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Justice Department appeals Pedersen v. OPM, challenging Section 3 of DOMA, to the Second Circuit
August 20, 2012
By Scottie Thomaston
Section 3 of DOMA was struck down in Pedersen v. Office of Personnel Management, a case filed in federal district court in Connecticut. The decision came after the Bipartisan Legal Advisory Group (BLAG), who is defending the law, asked the judge to stay the proceedings in the case in light of Windsor v. USA, a case that’s currently on appeal to the Second Circuit. The judge denied the request.
Judge Bryant’s decision struck down the law using rational basis review, but not before analyzing the requirements for a ‘suspect classification’ and coming to the conclusion that laws classifying gays and lesbians should be suspect.
BLAG has not yet filed its notice of appeal to the Second Circuit in Pedersen, but today, the Justice Department – on behalf of federal defendants OPM and others – appealed the decision to that circuit.
Pedersen is one of two cases before the Second Circuit, which has no precedent regarding the level of scrutiny required to review laws classifying gays and lesbians. Windsor is the other. In that case, BLAG has appealed along with the Justice Department, and BLAG subsequently moved to dismiss the Justice Department’s appeal, as it has continued to do in these challenges. Oral argument at the Second Circuit in Windsor will take place on September 27 in New York City. That case is also before the Supreme Court, since Edith Windsor petitioned the Court to review the case.
BLAG will likely file an appeal itself to the Second Circuit in Pedersen soon and may file a motion to dismiss the DOJ appeal.
h/t Kathleen for this filing
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13 Comments Leave a Comment
1.
Sagesse | August 20, 2012 at 12:13 pm
@
2.
jpmassar | August 20, 2012 at 1:24 pm
Why wouldn't they have appealed directly to the Supreme Court, as they did in Golinski?
3.
Leo | August 20, 2012 at 1:47 pm
The case needs to be in the appeals court first. In Golinski they appealed to the Supreme Court only after it was already appealed to the Ninth Circuit.
4.
jpmassar | August 20, 2012 at 1:56 pm
The case needs to be in the appeals court first.
I'm almost certain that that is not true. And in Golinski, while it is true that they appealed to the Ninth Circuit first, they didn't wait for a decision. They went and appealed to the Supreme Court in the middle of the Ninth Circuit proceedings.
I'm very confident that there have been cases which have been appealed directly from District Court to the Supreme Court. Notably United States vs. Nixon http://en.wikipedia.org/wiki/United_States_v._Nix…
5.
Scottie Thomaston | August 20, 2012 at 2:13 pm
I am not sure what the strategy is here. Particularly it seems odd they wouldn't appeal directly to SCOTUS since the heightened scrutiny analysis in the decision here was so thorough and awesome. I'd think they'd want SCOTUS to see it.
6.
Scottie Thomaston | August 20, 2012 at 2:16 pm
No, cases can be appealed directly to SCOTUS first.
7.
sfbob | August 20, 2012 at 2:19 pm
Scribd appears to be down at the moment. Or else it's down in March of 2011 (someone is being sloppy with the autotexts there I guess).
8.
Leo | August 20, 2012 at 2:32 pm
Well, that's not what DOJ and Windsor wrote in their petitions, and as far as I can tell it's not what the Supreme Court Rules say. Do you mean there's yet another path that bypasses the court of appeals completely?
(emphasis added)
9.
Scottie Thomaston | August 20, 2012 at 2:52 pm
You may be right. This says a direct appeal is allowed in some circumstances: http://appeals.uslegal.com/appellate-jurisdiction…
But the rule you cited makes sense as well.
10.
Scottie Thomaston | August 20, 2012 at 2:55 pm
This also has a section on direct appeals
http://www.supremecourt.gov/ctrules/2010Rulesofth…
11. Prop 8 Trial Tracker &raq&hellip | September 28, 2012 at 10:02 am
[...] now, only the Justice Department appealed Pedersen v. Office of Personnel Management to the Second Circuit. The court has scheduled [...]
12. Prop 8 Trial Tracker &raq&hellip | December 13, 2012 at 6:30 pm
[...] v. Office of Personnel Management is on appeal to the Second Circuit Court of Appeals, since the Justice Department has appealed the case. The [...]
13. Prop 8 Trial Tracker &raq&hellip | December 18, 2012 at 3:33 pm
[...] district court’s decision in Pedersen v. Office of Personnel Management in late September, a month after the Justice Department had appealed the case. Both parties have continued to file appeals in these cases to ensure that [...]
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