By Cm/Ecf: Pedersen, Et Al. v. Office of Personnel Management, Et Al.

Case: 12-3872
Document: 64
Page: 1
01/07/2013
809113
January 7, 2013 BY CM/ECF Catherine OHagan Wolfe, Clerk of the Court U.S. Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 Re: Pedersen, et al. v. Office of Personnel Management, et al., Nos. 12-3273 & 12-3872 (2d Cir.)
Dear Ms. OHagan Wolfe: I write on behalf of Appellant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) to advise the Court that, in light of (i) this Courts Order of November 28, 2012; (ii) a pending motion to stay filed by the Department of Justice (Department) on behalf of the Executive Branch defendants, which is unopposed; and (iii) the Supreme Courts grant of certiorari in United States v. Windsor, No. 12-307 (Dec. 7, 2012) (a case which raises the same constitutional issue as the two Pedersen appeals), the House proposes not to file a brief in No. 12-3872 on January 10, 2013, unless directed otherwise by the Court. By way of background, on August 21, 2012, the Executive Branch defendants appealed the lower court ruling in Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-1750, F. Supp. 2d , 2012 WL 3113883 (D. Conn. July 31, 2012). See Notice of Civil Appeal, No. 12-3273 (Aug. 21, 2012) (ECF No. 1).1 That appeal was docketed as No. 12-3273. The Department sought, and was granted, leave to file its opening brief in No. 12-3273 on November 27, 2012. See Order (Sept. 17, 2012) (ECF No. 48). Subsequently, on September 26, 2012, the House also appealed the lower courts ruling in Pedersen. See Notice of Civil Appeal, No. 12-3872 (Sept. 28, 2012) (ECF No. 53). The House sought, and was granted, leave to file its opening brief in No. 12-3872 on January 10, 2013. See Letter from Paul D. Clement, to Catherine OHagan Wolfe, Clerk of the Court (Oct. 17, 2012) (ECF No. 94); Order (Nov. 16, 2012) (ECF No. 108). The two appeals have not been formally consolidated. On November 16, 2012, the Department moved to stay briefing in both appeals. See [Dept]s Mem. in Supp. of Mot. to Hold Appeals in Abeyance Pending S. Ct. Review (Nov. 16, 2012) (ECF No. 109). On November 28, 2012, one day after the Departments opening brief was due (but was not filed) in No. 12-3272, the Court directed that:
All ECF numbers referenced herein refer to the docket numbers assigned in No. 12 1919 M Street, N.W. Suite 470 Washington D.C. 20036 Telephone 202.234.0090 www.bancroftpllc.com Facsimile 202.234.2806
3273.
Case: 12-3872
Document: 64
Page: 2
01/07/2013
809113
Catherine OHagan Wolfe, Clerk of the Court January 7, 2013 Page 2 of 2
If certiorari is denied, movants may file their brief no later than 14 days after the denial, no further extensions. If certiorari is granted, the parties shall consult with staff attorneys as to whether an agreement to hold the case in abeyance can be reached. If an agreement cannot be reached, a motion to hold the cases in abeyance shall be referred to the court. Order (Nov. 28, 2012) (ECF No. 114) (November 28 Order). On December 7, 2012, the Supreme Court granted certiorari in United States v. Windsor, No. 12-307. See Order Granting Cert., United States v. Windsor, No. 12-307, S. Ct. , 2012 WL 4009654 (Dec. 7, 2012). Two petitions for certiorari before judgment filed by the Department and the Plaintiffs-Appellees in this case remain pending before the Supreme Court. See S. Ct. Docket, Pedersen, et al. v. Office of Pers. Mgmt. et al., No. 12-231, available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-231.htm (no action taken since petition distributed for conference on December 7, 2012); S. Ct. Docket, Office of Pers. Mgmt. et al. v. Pedersen et al., No. 12-302, available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-302.htm (same). Because the merits question presented to the Supreme Court in Windsor is identical to the issue presented in the two Pedersen appeals, the Department with the concurrence of the House and the Plaintiffs-Appellees, and in accordance with this Courts November 28 Order moved to stay both Pedersen appeals pending the Supreme Courts ruling in Windsor. See Consent Mot. to Hold Appeals in Abeyance Pending Supreme Court Review (Dec. 19, 2012) (ECF No. 115). The Departments motion is pending at this time. Under these circumstances, and given that counsel for the House is currently consumed with drafting a merits brief in Windsor which is due to be filed with the Supreme Court on January 22, 2013, see Order in Pending Case, United States v. Windsor, No. 12-307 (Dec. 14, 2012), available at http://www.supremecourt.gov/orders/courtorders/121412zr_ap6c.pdf, the House proposes not to file a brief in No. 12-3872 on January 10, 2013, unless directed otherwise by the Court. Thank you for your attention.
Respectfully submitted, /s/ Paul D. Clement Paul D. Clement Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives

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