Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 1 of 11

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
__________________________________________________________________
KELVIN J. COCHRAN,
Plaintiff,
v.

Case No. 1:15-cv-00477-LMM

CITY OF ATLANTA, and

MAYOR KASIM REED,
Defendants.
__________________________________________________________________
PROPOSED AMICUS CURIAE LAMBDA LEGALs REPLY BRIEF IN
SUPPORT OF MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
__________________________________________________________________
Amicus agrees with Plaintiff Kelvin J. Cochran that this Court has the
discretion to accept or reject the proposed amicus brief, and that that decision
should turn on whether the brief will benefit the Court. See Cochran Oppos.
[18] at 2. But that is the only relevant criterion. If the Court finds the brief
helpful, it should be accepted irrespective of how good the parties lawyers are or
whether the brief takes a position on how this particular motion should be decided.
1

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 2 of 11

Moreover, Cochran is simply wrong that any argument of amicus is extraneous. In

fact, he does not even challenge the relevance of the ample authority amicus cites
regarding the permissibility and, indeed, propriety of firing public officials who
make public statements that are derogatory toward groups of those employed or
served by their government employer, including those who are gay.
I.

This Court Should Accept the Brief If It Finds It Helpful.

Generally, courts have exercised great liberality in permitting an amicus

curiae to file a brief.... United States v. Louisiana, 751 F. Supp. 608, 620 (E.D.
La. 1990); accord In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal.
1991). In exercising this liberality, court have settled on one criterion that is
determinative of whether an amicus brief will be accepted: it does not matter who
a would-be amicus curiae is, therefore, the criterion for granting leave should be
whether the brief will assist the judges by presenting ideas, arguments, theories,
insights, facts, or data that are not to be found in the parties briefs. Voices for
Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003) (Chambers
Opinion); United States v. El-Gabrowny, 844 F. Supp. 955, 957 n.1 (S.D.N.Y.
1994) There are no strict prerequisites that must be established prior to
2

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 3 of 11

qualifying for amicus status; an individual seeking to appear as amicus must

merely make a showing that his participation is useful to or otherwise desirable to
the court. United States v. Louisiana, 751 F. Supp. at 620; see also Roxford, 790
F. Supp. at 997; Russell v. Bd. of Plumbing Examrs, 74 F. Supp. 2d 349, 351
(S.D.N.Y. 1999) (The primary role of the amicus is to assist the Court in reaching
the right decision in a case affected with the interest of the general public.).
Lambda Legal, as an organization advancing the civil rights of lesbians and
gay men, is an appropriate amicus in a case involving the propriety of the
termination of a high-ranking city official for antigay public pronouncements.
Other courts, and this Court, have recognized the helpful role that can be played by
advocacy organizations with relevant expertise and a stated concern for the issues
at stake in this case. District of Columbia v. Potomac Elec. Power Co., 826 F.
Supp. 2d 227, 237 (D.D.C. 2011); Ga. Latino Alliance for Human Rights v. Deal,
958 F. Supp. 2d 1355 (N.D. Ga. 2013) (granting amicus status to, among others,
the Anti-Defamation League and Southern Center for Human Rights); Americas
Health Ins. Plans v. Hudgens, 915 F. Supp. 2d 1340, 1349 n.11 (N.D. Ga. 2012)
(granting amicus status to American Medical Association and the Georgia
Chamber of Commerce); see also Ellsworth Assocs. v. United States, 917 F. Supp.
3

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 4 of 11

841, 846 (D.D.C. 1996) (amici non-profit organizations granted leave because of
their special interest in [the] litigation as well as a familiarity and knowledge of
the issues raised therein that could aid in the resolution of [the] case).
The partiality of amicus on this particular motion, and the competence of
party counsel, should not affect whether the amicus brief is accepted. The notion
that an amicus must be neutral on the question presented has been rejected as
antiquated.1 Then-Judge Alito rejected the notion that an amicus must act as an
impartial individual ... rather than to advocate a point of view so that a cause may
be won by one party or another. Neonatology Assocs., P.A. v. Commr, 293 F.3d
128, 131 (3rd Cir. 2002) (Chambers Opinion). While there may be some historical
support for the contrary view, this description became outdated long ago. Id.
[A]n amicus who makes a strong but responsible presentation in support of a

1

In this sense, when amicus asserted that it is a friend of the court and not fully
siding with the assertions of any litigant, Lambda Legal was pointing out that it is
not generally aligned with public employers in Georgia or against those asserting
religious exercise rights in the workplace, and indeed has been on the opposite side
of each of those positions. See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)
(successfully representing former public employee in Georgia on sex
discrimination claim); EEOC v. Abercrombie & Fitch Stores, Case No. 14-86,
2014 U.S. S. Ct. Briefs LEXIS 4355 (U.S. Dec. 10, 2014) (filing amicus brief on
behalf of job applicant alleging religious discrimination).
4

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 5 of 11

party can truly serve as the courts friend. Id.; see also NGV Gaming, Ltd. v.
Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1068 (N.D. Cal. 2005)
(amic[i] with partisan interests are now quite common.) (citation omitted); N.C.
Right to Life, Inc. v. Leake, 231 F.R.D. 49, 51 (D.D.C. 2005) (the role of amici
has, over time, appeared more similar to that of an advocate than of purely
disinterested advisers to the court.).2
The experience and competence of party counsel are also irrelevant here;
while amici may be especially helpful when parties are not represented (or
represented well), a court should not conclude that amici are per se unhelpful
where there is competent party counsel. See Neonatology Assocs., P.A., 293 F.3d
at 132 (Even when a party is very well represented, an amicus may provide
important assistance to the court.); Linda Sandstrom Simard, Article, An
Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access,
Efficiency, and Adversarialism, 27 UNIV. OF TEXAS REV. OF LITIG. 669, 672 (2008)
(Insights offered by amici curiae tend to extend beyond the interests of the parties
to the litigation who are presumably adequately represented by their own lawyers

2

Indeed, the rules for amicus briefs on appeal accurately anticipate that many, if
not most of them, will be filed in support of a party, specifying that briefs are due
one week after the filing of the brief of the party that the amicus supports.
5

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 6 of 11

and are generally aimed at protecting the interests of individuals or organizations

who are absent from the proceedings....). Then-Judge Alito properly criticized the
practice of requiring a prospective amicus to undertake the distasteful task of
showing that the attorney for the party that the amicus wishes to support is
incompetent, pointing out that such a process could discourage amici from
making submission[s that] would be valuable to the court. Neonatology Assocs.,
P.A., 293 F.3d at 132. Not only is it the case that amicus briefs are accepted
regularly in the federal appellate courts even when the parties have excellent,
highly experienced counsel, but that is also the case in the Northern District of
Georgia. E.g., Ga. Latino Alliance for Human Rights, 958 F. Supp. 2d at 1355;
Hudgens, 915 F. Supp. 2d at 1349 n.11; Crumly v. Cobb Cnty. Bd. of Elections &
Voter Registration, 892 F. Supp. 2d 1333, 1347 (N.D. Ga. 2012).
II.

Amicus Is Not Introducing an Extraneous Issue.

Contrary to Cochrans assertion, the argument of amicus about Cochrans

misogynist statements does not introduce an extraneous issue.3

3

Cochran also argues that pointing out his misogynist comments is false and
inflammatory and paints him a false and unflattering light. [Doc 18] at 5, 7 (pp.
4, 6 of brief). Amicus certainly agrees that Cochrans own statements which
6

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 7 of 11

Cochran wrote a book with derisive comments about both same-sex

relationships and the decision-making ability of women;
When announcing Cochrans termination, Mayor Reed cited the
policies of the City and his administration against sexual orientation
and gender bias,4 as well as Cochrans alleged failure to comply with
pre-clearance rules for publications;
The City Defendants moved to dismiss Cochrans complaint,
claiming, inter alia, that Cochrans statements were not a matter of
public concern and that he failed to get approval to publish his book,
and that no similarly-situated employee has been retained;
Amicus tendered a brief supplementing the Citys argument by
explaining that it is not religious discrimination or a denial of equal
protection to terminate a city employee for making comments
disparaging of many city residents and undermining city policy, so
long as the City has not retained a non-religious individual who made
similarly derogatory statements;
Cochrans opposition to the filing of the amicus brief takes no issue
with the relevance of amicuss argument about a public employee
making anti-gay comments only a public employee making
misogynist comments.

amicus quoted verbatim from his book are inflammatory and unflattering to him
and the dignity of the post that he held. However, his protestation that there is
anything false calls to mind one who claims to be misquoted in his own
autobiography.
4

I want to be clear that the material in Chief Cochrans book is not representative
of my personal beliefs, and is inconsistent with the Administrations work to make
Atlanta a more welcoming city for all of her citizens regardless of their sexual
orientation, gender, race and religious beliefs. [Doc 1] at 158 (emphasis
supplied).
7

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 8 of 11

It is plain that amicus is not enlarging the issues presented by this motion,
but merely bolstering the City Defendants arguments. While the City Defendants
occasionally allude to the offensive nature of Cochrans public statements, their
central premise is that Cochrans religious beliefs were never an issue until he
published his book without prior approval, and that Cochran cannot invoke his
religious beliefs to excuse his noncompliance with rules. Similarly, amicus argues
that Cochrans religious beliefs were not an issue until he published a book
denigrating lesbians, gay men, and women generally, and, even assuming that the
sentiments are rooted in his religious beliefs, that is irrelevant unless someone
making similarly offensive statements that were not based on his or her religious
beliefs was not fired.
In this case, amicus has a very particular interest in making sure that neither
the Court nor the general public is under the misimpression that Cochrans firing
was legitimate only if he violated procedural rules. Because the City Defendants
make general arguments that would validate the firing for either procedural or
substantive reasons, but clearly focus most of their arguments on the alleged
procedural failure, amicus wants to provide the Court with ample authority
justifying the firing because Cochrans public statements so clearly contravene the
8

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 9 of 11

citys public policy and undermine trust in his leadership and judgment. In short,
amicus seeks to avoid the Court and the general public believing that a highranking public official can make such derogatory comments with impunity. This
complementary role is proper for an amicus such as Lambda Legal, given the City
Defendants emphasis on Cochrans alleged procedural violations:
District courts frequently welcome amicus briefs from non-parties
concerning legal issues that have potential ramifications beyond the parties
directly involved or if the amicus has unique information or perspective
that can help the court beyond the help that the lawyers for the parties are
able to provide.
NGV Gaming, 355 F. Supp. 2d at 1067 (quoting Cobell v. Norton, 246 F. Supp. 2d
59, 62 (D.D.C. 2003)); see also United States v. Alkaabi, 223 F. Supp. 2d 583, 592
(D.N.J. 2002) (the role of an amicus curiae is as a friend of the court who can
assist in a case of general public interest, to supplement the efforts of counsel, and
to draw the courts attention to law that might otherwise escape consideration.).5
To be clear, the point of the amicus brief is that both Cochrans antigay
statements and his misogynist statements undermined the express policies of the

5

Even the Maples case cited by Cochran recognizes that [a]n amicus curiae brief
that brings to the attention of the Court relevant matter not already brought to its
attention by the parties may be of considerable help to the Court. Maples v.
Thomas, No. 5:03-CV-2399-SLB-MHH, 2013 U.S. Dist. LEXIS 135508 at *7
(N.D. Ala. Sept. 22, 2013) (citation omitted).
9

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 10 of 11

City and the professed goals of the mayors administration, and thus each of those
expressions of bias independently justified his termination. But that is an argument
in the alternative, not the introduction of an extraneous issue.
CONCLUSION
Amicus respectfully requests that the Court accept for filing the brief
tendered April 3 [Doc 14] and afford the arguments therein whatever consideration
the Court deems appropriate.
Respectfully submitted,
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
By: /s/ Gregory R. Nevins_____________
Gregory R. Nevins
GA State Bar No. 539529
730 Peachtree St. NE, Suite 1070
Atlanta, GA 30308
Telephone: (404) 897-1880
Facsimile: (404) 897-1884
ATTORNEYS FOR AMICUS CURIAE
Lambda Legal Defense & Education Fund, Inc.

10

Case 1:15-cv-00477-LMM Document 23 Filed 05/01/15 Page 11 of 11

CERTIFICATION UNDER L.R. 7.1D

Pursuant to Northern District of Georgia Local Rule 7.1D, the undersigned
counsel for Plaintiff certifies that the foregoing document is a computer document
prepared in Times New Roman (14 point) font in accordance with Local Rule
5.1B.
So certified this 1st day of May, 2015.
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
/s/ Gregory R. Nevins_________________
Gregory R. Nevins
CERTIFICATION OF SERVICE
I hereby certify that on May 2, 2015, I electronically filed the foregoing
document with the Clerk of Court using the CM/ECF system, which will
automatically send notification of such filing to all counsel of record.
So certified this 1st day of May, 2015.
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
/s/ Gregory R. Nevins_________________
Gregory R. Nevins

11