Case: 12-2335

Document: 207

Page: 1

08/22/2012

700065

Nos. 12-2335 & 12-2435 ____________________ UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ EDITH SCHLAIN WINDSOR, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellee, BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor-Defendant-Appellant. ____________________ REPLY OF THE BIPARTISAN LEGAL ADVISORY GROUP, U.S. HOUSE OF REPRESENTATIVES, IN SUPPORT OF MOTION TO SUSPEND ORAL ARGUMENT PENDING SUPREME COURT RULING ON PENDING PETITIONS FOR WRIT OF CERTIORARI On August 15, 2012, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) moved for an order suspending oral argument in this matter until after the Supreme Court determines whether to grant certiorari in this case (or either of two other cases that raise the same issue as this case). The rationale for this very uncomplicated motion was itself very uncomplicated: Approximately one month ago, Ms. Windsor, the appellee, asked the Supreme Court to take her case before this Court renders a decision,
1

Case: 12-2335

Document: 207

Page: 2

08/22/2012

700065

see Pet. for Writ of Cert. Before J., Windsor v. United States, No. 1263 (S. Ct. July 16, 2012) (Windsor Petition); The Supreme Court likely will rule on the Windsor Petition (and other pending petitions that raise the same DOMA Section 3 issue) in early October; and Oral argument in this case currently is scheduled for September 27, 2012, a matter of days before this Court and the parties likely will know whether the Supreme Court will take this case (or one of the other cases that raise the same issue). See Mot. of the [House] to Suspend Oral Argument Pending Sup. Ct. Ruling on Pending Pets. for Writ of Cert. at 1, 3, 5-6 (Aug. 15, 2012) (ECF No. 135-2) (Motion to Suspend). None of this is in dispute. Under these circumstances, it is eminently sensible and appropriate for the Court to suspend the September 27 argument pending the Supreme Courts ruling on the Windsor Petition (and the other petitions). No one including Ms. Windsor will be prejudiced; the Courts and the parties resources will not be expended unnecessarily; and the Court always can reschedule oral argument should that become appropriate. In response, Ms. Windsors counsel has filed an 18-page opposition that includes ten exhibits running to more than 125 pages. See Memo. of Law in Oppn
2

Case: 12-2335

Document: 207

Page: 3

08/22/2012

700065

to [Mot. to Suspend] (Aug. 20, 2012) (ECF No. 185-1) (Response). Notwithstanding its great girth, (i) the Response never explains why it makes sense to conduct oral argument on September 27, when the Supreme Court likely will rule, within a matter of days thereafter, on the Windsor Petition (a petition that, if granted, would strip this Court of jurisdiction, see, e.g., Hovey v. McDonald, 109 U.S. 150, 156-57 (1883); United States v. Ellenbogen, 390 F.2d 537, 542-43 (2d Cir. 1968)); and (ii) the arguments the Response advances, such as they are, are quite beside the point. Cf. Order, Golinski v. U.S. Office of Pers. Mgmt., Nos. 1215388 & 12-15409 (9th Cir. July 27, 2012) (ECF No. 147) (holding DOMA Section 3 case in abeyance pending resolution of the petition for a writ of certiorari before [judgment in that case], and, if certiorari is granted . . . , pending determination of the case on the merits). DISCUSSION 1. In a remarkable display of illogic, Ms. Windsor argues that the Court should deny the Houses motion because this Circuit is uniquely poised to address the issues here, and it should do so. Resp. at 16; see also Decl. of Roberta A. Kaplan 12 (Aug. 20, 2012) (ECF No. 185-2) (Ms. Windsor want[s] a decision from the Second Circuit and . . . [the Motion to Suspend] would interfere with that objective.). That argument comes too late: Ms. Windsor herself already has interfere[d] with [her] objective by requesting that the Supreme Court and not
3

Case: 12-2335

Document: 207

Page: 4

08/22/2012

700065

this Court decide this case. See Windsor Pet. If Ms. Windsor really believes this Court should decide her case, she should forthwith withdraw her petition for certiorari before judgment. Otherwise, it is perfectly sensible for this Court to wait a short time before proceeding in order to see if the Supreme Court grants the Windsor Petition. In any event, whether argument should be suspended for a short period of time is entirely distinct from the question of whether this Court should decide the case at some point. Waiting to see whether the Supreme Court grants the Windsor Petition, or otherwise takes up the question of DOMAs constitutionality, certainly will not prevent this Court from promptly re-setting argument and deciding the case should the Supreme Court decline to do so. And conducting argument on September 27, of course, would not prevent the Supreme Court from granting certiorari in this or another DOMA case a week or so later, at which time even Ms. Windsor appears to agree that a stay of these proceedings would be in order. See Resp. at 11 (acknowledging that this Court frequently has granted a stay of an appeal . . . after the Supreme Court has granted certiorari in a case presenting the same legal issues.) (emphasis in original). 2. Ms. Windsor also asserts that suspending the September 27 oral argument would be inconsistent with this Courts practice. Resp. at 11. However, she cites nothing that actually pertains to the very limited relief the House seeks here,
4

Case: 12-2335

Document: 207

Page: 5

08/22/2012

700065

or that demonstrates in any way that it is contrary to this Courts practice to suspend oral argument for a very short period of time under the circumstances present here. 3. While Ms. Windsor accuses the House of attempting to relitigate the Courts ruling on her motion to expedite (which was filed early in June), see Resp. at 9-11, the House has neither the intention nor the desire to do that. The House has met the briefing deadlines established in this Courts scheduling order, see Order (June 22, 2012) (ECF No. 56), and it intends to continue doing so. See Mot. to Suspend at 3. The Motion to Suspend, of course, followed a highly material change in circumstances regarding the scheduling of this case, namely Ms. Windsors filing of the Windsor Petition on July 16, 2012, more than three weeks after this Court entered its June 22 Scheduling Order. While Ms. Windsor seems to suggest that the Motion to Suspend somehow was untimely, see Resp. at 2, 6-7, it obviously was not. The Motion to Suspend, which is now fully briefed, was unquestionably filed reasonably in advance of the [September 27, 2012] hearing date, as Federal Rule of Appellate Procedure 34(b) requires. 4. Finally, Ms. Windsor contends that the House is seeking to stay this case and, therefore, must satisfy some heavy burden. See Resp. at 2, 4, 13-17. This is false. The House has made very clear that, at this time, it only seeks to suspend the
5

Case: 12-2335

Document: 207

Page: 6

08/22/2012

700065

September 27 oral argument until the Supreme Court rules on the Windsor Petition (and the other pending petitions for certiorari that raise the same DOMA Section 3 issue). Once it is clear whether the Supreme Court will take this case or otherwise decide the issue of DOMAs constitutionality, this Court will be able to determine what, if any, further proceedings are appropriate. This is a matter entirely within the discretion of this Court, and the relief the House seeks is eminently sensible and appropriate. * * *

In sum, there is no circumstance under which Ms. Windsor will be prejudiced by the short suspension the House seeks. On the other hand, a short suspension is manifestly beneficial to the Court and the parties and, accordingly, the Court should exercise its discretion to grant the House the limited relief it seeks.

Case: 12-2335

Document: 207

Page: 7

08/22/2012

700065

CONCLUSION For all the reasons articulated above and earlier, the Houses Motion to Suspend Oral Argument should be granted. Respectfully submitted, /s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives Of Counsel Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 August 22, 2012

Case: 12-2335

Document: 207

Page: 8

08/22/2012

700065

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system on August 22, 2012. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Paul D. Clement Paul D. Clement