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Andersen v. Leavitt

August 13, 2007

JOAN ANDERSEN, INDIVIDUALLY AND AS A REPRESENTATIVE OF ENROLLEES IN MEDICAREࡳ蠈 RESIDING IN SUFFOLK COUNTY, ET AL., PLAINTIFFS,
v.
MICHAEL LEAVITT, SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,*FN1 ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER on County of Suffolk's Motion for

In connection with Plaintiffs' claim of unconstitutionality of the Medicare statute, the County of Suffolk (the "County") seeks the Court's permission to file an amicus curiae brief addressing the Defendants' Motion for Summary Judgment and the Plaintiffs' opposition thereto. In sum, the County supports the Plaintiffs' position that the administration of the Medicare statute causes disparate treatment to those senior citizens (and certain others) residing in Suffolk County, as well as the counties of Nassau, Westchester, and Rockland, as opposed to the counties of Richmond, Queens, Kings, Bronx, and New York. Plaintiffs favor the Court granting the County permission to file its proposed amicus curiae brief. Conversely, the Defendants oppose permitting the County to file such an amicus curiae brief. For the reasons stated below, the Court GRANTS the County's Motion for Leave to File Amicus Curiae Brief.

I. BACKGROUND

For a discussion of the Parties' positions and arguments on Plaintiffs' claims of constitutional violation of the Equal Protection clause of the Fifth Amendment, readers are referred to Defendants' Memorandum of Law in Support of their Motion for Summary Judgment and Plaintiffs' opposition memorandum of law; the Court will assume the reader's familiarity with the factual and procedural background of this case as provided therein.*fn2 However, as to the instant Motion, the Court furnishes the following additional background.

On December 15, 2005, after the Defendants requested a pre-motion conference seeking permission to file a motion for summary, the Court waived its pre-motion conference requirement and set a briefing schedule. Ultimately, on September 13, 2006, upon completion of briefing, Defendants' Motion for Summary Judgment and Plaintiffs' Motion for Partial Summary Judgment were fully submitted to the Court for its consideration.

Five months later, the County filed a letter requesting leave to file an amicus curiae brief. (See Letter from Christine Malafi, Suffolk County Attorney, to Hon. Denis R. Hurley, U.S. District Court, E.D.N.Y. (Feb. 23, 2007) (doc. #58).) Quickly thereafter, Plaintiffs consented to the County's request. (See Letter from Richard Cahn, Cahn & Cahn, LLP, to Hon. Denis R. Hurley, U.S. District Court, E.D.N.Y. (Feb. 26, 2007) (doc. #59).) Conversely, the Defendants filed a response opposing the request. The primary basis for the Defendants' opposition was that the County's request was untimely, (see Letter from Michael Goldberger, Asst. U.S. Attorney, E.D.N.Y., to Hon. Denis. R. Hurley, U.S. District Court, E.D.N.Y., at 2 (Mar. 14, 2007) (doc. #60)), and that, in any event, the County's request did not offer any arguments or information useful to the resolution of the Defendants' Motion for Summary Judgment. (See id.)

The Court set a briefing schedule allowing the County to file its motion and giving both the Plaintiffs and Defendants an opportunity to respond. In addition, the Court directed the County "to address the Defendants' arguments of timeliness and usefulness" and "to append its proposed amicus brief to its moving papers." (Andersen v. Thompson, No. 03-cv-6115, electronic order (E.D.N.Y. Mar. 20, 2007).)

II. DISCUSSION

A. Standard for Allowing the Filing of an Amicus Curiae Brief in District Court

"A district court has broad discretion to grant or deny an appearance as amicus curiae in a given case." Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295, 311 (W.D.N.Y. 2007) (citing United States v. Ahmed, 788 F. Supp. 196, 198 n.1 (S.D.N.Y. 1992), aff'd, 980 F.2d 161 (2d Cir. 1992)); see also Long v. Coast Resorts, Inc., 49 F. Supp. 2d 1177, 1178 (D. Nev. 1999) ("There is no inherent right to file an amicus curiae brief with the Court. It is left entirely to the discretion of the Court."); Fluor Corp. & Affiliates v. United States, 35 Fed. Cl. 284, 285 (1996). "'A court may grant leave to appear as an amicus if the information offered is 'timely and useful.'" Long, 49 F. Supp. 2d at 1178 (quoting Waste Mgmt. of Pennsylvania v. City of York, 162 F.R.D. 34 (M.D. Pa. 1995)).

1. Usefulness

The primary reason to allow amicus curiae briefing is that the amicus curiae "offer insights not available from the parties," thereby aiding the Court. Citizens Against Gambling, 471 F. Supp. 2d. at 311 (quoting Onondaga Indian Nation v. New York, 97-CV-445, 1997 U.S. Dist. LEXIS 9168, at *7 (N.D.N.Y. June 25, 1997) (further citation omitted)). There are certain instances when the filing of an amicus brief is "desirable." Id.

An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.

Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, J.) (quoted in Citizens Against Casino, ...


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