Case 1:09-cv-11156-JLT Document 41

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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, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, in his official capacity as the Secretary of the United States Department of Veterans Affairs; and the UNITED STATES OF AMERICA, Defendants. RESPONSE OF THE COMMONWEALTH OF MASSACHUSETTS TO THE MOTION OF MARK A. THOMAS FOR LEAVE TO INTERVENE AND FILE MOTION TO DISMISS The Commonwealth of Massachusetts (Commonwealth), by its Attorney General, Martha Coakley, hereby responds to the Motion of Mark A. Thomas for leave to intervene and file a motion to dismiss in the above-captioned case. ARGUMENT On September 17, 2009, Mr. Thomas filed a Motion for Intervenor Status Or In The Alternative Motion For Leave to File Amicus Curiae Brief. Dkt. 10. The Commonwealth responded on October 1, 2009, taking no position on the request to file an amicus brief but opposing the request to intervene on the grounds that Mr. Thomas did not meet the standard for
permissive intervention pursuant to Federal Rule of Civil Procedure 24(b), particularly given that filing an amicus brief would accomplish Mr. Thomass objective of presenting his legal arguments to

Civil Action No. 1:09-cv-11156

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the Court. Dkt. 12. Defendants opposed Mr. Thomass request on the same day. Dkt. 13. Mr. Thomas later filed a Motion for Leave to Clarify his earlier motion. Dkt. 15. Mr. Thomass motions remain pending. Mr. Thomas has now filed a document entitled Leave to Intervene and File Motion to Dismiss Plaintiffs Case Pursuant to 28 U.S.C.A. 1652. Dkt. 24. In this motion, Mr. Thomas appears to abandon his previous intention to submit an amicus brief and requests only that he be allowed to intervene in the case. Mr. Thomass renewed filing does not demonstrate any new arguments for intervention. Mr. Thomass proposed filing again focuses on arguments under Massachusetts law, which this Court lacks jurisdiction to review; accordingly, Mr. Thomas does not state a well-pleaded claim or defense to the action. R.I. Fedn of Teachers v. Norberg, 630 F.2d 850, 854-55 (1st Cir. 1980). Nor does

the request to intervene rebut the presumption that the Defendants will adequately represent any interest Mr. Thomas might have in defending the Defense of Marriage Act. Daggert v. Commn on Govt Ethics & Election Practices, 172 F.3d. 104, 111 (1st Cir. 1999) (government enjoys a presumption that it will adequately represent the interests of citizens who support a statute); Pub. Serv. Co. v. Patch, 136 F.3d 197, 207-08 (1st Cir. 1998) (same).
Nor does Mr. Thomas dispute that he could have presented his arguments to the Court in the form of an amicus brief. See, e.g., Tutein v. Daley, 43 F. Supp. 2d 113, 131 (D. Mass. 1999); Mass. Food Assn v. Sullivan, 184 F.R.D. 217, 225 (D. Mass. 1999). The Commonwealth continues

to take no position on Mr. Thomass outstanding request to file an amicus brief.

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CONCLUSION For the foregoing reasons, as well as the reasons set forth in the Commonwealths prior filing (Dkt. 12), the Commonwealth respectfully submits that the request to intervene should be denied. The Commonwealth takes no position on Mr. Thomass pending request for leave to file an amicus brief.

Dated: February 23, 2010 Boston, Massachusetts

Respectfully submitted: COMMONWEALTH OF MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL

/s/ Maura T. Healey______________________ Maura T. Healey, BBO No. 640856 Jonathan B. Miller, BBO No. 663012 Christopher K. Barry-Smith, BBO No. 565698 Assistant Attorneys General One Ashburton Place Boston, MA 02108 Tel: (617) 727-2200 Fax: (617) 727-5762 maura.healey@state.ma.us jonathan.miller@state.ma.us chris.barry-smith@state.ma.us

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CERTIFICATE OF SERVICE I, Maura T. Healey, 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 (NEF) and paper copies shall be sent by first-class mail postage prepaid to: Mark A. Thomas 482 Beacon Street Boston, MA 02115 Proposed Intervenor

/s/ Maura T. Healey Maura T. Healey