C. v. New York State and Local Retir

Filing 116

MOTION, for setting briefing schedule for constitutional challenge, on behalf of Amicus Curiae United States Department of Justice, FILED. Service date 12/01/2011 by CM/ECF. [461835] [11-2215]--[Edited 12/02/2011 by DH]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INFORMATION STATEMENT
Docket Number(s):
Motion for:

11-2215

Caption [use short title]

Mary Jo C. v. New
setting briefing schedule for constitutional challenge to federal law York State and Local Retirement
System, Central Islip Public Library

Set forth below precise, complete statement of relief sought:

The United States respectfully requests that this Court set

a schedule for briefing the State's constitutional challenge
to Title II of the ADA.
MOVING PARTY: United States (Intervenor - not listed
9 Plaintiff
9 Defendant
9 Appellant/Petitioner
9 Appellee/Respondent
MOVING ATTORNEY:

below)OPPOSING PARTY: New York State and Local Retirement System

OPPOSING ATTORNEY: Laura R. Johnson
[name of attorney, with firm, address, phone number and e-mail]

Sasha Samberg-Champion

United States Department of Justice, Civil Rights Division, New York Section
Appellate State Office of the Attorney General
Ben Franklin Station / P.O. Box 14403
120 Broadway Avenue, 25th Floor
Washington, DC 20044-4403
New York, NY 10271
[phone] / [e-mail]
[phone] / [e-mail]
Court-Judge/Agency appealed from:

United States District Court for the Eastern District of New York - Judge Feuerstein

Please check appropriate boxes:

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
Has request for relief been made below?
9 Yes 9 No
Has this relief been previously sought in this Court?
9 Yes 9 No
Requested return date and explanation of emergency:

Has movant notified opposing counsel (required by Local Rule 27.1):
9 Yes 9 No (explain):
Opposing counsel’s position on motion:
9 Unopposed 9 Opposed 9 Don’t Know
Does opposing counsel intend to file a response:
9 Yes 9 No 9 Don’t Know
Is oral argument on motion requested?

9 Yes

9 No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set?

9 Yes 9 No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:
s/ Sasha Samberg-Champion
12/01/2011
___________________________________Date: ___________________

Has service been effected?

9 Yes

9 No [Attach proof of service]

ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
Date: _____________________________________________

Form T-1080

By: ________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
___________________________
No. 11-2215
MARY JO C.,
Plaintiff-Appellant
v.
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, CENTRAL ISLIP
PUBLIC LIBRARY,
Defendants-Appellees
___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
___________________________
INTERVENOR UNITED STATES’ MOTION TO SET BRIEFING SCHEDULE
FOR CONSTITUTIONAL CHALLENGE TO FEDERAL LAW
___________________________
The United States, which intervened in this case to defend the
constitutionality of the abrogation of state sovereign immunity accomplished by
Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq.,
hereby moves this Court to set a schedule for briefing that question. In support of
that motion, the United States submits the following:
1. This appeal arises out of a claim by plaintiff-appellant that both
defendants – the New York State and Local Retirement System (the “State”) and

-2the Central Islip Public Library (the “Library”) – violated her rights under Title II.
The district court dismissed her complaint, finding that she had failed to state a
claim against either party. It also found that Title II does not validly abrogate the
State’s sovereign immunity, simply because of that failure to state a claim.
2. Plaintiff appealed, and the United States intervened in defense of the
constitutionality of Title II’s abrogation of sovereign immunity.1 It pointed out
that the district court erred in finding that the abrogation was invalid simply
because the plaintiff failed to state a claim and asked this Court to vacate the
district court’s erroneous ruling. See Br. for the United States as Amicus Curiae in
Support of Plaintiff-Appellant and as Intervenor at 19-21. The State did not raise
below the larger question of whether Title II’s abrogation of sovereign immunity is
constitutional in all cases involving the provision of public benefits, and the district
court did not rule on that question, and so the United States did not at that time
brief the issue. It did, however, ask for the opportunity to submit a supplemental
brief should the larger constitutional question be raised. See id. at 22 n.6.
3. In its response brief, the State does not defend the reasoning of the
district court regarding the abrogation question. Instead, for the first time, it argues
that Title II fails to validly abrogate sovereign immunity for all claims regarding

1

The United States also filed as amicus curiae in support of plaintiff’s Title
II claim against the State. The United States does not seek to file anything further
in that capacity.

-3the provision of disability benefit programs. See Br. for State Appellee at 22-25.
4. Because the constitutionality of an Act of Congress now has been
brought into question, the United States is entitled to present argument in defense
of the constitutionality of its statute. See 28 U.S.C. 2403(a); Fed. R. App. P. 44(a).
5. The United States respectfully asks this Court to set a schedule for the
briefing of this question. After conferring with the State, the United States
proposes to submit a brief in defense of the constitutionality of Title II’s abrogation
of sovereign immunity by January 9, 2012. The United States further proposes that
the State be permitted to respond to that brief by February 13, 2012. The State
consents to this schedule. The United States also has conferred with counsel for
the plaintiff, who consents.2
6. Accordingly, the United States asks this Court to set a schedule, as
outlined above, for briefing the State’s constitutional challenge to Title II of the
ADA.

2

The Library is not protected by sovereign immunity, and therefore has no
interest in this issue.

-4Respectfully submitted,
THOMAS E. PEREZ
Assistant Attorney General

s/ Sasha Samberg-Champion
JESSICA DUNSAY SILVER
SASHA SAMBERG-CHAMPION
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, DC 20044-4403
[phone]

CERTIFICATE OF SERVICE
I hereby certify that on December 1, 2011, I electronically filed the
foregoing INTERVENOR UNITED STATES’ MOTION TO SET BRIEFING
SCHEDULE FOR CONSTITUTIONAL CHALLENGE TO FEDERAL LAW
with the Clerk of the Court for the United States Court of Appeals for the Second
Circuit by using the appellate CM/ECF system. I further certify that all
participants in this case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.

s/ Sasha Samberg-Champion
SASHA SAMBERG-CHAMPION
Attorney