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2:12-cv-00887 #29

2:12-cv-00887 #29

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Doc #29 - Motion re: Notice of Pro Hac Vice Application and Filing Fee Due for attorney representing BLAG.
Doc #29 - Motion re: Notice of Pro Hac Vice Application and Filing Fee Due for attorney representing BLAG.

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Published by: Equality Case Files on Apr 16, 2012
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Case 2:12-cv-00887-CBM-AJW Document 29

Filed 04/13/12 Page 1 of 9 Page ID #:232

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Kerry W. Kircher, General Counsel (DC Bar 386816) Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov Christine Davenport, Sr. Ass’t Counsel (NJ Bar 043682000) Christine.Davenport@mail.house.gov Kirsten W. Konar, Ass’t Counsel (DC Bar 979176) Kirsten.Konar@mail.house.gov Todd B. Tatelman, Ass’t Counsel (VA Bar 66008) Todd.Tatelman@mail.house.gov Mary Beth Walker, Ass’t Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 202-225-9700 (phone) 202-226-1360 (fax) Counsel for Proposed Intervenor the Bipartisan Legal Advisory Group of the U.S. House of Representatives UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:12-cv-00887-CBM (AJWx) NOTICE OF MOTION AND UNOPPOSED MOTION OF PROPOSED INTERVENOR FOR CANCELLATION OF PRO HAC VICE NOTICE OR WAIVER OF LOCAL RULE 83-2.3 Hearing: May 14, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshal

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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

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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 House’s Motion for Cancellation of Pro Hac Vice Notice or Waiver of Local Rule 83-2.3. UNOPPOSED MOTION FOR CANCELLATION OF PRO 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 of Pro 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.

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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

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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

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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

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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

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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.

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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

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“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

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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 Court’s 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

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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 Court’s admission-to-practice rules (Local Rule 83-2.3) and filing fee

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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 in Lui v. Holder, 2:11-

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

See also Civil Dockets for Torres-Barragan v. Holder, No. 10-55768 (9th Cir.); Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.); Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.); Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill.); Cozen O’Connor 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. Dep’t 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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Case 2:12-cv-00887-CBM-AJW Document 29

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II.

The Mecham Memo Exempts Bancroft Attorneys from Paying Pro 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 the Pro 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.

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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. See supra p. 6. CONCLUSION For all the foregoing reasons, the House’s motion should be granted.

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Respectfully submitted,

/s/ Kerry W. Kircher Kerry W. Kircher, General Counsel Office of the General Counsel U.S. House of Representatives Counsel for Proposed Intervenor-Defendant the 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

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Motion and Unopposed Motion of Proposed Intervenor for Cancellation of Pro 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

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Exhibit B

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Exhibit C

Boehner Taps Kerry Kircher to Serve as House General Counsel for 112t... http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID=218762

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Boehner Taps Kerry Kircher to Serve as House General Counsel for 112th Congress

Washington (Jan 3, 2011) House Speaker-designate John Boehner (R-OH) today announced he has named Blog All News Reports

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. “I’m very pleased Kerry has agreed to serve the People’s 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. I’m 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.

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4/13/2012 11:11 AM

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) )

TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.

No. 2:12-cv-00887-CBM (AJWx)

[PROPOSED] ORDER )

UPON CONSIDERATION OF the Unopposed Motion of Proposed Intervenor for Cancellation of Pro Hac Vice Notice or Waiver of Local Rule 83-

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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

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That the Notice of Pro 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

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