Golinski v. OPM - U.S. House of Representatives' Motion To Intervene

Case3:10-cv-00257-JSW Document103 Filed05/04/11 Page1 of 17
1 PAUL D. CLEMENT (DC Bar 433215)

pclement@bancroftpllc.com
2 H. CHRISTOPHER BARTOLOMUCCI (DC Bar 453423)
cbartolomucci@bancroftpllc.com
3 CONOR B. DUGAN (MI Bar P66901)
cdugan@bancroftpllc.com
4
BANCROFT PLLC
5 1919 M Street, NW, Suite 470
Washington, DC 20036
6 202-234-0090 (phone); 202-234-2806 (fax)
7 OF COUNSEL:
KERRY W. KIRCHER (DC Bar 386816)
8 Kerry.Kircher@mail.house.gov
JOHN D. FILAMOR (DC Bar 476240)
9 John.Filamor@mail.house.gov
CHRISTINE DAVENPORT (NJ Bar)
10 Christine.Davenport@mail.house.gov
KATHERINE E. MCCARRON (DC Bar 486335)
11 Katherine.McCarron@mail.house.gov
WILLIAM PITTARD (DC Bar 482949)
12 William.Pittard@mail.house.gov
KIRSTEN W. KONAR (DC Bar 979176)
13 Kirsten.Konar@mail.house.gov
14 OFFICE OF GENERAL COUNSEL

U.S. House of Representatives
15 219 Cannon House Office Building
16 202-225-9700 (phone); 202-226-1360 (fax)
17 Counsel for Proposed Intervenor The Bipartisan Legal

Advisory Group of the U.S. House of Representatives
18
UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20 )
KAREN GOLINSKI, ) Case No. 3:10-cv-0257-JSW
21 ) Hearing: June 17, 2011, 9:00 am
Plaintiff, )
22 ) NOTICE OF MOTION AND
vs. ) MOTION OF THE BIPARTISAN
23 ) LEGAL ADVISORY GROUP OF
NOTICE OF MOTION AND MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF
REPRESENTATIVES TO INTERVENE FOR A LIMITED PURPOSE
Case No. 3:10-cv-0257-JSW
1 UNITED STATES OFFICE OF PERSONNEL ) THE U.S. HOUSE OF

MANAGEMENT, et al., ) REPRESENTATIVES TO
2 ) INTERVENE FOR A
Defendants. ) LIMITED PURPOSE
3 __________________________________________)
4
TABLE OF CONTENTS
5
MOTION TO INTERVENE FOR A LIMITED PURPOSE .................................................1
6
MEMORANDUM OF POINTS AND AUTHORITIES .......................................................2
7
INTRODUCTION .................................................................................................................2
8
ARGUMENT.........................................................................................................................5
9
I. Intervention by the House Is Appropriate Under Rule 24(a)(1)
10 and/or Rule 24(b)(1)(A).............................................................................................5
11 II. Intervention by the House Is Appropriate Under Rule 24(a)(2) ................................7
12 III. The Court Should Allow Intervention Without Requiring the Filing of a “Pleading”
in Conjunction with the Motion to Intervene.............................................................9
13
CONCLUSION......................................................................................................................10
14
CERTIFICATE OF SERVICE ..............................................................................................12
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16
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22
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1 TABLE OF AUTHORITIES
2 Cases
3 Adolph Coors Co. v. Brady, 944 F.2d 1543 (10th Cir. 1991)..............................4
4 Am. Fed’n of Gov’t Emps. v. United States, 634 F. Supp. 336 (D.D.C. 1986)....4
5 Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153 (1989) ...............................4
6 Ameron, Inc. v. U.S. Army Corp of Eng’rs, 607 F. Supp. 962 (D.N.J. 1985), aff’d, 809 F.2d 979
(3d Cir. 1986)...........................................................................................4
7
Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003)...........................................7
8
Barnes v. Carmen¸ 582 F. Supp. 163 (D.D.C. 1984), rev’d sub nom. Barnes v. Kline, 759 F.2d 21
9 (D.C. Cir. 1984), rev’d on mootness grounds sub nom. Burke v. Barnes, 479 U.S. 361
(1987).......................................................................................................4-5
10
Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470 (9th Cir. 1992)...................9
11
Beverly Enters. v. Trump, 182 F.3d 183 (3d Cir. 1999) ......................................4
12
Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ....................................................6
13
Cnty. of Orange v. Air Cal., 799 F.2d 535 (9th Cir. 1986)..................................7
14
Dickerson v. United States, 530 U.S. 428 (2000) ................................................4
15
Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) ............4
16
Helstoski v. Meanor, 442 U.S. 500 (1979) ..........................................................4
17
In re Benny, 44 B.R. 581 (Bankr. N.D. Cal. 1984), aff’d in part & dismissed in part, 791
18 F.2d 712 (9th Cir. 1986) ..........................................................................5
19 In re Moody, 46 B.R. 231 (Bankr. M.D.N.C. 1985) ............................................5
20 In re Prod. Steel, Inc., 48 B.R. 841 (Bankr. M.D. Tenn. 1985)...........................5
21 In re Tom Carter Enters., Inc., 44 B.R. 605 (Bankr. C.D. Cal. 1984).................5
22 In re: Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) ..........................4
23
1 In the Matter of Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100 (D.D.C. 2006),
rev’d sub nom. United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir.
2 2007) ........................................................................................................4
3 INS v. Chadha, 462 U.S. 919 (1983) ...................................................................4, 6, 8, 9
4 Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986) ...................4
5 League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297

(9th Cir. 1997)..........................................................................................7
6
Morrison v. Olson, 487 U.S. 654 (1988) .............................................................4
7
North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987)................................................4
8
Raines v. Byrd, 521 U.S. 811 (1997) ...................................................................4
9
Shores v. Hendy Realization Co., 133 F.2d 738 (9th Cir. 1943) .........................9
10
Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1981)............................................9
11
Synar v. United States, 626 F. Supp. 1374 (D.D.C. 1986), aff’d sub nom. Bowsher v. Synar, 478
12 U.S. 714 (1986)........................................................................................4
13 United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004).....................7, 8
14 United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) ....................8
15 United States v. Helstoski, 442 U.S. 477 (1979)..................................................4
16 United States v. Lovett, 328 U.S. 303 (1946).......................................................6
17 United States v. McDade, 28 F.3d 283 (3d Cir. 1996).........................................4
18 United States v. Renzi, No. 10-10088, 10-10122

(9th Cir. argued Feb. 17, 2011)................................................................4
19
Statutes and Legislative Authorities
20
Fed. R. Civ. P. 7...................................................................................................9
21
Fed. R. Civ. P. 24.................................................................................................passim
22
2 U.S.C. § 130f ....................................................................................................10
23
1 28 U.S.C. § 516....................................................................................................6
2 28 U.S.C. § 530D.................................................................................................1, 6
3 28 U.S.C. § 2403..................................................................................................1, 5, 6
4 Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7 ................1
5 U.S. Const. art. II, § 3 ..........................................................................................2
6 U.S. Const. art. I, §§ 1, 7, 8..................................................................................8
7 Other Authorities
8 Rule I.11, Rules of the House of Representatives, 103d Cong. (1993) ...............1
9 Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)...............1
10 142 Cong. Rec. H7505-06 (July 12, 1996) ..........................................................3
11 142 Cong. Rec. S10129 (Sept. 10, 1996).............................................................3
12
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14
15
16
17
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1 PLEASE TAKE NOTICE that the Bipartisan Legal Advisory Group of the U.S. House of
2 Representatives will move this Court on Friday, June 17, 2011, at 9:00 a.m., or as soon thereafter
3 as counsel may be heard, in the San Francisco Branch of the U.S. District Court, Courtroom 11,
4 19th Floor, 450 Golden Gate Avenue, San Francisco, California, for an order granting the
5 Bipartisan Legal Advisory Group’s Motion to Intervene for a Limited Purpose.
6 MOTION TO INTERVENE FOR A LIMITED PURPOSE
7 Pursuant to Rule 24(a), (b) of the Federal Rules of Civil Procedure, and 28 U.S.C. §§
8 530D(b)(2), 2403, and for the reasons set forth in the accompanying Memorandum of Points and
9 Authorities, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the
10 “House”) respectfully moves for leave to intervene as a party defendant in this matter for the
11 limited purpose of defending the constitutionality of Section III of the Defense of Marriage Act,
12 Pub. L. No. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”), from attack on
13 the ground that it violates the equal protection component of the Fifth Amendment’s Due Process
14 Clause.1 The Department of Justice has stated that it will continue to “represent the interests of
15
1
The House has articulated its institutional position in litigation matters through a five-
16 member bipartisan leadership group since at least the early 1980’s (although the formulation of
the group’s name has changed somewhat over time). Since 1993, the House rules have formally
17 acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with
its function of providing direction to the Office of General Counsel. See, e.g., Rule I.11, Rules
18 of the House of Representatives, 103d Cong. (1993), available on-line at http://web.lexis-
nexis.com/congcomp/attachment/a.pdf?_m=2cf9fa66f3eda78dd0cb4e3d5d218d8b&wchp=dGLb
19 Vtz-zSkSA&_md5=4fb7cdee607612e0b648fc2261f21d1e&ie=a.pdf; Rule II.8, Rules of the
House of Representatives, 112th Cong. (2011), available on-line at
20 http://rules.house.gov/Media/file/PDF_112_1/legislativetext/112th%20Rules%20Pamphlet.pdf.
While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the
21 institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory
Group is currently comprised of the Honorable John A. Boehner, Speaker of the House, the
22 Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the
Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic
23 (continued ….)
1
1 the United States” in this litigation. Letter from Ronald Weich, Assistant Attorney General, to
2 the Honorable John A. Boehner, Speaker, U.S. House of Representatives (Feb. 25, 2011)
3 (“Weich Letter”), attached to Defendants’ Response to Order to Show Cause of February 23,
4 2011 (Feb. 28, 2011). We understand this to mean that the Department will take full
5 responsibility for litigating all issues other than Section III’s constitutionality under the equal
6 protection component of the Due Process Clause.
7 Counsel for the House has conferred with James R. McGuire, Esq., counsel for plaintiff,
8 who has advised that plaintiff does not consent to the relief sought by this motion and reserves
9 her right to respond as she deems appropriate. Counsel for the House has also conferred with the
10 Department of Justice which has informed us that the federal defendants do not oppose this
11 motion to intervene for purposes of presenting arguments in support of the constitutionality of
12 Section III of DOMA, but will be filing a response to explain their position. In addition, the
13 federal defendants agree that this motion need not be accompanied by a “pleading” under Rule
14 24(c). A proposed Order is submitted herewith.
15 MEMORANDUM OF POINTS AND AUTHORITIES
16 INTRODUCTION
17 Plaintiff asks this Court to declare unconstitutional as applied to her, under the equal
18 protection component of the Fifth Amendment’s Due Process Clause, Section III of DOMA. See
19 Second Am. Compl. at 15, 17 (April 14, 2011). As the Court is aware, ordinarily it is the duty of
20 the Executive Branch to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3,
21 and of the Department in particular, in furtherance of that responsibility, to defend the
22 Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this
motion.
23
2
1 constitutionality of duly enacted federal laws when they are challenged in court. DOMA, of
2 course, is such a law.
3 DOMA was enacted by the 104th Congress in 1996. The House and Senate bills which
4 became DOMA passed by votes of 342-67 and 85-14, respectively. See 142 Cong. Rec. H7505-
5 06 (July 12, 1996) (House vote on H.R. 3396), and 142 Cong. Rec. S10129 (Sept. 10, 1996)
6 (Senate vote on S. 1999). President Clinton signed the bill into law on September 21, 1996. See
7 32 Weekly Comp. Pres. Doc. 1891 (Sept. 21, 1996).
8 While the Department has repeatedly defended the constitutionality of Section III of
9 DOMA in the intervening years -- see, e.g., Corrected Br. for the U.S. Dep’t of Health and
10 Human Servs., et al. (Jan. 19, 2011), Commonwealth of Massachusetts v. United States
11 Department of Health and Human Services, et al., Nos. 10-2204, 10-2207, 10-2214 (1st Cir.);
12 Federal Defendants’ Notice of Motion and Motion to Dismiss (July 2, 2010), Dragovich v. Dep’t
13 of the Treasury, et al., No. 4:10-01564-CW (N.D. Calif.) -- the Attorney General announced on
14 February 23, 2011, that the Department would no longer do so. See Letter from Eric H. Holder,
15 Jr., Attorney General, to the Honorable John A. Boehner, Speaker, U.S. House of
16 Representatives (Feb. 23, 2011) (“Holder Letter”), available on-line at
17 http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.2 In particular, the Department
18 announced that it would not defend the statute’s constitutionality in this case. See Weich Letter
19
20
2
In so announcing, the Attorney General acknowledged that (i) nine U.S. circuit courts
21 of appeal have rejected his conclusion that sexual orientation classifications are subject to a
heightened standard of scrutiny, id. at 3-4 nn.4-6, and (ii) “professionally responsible” arguments
22 can be advanced in defense of Section III of DOMA. Id. at 5.
23
3
1 at 2. At the same time, the Attorney General articulated his intent to “provid[e] Congress a full
2 and fair opportunity to participate in the litigation in [the] cases [at issue].” Holder Letter at 6.
3 In response, the House formally determined on March 9, 2011, to defend the statute in
4 civil actions in which Section III’s constitutionality has been challenged. See Press Release,
5 Speaker of the House John Boehner, House Will Ensure DOMA Constitutionality Is Determined
6 by Courts (March 9, 2011) (“House General Counsel has been directed to initiate a legal defense
7 of [Section III of DOMA]”), available online at
8 http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539. While the House
9 most often appears in judicial proceedings as amicus curiae,3 it also intervenes in judicial
10 proceedings where appropriate. See, e.g., North v. Walsh, 656 F. Supp. 414, 415 n.1 (D.D.C.
11 1987); Am. Fed’n of Gov’t Emps. v. United States, 634 F. Supp. 336, 337 (D.D.C. 1986). In
12 particular, the House has intervened to defend the constitutionality of federal statutes when the
13 Department has declined to do so. See, e.g., INS v. Chadha, 462 U.S. 919, 930 n.5 (1983);
14 Adolph Coors Co. v. Brady, 944 F.2d 1543, 1545 (10th Cir. 1991); Synar v. United States, 626 F.
15 Supp. 1374, 1378-79 (D.D.C. 1986), aff’d sub nom. Bowsher v. Synar, 478 U.S. 714 (1986);
16 Ameron, Inc. v. U.S. Army Corp of Eng’rs, 607 F. Supp. 962, 963 (D.N.J. 1985), aff’d, 809 F.2d
17 979 (3d Cir. 1986); Barnes v. Carmen¸ 582 F. Supp. 163, 164 (D.D.C. 1984), rev’d sub nom.
18 3
See, e.g., 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. Ass’n v. Garfinkel, 490 U.S. 153, 154 (1989);
19 Morrison v. Olson, 487 U.S. 654, 659 (1988); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478
U.S. 221, 223 (1986); Helstoski v. Meanor, 442 U.S. 500, 501 (1979); United States v. Helstoski,
20 442 U.S. 477, 478 (1979); United States v. Renzi, No. 10-10088, 10-10122 (9th Cir. argued Feb.
17, 2011); In re: Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009); Fields v. Office of
21 Eddie Bernice Johnson, 459 F.3d 1, 3 (D.C. Cir. 2006) (en banc); Beverly Enters. v. Trump, 182
F.3d 183, 186 (3d Cir. 1999); United States v. McDade, 28 F.3d 283, 286 (3d Cir. 1996); In the
22 Matter of Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100, 104-05 (D.D.C. 2006),
rev’d sub nom. United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007).
23
4
1 Barnes v. Kline, 759 F.2d 21, 22 (D.C. Cir. 1984), rev’d on mootness grounds sub nom. Burke v.
2 Barnes, 479 U.S. 361, 362 (1987); In re Prod. Steel, Inc., 48 B.R. 841, 842 (Bankr. M.D. Tenn.
3 1985); In re Moody, 46 B.R. 231, 233 (Bankr. M.D.N.C. 1985); In re Tom Carter Enters., Inc.,
4 44 B.R. 605, 606 (Bankr. C.D. Cal. 1984); In re Benny, 44 B.R. 581, 583 (Bankr. N.D. Cal.
5 1984), aff’d in part & dismissed in part, 791 F.2d 712 (9th Cir. 1986).
6 In light of the Attorney General’s February 23, announcement, we respectfully request
7 that the Court allow the House to intervene here for the limited purpose of defending the
8 constitutionality of Section III of DOMA against arguments that it violates the equal protection
9 component of the Fifth Amendment’s Due Process Clause.
10 ARGUMENT
11 I. Intervention by the House Is Appropriate Under Rule 24(a)(1) and/or Rule

24(b)(1)(A).
12
Rule 24(a)(1) provides for intervention as of right where the proposed intervenor “is
13
given an unconditional right to intervene by a federal statute,” while Rule 24(b)(1)(A) provides
14
for permissive intervention where the proposed intervenor “is given a conditional right to
15
intervene by a federal statute.” A “federal statute,” namely 28 U.S.C. § 2403, clearly
16
contemplates that the federal government will defend the constitutionality of acts of Congress
17
when they are challenged:
18
In any action, suit or proceeding in a court of the United States to
19 which the United States or any agency, officer or employee thereof
is not a party, wherein the constitutionality of any Act of Congress
20 affecting the public interest is drawn in question, the court . . .
shall permit the United States to intervene for presentation of
21 evidence, if evidence is otherwise admissible in the case, and for
argument on the question of constitutionality. The United States
22 shall, 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
23
5
1 to the extent necessary for a proper presentation of the facts and

law relating to the question of constitutionality.
2
Id. § 2403(a) (emphasis added). Here, of course, agencies and officers of the United States are
3
parties but, in light of the Department’s decision to decline to play the role contemplated by §
4
2403(a), it is appropriate for the House to intervene to discharge that function. See 28 U.S.C. §
5
530D(b)(2) (specifically contemplating that House and/or Senate may intervene to defend
6
constitutionality of federal statute where Department declines to do so).
7
Ordinarily the Department not only intervenes under § 2403(a) where appropriate, but
8
also more generally represents the United States and its agencies and officers in the defense of
9
such challenged statutes. See 28 U.S.C. § 516 (“Except as otherwise authorized by law, the
10
conduct of litigation in which the United States, an agency, or officer thereof is a party, or is
11
interested, and securing evidence therefor, is reserved to officers of the Department of Justice,
12
under the direction of the Attorney General.”). However, where, as here, the Department
13
declines to defend a challenged statute, the Supreme Court has held that the Legislative Branch
14
may, if it wishes, accept that responsibility: “Congress is the proper party to defend the validity
15
of a statute when an agency of government, as a defendant charged with enforcing the statute,
16
agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha, 462 U.S. at
17
940 (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968); United States v. Lovett, 328
18
U.S. 303 (1946)) (emphasis added). That is precisely the situation here. As noted above,
19
numerous other courts have followed Chadha’s direction and permitted the House to intervene to
20
defend the constitutionality of federal statutes. See supra 4-5.
21
Accordingly, whether the Court construes 28 U.S.C. § 2403(a) as vesting the Legislative
22
Branch with an “unconditional right to intervene,” Rule 24(a)(1), or a “conditional right to
23
6
1 intervene,” Rule 24(b)(1)(A), intervention here by the House to defend the constitutionality of
2 Section III of DOMA is clearly appropriate.
3 II. Intervention by the House Is Appropriate Under Rule 24(a)(2).
4 Rule 24(a)(2) provides that:
5 On timely motion, the court must permit anyone to intervene who:
6 (2) claims an interest relating to the property or transaction that is

the subject of the action, and is so situated that disposing of the
7 action may as a practical matter impair or impede the movant’s
ability to protect its interest, unless existing parties adequately
8 represent that interest.
9 Under the law of this Circuit:
10 A party seeking to intervene [under Rule 24(a)(2)] must meet four

requirements: (1) the applicant must timely move to intervene; (2)
11 the applicant must have a significantly protectable interest relating
to the property or transaction that is the subject of the action; (3)
12 the applicant must be situated such that the disposition of the
action may impair or impede the party’s ability to protect that
13 interest; and (4) the applicant’s interest must not be adequately
represented by existing parties. . . . Each of these four requirements
14 must be satisfied to support a right to intervene.
15 Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (internal citations omitted). These
16 criteria are “broadly interpreted in favor of intervention,” United States v. Alisal Water Corp.,
17 370 F.3d 915, 919 (9th Cir. 2004), and the House easily satisfies each of the requirements here.
18 First, the House’s motion is timely. In this Circuit, “[t]imeliness is a flexible concept; its
19 determination is left to the district court's discretion,” id. at 921, and three factors are considered:
20 “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to
21 other parties; and (3) the reason for and length of the delay.” League of United Latin Am.
22 Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (quoting Cnty. of Orange v. Air Cal., 799
23 F.2d 535, 537 (9th Cir. 1986)). Here, the Attorney General only announced on February 23,
7
1 2011, his and the President’s decision to no longer defend Section III of DOMA from equal
2 protection challenges, and the House only determined on March 9, 2011, to accept the
3 responsibility for defending the statute. Moreover, although this case has been pending since
4 January 2010, it was only on April 14, 2011, that plaintiff challenged, for the very first time, the
5 constitutionality of Section III of DOMA. See Second Am. Compl. 15, 17. Accordingly, the
6 short delay between the date the House became aware the Department was abandoning its
7 responsibilities and today is justifiable, and that brief delay will not prejudice the plaintiff,
8 particularly given that her equal protection challenge to DOMA is a mere three weeks old.
9 Second, “[a]n applicant for intervention has a significantly protectable interest if the
10 interest is protected by law and there is a relationship between the legally protected interest and
11 the plaintiff's claims.” Alisal, 370 F.3d at 919. Here, the House self-evidently has a strong
12 interest in defending the constitutionality of its legislative handiwork, given the House’s central
13 constitutional role in creating the legislation, U.S. Const. art. I, §§ 1, 7, 8, and particularly where,
14 as here, the House bill that became DOMA passed the House by a substantial and bipartisan
15 majority a mere 16 years ago. See Chadha, 462 U.S. at 940-41.
16 Third, with respect to the impairment prong of the analysis, “the relevant inquiry is
17 whether the [issue of the litigation] ‘may’ impair rights ‘as a practical matter’ rather than
18 whether the decree will ‘necessarily’ impair them.” United States v. City of Los Angeles, 288
19 F.3d 391, 401 (9th Cir. 2002). The disposition of this case obviously threatens the House’s
20 ability to protect its interest in seeing that the statute’s constitutionality is upheld because (i) the
21 plaintiff contends that Section III of DOMA is unconstitutional under the equal protection
22 component of the Fifth Amendment’s Due Process Clause, and (ii) the Department refuses to
23
8
1 defend against that challenge. Therefore, unless the House intervenes, it will have no ability to
2 protect its constitutional interests.
3 Fourth, for exactly the same reasons, it is self-evidently the case that none of the existing
4 parties represent the House’s interest in defending the constitutionality of Section III of DOMA
5 against equal protection challenges. See Chadha, 462 U.S. at 940-41.
6 Accordingly, intervention by the House as of right under Rule 24(a)(2) is plainly
7 appropriate.
8 III. The Court Should Allow Intervention Without Requiring the Filing of a “Pleading”
in Conjunction with the Motion to Intervene.
9
Finally, Rule 24(c) provides that a motion to intervene should “be accompanied by a
10
pleading that sets out the claim or defense for which intervention is sought.” In light of Rule
11
7(a), the only “pleading” the House could conceivably file here would be an Answer to the
12
Second Am. Compl.
13
This Circuit, however, has construed Rule 24(c) as a technical requirement to be applied
14
flexibly in light of its obvious purpose to ensure that the court and the parties are informed about
15
the would-be intervenor’s claims or defenses. See, e.g., Beckman Indus., Inc. v. Int’l Ins. Co.,
16
966 F.2d 470, 474 (9th Cir. 1992) (“Courts, including this one, have approved intervention
17
motions without a pleading where the court was otherwise apprised of the grounds for the
18
motion.”); Smith v. Pangilinan, 651 F.2d 1320, 1326 (9th Cir. 1981) (one sentence in
19
intervenor’s motion was sufficient to satisfy requirements of Rule 24(c)); Shores v. Hendy
20
Realization Co., 133 F.2d 738, 742 (9th Cir. 1943).
21
Here, the Court should apply Rule 24(c) flexibly to dispense with the need for the House
22
to file an Answer for several reasons. First, under the circumstances of this case, the motion to
23
9
1 intervene itself and this memorandum place the Court and the parties on notice of the defense the
2 House will assert in this case, viz., that Section III of DOMA is constitutional under the equal
3 protection component of the Fifth Amendment’s Due Process Clause. Moreover, to the extent
4 this litigation requires the resolution of other issues, the House will not participate. Intervention
5 is sought for the limited purpose of defending Section III on equal protection grounds. Second, it
6 appears that the constitutional issue can be most appropriately resolved in the context of a
7 motion to dismiss, without the need for the filing of an Answer. Third, the Department agrees
8 that the House should not be required to file an Answer in conjunction with its motion to
9 intervene and, insofar as we can ascertain, the plaintiff also does not contend that the House
10 should be required to file an Answer.
11 CONCLUSION
12 For all the foregoing reasons, the Court should grant the House’s motion to intervene for
13 the limited purpose of defending the constitutionality of Section III of the Defense of Marriage
14 Act from attack on equal protection grounds.
15 Respectfully submitted,
16 /s/ Paul D. Clement

Paul D. Clement, Esq.
17 H. Christopher Bartolomucci, Esq.
Conor B. Dugan, Esq.
18
BANCROFT PLLC4
19
20 4
Bancroft PLLC has been “specially retained by the Office of General Counsel” of the
House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its
21 attorneys are, therefore, “entitled, for the purpose of performing [that] function[], to enter an
appearance in any proceeding before any court of the United States . . . without compliance with
22 any requirement for admission to practice before such court . . . .” 2 U.S.C. § 130f(a).
23 (continued ….)
10
1
Counsel for the Bipartisan Legal Advisory
2 Group of the U.S. House of Representatives
3 May 4, 2011
10
11
12
13
14
15
16
17
18
19
20
21
Kerry W. Kircher, Esq., as the ECF filer of this document, attests that concurrence in the
22 filing of the document has been obtained from signatories Paul D. Clement, Esq., H. Christopher
Bartolomucci, Esq., and Conor B. Dugan,. Esq.
23
11
1 CERTIFICATE OF SERVICE
2 I certify that on May 4, 2011, I served one copy of the foregoing Notice of Motion and
3 Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to
4 Intervene for a Limited Purpose by CM/ECF, by electronic mail (.pdf format), and by first-class
5 mail, postage prepaid, on the following:
6
James R. McGuire, Esq.
7 Gregory P. Dresser, Esq.
Rita F. Lin, Esq.
8 MORRISON & FOERSTER LLP
425 Market Street
9 San Francisco, CA 94105-2482
10 Jon W. Davidson, Esq.

Tara L. Borelli, Esq.
11 LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3325 Wilshire Blvd.
12 Suite 1300
Los Angeles, CA 90010-1729
13
Christopher R. Hall, Trial Attorney
14 U.S. DEPARTMENT OF JUSTICE
Civil Division - Federal Programs Branch
15 Room 7128
20 Massachusetts Ave., N.W.
16 Washington, DC 20001
17
18
/s/ Kerry W. Kircher
19 Kerry W. Kircher
20
21
22
23
12
Case3:10-cv-00257-JSW Document103-1 Filed05/04/11 Page1 of 2
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
__________________________________________
)
KAREN GOLINSKI, ) Case No. 3:10-cv-0257-JSW
)
Plaintiff, )
) ORDER GRANTING
vs. ) THE MOTION OF THE
) BIPARTISAN LEGAL
UNITED STATES OFFICE OF PERSONNEL ) ADVISORY GROUP OF THE U.S.
MANAGEMENT, et al., ) HOUSE OF REPRESENTATIVES
) TO INTERVENE FOR A
Defendants. ) LIMITED PURPOSE
__________________________________________)
[PROPOSED] ORDER
UPON CONSIDERATION OF the Motion of the Bipartisan Legal Advisory Group of
the U.S. House of Representatives to Intervene for a Limited Purpose (“Motion”), Plaintiff’s
Opposition, if any, and the entire record herein, it is by the Court this ____ day of _________,
2011, ORDERED that the Motion is GRANTED.
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
Copies to:
Paul D. Clement, Esq.

H. Christopher Bartolomucci, Esq.
Conor B. Dugan, Esq.
BANCROFT PLLC
1919 M Street, N.W.
Suite 470
Kerry W. Kircher
Office of General Counsel
U.S. House of Representatives
219 Cannon House Office Building
Case3:10-cv-00257-JSW Document103-1 Filed05/04/11 Page2 of 2
James R. McGuire
Gregory P. Dresser
Rita F. Lin
Aaron D. Jones
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Jon W. Davidson
Tara L. Borelli
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010-1729
Christopher R. Hall, Trial Attorney

U.S. DEPARTMENT OF JUSTICE
Civil Division - Federal Programs Branch
Room 7128
20 Massachusetts Ave., N.W.

Golinski v. OPM - U.S. House of Representatives' Motion To Intervene

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Case3:10-cv-00257-JSW Document103 Filed05/04/11 Page1 of 17

1 PAUL D. CLEMENT (DC Bar 433215)

14 OFFICE OF GENERAL COUNSEL

17 Counsel for Proposed Intervenor The Bipartisan Legal

1 UNITED STATES OFFICE OF PERSONNEL ) THE U.S. HOUSE OF

11 II. Intervention by the House Is Appropriate Under Rule 24(a)(2) ................................7

19 In re Moody, 46 B.R. 231 (Bankr. M.D.N.C. 1985) ............................................5

20 In re Prod. Steel, Inc., 48 B.R. 841 (Bankr. M.D. Tenn. 1985)...........................5

3 INS v. Chadha, 462 U.S. 919 (1983) ...................................................................4, 6, 8, 9

5 League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297

15 United States v. Helstoski, 442 U.S. 477 (1979)..................................................4

16 United States v. Lovett, 328 U.S. 303 (1946).......................................................6

17 United States v. McDade, 28 F.3d 283 (3d Cir. 1996).........................................4

18 United States v. Renzi, No. 10-10088, 10-10122

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

6 U.S. Const. art. I, §§ 1, 7, 8..................................................................................8

9 Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)...............1

10 142 Cong. Rec. H7505-06 (July 12, 1996) ..........................................................3

11 142 Cong. Rec. S10129 (Sept. 10, 1996).............................................................3

5 Bipartisan Legal Advisory Group’s Motion to Intervene for a Limited Purpose.

6 MOTION TO INTERVENE FOR A LIMITED PURPOSE

6 protection component of the Due Process Clause.

11 motion to intervene for purposes of presenting arguments in support of the constitutionality of

14 24(c). A proposed Order is submitted herewith.

15 MEMORANDUM OF POINTS AND AUTHORITIES

21 and of the Department in particular, in furtherance of that responsibility, to defend the

2 course, is such a law.

7 32 Weekly Comp. Pres. Doc. 1891 (Sept. 21, 1996).

16 Representatives (Feb. 23, 2011) (“Holder Letter”), available on-line at

17 http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.2 In particular, the Department

7 of [Section III of DOMA]”), available online at

8 http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=228539. While the House

6 In light of the Attorney General’s February 23, announcement, we respectfully request

9 component of the Fifth Amendment’s Due Process Clause.

11 I. Intervention by the House Is Appropriate Under Rule 24(a)(1) and/or Rule

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

2 Section III of DOMA is clearly appropriate.

3 II. Intervention by the House Is Appropriate Under Rule 24(a)(2).

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

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

6 (2) claims an interest relating to the property or transaction that is

9 Under the law of this Circuit:

10 A party seeking to intervene [under Rule 24(a)(2)] must meet four

15 majority a mere 16 years ago. See Chadha, 462 U.S. at 940-41.

2 protect its constitutional interests.

5 against equal protection challenges. See Chadha, 462 U.S. at 940-41.

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

10 should be required to file an Answer.

14 Act from attack on equal protection grounds.

16 /s/ Paul D. Clement

5 mail, postage prepaid, on the following:

10 Jon W. Davidson, Esq.

UNITED STATES DISTRICT COURT

UPON CONSIDERATION OF the Motion of the Bipartisan Legal Advisory Group of

2011, ORDERED that the Motion is GRANTED.

Paul D. Clement, Esq.

Christopher R. Hall, Trial Attorney

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