Case: 10-2204 Document: 00116137445 Page: 1 Date Filed: 11/18/2010 Entry ID: 5505288

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

COMMONWEALTH OF MASSACHUSETTS )
Plaintiff-Appellee, )
) No. 10-2204
v. )
)
UNITED STATES DEPARTMENT OF HEALTH )
AND HUMAN RESOURCES, et al., )
Defendants-Appellants. )
)
)
DEAN HARA, )
Plaintiff-Appellee/Cross-Appellant, )
)
NANCY GILL, et al., )
Plaintiffs-Appellees )
) Nos. 10-2207;
v. ) 10-2214
)
OFFICE OF PERSONNEL MANAGEMENT, et al., )
Defendants-Appellants/Cross-Appellees. )
)

UNOPPOSED MOTION TO CONSOLIDATE APPEALS

FOR PURPOSES OF BRIEFING AND ARGUMENT
AND TO MODIFY BRIEFING SCHEDULES

For the reasons set forth below, the federal government appellants – United

States Department of Health and Human Resources, et al., and the Office of Personnel

Management, et al. – respectfully request that these related appeals be consolidated

for purposes of briefing and argument. Currently, the Court has established separate

briefing schedules for these cases, with the federal appellants’ opening brief due in
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Commonwealth of Massachusetts v. United States Department of Health and Human

Resources, et al., No. 10-2204, on December 13, 2010, and in Nancy Gill, et al. v.

Office of Personnel Management, et al., No. 10-2207, on December 27, 2010. Both

cases present challenges to the constitutionality of Section 3 of the Defense of

Marriage Act, 1 U.S.C. § 7; and Dean Hara v. Office of Personnel Management, et

al., No. 10-2214, is a cross-appeal in Gill. To conserve resources for the Court and

facilitate the orderly and efficient presentation, consideration and resolution of these

cases, the federal appellants respectfully request that the Court enter the following

consolidated briefing schedule for the appeals in Gill and Massachusetts, and the

cross-appeal in Hara. We further request that the Court schedule argument for these

appeals before the same panel on the same day.

1. Section 3 of the Defense of Marriage Act (“DOMA”) defines, for the

purposes of any federal law, the word “marriage” as a “legal union between one man

and one woman” and the word “spouse” as “a person of the opposite sex who is a

husband or a wife.” 1 U.S.C. § 7. In Gill, No. 10-2207, plaintiffs are same-sex

couples who are married under Massachusetts law. They are seeking federal benefits

that they assert are available to opposite-sex married couples but by operation of

Section 3 of DOMA are not available to them. Plaintiffs challenged the

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constitutionality of Section 3 of DOMA, arguing that the statute denies them equal

protection of the law.

The district court granted summary judgment to plaintiffs, holding that Section

3 of DOMA violates equal protection because it is not rationally related to a

legitimate government interest. The district court enjoined application of Section 3

of DOMA to plaintiffs but, upon joint motion of the parties, stayed this injunction

pending appeal. Defendants appealed this judgment in No. 10-2207. One plaintiff,

Dean Hara, in No. 10-2214, cross-appealed the district court’s dismissal of one of his

claims for lack of standing.

2. In Massachusetts, No. 10-2207, Massachusetts challenged the application

of Section 3 of DOMA to programs where it receives funding from the federal

government, arguing that the statute violates the Spending Clause and the Tenth

Amendment.

The district court granted summary judgment to Massachusetts, holding that

Section 3 of DOMA violates the Spending Clause by requiring the state to engage in

unconstitutional discrimination against its own citizens in administering federally

funded programs. In so doing, the district court referenced its opinion in Gill, and

Gill’s holding on equal protection was the sole basis for the Spending Clause ruling

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in Massachusetts. The district court also held that Section 3 of DOMA violates the

Tenth Amendment by exceeding federal authority under the Spending Clause and by

intruding into an area of exclusive state authority. The district court enjoined

application of Section 3 of DOMA to Massachusetts but, as in Gill, upon the parties’

joint motion, stayed this injunction pending appeal.

3. Both of these cases present the identical legal issue of whether Section 3 of

DOMA violates principles of equal protection. This issue is presented directly in Gill

and through the Spending Clause challenge in Massachusetts. The district court ruled

in plaintiffs’ favor in both cases primarily on this issue. The only issues not common

to both cases are whether, even if Congress had authority to enact Section 3 of

DOMA under the Spending Clause, the statute still violates the Tenth Amendment,

and whether plaintiff Hara has standing to pursue one of his claims in Gill.

Given the predominance of common legal issues concerning the same statutory

provision, separate briefing and argument of these appeals are not warranted.

Consolidation will conserve resources for both the Court and the parties and will

facilitate an orderly presentation and resolution of these appeals. Accordingly, we

respectfully submit that it is appropriate to consolidate Gill (No. 10-2207) and its

cross-appeal Hara (No. 10-2214) with Massachusetts (No. 10-2204), for purposes of

briefing and oral argument.

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4. If these appeals are consolidated, the federal government appellants propose

that the Court establish the following briefing schedule and word limits for each of

the parties’ briefs:

• Federal appellants’ consolidated opening principal brief and joint

appendix in Gill and Massachusetts due December 23, 2010. 21,000
word limit.

• Appellees’ response brief in Gill and Cross-Appellant’s opening

principal brief in Hara due February 8, 2011. 16,500 word limit.

• Appellee’s response brief in Massachusetts due February 8, 2011.

14,000 word limit.

• Federal appellants’ consolidated reply brief in Gill and Massachusetts,

combined with response brief in Hara cross-appeal, due March 14,
2011. 16,500 word limit.

• Cross-Appellant’s reply brief in Hara due March 31, 2011. 7,000 word
limit.

5. We have contacted counsel for appellee in Massachusetts, who have

authorized us to state that they consent to this motion. In addition, we have contacted

counsel for the appellees in Gill and the cross-appellant in Hara, who have authorized

us to state that they consent to this motion while not agreeing with the movants'

characterizations of the case.

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CONCLUSION

For the foregoing reasons, the federal government appellants respectfully

request that the Court consolidate for purposes of briefing and oral argument appeal

Nos. 10-2204, 10-2207 and 10-2214, and establish the briefing schedule proposed

above.

Respectfully submitted,

TONY WEST
Assistant Attorney General

s/ Michael Jay Singer

MICHAEL JAY SINGER
(202) 514-5432

s/ August Flentje
AUGUST FLENTJE
(202) 514-3309

s/ Benjamin S. Kingsley
BENJAMIN S. KINGSLEY
(202) 353-8253

Attorneys, Appellate Staff

Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W., Rm. 7261
Washington, D.C. 20530-0001

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CERTIFICATE OF SERVICE

I hereby certify that on November 18, 2010, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the First Circuit

by using the appellate CM/ECF system. I further certify that all participants in the

case are registered CM/ECF users and will be served by the appellate CM/ECF

system.

s/ Benjamin S. Kingsley
BENJAMIN S. KINGSLEY
(202) 353-8253

Attorney, Appellate Staff

Civil Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W., 7261
Washington, D.C. 20530-0001