Case: 12-15409

07/31/2012

ID: 8270530

DktEntry: 141

Page: 1 of 5

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KAREN GOLINSKI Plaintiff-Appellee, v. OFFICE OF PERSONNEL MANAGEMENT et al. Defendants-Appellees, and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES Intervenor-Appellant. KAREN GOLINSKI Plaintiff-Appellee, v. OFFICE OF PERSONNEL MANAGEMENT et al. Defendants-Appellants, and BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES Intervenor-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 12-15388

No. 12-15409

MOTION TO ADDRESS PLAINTIFFS ADDITIONAL ARGUMENTS IN FEDERAL DEFENDANTS REPLY BRIEF The federal defendants seek leave to address in their reply brief, which is being filed concurrently with this motion, the additional arguments raised by plaintiff-appellee in her responsive brief.

Case: 12-15409

07/31/2012

ID: 8270530

DktEntry: 141

Page: 2 of 5

1. On February 23, 2011, the Attorney General notified Congress of the Presidents and his determination that Section 3 of DOMA violates the equal protection component of the Fifth Amendment as applied to same-sex couples who are legally married under state law. Based on this decision, the President and the Attorney General determined that the Department will cease defense of Section 3, on this basis. Supplemental Excerpts of Record 1020-21. The Department has continued to defend Section 3 of DOMA against other constitutional and statutory challenges. See, e.g., D. Ct. Doc. No. 118, Defs Motion to Dismiss Pls 2d Am. Compl. (defending Section 3 against plaintiffs statutory claim); see also Superseding Brief of the U.S. Dept of Health and Human Servs. at 55-61, Massachusetts v. HHS, Nos. 10-2204, 10-2207, 10-2214 (consol.) (1st Cir. Sept. 22, 2011) (defending Section 3 of DOMA against a Tenth Amendment challenge). 2. In its April 11, 2012 Order, this Court established the following briefing schedule: BLAG shall file its opening brief in no. 12-15388 on or before June 4, 2012; responsive briefs are due July 3, 2012 for plaintiff (answering brief in no. 12-15388) and for the other federal defendants (answering brief in no. 12-15388 and nominal opening brief in no. 12-15409); on or before July 17, 2012, BLAG may file a reply brief in no. 12-15388 and answering brief in no. 12-15409 and plaintiff may file an answering brief in no. 12-15409. On or before July 31, 2012, the government may file a reply in appeal no. 12-15409 limited to the jurisdictional issue. Plaintiff and the federal defendants filed their briefs on the same day, July 3, 2012. In 2

Case: 12-15409

07/31/2012

ID: 8270530

DktEntry: 141

Page: 3 of 5

her brief, plaintiff raises alternative grounds for affirming the district courts judgment. See Pl. Br. 25-28 (arguing that DOMA Section 3 violates her substantive due process rights and is an unconstitutional sex-based classification). The briefing schedule provides that the federal defendants reply brief is limited to the jurisdictional issue raised by BLAG in the answering brief BLAG filed on July 17, 2012. The briefing schedule, therefore, does not currently provide an opportunity for the federal defendants to respond to the alternative grounds for affirmance raised in plaintiffs responsive brief. 2. The federal defendants seek leave to respond to plaintiffs alternative grounds for affirming the district courts judgment in their reply brief due July 31, 2012. That reply brief is being filed concurrently with this motion. The federal defendants should be permitted an opportunity to respond to plaintiffs alternative arguments because the Department continues to defend Section 3 of DOMA against other constitutional challenges, and the federal defendants are the proper party to respond to plaintiffs alternative bases for affirming the district courts judgment. 3. Counsel for federal defendants has contacted counsel for plaintiff and counsel for BLAG. Counsel for BLAG, Kerry Kircher, stated that BLAG does not oppose this motion. Counsel for plaintiff, Tara Borelli, stated that plaintiff opposes this motion because the federal defendants did not respond to these arguments in the district court, and would consent to the motion if plaintiff were given an opportunity to file a brief of equal length in response. These alternative arguments were fully briefed by plaintiffs and 3

Case: 12-15409

07/31/2012

ID: 8270530

DktEntry: 141

Page: 4 of 5

BLAG before the district court, and the federal defendants address them here. CONCLUSION For the foregoing reasons, the federal defendants respectfully request that they be permitted to respond to plaintiffs alternative arguments in their reply brief, which is being filed currently with this motion. Respectfully submitted, MICHAEL JAY SINGER (202) 514-5432 AUGUST E. FLENTJE (202) 514-3309 HELEN L. GILBERT (202) 514-4826 Attorneys, Appellate Staff Civil Division, U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7228 Washington, DC 20530-0001

Case: 12-15409

07/31/2012

ID: 8270530

DktEntry: 141

Page: 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on July 31, 2012, I electronically filed the foregoing Motion with the Clerk of the Court for the United States Court of Appeals for the Ninth 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/ Helen L. Gilbert HELEN L. GILBERT (202) 514-4826 Attorney, Appellate Staff Civil Division, U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7228 Washington, DC 20530-0001