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Kerry W. Kircher, General Counsel (DC Bar 386816)[email protected] Pittard, Deputy General Counsel (DC Bar 482949)[email protected]

Christine Davenport, Sr. Asst Counsel (NJ Bar 043682000)[email protected] W. Konar, Asst Counsel (DC Bar 979176)[email protected] B. Tatelman, Asst Counsel (VA Bar 66008)[email protected] Beth Walker, Asst Counsel (DC Bar 501033)[email protected]

OFFICE OF GENERAL COUNSELU.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515202-225-9700 (phone)202-226-1360 (fax)

Counsel for Proposed Intervenor the Bipartisan Legal

Advisory Group of the U.S. House of Representatives

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

Western Division

) No. 2:12-cv-00887-CBM (AJWx)TRACEY COOPER-HARRIS and )MAGGIE COOPER-HARRIS, ) NOTICE OF MOTION AND

) UNOPPOSED MOTION OFPlaintiffs, ) PROPOSED INTERVENOR

) FOR CANCELLATION OF

v. ) PRO HAC VICE NOTICE) OR WAIVER OFLOCAL

UNITED STATES OF AMERICA, et al., ) RULE 83-2.3)

Defendants. ) Hearing: May 14, 2012) Time: 10:00 a.m.) Hon. Consuelo B. Marshal

Case 2:12-cv-00887-CBM-AJW Document 29 Filed 04/13/12 Page 1 of 9 Page ID #:232

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PLEASE TAKE NOTICE that Proposed Intervenor the Bipartisan Legal

Advisory Group of the U.S. House of Representatives (House) will move this

Court on May 14, 2012, at 10:00 a.m., or as soon thereafter as counsel may be

heard, in the U.S. District Court, Courtroom 2, 312 North Spring Street, Los

Angeles, California 90012, for an order granting the Houses Motion for

Cancellation ofPro Hac Vice Notice or Waiver of Local Rule 83-2.3.

UNOPPOSED MOTION FOR CANCELLATION OFPRO HAC VICE

NOTICE OR WAIVER OF LOCAL RULE 83-2.3

Pursuant to 2 U.S.C. 130f(a) and Rule 7(b) of the Federal Rules of Civil

Procedure, and for the reasons set forth in the accompanying Memorandum of

Points and Authorities, the House respectfully moves for entry of an Order

cancelling the Notice ofPro Hac Vice Application and Filing Fee Due (Apr. 4,

2012) (ECF No. 18) (the Notice), or, in the alternative, for waiver of the

application of Local Rule 83-2.3 in this case to Paul D. Clement, Esq., H.

Christopher Bartolomucci, Esq., Conor B. Dugan, Esq. and Nicholas J. Nelson,

Esq. of the law firm of Bancroft PLLC, 1919 M Street, NW, Suite 470,

Washington, D.C. 20036.

Pursuant to Local Rule 7-3, on April 13, 2012, undersigned counsel

conferred with Christine Sun, counsel for the plaintiffs, and Jean Lin, Senior Trial


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Counsel with the Department of Justice and counsel for the defendants. Both

advised that their clients do not oppose this motion.

A proposed Order is submitted herewith.

MEMORANDUM OF POINTS AND AUTHORITIES

On April 2, 2012, the House moved to intervene in this case as a party

defendant to defend the constitutionality of Section 3 of the Defense of Marriage

Act (DOMA), codified at 1 U.S.C. 7, and 38 U.S.C. 101(3), (31). See

Unopposed Mot. of the [House] for Leave to Intervene (Apr. 2, 2012) (ECF No.

17). The House so moved so because the Department of Justice has abdicated its

responsibility to defend those statutes. See Mem. of P. & A. in Supp. of

Unopposed Mot. of the [House] for Leave to Intervene at 3-6 (Apr. 2, 2012) (ECF

No. 19) (House Intervention Memo). The House is represented in this matter by

the law firm of Bancroft PLLC and specifically by four of its attorneys, Messrs.

Clement, Bartolomucci, Dugan and Nelson pursuant to a Contract for Legal

Services entered into between Bancroft and House General Counsel Kerry W.

Kircher in April 2011 (Contract for Legal Services). A copy of the Contract for

Legal Services is attached as Exhibit A. The House General Counsel and his staff

are Of Counsel in this matter.

On April 4, 2012, the Clerk of the Court issued to Messrs. Clement,

Bartolomucci, Dugan and Nelson the Notice which recites that:


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Your Pro Hac Vice application has not been received by

the court. Please return your completed Application of

Non-Resident Attorney to appear in a Specific Case,

form G-64, or a copy of the Notice of Electronic Filing of

your application and the $325.00 fee and this notice

immediately. Out-of-state federal government

employees who are not employed by the U.S.

Department of Justice are required to file a Pro Hac Vice

application; no filing fee is required.

Notice at 1.

As we now explain, this Court should (i) cancel the Notice, pursuant to 2

U.S.C. 130f(a) which explicitly exempts the Bancroft attorneys from

compliance with any requirements for admission to practice before this Court;

and/or (ii) cancel the filing fee requirement as to Messrs. Clement, Bartolomucci,

Dugan and Nelson, pursuant to the Mem. of Leonidas Ralph Mecham, Director,

Administrative Office of the United States Courts, to All Clerks, United States

Courts (Aug. 10, 1998) (Mecham Memo), attached as Exhibit B. In the

alternative, the Court should (iii) waive the application of Local Rule 83-2.3 in this

case as to Messrs. Clement, Bartolomucci, Dugan and Nelson.


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ARGUMENT

I. Bancroft Is Statutorily Exempt from This Courts Admission

Requirements in This Case.

Section 130f(a) of title 2 of the United States Code provides, in pertinent

part, that:

The General Counsel of the House of Representatives

and any other counsel in the Office of the General

Counsel of the House of Representatives, including any

counsel specially retained by the Office of General

Counsel, shall be entitled, for the purpose of performing

the counsel's functions, to enter an appearance in any

proceeding before any court of the United States . . .

without compliance with any requirements for admission

to practice before such court . . . .

(emphasis added).

The General Counsel of the House of Representatives defined in the

statute as the head of the Office of General Counsel established and operating

under clause 8 of rule II of the Rules of the House of Representatives, id.

130f(c)(1) currently is Mr. Kircher. See Press Release,Boehner Taps Kerry

Kircher to Serve as House General Counsel for 112th Congress (Jan. 3, 2011),


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attached as Exhibit C. Mr. Kircher specially retained Bancroft to represent the

House in this and other cases that challenge the constitutionality of DOMA Section

3. See Contract for Legal Services at 1, 4.

Accordingly, the Bancroft attorneys fall squarely within the language

including any counsel specially retained by the Office of General Counsel, 2

U.S.C. 130f(a), and, as such, are statutorily exempt from compliance with this

Courts admission-to-practice rules (Local Rule 83-2.3) and filing fee

requirements.

To date, the Bancroft attorneys have appeared on behalf of the House in ten

other federal cases that challenge the constitutionality of DOMA Section 3, and

none of the courts in which they have appeared has required them to be admitted

pro hac vice or to pay any filing fees including this Court inLui v. Holder, 2:11-

cv-01267 (C.D. Cal. 2011).1

1See also Civil Dockets for Torres-Barragan v. Holder, No. 10-55768 (9thCir.); Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.);

Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.);Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill.); Cozen OConnor v. Tobits,No. 2:11-cv-00045 (E.D. Pa.);Bishop v. United States, No. 4:04-cv-00848 (N.D.Okla.);Dragovich v. U.S. Dept of the Treasury, No. 4:10-cv-01564 (N.D. Cal.);Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal.); Windsor v.United States, No. 1:10-cv-08435 (S.D.N.Y.); Pedersen v. U.S. Office of Pers.

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


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II. The Mecham Memo Exempts Bancroft Attorneys from PayingPro Hac

Vice Fees.

The Mecham Memo provides, in pertinent part, that, [i] keeping with the

spirit of Judicial Conference policy . . .pro hac vice fees should not be charged to

federal government attorneys. Mecham Memo at 1. The provisions of the

Mecham Memo are reflected in the Notice itself. See Notice at 1 (no filing fee

required of [o]ut-of-state federal government attorneys who are not employed by

the U.S. Department of Justice).

In this case, the Bancroft attorneys plainly are acting as federal government

attorneys. Not only have they been retained by the House General Counsel, and

not only are they representing the House (part of the Article I branch of the federal

government) in the litigation, but here they are doing the job that constitutionally is

assigned to but in this case abandoned by the Executive Branch. See House

Intervention Memo at 3-6.

For this additional reason, the Court should cancel the Notice to the extent it

requires the Bancroft attorneys to pay filing fees.

III. Alternatively, This Court Should Waive thePro Hac Vice Application

and Fee Requirements.

Finally, and in the alternative, this Court can and should waive the

application in this case of Local Rule 83-2.3 (and the associated filing fees) as to

the Bancroft attorneys. Such a waiver would be in the spirit of Judicial


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Conference policy, Mecham Memo at 1, which presumably refers to the

promotion of comity between the various branches of the federal government.

Furthermore, such a waiver would be appropriate in light of the fact, as noted

above, that the Bancroft attorneys, are doing the job in this case that is

constitutionally assigned to the Executive Branch. Seesupra p. 6.

CONCLUSION

For all the foregoing reasons, the Houses motion should be granted.

Respectfully submitted,

/s/ Kerry W. Kircher

Kerry W. Kircher, General Counsel

Office of the General CounselU.S. House of Representatives

Counsel for Proposed Intervenor-Defendantthe Bipartisan Legal Advisory Group of the

U.S. House of Representatives

April 13, 2012


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CERTIFICATE OF SERVICE

I certify that on April 13, 2012, I served one copy of the foregoing Notice of

Motion and Unopposed Motion of Proposed Intervenor for Cancellation ofPro

Hac Vice Notice or Waiver of Local Rule 83-2.3, by CM/ECF on all registered

parties.

/s/ Kerry W. Kircher

Kerry W. Kircher


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Exhibit A

Case 2:12-cv-00887-CBM-AJW Document 29-1 Filed 04/13/12 Page 1 of 6 Page ID #:241

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Exhibit B


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Exhibit C


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Washington (Jan 3, 2011)

PRESS RELEASE

Boehner Taps Kerry K i rche r to Serve as House General Counsel for112th Congress

House Speaker-designate John Boehner (R-OH) today announced he has named

Kerry Kircher to serve as General Counsel for he U.S. House of Representatives for the 112th Congress.

Kircher, a native of Iowa and 1981 graduate of Michigan Law School, has served as Deputy General Counsel

for the House since 1996. He first joined the Office of the General Counsel in 1995.

Im very pleased Kerry has agreed to serve the Peoples House in this important post. He has been a

stalwart defender of the prerogatives and precedents of the House, and there is no individual I know who is

more ready or more qualified for the job. Im grateful for his willingness to serve, said Boehner. The

institution and the Members who serve it deserve continuity and professionalism in the offices that serve the

House. As is the case with all of the individuals who have agreed to serve in these key posts, Kerry more

than fulfills those needs.

The role of the House General Counsel is to represent and advise, on a non-partisan basis, House Members,

Committees, officers, employees and offices on matters arising from performance of their official duties.

Print version of this document

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Western Division

)

TRACEY COOPER-HARRIS and ) No. 2:12-cv-00887-CBM (AJWx)

MAGGIE COOPER-HARRIS, )

)

Plaintiffs, )

)

v. )

) )

UNITED STATES OF AMERICA, et al., )

)Defendants. )

)

UPON CONSIDERATION OF the Unopposed Motion of Proposed

Intervenor for Cancellation ofPro Hac Vice Notice or Waiver of Local Rule 83-

2.3 (Motion), and the entire record herein, it is by the Court on this ___ day of

______ 2012, ORDERED

That the Motion is GRANTED for all the reasons stated in the Memorandum

of Points and Authorities filed in support of the Motion. It is FURTHER

ORDERED

That the Notice ofPro Hac Vice Application and Filing Fee Due (Apr. 4,

2012) (ECF No. 18) be and hereby is CANCELLED.

___________________________________

CONSUELO B. MARSHALL

U.S. DISTRICT JUDGE

[PROPOSED] ORDER


2:12-cv-00887 #29

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