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Entry ID: 5902483

No. 14-2184
__________________________________________________________________
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
__________________________________________________________________
ADA MERCEDES CONDE VIDAL; MARITZA LPEZ AVILS; IRIS
DELIA RIVERA RIVERA; JOS A. TORRUELLAS IGLESIAS; THOMAS
J. ROBINSON; ZULMA OLIVERAS VEGA; YOLANDA ARROYO
PIZARRO; JOHANNE VLEZ GARCA; FAVIOLA MELNDEZ
RODRGUEZ; PUERTO RICO PARA TOD@S;
IVONNE LVAREZ VLEZ
Plaintiffs - Appellants
v.
DR. ANA RIUS ARMENDRIZ, in her official capacity as Secretary of the
Health Department of the Commonwealth of Puerto Rico;
WANDA LLOVET DAZ, in her official capacity as the Director of the
Commonwealth of Puerto Rico Registrar of Vital Records;
ALEJANDRO J. GARCA PADILLA, in his official capacity as Governor of
the Commonwealth of Puerto Rico; JUAN C. ZARAGOZA GMEZ, in his
official capacity as Director of the Treasury in Puerto Rico
Defendants Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO
__________________________________________________________________
RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO INTERVENE
AS DEFENDANTS-APPELLEES
TO THE HONORABLE COURT:
COME NOW, Defendants-Appellees, Alejandro J. Garca-Padilla, Dr.
Rus-Armendriz, Wanda Llovet-Daz, and Juan C. Zaragoza-Gmez, in their
official capacities, and respectfully aver and pray:

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I. BACKGROUND
On January 26, 2015, accepted on January 28, 2015, Appellants filed their
Principal Brief. Numerous amicus curiae briefs were filed soon after Appellants
filed their brief on appeal. On March 20, 2015, accepted on March 24, 2015,
Appellees filed their Response Brief. In their brief, the appearing Appellees stated
that they could no longer defend the Constitutionality of Article 68 of the Puerto
Rico Civil Code which states that [m]arriage is a civil institution . . . whereby a
man and a woman mutually agree to become husband and wife. . . . Any marriage
between persons of the same sex or transsexuals contracted in other jurisdictions
shall not be valid . . . .
On March 25, 2015, a group of senators and representatives -- eight (8)
senators and four (4) representatives--, in their individual capacities (hereinafter
movants), filed a motion for leave to file an amicus brief in support of the
judgment issued by the District Court upholding the constitutionality of Article 68
of the Puerto Rico Civil Code. On March 30, 2015, this Court denied movants
request to file an amicus brief stating:
The motion for leave to file an amicus brief filed by
Senators Angel Ramon Martinez-Santiago, Jose PerezRosa, Luis Daniel Rivera-Filomeno, Pedro RodriguezGonzalez along with additional senators and
representatives of the Legislative Assembly of Puerto
Rico is denied without prejudice for failure to submit
a proposed amicus brief. See Fed. R. App. P. 29(b)
(providing that motion be accompanied by the proposed
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amicus brief and state the movant's interest, the reason

why an amicus brief is desirable and why the matters
asserted are relevant to the disposition of the case).
(Emphasis ours).
Despite this Courts warning, movants failed to cure the procedural
deficiencies of their petition to appear as amicus as they did not submit their
proposed amicus brief as required under Rule 29(b) of the Federal Rule of
Appellate Procedure. Instead, on April 14, 2015 --after Appellants filed their reply
brief--, movants, in their individual capacities, filed a Motion for Leave to
Intervene as Defendants-Appellees, relying on Rule 24 of the Federal Rule of Civil
Procedure.
It is the position of the appearing Appellees that movants request for
intervention as of right and/or permissive intervention under Rule 24 of the FRCP
should be denied because (1) it would unduly delay proceedings after briefing
closed in this appeal; and (2) movants lack standing to intervene.
II. DISCUSSION
A. The petition to intervene would unduly complicate proceedings.
It is respectfully submitted that allowing movants to participate as additional
defendants-appellees would complicate the proceedings after briefing concluded in
this appeal and there is con cognizable or material advantage to allowing a new
party to intervene at this stage. Indeed, movants did not tender a proposed brief as

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amicus curiae in a timely fashion, despite being instructed to do so on March 30,

2015. And even after this Honorable Court informed movants of their omission to
tender a proposed brief, they failed to tender a proposed merits brief when they
filed their petition to intervene. Thus, movants have not placed this Honorable
Court in a position to allow them to intervene as amicus, much less as parties to
this appeal.
It is not reasonable to allow movants to intervene at this stage of the
proceedings, particularly after briefing concluded. See P.R. Telephone Co. v.
Sistema de Retiro de Empleados del Gobierno y la Judicatura, 637 F.3d 10, 14 (1st
Cir. 2011) (discussing the four factors required to succeed in a motion to intervene
as of right under Rule 24(a) of the FRCP); see also R.G. Mortg. Corp. v. Federal
Home Loan Mortg. Corp., 584 F.3d 1, 7 (1st Cir. 2009) (stating that [t]he
timeliness inquiry is inherently fact-sensitive and depends on the totality of the
circumstances.).

If movants are allowed to intervene, this Court would be

required to reopen the briefing stage of this appeal which has since concluded. We
respectfully posit that movants have not placed the Court in the position of
deserving additional considerations when the parties and the amici complied with
the timeline of the appeal.

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B.

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Movants lack standing to intervene.

Federal courts have jurisdiction over disputes if a justiciable case or

controversy exists throughout all stages of litigation. See Hollingsworth v. Perry,
133 S.Ct. 2652, 2661 (2013); see also U.S. Const. Art. III, 2. One essential
aspect of this requirement is that any person invoking the power of a federal court
must demonstrate standing to do so. Id.
The Supreme Court of the United States has stated that the standing
question in its Art. III aspect is whether the plaintiff has alleged such a personal
stake in the outcome of the controversy as to warrant his invocation of federalcourt jurisdiction and to justify exercise of the courts remedial powers on his
behalf. Simon v. E.Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (emphasis
ours); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003)(citing
Warth v. Seldin, 422 U.S. 490, 498-499 (1975). To meet the standing requirement,
the petitioner must allege a personal injury that is particularized, concrete, and
otherwise judicially cognizable. See Raines v. Byrd, 521 U.S. 811 (1997); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The party that invokes federal jurisdiction must show, at a minimum: (1) that
it suffered an actual or threatened injury as a result of the challenged conduct;
(2) the injury can be fairly traced to that challenged conduct; and (3) the injury
likely will be redressed by a favorable decision. Valley Forge Christian Coll v.

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Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); see
also Mangual, 317 F.3d at 56.
In what is relevant to movants request to intervene, the Supreme Court has
developed a specialized set of standing rules to govern cases in which a legislator
seeks either to assert or to defend claims addressing either the constitutionality of a
law or the legality of executive action.

M. I. Hall, Standing Intervenor-

Defendants in Public Law Litigation, 80 Fordham L. Rev. 1539 (2012).

legislator, however, receives no special consideration in the standing inquiry,

Reuss v. Balles, 584 F.2d 461, 466 (D.C. Cir.), cert. denied, 439 U.S. 997 (1978),
and he, along with every other person attempting to invoke the aid of a federal
court, must show injury in fact as a predicate to standing.
In Raines v. Byrd, 521 U.S. 811 (1997), several federal legislators brought a
challenge to the constitutionality of the Line Item Veto Act, claiming that it
violated the grant of legislative power to Congress by allowing the President to
amend spending laws by removing specific portions enacted by Congress. Id.
Holding that the legislators lacked standing to sue, the Supreme Court stated:
Appellees' claim does not fall within the Court's holding in
Coleman, the one case in which standing has been upheld for
legislators claiming an institutional injury. There, the Court
held that state legislators who had been locked in a tie vote that
would have defeated the State's ratification of a proposed
federal constitutional amendment, and who alleged that their
votes were nullified when the Lieutenant Governor broke the tie
by casting his vote for ratification, had a plain, direct and
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adequate interest in maintaining the effectiveness of their

votes. Id., at 438, 59 S.Ct., at 975. In contrast, appellees have
not alleged that they voted for a specific bill, that there were
sufficient votes to pass the bill, and that the bill was
nonetheless deemed defeated. In the vote on the Act, their
votes were given full effect; they simply lost that vote. To
uphold standing here would require a drastic extension of
Coleman, even accepting appellees' argument that the Act has
changed the meaning and effectiveness of their vote on
appropriations bills, for there is a vast difference between the
level of vote nullification at issue in Coleman and the abstract
dilution of institutional power appellees allege.
Raines, 521 U.S. at 812 (emphasis ours). Moreover, in Raines, the Supreme Court
highlighted that [s]ome importance must be attached to the fact that appellees
have not been authorized to represent their respective Houses in this action,
and indeed both Houses actively oppose their suit. Id. (emphasis ours).
We acknowledge that proponents of a strong view of legislative standing
often cite a passage of the Supreme Courts decision in INS v. Chadha, 462 U.S.
919, 940 (1983), in which the Court stated: [w]e have long held that Congress is
the proper party to defend the validity of a statute when an agency of government,
as a defendant charged with enforcing the statute, agrees with plaintiffs that the
statute is inapplicable or unconstitutional. Matthew I. Hall, Standing of
Intervenor-Defendants in Public Law Litigation, 80 Fordham L. Rev. 1539, 154748(2012). Indeed, movants cited Chadha in support of their proposition that none
of the existing parties represent Movants interest in defending the constitutionality
of Puerto Ricos marriage law against equal protection challenges. See Movants
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Proposed Brief at 7. Taken out of context, that statement would appear to permit
congressional intervention in any case in which the Attorney General declines to
defend the constitutionality of a federal statute.

But the standing inquiry is

narrower and it is not enough for individual legislators to posit that the Executive
Branch has failed to defend the constitutionality of a given statute.
In fact, the Supreme Courts decisions in Raines, negates movants argument
as the Court declined to grant standing to legislators such as movants who purport
to intervene as parties in federal litigation to pursue generalizes institutional
injuries or concerns. As a scholarly commentary posits: Chadha does not hold
that Congress may intervene to defend any challenged federal statute, and such a
holding would be irreconcilable with Raines, not to mention flatly at odds with the
exclusive grant of power to the Attorney General in 28 U.S.C. 516.

Hall, 80

Fordham L. Rev. at 1549.

Importantly, the recent Supreme Court decision in Hollingsworth clearly
shows that movants lack standing to intervene.

Hollingsworth involved a

challenge weighed by same-sex couples to the constitutionality of Proposition 8,

that amended the California Constitution to define marriage as a union between a
man and a woman. The Supreme Court held that petitioners, proponents of the
initiative who had been allowed to intervene in the district court, did not have
standing to appeal the District Courts order on the merits that had declared

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Proposition 8 unconstitutional and enjoined the named defendants --public

officials-- from enforcing the law. Hollingsworth, 133 S.Ct. at 2660-68. The
public officials chose not to appeal, but petitioners proponents of ballot initiative
who had intervened before the district courtlodged an appeal. Id. Holding that
petitioners lacked standing in a scenario where the State had declined to defend the
constitutionality of a statute, the Supreme Court clearly stated: [w]e have never
before upheld the standing of a private party to defend the constitutionality of a
state statute when state officials have chosen not to. We decline to do so for the
first time here. Hollingsworth, 133 S. Ct. 2652, 2668. Particularly, the Court
found that petitioners lacked a direct stake in the appeal and that their only
interest was to vindicate the constitutional validity of a generally applicable
California law. Id. at 2662. That is, the Court applied the prevailing rule that
such a generalized grievance, no matter how sincere, is insufficient to confer
standing. Id. This ruling is dispositive of movants petition to intervene as they
cannot be considered agents of the state and are instead, individual legislators who
put forth nothing more than a generalized interest that does not confer them
standing to intervene in this case to defend the constitutionality of a
Commonwealth statute.
Movants claim that they have a significantly protectable interest in the
Commonwealths laws and policy making through a democratic process, see

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Movants Proposed Brief at 7, and they invoke an interest to appropriately defend

the peoples right in regulating their domestic policies through their elected
representatives, see id at 9. Additionally, movants reference alleged individual
interests to defend[] the enforceability of statutes enacted by the Legislative
Assembly. See Movants Motion for Leave to Intervene at 4 15. They also state
that as duly elected legislators, they have plenary authority to regulate the
institution of marriage in th[e] [Commonwealth. See Movants Proposed Brief at
11.
It is therefore plain that movants invoke a generalized interest in the
democratic process based on the idea that they should defend the constitutionality
of duly enacted statutes. Akin to petitioners in Hollingsworth, movants have no
role in the enforcement of Article 68 nor do they have any official authority to
directly enforce Article 68. 133 S.Ct. at 2663. They have no personal stake in
defending its enforcement that is distinguishable from the general interest of every
citizen of Puerto Rico. Thus, movants are not entitled to intervene.1

Although a State is able to designate agents to represent its interests in federal

court, the Commonwealth has not designated movants as such agents and movants
have not invoked any Commonwealth statute designating them as agents of the
Commonwealth or otherwise. See Hollingsworth, 133 S.Ct. at 2664 (recognizing
that state law may provide for other official to speak for the State in federal court)
compare with Arizona for Official English v. Arizona, 520 U.S. 43, 65
(1997)(expressing grave doubt as to the standing analysis made by the appellate
court, there being no law appointing initiative sponsors Arizona for Official
English Committee as agents of the people of Arizona to defend the
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To the extent that movants seek to protect enforcement of Article 68, it bears
noting that Appellants decision not to defend the statutes constitutionality does
not render said provision null, as the Executive Branch of the Commonwealth of
Puerto Rico will continue to enforce the statute, subject to a final decision by this
Honorable Court. Thus, current enforceability of the challenged Commonwealth
statute is not at issue and in any event, movants are not agents of the
Commonwealth and they therefore lack authority to assert state interests in this
case. Importantly, movants lack authority to expound the institutional or official
position of Puerto Ricos Legislative Assembly. They simply purport to intervene
in their individual capacities, drawing from the fact that they hold public office as
legislators in the Commonwealth.
Given the nature of movants claimed interest, we must underscore that
their request for intervention is not akin to the right to intervene granted to the
Bipartisan Legal Advisory Group of the House of Representatives (BLAG) in
Windsor v. United States, 133 S. Ct. 2675 (2013).
Windsor involved the constitutionality of the definition of marriage and
spouse provided by the Defense of Marriage Act (DOMA). While the suit was
pending, the Attorney General of the United States notified the Speaker of the

constitutionality of the initiative made law and noting Arizona committee and its
members were not elected representatives, finding the case moot by other events).

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House of Representatives, pursuant to 28 U.S.C. 530D,2 that the Department of

Justice would no longer defend the constitutionality of Section 3 of the DOMA.
The Attorney Generals letter stated that the President had instructed the
Department not to defend said statute in Windsor. However, it clarified that the
President also decided that Section 3 will continue to be enforced by the Executive
Branch.
BLAG voted to intervene in the litigation in order to defend Section 3 of the
DOMA. The Department of Justice did not oppose BLAGs limited intervention.
The district court denied BLAGs motion to enter the suit as of right, on the basis
that the United States already was represented by the Department of Justice.
Nevertheless, BLAG was allowed to intervene before the district court as an
interested party, pursuant to Fed. Rule Civ. Proc. 24(a)(2).
Movants, however, are not akin to BLAG. While Rule II 8 of the Rules of
the House of Representatives confers BLAG legal authority to establish the official
legal positions and represent the House in all legal matters;3 movants do not

This provision requires the Attorney General to report to the Congress any
instance in which the Department of Justice determines to refrain (on the grounds
that the provision is unconstitutional) from defending or asserting, in any judicial,
administrative, or other proceeding, the constitutionality of any provision of any
Federal statute, rule, regulation, program, policy, or other law, or not to appeal or
request review of any judicial, administrative, or other determination adversely
affecting the constitutionality of any such provision. 28 U.S.C. 530D.
3
Since at least the early 1980s, the United States House of Representatives has
articulated its institutional position in litigation matters through BLAG; a five12

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represent the interests of the Commonwealths Legislative Assembly and they have
no authority to represent the legislature in judicial proceedings.
Given that movants have no legal authority to represent the Commonwealth
or its legislature, the only interest that they seek to pursue in this appeal falls
within the realm of a generalized stake in enforcement of Commonwealth law;
which interest fails to afford them a sufficient personal stake to conform with the
standing requirement. Pursuant to the Supreme Courts decisions in Raines and
Hollingsworth, movants, as individual legislators or citizens, lack standing to
intervene to defend the constitutionality of Article 68 of the Puerto Rico Civil
Code.
Commonwealth interests are adequately represented in this case by the
Department of Justice of the Commonwealth of Puerto Rico. And the Court has
been placed in a position to adjudicate this case drawing from the briefs filed by

member bipartisan leadership group. Since 1993, the House rules formally
acknowledge and refer to the Bipartisan Legal Advisory Group in connection with
its function of providing direction to the Office of the General Counsel.
Particularly, Rule II 8 of the Rules of the House of Representatives establishes the
Office of General Counsel, which serves the purpose of providing legal assistance
and representation to the House. This Rule also asserts that such legal assistance
and representation must be provided without regard to political affiliation. As
stated in Rule II 8, unless otherwise provided by the House, the BLAG speaks
for, and articulates the institutional position of, the House in all litigation
matters. Id. (emphasis ours).

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the parties, as well as the briefs filed by the amici, including those amici that were
granted leave to appear in support of the constitutionality of Article 68.

III.

CONCLUSION

Movants intervention at this stage of the proceedings is particularly

improper given that they previously failed to file a proper petition to participate as
amicus. Movants now seek to intervene as a party to this appeal; but once again
failed to tender a proposed brief. Given movants procedural failures and taking
into consideration that briefing already concluded in this case, we respectfully
posit that this Court should deny their untimely and improper request for
intervention.
Movants are not state officers, acting in their official capacity; and they do
not represent the Commonwealths interests.

They seek intervention in their

individual capacities to allegedly vindicate a generalized interest in the

Commonwealths laws and policy making processes. See Movants Motion for
Leave to Intervene at 4 12; 8 15; see also Movants Proposed Brief at 4; 7. As
such, movants have no standing to intervene in the present case.
The Supreme Court has never before upheld the standing of a private party
to defend the constitutionality of a state statute when state officials have chosen not
to. Hollingsworth, 133 S.Ct. at 2668. This Honorable Court should refrain from
entertaining movants generalized grievances.
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WHEREFORE, Defendants-Appellees respectfully petition this Court to

deny Movants request to intervene as Defendants-Appellees be denied.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico this 24th day of April, 2015.

s/Margarita Mercado-Echegaray
MARGARITA MERCADO-ECHEGARAY
Solicitor General

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that on this same date I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to all counsel of record.
In San Juan, Puerto Rico this 24th day of April, 2015.
s/Margarita Mercado-Echegaray
MARGARITA MERCADO-ECHEGARAY
Solicitor General
Department of Justice
Commonwealth of Puerto Rico
U.S.C.A. No. 1140532
P.O. Box 9020192
San Juan, P.R. 00902-0192
Phone (787) 724-2165/
Facsimile (787) 724-3380
marmercado@justicia.pr

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