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MICHAEL F. HERTZDeputy Assistant Attorney GeneralMELINDA HAAGUnited States AttorneyARTHUR R. GOLDBERGAssistant Branch Director

CHRISTOPHER R. HALLTrial AttorneyUnited States Department of JusticeCivil Division, Federal Programs Branch

P.O. Box 883Washington, D.C. 20044Telephone: (202) 514-4778Facsimile: (202) 616-8470Email: [email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

KAREN GOLINSKI

Plaintiff,

v.

THE UNITED STATES OFFICE OF

PERSONNEL MANAGEMENT, et al.

Defendants.

____________________________________

)))))))

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No. C 3:10-00257-JSW

DEFENDANTS MOTION TO ENLARGE

TIME TO RESPOND TO PLAINTIFFS

SECOND AMENDED COMPLAINT

Defendants, by and through undersigned counsel, hereby move the Court for an

enlargement of time of seventy-five days in which to respond to Plaintiffs Second Amended

Complaint, from May 4, 2011, through and including July 18, 2011. In support of this Motion,

Defendants respectfully submit the following:

1. On April 14, 2011, pursuant to the Courts March 16, 2011 Order Granting

Motion to Dismiss and Denying Motion for Preliminary Injunction [Docket No. 98], Plaintiff

filed her Second Amended Complaint [Docket No. 102]. Pursuant to the Courts March 16

Order, Defendants response to the Second Amended Complaint is due on May 4, 2011.

Defendants Motion to Enlarge Time to Respond to Plaintiffs Second Amended Complaint

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2. Plaintiff filed her original Complaint on January 20, 2010 [Docket No. 1].

Neither her original Complaint nor her First Amended Complaint, filed on March 8, 2010

[Docket No. 30], asserted a claim challenging the constitutionality of Section 3 of the Defense of

Marriage Act (DOMA), 1 U.S.C. 7. See generally Order of March 16 at 5-6 (noting that theconstitutionality of DOMA is not directly challenged in this case); id. at 11-12 (grant[ing]

Plaintiff leave to amend [her complaint] to attempt to plead a claim that the Court may

legitimately address.).

3. In contrast to Plaintiffs prior two Complaints, Plaintiffs Second Amended

Complaint now includes a claim challenging the constitutionality of Section 3 of DOMA. Pl.s

2d Am. Compl. 72; see also id., Prayer for Relief. Thus, the constitutionality of Section 3 of

DOMA is now directly at issue for the first time in this action, approximately fifteen months after

it was originally filed.

4. On February 23, 2011, approximately seven weeks before Plaintiff filed her

Second Amended Complaint, the Attorney General announced that the Executive Branch

believes that Section 3 of DOMA is properly subject to heightened constitutional scrutiny and is

unconstitutional under that standard. Pursuant to that determination, the Department of Justice

will not defend DOMA in pending litigation, but, as the Attorney General has previously stated,

is interested in providing Congress a full and fair opportunity to participate in cases, including

this matter, challenging the constitutionality of Section 3 of DOMA.

5. In light of the Attorney Generals determination, the Bipartisan Legal Advisory

Group of the United States House of Representatives (BLAG) moved on this date to intervene

in this action to defend the constitutionality of DOMA [Docket No. 103]. Defendants have not

yet responded to BLAGs motion in this case. Likewise, Plaintiff has not yet responded to that

motion.

6. Pursuant to L.Civ.R. 6-3(a)(1) and (3), the requested enlargement of seventy-five

days is necessary to permit BLAG and its outside counsel a sufficient opportunity to effectively

address the issue of DOMAs constitutionality and to prevent substantial harm to its interests.

Declaration of Kerry W. Kircher, May 4, 2011, at 5-15 (Kircher Decl.) (Attachment A). In


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particular, BLAG is the only federal government entity that is in a position to formulate and

articulate to [this Court] arguments that the statute is constitutional []. Id. 13. The ability of

BLAG and its outside counsel to present such arguments here is constrained by the numerous

other matters in which BLAG must intervene to defend the constitutionality of Section 3 ofDOMA, id. 5, and the fact that BLAG only became involved in DOMA-related litigation on

March 9, 2011, when it formally determined that it would defend Section III of DOMA in civil

actions in which the statutes constitutionality has been, or might be, challenged[,] and

instructed the General Counsel of the House of Representatives to coordinate that legal defense

and retain outside counsel to conduct such defense. Id. 3.1

7. The logistical constraints upon BLAGs time and resources, and those of its

outside counsel, are significant. In addition to this matter, BLAG has already moved to intervene

in three other cases where the constitutionality of Section 3 is challenged: Windsor v. United

States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. Office of Personnel Management, No. 3:10-cv-

01750 (D. Conn.); and Dragovich v. Dept of Treasury, No. 4:10-cv-01564 (N.D. Cal.). Id. 6.

In Dragovich, the plaintiffs are opposing BLAGs motion to intervene, which will necessitate

collateral litigation on that issue before BLAG is even able to present substantive arguments as to

the constitutionality of DOMA. Id. In Windsor, the court has scheduled a status conference for

May 9, 2011, at which time the plaintiffs are expected to request the court to require BLAG to

file a motion to dismiss by May 25, 2011. Id.

8. In addition to those district court actions, BLAG anticipates that it will move to

intervene in the Court of Appeals for the First Circuit in the consolidated matters of Gill v. Office

of Personnel Management, No. 10-2207 (1 Cir.); Commonwealth of Massachusetts v. Unitedst

States Dept of Health and Human Services, et al., No. 10-2204 (1 Cir.); and Hara v. Office ofst

The House General Counsel retained the law firm of King & Spalding to represent BLAG on1

April 14, 2001. Kircher Decl. 4. Pursuant to that retainer, Paul Clement, then a partner at King

& Spalding, was to be the lead attorney. Id. However, King & Spalding determined to withdraw

from its representation of BLAG on April 25, 2011, and Mr. Clement subsequently resigned from

the firm. Id. Mr. Clement subsequently became a Partner with Bancroft PLLC; the House

General Counsel has retained that firm to represent BLAG in these matters. Id.


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Personnel Management, No. 10-2214 (1 Cir.). Id. 7.st

9. Further, BLAG anticipates that it will soon move to intervene in five pending

immigration and bankruptcy cases where the constitutionality of Section 3 of DOMA is directly

at issue. Id. 8-9. Although BLAG has not yet moved to intervene in those matters, once it hasdone so, it will face existing Fed. R. Civ. P. 12 deadlines on May 31 and June 17, 2011, in two

pending cases and a June 17, 2011 substantive hearing date in a third. Id. 8-9, 11.

10. Each of the six attorneys in the Office of the General Counsel to the House of

Representatives are and will continue to be responsible for numerous on-going matters other than

DOMA litigation, and none will be able to devote his or her full time to work on this or other

DOMA matters during the next four to six weeks. Id. 12.

11. Likewise, the outside counsel retained by BLAG to represent it in this and other

DOMA matters, Paul Clement and two other attorneys with the law firm of Bancroft PLLC, are

and remain responsible for significant on-going matters other than DOMA litigation. Id. 12.

For example, in addition to his work in this and other DOMA-related matters, Mr. Clement has

four oral arguments before the United States Courts of Appeals in the next five weeks, including

an en banc oral argument before the United States Court of Appeals for the Fifth Circuit on May

23, 2011. Id.

12. Pursuant to Local Civil Rules 6-1 and 6-3(a), undersigned counsel made

significant but ultimately unsuccessful efforts to reach agreement with Plaintiffs counsel as to a

stipulated order that would permit a sufficient opportunity for BLAG to effectively address the

constitutionality of DOMA, if its motion to intervene is granted. Declaration of Christopher R.

Hall, May 4, 2011, at 4 (Hall Decl.) (Attachment B). In particular, between April 28 and

May 3, 2011, undersigned counsel initiated multiple telephone conversations and electronic mail

exchanges with Plaintiffs counsel seeking such a stipulated order; those efforts involved several

offers by Defendants to compromise, but ultimately they proved unsuccessful. Id. Ultimately,

after the parties failed to reach an agreement on May 3, id., Defendants were forced to file the

instant motion.

13. If granted, this would be the fourth time modification in this action, and the


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second requested by Defendants. Hall Decl. 5. One of the previous three modifications was

entered by the Clerk of the Court sua sponte [Docket No. 62]. Id. The other modification the

enlargement of a briefing schedule and rescheduling of a hearing date was granted in response

to Plaintiffs request, as to which Plaintiff did not confer beforehand with Defendants, but whichDefendants subsequently did not oppose [Docket Nos. 77-80]. Id.

14. The requested enlargement would have no effect on the schedule for this case, as

there is no schedule in place and, in any event, the parties anticipate that the case will be resolved

through dispositive motions. Id. 6.

Dated: May 4, 2011

Respectfully Submitted,

MICHAEL F. HERTZDeputy Assistant Attorney General

MELINDA HAAGUnited States Attorney

ARTHUR R. GOLDBERGAssistant Branch Director

/s/ Christopher R. HallCHRISTOPHER R. HALLD.C. Bar No. 468827

Trial AttorneyU.S. Department of JusticeCivil Division, Federal Programs BranchP.O. Box 883Washington, D.C. 20044(202) 514-4778 (telephone)(202) 616-8470 (fax)



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MICHAEL F. HERTZDeputy Assistant Attorney GeneralMELINDA HAAGUnited States AttorneyARTHUR R. GOLDBERGAssistant Branch Director

CHRISTOPHER R. HALLTrial AttorneyUnited States Department of JusticeCivil Division, Federal Programs Branch

P.O. Box 883Washington, D.C. 20044Telephone: (202) 514-4778Facsimile: (202) 616-8470Email: [email protected]


UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

KAREN GOLINSKI

Plaintiff,

v.

THE UNITED STATES OFFICE OF

PERSONNEL MANAGEMENT andJOHN BERRY, Director of the Office ofPersonnel Management, in his officialcapacity

Defendants.

____________________________________

)))))))

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No. C 4:10-00257-SBA

[PROPOSED] ORDER

Upon consideration of Defendants Motion to Enlarge Time to Respond to

Plaintiffs Second Amended Complaint, and any opposition thereto, the Court hereby

GRANTS Defendants motion and orders that the time to respond to Plaintiffs Second

Amended Complaint be enlarged through and including July 18, 2011.

IT IS SO ORDERED.

mailto:[email protected]:[email protected]:[email protected]

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Dated: __________ _______________________________ Hon. JEFFREY S. WHITEUnited States District Judge

[Proposed] Order

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