Case 3:10-cv-01750-VLB Document 19 Filed 12/23/10 Page 1 of 11

FORM 26(F) JOINT REPORT OF PARTIES’ PLANNING MEETING

CIVIL ACTION NO. 3:10-cv-01750-VLB

________________________________________________
JOANNE PEDERSEN & ANN MEITZEN, )
GERALD V. PASSARO II, )
LYNDA DEFORGE & RAQUEL ARDIN, and )
JANET GELLER & JOANNE MARQUIS, )
)
Plaintiffs, )
)
v. )
)
OFFICE OF PERSONNEL MANAGEMENT, )
TIMOTHY F. GEITHNER, in his official capacity )
as the Secretary of the Treasury, and )
HILDA L. SOLIS, in her official capacity as the )
Secretary of Labor, )
MICHAEL J. ASTRUE, in his official capacity )
as the Commissioner of Social Security, )
UNITED STATES POSTAL SERVICE, )
JOHN E. POTTER, in his official capacity as )
The Postmaster General of the United States of )
America, )
DOUGLAS H. SHULMAN, in his official )
capacity as the Commissioner of Internal )
Revenue, and )
ERIC H. HOLDER, JR., in his official capacity )
as the United States Attorney General, )
)
Defendants. )
________________________________________________ )

Date Complaint Filed: November 9, 2010

Date Complaint Served: November 17, 2010

Date of Defendant’s Appearance: November 19, 2010

Pursuant to Fed. R. Civ. P. 16(b), 26(f) and D. Conn. L. Civ. R. 16, a

conference was held on December 20, 2010.

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The participants were: Gary D. Buseck for all of the plaintiffs, and Judson

O. Littleton for all of the defendants.

I. Certification

Undersigned counsel certify that, after consultation with their clients,

they have discussed the nature and basis of the parties’ claims and

defenses and any possibilities for achieving a prompt settlement or other

resolution of the case and, in consultation with their clients, have

developed the following proposed case management plan. Counsel further

certify that they have forwarded a copy of this report to their clients.

Preamble

The parties hope that this matter can be resolved through dispositive

motion practice and as such have not created deadlines in anticipation of

trial. The parties respectfully reserve the right to seek discovery, if

necessary, and otherwise comply with the court’s orders if the matter is not

resolved by motion.

II. Jurisdiction

A. Subject-Matter Jurisdiction

This action arises under the laws and Constitution of the United

States. Jurisdiction is invoked pursuant to 28 U.S.C. § 1331; 5 U.S.C.

§ 8912; 29 U.S.C. § 2617(a)(2); and 42 U.S.C. § 405(g).

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The plaintiffs anticipate adding claims for income tax refunds against

the United States as a defendant. (See Section V.D., below). The

jurisdictional basis would be 28 U.S.C. § 1346(a)(1). The plaintiffs also

anticipate adding one more claim regarding health insurance benefits for

the spouse of a federal employee, and the jurisdictional basis would be 5

U.S.C. § 8912.

B. Personal Jurisdiction

Personal jurisdiction is not contested.

III. Brief Description of Case

A. Claims of the Plaintiffs

Plaintiffs allege that this is a case about federal discrimination

against gay and lesbian individuals married to someone of the same sex,

and the harm that discrimination has caused each plaintiff. It is a challenge

to the constitutionality of Section 3 of the Defense of Marriage Act (DOMA),

1 U.S.C. § 7, as applied to the plaintiffs in the specific contexts of: (1) health

insurance benefits for the spouses of federal employees and retirees;

(2) the lump-sum death benefit afforded by the Social Security program;

(3) spousal rights to a preretirement survivor annuity under a private

employer’s defined benefit pension plan; (4) availability of FMLA leave to

care for a spouse’s serious health condition; and (5) the medical cost

benefit available to a retired employee’s spouse under a state retirement

plan. Additional claims described above (Section II.A) would add the

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context of the ability to file federal income tax returns as Married Filing

Jointly.

Each of the claims alleges that DOMA, 1 U.S.C. § 7, creates a

classification that treats similarly situated individuals differently without

justification in violation of the right of equal protection secured by the Fifth

Amendment of the Constitution of the United States.

This is an action for declaratory and injunctive relief and for review

of agency action. If income tax refund claims are added, those claimants

will be seeking judgment and damages in the amount of the refunds they

claim if allowed to file their income tax returns as a married couple filing

jointly.

B. Defenses and Claims (Counterclaims, Third Party Claims, Cross

Claims) of Defendants

While defendants are continuing to deliberate regarding their precise

position in response to plaintiffs’ claims, defendants have taken the

position in prior cases that DOMA does not violate the guarantee of equal

protection embodied in the Fifth Amendment to the United States

Constitution. To the extent warranted after further investigation,

defendants may move to dismiss some or all of plaintiffs’ claims on a

number of grounds, including but not limited to failure to state a claim, lack

of subject-matter jurisdiction, and improper venue.

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IV. Statement of Undisputed Facts

Counsel certify that they have made a good faith attempt to

determine whether there are any material facts that are not in dispute. The

defendants are still investigating the factual allegations in the Complaint.

Nevertheless, it appears at present that there will not likely be any major

factual disputes regarding the factual allegations in the Complaint.

The defendants anticipate filing a motion to dismiss, and the

plaintiffs anticipate filing essentially a cross-motion for summary

judgment. That cross-motion for summary judgment will be supported by:

(1) affidavits of the plaintiff couples and individuals and a number of

affidavits of experts (along the lines of the corresponding affidavits filed in

the case of Gill et al. v. OPM et al. (No. 1:09-cv-10309-JLT, Docket Nos. 29-

42 and 45), now pending at the United States Court of Appeals for the First

Circuit, Docket Nos. 10-2207 and 10-2214 (cross appeal); (2) technical

affidavits of counsel, introducing a modest number of government

documents (Gill, Dist. Ct. Docket Nos. 43 and 59) ; (3) a Statement of

Undisputed Facts (Gill, Dist. Ct. Docket No. 26); and (4) a Statement of Non-

Adjudicative Facts that go to the constitutional issues presented by the

case (Gill, Dist. Ct. Docket No. 27).

V. Case Management Plan:

A. Standing Order on Scheduling in Civil Cases

The parties request modification of the deadlines in the Standing

Order on Scheduling in Civil Cases. As stated above (see Section IV),

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plaintiffs intend to file a combined cross-motion for summary judgment

and opposition to defendants’ motion to dismiss. Defendants reserve the

right to seek a stay of all summary judgment proceedings, including

defendants’ obligation to respond to plaintiffs’ motion, pending resolution

of defendants’ motion to dismiss. The parties therefore propose the

following schedule:

1/14/11 – Plaintiffs file First Amended Complaint as of Right

3/11/11 – Defendants file Motion to Dismiss

3/31/11 – Plaintiffs file Motion for Summary Judgment and

Opposition to Defendants’ Motion to Dismiss

4/14/11 – Defendants file any Motion to Stay Briefing and

Consideration of the Plaintiffs’ Motion for Summary Judgment

5/16/11 – Defendants file Reply re: Motion to Dismiss

If defendants do not file a stay request as stated above, they shall file

an opposition to plaintiffs’ motion for summary judgment no later than May

16, 2011, and plaintiffs shall file a reply brief as to their motion for summary

judgment no later than June 20, 2011.

If defendants file a stay request as stated above and the Court denies

the request, defendants shall file an opposition to plaintiffs’ motion for

summary judgment no later than May 16, 2011, or within thirty days after

the Court denies the request for a stay, whichever is later. Plaintiffs shall

file a reply brief as to their motion for summary judgment no later than

June 20, 2011, or within thirty-five days after defendants file their

opposition, whichever is later.

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B. Scheduling Conference with the Court

The parties do not request a pretrial conference with the Court

before entry of a scheduling order pursuant to Fed. R. Civ. P. 16(b). If a

pretrial conference is appropriate, the parties prefer a conference by

telephone.

C. Early Settlement Conference

1. The parties certify that they have considered the desirability of

attempting to settle the case before undertaking significant discovery or

motion practice. However, settlement is unlikely in this case as its central

question is the constitutionality of a federal statute.

2. The parties do not request an early settlement conference.

See C.1., above.

3. The parties prefer a settlement conference with [the presiding

judge] [a magistrate judge] [a parajudicial officer] [special masters]. Not

applicable.

4. The parties do not request a referral for alternative dispute

resolution pursuant to D. Conn. L. Civ. R. 16.

D. Joinder of Parties and Amendment of Pleadings

1. Plaintiffs should be allowed until January 14, 2011, to amend

their initial complaint as of right to add additional claims and parties.

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2. Defendants do not anticipate filing any motions to join

additional parties. Defendants should be allowed until March 11, 2011, to

file a response to the complaint, in the form of a motion to dismiss.

E. Discovery

a. The parties do not currently anticipate that discovery will be

needed in this case. However, the parties wish to preserve the right to

engage in discovery depending upon the resolution of the parties’

anticipated dispositive motions.

b. All discovery, including depositions of expert witnesses

pursuant to Fed. R. Civ. P. 26(b)(4), will be commenced by [date] and

completed (not propounded) by [date]. Not currently applicable.

c. Discovery [will] [will not] be conducted in phases. Not

currently applicable.

d. Discovery on ________ will be completed by [date]. Not

currently applicable.

e. The parties anticipate that the plaintiff(s) will require a total of

____ depositions of fact witnesses and that the defendant(s) will require a

total of ____ depositions of fact witnesses. The depositions will commence

by [date] and be completed by [date]. Not currently applicable.

f. The parties [will] [will not] request permission to serve more

than 25 interrogatories. Not currently applicable.

g. Plaintiff/s [intend] [do not intend] to call expert witnesses at

trial. Plaintiff/s will designate all trial experts and provide opposing counsel

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with reports from retained experts pursuant to Fed. R. Civ. P. 26(a)(2) by [a

date not later than 3 months before the deadline for completing all

discovery]. Depositions of any such experts will be completed by [a date

not later than 2 months before the deadline for completing all discovery].

Not currently applicable. The plaintiffs wish to preserve the right to

designate expert witnesses should the possibility of a trial develop.

h. Defendant/s [intend] [do not intend] to call expert witnesses at

trial. Defendant/s will designate all trial experts and provide opposing

counsel with reports from retained experts pursuant to Fed. R. Civ. P.

26(a)(2) by [a date not later than 1 month before the deadline for completing

all discovery]. Depositions of such experts will be completed by [a date not

later than the discovery cutoff date]. Not currently applicable. The

defendants wish to preserve the right to designate expert witnesses should

the possibility of a trial develop.

i. The only damages alleged will be by plaintiffs who have claims

for tax refunds. The amounts of any alleged refunds will be set forth in the

Complaint.

j. Undersigned counsel have discussed the disclosure and

preservation of electronically stored information, including, but not limited

to, the form in which such data shall be produced, search terms to be

applied in connection with the retrieval and production of such information,

the location and format of electronically stored information, appropriate

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steps to preserve electronically stored information, and the allocation of

costs of assembling and producing such information.

The parties do not anticipate that this case will involve significant

amounts of electronically stored information.

k. Re: discovery procedures that minimize the risk of waiver of

privilege or work-product protection, including procedures for asserting

privilege claims after production. The parties have not discussed this

issue as they currently do not anticipate discovery occurring in this case.

The parties will confer on this issue if it develops that discovery will take

place.

F. Dispositive Motions:

The Defendants will file a motion to dismiss by March 11, 2011. The

Plaintiffs will file a motion for summary judgment by March 31, 2011.

G. Joint Trial Memorandum

The joint trial memorandum required by the Standing Order on Trial

Memoranda in Civil Cases will be filed by [date]. Not currently applicable.

The parties do not currently anticipate that there will be a trial in this case.

VI. TRIAL READINESS

The case will be ready for trial by [date]. Not currently applicable.

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As officers of the Court, undersigned counsel agree to cooperate

with each other and the Court to promote the just, speedy and inexpensive

determination of this action.

PLAINTIFF

/s/ Gary D. Buseck Date: 12/23/10

Gary D. Buseck [#ct28461]
Gay & Lesbian Advocates & Defenders
30 Winter Street, Suite 800
Boston, MA 02108
Tel: (617) 426-1350
gbuseck@glad.org

DEFENDANT

/s/ Judson O. Littleton Date: 12/23/10

Judson O. Littleton [#phv04345]
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20530
Tel: (202) 305-8714
Fax: (202) 616-8470
Judson.O.Littleton@usdoj.gov

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