Committee on the Judiciary of the United States House of Representatives v. Miers et al

Memorandum in opposition to re MOTION for Leave to File a Reply Memorandum Amici Curiae

D.D.C.June 13, 2008

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) COMMITTEE ON THE JUDICIARY, ) UNITED STATES HOUSE ) OF REPRESENTATIVES, ) ) Case No. 1:08-cv-00409 (JDB) Plaintiff, ) ) v. ) ) HARRIET MIERS, et al. ) ) ) Defendants. ) _________________________________________) OPPOSITION OF PLAINTIFF COMMITTEE ON THE JUDICIARY TO MOTION OF AMICI CURIAE REPRESENTATIVES JOHN BOEHNER, ROY BLUNT, LAMAR SMITH, AND CHRIS CANNON FOR LEAVE TO FILE A SECOND AMICUS BRIEF Plaintiff Committee on the Judiciary of the U.S. House of Representatives (“Committee”) respectfully opposes, and urges the Court to deny, the highly unusual motion of amici curiae Representatives John Boehner, Roy Blunt, Lamar Smith, and Chris Cannon for leave to file a second amicus brief in this matter at a time when there is no opportunity for the Committee to respond in writing. The local rules of this Court do not set forth any standards for the filing of amicus briefs. However, the Federal Rules of Appellate Procedure and the Supreme Court Rules provide clear guidance by analogy. Both sets of rules contemplate that there will be only one brief filed by a particular amicus and that an amicus brief must be filed at a time that permits an opposing party to respond in writing. See Sup. Ct. R. 37(3)(a) (amicus brief to be filed no later than seven days after the principal brief for the party supported is filed); Fed. R. App. P. 29(e) (same). That timing means that the opposing party will have an Case 1:08-cv-00409-JDB Document 41 Filed 06/13/2008 Page 1 of 5 2 opportunity to respond to the amicus brief either in its opposition brief or in a reply brief. Here, the Committee has already filed its reply brief and has no further opportunity to file an additional brief in response to this proposed second amicus brief. The Appellate Rules also make clear that amicus reply briefs are disfavored. The Supreme Court Rules categorically ban amicus reply briefs. See Sup. Ct. R. 37(3)(a) (“The Clerk will not file a reply brief for an amicus curiae.”). Amicus reply briefs are also highly frowned upon by the Federal Rules of Appellate Procedure. Even with consent, amicus may not file a reply brief without express permission of a court. See Fed. R. App. P. 29(f) (“Except by the court’s permission, an amicus curiae may not file a reply brief.”). When an amicus brief is unnecessary and the parties are adequately represented, district courts have discretion to deny leave to file an amicus brief. See Jin v. Ministry of State Security, No. 02-0627, 2008 WL 2252777, *3 (D.D.C. June 3, 2008); Cobell v. Norton, 246 F. Supp. 2d 59, 62 (D.D.C. 2003); see also Scitto v. Marple Newton Sch. Dist., 70 F. Supp. 2d 553, 555 (E.D. Pa. 1999). In this case, the second amicus brief is unnecessary and does not bring any new or relevant issues to the attention of the Court. Furthermore, amici raise only one issue—ripeness—in their proposed second amicus brief, and that is the same issue they raised in their first amicus brief. The motion does not suggest that there is any reason amici could not have brought these matters to the attention of the Court in their first amicus brief, and it does not argue that amici are able to raise an issue that could not be raised by Defendants.1 Significantly, the Department of Justice does not raise in its memorandum the issue of ripeness. 1 Amici are not parties to this matter; they did not seek to intervene pursuant to Federal Rule of Civil Procedure 24; and they have already clearly stated their views in their first amicus brief. Case 1:08-cv-00409-JDB Document 41 Filed 06/13/2008 Page 2 of 5 3 Finally, the proposed second amicus brief is unnecessary because the Defendants are adequately represented. Defendant Harriet Miers, an attorney in her own right who is affiliated with a large law firm, was represented by a well-regarded private attorney with a different national law firm throughout the Committee’s investigation until her representation was taken over by the Department of Justice. Currently, Ms. Miers and Joshua Bolten both have qualified counsel at the Department of Justice, as well as assistance from the White House Counsel’s Office, representing their interests. If this Court were to grant amici’s motion for leave to file a second amicus brief, the reply memorandum would provide no particular benefit to the Court but would be prejudicial to the Committee because the Committee would have no opportunity to respond in a written submission. CONCLUSION For all of the foregoing reasons, the motion for leave to file a second amicus brief should be denied. A proposed Order is attached. Respectfully submitted, IRVIN B. NATHAN, D.C. Bar # 90449 General Counsel KERRY W. KIRCHER, D.C. Bar # 386816 Deputy General Counsel CHRISTINE M. DAVENPORT Assistant Counsel JOHN D. FILAMOR, D.C. Bar # 476240 Assistant Counsel RICHARD A. KAPLAN, D.C. Bar # 978813 Assistant Counsel KATHERINE E. MCCARRON, D.C. Bar # 486335 Assistant Counsel Office of General Counsel Case 1:08-cv-00409-JDB Document 41 Filed 06/13/2008 Page 3 of 5 4 U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (telephone) (202) 226-1360 (facsimile) Counsel for Plaintiff Committee on the Judiciary of the U.S. House of Representatives June 13, 2008 Case 1:08-cv-00409-JDB Document 41 Filed 06/13/2008 Page 4 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) COMMITTEE ON THE JUDICIARY, ) UNITED STATES HOUSE ) OF REPRESENTATIVES ) ) ) Plaintiff, ) ) Case No. 1:08-cv-00409 (JDB) HARRIET MIERS, et al. ) ) Defendants. ) __________________________________________) CERTIFICATE OF SERVICE I hereby certify that on this 13th day of June, 2008, a copy of the foregoing Plaintiff Committee on the Judiciary’s Motion in Opposition to Motion of Amici Curiae Representatives John Boehner, Roy Blunt, Lamar Smith, and Chris Cannon for Leave to File a Second Amicus Brief was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. ______/s/ Katherine E. McCarron______________ KATHERINE E. MCCARRON, D.C. Bar # 486335 Case 1:08-cv-00409-JDB Document 41 Filed 06/13/2008 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) COMMITTEE ON THE JUDICIARY, ) UNITED STATES HOUSE ) OF REPRESENTATIVES, ) ) Case No. 1:08-cv-00409 (JDB) Plaintiff, ) ) v. ) ) HARRIET MIERS, et al. ) ) ) Defendants. ) ____________________________________) [PROPOSED] ORDER HAVING CONSIDERED the Plaintiff’s Motion in Opposition to Motion of Amici Curiae Representatives John Boehner, Roy Blunt, Lamar Smith, and Chris Cannon for Leave to File a Second Amicus Brief, it is hereby this ____ day of ________ 2008, ORDERED that the Motion for Leave to File is DENIED. _______________________________ JOHN D. BATES UNITED STATES DISTRICT JUDGE Case 1:08-cv-00409-JDB Document 41-2 Filed 06/13/2008 Page 1 of 1