Case 8:12-cv-01137-CBM-AJW Document 86

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1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 202-234-0090 (telephone) 10 202-234-2806 (facsimile) 11 Of Counsel: 12 Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949) 14 William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) Christine.Davenport@mail.house.gov 16 Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov Mary Beth Walker, Assistant Counsel (DC Bar 501033) 18 MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) Eleni.Roumel@mail.house.gov 20 21 OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 22 219 Cannon House Office Building 23 Washington, D.C. 20515 202-225-9700 (telephone) 24 202-226-1360 (facsimile) 25 Counsel for Intervenor-Defendant the Bipartisan 26 Legal Advisory Group of the U.S. House of Representatives 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Southern Division ___________________________________ ) MARTIN R. ARANAS, IRMA ) No. 8:12-cv-01137-CBM (AJWx) RODRIGUEZ, and JANE DeLEON, ) ) REPLY TO EXECUTIVE Plaintiffs, ) BRANCH DEFENDANTS ) OPPOSITION AND IN v. ) SUPPORT OF INTERVENOR) DEFENDANT THE JANET NAPOLITANO, et al., ) BIPARTISAN LEGAL ) ADVISORY GROUP OF THE Defendants, ) UNITED STATES HOUSE OF ) REPRESENTATIVES THE BIPARTISAN LEGAL ADVISORY ) MOTION TO DISMISS GROUP OF THE U.S. HOUSE OF ) REPRESENTATIVES, ) Hearing: Nov. 20, 2012 ) Time: 10:00 a.m. Intervenor-Defendant. ) Hon. Consuelo B. Marshall ___________________________________ ) INTRODUCTION Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) has moved to dismiss Plaintiffs claims for (1) lack of standing; (2) failure to state an equal protection claim; and (3) failure to state a substantive due process claim. See Mem. of [House] in Supp. of Mot. to Dismiss (Oct. 22, 2012) (ECF No. 62) (House Mem.). Neither Plaintiffs nor the Executive Branch defendants offer any persuasive reasons why the Houses Motion to Dismiss should be denied. See Pls. Oppn to [House]s Mot. to Dismiss (Oct. 30, 2012) (ECF No. 71) (Pls. Oppn); [Exec. Br.] Defs. Oppn to the [House]s Mot. to Dismiss (Nov. 1, 2012) (ECF No. 75) (Exec. Br. Defs. Oppn).

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1 2 I. 3 Plaintiffs Lack Standing.

ARGUMENT

The Plaintiffs lack standing to bring this case because their asserted injuries

4 are not redressable by an order declaring DOMA Section 3 unconstitutional. See 5 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 6 L. Ed. 2d 351 (1992) (standing requires it be likely, as opposed to merely 7 speculative, that the injury will be redressed by a favorable decision (quotation 8 marks omitted)). In other words, INA Section 212(i)(1), 8 U.S.C. 1182(i)(1) 9 the constitutionality of which Plaintiffs have not challenged limits the availability 10 of the waiver that Ms. DeLeon seeks (a waiver from the denial of her application to 11 adjust) to opposite-sex couples, independent of DOMA Section 3. The Ninth 12 Circuits decision in Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982), 13 requires this result: [W]e can only conclude that Congress intended that only 14 partners in heterosexual marriages be considered spouses under [the INA]. 15 Accordingly, an order striking down DOMA Section 3 would not aid Plaintiffs, 16 and, therefore, they lack standing to demand such an order. See House Mem. at 8 17 (incorporating [House]s Resp. to [Exec. Br.] Defs. Procedural Mot. to Dismiss & 18 Partial Mot. to Dismiss at 12-14 (Oct. 15, 2012) (ECF No. 58)). 19 Plaintiffs do not dispute that if the INA waiver provision itself is limited to 20 opposite-sex spouses (again, independent of DOMA Section 3), they would lack 21 standing. Instead, Plaintiffs argue only that todays Attorney General might have a 22 different view of the best statutory construction of the INAs use of the term 23 spouse. That argument is (1) speculative; and (2) entirely beside the point, since 24 it is Congresss intent that matters in interpreting the INA, and the Ninth Circuit 25 already has provided binding interpretation of that intent. See Adams, 673 F.2d at 26 27 28 2

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1 1040 ([O]ur duty is to ascertain and apply the intent of Congress.).1 2 The Executive Branch defendants offer only the following curious comment 3 regarding the Houses standing argument: We do not dispute that Ms. DeLeon 4 has standing to challenge Section 3 of DOMA, since the ultimate denial was based 5 upon DOMA and was not based upon 8 U.S.C. 1182(i)(l) or Adams . . . . Exec. 6 Br. Defs. Oppn at 5 n.2. This is a red herring. The fact that the Executive 7 Branch defendants stated reasons for denying Ms. DeLeons waiver application 8 were limited to DOMA Section 3 is entirely irrelevant if the Court concludes (as it 9 should here) that a separate statute independently bars the relief Plaintiffs demand. 10 See, e.g., McConnell v. FEC, 540 U.S. 93, 96, 124 S. Ct. 619, 157 L. Ed. 2d 491 11 (2003), overruled on other grounds by Citizens United v. FEC, 558 U.S. 310, 130 12 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (challenge to constitutionality of particular 13 statutory provision fails where other, unchallenged statutory provisions 14 independently bar plaintiffs from requested relief); Renne v. Geary, 501 U.S. 312, 15 319, 111 S. Ct. 2331, 115 L. Ed. 2d 288 (1991) (in First Amendment challenge to 16 local governments removal of party endorsements from materials submitted by 17
1

18 is especially appropriate in the immigration context, I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 19 425, 119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999), that deference does not trump Congressional 20 21 22 23 24

As the court in Adams correctly recognized, while judicial deference to the Executive Branch

intent, where such intent is clear. Adams, 673 F.2d at 1040 (declining to extend the boundaries of judicial review beyond an inquiry into Congressional intent); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) (The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.). Congress always has used the term spouse to refer only to traditional, opposite-sex couples, and did so in the context of the INA. See House Mem. at 21-23.

Plaintiffs contention that Adams is in tension with the since-enacted admissibility of homosexual aliens in general, Pls. Oppn at 7 n.9, is a non sequitur. Plaintiffs do not and cannot 25 explain why there is tension between Congresss decision not to bar otherwise-admissible people based on their homosexuality on the one hand, while deciding on the other hand not to 26 admit otherwise-inadmissible people based on their homosexual relationships.

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1 political candidates for distribution, there was reason to doubt . . . that the injury 2 alleged by these voters can be redressed by a declaration of [the ordinance]s 3 invalidity or an injunction against its enforcement because separate and 4 unchallenged state statute likely also required redaction at issue); see also Nuclear 5 Info. & Res. Serv. v. Nuclear Regulatory Commn., 457 F.3d 941, 955 (9th Cir. 6 2006) (Redressability depends on whether the court has the ability to remedy the 7 alleged harm.).2 8 II. Plaintiffs Equal Protection Claim Fails. 9 The Plaintiffs and Executive Branch defendants have no persuasive response 10 to the Houses arguments that Plaintiffs Equal Protection claim fails, as explained 11 in the Houses separate reply to Plaintiffs opposition. See Reply to [Pls.] Oppn 12 and in Supp. of [House]s Mot. to Dismiss at 2-10 (Nov. 6, 2012) (Reply to Pls. 13 Oppn). 14 III. 15 Plaintiffs Substantive Due Process Claim Fails. The Executive Branch defendants previously have conceded that there is no

16 substantive due process problem in this case. See [Exec. Br.] Defs. . . . Partial 17 18 19 20 21 22 23 24 25 26 27 28 4
The Executive Branch defendants failure to cite the INA as an independent basis to challenge Ms. DeLeons standing appears predicated one of two assumptions: either (i) it is the Executive Branch and not the courts that gets to decide whether an unchallenged statute is an independent bar to redress, but see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (It is emphatically the province and duty of the judicial department to say what the law is.), or (ii) even where there is an independent statutory bar to the relief a plaintiff seeks, this does not eliminate the plaintiffs standing if the Court decides that the Executive Branch would refuse to enforce the statute against the plaintiff. Besides having the strange and intolerable effect of making jurisdictional defects in the federal courts waivable by the Executive Branch, this raises the question of whether the Executive Branch defendants now have abandoned not only their duty to defend federal statutes but also their obligation to enforce those statutes. If so, this would mark another blow to the separation of powers. See, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102 (9th Cir. 1988), opinion withdrawn in part on other grounds on rehg, 893 F.2d 205 (9th Cir. 1989); see also 28 U.S.C. 530D(a)(1)(B)(ii) (requiring notice to Congress, which has not been provided in the context of the INA, if Executive Branch in fact intends such a thing).
2

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1 Mot. to Dismiss at 8-9 (Sept. 28, 2012) (ECF No. 46) (DOMA works in this case 2 to prevent Plaintiffs from obtaining a federal benefit, and there is no substantive 3 due process right to a federal benefit.). 4 Plaintiffs, on the other hand, continue to insist that DOMA Section 3 5 violates substantive due process principles but does so by incorporating by 6 reference their previous half-hearted and misplaced arguments. Pls. Oppn at 24 7 n.33; and [Pls.] Oppn to [Exec. Br.] Defs. Mot. to Dismiss at 13-16 (Oct. 15, 8 2012) (ECF No. 56) (Pls. Oppn to Exec. Br. Defs.). While Plaintiffs 9 acknowledge that Ms. DeLeon [does not have] a constitutional right to 10 immigration benefits, they nonetheless attempt to maintain that she need 11 demonstrate no constitutional right to immigration benefits. Her claim is that she 12 may not be denied such benefits solely on account of personal matters that are 13 unquestionably within the substantive guarantee of liberty the Constitution extends 14 to one and all. See Pls. Oppn to Exec. Br. Defs. at 13, 14-15. In other words, 15 Plaintiffs attempt to use the broad language in Lawrence v. Texas, 539 U.S. 558, 16 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), to establish some sort of amorphous 17 right to demand respect for conduct protected by the substantive guarantee of 18 liberty. Pls. Oppn to Exec. Br. Defs. at 13 (quoting Lawrence, 539 U.S. at 19 575). Such a vague formulation of the fundamental right at issue clearly fails to 20 meet the standard established by the Supreme Court in Washington v. Glucksberg, 21 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).3 For substantive due 22
3

23 Plaintiffs rely on, such as Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008), and Cleveland 24 Bd. of Educ. v. La Fleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974), involved the
government dispensing benefits based directly on allegedly protected conduct or status in 25 Cleveland Board of Education, the plaintiff lost benefits because she became pregnant; in Witt, the plaintiff lost benefits simply because she was discovered to be homosexual. In contrast, in 26 this case, Ms. DeLeon was equally ineligible for the immigration benefit she seeks both before and after she and Ms. Rodriguez began their relationship, before and after they started a 27 (Continued . . . )

And even if it did not, Plaintiffs argument still would be inapposite to DOMA. The cases

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1 process protection, Glucksberg requires that the rights and liberties at issue be [i] 2 objectively, deeply rooted in this Nations history and tradition, and [ii] implicit in 3 the concept of ordered liberty. Id. at 720-21 (quotation marks and citations 4 omitted). Plaintiffs make no attempt to even argue (because they cannot) that their 5 purported fundamental right satisfies this standard. 6 More importantly, the Court in Glucksberg made clear that a careful 7 description of the asserted fundamental liberty interest is required. Id. at 721. In 8 other words, generalizations to an abstract description, such as those provided by 9 even the most generous reading of Plaintiffs explanation of the right at issue, are 10 not sufficient for this Court to find a substantive due process violation. By failing 11 to point to any specific right, much less a fundamental one, burdened by DOMA 12 Section 3, Plaintiffs cannot establish a substantive due process violation. 13 14 15 16 17 18 19 20 November 6, 2012 21 22 household together, before and after they obtained a state-law marriage certificate, and before
and after DHS became aware of any of these facts. 4 Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the 23 document has been obtained from signatory Paul D. Clement.

CONCLUSION This Court should grant the Houses motion to dismiss. Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC4 Counsel for Intervenor-Defendant5

24

The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, 25 currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable 26 Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and Democratic Whip decline to support the filing of this reply.

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CERTIFICATE OF SERVICE I hereby certify that on November 6, 2012, I electronically filed the foregoing Reply to Executive Branch Defendants Opposition and in Support of Intervenor-Defendant the Bipartisan Legal Advisory Group of the United States House of Representatives Motion to Dismiss with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to the following attorneys of record through the Courts CM/ECF system: Peter A. Schey, Esq. Carlos Holguin, Esq. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 South Occidental Boulevard Los Angeles, CA 90057 Julie Greenwald Marzouk, Esq. Monica Nikole Ashiku, Esq. PUBLIC LAW CENTER 601 Civic Center Drive West Santa Ana, CA 92701 Beatrice Ann M. Pangilinan, Esq. ASIAN LAW ALLIANCE 184 Jackson Street San Jose, CA 95112 Gary H. Manulkin, Esq. Reyna M. Tanner, Esq. LAW OFFICES OF MANULKIN & BENNETT 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708

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Jesi J. Carlson, Esq. Timothy Michael Belson, Esq. Lana L. Vahab, Esq. Katherine E.M. Gottel, Esq. UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044

/s/ Kerry W. Kircher Kerry W. Kircher