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Kerry W. Kircher, General Counsel (DC Bar 386816)[email protected] Pittard, Deputy General Counsel (DC Bar 482949)[email protected]
Christine Davenport, Sr. Asst Counsel (NJ Bar 043682000)[email protected] W. Konar, Asst Counsel (DC Bar 979176)[email protected] B. Tatelman, Asst Counsel (VA Bar 66008)[email protected] Beth Walker, Asst Counsel (DC Bar 501033)[email protected]
OFFICE OF GENERAL COUNSELU.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515202-225-9700 (phone)202-226-1360 (fax)
Counsel for Proposed Intervenor the Bipartisan Legal
Advisory Group of the U.S. House of Representatives
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
Western Division
) No. 2:12-cv-00887-CBM (AJWx)TRACEY COOPER-HARRIS and )MAGGIE COOPER-HARRIS, ) NOTICE OF MOTION AND
) UNOPPOSED MOTION OFPlaintiffs, ) PROPOSED INTERVENOR
) FOR CANCELLATION OF
v. ) PRO HAC VICE NOTICE) OR WAIVER OFLOCAL
UNITED STATES OF AMERICA, et al., ) RULE 83-2.3)
Defendants. ) Hearing: May 14, 2012) Time: 10:00 a.m.) Hon. Consuelo B. Marshal
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PLEASE TAKE NOTICE that Proposed Intervenor the Bipartisan Legal
Advisory Group of the U.S. House of Representatives (House) will move this
Court on May 14, 2012, at 10:00 a.m., or as soon thereafter as counsel may be
heard, in the U.S. District Court, Courtroom 2, 312 North Spring Street, Los
Angeles, California 90012, for an order granting the Houses Motion for
Cancellation ofPro Hac Vice Notice or Waiver of Local Rule 83-2.3.
UNOPPOSED MOTION FOR CANCELLATION OFPRO HAC VICE
NOTICE OR WAIVER OF LOCAL RULE 83-2.3
Pursuant to 2 U.S.C. 130f(a) and Rule 7(b) of the Federal Rules of Civil
Procedure, and for the reasons set forth in the accompanying Memorandum of
Points and Authorities, the House respectfully moves for entry of an Order
cancelling the Notice ofPro Hac Vice Application and Filing Fee Due (Apr. 4,
2012) (ECF No. 18) (the Notice), or, in the alternative, for waiver of the
application of Local Rule 83-2.3 in this case to Paul D. Clement, Esq., H.
Christopher Bartolomucci, Esq., Conor B. Dugan, Esq. and Nicholas J. Nelson,
Esq. of the law firm of Bancroft PLLC, 1919 M Street, NW, Suite 470,
Washington, D.C. 20036.
Pursuant to Local Rule 7-3, on April 13, 2012, undersigned counsel
conferred with Christine Sun, counsel for the plaintiffs, and Jean Lin, Senior Trial
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Counsel with the Department of Justice and counsel for the defendants. Both
advised that their clients do not oppose this motion.
A proposed Order is submitted herewith.
MEMORANDUM OF POINTS AND AUTHORITIES
On April 2, 2012, the House moved to intervene in this case as a party
defendant to defend the constitutionality of Section 3 of the Defense of Marriage
Act (DOMA), codified at 1 U.S.C. 7, and 38 U.S.C. 101(3), (31). See
Unopposed Mot. of the [House] for Leave to Intervene (Apr. 2, 2012) (ECF No.
17). The House so moved so because the Department of Justice has abdicated its
responsibility to defend those statutes. See Mem. of P. & A. in Supp. of
Unopposed Mot. of the [House] for Leave to Intervene at 3-6 (Apr. 2, 2012) (ECF
No. 19) (House Intervention Memo). The House is represented in this matter by
the law firm of Bancroft PLLC and specifically by four of its attorneys, Messrs.
Clement, Bartolomucci, Dugan and Nelson pursuant to a Contract for Legal
Services entered into between Bancroft and House General Counsel Kerry W.
Kircher in April 2011 (Contract for Legal Services). A copy of the Contract for
Legal Services is attached as Exhibit A. The House General Counsel and his staff
are Of Counsel in this matter.
On April 4, 2012, the Clerk of the Court issued to Messrs. Clement,
Bartolomucci, Dugan and Nelson the Notice which recites that:
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Your Pro Hac Vice application has not been received by
the court. Please return your completed Application of
Non-Resident Attorney to appear in a Specific Case,
form G-64, or a copy of the Notice of Electronic Filing of
your application and the $325.00 fee and this notice
immediately. Out-of-state federal government
employees who are not employed by the U.S.
Department of Justice are required to file a Pro Hac Vice
application; no filing fee is required.
Notice at 1.
As we now explain, this Court should (i) cancel the Notice, pursuant to 2
U.S.C. 130f(a) which explicitly exempts the Bancroft attorneys from
compliance with any requirements for admission to practice before this Court;
and/or (ii) cancel the filing fee requirement as to Messrs. Clement, Bartolomucci,
Dugan and Nelson, pursuant to the Mem. of Leonidas Ralph Mecham, Director,
Administrative Office of the United States Courts, to All Clerks, United States
Courts (Aug. 10, 1998) (Mecham Memo), attached as Exhibit B. In the
alternative, the Court should (iii) waive the application of Local Rule 83-2.3 in this
case as to Messrs. Clement, Bartolomucci, Dugan and Nelson.
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ARGUMENT
I. Bancroft Is Statutorily Exempt from This Courts Admission
Requirements in This Case.
Section 130f(a) of title 2 of the United States Code provides, in pertinent
part, that:
The General Counsel of the House of Representatives
and any other counsel in the Office of the General
Counsel of the House of Representatives, including any
counsel specially retained by the Office of General
Counsel, shall be entitled, for the purpose of performing
the counsel's functions, to enter an appearance in any
proceeding before any court of the United States . . .
without compliance with any requirements for admission
to practice before such court . . . .
(emphasis added).
The General Counsel of the House of Representatives defined in the
statute as the head of the Office of General Counsel established and operating
under clause 8 of rule II of the Rules of the House of Representatives, id.
130f(c)(1) currently is Mr. Kircher. See Press Release,Boehner Taps Kerry
Kircher to Serve as House General Counsel for 112th Congress (Jan. 3, 2011),
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attached as Exhibit C. Mr. Kircher specially retained Bancroft to represent the
House in this and other cases that challenge the constitutionality of DOMA Section
3. See Contract for Legal Services at 1, 4.
Accordingly, the Bancroft attorneys fall squarely within the language
including any counsel specially retained by the Office of General Counsel, 2
U.S.C. 130f(a), and, as such, are statutorily exempt from compliance with this
Courts admission-to-practice rules (Local Rule 83-2.3) and filing fee
requirements.
To date, the Bancroft attorneys have appeared on behalf of the House in ten
other federal cases that challenge the constitutionality of DOMA Section 3, and
none of the courts in which they have appeared has required them to be admitted
pro hac vice or to pay any filing fees including this Court inLui v. Holder, 2:11-
cv-01267 (C.D. Cal. 2011).1
1See also Civil Dockets for Torres-Barragan v. Holder, No. 10-55768 (9thCir.); Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.);
Massachusetts v. U.S. Dept of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir.);Revelis v. Napolitano, No. 1:11-cv-01991 (N.D. Ill.); Cozen OConnor v. Tobits,No. 2:11-cv-00045 (E.D. Pa.);Bishop v. United States, No. 4:04-cv-00848 (N.D.Okla.);Dragovich v. U.S. Dept of the Treasury, No. 4:10-cv-01564 (N.D. Cal.);Golinski v. U.S. Office of Pers. Mgmt., No. 3:10-cv-00257 (N.D. Cal.); Windsor v.United States, No. 1:10-cv-08435 (S.D.N.Y.); Pedersen v. U.S. Office of Pers.
Mgmt., No. 3:10-cv-01750 (D. Conn.).
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II. The Mecham Memo Exempts Bancroft Attorneys from PayingPro Hac
Vice Fees.
The Mecham Memo provides, in pertinent part, that, [i] keeping with the
spirit of Judicial Conference policy . . .pro hac vice fees should not be charged to
federal government attorneys. Mecham Memo at 1. The provisions of the
Mecham Memo are reflected in the Notice itself. See Notice at 1 (no filing fee
required of [o]ut-of-state federal government attorneys who are not employed by
the U.S. Department of Justice).
In this case, the Bancroft attorneys plainly are acting as federal government
attorneys. Not only have they been retained by the House General Counsel, and
not only are they representing the House (part of the Article I branch of the federal
government) in the litigation, but here they are doing the job that constitutionally is
assigned to but in this case abandoned by the Executive Branch. See House
Intervention Memo at 3-6.
For this additional reason, the Court should cancel the Notice to the extent it
requires the Bancroft attorneys to pay filing fees.
III. Alternatively, This Court Should Waive thePro Hac Vice Application
and Fee Requirements.
Finally, and in the alternative, this Court can and should waive the
application in this case of Local Rule 83-2.3 (and the associated filing fees) as to
the Bancroft attorneys. Such a waiver would be in the spirit of Judicial
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Conference policy, Mecham Memo at 1, which presumably refers to the
promotion of comity between the various branches of the federal government.
Furthermore, such a waiver would be appropriate in light of the fact, as noted
above, that the Bancroft attorneys, are doing the job in this case that is
constitutionally assigned to the Executive Branch. Seesupra p. 6.
CONCLUSION
For all the foregoing reasons, the Houses motion should be granted.
Respectfully submitted,
/s/ Kerry W. Kircher
Kerry W. Kircher, General Counsel
Office of the General CounselU.S. House of Representatives
Counsel for Proposed Intervenor-Defendantthe Bipartisan Legal Advisory Group of the
U.S. House of Representatives
April 13, 2012
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CERTIFICATE OF SERVICE
I certify that on April 13, 2012, I served one copy of the foregoing Notice of
Motion and Unopposed Motion of Proposed Intervenor for Cancellation ofPro
Hac Vice Notice or Waiver of Local Rule 83-2.3, by CM/ECF on all registered
parties.
/s/ Kerry W. Kircher
Kerry W. Kircher
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Exhibit A
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Exhibit B
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Exhibit C
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Washington (Jan 3, 2011)
PRESS RELEASE
Boehner Taps Kerry K i rche r to Serve as House General Counsel for112th Congress
House Speaker-designate John Boehner (R-OH) today announced he has named
Kerry Kircher to serve as General Counsel for he U.S. House of Representatives for the 112th Congress.
Kircher, a native of Iowa and 1981 graduate of Michigan Law School, has served as Deputy General Counsel
for the House since 1996. He first joined the Office of the General Counsel in 1995.
Im very pleased Kerry has agreed to serve the Peoples House in this important post. He has been a
stalwart defender of the prerogatives and precedents of the House, and there is no individual I know who is
more ready or more qualified for the job. Im grateful for his willingness to serve, said Boehner. The
institution and the Members who serve it deserve continuity and professionalism in the offices that serve the
House. As is the case with all of the individuals who have agreed to serve in these key posts, Kerry more
than fulfills those needs.
The role of the House General Counsel is to represent and advise, on a non-partisan basis, House Members,
Committees, officers, employees and offices on matters arising from performance of their official duties.
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HOME ABOUT NEWS BLOG CONTACT
ner Taps Kerry Kircher to Serve as House General Counsel for 112t... http://www.speaker.gov/News/DocumentSingle.aspx?DocumentID
4/13/2012 1
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Western Division
)
TRACEY COOPER-HARRIS and ) No. 2:12-cv-00887-CBM (AJWx)
MAGGIE COOPER-HARRIS, )
)
Plaintiffs, )
)
v. )
) )
UNITED STATES OF AMERICA, et al., )
)Defendants. )
)
UPON CONSIDERATION OF the Unopposed Motion of Proposed
Intervenor for Cancellation ofPro Hac Vice Notice or Waiver of Local Rule 83-
2.3 (Motion), and the entire record herein, it is by the Court on this ___ day of
______ 2012, ORDERED
That the Motion is GRANTED for all the reasons stated in the Memorandum
of Points and Authorities filed in support of the Motion. It is FURTHER
ORDERED
That the Notice ofPro Hac Vice Application and Filing Fee Due (Apr. 4,
2012) (ECF No. 18) be and hereby is CANCELLED.
___________________________________
CONSUELO B. MARSHALL
U.S. DISTRICT JUDGE
[PROPOSED] ORDER
Case 2:12-cv-00887-CBM-AJW Document 29-4 Filed 04/13/12 Page 1 of 1 Page ID #:251