Case No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RICHARD VAN HOUTEN, JR.; STEPHEN HALL,

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1 Case: Document: Page: 1 Date Filed: 09/15/2015 Case No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RICHARD VAN HOUTEN, JR.; STEPHEN HALL, v. Plaintiffs-Appellants, CITY OF FORT WORTH, a Texas Municipal Corporation, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION SUPPLEMENT TO APPELLEE S MOTION TO CONSOLIDATE APPEALS Gerald Pruitt gerald.pruitt@fortworthtexas.gov State Bar. No Fort Worth City Attorney s Office 1000 Throckmorton Street Telephone: (817) Facsimile: (817) dee.kelly@kellyhart.com State Bar No David E. Keltner david.keltner@kellyhart.com State Bar No Marianne M. Auld marianne.auld@kellyhart.com State Bar No , Jr. dee.kelly.2@kellyhart.com State Bar No Mary H. Smith mary.smith@kellyhart.com State Bar No Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Telephone: (817) Facsimile: (817) Attorneys for Appellee City of Fort Worth, a Texas Municipal Corporation

2 Case: Document: Page: 2 Date Filed: 09/15/2015 CERTIFICATE OF INTERESTED PERSONS Pursuant to FED. R. APP. P and 5th CIR. R , Appellee City of Fort, a Texas Municipal Corporation offers this Certificate of Interested Persons. (1) Number and Style of the Case: Case No ; Richard Van Houten, Jr.; Stephen Hall v. City of Fort Worth, a Texas Municipal Corporation. (2) The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualifications or recusal. Appellants: Counsel for Appellants: Appellee: Counsel for Appellees Richard Van Houten, Jr. Stephen Hall Robert D. Klausner David D. Rapp City of Fort Worth, a Texas Municipal Corporation David E. Keltner Marianne M. Auld, Jr. Mary H. Smith /s/ Attorney of Record for Appellee, City of Fort Worth, a Texas Municipal Corporation Supplement to Appellee s Motion to Consolidate Appeals Page 2

3 Case: Document: Page: 3 Date Filed: 09/15/2015 SUPPLEMENT TO MOTION TO CONSOLIDATE APPEALS On August 18, 2015, pursuant to Federal Rule of Appellate Procedure 3(b)(2), Appellee City of Fort Worth, Texas (the City ) moved to consolidate or, alternatively, assign a single panel to hear and decide the following appeals currently pending in this Court: a. No , Richard Van Houten, Jr., et al. v. City of Fort Worth (the Police Officers Action ); and b. No , Tate, et al. v. City of Fort Worth (the Firefighters Action ). Appellants (the Police Officers ) responded on August 28, 2015 by filing an Opposed Motion to Certify and Opposition to Motion to Consolidate ( Response ). In their Response, the Police Officers acknowledged that the proper construction of Article XVI, Section 66(d) is important in both cases and should be conclusively decided by a single, competent court. [Resp. at 3, 7]. The Police Officers argued, however, that, in lieu of consolidation, this Court should certify identical questions to the Supreme Court of Texas in both cases but allow the appeals to remain separate. The City s Brief of Appellee originally was due to be filed on August 31, In order to give this Court an opportunity to rule on its Motion to Consolidate Appeals, however, the City obtained a 15-day extension of that deadline. Because the Court did not issue a ruling on or before the City s extended Supplement to Appellee s Motion to Consolidate Appeals Page 3

4 Case: Document: Page: 4 Date Filed: 09/15/2015 briefing deadline, the City filed its Brief of Appellee in the Police Officers Action concurrent with the filing of this Supplement. The City requested in the body of its Motion to Consolidate Appeals that the Court suspend the City s deadline to file a Brief of Appellee in the Police Officers Action, and that deadline now has passed. The City, therefore, wishes to clarify that consolidation still may be effected in other ways. For example, this Court could order that the briefs already filed by the Police Officers and the City in the Police Officers Action be withdrawn and replaced with consolidated briefs. Alternatively, the Court could suspend the Police Officers deadline to file a Reply in the Police Officers Action and require that the Police Officers and Firefighters file a consolidated Reply Brief after the Firefighters file their Brief of Appellants and the City files its Brief of Appellee in the Firefighters Action. In the further alternative, this Court could assign a single panel to hear and decide the appeals of the Police Officers Action and the Firefighters Action following separate briefing. Because the Police Officers Action and the Firefighters Action involve the same, or substantially similar, questions of law, and the same lawyers are involved in both appeals, consolidation in any form is feasible and will result in a substantial savings to the parties by avoiding duplication of effort and filings. Supplement to Appellee s Motion to Consolidate Appeals Page 4

5 Case: Document: Page: 5 Date Filed: 09/15/2015 PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, the City respectfully requests that the Court consolidate the appeals of the Police Officers Action and the Firefighters Action in one of three ways: (1) by ordering that the briefs already filed by the Police Officers and the City in the Police Officers Action be withdrawn and replaced with consolidated briefs; (2) by requiring that the Police Officers and Firefighters file a consolidated Reply Brief after the Firefighters file their Brief of Appellants and the City files its Brief of Appellee in the Firefighters Action; or (3) by assigning a single panel to hear and decide the appeals of the Police Officers Action and the Firefighters Action following separate briefing. Supplement to Appellee s Motion to Consolidate Appeals Page 5

6 Case: Document: Page: 6 Date Filed: 09/15/2015 Respectfully submitted, /s/ dee.kelly@kellyhart.com State Bar No David E. Keltner david.keltner@kellyhart.com State Bar No Marianne M. Auld marianne.auld@kellyhart.com State Bar No , Jr. dee.kelly.2@kellyhart.com State Bar No Mary H. Smith mary.smith@kellyhart.com State Bar No KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Telephone: (817) Facsimile: (817) Gerald Pruitt gerald.pruitt@fortworthtexas.gov State Bar. No Fort Worth City Attorney s Office 1000 Throckmorton Street Telephone: (817) Facsimile: (817) Attorneys for Appellee City of Fort Worth, a Texas Municipal Corporation Supplement to Appellee s Motion to Consolidate Appeals Page 6

7 Case: Document: Page: 7 Date Filed: 09/15/2015 CERTIFICATE OF SERVICE I hereby certify that true and correct copies of Appellee s Motion to Consolidate Appeal has been sent via the Court s electronic Notice of Docket Activity on this the 15th day of September, 2015 to: Robert D. Klausner bob@robertdklausner.com Klausner, Kaufman, Jensen & Levinson 7080 N.W. 4th Street Plantation, FL Counsel for Appellant David D. Rapp david@ektexas.com Eggleston King, LLP 102 Houston Avenue Weatherford, TX Counsel for Appellant /s/ Supplement to Appellee s Motion to Consolidate Appeals Page 7