doma cases - motion to consolidate appeals
DESCRIPTION
Unopposed to Motion to Consolidate Appeals for Purposes of Briefing and Argument and to Modify Briefing Schedules. Filed by DOJ 11/18/2010AND TO MODIFY BRIEFING SCHEDULESTRANSCRIPT
IN THE UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUIT
COMMONWEALTH OF MASSACHUSETTS )Plaintiff-Appellee, )
) No. 10-2204v. )
)UNITED STATES DEPARTMENT OF HEALTH )AND HUMAN RESOURCES, et al., )
Defendants-Appellants. )))
DEAN HARA, )Plaintiff-Appellee/Cross-Appellant, )
)NANCY GILL, et al., )
Plaintiffs-Appellees )) Nos. 10-2207;
v. ) 10-2214)
OFFICE OF PERSONNEL MANAGEMENT, et al., )Defendants-Appellants/Cross-Appellees. )
)
UNOPPOSED MOTION TO CONSOLIDATE APPEALS FOR PURPOSES OF BRIEFING AND ARGUMENT
AND TO MODIFY BRIEFING SCHEDULES
For the reasons set forth below, the federal government appellants – United
States Department of Health and Human Resources, et al., and the Office of Personnel
Management, et al. – respectfully request that these related appeals be consolidated
for purposes of briefing and argument. Currently, the Court has established separate
briefing schedules for these cases, with the federal appellants’ opening brief due in
Case: 10-2204 Document: 00116137445 Page: 1 Date Filed: 11/18/2010 Entry ID: 5505288
Commonwealth of Massachusetts v. United States Department of Health and Human
Resources, et al., No. 10-2204, on December 13, 2010, and in Nancy Gill, et al. v.
Office of Personnel Management, et al., No. 10-2207, on December 27, 2010. Both
cases present challenges to the constitutionality of Section 3 of the Defense of
Marriage Act, 1 U.S.C. § 7; and Dean Hara v. Office of Personnel Management, et
al., No. 10-2214, is a cross-appeal in Gill. To conserve resources for the Court and
facilitate the orderly and efficient presentation, consideration and resolution of these
cases, the federal appellants respectfully request that the Court enter the following
consolidated briefing schedule for the appeals in Gill and Massachusetts, and the
cross-appeal in Hara. We further request that the Court schedule argument for these
appeals before the same panel on the same day.
1. Section 3 of the Defense of Marriage Act (“DOMA”) defines, for the
purposes of any federal law, the word “marriage” as a “legal union between one man
and one woman” and the word “spouse” as “a person of the opposite sex who is a
husband or a wife.” 1 U.S.C. § 7. In Gill, No. 10-2207, plaintiffs are same-sex
couples who are married under Massachusetts law. They are seeking federal benefits
that they assert are available to opposite-sex married couples but by operation of
Section 3 of DOMA are not available to them. Plaintiffs challenged the
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constitutionality of Section 3 of DOMA, arguing that the statute denies them equal
protection of the law.
The district court granted summary judgment to plaintiffs, holding that Section
3 of DOMA violates equal protection because it is not rationally related to a
legitimate government interest. The district court enjoined application of Section 3
of DOMA to plaintiffs but, upon joint motion of the parties, stayed this injunction
pending appeal. Defendants appealed this judgment in No. 10-2207. One plaintiff,
Dean Hara, in No. 10-2214, cross-appealed the district court’s dismissal of one of his
claims for lack of standing.
2. In Massachusetts, No. 10-2207, Massachusetts challenged the application
of Section 3 of DOMA to programs where it receives funding from the federal
government, arguing that the statute violates the Spending Clause and the Tenth
Amendment.
The district court granted summary judgment to Massachusetts, holding that
Section 3 of DOMA violates the Spending Clause by requiring the state to engage in
unconstitutional discrimination against its own citizens in administering federally
funded programs. In so doing, the district court referenced its opinion in Gill, and
Gill’s holding on equal protection was the sole basis for the Spending Clause ruling
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in Massachusetts. The district court also held that Section 3 of DOMA violates the
Tenth Amendment by exceeding federal authority under the Spending Clause and by
intruding into an area of exclusive state authority. The district court enjoined
application of Section 3 of DOMA to Massachusetts but, as in Gill, upon the parties’
joint motion, stayed this injunction pending appeal.
3. Both of these cases present the identical legal issue of whether Section 3 of
DOMA violates principles of equal protection. This issue is presented directly in Gill
and through the Spending Clause challenge in Massachusetts. The district court ruled
in plaintiffs’ favor in both cases primarily on this issue. The only issues not common
to both cases are whether, even if Congress had authority to enact Section 3 of
DOMA under the Spending Clause, the statute still violates the Tenth Amendment,
and whether plaintiff Hara has standing to pursue one of his claims in Gill.
Given the predominance of common legal issues concerning the same statutory
provision, separate briefing and argument of these appeals are not warranted.
Consolidation will conserve resources for both the Court and the parties and will
facilitate an orderly presentation and resolution of these appeals. Accordingly, we
respectfully submit that it is appropriate to consolidate Gill (No. 10-2207) and its
cross-appeal Hara (No. 10-2214) with Massachusetts (No. 10-2204), for purposes of
briefing and oral argument.
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4. If these appeals are consolidated, the federal government appellants propose
that the Court establish the following briefing schedule and word limits for each of
the parties’ briefs:
• Federal appellants’ consolidated opening principal brief and jointappendix in Gill and Massachusetts due December 23, 2010. 21,000word limit.
• Appellees’ response brief in Gill and Cross-Appellant’s openingprincipal brief in Hara due February 8, 2011. 16,500 word limit.
• Appellee’s response brief in Massachusetts due February 8, 2011. 14,000 word limit.
• Federal appellants’ consolidated reply brief in Gill and Massachusetts,combined with response brief in Hara cross-appeal, due March 14,2011. 16,500 word limit.
• Cross-Appellant’s reply brief in Hara due March 31, 2011. 7,000 wordlimit.
5. We have contacted counsel for appellee in Massachusetts, who have
authorized us to state that they consent to this motion. In addition, we have contacted
counsel for the appellees in Gill and the cross-appellant in Hara, who have authorized
us to state that they consent to this motion while not agreeing with the movants'
characterizations of the case.
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CONCLUSION
For the foregoing reasons, the federal government appellants respectfully
request that the Court consolidate for purposes of briefing and oral argument appeal
Nos. 10-2204, 10-2207 and 10-2214, and establish the briefing schedule proposed
above.
Respectfully submitted,
TONY WEST Assistant Attorney General
s/ Michael Jay Singer MICHAEL JAY SINGER (202) 514-5432
s/ August Flentje AUGUST FLENTJE (202) 514-3309
s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY (202) 353-8253
Attorneys, Appellate StaffCivil DivisionU.S. Department of Justice950 Pennsylvania Ave., N.W., Rm. 7261Washington, D.C. 20530-0001
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CERTIFICATE OF SERVICE
I hereby certify that on November 18, 2010, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the First Circuit
by using the appellate CM/ECF system. I further certify that all participants in the
case are registered CM/ECF users and will be served by the appellate CM/ECF
system.
s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY (202) 353-8253
Attorney, Appellate StaffCivil DivisionU.S. Department of Justice950 Pennsylvania Ave., N.W., 7261Washington, D.C. 20530-0001
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