditional action for equitable and declaratory relief, and 28 U.S.C.
1295(a)(2) requires that appeals of such mixed cases go to the U.S.
Court of Appeals for the Federal Circuit, not the regional courts of
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appeals like this Court. As such, this Court lacks jurisdiction for these
appeals and should transfer them to the Federal Circuit.
Given the presence of a non-constitutional basis and a
jurisdictional one at that to avoid the Executive defendants proffered
constitutional issue, this Court should as a practical matter and must
as a jurisdictional matter resolve the jurisdictional question first.
Amicus Eagle Forum respectfully submits that this presents the type of
issue-clearing work of a three-judge panel, not an initial en banc panel.
ARGUMENT
I. BECAUSE THE DISTRICT COURTS JURISDICTION
RELIED IN PART ON THE LITTLE TUCKER ACT,
APPELLATE JURISDICTION LIES IN THE U.S. COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
As summarized in the Statement of the Case, the District Courts
jurisdiction over the entire dispute between Ms. Golinski and the
defendants and intervener-defendant plainly relies in part on the Little
Tucker Act. Indeed, Ms. Golinski specifically pleaded her complaint to
that effect. Second Am. Compl. 11.
Of course, plaintiffs lack jurisdiction to sue the federal
government without a waiver of sovereign immunity. F.D.I.C. v. Meyer,
510 U.S. 471, 475 (1994). Moreover, [i]t rests with Congress to
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determine not only whether the United States may be sued, but in what
courts the suit may be brought. McGuire v. U.S., 550 F.3d 903, 913-14
(9th Cir. 2008) (quoting Minnesota v. United States, 305 U.S. 382, 388
(1939)). As explained in this Section, Congress authorized such mixed
suits to begin in the U.S. District Courts, 28 U.S.C. 1346(a)(2), but
required that appeals in all such cases go to the U.S. Court of Appeals
for the Federal Circuit. 28 U.S.C. 1295(a)(2). Of course, ifamicus Eagle
Forum is correct in its jurisdictional analysis, the correct course is for
this Court to transfer these appeals to the Federal Circuit. 28 U.S.C.
1631. That workaday jurisdictional analysis is the stuff of three-judge
panels, not initial hearings en banc.
A. The Traditional Routes to Equitable and DeclaratoryRelief Do Not Provide a Waiver of Sovereign
Immunity for Money Damages
Before analyzing the Little Tucker Act issues, amicus Eagle
Forum first establishes that no other basis provides jurisdiction for the
back-pay issue. Officer suits for prospective injunctive relief against
ongoing violations of federal law can be an exception to sovereign
immunity, Ex parte Young, 209 U.S. 123 (1908), but that exception does
not allow money damages or even retroactive payment of benefits
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wrongfully withheld. Edelman v. Jordan, 415 U.S. 651, 678 (1974).
Similarly, 5 U.S.C. 702 eliminates the sovereign immunity defense in
all equitable actions for specific relief against a Federal agency or
officer, Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C.
Cir. 1982) (quotingS.REP.NO. 94-996, 8 (1976)), but its express terms
omit money damages. 5 U.S.C. 702. As such, the routes to equitable
and declaratory relief are foreclosed here as to monetary relief.
B. Other than the Little Tucker Act, the Routes to
Monetary Relief Are Unavailable
To recover money damages, plaintiffs must proceed under a
waiver of sovereign immunity for such damages. The Federal Tort
Claims Act (FTCA) waives sovereign immunity for tort-related
damages, but that waiver excludes claim[s] based upon an act or
omission of an employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such statute or
regulation be valid. 28 U.S.C. 2680(a). Falling outside FTCAs waiver
of sovereign immunity forecloses tort damages. Molzof v. U.S., 502 U.S.
301, 304-05 (1992) (before FTCA, sovereign immunity prevented
those injured by the negligent acts of federal employees from obtaining
redress through lawsuits). Finally, a Bivens action covers some equal-
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protection violations, Davis v. Passman, 442 U.S. 228, 247-49 (1979),
but only for individual-capacity defendants: [A] Bivens action can be
maintained against a defendant in his or her individual capacity only,
and not in his or her official capacity. Consejo de Desarrollo Economico
de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)
(quoting Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987)).
Ms. Golinski sued the federal officer defendant in his official capacity.
C. 28 U.S.C. 1295(a)(2) Requires that Mixed Little
Tucker Act Cases Go to the Federal Circuit
For damage claims not sounding in tort, the Little Tucker Act
provides district-court jurisdiction for nontax claims up to $10,000, and
the Tucker Act provides jurisdiction for all amounts. 28 U.S.C.
1346(a)(2), 1491(a)(1). Unless withdrawn or duplicated by another
statute, 1491(a)(1)s jurisdiction is exclusive. Eastern Enterprises v.
Apfel, 524 U.S. 498, 519-20 (1998); cf. Bowen v. Massachusetts, 487 U.S.
879, 910 n.48 (1988). For mixed injunctive and Little Tucker Act
cases, the Federal Circuit has exclusive appellate jurisdiction over
every appeal from a Tucker Act or nontax Little Tucker Act claim. U.S.
v. Hohri, 482 U.S. 64, 73 (1987) (emphasis in original). That specifically
includes mixed cases with nontax Little Tucker Act claims coupled
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with claims typically resolved in regional courts of appeals. Hohri, 482
U.S. at 78; 28 U.S.C. 1295(a)(2). That [the plaintiff] also seeks
declaratory and injunctive relief on grounds other than the Little
Tucker Act is of no moment. Brant v. Cleveland Nat. Forest Service,
843 F.2d 1222, 1223-24 (9th Cir. 1988) (Kozinski, J.). Here, the District
Courts jurisdiction was based in part on the Little Tucker Act,
which is dispositive of the locus for an appeal.
One might protest that the District Courts judgment did not
reach the issue of money damages or back pay, which makes the Little
Tucker Act superfluous. That is not the law. By asserting the Little
Tucker Act as a jurisdictional predicate, Second Am. Compl. 11,
alleging the entitlement to back pay, id. 55, re-alleging her prior
allegations in her contract-based count, id. 63, and seeking such other
and further relief as the Court may deem just and proper, id. at 17:17,
Ms. Golinski pleaded a contractual entitlement to back pay. Lockhart v.
Leeds, 195 U.S. 427, 436-37 (1904) (a complaints general prayer for
relief allows awarding relief not specifically pleaded); Metro-North
Commuter R. Co. v. Buckley, 521 U.S. 424, 455 (1997). In any event, the
plain language of the jurisdiction for appellate review applies if the
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jurisdiction of that court was based, in whole or in part, on section 1346
of this title. 28 U.S.C. 1295(a)(2). That plain language is not limited to
jurisdiction for judgments, but applies instead to the underlying
jurisdiction of the District Court to entertain the action:
[S]ection 1295(a) makes the jurisdiction of the
Federal Circuit dependent not on the claim
currently before an appellate court but on the
jurisdiction of the district court at the time the
case was brought before the district court.
In re All Asbestos Cases, 849 F.2d 452, 453-54 (9th Cir. 1988). As such,
this appeal appears to belong in the Federal Circuit. While the parties
ultimately may dispute this analysis, amicus Eagle Forum respectfully
submits that this jurisdictional analysis would obviate indeed
prohibit this Courts engaging in the constitutional analysis that
forms the basis for the petition for initial hearing en banc.
II. THE EXECUTIVE DEFENDANTS HAVE NOT SHOWN A
BASIS FOR INITIAL HEARING EN BANC
For several reasons, the Executive defendants petition cannot
sustain initial hearing en banc. First, the Court has a credible
jurisdictional basis to avoid reaching the constitutional merits that the
petition asks this Court to reach. Obviously, if the Court has a non-
constitutional basis on which to resolve the dispute before it, the Court
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should not reach the constitutional merits. City of Los Angeles v. County
of Kern, 581 F.3d 841, 846 (9th Cir. 2009); Hagans v. Lavine, 415 U.S.
528, 546-49 (1974). Second, that admonition rises to a prohibition when
the non-constitutional issue is that the Court lacks subject-matter
jurisdiction: For a court to pronounce upon the meaning or the
constitutionality of a state or federal law when it has no jurisdiction to
do so is, by very definition, for a court to act ultra vires. Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 102 (1998). Third, as a
practical matter, the Court will need to resolve the jurisdictional issue,
which even if it resolves in favor of jurisdiction in this Court is
nonetheless an issue properly decided by a three-judge panel, not the en
banc Court. Fourth and finally, the Executive defendants do not
identify a split in authority either in this Circuit or between the
circuits that requires immediate resort to an en banc panel.
CONCLUSION
The petition for initial hearing en banc should be denied.
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Dated: April 30, 2012 Respectfully submitted,
Lawrence J. Joseph
D.C. Bar #4647771250 Connecticut Ave. NW, Ste. 200
Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
Counsel for Amicus Curiae Eagle
Forum Education & Legal Defense
Fund
/s/ Lawrence J. Joseph
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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the FEDERAL RULES OFAPPELLATE
PROCEDURE, and Circuit Rule 29-2(c)(2), I certify that the foregoing
amicus curiae brief is proportionately spaced, has a typeface of Century
Schoolbook, 14 points, and contains 1,820 words, including footnotes,
but excluding this Brief Form Certificate, the Table of Citations, the
Table of Contents, the Corporate Disclosure Statement, and the
Certificate of Service. The foregoing brief was created in Microsoft Word
2010, and I have relied on that softwares word-count feature to
calculate the word count.
Dated: April 30, 2012 Respectfully submitted,
Lawrence J. JosephD.C. Bar #464777
1250 Connecticut Ave. NW, Ste. 200
Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
Counsel for Amicus Curiae Eagle
Forum Education & Legal DefenseFund
/s/ Lawrence J. Joseph
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CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of April, 2012, I electronically
filed the foregoing amicus curiae brief with the Clerk of the Court for
the U.S. Court of Appeals for the Ninth Circuit as an exhibit to the
accompanying motion for leave to file by using the appellate CM/ECF
system. I further certify that, on that date, the appellate CM/ECF
systems service-list report showed that none of the participants in the
case were unregistered for CM/ECF use.
Lawrence J. Joseph, D.C. Bar #464777
1250 Connecticut Ave, NW, Suite 200
Washington, DC 20036
Tel: 202-669-5135
Fax: 202-318-2254
Email: [email protected]
/s/ Lawrence J. Joseph
Case: 12-15409 04/30/2012 ID: 8163297 DktEntry: 23-2 Page: 17 of 17 (24 of