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    Of Counsel:: United States District Court Northern District of California

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    Equality Case Files
    The Bipartisan Legal Advisory Group of the U.S. House of Representatives opposes the plaintiffs' motion to extend the time to file a motion for attorney's fees against the intervenor-defendant. The opposition argues that there is no legal basis under the Equal Access to Justice Act or other statutes for awarding attorney's fees against the House. As the House is not an agency or official of the United States, it cannot be held liable for fees under the EAJA. Additionally, the plaintiffs did not assert any claims against the House in their amended complaint. Therefore, the court should not permit a frivolous fee motion against the House and should not extend the filing time.

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    Of Counsel:: United States District Court Northern District of California

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    Equality Case Files
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    The Bipartisan Legal Advisory Group of the U.S. House of Representatives opposes the plaintiffs' motion to extend the time to file a motion for attorney's fees against the intervenor-defendant. The opposition argues that there is no legal basis under the Equal Access to Justice Act or other statutes for awarding attorney's fees against the House. As the House is not an agency or official of the United States, it cannot be held liable for fees under the EAJA. Additionally, the plaintiffs did not assert any claims against the House in their amended complaint. Therefore, the court should not permit a frivolous fee motion against the House and should not extend the filing time.

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    Doc #129 - BLAG's Opposition to Plaintiffs' motion for extension of time

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    4:10-cv-01564 #129

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    The Bipartisan Legal Advisory Group of the U.S. House of Representatives opposes the plaintiffs' motion to extend the time to file a motion for attorney's fees against the intervenor-defendant. The opposition argues that there is no legal basis under the Equal Access to Justice Act or other statutes for awarding attorney's fees against the House. As the House is not an agency or official of the United States, it cannot be held liable for fees under the EAJA. Additionally, the plaintiffs did not assert any claims against the House in their amended complaint. Therefore, the court should not permit a frivolous fee motion against the House and should not extend the filing time.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    58 views4 pages

    Of Counsel:: United States District Court Northern District of California

    Uploaded by

    Equality Case Files
    The Bipartisan Legal Advisory Group of the U.S. House of Representatives opposes the plaintiffs' motion to extend the time to file a motion for attorney's fees against the intervenor-defendant. The opposition argues that there is no legal basis under the Equal Access to Justice Act or other statutes for awarding attorney's fees against the House. As the House is not an agency or official of the United States, it cannot be held liable for fees under the EAJA. Additionally, the plaintiffs did not assert any claims against the House in their amended complaint. Therefore, the court should not permit a frivolous fee motion against the House and should not extend the filing time.

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    of 4

    Case4:10-cv-01564-CW Document129 Filed06/08/12 Page1 of 4

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    Paul D. Clement (DC Bar 433215), [email protected] H. Christopher Bartolomucci (DC Bar 453423), [email protected] Conor B. Dugan (DC Bar 1006458), [email protected] Nicholas J. Nelson (DC Bar 1001696), [email protected] BANCROFT PLLC 1919 M Street, Northwest, Suite 470 Washington, District of Columbia 20036 202-234-0090 (phone); 202-234-2806 (fax) Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816), [email protected] William Pittard, Deputy General Counsel (DC Bar 482949), [email protected] Christine Davenport, Senior Assistant Counsel (NJ Bar), [email protected] Kirsten W. Konar, Assistant Counsel (DC Bar 979176), [email protected] Todd B. Tatelman, Assistant Counsel (VA Bar 66008), [email protected] Mary Beth Walker, Assistant Counsel (DC Bar 501033), [email protected] OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, District of Columbia 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA __________________________________________ ) MICHAEL DRAGOVICH, et al., ) No. CV 4:10-01564-CW ) Plaintiffs, ) OPPOSITION TO PLAINTIFFS ) MOTION FOR EXTENSION OF v. ) TIME BY THE BIPARTISAN ) LEGAL ADVISORY GROUP OF U.S. DEPARTMENT OF THE TREASURY, et al., ) THE U.S. HOUSE OF ) REPRESENTATIVES Defendants. ) _________________________________________ )

    OPPOSITION TO PLAINTIFFS MOTION FOR EXTENSION OF TIME BY THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, NO. CV-4:10-01564-CW

    Case4:10-cv-01564-CW Document129 Filed06/08/12 Page2 of 4

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    Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) respectfully opposes Plaintiffs Administrative Motion . . . to Extend Time to File Motion for . . . Attorneys Fees . . . as to Intervener (ECF No. 128) (June 7, 2012). Plaintiffs motion should be denied because there is no colorable basis for awarding attorneys

    5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Massachusetts, 505 U.S. 788, 800 (1992); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 20 21 22 23 24 25 26 27 28
    OPPOSITION TO PLAINTIFFS MOTION FOR EXTENSION OF TIME BY THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, NO. CV-4:10-01564-CW

    fees or costs payable by the House. The House takes no position regarding when Plaintiffs should file any fee motion as to the other defendants in this case. The only attorney fee statutes cited by Plaintiffs are the Equal Access to Justice Act (EAJA) and 42 U.S.C 1988. Neither statute provides even an arguable basis on which this Court could lawfully impose fee liability on the House. EAJA expressly provides that [t]he United States shall be liable for any attorneys fees awarded under subsection (b) of that statute. 28 U.S.C. 2412(b) (emphasis added). See also id. 2412(a) (referring to a judgment for costs against the United States). EAJA defines United States as any agency and any official of the United States acting in his or her official capacity. Id. 2412(d)(2)(C). The House (and particularly the Bipartisan Legal Advisory Group, which speaks for the House in litigation matters) clearly is not an agency of the United States for purposes of this statute. See, e.g., 5 U.S.C. 551(1)(A), 701(b)(1)(A); Franklin v.

    525 n.6 (2009). And, just as clearly, the House as an institution is not an official of the United States. Accordingly, the House cannot be held liable for attorneys fees or costs under EAJA. Section 1988 permits an award of attorneys fees to a party that prevails on a claim brought pursuant to, inter alia, 42 U.S.C. 1983. But 1983 imposes liability on State defendants only. Plaintiffs asserted two 1983 claims in this case; both were asserted against State defendants, not the federal defendants. See First Amended Complaint, Third and Fourth

    Case4:10-cv-01564-CW Document129 Filed06/08/12 Page3 of 4

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    Claims for Relief (Mar. 1, 2011) (ECF No. 66). Indeed, no claims were asserted against the House because the House intervened after the filing of the First Amended Complaint, and that complaint was not further amended. Finally, the House is not aware of any precedent for holding Congress, a House of

    5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 June 11, 2012 Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatories Paul D. Clement, H. Christopher Bartolomucci, Conor B. Dugan, and Nicholas J. Nelson. 2 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, is currently comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip decline to support the filing of this reply.
    REPLY IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, No. CV4:10-01564-CW
    1

    Congress, a Member of Congress, the Bipartisan Legal Advisory Group or any group of Members liable for attorneys fees under either EAJA or 1988, and Plaintiffs have pointed to no such authority. In sum, because there is not even a colorable basis for asserting a claim for attorneys fees or costs against the House in this case under EAJA or 1988, the Court should not permit Plaintiffs to file a frivolous fee motion against the House and it should not extend the time to file such a motion. Respectfully submitted, Paul D. Clement /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 2

    Case4:10-cv-01564-CW Document129 Filed06/08/12 Page4 of 4

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    CERTIFICATE OF SERVICE I certify that on June 11, 2012, I served one copy of the foregoing Reply in Support of Cross-Motion for Summary Judgment of the Bipartisan Legal Advisory Group of the U.S. House of Representatives by CM/ECF on the following: Claudia Center, Esquire Elizabeth Kristen, Esquire Shelley Ann Gregory, Esquire The Legal Aid Society - Employment Law Center 180 Montgomery Street, Suite 600 San Francisco, California 94104 Daniel Simon Mason, Esquire Patrick Bradford Clayton, Esquire Zelle Hofmann Voelbel Mason & Gette 44 Montgomery Street, Suite 3400 San Francisco, California 94104 Lori Rifkin, Esquire Rosen, Bien & Galvan, LLP 315 Montgomery Street, Tenth Floor San Francisco, California 94104 Jean Lin, Trial Attorney US Department of Justice, Civil Division, Federal Programs Branch 20 Massachusetts Avenue, Northwest Washington, District of Columbia 20530 Edward George Gregory, Esquire Jennifer Lynn Morrow, Esquire Steptoe & Johnson LLP 633 West Fifth Street, Suite 700 Los Angeles, California 90071

    /s/ Kerry W. Kircher Kerry W. Kircher

    OPPOSITION TO PLAINTIFFS MOTION FOR EXTENSION OF TIME BY THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, NO. CV-4:10-01564-CW

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