Case 2:11-cv-00045-CDJ Document 64

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA COZEN OCONNOR, P.C., Plaintiff, v. JENNIFER J. TOBITS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Case No. 11-0045 Judge C. Darnell Jones, II

MOTION OF THE UNITED STATES TO INTERVENE AS OF RIGHT Pursuant to Federal Rule of Civil Procedure 5.1(c), 28 U.S.C. 2403(a), and this Courts Order of October 27, 2011 (Dkt. 55), the United States respectfully moves to intervene in this case, in which the constitutionality of a federal statute, Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7, is called into question. In support of this motion, the United States declares as follows: 1. Section 2403(a) of Title 28 of the United States Code grants the United States the ability to intervene as a matter of right in federal courts. It provides in relevant part: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court . . . shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. 28 U.S.C. 2403(a). 2. Federal Rule of Civil Procedure 5.1 implements 28 U.S.C. 2403. Fed. R. Civ. P. 5.1 advisory committees note, 2006 Adoption. It requires any party that files a pleading, written motion, or other paper drawing into question the constitutionality of a

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federal . . . statute to file a notice of a constitutional question and serve that notice on the Attorney General. Fed. R. Civ. P. 5.1(a). Rule 5.1(c) then provides that the Attorney General may intervene in such a case within 60 days or a later date set by the Court. 3. On August 23, 2011, Defendant Jennifer J. Tobits filed a Notice of Constitutional Question with respect to Section 3 of DOMA. (Dkt. 27.) On October 24, 2011, the United States acknowledged Defendant Tobitss constitutional challenge, but declined to intervene at that time because it appeared potentially unnecessary for the Court to reach the issue of DOMA Section 3s constitutionality. (Dkt. 53.) 4. On October 27, 2011, this Court issued an Order requiring the parties to provide supplemental briefing addressing, inter alia, the constitutionality of Section 3 of DOMA. (Dkt. 55 at 2.) The Court also included in the Order a time frame for the United States to intervene if it so chooses. (Id.) Specifically, it provided that the United States may, at its discretion, move to intervene by December 30, 2011. (Id. at 3.) 5. On November 4, 2011, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives moved to intervene in this case as a party defendant for the limited purpose of presenting arguments in defense of DOMA Section 3. (Dkt. 58.) 6. After the Courts October 27 Order made clear that the constitutionality of Section 3 of DOMA would be addressed by the parties to this litigation, the United States determined that it would be in its interest to intervene in this case. Further, after BLAG moved to intervene as a defendant, the United States determined that it should 2

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intervene in time to submit a timely response setting forth the Executive Branchs views regarding BLAGs standing to intervene in litigation to defend the constitutionality of a federal statute. 7. Accordingly, having secured the authorization of the Solicitor General in compliance with 28 C.F.R. 0.21, the United States hereby respectfully moves to intervene in this case, pursuant to Fed. R. Civ. P. 5.1 and 28 U.S.C. 2403(a). Section 2403(a) explicitly confers on the United States an unconditional right to intervene in a case such as this in which the constitutionality of [an] Act of Congress affecting the public interest is drawn in question. There can be no doubt that Section 3 of DOMA, which defines marriage and spouse for purposes of federal law, significantly affects the public interest in 2004, the U.S. General Accounting Office determined that there are 1,138 provisions of the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges. Defense of Marriage Act, GAO04-353R, at 1 (Jan. 23, 2004), available at http://www.gao.gov/new.items/d04353r.pdf. 8. Consistent with the Courts existing scheduling order, the United States will file a substantive brief setting forth its views as to the arguments presented by the parties no later than December 30, 2011. * Intervention by the United States at present is in the interest of the Court and all parties because it makes clear the United States decision to participate in this litigation, and it ensures that the United States forthcoming response to BLAGs motion to intervene is timely.

The United States notes that Fed. R. Civ. P. 5.1 does not require it to file a pleading with this motion, as would be required under Fed. R. Civ. P. 24(c). Indeed, as the United States intervenes here solely to provide the Court with its views regarding legal arguments presented by the parties to the litigation, such a pleading would serve little purpose.

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A proposed order is attached. Dated: November 21, 2011 Respectfully submitted, TONY WEST Assistant Attorney General ZANE DAVID MEMEGER United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/Judson O. Littleton JUDSON O. LITTLETON (TX Bar 24065635) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel: (202) 305-8714 Fax: (202) 616-8470 judson.o.littleton@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on November 21, 2011, I electronically filed the foregoing Motion of the United States to Intervene As of Right, including the attached proposed order, with the Clerk of the Court for the United States District Court for the Eastern District of Pennsylvania using the CM/ECF system. Accordingly, these documents are available for viewing and downloading from the ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the CM/ECF system. /s/Judson O. Littleton Judson O. Littleton