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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, Secretary of the United States Department of Veterans Affairs; and the UNITED STATES OF AMERICA, Defendants. ) ) ) ) ) ) Civ. A. No. 1:09-11156-JLT ) ) ) ) ) ) ) ) ) ) ) )
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR PERMISSIVE INTERVENTION OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE AMICUS CURIAE BRIEF INTRODUCTION Mark A. Thomas (movant) moves pro se to intervene in this action pursuant to Fed. R. Civ. P. 24(b) or, in the alternative, for leave to file an amicus curiae brief. Movant, a citizen of plaintiff the Commonwealth of Massachusetts, seeks to raise arguments concerning the Massachusetts Constitution and criticizing the holding of the Massachusetts Supreme Judicial Court (SJC) in Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003). See Motion for Intervenor Status (Docket Entry No. 10) 8-11, 14; Affidavit in Support 1. The ruling of the SJC on a question of the Commonwealths law is binding on this Court, however. Because movants proposed defense does not share a common question of law or fact with the federal constitutional issues in this action, he is not eligible for permissive intervention. See Fed. R.
Civ. P. 24(b)(1). Similarly, movant cannot invoke Rule 24(b)(1) because his intervention is not supported by any independent jurisdictional basis. Moreover, even if movant met the prerequisites of Rule 24(b)(1), this Court should exercise its jurisdiction to deny intervention because introducing the state law matters Mr. Thomas wishes to pursue would unduly delay . . . the adjudication of the original parties rights. Fed. R. Civ. P. 24(b)(3). For the same reasons, movants proposed brief discussing the Commonwealths law will not aid the Court or the parties. The Court should, accordingly, deny Mr. Thomass motion. ARGUMENT Movant invokes Fed. R. Civ. P. 24(b) which provides, in pertinent part, that: On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1); see Intl Paper Co. v. Town of Jay, 887 F.2d 338, 345 (1st Cir. 1989). Movant has not identified any statute that provides him a conditional right to intervene in this action, and counsel for defendants is aware of none.1 Accordingly, to be eligible to invoke this Courts discretion to permit him to intervene, movant must have a claim or defense that shares with the main action a common question of law or fact. Id. Mr. Thomas does not meet that threshold. His intervention request also fails because it is not supported by an independent source of jurisdiction.
Defendants recognize the obstacles that pro se litigants face, and while such litigants are not exempt from procedural rules, defendants understand the Court will properly hold pro se pleadings to less demanding standards than those drafted by lawyers and endeavor, within reasonable limits, to guard against the loss of pro se claims due to technical defects. See Dutil v. Murphy, 550 F.3d 154, 158-59 (1st Cir. 2008) (citations omitted). 2
I.
Movants Proposed Arguments Do Not Share A Common Question Of Law Or Fact With The Main Action The Commonwealths Complaint raises federal constitutional claims against the federal
defendants. Specifically, the Commonwealth alleges that section 3 of the Defense of Marriage Act, 1 U.S.C. 7, violates the Tenth Amendment and the Spending Clause of the Constitution, Art. I, 8, cl. 1, as applied to the Commonwealth. Mr. Thomas proposes to argue that the SJCs Goodridge decision was incorrect as a matter of state law. See Motion for Intervenor Status 811, 14; Legal Authority in Support at 9 (stating no party has asserted, as movant wishes to assert, that the Massachusetts Supreme Judicial Court has so egregiously violated and contemned The Massachusetts Constitution . . .). But to the extent Goodridge is relevant to this action, the SJCs holding on matters of Commonwealth law is binding on this Court. See Ring v. Arizona, 536 U.S. 584, 603 (2002) (the highest state courts construction of the States own law is authoritative.); California v. Freeman, 488 U.S. 1311, 1313 (1989) (Interpretations of state law by a States highest court are, of course, binding upon [the Supreme] Court.); Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975) (the Supreme Court repeatedly has held that state courts are the ultimate expositors of state law, . . . and that [federal courts] are bound by [state court] constructions except in extreme circumstances not present here.). In any event, the Commonwealth has raised only federal law claims. See Compl. 11 (alleging subject matter jurisdiction over this action in this Court because it arises under the Constitution and laws of the United States). Movants proposed arguments, however, are premised not on federal law but solely upon the Commonwealths Constitution. Movant therefore does not qualify for permissive intervention. See Intl Paper Co., 887 F.2d at 346-47
(rejecting, under Rule 24(b)(2), state governments motion to intervene because it was limited to state law issues). For these reasons, Mr. Thomass proposed arguments do not share a common question of law or fact with the main action and, accordingly, he is not eligible to intervene under Fed. R. Civ. P. 24(b)(1). II. Movants Intervention Is Not Supported By Independent Jurisdictional Grounds To invoke the Courts discretion under Rule 24(b)(1), intervention must also be supported by independent jurisdictional grounds. Intl Paper Co., 887 F.2d at 346-47 (quoting Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610 F.2d 49, 52 n.5 (1st Cir. 1979)). Mr. Thomas has not invoked an independent source of subject matter jurisdiction for this Court to consider his arguments, however. Nor could he. Because movant raises only state law issues, jurisdiction is not supported by the federal question jurisdiction statute, 28 U.S.C. 1331. Because his claims would not appear to be adverse to the United States, he likewise cannot invoke 28 U.S.C. 1346, which provides jurisdiction in this Court for actions where the United States is a defendant. And because Mr. Thomas, a citizen of Massachusetts, lacks diversity of citizenship with the Commonwealth (and because he does not allege he has a monetary stake in this action), he cannot invoke 28 U.S.C. 1332. Moreover, even if Mr. Thomas could identify a source of subject matter jurisdiction, it is not clear how he would have standing to support such jurisdiction. See Amgen v. Chugai Pharmaceutical Co., 808 F. Supp. 894, 905 n.15 (D. Mass. 1992) (finding proposed intervenor lacked standing and, therefore, could not invoke Rule 24(b)(1)). For these reasons, as well, movant is not eligible for intervention under Rule 24(b)(1).
III.
Even If Movant Is Eligible For Permissive Intervention, The Court Should Deny The Motion To Avoid Undue Delay Where a movant meets the threshold requirements of Rule 24(b), it is nonetheless
wholly discretionary with the court whether to allow intervention. Resolution Trust Corp. v. City of Boston, 150 F.R.D. 449, 454 (D. Mass. 1993) (citation omitted); see U.S. v. Massachusetts Maritime Academy, 76 F.R.D. 595, 598 (D. Mass. 1977) (A motion under Rule 24(b) is addressed to the discretion of the court.). Even assuming movant is eligible to intervene here, the Court should nonetheless deny his motion because adding state law issues that are, at best, collateral to the pertinent federal constitutional questions would cause undue distraction, delay and prejudice to the parties and to the Court. See Rodriguez v. Pataki, 211 F.R.D. 215, 219 (S.D.N.Y. 2002). [I]n any case allowing a party to intervene will to some degree add to the complexity of the litigation[.] Massachusetts Maritime Academy, 76 F.R.D. at 598. Because the issues Mr. Thomas seeks to raise are legally irrelevant and thus will not help the parties and the Court resolve plaintiffs claims, permissive intervention is inappropriate. See Nader 2000 Primary Cmte. v. Hazeltine, 110 F. Supp. 2d 1200 (D.S.D. 2000) (rejecting permissive intervention where it would inject issues foreign to those raised in the main action and therefore would unduly delay and prejudice the adjudication of the claimed rights of plaintiffs.). Should the Court believe movant has adequately invoked its discretion under Rule 24(b)(1), the Court should, accordingly, deny intervention.2
2
Movant seeks leave, in the alternative, to file an amicus curiae brief discussing the law of the Commonwealth. Whether to allow the filing of an amicus curiae brief is a matter of judicial grace. National Organization for Women v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000). In this Circuit, a district court lacking joint consent of the parties should go slow in accepting . . . an amicus brief unless, as a party, although short of a right to intervene, the amicus has a special interest that justifies his having a say, or unless the court feels that existing counsel may need supplementing assistance. Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970). Whatever the merits of movants proposed state law arguments, they are, as noted above, not 5
CONCLUSION For the foregoing reasons, the Court should deny movants motion for permissive intervention or, in the alternative, for leave to file an amicus curiae brief. Dated: October 1, 2009 Respectfully submitted, TONY WEST Assistant Attorney General MICHAEL K. LOUCKS Acting United States Attorney ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch /s/ Steven Y. Bressler STEVEN Y. BRESSLER D.C. Bar #482492 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 305-0167 Facsimile: (202) 318-7609 Steven.Bressler@usdoj.gov Counsel for Defendants
relevant to the issues of federal law that face the parties and the Court. Furthermore, defendants counsel do not need additional assistance. See Georgia v. Ashcroft, 195 F. Supp. 2d 25, 33 (D.D.C. 2002) (denying a motion for leave to file an amicus brief when the movant present[s] no unique information or perspective that can assist the court in [the] matter, and seeks only to make additional legal arguments on behalf of the United States, a more than adequately represented party), vacated on other grounds, 539 U.S. 461 (2003). Accordingly, to the extent that Mr. Thomas intends to submit an amicus brief that is consistent with his moving papers -i.e., to the extent that he wishes to present arguments and issues outside the scope of the federal constitutional claims raised in the plaintiff's Complaint -- defendants do not consent to the filing. Because such a brief will not assist the Court and will likely result in the waste of judicial resources, defendants respectfully suggest that the Court deny Mr. Thomas's motion, in the alternative, for leave to file an amicus curiae brief concerning the law of the Commonwealth. 6
CERTIFICATE OF SERVICE I, Steven Y. Bressler, hereby certify that this document filed through the ECF system shall be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies shall be sent by first-class mail postage prepaid to: Mark A. Thomas 482 Beacon Street Boston, MA 02115 Proposed Intervenor