Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II v. Sebelius

Filing 8

RESPONSE to Motion re 7 MOTION re 6 Scheduling Order and Brief in Support Thereof filed by Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II. (Attachments: # 1 Proposed Order)(McCullough, Stephen)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION COMMONWEALTH OF VIRGINIA EX REL. KENNETH T. CUCCINELLI, II, in his official capacity as Attorney General of Virginia, Plaintiff, v. KATHLEEN SEBELIUS, Secretary of the Department of Health and Human Services, in her official capacity, Defendant. ) ) ) ) ) ) ) Civil Action No. 3:10cv188 ) ) ) ) ) ) )

BRIEF OF THE COMMONWEALTH OF VIRGINIA IN PARTIAL OPPOSITION TO MOTION OF SECRETARY SEBELIUS REQUESTING MODIFICATION OF THE SCHEDULING ORDER

The Commonwealth of Virginia filed this suit as Plaintiff in the Eastern District of Virginia with the expectation of receiving the benefits of the expedited scheduling practices of this District. On April 30, 2010, the Court issued its

standard Order Setting Pretrial Conference and its standard Scheduling Order. The Order Setting Pretrial Conference among other things provides for setting a trial date at the June 3, 2010 pretrial conference. Paragraph 1 of the Scheduling Order requires that "any party which has not filed an Answer to the Complaint

shall do so within eleven (11) days after entry of this Scheduling Order." This of course is also a standard provision insuring that the parties will be at issue by the date of the pretrial conference. Although Secretary Sebelius complains that "there is a direct conflict between Fed. R. Civ. P. 12(a)(2) and the provision in paragraph 1 of the Scheduling Order" giving the United States 60 days in which to respond, the Commonwealth offered to agree to the requested extension so long as an answer was filed along with any dilatory motions. Instead, the Department of Justice has filed a motion to be excused from filing an answer until the Court rules on any motion to dismiss. This Court has plenary power to establish what effect, if any, the filing of a motion to dismiss will have upon the date for filing an answer. Rule 12(a)(4). The motion states no ground for relieving Secretary Sebelius from the usual practices of this District. On the other hand the Commonwealth would be potentially

prejudiced by being denied the early use of Rule 12(c) and by a possible delay in setting a trial date in this matter of urgent national concern. Wherefore, the Commonwealth of Virginia prays that the Court will grant an extension of time until May 24, 2010 to answer and file any other motions that Secretary Sebelius may be advised to file and will deny the motion in all other respects. A proposed Order is attached.

2

Respectfully submitted,

/s/ Stephen R. McCullough Counsel

KENNETH T. CUCCINELLI, II Attorney General of Virginia E. DUNCAN GETCHELL, JR. Virginia State Bar No. 14156 State Solicitor General [e-mail] Counsel of Record STEPHEN R. MCCULLOUGH Virginia State Bar No. 41699 Senior Appellate Counsel [e-mail]

CHARLES E. JAMES, JR. Chief Deputy Attorney General WESLEY G. RUSSELL, JR. Virginia State Bar No. 38756 Deputy Attorney General [e-mail] OFFICE OF THE ATTORNEY GENERAL 900 East Main Street Richmond, Virginia 23219 Telephone: [phone] Facsimile: [phone] Counsel for the Commonwealth of Virginia

May 5, 2010

3

CERTIFICATE OF SERVICE I hereby certify that on this 5th day of May, 2010, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Jonathan H. Hambrick [e-mail]

/s/ Stephen R. McCullough Counsel

4