DOJ/ US Trustee Seeks To File Appeal of CA Bankruptcy Court's DOMA Ruling

The United States Trustee for California has filed a Motion For Leave To Appeal the ruling by the US Bankruptcy Court for the Central District of California which declared DOMA unconstitutional. The filing, in the case In re Balas and Morales (11-bk-17831-TD Doc 53), states that:

Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.

A strange submission. the Justice Department believes that DOMA is unconstitutional, but is appealing a ruling that DOMA is unconstitutional. The filing indicates that the opportunity to brief this issue was provided to the Congress, which declined to participate, and there is no indication that Congress wants to participate in an appeal. So who exactly is seeking reversal here?

While it is true that Justice has a duty, to a point, to defend duly enacted laws, there are limits to this duty. And indeed, the United States Trustee in this case does not seem to have much inclination to provide a meritorious defense in this appeal. Not a decision I fully understand (indeed, it defies my prediction of no appeal in this case.)

Speaking for me only

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    Be careful what you ask for (none / 0) (#1)
    by BTAL on Tue Jun 28, 2011 at 10:04:09 PM EST
    as you just might get it.

    The DOJ litigation policy on DOMA (none / 0) (#2)
    by Peter G on Tue Jun 28, 2011 at 10:35:57 PM EST
    is mighty strange.  And this is even stranger.  I don't get it at all, and federal appeals have been my special field for the last 30 years.

    incomparable administration (none / 0) (#4)
    by Dadler on Wed Jun 29, 2011 at 12:03:07 AM EST
    incomparable actions.



    Maybe it's part of the (5.00 / 0) (#7)
    by Anne on Wed Jun 29, 2011 at 06:49:39 AM EST
    "all things to all people" strategy; take at least two sides on every issue and everyone's happy, right?  Means that whatever audience the president is standing in front of, he can say with a straight face, no lie, that he supports - or is opposed to - whatever their issue is.  Neat.  Works well with the "as I've always said" shtick the pres likes to do - now it can be true!

    I know the justice system certainly isn't a politics-free zone, but this move takes it to a level I'd hoped we'd never see.

    And I probably don't really want to know what's next.


    fascinating (none / 0) (#3)
    by The Addams Family on Tue Jun 28, 2011 at 11:28:15 PM EST

    A Tremendous Change of Venue! (none / 0) (#5)
    by Gerald USN Ret on Wed Jun 29, 2011 at 12:27:10 AM EST
    BTD, consider that you just got a high inside SPITBALL from the Gamecocks of the University of South Carolina!!

    And now I am doing a line dance down on the field with my guys!!

    Congratulations (none / 0) (#10)
    by Big Tent Democrat on Wed Jun 29, 2011 at 07:23:21 AM EST
    Sincerely . . . NOT.

    this does seem rather odd. (none / 0) (#6)
    by cpinva on Wed Jun 29, 2011 at 04:56:21 AM EST
    that said, what happened to the $500k that speaker boehner (illegally) allocated for the house defense of DOMA? you'd think this case would be the perfect opportunity to use it.

    or is there something i'm totally missing here?

    The US Bankruptcy Trustee is a contractor (none / 0) (#8)
    by scribe on Wed Jun 29, 2011 at 07:15:49 AM EST
    of the government (when you cut through everything), not an employee of the government.  The Trustee is paid by the hour.

    That should be explanation enough why the Trustee is appealing.

    Checks come from Justice (none / 0) (#9)
    by Big Tent Democrat on Wed Jun 29, 2011 at 07:22:40 AM EST
    As do policy directive.

    How much you wanna bet (none / 0) (#11)
    by scribe on Wed Jun 29, 2011 at 08:41:22 AM EST
    the person at Justice in charge of writing the checks is one of the Bush appointees who burrowed into a permanent job?

    Like, for example, Rachel Paulose, the scandal of a 33 y/o Bushbot USAtty in the D. Minn., who's now working as an attorney for the SEC in Miami?

    Or all those DEA folks who work explicitly contrary to the stated DoJ policies - persecuting med-MJ folks when the policy letter said "don't", and somehow, mysteriously, get to keep their jobs?

    I'm willing to bet there's something like that going on here.  Attorneys in the pay of the US don't go against stated policy without being sure they won't get fired over it.  And that goes doubly for a contractor on a plum assignment that's a license to print money, like a US Trustee.


    No comment (none / 0) (#14)
    by Big Tent Democrat on Wed Jun 29, 2011 at 09:34:45 AM EST
    An alternate, and equally plausible (none / 0) (#15)
    by scribe on Wed Jun 29, 2011 at 09:46:20 AM EST
    explanation would be that the US Trustee/DoJ is taking this appeal  - on orders from above - in the hope of getting an appellate decision (a) binding on a larger swath of the country and (b) not limited to the specific facts of this particular bankruptcy case.

    I'm pretty sure you are not correct, Scribe (none / 0) (#12)
    by Peter G on Wed Jun 29, 2011 at 09:13:51 AM EST
    You may have confused the "trustee" appointed for the estate in the particular bankruptcy case, with the "United States Trustee," a DOJ official in each federal District, whose job is "to promote the efficiency and protect the integrity of the Federal bankruptcy system. ... [Inter alia, the UST] monitors the conduct of ... private estate trustees, ... and acts to ensure compliance with applicable laws and procedures."  Now having pulled up and read the document myself (I could forward a copy to TL or BTD, if they want to upload it for others to examine), I think it functions basically as what is called a "protective notice of appeal."  By filing it and meeting the deadline for initiating an appeal, the U.S. Trustee is protecting Congress's option to pursue the appeal.  But if Congress decides not to, then the appeal would be voluntarily dismissed, that is, dropped.

    I'm not familiar with that concept (none / 0) (#13)
    by Big Tent Democrat on Wed Jun 29, 2011 at 09:34:24 AM EST
    How can one party "protect" the appeal rights of another?

    Without getting into the weeds or (none / 0) (#16)
    by scribe on Wed Jun 29, 2011 at 09:51:23 AM EST
    doing actual research, I'll reason that DoJ is filing a protective notice of appeal to protect Congress' right (if any) to litigate, i.e., to protect against the jurisdictional bar of the time to appeal running out.  And I'll further reason that, for separation of powers and similar concerns, the normal rules on who may appeal might not apply with equal force to Congress, or there might be additional, special rules, to give the Congress appellate standing.

    I am familiar with the concept and use of a protective cross-appeal, in which the party winning below (appellee) files a cross-notice of appeal which says "if you decide to grant relief along the lines of what the appellant is seeking, we have these issues we would like to appeal but which we, as the winning party below, were not able to because in winning below we were not 'aggrieved' by the judgment."  I've done that a number of times, and it often comes up in the context of the judge screwing up a measure of damages issue in a PI case.


    Under the rather unusual bankruptcy system (none / 0) (#17)
    by Peter G on Wed Jun 29, 2011 at 10:00:22 AM EST
    -- where private rights are adjudicated and modified under government supervision and in the public interest (as the Framers foresaw, U.S. Const., art. I, sec. 8, cl. 4) -- the United States Trustee has standing to appeal any order in a bankruptcy case on nothing more than a claim that it affects the public interest.  Collier on Bankruptcy para. 5.07, citing a 1990 6th Circuit case.  The appeal is taken in the name of "the United States."  Thus, Congress is not "another party," but would instead be (if it does as Boehner has threatened) another Branch of the same party, stepping in to carry forward the "government"'s appeal.

    Learn something new every day (none / 0) (#18)
    by Big Tent Democrat on Wed Jun 29, 2011 at 12:45:49 PM EST
    I wish it were true (none / 0) (#19)
    by Peter G on Wed Jun 29, 2011 at 01:23:06 PM EST
    that we learn something new every day.  However, the days when we learn something new are definitely -- for that reason -- what I count as good days. And thanks to TalkLeft, I learn something new almost every day.

    While federal statutes (none / 0) (#20)
    by KeysDan on Wed Jun 29, 2011 at 03:47:46 PM EST
    authorize Congress to intervene and take over the defense of a statue when the executive branch (DOJ) does not, as in the DOMA case, it seems curious that the Constitution permits Congress to assume a broad adjudicative posture.

    Where adjudicative functions are enabled by the Constitution, they are specific, such as in the removal of the president and certain other federal officers. And in such cases, it is bicameral with impeachment charged to the House and trial to the Senate.  And, the federal statutes have different processes for the Senate and the House--in order for the senate legal counsel to appear on behalf of the senate, the senate must adopt a resolution of authorization.  The House can enter an appearance in a proceeding before a court of the US without compliance with admission requirements (except the Supreme Court), but House rules state that the general counsel or representative function pursuant to the Speaker alone, but with consultation (not veto) of a bipartisan legal advisory group of the majority and minority leadership. (Speaker Boehner did convene this group in the DOMA case, with a 3 to 2 vote for the Speaker to intervene).

    Since legislation requires both chambers of Congress for passage, it seems odd that just one, and not both chambers would have to agree to intervene through their respective mechanisms.

    A case of Congressional intervention occurred in INS v Chadha (1983) wherein both House and Senate intervened after the DOJ joined with the plaintiffs to argue that a provision of federal immigration law was unconstitutional. That provision specifically allowed either the House or Senate by resolution to veto the DOJ.  However, the Supreme Court found this provision unconstitutional.  While Congress may be the proper party to defend a statute when an agency of government agrees with the plaintiffs in Court, Congress is both houses, the House and Senate, would appear to require bicameral action.