Case 8:12-cv-01137-CBM-AJW Document 90

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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation District Court Section JEFFREY S. ROBINS Assistant Director AARON S. GOLDSMITH (VSB No. 45405) Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 532-4107 Facsimile: (202) 305-7000 Email: aaron.goldsmith@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ) ) ) ) ) ______________________________ ) 1 MARTIN ARANAS, et al., No. 8:12-cv-1137-CBM (AJWx) EX PARTE APPLICATION OF DEFENDANTS FOR ORDER POSTPONING HEARING MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DECLARATION OF AARON S. GOLDSMITH [PROPOSED] ORDER Before the Hon. Consuelo B. Marshall

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Defendants hereby apply ex parte to postpone the hearing scheduled for November 20, 2012 by two weeks until December 4, 2012, or until such date thereafter that this Court deems to be appropriate. Good cause exists for postponing the hearing because there are currently eight certiorari petitions addressing the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA), before the Supreme Court scheduled for consideration at the November 20, 2012 Conference. In the event that the Supreme Court grants a writ of certiorari in one or more of these cases, which could be announced soon after the November 20 Conference, a stay of this case may be appropriate to avoid litigation of an issue that may be definitively resolved by the Supreme Court, as the arguments presented on the four pending motions in this case relate to the issues presented in the petitions for certiorari. A two week postponement of the hearing will cause no harm to Plaintiffs, and will serve the interests of judicial economy. Defendants submit that this Ex Parte Application is justified by Defendants need to obtain relief prior to the November 20, 2012 hearing. Pursuant to L.R. 7-19.1, Defendants gave notice of this application to Plaintiffs via telephone on November 7, 2012. Plaintiffs oppose the relief sought in this application. Plaintiffs believe that the Court should consider the motion for class certification and motion for preliminary injunction on November 20, 2012. They have no objection to the Court staying consideration of the pending motions to dismiss until the Supreme Court rules on the constitutionality of Section 3 of DOMA. Defendants also gave notice of this application to Intervenor the Bipartisan Legal Advisory Group (BLAG) on November 7, 2012, via telephone. BLAG advised via telephone that it does not oppose the application. LEGAL STANDARD [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Landis v. N. Am. Co., 299 U.S.

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248, 254, 57 S. Ct. 163, 81 L. Ed. 153 (1936); see also Lopez v. Am. Express Bank, FSB, No. Civ. 09-07335 SJO (MANx), 2010 WL 3637755, *4-5 (C.D. Cal. Sept. 17, 2010) (granting stay pending action by the Supreme Court). BACKGROUND Currently, there are four motions pending before this Court for hearing on November 20, 2012: two motions to dismiss, a motion for preliminary injunction, and a motion for class certification. At the same time, the Supreme Court is set to consider eight petitions for a writ of certiorari or certiorari before judgment addressing the constitutionality of Section 3 of DOMAthe primary question presented in the present litigationat its conference scheduled for the same day, November 20, 2012. Three petitions for a writ of certiorari have been filed requesting review of the First Circuits decision in Massachusetts v. U.S. Dept of HHS, 682 F.3d 1 (1st Cir. 2012), which held Section 3 of DOMA unconstitutional. See Pet. for Writ of Cert., Bipartisan Legal Advisory Grp. of the U.S. House of Representatives v. Gill, No. 12-13 (S. Ct. June 29, 2012), 2012 WL 2586935; Pet. for Writ of Cert., U.S. Dept of HHS v. Massachusetts, No. 12-15 (S. Ct July 3, 2012), 2012 WL 2586937; Conditional Cross-Pet. for Writ of Cert., Massachusetts v. U.S. Dept of HHS, No. 12-97 (S. Ct. July 20, 2012), 2012 WL 3027167. Two petitions for a writ of certiorari have been filed requesting review of the Second Circuits decision in Windsor v. United States, __ F.3d __, 2012 WL 4937310 (2d Cir. Oct. 18, 2012), which held Section 3 of DOMA unconstitutional. See Pet. for Writ of Cert. Before J., Windsor v. United States, No. 12-63 (S. Ct. July 16, 2012), 2012 WL 2904038; Pet for Writ of Cert. Before J., United States v. Windsor, No. 12-307 (S. Ct. Sept. 11, 2012), 2012 WL 3991414. One petition for a writ of certiorari before judgment has been filed requesting review of Golinski v. U.S. Office of Pers. Mgmt., Nos. 15-388 &15-409 3

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(9th Cir.), which is currently pending before the Ninth Circuit. See Pet. for Writ of Cert. Before J., Office of Pers. Mgmt. v. Golinski, No. 12-16 (S. Ct. July 3, 2012), 2012 WL 2586938. Two petitions for a writ of certiorari before judgment have been filed in Pedersen, et al. v. Office of Pers. Mgmt., et al., Nos. 12-3273 & 12-3872 (2d Cir.), which is currently pending before the Second Circuit. See Pet. for Writ of Cert. Before J., Pedersen, et al. v. Office of Pers. Mgmt., et al., No. 12-231 (S. Ct. Aug 21, 2012), 2012 WL 3613467; Pet. for Writ of Cert. Before J., Office of Pers. Mgmt., et al. v. Pedersen, et al., No. 12-302 (S. Ct. Sept. 11, 2012), 2012 WL 3991479. ARGUMENT Good cause exists for postponing the November 20, 2012 hearing until December 4, 2012. Postponing the hearing will allow all parties and the Court to consider and address at this later hearing the effect on the current litigation of any Supreme Court action on the pending certiorari petitions. If the Supreme Court grants one or more of the petitions for a writ of certiorari or certiorari before judgment regarding the constitutionality of Section 3 of DOMA, a stay of this case may be appropriate to avoid litigation of an issue that may be definitively resolved by the Supreme Court, as the arguments presented on the four pending motions in this case relate to the issues presented in the petitions for certiorari. Plaintiffs will not be harmed by a two-week postponement of the hearing date. Plaintiffs waited ten months after the denial of Ms. DeLeons request for administrative relief and the loss of her work authorization before seeking injunctive relief in this Court. Moreover, as Defendants have outlined in their Opposition to Plaintiffs motion for a preliminary injunction, any harm that Ms. DeLeon has suffered from the denial of her I-601 application for a waiver of inadmissibility based on Section 3 of DOMA can be remedied upon a final 4

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resolution of the constitutionality of this provision. See Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 622, 64 S. Ct. 1215, 88 L. Ed. 1488 (1944) (courts maintain flexibility in shaping [their] remedies and may grant retroactive relief). Any fear of removal on the part of the named Plaintiffs is, at this point, purely speculative, especially in light of the policy of U.S. Immigration and Customs Enforcement reflected in the memorandum dated October 5, 2012. See Dkt. No. 82-1. That policy explains that in considering whether to exercise prosecutorial discretion in an individual [immigration case], DHS will consider the persons . . . family relationships including long-term, same sex relationships. Id. Additionally, at this time, the Court has not certified a class and Plaintiffs have offered no evidence that there are putative class members who face irreparable harm. See Dkt. No. 39 at 22-24. Postponing the hearing for two weeks will further the orderly course of justice and will conserve judicial resources. See generally Lopez, 2010 WL 3637755 at *4 (granting a stay pending Supreme Court review of a separate case because this separate proceeding would directly affect the case at hand). If the Supreme Court grants one of the pending petitions, the constitutionality of Section 3 of DOMA is likely to be resolved by the Supreme Court in 2013. Adjudication in this case of the question of whether Section 3 of DOMA is constitutional while the very same question is pending before the Supreme Court could result in a waste of scarce judicial and governmental resources, and thus, a stay of the litigation may be appropriate. See generally Leyva v. Certified Grocers of Calif., Ltd., 593 F.2d 857, 864 (9th Cir. 1979) (holding that it would waste judicial resources and be burdensome upon the parties to permit discovery and take evidence on the merits of the case at the same time an arbitrator is going through a substantially parallel process); Lopez, 2010 WL 3637755 at *4 (holding that it would be burdensome for the parties to spend much time, energy, and resources on litigation only to find 5

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issues moot within a year depending on how the Supreme Court rules). Importantly, the Ninth Circuitthe court where an appeal of an order or injunction in this case would be heardentered an order holding Golinski in abeyance pending the Supreme Courts review of the petition of certiorari before judgment in that case. See Order, Golinski v. U.S. Office of Pers. Mgmt., Nos. 15-388 & 15409 (9th Cir. Jul. 27, 2012). If the Supreme Court grants review of one of the pending petitions, it may be especially appropriate to consider a stay of this litigation because, in the absence of a stay, this Court would be presented with collateral issues such as whether Plaintiffs have satisfied the requirements of Federal Rule of Civil Procedure 23 and are, thus, entitled to class certification. 1 However, if the Supreme Court resolves the constitutionality of Section 3 of DOMA, the issue of class certification may become moot because a Supreme Court ruling could definitively resolve the entitlement to benefits of all potential class members. WHEREFORE, Defendants respectfully request that the hearing currently scheduled for November 20, 2012 be postponed for at least two weeks until December 4, 2012, or such date that this Court deems appropriate. Dated: November 7, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE
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Plaintiffs contend that discovery is required in order to resolve their pending motion for class certification. See Dkt. No. 81 at 7. Defendants disagree. See Dkt. No. 68 (motion to stay discovery).

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Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director s/ Aaron S. Goldsmith AARON S. GOLDSMITH Senior Litigation Counsel District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Attorneys for Defendants

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DECLARATION OF AARON S. GOLDSMITH I, Aaron S. Goldsmith, hereby declare under penalty of perjury: 1. I, Aaron S. Goldsmith, am Senior Litigation Counsel for the United States Department of Justice, Civil Division, Office of Immigration Litigation, District Court Section, in Washington, DC. I am counsel for Defendants in this matter. 2. Pursuant to L.R. 7-19.1, Defendants gave notice of this application to Plaintiffs via telephone on November 7, 2012. Plaintiffs oppose the relief sought in this application. Plaintiffs believe that the Court should consider the motion for class certification and motion for preliminary injunction on November 20, 2012. They have no objection to the Court staying consideration of the pending motions to dismiss until the Supreme Court rules on the constitutionality of Section 3 of DOMA. Defendants also gave notice of this application to Intervenor the Bipartisan Legal Advisory Group (BLAG) on November 7, 2012, via telephone. BLAG advised via telephone that it does not oppose the application. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 7, 2012, at Washington, D.C. /s/ Aaron S. Goldsmith AARON S. GOLDSMITH

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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) MARTIN ARANAS, et al., No. 8:12-cv-1137-CBM (AJWx)

[PROPOSED] ORDER

[PROPOSED] ORDER Pursuant to Defendants Ex Parte Application for Order Postponing Hearing, and for the reasons stated therein, IT IS HEREBY ORDERED that the hearing scheduled for November 20, 2012 shall be postponed until December 4, 2012. SO ORDERED.

DATED: November __ , 2012.

_______________________________ HON. CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

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Presented by: STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation District Court Section JEFFREY S. ROBINS Assistant Director /s/ Aaron S. Goldsmith AARON S. GOLDSMITH Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 532-4107 Facsimile: (202) 305-7000 Email: aaron.goldsmith @usdoj.gov Attorneys for Defendants