Motion for Leave to File, State of Ohio v. Yellen, No. 1:21-cv-00181 (S.D. Ohio), Doc. 39 (May 21, 2021)

Summary

Unopposed Motion of The Buckeye Institute to File Amicus Curiae Brief in Support of the State of Ohio's Motion for Permanent Injunction in State of Ohio v. Yellen, No. 1:21-cv-181 (Judge Douglas R. Cole), filed May 21, 2021. The motion states that the Plaintiff and Defendants consent to the filing, with the amicus brief attached as Exhibit A. It describes The Buckeye Institute as founded in 1989 as an independent research and educational institution, a "think tank," dedicated to upholding the balance of power between States and the federal government. Robert Alt signs the certificate of service, with Andrew M. Grossman and Sean Sandoloski of Baker & Hostetler LLP listed as counsel.

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   Case: 1:21-cv-00181-DRC Doc #: 39 Filed: 05/21/21 Page: 1 of 5 PAGEID #: 612




                      IN THE UNITED STATES DISTRICT COURT
                           SOUTHERN DISTRICT OF OHIO
                               WESTERN DIVISION


STATE OF OHIO,

                      Plaintiff,

               v.

JANET YELLEN, in her official
capacity as Secretary of the
                                                 Case No. 1:21-cv-181
Treasury; RICHARD K. DELMAR,
in his official capacity as acting               Judge Douglas R. Cole
inspector general of the Department
of Treasury; and U.S.
DEPARTMENT OF THE
TREASURY,

                      Defendants.


             UNOPPOSED MOTION OF THE BUCKEYE INSTITUTE
               TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF
        THE STATE OF OHIO’S MOTION FOR PERMANENT INJUNCTION
       The Buckeye Institute respectfully moves this Court for leave to submit the attached

amicus curie brief (Exhibit A) in support of the State of Ohio. The Plaintiff and Defendants

consent to the filing of this amicus brief.

                      INTERESTS OF PROPOSED AMICUS CURIAE

       Amicus curiae The Buckeye Institute was founded in 1989 as an independent research

and educational institution—a “think tank”—to formulate and promote free-market solutions

for Ohio’s most pressing public policy problems. The Buckeye Institute is dedicated to up-

holding the balance of power between States and the federal government as prescribed by the

U.S. Constitution, to creating a pro-growth economic tax system, and to ensuring responsible

government spending. The Tax Mandate’s capacious, open-ended prohibition on any State
   Case: 1:21-cv-00181-DRC Doc #: 39 Filed: 05/21/21 Page: 2 of 5 PAGEID #: 613




activity that could directly or indirectly offset a reduction in a State’s tax revenue frustrates

these efforts.

                                           ARGUMENT

       There is “[n]o statute, rule, or controlling case” that “defines a federal district court’s

power to grant or deny leave to file an amicus brief.” U.S. ex rel. Gudur v. Deloitte Consulting LLP,

512 F. Supp. 2d 920, 927 (S.D. Tex. 2007). The decision “lies solely within the court’s discre-

tion.” Id.; see also Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co., 386 U.S. 129, 159 n.27 (1967)

(Stewart, J. dissenting); Waste Mgmt. of Penn., Inc. v. New York, 162 F.R.D. 34, 36 (M.D. Pa.

1995). But district courts “commonly refer to [Federal] Rule [of Appellate Procedure] 29 for

guidance,” and they “typically grant amicus status where the parties contribute to the court’s

understanding of the matter in question by proffering timely and useful information.” Gudur,

512 F. Supp. 2d at 927 (quotation marks omitted); see also United States v. Louisiana, 751 F. Supp.

608, 620 (E.D. La. 1990) (explaining that “[t]here are no strict prerequisites” for leave and that

“amicus must merely make a showing that his participation is useful to or otherwise desirable

by the court”).

       Furthermore, when exercising their discretion, courts “err on the side of granting leave.”

Neonatology Assocs., Penn. v. Comm’r, 293 F.3d 128, 133 (3d Cir. 2002). As then-Judge Alito ex-

plained, “[i]f an amicus brief that turns out to be unhelpful is filed, the [court], after studying the
case, will often be able to make that determination without much trouble and can then simply

disregard the amicus brief. On the other hand, if a good brief is rejected, the [court] will be de-

prived of a resource that might have been of assistance.” Id. As in the instant case, “amicus briefs

are typically allowed ‘when the amicus has unique information or perspective that can help the

court beyond the help that the lawyers are able to provide.’” Mobile Cnty. Water, Sewer & Fire

Prot. Auth., Inc. v. Mobile Area Water & Sewer Sys., Inc., 567 F. Supp. 2d 1342, 1344 n.1 (S.D. Ala.

2008), aff’d 564 F.3d 1290 (11th Cir. 2009).

       Here, The Buckeye Institute’s brief will be “useful” to the Court. Gudur, 512 F. Supp.

2d at 927. The Buckeye Institute’s brief explains how the Department of the Treasury’s Interim


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Final Rule cannot cure the Tax Mandate’s inherent ambiguity and potentially limitless reach,

violative of the Constitution’s Spending Clause. It describes how the Executive Branch can

never cure a violation of the relevant clear-statement rule, including and especially via rulemak-

ing. And it further explains how the Interim Final Rule fails to provide the requisite clarity.

       Thus, The Buckeye Institute “fulfil[s] the classic role of amicus curiae”: “assist[ing] the

court in cases of general public interest by making suggestions to the court, by providing supple-

mentary assistance to existing counsel, and by insuring a complete and plenary presentation of

difficult issues so that the court may reach a proper decision.” Miller-Wohl Co. v. Comm’r of Labor

& Indus. State of Mont., 694 F.2d 203, 204 (9th Cir. 1982) (quotation marks omitted); see also Sierra

Club v. Wagner, 581 F. Supp. 2d 246, 250 n.1 (D.N.H. 2008) (quoting Newark Branch, NAACP v.

Harrison, 940 F.2d 792, 808 (3d Cir. 1991)). Moreover, although Plaintiffs’ arguments may touch

on some of the same issues, The Buckeye Institute’s brief “is proper” because it “present[s] as-

pects of ideas, arguments, [or] theories...that are not in the parties’ briefs.” United States v. Holy

Land Found. for Relief & Dev., 2009 WL 10680203, at *2 (N.D. Tex. July 1, 2009) rev’d in part on

other grounds, 624 F.3d 685 (5th Cir. 2010). “[S]ome repetition” by an amicus is inevitable and

“should be tolerated on the ground it is easily disregarded. After all, sometimes the most im-

portant thing a friend can do is remind you to do what is right.” Luther T. Munford, Listening to

Friends of the Court, ABA J. 128 (Aug. 1998).
       Finally, The Buckeye Institute’s brief is “timely.” Gudur, 512 F. Supp. 2d at 927. It sub-

mits its brief within 7 days after the principal brief of the party being supported is filed. See Fed.

R. App. P. 29(a)(6). Further, Defendants could not possibly suffer any prejudice by a brief that

they consented to the filing of via e-mail.




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                                     CONCLUSION

       For all these reasons, The Buckeye Institute respectfully requests leave to file the

attached amicus brief.

Dated: May 21, 2021                             Respectfully submitted,


                                                /s/ Robert Alt
                                                Robert Alt (0091753)
                                                 Counsel of Record
                                                THE BUCKEYE INSTITUTE
                                                88 East Broad Street, Suite 1300
                                                Columbus, Ohio 43215
                                                Telephone: 614.224.4422
                                                robert@buckeyeinstitute.org

                                                Andrew M. Grossman
                                                Sean Sandoloski
                                                BAKER & HOSTETLER LLP
                                                Washington Square, Suite 1100
                                                1050 Connecticut Avenue, N.W.
                                                Washington, D.C. 20036
                                                Telephone: 202.861.1500
                                                Facsimile: 202.861.1783
                                                agrossman@bakerlaw.com

                                                Counsel for Amicus Curiae
                                                The Buckeye Institute




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                               CERTIFICATE OF SERVICE
       I hereby certify that on May 21, 2021, a copy of the foregoing was filed electronically.

Notice of this filing will be sent to all parties for whom counsel has entered an appearance by

operation of the Court’s electronic filing system.



                                                     /s/ Robert Alt______
                                                     Robert Alt (0091753)
                                                     Counsel for Amicus Curiae


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