Case: 12-3273

Document: 115

Page: 1

12/19/2012

798112

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT Docket Number(s): Motion for:

Nos. 12-3273, 12-3872 (cons)

Caption [use short title]

Hold appeals in abeyance Pedersen v. Office of Personnel Management

Set forth below precise, complete statement of relief sought:

Hold appeals in abeyance pending the decision of the Supreme Court of the United States in United States v. Windsor, No. 12-307.

MOVING PARTY: Office of 9 Plaintiff 9 Appellant/Petitioner MOVING ATTORNEY:

Personnel Management, et al
9 Defendant 9 Appellee/Respondent

OPPOSING PARTY:

Pedersen, et al.

Helen L. Gilbert

OPPOSING ATTORNEY: Gary [name of attorney, with firm, address, phone number and e-mail]

Buseck

U.S. Department of Justice 950 Pennsylvania Ave., NW, Rm. 314 Washington, DC 20530 (202) 514-4826; Helen.L.Gilbert@usdoj.gov
Court-Judge/Agency appealed from: Please check appropriate boxes: Has movant notified opposing counsel (required by Local Rule 27.1): Yes 9 No (explain): 9 Opposing counsels position on motion: Unopposed 9 Opposed 9 Dont Know 9 Does opposing counsel intend to file a response: 9 Yes No 9 Dont Know 9 Is oral argument on motion requested? Has argument date of appeal been set?

Gay & Lesbian Advocates & Defenders 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350; gbuseck@glad.org

U.S. District Court for the District of Connecticut, Judge Vanessa L. Bryant
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: 9 Yes 9 No Has request for relief been made below? Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency:

9 Yes

No (requests for oral argument will not necessarily be granted) 9

9 Yes No If yes, enter date:__________________________________________________________ 9 9 Service by: CM/ECF 9 Other [Attach proof of service]

Signature of Moving Attorney: 12/19/2012 /s/Helen L. Gilbert ___________________________________Date: ___________________

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE OHAGAN WOLFE, Clerk of Court Date: _____________________________________________ By: ________________________________________________

Form T-1080 (rev. 7-12)

Case: 12-3273

Document: 115

Page: 2

12/19/2012

798112

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JOANNE PEDERSEN, ET AL., Plaintiffs - Appellees, v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants - Appellants, BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Intervenor - Defendant - Appellant. CONSENT MOTION TO HOLD APPEALS IN ABEYANCE PENDING SUPREME COURT REVIEW For the reasons set forth below, the Executive Branch Defendants respectfully request that the Court hold consolidated appeals Nos. 12-3273 and 12-3872 in abeyance pending the decision of the Supreme Court of the United States in United States v. Windsor, No. 12-307. The Bipartisan Legal Advisory Group of the United States House of Representatives (hereinafter, BLAG) states that it consents to the motion. Plaintiffs also state that they consent to the motion. 1. These consolidated appeals are from the same district court order and judgment holding that Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, is unconstitutional. Nos. 12-3273, 12-3872 (cons)

Case: 12-3273

Document: 115

Page: 3

12/19/2012

798112

2. On February 23, 2011, while this case was pending in district court, the Attorney General notified Congress of the Presidents and his determination that heightened scrutiny applies to classifications based on sexual orientation and, under that standard, Section 3 of DOMA is unconstitutional as applied to legally married same-sex couples. Based on that determination, the President and the Attorney General decided that the Department will cease defense of Section 3. BLAG intervened in the district court and moved to dismiss plaintiffs equal protection claim. The Executive Branch Defendants argued that Section 3 violates the Constitutions guarantee of equal protection. 3. On August 2, 2012, the district court issued a judgment concluding that Section 3 of DOMA violated equal protection. The Executive Branch Defendants and BLAG both filed appeals, which are consolidated before this Court. 4. On August 21, 2012, plaintiffs filed a petition for writ of certiorari before judgment with the Supreme Court in this case. Pedersen, et al. v. Office of Pers. Mgmt., et al., No. 12-231 (S. Ct. Aug 21, 2012), 2012 WL 3613467. On September 11, 2012, the Executive Branch Defendants filed their own petition for a writ of certiorari before judgment in this case. Office of Pers. Mgmt., et al. v. Pedersen et al., No. 12-302 (S. Ct. Sept. 11, 2012), 2012 WL 3991479. Six other petitions for a writ of certiorari or a writ of certiorari before judgment addressing the constitutionality of Section 3 of DOMA were also pending before the Supreme Court.

Case: 12-3273

Document: 115

Page: 4

12/19/2012

798112

5. On November 16, 2012, the Executive Branch Defendants moved this Court to suspend the briefing schedule and hold these consolidated appeals in abeyance pending the Supreme Courts consideration of the eight petitions for a writ of certiorari or a writ of certiorari before judgment addressing the constitutionality of Section 3 of DOMA that were pending before the Supreme Court at that time. 6. On November 28, 2012, this Court issued an order partially granting that motion. The order suspended the briefing schedules for these appeals and provided that [i]f certiorari is granted, the parties shall consult with staff attorneys as to whether an agreement to hold the case in abeyance can be reached. If an agreement cannot be reached, a motion to hold the cases in abeyance shall be referred to the court. 7. On December 7, 2012, the Supreme Court granted the Executive Branchs petition for a writ of certiorari from this Courts decision in United States v. Windsor, No. 12-307. The question presented is the following: [w]hether Section 3 of DOMA violates the Fifth Amendments guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. This is the same issue presented by these consolidated appeals. The Supreme Court also directed the parties to brief and argue the following questions: Whether the Executive Branchs agreement with the court below that DOMA is unconstitutional deprives th[e] Court of jurisdiction to decide this case; and whether the Bipartisan

Case: 12-3273

Document: 115

Page: 5

12/19/2012

798112

Legal Advisory Group of the United States House of Representatives has Article III standing in this case. The Supreme Court has not acted on the other seven petitions addressing the constitutionality of Section 3 of DOMA, including the two petitions for a writ of certiorari before judgment in this case. 8. The Executive Branch Defendants, in accordance with the Courts order of November 28, 2012, consulted with a staff attorney and with the other parties, but the parties could not reach an agreement that the staff attorneys office had the authority to act upon. Accordingly, the Executive Branch Defendants now respectfully request that the Court hold both appeals in abeyance pending the decision of the Supreme Court in United States v. Windsor, No. 12-307. Holding these appeals in abeyance is appropriate to avoid litigation of an issue that may definitely be resolved by the Supreme Court, and will serve the interests of judicial economy as well as conserving the resources of the several litigants. 9. The Executive Branch Defendants have conferred with counsel for

plaintiffs and for BLAG regarding this request. BLAG states that it consents to this motion. Plaintiffs also state that they consent to this motion. CONCLUSION For the foregoing reasons, the Executive Branch Defendants respectfully request that the Court hold consolidated appeal Nos. 12-3273 and 12-3872 in

Case: 12-3273

Document: 115

Page: 6

12/19/2012

798112

abeyance pending the decision of the Supreme Court in United States v. Windsor, No. 12-307. Respectfully submitted, /s/ Michael Jay Singer MICHAEL JAY SINGER (202) 514-5432 /s/ Helen L. Gilbert HELEN L. GILBERT (202) 514-4826 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., 3140 Washington, D.C. 20530-0001 _

Case: 12-3273

Document: 115

Page: 7

12/19/2012

798112

CERTIFICATE OF SERVICE I hereby certify that on December 19, 2012, 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. 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 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., 3140 Washington, D.C. 20530-0001