Windsor v. The United States Of America

Filing 26

MEMORANDUM AND ORDER granting 12 Motion to Intervene as a party defendant. (Signed by Magistrate Judge James C. Francis on 6/2/11); Copies mailed by Chambers. (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
EDITH SCHLAIN WINDSOR, in her
:
capacity as Executor of the
:
Estate of THEA CLARA SPYER,
:
:
Plaintiff,
:
:
- against :
:
THE UNITED STATES OF AMERICA,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

(ECF)

10 Civ. 8435 (BSJ) (JCF)
MEMORANDUM
AND ORDER

Plaintiff Edith Schlain Windsor brings this action challenging
the constitutionality of Section 3 of the Defense of Marriage Act
(“DOMA”), 1 U.S.C. § 7. The Bipartisan Legal Advisory Group of the
United States House of Representatives (“BLAG”) has filed a motion
to intervene as a party defendant pursuant to Rule 24 of the
Federal Rules of Civil Procedure. For the reasons that follow, the
motion is granted.
Background
Ms.

Windsor

and

Thea

Clara

Spyer

were

married

in

2007

following a 40-year engagement. (Amended Complaint (“Am. Compl.”),
¶¶ 2, 3, 26). In 2009, Ms. Spyer passed away. (Am. Compl., ¶ 51).
Although their marriage was recognized by New York State, DOMA
prevented the federal government, and, in particular, the Internal
Revenue Service (“IRS”), from treating them as a married couple.
1

(Am. Compl., ¶¶ 42-45, 60-61).

As a result, Ms. Spyer’s estate was

required to pay $363,053 in federal tax that would have been waived
by the estate tax marital deduction had the IRS recognized their
marriage.

(Am. Compl., ¶¶ 62, 72-75, 78).

Ms. Windsor, the

executor of Ms. Spyer’s estate, filed a Claim for Refund with the
IRS, seeking return of the $363,053; her request was denied on the
ground that DOMA restricts the definition of “spouse” to “a person
of the opposite sex.”1

(Am. Compl., ¶¶ 76-77).

Ms. Windsor filed this action on November 9, 2010, arguing
that the IRS’s refusal to apply the estate tax marital deduction to
her wife’s estate -- and by extension DOMA itself -- discriminated
against her on the basis of her sexual orientation in violation of
the equal protection clause of the Fifth Amendment to the United
States Constitution.

(Am. Compl., ¶¶ 84-85).

The Department of

Justice (the “DOJ”) appeared on behalf of the defendant, the United
States of America, and an amended complaint was filed on February

1

Section 3 of DOMA provides that

[i]n determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the United
States, the word “marriage” means only a legal union
between one man and one woman as husband and wife, and
the word “spouse” refers only to a person of the opposite
sex who is a husband or a wife.
1 U.S.C. § 7.
2

2, 2011.

Soon thereafter, however, the Department of Justice gave

notice to the plaintiff and this Court that it would “cease
defending the constitutionality” of Section 3 of DOMA because
the Attorney General and President have
concluded: that heightened scrutiny is the
appropriate
standard
of
review
for
classifications based on sexual orientation;
[and] that, consistent with that standard,
Section 3 of DOMA may not be constitutionally
applied to same-sex couples whose marriages
are legally recognized under state law . . . .
(Notice to the Court by Defendant United States of America dated
Feb. 25, 2011 (“2/25/11 Notice”) at 1 & Exh. 1).
The DOJ also notified Representative John A. Boehner, Speaker
of the United States House of Representatives (the “House”), of its
change

in

position

and

expressed

its

“interest

in

providing

Congress a full and fair opportunity to participate in [this]
litigation” while still “remain[ing] parties to the case and
continu[ing] to represent the interests of the United States
throughout the litigation.”

(Letter of Eric H. Holder, Jr., dated

Feb. 23, 2011, attached as Exh. 2 to 2/25/11 Notice, at 5-6).

On

March 9, 2011, BLAG decided to seek approval to intervene in this
litigation to defend the constitutionality of Section 3 of DOMA.
(Memorandum of Points and Authorities in Support of the Unopposed
Motion of the Bipartisan Legal Advisory Group of the U.S. House of
Representatives to Intervene for a Limited Purpose (“BLAG Memo.”)

3

at

2).

Neither

the

plaintiff

nor

the

DOJ

opposes

BLAG’s

intervention; however, the DOJ asks that BLAG’s involvement be
limited to making substantive arguments in defense of Section 3 of
DOMA while the DOJ continues to file all procedural notices.
(Defendant’s
Memo.”)).

Response

to

the

Motion

to

Intervene

(“DOJ

Opp.

BLAG does not acquiesce in this request, which it

contends would relegate it to the status of amicus curiae.

(Reply

of the Bipartisan Legal Advisory Group of the U.S. House of
Representatives (“BLAG Reply Memo.”) at 2, 6-9).
Discussion
A. Intervention
BLAG seeks intervention pursuant to Rule 24 of the Federal
Rules of Civil Procedure, which states in relevant part:
(a) Intervention of Right. On timely motion, the court
must permit anyone to intervene who:
(1) is given an unconditional right to intervene by
a federal statute; or
(2) claims an interest relating to the property or
transaction that is the subject of the action, and
is so situated that disposing of the action may as
a practical matter impair or impede the movant’s
ability to protect its interest, unless existing
parties adequately represent that interest.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may
permit anyone to intervene who:
(A) is given a conditional right to intervene
4

by a federal statute . . . .
BLAG

first

argues

that

its

intervention

is

appropriate

pursuant to subsection (a)(1), or, in the alternative, subsection
(b)(1)(A), because it is authorized by 28 U.S.C. § 2403(a).
Memo. at 4-5).

(BLAG

However, that statute only authorizes “the United

States to intervene” in an action where “the United States or any
agency, officer or employee thereof is not a party.”
§ 2403(a) (emphasis added).

28 U.S.C.

Here, the United States of America is

already a party to the litigation, and thus the statute does not
authorize BLAG’s intervention, either permissively or as of right.2
BLAG also seeks to intervene pursuant to subsection (a)(2) of
Rule 24 of the Federal Rules of Civil Procedure.
at 9 n.3).

(BLAG Reply Memo.

Such intervention is appropriate where:

“(1) the motion is timely; (2) the applicant asserts an
interest relating to the property or transaction that is
the subject of the action; (3) the applicant is so
situated that without intervention, disposition of the
action may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; and (4) the
applicant’s interest is not adequately represented by the
other parties.”

2

Although there is a statute that contemplates intervention
by the Senate in defense of the constitutionality of statutes, see
2 U.S.C. §§ 288a-288n, and federal law requires the Attorney
General to notify both houses of Congress when it intends not to
defend the constitutionality of any statute, see 28 U.S.C. § 530D,
there is no statute explicitly authorizing intervention by the
House (or any subgroup or representative thereof) to defend the
constitutionality of a statute.
5

United States v. New York State Board of Elections, 312 Fed. Appx.
353, 354 (2d Cir. 2008) (quoting

MasterCard International Inc. v.

Visa International Service Association, Inc., 471 F.3d 377, 389 (2d
Cir. 2006)). Although failure to satisfy any of these requirements
justifies denial of the motion, courts apply them in a “‘flexible
and discretionary’” way, considering “‘all four factors as a whole
rather than focusing narrowly on any one of the criteria.’”

Cole

Mechanical Corp. v. National Grange Mutual Insurance Co., No. 06
Civ. 2875, 2007 WL 2593000, at *2 (S.D.N.Y. Sept. 7, 2007) (quoting
Tachiona ex rel. Tachiona v. Mugabe, 186 F. Supp. 2d 383, 394
(S.D.N.Y. 2002) (“Tachiona I”)).
BLAG has fulfilled all four prerequisites.

First, the DOJ

does not dispute that this motion is timely, and there is no
evidence of delay in its filing.

See id. at *4 (finding motion to

intervene timely absent excessive delay or prejudice to existing
parties).

Second, BLAG has a cognizable interest in defending the

enforceability of statutes the House has passed when the President
declines to enforce them.

See Barnes v. Kline, 759 F.2d 21, 23 n.3

(D.C. Cir. 1985) (noting district court allowed BLAG’s intervention
pursuant to Rule 24(a)(2) to challenge presidential “pocket veto”
of legislation passed by House), vacated on other grounds sub nom.
Burke v. Barnes, 479 U.S. 361 (1987).

In recognition of this

interest, courts have permitted Congress to intervene as a full
6

party in numerous cases where the Executive Branch declines to
enforce a statute that is alleged to be unconstitutional, although
they have often neglected to explain their rationale for doing so.
See, e.g., Adolph Coors Co. v. Brady, 944 F.2d 1543, 1546 (10th
Cir. 1991); Lear Siegler, Inc., Energy Products Division v. Lehman,
893 F.2d 205, 206 (9th Cir. 1989); In re Benny, 812 F.2d 1133, 1135
(9th Cir. 1987); Ameron, Inc. v. United States Army Corps of
Engineers, 787 F.2d 875, 888 (3d Cir. 1986); Matter of Koerner, 800
F.2d 1358, 1360 (5th Cir. 1986).

Third, BLAG may be unable to

advance its arguments regarding the constitutionality of Section 3
of DOMA in any forum should it be denied intervention here and
should the statute subsequently be declared unconstitutional in the
course of this litigation.

Finally, BLAG’s interests are not

currently being adequately represented in this action, particularly
in light of the “‘minimal’” burden for demonstrating inadequacy of
representation.

New York State Board of Elections, 312 Fed. Appx.

at 354 (quoting Butler, Fitzgerald & Potter v. Sequa Corp., 250
F.3d 171, 179 (2d Cir. 2001)); see also Brennan v. New York City
Board of Education, 260 F.3d 123, 132-33 (2d Cir. 2001) (“The test
[] is not whether [the defendant] did well on behalf of [the
intervenors] . . . but whether the [defendant]’s interests were so
similar

to

those

of

[the

intervenors]

that

adequacy

of

representation was assured.”). The DOJ has made clear that it will
7

not defend the constitutionality of Section 3 of DOMA in any way,
while such a defense is precisely what BLAG wishes to undertake
here.

Therefore, intervention pursuant to Rule 24(a)(2) of the

Federal Rules of Civil Procedure is justified.
The DOJ asks that BLAG be permitted to appear in this action
only for the limited purpose of “present[ing] arguments in support
of the constitutionality of Section 3” of DOMA, while the DOJ would
continue to file all procedural motions, including notices of
appeal and petitions for certiorari, that are necessary “to ensure
that this Court can consider arguments on both sides of the
constitutional issue.”

(DOJ Opp. Memo. at 2-3).

As established

above, however, BLAG is entitled to intervene in this action as a
party defendant, which enables it to make such procedural motions
on its own.

See INS v. Chadha, 462 U.S. 919, 930 n.5, 939 (1983)

(finding House to be “proper petitioner” for certiorari following
its

intervention

to

defend

constitutionality

executive agency had declined to defend).

of

statute

that

Furthermore, there is

no clear precedent for the DOJ’s requested protocol. The DOJ cites
two cases to support its contention that “[t]his approach is
consistent with what the [DOJ] has done in prior cases in which the
Executive Branch has taken the position that an Act of Congress is
unconstitutional but announced its intention to enforce or comply
with the law pending a final judicial determination . . . .”
8

(DOJ

Opp. Memo. at 2-3).

However, in the first of these, the Houses of

Congress were plainly also parties to the litigation with authority
to petition for review if desired.

Chadha, 462 U.S. at 930-31 nn.

5, 6. In the second, a case from 1946, the procedural necessity of
the Solicitor General’s filing the petition for certorari review is
never discussed or made explicit.
U.S. 303, 305-07

(1946).

United States v. Lovett, 328

The DOJ continues to represent a party

to the present litigation and may certainly file any petitions or
appeals that it chooses.

However, there is no good precedent for

preventing BLAG from intervening as a full party.

Therefore, the

DOJ’s request that BLAG’s participation be circumscribed is denied.
B. Standing
The DOJ’s desire to remain the sole defendant for procedural
purposes appears premised on the contention that BLAG does not have
standing to intervene in this action as a party “any more than
citizens with a generalized grievance would have standing to do so”
because “Congress’s interest in the constitutional validity of a
law does not confer standing.”

(DOJ Opp. Memo. at 2).

This

characterization is incorrect. The Second Circuit does not require
intervenors to establish independent Article III standing as long
as there is an ongoing case or controversy between the existing
parties to the litigation.

See United States Postal Service v.

Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (“The existence of a case
9

or controversy having been established as between the [named
parties], there was no need to impose the standing requirement upon
the proposed intervenor.”); 7C Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 1908 (3d
ed. 2007); see also Chadha, 462 U.S. at 939 (“Congress is . . . a
proper party to defend the constitutionality of [the challenged
statute].”); Ameron, 787 F.2d at 888 n.8 (“However, the parties
agree, and we concur, that Congress has standing to intervene
whenever the executive declines to defend a statute or, as in this
case, actually argues that it is unconstitutional.”); cf. Tachiona
v. United States, 386 F.3d 205, 211 (2d Cir. 2004) (requiring
intervenor to demonstrate standing where intervention was solely
for purpose of appeal and losing party did not join appeal (citing
Diamond v. Charles, 476 U.S. 54, 68 (1986))).
standing

to

intervene

in

this

Therefore, BLAG has

litigation

to

defend

the

constitutionality of Section 3 of DOMA.
C. Pleading Requirements
Rule 24(c) of the Federal Rules of Civil Procedure requires
all intervenors to submit a pleading setting out “the claim or
defense for which intervention is sought.”

“Where, however, the

position of the movant is apparent from other filings and where the
opposing party will not be prejudiced, Rule 24(c) permits a degree
of flexibility with technical requirements.”
10

Tachiona I, 186 F.

Supp. 2d at 393 n.8; see also Official Committee of Asbestos
Claimants of G-I Holding, Inc. v. Heyman, No. 01 Civ. 8539, 2003 WL
22790916, at *4 (S.D.N.Y. Nov. 25, 2003) (allowing intervenor to
adopt “claims already asserted” by plaintiff where no prejudice
would be caused to either party).
BLAG asks this Court to waive its obligation to file an
answer, arguing that its motion to intervene is sufficient to put
the plaintiff on notice of its intent to “defend[] Section [3 of
DOMA] on equal protection grounds.”
does not oppose this request.

(BLAG Memo. at 7).

The DOJ

(BLAG Memo. at 7; DOJ Opp. Memo.).

Waiver of the pleading requirement is justified here because BLAG’s
position on

the

subject

matter

of

articulated in its motion papers.

the litigation

is

clearly

Furthermore, the plaintiff

appears to have waived the DOJ’s obligation to file an answer, and
the

parties

judgment.

are

preparing

(Revised

to

make

Scheduling

cross-motions

Order

dated

May

for
11,

summary
2011).

Therefore, BLAG is not required to file an answer at this time.
Conclusion
For the reasons set forth above, BLAG’s motion to intervene as
a party defendant (Docket No. 12) is granted.

11

SO ORDERED.

C. FRANCIS IV
ITED STATES MAGISTRATE JUDGE

Dated: New York, New York
June 2, 2011
Copies mailed this date:

Roberta A. Kaplan,
Andrew J. Ehrlich,
Paul Weiss Rifkind
1285 Avenue of the
New York, New York

Esq.

Esq.

Wharton & Garrison LLP

Americas

10019

Alexis B. Karteron, Esq.

Arthur N.
senberg, Esq.

Melissa Goodman, Esq.

New York Civil Liberties Union Foundation

125 Broad Street, 19th Floor

New York, New York 10004

James D. Esseks, Esq.

Rose A. Saxe, Esq.

American Civil Liberties Union Foundation

Lesbian and Gay Rights Project

125 Broad Street, 18th Floor

New York, New York 10004

H. Christopher Bartolomucci, Esq.
Paul D. Clement, Esq.
Bancroft PLLC
1919 M Street, NW
Suite 470
Washington, DC 20036
Jean Lin, Esq.

U.S. Department of Justice
Civil Division
20 Massachusetts Avenue, N.W., 7th Fl.
Washington, DC 20530

12