C. v. New York State and Local Retir

Filing 157

MOTION, for oral argument, on behalf of Amicus Curiae United States Department of Justice, FILED. Service date 04/24/2012 by CM/ECF. [588850] [11-2215]

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]

participation in oral argument as amicus curiae

Set forth below precise, complete statement of relief sought:

Mary Jo C. v. New York State and Local Retirement
System, Central Islip Public Library

The United States moves to participate in oral argument

as amicus curiae.

MOVING PARTY: United States -- Intervenor-amicus
9 Plaintiff
9 Defendant
9 Appellant/Petitioner
9 Appellee/Respondent
MOVING ATTORNEY:

OPPOSING PARTY:

Sasha Samberg-Champion

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

U.S. Department of Justice, Civil Rights Division
Appellate Section, Ben Franklin Station, P.O. Box 14403
Washington, D.C. 20044-4403
[e-mail] [phone]
Court-Judge/Agency appealed from:

U.S. District Court for the Eastern District of New York - Judge Feuerstein

Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1):
9 Yes 9 No (explain): No real opposing counsel.

Plaintiff-appellant, whose time would be split with the

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
United States, consents. explanation of emergency:

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?

May 3, 2012
9 Yes 9 No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:
s/ Sasha Samberg-Champion
4/24/2012
___________________________________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
___________________________
UNITED STATES’ MOTION TO PARTICIPATE IN ORAL ARGUMENT AS
AMICUS CURIAE
___________________________
The United States intervened as of right in this appeal, pursuant to 28 U.S.C.
2403(a), 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. Additionally, it filed a brief in this appeal as amicus
curiae in support of plaintiff-appellant. The United States, which is entitled by
statute to participate in oral argument as intervenor, now moves this Court for
leave to also participate in oral argument as amicus curiae. In support of that

-2motion, 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
the 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 here.
2. Plaintiff appealed. The United States filed a brief as amicus curiae in
support of appellant, and also intervened in defense of the constitutionality of Title
II’s abrogation of sovereign immunity. When the State raised new arguments
regarding sovereign immunity in its response brief, the United States, with this
Court’s permission, filed a supplemental brief devoted to that subject.
3. Having intervened and filed a brief in defense of the constitutionality of
Title II’s abrogation of sovereign immunity, the United States is entitled to “all the
rights of a party * * * to the extent necessary for a proper presentation of the facts
and law relating to the question of constitutionality.” 28 U.S.C. 2403(a). These
rights include the right to participate in oral argument. The United States, like the
other parties to this appeal, preserved that right by timely filing an oral argument
statement.
4. The United States now asks this Court for permission to additionally

-3participate in oral argument as amicus curiae. The United States believes its views
regarding the proper application of Title II in this case will be helpful to the Court
in resolving the dispute between the parties.
5. The plaintiff-appellant, with whom the United States will share 12
minutes of argument time, agrees to this request. The United States and Appellant
have agreed that the Appellant will use 7 minutes and the United States will use 5.

Respectfully 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 April 24, 2012, I electronically filed the foregoing
UNITED STATES’ MOTION TO PARTICIPATE IN ORAL ARGUMENT AS
AMICUS CURIAE 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