No.

14-50196
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and
MARK PHARISS,
Plaintiffs-Appellees,
v.
RICK PERRY, in his official capacity as Governor of the State of Texas;
GREG ABBOTT, in his official capacity as Texas Attorney General; and
DAVID LAKEY, in his official capacity as Commissioner of the Texas
Department of State Health Services,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF TEXAS, SAN ANTONIO DIVISION, NO. 5:13-CV-00982

MOTION TO ADVANCE CASE FOR
HEARING

AKIN GUMP STRAUSS HAUER & FELD LLP
BARRY A. CHASNOFF (TX# 4153500)
DANIEL McNEEL LANE, JR.
(TX #2367886)
MATTHEW E. PEPPING
(TX # 24065894)
300 Convent St., Suite 1600
San Antonio, Texas 78205
Telephone: 210.281.7000
Facsimile: 210.224.2035
bchasnoff@akingump.com
nlane@akingump.com
mpepping@akingump.com



JESSICA M. WIESEL (CA #174809)
2029 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: 310.229.1000
Facsimile: 310.229.1001
jweisel@akingump.com

MICHAEL P. COOLEY (TX #24034388)
ANDREW NEWMAN (TX #24060331)
1700 Pacific Ave, Suite 4100
Dallas, TX 75201
Telephone: 214.969.2800
Facsimile: 214. 969.4343
mcooley@akingump.com
anewman@akingump.com
ATTORNEYS FOR PLAINTIFFS - APPELLEES
CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, AND MARK PHARISS.
Case: 14-50196 Document: 00512793166 Page: 1 Date Filed: 10/06/2014
1

ARGUMENT
Pursuant to Federal Rule of Appellate Procedure 27 and 5th Circuit Rules
27.5 and 34.5, Plaintiffs Appellees Cleopatra De Leon, Nicole Dimetman, Victor
Holmes, and Mark Phariss (Plaintiffs) hereby request that this Court advance this
case for hearing and schedule oral argument in the instant appeal at the earliest
possible date.
Plaintiffs Dimetman and De Leon are expecting their second child.
Dimetman is pregnant, and the baby is due on March 15, 2015. Declaration of
Nicole Dimetman (Dimetman Decl.) 1. What should typically be a joyous,
albeit anxious time, in any marriage will instead be fraught with uncertainty and
insecurity that no married heterosexual couple must endure. If the State of Texas
refuses to recognize Dimetman and De Leons marriage, validly performed in
Massachusetts, De Leon will not be recognized as the childs parent absent formal
adoption. See Tex. Family Code 160.703 (providing that if a husband consents
to his wifes assisted reproduction, he is the father of the child). As a result,
Dimetman and De Leon will suffer the substantial uncertainty (and cost) required
for De Leon to legally adopt the child. More importantly, the child will be exposed
to great uncertainty and insecurity if, for some reason, Dimetman is rendered
incapable of caring for the newborn child. For instance, if Dimetman did not
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2

survive childbirth, the baby will be an orphan without a parent directing the babys
care.
As the Court is aware, De Leon carried, and Dimetman formally adopted,
their first child. ROA.177. They should not be forced to endure this hardship
again. The newborn child should not be exposed to the same uncertainty as his or
her older sibling. Good cause exists to expedite oral argument, and Plaintiffs seek
a resolution of this appeal before the childs birth. The outcome of the appeal will
determine if De Leon will be considered the childs parent as a matter of law, or if
she and Dimetman will be forced to incur the uncertainty, expense, and burden of
adopting this child, as they did with their first child.
1
Dimetman Decl. 2.
Sadly, the uncertainty that Dimetman and De Leon face, and the risk their
unborn child faces, is common among same-sex parents and their children. As
Gary Gates explains in his amicus brief, nationally, more than 125,000 same-sex-
couple households include nearly 220,000 children. Amicus Br. of Gary J. Gates
in Support of Plaintiffs-Appellees and Affirmance, at 12. In Texas, there are nearly
19,000 children in same-sex-couple households, and 58% of children being raised
by same-sex couples are biological children. Id. at 13 - 14. These families suffer

1
Of further concern, due to her pregnancy, Dimetman will have to stop
traveling as the due date approaches. See Dimetman Decl. 1. Therefore, to
ensure that she can attend any oral argument, Plaintiffs request that the Court
schedule oral argument for the earliest possible calendar date, ideally in November
2014, which is before the pregnancy begins the third trimester. See id.
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the same hardships and uncertainty that Dimetman and De Leon presently face.
The harm caused to these families especially their children increases with each
day the State continues to deny them the benefits and obligations of marriage.
Plaintiffs recognize that this Court ordered oral argument in Robicheaux v.
Caldwell, No. 14-31037, to be heard by the same panel as this appeal. The briefing
schedule in Robicheaux establishes briefing will be complete by November 7,
2014. In light of this and the pending birth of Dimetman and De Leons child,
Plaintiffs request oral argument in November 2014. Plaintiffs hope that oral
argument in November will allow for a resolution of this matter before Dimetman
and De Leons child is born.
2

Pursuant to 5th Cir. R. 27.1, counsel for Appellees has notified counsel for
Appellants of its intent to file this motion. Counsel for Appellants indicated that
their clients oppose the relief requested herein but will not file a response.
CONCLUSION
For the reasons set forth above, in order to resolve this issue at the earliest
possible time, Plaintiffs ask that the Court advance the hearing date for argument.



2
Today, the Supreme Court denied certiorari of the same-sex marriage cases
pending before it, clearing the way for same-sex marriages to proceed in the
Fourth, Seventh, and Tenth Circuits. See Order List (Oct. 6, 2014), available at
http://www.supremecourt.gov/orders/courtorders/ 100614zor.pdf.
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Dated: October 6, 2014 AKIN GUMP STRAUSS HAUER &
FELD LLP

By: s/ Daniel McNeel Lane, Jr.
Daniel McNeel Lane, Jr.

Attorney for Plaintiffs-Appellees
Cleopatra De Leon, Nicole Dimetman,
Victor Holmes, and Mark Phariss


CERTIFICATE OF SERVICE
The undersigned hereby certifies that all parties listed on this certificate of
service will receive a copy of the foregoing document filed electronically with the
United States Court of Appeals for the Fifth Circuit, on this 6th day of October,
2014, with notice of case activity to be generated and ECF notice to be sent
electronically by the Clerk of the Court. A copy will be mailed Via Certified Mail
to those who do not receive ECF notice from the Clerk of the Court.
Michael P. Murphy
Beth Ellen Klusmann
Office of the Attorney General
Office of the Solicitor General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548

Jonathan F. Mitchell
Office of the Solicitor General
209 W. 14th Street
Austin, TX 78701


s/ Daniel McNeel Lane, Jr.
Daniel McNeel Lane, Jr.

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