3:10-cv-00257 #104
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8/6/2019 3:10-cv-00257 #104
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MICHAEL F. HERTZDeputy Assistant Attorney GeneralMELINDA HAAGUnited States AttorneyARTHUR R. GOLDBERGAssistant Branch Director
CHRISTOPHER R. HALLTrial AttorneyUnited States Department of JusticeCivil Division, Federal Programs Branch
P.O. Box 883Washington, D.C. 20044Telephone: (202) 514-4778Facsimile: (202) 616-8470Email: Christopher.Hall@usdoj.gov
Attorneys for Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
KAREN GOLINSKI
Plaintiff,
v.
THE UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT, et al.
Defendants.
____________________________________
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No. C 3:10-00257-JSW
DEFENDANTS MOTION TO ENLARGE
TIME TO RESPOND TO PLAINTIFFS
SECOND AMENDED COMPLAINT
Defendants, by and through undersigned counsel, hereby move the Court for an
enlargement of time of seventy-five days in which to respond to Plaintiffs Second Amended
Complaint, from May 4, 2011, through and including July 18, 2011. In support of this Motion,
Defendants respectfully submit the following:
1. On April 14, 2011, pursuant to the Courts March 16, 2011 Order Granting
Motion to Dismiss and Denying Motion for Preliminary Injunction [Docket No. 98], Plaintiff
filed her Second Amended Complaint [Docket No. 102]. Pursuant to the Courts March 16
Order, Defendants response to the Second Amended Complaint is due on May 4, 2011.
Defendants Motion to Enlarge Time to Respond to Plaintiffs Second Amended Complaint
3:10cv257-JSW
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mailto:Christopher.Hall@usdoj.govmailto:Christopher.Hall@usdoj.govmailto:Christopher.Hall@usdoj.gov -
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2. Plaintiff filed her original Complaint on January 20, 2010 [Docket No. 1].
Neither her original Complaint nor her First Amended Complaint, filed on March 8, 2010
[Docket No. 30], asserted a claim challenging the constitutionality of Section 3 of the Defense of
Marriage Act (DOMA), 1 U.S.C. 7. See generally Order of March 16 at 5-6 (noting that theconstitutionality of DOMA is not directly challenged in this case); id. at 11-12 (grant[ing]
Plaintiff leave to amend [her complaint] to attempt to plead a claim that the Court may
legitimately address.).
3. In contrast to Plaintiffs prior two Complaints, Plaintiffs Second Amended
Complaint now includes a claim challenging the constitutionality of Section 3 of DOMA. Pl.s
2d Am. Compl. 72; see also id., Prayer for Relief. Thus, the constitutionality of Section 3 of
DOMA is now directly at issue for the first time in this action, approximately fifteen months after
it was originally filed.
4. On February 23, 2011, approximately seven weeks before Plaintiff filed her
Second Amended Complaint, the Attorney General announced that the Executive Branch
believes that Section 3 of DOMA is properly subject to heightened constitutional scrutiny and is
unconstitutional under that standard. Pursuant to that determination, the Department of Justice
will not defend DOMA in pending litigation, but, as the Attorney General has previously stated,
is interested in providing Congress a full and fair opportunity to participate in cases, including
this matter, challenging the constitutionality of Section 3 of DOMA.
5. In light of the Attorney Generals determination, the Bipartisan Legal Advisory
Group of the United States House of Representatives (BLAG) moved on this date to intervene
in this action to defend the constitutionality of DOMA [Docket No. 103]. Defendants have not
yet responded to BLAGs motion in this case. Likewise, Plaintiff has not yet responded to that
motion.
6. Pursuant to L.Civ.R. 6-3(a)(1) and (3), the requested enlargement of seventy-five
days is necessary to permit BLAG and its outside counsel a sufficient opportunity to effectively
address the issue of DOMAs constitutionality and to prevent substantial harm to its interests.
Declaration of Kerry W. Kircher, May 4, 2011, at 5-15 (Kircher Decl.) (Attachment A). In
Defendants Motion to Enlarge Time to Respond to Plaintiffs Second Amended Complaint
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particular, BLAG is the only federal government entity that is in a position to formulate and
articulate to [this Court] arguments that the statute is constitutional []. Id. 13. The ability of
BLAG and its outside counsel to present such arguments here is constrained by the numerous
other matters in which BLAG must intervene to defend the constitutionality of Section 3 ofDOMA, id. 5, and the fact that BLAG only became involved in DOMA-related litigation on
March 9, 2011, when it formally determined that it would defend Section III of DOMA in civil
actions in which the statutes constitutionality has been, or might be, challenged[,] and
instructed the General Counsel of the House of Representatives to coordinate that legal defense
and retain outside counsel to conduct such defense. Id. 3.1
7. The logistical constraints upon BLAGs time and resources, and those of its
outside counsel, are significant. In addition to this matter, BLAG has already moved to intervene
in three other cases where the constitutionality of Section 3 is challenged: Windsor v. United
States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. Office of Personnel Management, No. 3:10-cv-
01750 (D. Conn.); and Dragovich v. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal.). Id. 6.
In Dragovich, the plaintiffs are opposing BLAGs motion to intervene, which will necessitate
collateral litigation on that issue before BLAG is even able to present substantive arguments as to
the constitutionality of DOMA. Id. In Windsor, the court has scheduled a status conference for
May 9, 2011, at which time the plaintiffs are expected to request the court to require BLAG to
file a motion to dismiss by May 25, 2011. Id.
8. In addition to those district court actions, BLAG anticipates that it will move to
intervene in the Court of Appeals for the First Circuit in the consolidated matters of Gill v. Office
of Personnel Management, No. 10-2207 (1 Cir.); Commonwealth of Massachusetts v. Unitedst
States Dept of Health and Human Services, et al., No. 10-2204 (1 Cir.); and Hara v. Office ofst
The House General Counsel retained the law firm of King & Spalding to represent BLAG on1
April 14, 2001. Kircher Decl. 4. Pursuant to that retainer, Paul Clement, then a partner at King
& Spalding, was to be the lead attorney. Id. However, King & Spalding determined to withdraw
from its representation of BLAG on April 25, 2011, and Mr. Clement subsequently resigned from
the firm. Id. Mr. Clement subsequently became a Partner with Bancroft PLLC; the House
General Counsel has retained that firm to represent BLAG in these matters. Id.
Defendants Motion to Enlarge Time to Respond to Plaintiffs Second Amended Complaint
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Personnel Management, No. 10-2214 (1 Cir.). Id. 7.st
9. Further, BLAG anticipates that it will soon move to intervene in five pending
immigration and bankruptcy cases where the constitutionality of Section 3 of DOMA is directly
at issue. Id. 8-9. Although BLAG has not yet moved to intervene in those matters, once it hasdone so, it will face existing Fed. R. Civ. P. 12 deadlines on May 31 and June 17, 2011, in two
pending cases and a June 17, 2011 substantive hearing date in a third. Id. 8-9, 11.
10. Each of the six attorneys in the Office of the General Counsel to the House of
Representatives are and will continue to be responsible for numerous on-going matters other than
DOMA litigation, and none will be able to devote his or her full time to work on this or other
DOMA matters during the next four to six weeks. Id. 12.
11. Likewise, the outside counsel retained by BLAG to represent it in this and other
DOMA matters, Paul Clement and two other attorneys with the law firm of Bancroft PLLC, are
and remain responsible for significant on-going matters other than DOMA litigation. Id. 12.
For example, in addition to his work in this and other DOMA-related matters, Mr. Clement has
four oral arguments before the United States Courts of Appeals in the next five weeks, including
an en banc oral argument before the United States Court of Appeals for the Fifth Circuit on May
23, 2011. Id.
12. Pursuant to Local Civil Rules 6-1 and 6-3(a), undersigned counsel made
significant but ultimately unsuccessful efforts to reach agreement with Plaintiffs counsel as to a
stipulated order that would permit a sufficient opportunity for BLAG to effectively address the
constitutionality of DOMA, if its motion to intervene is granted. Declaration of Christopher R.
Hall, May 4, 2011, at 4 (Hall Decl.) (Attachment B). In particular, between April 28 and
May 3, 2011, undersigned counsel initiated multiple telephone conversations and electronic mail
exchanges with Plaintiffs counsel seeking such a stipulated order; those efforts involved several
offers by Defendants to compromise, but ultimately they proved unsuccessful. Id. Ultimately,
after the parties failed to reach an agreement on May 3, id., Defendants were forced to file the
instant motion.
13. If granted, this would be the fourth time modification in this action, and the
Defendants Motion to Enlarge Time to Respond to Plaintiffs Second Amended Complaint
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second requested by Defendants. Hall Decl. 5. One of the previous three modifications was
entered by the Clerk of the Court sua sponte [Docket No. 62]. Id. The other modification the
enlargement of a briefing schedule and rescheduling of a hearing date was granted in response
to Plaintiffs request, as to which Plaintiff did not confer beforehand with Defendants, but whichDefendants subsequently did not oppose [Docket Nos. 77-80]. Id.
14. The requested enlargement would have no effect on the schedule for this case, as
there is no schedule in place and, in any event, the parties anticipate that the case will be resolved
through dispositive motions. Id. 6.
Dated: May 4, 2011
Respectfully Submitted,
MICHAEL F. HERTZDeputy Assistant Attorney General
MELINDA HAAGUnited States Attorney
ARTHUR R. GOLDBERGAssistant Branch Director
/s/ Christopher R. HallCHRISTOPHER R. HALLD.C. Bar No. 468827
Trial AttorneyU.S. Department of JusticeCivil Division, Federal Programs BranchP.O. Box 883Washington, D.C. 20044(202) 514-4778 (telephone)(202) 616-8470 (fax)
Attorneys for Defendants
Defendants Motion to Enlarge Time to Respond to Plaintiffs Second Amended Complaint
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MICHAEL F. HERTZDeputy Assistant Attorney GeneralMELINDA HAAGUnited States AttorneyARTHUR R. GOLDBERGAssistant Branch Director
CHRISTOPHER R. HALLTrial AttorneyUnited States Department of JusticeCivil Division, Federal Programs Branch
P.O. Box 883Washington, D.C. 20044Telephone: (202) 514-4778Facsimile: (202) 616-8470Email: Christopher.Hall@usdoj.gov
Attorneys for Defendants
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
KAREN GOLINSKI
Plaintiff,
v.
THE UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT andJOHN BERRY, Director of the Office ofPersonnel Management, in his officialcapacity
Defendants.
____________________________________
)))))))
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No. C 4:10-00257-SBA
[PROPOSED] ORDER
Upon consideration of Defendants Motion to Enlarge Time to Respond to
Plaintiffs Second Amended Complaint, and any opposition thereto, the Court hereby
GRANTS Defendants motion and orders that the time to respond to Plaintiffs Second
Amended Complaint be enlarged through and including July 18, 2011.
IT IS SO ORDERED.
Case3:10-cv-00257-JSW Document104-3 Filed05/04/11 Page1 of 2
mailto:Steven.Bressler@usdoj.govmailto:Steven.Bressler@usdoj.govmailto:Steven.Bressler@usdoj.gov -
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Dated: __________ _______________________________ Hon. JEFFREY S. WHITEUnited States District Judge
[Proposed] Order
4:10cv257-JSW
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