Case: 10-2207 Document: 00116230667 ALSO filed in Cases 10-2204, 10-2214

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Date Filed: 07/09/2011

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Nos. 10-2204, 10-2207, 10-2214

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

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COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants-Appellants.
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NANCY GILL, et al., Plaintiffs-Appellees, DEAN HARA, Plaintiff-Appellee/CrossAppellant, v. OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/CrossAppellees.
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On Appeal from Final Orders of the U.S. District Court for the District of Massachusetts
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CORRECTED RESPONSE OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES TO THE GILL APPELLEES PETITION FOR HEARING EN BANC

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Pursuant to this Courts Order of June 23, 2011, Intervenor-Appellant the Bipartisan Legal Advisory Group of the United States House of Representatives (the House) hereby responds to the petition for hearing en banc (Petition) filed by Plaintiffs-Appellees in No. 10-2207 (Gill Plaintiffs). Although a panel is perfectly capable of hearing and deciding this case, the House does not oppose the Petition, as explained below. 1. The House believes that a panel of this Court is fully capable of

hearing and deciding this important case involving Section 3 of the Defense of Marriage Act, 1 U.S.C. 7, just as a panel was fully capable of deciding (and did decide) the important case involving the federal Dont Ask, Dont Tell statute. See Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009). In Cook, this Court denied two petitions for rehearing en banc. See Exhibits 1 and 2. There is no obvious reason for this Court to follow a different procedural path here. 2. While a panel can decide this case, if this Court believes it is likely to

review en banc any decision rendered by a panel on DOMAs constitutionality, this Court should grant initial en banc hearing in the interest of expedition. If en banc review is inevitable, there is no reason for delay. In light of the executive branchs extraordinary decision to enforce but not defend Section 3 of DOMA, a definitive determination of Section 3s constitutionality by the Supreme Court
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seems all but inevitable. It is in all parties interest that the Supreme Court resolve this issue sooner, rather than later. Thus, if en banc review will eventually occur, it should occur expeditiously. On that basis, the House does not oppose the Petition. If, however, the Court believes that en banc review of a panel decision will be no more necessary here than in Cook, the Court should deny the Petition. 3. The Houses non-opposition to the Petition is contingent upon its

understanding that the Petition seeks initial en banc hearing of all three consolidated appeals, Nos. 10-2204, 10-2207, and 10-2214. These related cases should not be decided piecemeal or divided between a panel and the full Court. If the Court grants en banc hearing, it should do so as to all three appeals. The House would oppose initial en banc hearing of Gill (No. 10-2207) if en banc hearing were not also granted in Massachusetts (No. 10-2204). The position of the

Commonwealth appears to be consistent with the Houses position. See Response by Commonwealth of Massachusetts to Petition for Hearing En Banc by PlaintiffsAppellees Nancy Gill, et al., at 1 (June 29, 2011) (ECF No. 00116227185) (stating that the Commonwealth does not oppose the petition for a hearing en banc of these consolidated appeals should the Court deem it appropriate) (emphasis added). 4. The Gill Appellees assert that Cook is not binding as to the level of

scrutiny due classifications based on sexual orientation. Petition at 10. Appellees

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are mistaken. In Cook, this court considered the constitutionality of the federal Dont Ask, Dont Tell Act, 10 U.S.C. 654. The plaintiffs in Cook

contend[ed] that the district court erred by applying rational basis review to the Act and that the Supreme Courts decisions in Romer . . . and Lawrence mandate a more demanding standard. Cook, 528 F.3d at 61 (citation omitted). This Court expressly rejected those contentions, holding that neither Romer [v. Evans] nor Lawrence mandate heightened scrutiny of the Act because of its classification of homosexuals. Id. (citation omitted). This Court stated: Absent additional guidance from the Supreme Court, we join our sister circuits in declining to read Romer as recognizing homosexuals as a suspect class for equal protection purposes. Lawrence does not alter this conclusion. Id. (citing cases from the Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits). This Court further held that the district court was correct to analyze the plaintiffs equal protection claim under the rational basis standard and that the Act survives rational basis review. Id. at 61, 62. The brief filed by the United States Department of Justice (DOJ) in this case agrees that Cook is binding circuit precedent on the standard of review to be applied. DOJs brief states: This Circuit has held that classifications on the basis of sexual orientation do not trigger heightened scrutiny under the Fifth Amendment. Cook, 528 F.3d at 62. Corrected Brief for the U.S. Department of
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Health and Human Services et al. at 24-25 (Jan. 19, 2011) (ECF No. 0116160305) . DOJs brief continues: Thus, under this Courts binding precedent, DOMA is subject to rational basis review under the equal protection component of the Due Process Clause. Under such review the statute is fully supported by several

interrelated rational bases. Id. at 25. The Gill Appellees are also wrong when they contend that whether sexual orientation is a suspect or quasi-suspect classification was not even argued to the Court in Cook. Petition at 10. The plaintiffs in that case contend[ed] that the district court erred by applying rational basis review, Cook, 528 F.3d at 61, which could only have been error if sexual orientation were a suspect or quasi-suspect class. Furthermore, DOJ expressly argued that sexual orientation is not a suspect class and that rational basis was the proper standard of review. See, e.g., Brief for the Appellees at 24, Cook v. Gates, No. 06-2313 (1st Cir. Dec. 22, 2006) (The Cook Appellants equal protection claim likewise is subject to traditional rational basis review.); id. at 36 (Although this Court has not had occasion to address the issue, seven other courts of appeals have concluded that gays and lesbians do not constitute a suspect class or quasi-suspect class.). The Gill Appellees assert there is apparent confusion as to the role of Cook in this analysis. Petition at 12. Not so. The holding of Cook is perfectly clear: sexual orientation classifications are subject to rational basis review. 528 F.3d at
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61, 62. Appellees may themselves be confused, or they may be trying to sow confusion, but Cook is clear and binding. 5. However this Court decides the Petition, it should extend the briefing

schedule to account for the pendency of the Petition and the resulting uncertainty about whether the House should be drafting a brief for a panel or the en banc court. This Court granted the Houses motion to intervene as a party appellant and issued a briefing schedule on June 16, 2011. Under that schedule, the Houses opening brief is due on July 18, 2011. The Gill Appellees did not file their Petition until June 21, 2011. They could have filed a petition for initial en banc hearing well before that date, and they offered in their Petition no reason for their failing to do so before this Court issued a briefing schedule. The House was not authorized to respond to the Petition to raise this concern until this Court, on June 23, 2011, directed all parties to respond by July 7, 2011. See Fed. R. App. P. 35(e); see also Order of Court at 2 (June 23, 2011) (ECF No. 00116224235). As things now stand, the House does not know whether it is writing a brief for a panel or the full Court. This makes a difference inasmuch as a panel is dutybound to follow and apply Circuit precedent, including Cook, whereas the full Court would have a freer hand to reconsider Circuit precedent, including Cook (although not in the absence of a compelling reason to depart from stare decisis and overrule a precedent that the Court declined to rehear en banc so recently).
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The parties responses to the Petition are due on July 7, 2011 just 11 days before the Houses brief is due under the current schedule. Therefore, the House respectfully requests that the briefing schedule set forth in the Order of June 16, 2011, be modified so that the Houses brief and DOJs superseding brief are due 30 days from the date of the Courts order ruling on the Petition. accordingly. The remainder of the briefing schedule should be adjusted

Respectfully submitted,

/s/Conor B. Dugan__________________ Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives

Of Counsel Kerry W. Kircher, General Counsel Christine Davenport, Sr. Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel
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Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (phone) (202) 226-1360 (fax) July 7, 2011

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CERTIFICATE OF SERVICE On July 9, 2011, I filed electronically, with the Clerk of the Court for the U.S. Court of Appeals for the First Circuit, using the appellate CM/ECF system, the foregoing Corrected Response of the Bipartisan Legal Advisory Group of the United States House of Representatives to the Gill Appellees Petition for Hearing En Banc. I further certify that all parties in this case are registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/Conor B. Dugan

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EXHIBIT 1

Case: 10-2207 Document: 00116230667 Case: 06-2313 Document: 0011153404

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Date Filed: 08/08/2008 Date Filed: 07/09/2011

Entry ID: 5267961 Entry ID: 5563810

United States Court of Appeals

For the First Circuit
____________________________ No. 06-2313 THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER; DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN; JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ Plaintiffs - Appellants _______________________ JAMES E. PIETRANGELO, II Plaintiff v. ROBERT M. GATES, Secretary of Defense; MICHAEL CHERTOFF, Secretary of Homeland Security; UNITED STATES Defendants - Appellees ____________________________ No. 06-2381 THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER; DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN; JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ, Plaintiffs ___________________________ JAMES E. PIETRANGELO, II Plaintiff - Appellant v. ROBERT M. GATES, Secretary of Defense; MICHAEL CHERTOFF, Secretary of Homeland Security; UNITED STATES Defendants - Appellees

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Entry ID: 5267961 Entry ID: 5563810

____________________________ Before Lynch, Chief Judge, Campbell, Torruella, Boudin*, Lipez* Howard, Circuit Judges, and Saris**, District Judge. _______________________________ ORDER OF COURT Entered: August 8, 2008 The petition for rehearing filed by appellants Thomas Cook, Megan Dresch, Laura Galaburda, Jack Glover, David Hall, Monica Hill, Jenny Lynn Kopfstein, Jennifer McGinn, Justin Peacock, Derek Sparks and Stacy Vasquez in 06-2313 having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied.

By the Court: /s/ Richard Cushing Donovan, Clerk cc: Stuart F. Delery Jonathon A. Shapiro Julian Davis Mortenson Craig Earl Estes Carey Bollinger Barry C. Hodge Steven W. Fitschen Luke C. Platzer Sarah R. Wunsch Matthew A. Coles John Edward Bies Susan Sommer Robert N. Weiner Aaron David Tax Eamon P. Joyce Sharra E. Greer Kenneth Y. Choe Kathi S. Westcott

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Entry ID: 5267961 Entry ID: 5563810

Mary L. Bonauto Gary D. Buseck D. Jean Veta Virginia A. Seitz Rose A. Saxe William M. Hohengarten Gregory G. Katsas Mark T. Quinlivan Tobias B. Wolff Christopher Paul Anderson James E. Pietrangelo Emily B. Hecht

______________________ *Judge Boudin and Judge Lipez are recused and did not participate in the consideration of this matter. **Of the District of Massachusetts, sitting by designation.

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EXHIBIT 2

Case: 10-2207 Document: 00116230667 Case: 06-2381 Document: 0011153403

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Date Filed: 08/08/2008 Date Filed: 07/09/2011

Entry ID: 5267960 Entry ID: 5563810

United States Court of Appeals

For the First Circuit
____________________________ No. 06-2313 THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER; DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN; JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ Plaintiffs - Appellants _______________________ JAMES E. PIETRANGELO, II Plaintiff v. ROBERT M. GATES, Secretary of Defense; MICHAEL CHERTOFF, Secretary of Homeland Security; UNITED STATES Defendants - Appellees ____________________________ No. 06-2381 THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER; DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN; JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ, Plaintiffs ___________________________ JAMES E. PIETRANGELO, II Plaintiff - Appellant v. ROBERT M. GATES, Secretary of Defense; MICHAEL CHERTOFF, Secretary of Homeland Security; UNITED STATES Defendants - Appellees

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Entry ID: 5267960 Entry ID: 5563810

____________________________ Before Lynch, Chief Judge, Campbell, Torruella, Boudin*, Lipez* Howard, Circuit Judges, and Saris**, District Judge. _______________________________ ORDER OF COURT Entered: August 8, 2008 Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en banc filed by appellant James Pietrangelo, II in 06-2381 has also been treated as a petition for rehearing before the original panel. The petition for rehearing having been denied by the panel of judges who decided the case and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and petition for rehearing en banc be denied.

By the Court: /s/ Richard Cushing Donovan, Clerk cc: Stuart F. Delery Jonathon A. Shapiro Julian Davis Mortenson Craig Earl Estes Carey Bollinger Barry C. Hodge Steven W. Fitschen Luke C. Platzer Sarah R. Wunsch Matthew A. Coles John Edward Bies Susan Sommer Robert N. Weiner Aaron David Tax Eamon P. Joyce Sharra E. Greer Kenneth Y. Choe Kathi S. Westcott

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Entry ID: 5267960 Entry ID: 5563810

Mary L. Bonauto Gary D. Buseck D. Jean Veta Virginia A. Seitz Rose A. Saxe William M. Hohengarten Gregory G. Katsas Mark T. Quinlivan Tobias B. Wolff Christopher Paul Anderson James E. Pietrangelo Emily B. Hecht

______________________ *Judge Boudin and Judge Lipez are recused and did not participate in the consideration of this matter. **Of the District of Massachusetts, sitting by designation.