Case4:10-cv-01564-CW Document124 Filed05/24/12 Page1 of 41

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 MICHAEL DRAGOVICH; MICHAEL GAITLEY; ELIZABETH LITTERAL;
5 PATRICIA FITZSIMMONS; CAROLYN LIGHT; CHERYL LIGHT; DAVID BEERS;
6 CHARLES COLE; RAFAEL V. DOMINGUEZ; and JOSE G.
7 HERMOSILLO, on behalf of themselves and all others
8 similarly situated,

9

Plaintiffs,

10

v.

No. C 10-01564 CW
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DENYING THE BLAG’S AND FEDERAL DEFENDANTS’ CROSSMOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 111, 116 and 117)

11 UNITED STATES DEPARTMENT OF THE TREASURY; TIMOTHY GEITHNER, in
12 his official capacity as Secretary of Treasury, United
13 States Department of the Treasury; INTERNAL REVENUE
14 SERVICE; DOUGLAS SHULMAN, in his official capacity as Commissioner
15 of the Internal Revenue Service; BOARD OF ADMINISTRATION OF
16 CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM; and ANNE
17 STAUSBOLL, in her official capacity as Chief Executive
18 Officer, CalPERS,

19

Defendants.

________________________________/ 20

21 Plaintiffs challenge the constitutionality of § 3 of the
22 Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and § 7702B(f) of
23 the Internal Revenue Code, 26 U.S.C. § 7702B(f), to the extent
24 that these statutes limit Plaintiffs’ participation in a long-term
25 care insurance program maintained by the California Public
26 Employees’ Retirement System (CalPERS). Plaintiffs contend that
27 these federal provisions violate the Constitution’s guarantees of
28

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United States District Court For the Northern District of California

1 equal protection and substantive due process by barring the same-

2 sex legal spouses and registered domestic partners of California

3 public employees from enrollment in the CalPERS long-term care

4 plan, even though opposite-sex legal spouses are permitted to

5 enroll.

6

Plaintiffs move for summary judgment on their claims against

7 all Defendants. Federal Defendants have submitted a brief

8 partially supporting Plaintiffs’ motion for summary judgment.

9 Federal Defendants argue that gay men and lesbians should be found

10 to be a suspect class and that § 3 of the DOMA infringes their

11 equal protection rights. However, Federal Defendants oppose

12 Plaintiffs’ motion and cross-move for summary judgment as to

13 Plaintiffs’ equal protection claim challenging § 3 of the DOMA on

14 behalf of same-sex couples who are registered domestic partners

15 under California law, and as to Plaintiffs’ substantive due

16 process challenge to § 3 of the DOMA. Federal Defendants also

17 cross-move for judgment that Title 26 U.S.C. § 7702B(f) is

18 constitutionally valid.

19

Because Federal Defendants would not defend the validity of

20 § 3 of the DOMA against the equal protection challenge by same-sex

21 spouses, the Court granted the Bipartisan Legal Advisory Group of

22 the United States House of Representatives (BLAG) leave to

23 intervene to defend the law. Accordingly, the BLAG has opposed

24 Plaintiffs’ motion for summary judgment that § 3 of the DOMA is

25 unconstitutional as it affects same-sex spouses here, and has

26 cross-moved for summary adjudication that the provision is

27 constitutional.

28

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United States District Court For the Northern District of California

1

State Defendants have filed a response to Plaintiffs’ motion,

2 seeking guidance from the Court and a stay of any federal action

3 disqualifying the CalPERS program, in the event that the Court

4 grants Plaintiffs’ motion for summary judgment.1

5

Having considered all of the parties’ submissions and oral

6 argument, the Court grants Plaintiffs’ motion for summary judgment

7 and denies Federal Defendants’ and the BLAG’s cross-motions.

8

BACKGROUND

9 I. Long-term Care Insurance and the Challenged Provisions

10

Plaintiffs are California public employees and their same-sex

11 spouses and registered domestic partners, who are in long-term

12 committed relationships recognized and protected under California

13 law. As explained in this Court’s previous orders, CalPERS

14 provides retirement and health benefits, including long-term care

15 insurance, to many of the state’s public employees and retirees

16 and their families. Long-term care insurance provides coverage

17 when a person needs assistance with basic activities of living due

18 to injury, old age, or severe impairments related to chronic

19 illnesses, such as Alzheimer’s disease.

20

In 1996, Congress passed the DOMA, which, among other things,

21 defined the terms “spouse” and “marriage” for federal law purposes

22 in a manner limiting them to heterosexual couples. As amended by

23 § 3 of the DOMA, the United States Code provides,

24

25

1 State Defendants assert that Federal Defendants could

26 eliminate the need for a stay by agreeing that they will not seek

to disqualify the CalPERS long-term care plan, in the event that 27 the Court’s order were later overturned. However, Federal

28 Defendants apparently have not agreed.

3

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United States District Court For the Northern District of California

1

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the

2

various administrative bureaus and agencies of the

United States, the word “marriage” means only a legal

3

union between one man and one woman as husband and

wife, and the word “spouse” refers only to a person of

4

the opposite sex who is a husband or a wife.

5 1 U.S.C. § 7.

6

Title 26 U.S.C. § 7702B(f) was also enacted in 1996, as part

7 of the Health Insurance Portability and Accountability Act

8 (HIPAA), providing favorable federal tax treatment to participants

9 in qualified state-maintained long-term care insurance plans for

10 state employees. 26 U.S.C. § 7702B(f). Currently, the CalPERS

11 long-term care insurance program is a qualified state-maintained

12 plan pursuant to § 7702B(f).

13

Section 7702B(f)(2) disqualifies a state-maintained plan from

14 favorable tax treatment if it provides coverage to individuals

15 other than those specified under its subparagraph (C). The list

16 of eligible individuals in § 7702B(f)(2)(C) includes state

17 employees and former employees, their spouses, and individuals

18 bearing a relationship to the employees or spouses which is

19 described in subparagraphs (A) through (G) of 26 U.S.C.

20 § 152(d)(2). Id.

21

Section 152(d)(2), the part of the tax code from which

22 subparagraph (C) draws its list of eligible relatives, defines the

23 relatives for whom a taxpayer may claim a dependent exemption.

24 See 26 U.S.C. §§ 151-52. Section 152(d)(2), subparagraphs (A)

25 through (H), identifies the following individuals as “qualifying

26 relatives” for the dependent exemption:

27

(A) A child or a descendant of a child.

28

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(B) A brother, sister, stepbrother, or stepsister.

2

(C) The father or mother, or an ancestor of either.

3

(D) A stepfather or stepmother.

4

(E) A son or daughter of a brother or sister of the

5

taxpayer.

6

(F) A brother or sister of the father or mother of

the taxpayer.

7

8

(G) A son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law.

9 (H) An individual . . . who, for the taxable year of

10

the taxpayer, has the same principal place of

abode as the taxpayer and is a member of the

11

taxpayer’s household.

12 26 U.S.C. § 152(d)(2).

13

When it chose to incorporate subparagraphs (A) through (G),

14 Congress specifically chose not to carry over subparagraph (H) to

15 subparagraph (C) of § 7702B(f)(2). Had Congress not chosen to

16 exclude subparagraph (H) from subparagraph (C) of § 7702B(f)(2),

17 registered domestic partners of California public employees would

18 have qualified as individuals eligible to enroll in the CalPERS

19 long-term care plan.

20

In addition to providing favorable tax treatment to state-

21 maintained long-term care plans, Congress approved such treatment

22 for long-term care coverage purchased through the private market.

23 26 U.S.C. § 7702B(a)-(b).

24

Congress enacted these provisions because of the critical

25 role of long term care insurance in protecting families. “The

26 legislation . . . provides tax deductibility for long term care

27 insurance, making it possible for more Americans to avoid

28 financial difficulty as the result of chronic illness.” 142 Cong.

5

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United States District Court For the Northern District of California

1 Rec. S3578-01 at *3608 (Statement of Sen. McCain) (Apr. 18, 1996);

2 see also Joint Committee on Taxation, “Description of Federal Tax

3 Rules and Legislative Background Relating to Long-Term Care

4 Scheduled for a Public Hearing Before the Senate Committee on

5 Finance on March 27, 2001,” at 2001 WL 36044116 (provisions

6 granting tax advantages for long-term care plans were adopted “to

7 provide an incentive for individuals to take financial

8 responsibility for their long-term care needs.”).

9 II. Congressional Denial of Federal Legal Recognition for Same-

Sex Couples

10

For more than two decades, jurisdictions other than the

11 federal government have extended to same-sex couples legal

12 recognition in various forms, such as registered domestic

13 partnerships, civil unions, reciprocal beneficiary relationships

14 and, more recently, civil marriage.2 Over time, the number of

15

2 As of 1992, registered domestic partnership benefits were 16 made available in Travis County, Texas; Dane County, Wisconsin;

17 the California counties of Alameda, San Mateo and Santa Cruz; and the cities of Berkeley, Los Angeles, Oakland, Santa Cruz, San

18 Francisco, West Hollywood, New York, Ithaca, Cambridge, West Palm

Beach, Ann Arbor, East Lansing, Madison, Minneapolis, Seattle and 19 Tahoma Park. 138 Cong. Rec. S10876-01, 1992 WL 180795, at

20

*S10904. In April 1992, the District of Columbia approved the Health Care Benefits Expansion Act, D.C. Law 9-114, establishing a

21 local domestic partnership registry. See also D.C. Code § 36-1401 (legislative history of Law 9-114). As discussed later in this

22 order, Congress delayed implementation of the registry.

Since 1997, nineteen states have extended legal recognition 23 to same-sex couples for purposes of state law. M.V. Lee Badgett,

Jody L. Herman, Patterns of Relationship Recognition by Same-Sex 24 Couples in the United States, the Williams Institute, University

25 of California, Los Angeles, School of Law, 1, n.1, Appendix 1, (November 2011) (providing a detailed survey of the various

26 statuses, their effective dates and relevant statutory citations), available at
27 http://williamsinstitute.law.ucla.edu/research/marriage-and-

couples-rights/patterns-of-relationship-recognition-by-same-sex28 couples-in-the-united-states/.

6

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United States District Court For the Northern District of California

1 jurisdictions granting these forms of legal recognition has

2 increased.

3

Congress discussed registered domestic partnership laws prior

4 to and during 1996, when the statutes challenged here were passed.

5 These discussions occurred after the District of Columbia passed,

6 in April 1992, the Health Care Benefits Expansion Act, which

7 established a domestic partnership registry in that jurisdiction.

8 Congress reacted to the new law by barring any local or federal

9 funding to implement, enforce or administer the registry.

10 District of Columbia Appropriations Act, 1993, Pub. L. No. 102-

11 382, 106 Stat. 1422 (1992). Representative Clyde Holloway argued,

12 “If there ever was an attack on the family in this country, it is

13 [the District of Columbia’s] Domestic Partnership Act . . . To me,

14 this bill totally destroys the families of this country.” 138

15 Cong. Rec. H2950-04, 1992 WL 96521, at *H2950. In arguing against

16 the appropriations ban before the Senate, Senator Brock Adams

17 entered into the Congressional record information detailing

18 domestic partnership recognition in numerous jurisdictions, apart

19 from the District of Columbia. 138 Cong. Rec. S10876-01, 1992 WL

20 180795, at *S10904.

21

In 1993, as part of a successful drive to renew the funding

22 ban, Representative Ernst Istook argued, “Now, obviously this was

23 passed by the District of Columbia to enable people, more than

24 anything else, who are in a homosexual relationship to register an

25

26

Currently, nine states and the District of Columbia offer

registered domestic partnerships or civil unions with legal rights 27 comparable to marriage, and six states and the District of

28 Columbia permit same-sex couples to marry. Id. at 3, Table 1.

7

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1 equivalent of a gay marriage. That is one of the reasons that

2 this particular proposal is abhorrent, in my view.” 139 Cong.

3 Rec. H4353-01, 1993 WL 236117, at *H4355, *H4358; District of

4 Columbia Appropriations Act, 1994, Pub. L. No. 103-127, 107 Stat.

5 1336 (1993).

6

Other representatives echoed these arguments in favor of

7 renewing the appropriations ban and the ban was renewed every year

8 from 1993 through 2001.3 See e.g., 140 Cong. Rec. H5589-02, 1994

9 WL 363727, at *H5601 (Representative Robert Dornan proclaiming,

10 “From my historical knowledge, this business of domestic partner

11 benefits started in Seattle where they were trying to give

12 privileged treatment to lesbian and homosexual partners . . . Let

13 us get rid of this domestic partnership nonsense.”); 141 Cong.

14 Rec. H11627-02, 1995 WL 639923, at *H11659 (Representative Cliff

15 Stearns asserting that domestic partnership registration laws

16 “undermine the traditional moral values that are the bedrock of

17 this Nation.”).4

18

19

20

3 In 2001, Congress authorized a more limited appropriations

21 ban, permitting the use of non-federal funds to institute and administer the District of Columbia domestic partnership registry.
22 District of Columbia Appropriations Act, 2002, Pub. L. No. 107-96, 115 Stat. 923 (2001). Accordingly, in 2002, the District of
23 Columbia finally implemented its domestic partnership registry. 24 See 49 D.C. Reg. 5419 (June 14, 2002).

25

4 A more detailed explanation of Congress’s actions to block

implementation of the District of Columbia’s domestic partnership

26 registry is provided in this Court’s January 26, 2012 order

denying Federal Defendants’ motion to dismiss Plaintiffs’ 27 constitutional challenge to § 7702B(f) on behalf of California

28 registered domestic partners.

8

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United States District Court For the Northern District of California

1

In 1996, as well as renewing the ban on funding for the

2 District of Columbia domestic partnership registry, Congress

3 enacted the DOMA and the HIPAA, containing the provisions

4 challenged here.

5

It is undisputed that one significant consideration in

6 enacting § 3 of the DOMA was Congress’s desire to foreclose

7 federal recognition of same-sex marriage. Hawaii was on the verge

8 of becoming the first state in the nation to grant marriage

9 licenses to same-sex couples.5 The House Report on the pending

10 bill to enact the DOMA stated, “Civil laws that permit only

11 heterosexual marriage reflect and honor a collective moral

12 judgment about human sexuality. This judgment entails both moral

13 disapproval of homosexuality, and a moral conviction that

14 heterosexuality better comports with traditional (especially

15 Judeo-Christian) morality.” H.R. Rep. 104-664, at 15-16. The

16 report adopted the view that “‘[S]ame-sex marriage, if sanctified

17 by the law, if approved by the law, legitimates a public union, a

18 legal status that most people . . . feel ought to be

19 illegitimate.’” Id. at 16 (alteration and omission in original)

20 (quoting Representative Henry Hyde, Chairman of the Judiciary

21 Committee).

22

Moreover, the limiting definition of marriage proposed in § 3

23 of the DOMA was viewed as necessary to exclude registered domestic

24 partners from federal recognition and benefits. When Senator Don

25

26 5 The BLAG acknowledges that, when Congress enacted the DOMA,
27 it recognized that Hawaii was on the verge of legalizing same-sex 28 marriage. BLAG Cross Mot. Summ. J. 4.

9

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1 Nickles introduced the bill that became the DOMA, he explained

2 this, stating,

3

Another example of why we need a Federal definition of

4

the terms “marriage” and “spouse” stems from experience during debate on the Family and Medical

5

Leave Act of 1993. Shortly before passage of this act,

I attached an amendment that defined “spouse” as “a

6

husband or wife, as the case may be.” When the

Secretary of Labor published his proposed regulations,

7

a considerable number of comments were received urging

that the definition of “spouse” be “broadened to

8

include domestic partners in committed relationships,

9

including same-sex relationships.” When the Secretary issued the final rules he stated that the definition

10

of “spouse” and the legislative history precluded such

a broadening of the definition.

11 142 Cong. Rec. 4851-02, 1996 WL 233584, at *S4869-70.

12

A proposed amendment to the Defense of Marriage bill would

13 have required the General Accounting Office to “undertake a study

14 of the differences in the benefits, rights and privileges

15 available to persons in a marriage and the benefits, rights and

16 privileges available to persons in a domestic partnership

17 resulting from the non-recognition of domestic partnerships as

18 legal unions by State and Federal laws.” 142 Cong. Rec. 7480-05,

19 1996 WL 392787, at *H7503. In opposition to the amendment,

20 Representative Charles Canady stated, “This motion represents a

21 transparent attempt to give some statutory recognition to domestic

22 partnerships.” 142 Cong. Rec. 7480-05, 1996 WL 392787, at *H7504.

23 The amendment was defeated. 142 Cong. Rec. 7480-05, 1996 WL

24 392787, at *H7505.

25

Thus, legislative history that is relevant to both § 3 of the

26 DOMA and § 7702B(f) of Title 26 contains evidence of moral

27 condemnation and social disapprobation of same-sex couples.

28

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United States District Court For the Northern District of California

1

PROCEDURAL BACKGROUND

2

In their first motion to dismiss, Federal Defendants

3 addressed Plaintiffs’ equal protection and substantive due process

4 challenge to § 3 of the DOMA. The Court denied the motion,

5 finding that, under the rational basis standard of review,

6 Plaintiffs had stated a cognizable constitutional claim.

7

At the time the Court considered the first motion to dismiss,

8 Plaintiffs were all couples legally married under California law.

9 Subsequently, however, Plaintiffs filed a Second Amended Complaint

10 adding as Plaintiffs Rafael V. Dominguez and Jose G. Hermosillo,

11 who are not legally married, but are registered as domestic

12 partners in California. Federal Defendants moved to dismiss this

13 complaint, arguing that Dominguez and Hermosillo had not alleged a

14 cognizable equal protection or substantive due process claim based

15 on § 7702B(f)’s failure to include registered domestic partners.

16 The Court denied the motion, holding that Ninth Circuit precedent

17 precluded it from applying strict scrutiny, but finding that

18 Plaintiffs had stated a claim that the exclusion violated the

19 rational basis test.

20

In addition to denying Federal Defendants’ motions to dismiss

21 the Court granted Plaintiffs’ unopposed motion to certify a class

22 pursuant to Federal Rule of Civil Procedure 23(b)(2). The

23 certified class was defined as, “Present and future CalPERS

24 members who are in legally recognized same-sex marriages and

25 registered domestic partnerships together with their spouses and

26 partners, who as couples and families are denied access to the

27 CalPERS Long-Term Care Program on the same basis as similarly

28

11

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1 situated present and future CalPERS members who are in opposite-

2 sex marriages, and their spouses.” Docket No. 92.

3

The Court now considers the parties’ cross-motions for

4 summary judgment.

5

LEGAL STANDARD

6

Summary judgment is properly granted when no genuine and

7 disputed issues of material fact remain, and when, viewing the

8 evidence most favorably to the non-moving party, the movant is

9 clearly entitled to prevail as a matter of law. Fed. R. Civ. P.

10 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

11 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

12 1987).

13

The moving party bears the burden of showing that there is no

14 material factual dispute. Therefore, the court must regard as

15 true the opposing party’s evidence, if supported by affidavits or

16 other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg,

17 815 F.2d at 1289. The court must draw all reasonable inferences

18 in favor of the party against whom summary judgment is sought.

19 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

20 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

21 F.2d 1551, 1558 (9th Cir. 1991).

22

Material facts which would preclude entry of summary judgment

23 are those which, under applicable substantive law, may affect the

24 outcome of the case. The substantive law will identify which

25 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S.

26 242, 248 (1986).

27

28

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1

DISCUSSION

2 I. Equal Protection

3

Plaintiff same-sex spouses claim that their rights to equal

4 protection are violated by § 3 of the DOMA. In addition,

5 Plaintiff registered domestic partners assert that their equal

6 protection rights are infringed by § 3 of the DOMA and § 7702B(f)

7 of Title 26. The doctrine of equal protection exists to ensure

8 the Constitution’s promise of equal treatment under the law.

9 Romer v. Evans, 517 U.S. 620, 631 (1996).

10

The BLAG relies heavily on two cases, Baker v. Nelson, 409

11 U.S. 810 (1972), and Adams v. Howerton, 673 F.2d 1036 (9th Cir.

12 1982), to argue that Plaintiffs’ equal protection challenge to § 3

13 of the DOMA is foreclosed. In Baker, the Supreme Court summarily

14 dismissed an appeal from the Minnesota Supreme Court’s decision to

15 uphold, against a federal equal protection challenge, a state law

16 prohibiting same-sex civil marriage. The Court resolved the

17 appeal in a single sentence, stating that it was “dismissed for

18 want of a substantial federal question.” 409 U.S. at 810.

19

Mandel v. Bradley, 432 U.S. 173, 176 (1977), explains the

20 precedential weight of a summary action by the Supreme Court.

21 Mandel involved an independent candidate’s claim that procedures

22 under the Maryland Election Code violated his First and Fourteenth

23 Amendment rights to access to the ballot by imposing an early

24 deadline for filing nominating petitions. Id. at 174. Prior to

25 Mandel, the Supreme Court had summarily affirmed a lower court’s

26 decision invalidating Pennsylvania’s procedures for independent

27 candidates to access the ballot. In Mandel, the Court held that

28 the summary affirmance in its prior case did not mandate the

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1 result reached by the district court because, unlike the Maryland

2 procedure, the Pennsylvania requirements entailed both an early

3 filing date and a twenty-one day limitation on signature

4 gathering. Id. at 177. The Court stated that “a summary

5 affirmance is an affirmance of the judgment only.” Id. at 176.

6 The Court further explained, “Summary affirmances and dismissals

7 for want of a substantial federal question . . . prevent lower

8 courts from coming to opposite conclusions on the precise issues

9 presented and necessarily decided by those actions.” Id.; cf.

10 Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (holding that the

11 Supreme Court’s prior summary affirmance of a California appellate

12 decision upholding the constitutionality of an obscenity statute

13 precluded a three-judge federal court from finding that the same

14 statute was unconstitutional.)

15

The Ninth Circuit recently addressed the precedential value

16 of Baker, in the context of a constitutional challenge to

17 Proposition 8, a ballot measure that eliminated the right to marry

18 for same-sex couples in California. There, the court considered

19 Mandel and Hicks, and determined that Baker was “not pertinent,”

20 because “we do not address the question of the constitutionality

21 of a state’s ban on same-sex marriage.” Perry v. Brown, 671 F.3d

22 1052, 1082 n.14 (9th Cir. 2012). The Ninth Circuit reasoned that

23 the case before it presented “a wholly different question: whether

24 the people of a state may by plebiscite strip a group of a right

25 or benefit, constitutional or otherwise, that they had previously

26 enjoyed on terms of equality with all others in the state.” Id.

27

Likewise, this case is distinguishable from Baker. Whereas

28 the action in Baker addressed whether Minnesota violated the equal

14

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1 protection clause by excluding same-sex couples from civil

2 marriage, the married Plaintiffs here have already gained legal

3 recognition under California law. The issue is instead whether a

4 federal provision, § 3 of the DOMA, infringes Plaintiffs’ rights

5 under equal protection principles by denying them a benefit

6 available to legally married heterosexual couples. Another judge

7 in this district has distinguished Baker in the context of an

8 action challenging § 3 of the DOMA. Golinski v. U.S. Office of

9 Pers. Mgmt., 2012 WL 569685, *8 n.5 (N.D. Cal.) (granting summary

10 judgment in favor of plaintiff). Baker does not foreclose

11 Plaintiffs’ equal protection claim.

12

In Adams, a United States citizen and an Australian national

13 in a same-sex relationship secured a marriage license from a

14 county clerk in Colorado. The citizen petitioned the Immigration

15 and Naturalization Service to permit his spouse to remain in the

16 country as an “immediate relative,” pursuant to § 201(b) of the

17 Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1151(b).

18 Following the agency’s denial of his petition and a final

19 administrative decision denying his appeal, the couple filed an

20 action challenging the exclusion on constitutional grounds. The

21 Ninth Circuit stated that, even if Colorado recognized the

22 marriage, Congress did not intend to confer spousal status based

23 on same-sex marriages under § 201(b). 673 F.2d at 1040-41. The

24 court arrived at its statutory interpretation based on its view of

25 the ordinary meaning of marriage, and a 1965 amendment to the INA

26 establishing a mandatory exclusion of homosexuals as inadmissible

27 aliens. The mandatory exclusion evidenced Congress’s “clearly

28 express[ed] [] intent to exclude homosexuals.” Id. at 1040. The

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1 court also determined that the legislative exclusion withstood

2 constitutional scrutiny. Id. at 1041-43. The court found that

3 the denial of legal recognition to same-sex spouses satisfied the

4 rational basis test in that Congress manifested a concern for

5 family integrity in passing laws facilitating the immigration of

6 spouses in valid heterosexual marriages. The court also

7 determined, with little discussion, that Congress could have

8 determined that legal recognition of same-sex marriages was not

9 necessary in that such couples were not recognized in most, if

10 any, states because they violate traditional and often prevailing

11 social mores, or because they “never produce offspring.” Id. at

12 1042-43.

13

Adams does not control this case in light of Supreme Court

14 and Ninth Circuit rulings and legislative developments since the

15 decision. In Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.

16 2003) (en banc), the Ninth Circuit explained that a district court

17 or a three-judge panel is free to re-examine the holding of a

18 prior panel when the United States Supreme Court, or a controlling

19 state Supreme Court ruling, has “undercut the theory or reasoning

20 underlying the prior circuit precedent in such a way that the

21 cases are clearly irreconcilable.” Id. at 900. “[T]he issues

22 decided by the higher court need not be identical in order to be

23 controlling.” Id.

24

Similarly, under Ninth Circuit precedent, a prior

25 determination by the court is not controlling if subsequent

26 legislation has undermined the decision. For example, in Zazueta-

27 Carillo v. Ashcroft, 322 F.3d 1166, 1170-72 (9th Cir. 2003), the

28 Ninth Circuit panel found that it was required to revisit an

16

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1 existing rule “on a clean slate,” because subsequent legislation

2 by Congress changed the landscape of immigration law and

3 alleviated the concerns that motivated the rule established in a

4 prior Ninth Circuit decision.

5

Several developments since Adams demonstrate that the bases

6 for its reasoning no longer apply, so that the case is not

7 controlling. First, the Supreme Court in Lawrence v. Texas struck

8 down laws criminalizing homosexuality, holding that social

9 disapproval of homosexuality on the basis of asserted tradition

10 and mores is no longer accepted as sufficient justification for

11 laws burdening gay men and lesbians. 539 U.S. 558, 577 (2003)

12 (adopting Justice Stevens’ dissenting opinion in Bowers v.

13 Hardwick, 478 U.S. 186, 216 (1986)). The Ninth Circuit recently

14 held that “tradition alone is not a justification for taking away

15 a right that had already been granted, even though that grant was

16 in derogation of tradition.” Perry, 671 F.3d at 1092.

17

Further, in 1990, Congress removed the mandatory provision in

18 the INA, upon which Adams relied, that barred gay and lesbian

19 individuals from receiving visas and gaining admission into the

20 United States. Sec. 601, Immigration Act of 1990, Pub. L. No.

21 101-649, 104 Stat. 4978 (amending 8 U.S.C. § 1182 to eliminate

22

23

24

25

26

27

28

17

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1 subsection (a)(4), which had excluded those “afflicted with a

2 psychopathic personality, sexual deviation, or a mental

3 defect.”).6

4

Moreover, in contrast to the state of the law in 1982, as

5 Adams recited it, now several states, as well as the District of

6 Columbia, offer legal recognition to same-sex couples in the form

7 of registered domestic partnership, civil marriage or a similar

8 designation.

9

Finally, Adams’ rationale that same-sex couples never produce

10 children has been proven false: same-sex couples use various

11 methods to conceive and adopt children. The ability of same-sex

12 couples to have children is recognized in the Ninth Circuit. See

13 Perry, 671 F.3d at 1086-87 (noting a long line of California cases

14 granting parental rights to gay and lesbian parents and that the

15 state’s “current policies and conduct recognize that gay

16 individuals are fully capable of responsibly caring for and

17 raising children.”) (alterations omitted). Adams is not fatal to

18 Plaintiffs’ equal protection claims.

19

20

21

6 Section 212(a)(4) of the INA of 1952 had excluded “[a]liens

afflicted with a psychopathic personality, epilepsy, or a mental

22 defect.” In 1965, Congress eliminated epilepsy and added “sexual

deviation.” Pub. L. No. 414, 66 Stat. 163, 182, amended by Act of 23 Oct. 3, 1965, Pub. L. No. 89-236, § 15(b), 79 Stat. 911, 919

24

(codified as amended at 8 U.S.C. § 1182(a)(4) (1988)). The entire provision was eliminated by the Immigration Act of 1990, Pub. L.

25 No. 101-649, 104 Stat. 4978 (1990). See Shannon Minter, Sodomy and Public Morality Offenses Under U.S. Immigration Law:

26 Penalizing Lesbian and Gay Identity, 26 Cornell Int’l L.J. 771,

775-83 (1993) (explaining the history of statutory provisions 27 barring gay men and lesbians from immigrating to the United

28 States).

18

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1

Under the doctrine of equal protection, certain

2 classifications by statute or other government activity, such as

3 classifications based on race, have been found to be suspect.

4 Harris v. McRae, 448 U.S. 297, 322 (1980) (noting race as “the

5 principal example” of a “suspect” classification). Where a

6 challenged law burdens a suspect class, courts apply strict

7 scrutiny to determine the constitutional validity of the

8 provision. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312

9 (1976). Such laws are “presumptively invalid and can be upheld

10 only upon an extraordinary justification.” Pers. Adm’r of Mass.

11 v. Feeney, 442 U.S. 256, 272 (1979). Courts apply an intermediate

12 level of scrutiny to certain quasi-suspect classifications, such

13 as those based upon sex, which “have traditionally been the

14 touchstone for pervasive and often subtle discrimination.” Id. at

15 273. A law that does not burden a protected class is subject to a

16 lower standard of review and need only “bear[] a rational

17 relationship to some legitimate end.” Romer, 517 U.S. at 631.

18

The Ninth Circuit has held that gay men and lesbians do not

19 constitute a suspect or quasi-suspect class. High Tech Gays v.

20 Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.

21 1990). Ninth Circuit panels have continued to utilize the

22 rational basis standard applied in High Tech Gays, even after the

23 Supreme Court’s decisions in Romer, 517 U.S. at 620, and Lawrence,

24 539 U.S. at 577, which invalidated certain legislative enactments

25 burdening gay men and lesbians. See e.g., Philips v. Perry, 106

26 F.3d 1420, 1425 (9th Cir. 1997) (holding that High Tech Gays was

27 controlling and rejecting request by amici curiae to apply strict

28 scrutiny); Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir.

19

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1 2008) (holding that because Lawrence declined to address equal

2 protection, it did not disturb Philips’ equal protection ruling

3 under the rational basis standard of review). More recently, in

4 Perry, 671 F.3d at 1080 ns.13, 19, the Ninth Circuit stated that

5 it need not consider whether any form of heightened scrutiny was

6 necessary or appropriate with respect to the plaintiff same-sex

7 couples. Perry applied rational basis review based on Romer and

8 noted that High Tech Gays had held that heightened scrutiny did

9 not apply. Although the Ninth Circuit may revisit its ruling that

10 gay men and lesbians do not constitute a suspect or quasi-suspect

11 class, the Court tests the constitutionality of § 3 of the DOMA

12 and § 7702B(f) of Title 26, pursuant to current Ninth Circuit law,

13 by applying rational basis review.

14

Under this standard of review, a law that imposes a

15 classification must be rationally related to the furtherance of a

16 legitimate state interest. Romer, 517 U.S. at 631. This standard

17 of review accords a strong presumption of validity to legislative

18 enactments. Heller v. Doe, 509 U.S. 312, 319 (1993). “[I]t is

19 entirely irrelevant for constitutional purposes whether the

20 conceived reason for the challenged distinction actually motivated

21 the legislature.” FCC v. Beach Comm., 508 U.S. 307, 313 (1993).

22 Nevertheless, rational basis review is not “toothless.” Mathews

23 v. De Castro, 429 U.S. 181, 185 (1976). “[E]ven in the ordinary

24 equal protection case calling for the most deferential of

25 standards, [courts] insist on knowing the relation between the

26 classification adopted and the object to be attained.” Gill v.

27 United States Office of Pers. Mgmt., 699 F. Supp. 2d 374, 387 (D.

28 Mass. 2010) (quoting Romer, 517 U.S. at 633).

20

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1

In Romer, the Supreme Court held that gay men and lesbians,

2 as a class, are at least protected from burdensome legislation

3 that is the product of sheer anti-gay animus and devoid of any

4 legitimate government purpose. 517 U.S. at 632-35 (holding that

5 Colorado’s anti-gay ballot measure “fails, indeed defies, even

6 this conventional inquiry” applied under the rational basis test).

7 In Perry, the Ninth Circuit applied Romer and found that

8 Proposition 8 was an enactment devoid of any rational relationship

9 to a legitimate state interest and was unconstitutionally tainted

10 by anti-gay animus. 671 F.3d at 1086-95. Accordingly, in

11 applying the rational basis test, this Court considers the

12 evidence of anti-gay animus in the record of Congress’s

13 consideration of § 3 of the DOMA and § 7702B(f) of Title 26, along

14 with possible justifications for the provisions.

15

A. Application of Rational Basis Test to Same-Sex Spouses’

Challenge to § 3 of the DOMA

16

Plaintiffs contend that § 3 of the DOMA impermissibly

17 excludes same-sex spouses from the federal definition of marriage

18 based on animus towards gay men and lesbians and their

19 relationships. The legislative history described above

20 demonstrates that animus toward, and moral rejection of,

21 homosexuality and same-sex relationships are apparent in the

22 Congressional record. The BLAG does not argue that the

23 legislative record is free of moral condemnation of gay men and

24 lesbians. Rather, it asserts several rationales in defense of § 3

25 of the DOMA.

26

27

28

21

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1

1. An Act of Caution to Preserve the Status Quo

2

The BLAG asserts that § 3 of the DOMA is a legitimate act of

3 caution to protect the institution of traditional marriage. This

4 argument is faulty for two reasons.

5

First, the preservation of marriage as an institution that

6 excludes gay men and lesbians for the sake of tradition is not a

7 legitimate governmental interest. As discussed above, the Ninth

8 Circuit has disapproved “tradition” as a permissible policy goal

9 in eliminating rights previously extended to same-sex couples.

10 Perry, 671 F.3d at 1092-93. Section 3 of the DOMA eliminated

11 numerous established federal rights generally available to married

12 couples by precluding federal recognition of same-sex couples

13 legally married under state law. Under equal protection

14 jurisprudence, tradition is not a legally acceptable reason to

15 prohibit a practice that historically has been the subject of

16 social disapprobation.

17

In Palmore v. Sidoti, 466 U.S. 429, 433 (1984), the Supreme

18 Court recognized that, while a child living with a stepparent of a

19 different race may experience “pressures and stresses” that would

20 not be present if the child were living with parents of the same

21 racial origin, under the doctrine of equal protection, “the

22 reality of private biases” is not a permissible consideration for

23 the removal of a child from the custody of his or her natural

24 parent. The Court stated, “Private biases may be outside the

25 reach of the law, but the law cannot, directly or indirectly, give

26 them effect.” Id.

27

Likewise, in the context of same-sex intimacy and

28 relationships, the Supreme Court has held that “the fact that the

22

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1 governing majority in a State has traditionally viewed a

2 particular practice as immoral is not a sufficient reason for

3 upholding a law prohibiting the practice.” Lawrence, 539 U.S. at

4 577 (adopting Justice Stevens’ dissent in Bowers, 478 U.S. at

5 216).7 The Court observed that “neither history nor tradition

6 could save a law prohibiting miscegenation from constitutional

7 attack.” Id.

8

Furthermore, there is no principled distinction between anti-

9 gay animus and a conception of civil marriage as an institution

10 that cannot tolerate equally committed same-sex couples. In

11 Perry, the Ninth Circuit rejected the contention that Proposition

12 8, eliminating the designation of civil marriage for same-sex

13 couples, but not the substantive rights associated with marriage,

14 was intended only to disapprove of same-sex marriage. 671 F.3d at

15 1093. Rather, the elimination of the right sent “a message that

16 gays and lesbians are of lesser worth as a class--that they enjoy

17 a lesser societal status.” Id. Similarly, the Supreme Court in

18 Lawrence discussed the “stigma” generated by laws criminalizing

19

20

7 Although the majority in Lawrence invalidated state laws

21 criminalizing sodomy on substantive due process grounds, and did not rely on equal protection arguments pertaining to gays and
22 lesbians as a class, the Ninth Circuit in Perry cited the decision

in its equal protection ruling. 671 F.3d at 1092-93. Perry 23 reasoned that “laws affecting gays and lesbians’ rights often

24

regulate individual conduct--what sexual activity people may undertake in the privacy of their own homes, or who is permitted

25 to marry whom” and, thus, such laws regulate status as much as they regulate conduct. Id. at 1093 (citing Christian Legal Soc’y

26 v. Martinez, ___ U.S. ___, 130 S. Ct. 2971, 2990 (2010) (declining
“to distinguish between status and conduct” in the context of 27 sexual orientation)). Accordingly, Perry found Lawrence relevant

28 to its equal protection analysis.

23

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1 homosexual conduct and stated that such laws are “an invitation to

2 subject homosexual persons to discrimination both in the public

3 and in the private spheres.” 539 U.S. at 575. The notion that

4 civil marriage may only sanction a union between a man and a woman

5 posits that there is something inherently objectionable about

6 homosexuality or that same-sex intimate relationships are

7 irreconcilable with the core characteristics of marriage.

8 Singling out same-sex spouses for exclusion from the federal

9 definition of marriage amounts to a bare expression of animus on

10 the basis of sexual orientation and, under Romer, this rationale

11 does not satisfy rational basis review.

12

Nor was § 3 of the DOMA a cautious legislative step. The

13 measure established an across-the-board federal definition of

14 marriage limiting it to heterosexual couples, and preempting any

15 opportunity to test the impact of state laws evolving to recognize

16 same-sex marriage. The General Accounting Office has identified

17 1,138 federal statutory provisions in which marital status is a

18 factor in determining “benefits, rights, and privileges.” General

19 Accounting Office, Defense of Marriage Act: Update to Prior

20 Report, GAO-04-353R, at 1 (January 23, 2004),

21 www.gao.gov/new.items/d04353r.pdf. Through a single federal law,

22 enacted before any state granted marriage licenses to same-sex

23 couples, Congress foreclosed the recognition of same-sex spouses

24 for any purpose under a sweeping range of federal provisions.

25

In Perry, the Ninth Circuit found that Proposition 8 was not

26 plausibly a measure of caution for it erected a barrier to

27 incremental policy-making and did not include a means of careful

28 consideration, such as a time-specific moratorium on same-sex

24

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1 marriage. Given the federal government’s long-standing deference

2 to state law in the area of domestic relations, the BLAG’s

3 rationale that the provision was a cautionary measure is not

4 plausible. 671 F.3d at 1090; see Golinski, 2012 WL 569685 at *24

5 (“The passage of DOMA marks a stark departure from tradition and a

6 blatant disregard of the well-accepted concept of federalism in

7 the area of domestic relations.”), appeals docketed, Nos. 12-15388

8 and 12-15409 (9th Cir.); Gill, 699 F. Supp. 2d at 392 (finding

9 that DOMA “mark[ed] the first time the federal government has ever

10 attempted to legislatively mandate a uniform federal definition of

11 marriage--or any other core concept of domestic relations, for

12 that matter”). Section 3 of the DOMA did not prevent the states

13 from allowing non-traditional, same-sex marriages and, thus, it

14 created a new schism between state and federal domestic relations

15 law.

16

In sum, Congress’s hypothesized desire to exercise caution by

17 preserving the traditional definition of marriage is not a

18 legitimate justification; § 3 of the DOMA marked a significant

19 departure from federal deference to the states’ authority in

20 defining marriage.

21

2. Protecting the Public Fisc

22

The BLAG further argues that § 3 of the DOMA is justified as

23 an enactment designed to conserve scarce government resources.

24 The effectiveness of § 3 of the DOMA as a cost-saving measure is a

25 subject of debate. For example, as the BLAG has recognized, the

26 Congressional Budget Office has opined that federal recognition of

27 same-sex marriage would result in a net benefit to the federal

28 treasury. BLAG’s Cross Mot. Summ. J. at 21 n.6 (citing Douglas

25

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1 Holtz-Eakin, The Potential Budgetary Impact of Recognizing Same-

2 Sex Marriage, at 1, June 21, 2004).8 However, even crediting

3 cost-savings as a conceivable policy goal, groups selected to bear

4 the burden of legislative enactments to save money must be

5 rationally, not arbitrarily, chosen. Golinksi, 2012 WL 569685 at

6 *22 n.8 (citing Plyler v. Doe, 457 U.S. 202, 227, 229 (1982)).

7

Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011), reh’g en

8 banc denied, is also instructive. There, the Ninth Circuit

9 affirmed a district court’s preliminary injunction barring

10 enforcement of a state provision eliminating health insurance

11 benefits for registered domestic partners of Arizona state

12 employees. In Arizona, couples were permitted to register as

13 domestic partners, whether they were same-sex or heterosexual. In

14 rejecting the state’s rationales of cost-savings and reducing

15 administrative burdens, the court observed that the savings

16 depended upon a distinction between same-sex and similarly

17 situated heterosexual couples, because the heterosexual couples

18 could preserve their benefits by marrying, whereas same-sex

19 couples were barred from marriage by Arizona constitutional law.

20 Citing Eisenstadt v. Baird, 405 U.S. 438 (1972), the court held

21 that a provision to save funds based on such a distinction could

22 not survive rational basis review because it amounted to the

23 “selective application of legislation to a small group.” Id. at

24 1014.

25

26 8 This report is available at
27 http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc55 28 59/06-21-samesexmarriage.pdf.

26

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1

The desire to save money is not sufficient to justify § 3 of

2 the DOMA.

3

3. Establishing Uniformity

4

According to the BLAG, § 3 of the DOMA promotes uniformity in

5 eligibility for federal benefits. However, the federal government

6 has accepted variations and inconsistencies in state marriage laws

7 by recognizing for federal purposes any heterosexual marriage that

8 is valid under state law. Gill, 699 F. Supp. at 391 (citing Dunn

9 v. Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978)

10 (“recognizing that whether an individual is ‘married’ is, for

11 purposes of the tax laws, to be determined by the law of the State

12 of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse”

13 for purposes of federal employee benefits by reference to state

14 law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for

15 purposes of Social Security survivor and death benefits as “the

16 wife, husband, widow or widower” of an insured person “if the

17 courts of the State” of the deceased’s domicile “would find such

18 an applicant and such insured individual were validly married”);

19 20 C.F.R. § 404.345 (“If you and the insured were validly married

20 under State law at the time you apply for . . . [social security]

21 benefits, the relationship requirement will be met.”); 38 U.S.C.

22 § 103(c) (veterans’ benefits); 20 C.F.R. § 10.415 (workers’

23 compensation); 45 C.F.R. § 237.50(b)(3) (public assistance); 29

24 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20

25 C.F.R. §§ 219.30 and 222.11 (benefits under the Railroad

26 Retirement Act)). An enactment that precludes federal recognition

27 of certain marriages because they involve same-sex couples cannot

28 be justified as promoting uniformity where federal law otherwise

27

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1 accepts wide variation in state marriage law. In considering the

2 DOMA, Congress acknowledged the long-standing disposition of the

3 federal government to accept state definitions of civil marriage.

4 HR. Rep. 104-664 at 2 (“The determination of who may marry in the

5 United States is uniquely a function of state law.”). Instead,

6 § 3 of the DOMA undermines uniform recognition of marriage, by

7 requiring federal agencies to discern which state law marriages

8 are acceptable for federal recognition and which are not.9

9

4. Encouraging Responsible Procreation and Preserving

the Social Link Between Marriage and Children

10

The BLAG asserts that Congress could rationally have enacted

11 § 3 of the DOMA to encourage marriage for heterosexual couples

12 who, unlike same-sex couples, are generally at risk of

13 accidentally conceiving children outside of marriage. The BLAG

14 contends that the provision serves to incentivize the creation,

15 stability, and closeness of heterosexual marriage, or the raising

16 of children in that marital context, while declining to extend

17 similar incentives to other relationships.

18

Here, the relationship between § 3 of the DOMA and the policy

19 goal of steering child-bearing into the context of heterosexual

20 marriage is too attenuated to be credited as a plausible rationale

21

22

9 The BLAG argues that Congress has approved numerous

provisions in the areas of taxation, Social Security, immigration 23 and federal benefits that define marriage for purposes of federal

24

law. However, these provisions do not purport to establish a federal definition of marriage, but instead impose additional

25 requirements to further the legislative goals of the provisions, while accepting the state definitions of marriage. Golinski, 2012

26 WL 569685 at *25 n.10 (citing 42 U.S.C. § 416 (requiring marriage

of at least one year to obtain certain Social Security benefits); 27 8 U.S.C. § 1186a(b)(1) (discrediting sham marriages for purposes

28 of immigration)).

28

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1 for the law. The law carries no incentivizing effect for

2 heterosexual couples. The BLAG acknowledges that marriage has

3 long been understood as a relationship between a man and a woman.

4 Section 3 of the DOMA enacted an express exclusion, barring

5 federal recognition of same-sex marriages under state law. There

6 is no reasonable basis to believe that heterosexual couples are

7 more inclined to marry and have children or to enter into a

8 marriage after accidentally conceiving a child, due to this

9 limiting federal definition enacted in 1996.10 Golinski, 2012 WL

10 569685 *23 (“Denying federal benefits to same-sex married couples

11 has no rational effect on the procreation practices of opposite-

12 sex married (or unmarried) couples.”). See also Lawrence, 539

13 U.S. at 605 (Scalia, J., dissenting) (observing, “what

14 justification could there possibly be for denying the benefits of

15

16

10 The BLAG’s reliance on Johnson v. Robison, 415 U.S. 361

(1974), is not persuasive. There the Supreme Court upheld,

17 against an equal protection challenge, a provision that granted

educational benefits to drafted individuals who performed military

18 service, but withheld such benefits from drafted religious,

conscientious objectors who performed mandatory civilian service 19 as an alternative to military service. Id. at 382-83. The Court

20

determined that the educational benefits made military service more “palatable” and deterred drafted servicemen from skirting

21 their duties, whereas individuals with deeply held religious convictions against military service would not be drawn to serve
22 through the availability of educational benefits. Here, § 3 of

the DOMA impacts an expansive body of laws that touch upon marital 23 status. These laws concern diverse benefits, privileges,

24

responsibilities and obligations which, collectively, are not readily analogous to the simple educational benefit present in

25 Johnson. Thus, the incentivizing effect in Johnson does not apply here. Nor are same-sex couples like the conscientious objectors,
26 because they are seeking to join the institution of marriage or have their existing marriages or legal relationships recognized by
27 the federal government and they desire to assume the attending

28 benefits and responsibilities. Johnson is inapposite.

29

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1 marriage to homosexual couples . . . [s]urely not the

2 encouragement of procreation, since the sterile and the elderly

3 are allowed to marry”) and Perry, 671 F.3d at 1088 (“There is no

4 rational reason to think that taking away the designation of

5 ‘marriage’ from same-sex couples would advance the goal of

6 encouraging California’s opposite-sex couples to procreate more

7 responsibly.”).

8

The BLAG also argues that § 3 of the DOMA could have been

9 passed to preserve the social link between marriage and child-

10 rearing. The BLAG contends that Congress could have reasonably

11 concluded that expanding the definition of marriage could weaken

12 society’s view that the central purpose of marriage is to raise

13 children and could contribute to the number of children born

14 outside of marriage. This rationale is not plausible because, as

15 noted earlier, child-rearing is not the core attribute of

16 marriage, and there is no reasonable connection between the

17 exclusion of same-sex spouses from the federal definition of

18 marriage and minimizing the number of children born outside of

19 wedlock.

20

The provision did not extend new marital rights and

21 privileges to heterosexual couples. Rather, it blocked the

22 application of existing federal rights to married same-sex couples

23 to whom such privileges could have otherwise been accorded. Thus,

24 the law did not establish an incentive for heterosexual couples to

25 marry; they were able to do so and enjoy federal recognition,

26 prior to the enactment of the DOMA.

27

There is no reasonable relationship between § 3 of the DOMA

28 and the policy goal of encouraging heterosexual couples to

30

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1 procreate while married or enter into marriage if they

2 accidentally conceive a child. Because there is no rational

3 relationship to this policy goal, the Court need not resolve

4 whether fostering child-rearing by heterosexual, rather than same-

5 sex couples, serves a legitimate governmental interest.

6

5. Summary

7

In sum, the legislative record contains evidence of anti-gay

8 animus and the BLAG has failed to establish that § 3 of the DOMA

9 is rationally related to a legitimate government interest.

10 Accordingly, Plaintiff same-sex spouses are entitled to summary

11 judgment that § 3 of the DOMA is invalid under the Constitution’s

12 equal protection principles to the extent that the law blocks

13 their access to the CalPERS long-term care plan.

14

B. Registered Domestic Partners’ Challenge to § 3 of the

DOMA

15

Plaintiffs assert that the restrictive definition of “spouse”

16 in § 3 of the DOMA precludes registered domestic partners from

17 enrollment in the CalPERS long-term care plan, contravening their

18 rights to equal protection under federal law and their entitlement

19 to all of the rights, privileges, and obligations of marriage

20 under California law. Plaintiffs contend that, if not for § 3 of

21 the DOMA, Plaintiffs Dominguez and Hermosillo, who are registered

22 domestic partners, but not married under California law, would be

23 deemed “spouses” under state law for purposes of Hermosillo’s

24 enrollment in CalPERS’ long-term care program.

25

State Defendants do not say that § 3 of the DOMA, in

26 particular, precludes California registered domestic partners from

27 enrolling in the CalPERS long-term care plan. Rather, they

28

31

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1 represent that they would “admit same-sex spouses and domestic

2 partners to [the CalPERS long-term care plan] but for federal

3 law.” State Defendants contend that enrollment of Plaintiff

4 domestic partners in the plan would jeopardize the plan’s status

5 as a qualified state long-term care plan under § 7702B(f)(2).

6

Federal Defendants dispute Plaintiffs’ contention that, but

7 for § 3 of the DOMA, California registered domestic partners would

8 necessarily be treated as spouses under the federal tax code.

9 Fed. Defs.’ Cross Mot. Summ. J. 2, 20-21 and Reply 1. The Court

10 notes that § 3 of the DOMA does not expressly address registered

11 domestic partners and it is clear that § 7702B(f) omits domestic

12 partners.

13

Plaintiffs have not demonstrated that § 3 of the DOMA blocks

14 CalPERS from enrolling California domestic partners in its long-

15 term care plan. Plaintiffs contend hypothetically that if § 3 of

16 the DOMA were invalidated, but § 7702B(f) were upheld, California

17 registered domestic partners, who are legally entitled to be

18 treated as spouses under California law, would be permitted to

19 enroll in the CalPERS long-term care plan, without triggering

20 disqualification of the plan for favorable tax treatment under

21 § 7702B(f). In effect, Plaintiffs ask the Court to issue an

22 advisory opinion, which would be improper. See Coal. for a

23 Healthy Cal. v. F.C.C., 87 F.3d 383, 386 (9th Cir. 1996) (citing

24 Flast v. Cohen, 392 U.S. 83, 96 (1968), for the proposition that

25 federal courts are not authorized to issue advisory opinions).

26 Accordingly, the Court finds moot Plaintiffs’ claim that the equal

27 protection rights of California registered domestic partners have

28 been infringed by § 3 of the DOMA.

32

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1

C. Application of Rational Basis Test to Registered Domestic Partners’ Challenge to § 7702B(f)

2

In addition to challenging § 3 of the DOMA, Plaintiffs claim

3 that § 7702B(f) infringes the equal protection rights of

4 California same-sex registered domestic partners by excluding them

5 from enrollment in qualified state-maintained long-term care

6 plans. As explained above, subparagraph (C) of § 7702B(f)(2) does

7 not include registered domestic partners in the list of relatives

8 eligible to enroll in state-maintained long-term care plans. The

9 list of eligible participants incorporates all relatives

10 qualifying for a dependency exemption under 26 U.S.C. § 152(d)(2)

11 except for those individuals who are eligible because they are

12 members of the same household as the taxpayer. Had Congress

13 incorporated subparagraph (H) of § 152(d)(2), in the list of

14 individuals eligible under § 7702B(f), CalPERS would have been

15 authorized to enroll the registered domestic partners of

16 California public employees in its long-term care plan.

17

Federal Defendants oppose Plaintiffs’ challenge to

18 § 7702B(f), arguing, first, that registered domestic partners do

19 not constitute a quasi-suspect or suspect class. For the reasons

20 discussed above in connection with the non-suspect class status of

21 gay men and lesbians, the Court cannot conclude that domestic

22 partners constitute such a class. Although, as explained below,

23 laws excluding registered domestic partners use that status as a

24 proxy for homosexuality, gay men and lesbians still do not

25 constitute a suspect or quasi-suspect class under current Ninth

26 Circuit precedent.

27

Federal Defendants contend that the exclusion of registered

28 domestic partners from § 7702B(f) does not amount to a

33

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United States District Court For the Northern District of California

1 classification based on sexual orientation because many states

2 permit heterosexual couples to register as domestic partners. The

3 Court previously rejected this argument, reasoning that same-sex

4 couples are relegated to domestic partnership because they are

5 barred from civil marriage by California law.11 January 26, 2012

6 Order at 16. Laws limiting same-sex couples to registered

7 domestic partnerships, while precluding them from marriage, turn

8 on sexual orientation, and the availability of registered domestic

9 partnership to different-sex couples does not negate the burdens

10 faced by same-sex registered domestic partners.

11

The Court’s prior ruling relied on the Ninth Circuit’s

12 decision in Diaz. There, as noted above, the Ninth Circuit

13 considered a challenge to a state law provision that eliminated

14 health care insurance benefits for the registered domestic

15 partners of Arizona public employees. Arizona law allows

16 heterosexual couples, as well as same-sex couples, to register as

17 domestic partners. Although heterosexual registered domestic

18 partners were also affected by the restriction, the court found

19 that the law was tainted by a bare desire to harm same-sex couples

20 because, unlike heterosexual couples, they could not marry under

21 Arizona law. 656 F.3d at 1014-1015.

22

Federal Defendants argue that Diaz is inapposite because the

23 case concerned the withdrawal of an existing benefit that an

24

25

11 Only five to six percent of registered domestic partners in

California are different-sex partners. At least one partner must

26 be sixty-two years old or older to register, limiting the eligible

pool. Declaration of Claudia Center, Ex. M, Gary J. Gates, M.V. 27 Lee Badgett, Deborah Ho, Marriage, Registration and Dissolution by

28 Same-Sex Couples in the United States, at 14 (July 1, 2009).

34

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United States District Court For the Northern District of California

1 unpopular group had previously enjoyed. This, however, was not

2 the crux of the Ninth Circuit’s reasoning. The court explained

3 that “when a state chooses to provide such benefits, it may not do

4 so in an arbitrary or discriminatory manner that adversely affects

5 particular groups that may be unpopular.” Id. at 1013 (citing

6 U.S. Dep’t. of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)).

7

Federal Defendants also argue that § 7702B(f) is neutral as

8 to sexual orientation because other relatives, such as cousins,

9 and individuals who share a close, family-like relationship are

10 omitted from the list of eligible relatives. However, the

11 relevant comparison is between § 7702B(f)’s treatment of domestic

12 partners and its treatment of spouses because domestic partners

13 are more comparable to spouses than to distant relatives, such as

14 cousins. Congress viewed registered domestic partnership as a

15 quasi-marital status, such as when Representative Istook referred

16 to domestic partnership as the “equivalent to gay marriage,” 1993

17 WL 236117, at *H4355, and Representative Stearns asserted that the

18 District of Columbia domestic partnership registry was intended to

19 give same-sex couples the legal and social benefits associated

20 with marriage, 1995 WL 639923, at *H11659. The fact that cousins

21 are also affected does not undercut the Court’s finding that

22 § 7702B(f)’s exclusion of registered domestic partners is a

23 classification based on sexual orientation. See Feeney, 442 U.S.

24 at 275 (“If the impact of this statute could not be plausibly

25 explained on a neutral ground, impact itself would signal that the

26 real classification made by the law was in fact not neutral.”).

27

Therefore, in applying rational basis review to Plaintiffs’

28 equal protection challenge to § 7702B(f), as with § 3 of the DOMA,

35

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United States District Court For the Northern District of California

1 the Court considers evidence of anti-gay animus and the existence

2 of any other rational basis for § 7702B(f)’s exclusion of

3 registered domestic partners. Neither party points to legislative

4 history illuminating the reasons that Congress limited the

5 eligible relatives contained in subparagraph (C). Thus, there is

6 no direct evidence of either animus or a benign purpose in the

7 record pertaining to § 7702B(f). However, information about

8 Congress’s views regarding legal recognition of registered

9 domestic partnerships, recorded at the same time as it considered

10 and approved § 7702B(f), is relevant to the Court’s determination.

11 In Arlington Heights v. Metropolitan Housing Development

12 Corporation, 429 U.S. 252, 267 (1977), the Supreme Court

13 explained, “The historical background of the decision is one

14 evidentiary source, particularly if it reveals a series of

15 official actions taken for invidious purposes . . . The specific

16 sequence of events leading up to the challenged decision may also

17 shed some light on the decisionmaker’s purposes.” Thus, facts

18 beyond the legislative record directly pertaining to § 7702B(f)

19 are relevant to discern Congress’s intent. The legislative

20 history of provisions that Congress considered contemporaneously

21 with the passage of § 7702B(f) is relevant.

22

Plaintiffs point to Congress’s contemporaneous consideration

23 of § 3 of the DOMA and its obvious animosity towards same-sex

24 couples in those proceedings, as well as its ban on funding of the

25 District of Columbia’s domestic partnership registry, as indirect

26 evidence that this animus was the reason for its exclusion of a

27 provision applicable to registered domestic partners from the list

28 of eligible relatives under subparagraph (C) of § 7702B(f). The

36

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United States District Court For the Northern District of California

1 DOMA and § 7702B(f) were enacted in the same legislative session,

2 within a month of each other. Congress had been banning the

3 funding of the District of Columbia’s domestic partnership

4 registry for years. In 1996, Congress not only knew that a number

5 of localities and entities across the country had recognized and

6 protected same-sex couples by offering registered domestic

7 partnerships, it limited the federal definition of marriage to

8 heterosexual married couples. Thwarting federal recognition of

9 registered domestic partnerships was a consideration in approving

10 § 3 of the DOMA’s limiting definition of marriage. The statements

11 reflecting animus towards gay men and lesbians in these contexts

12 are relevant to show anti-gay animus in connection with

13 § 7702B(f)’s exclusion of registered domestic partners. The Court

14 infers that Congress acted on anti-gay animus in refusing to

15 include registered domestic partners in the list of relatives

16 eligible to enroll in state-maintained long term care plans.

17

In addition to pointing out evidence of anti-gay animus in

18 the legislative record, Plaintiffs have refuted the existence of

19 any rational basis for § 7702B(f)’s exclusion of registered

20 domestic partners.

21

Federal Defendants argue that the exclusion of registered

22 domestic partners from § 7702B(f) was rational because, in 1996,

23 no state recognized such relationships. As noted earlier,

24 Congress was actually aware of, and thwarted, the District of

25 Columbia’s domestic partnership registry. Congress was informed

26 of domestic partnership registries established in various other

27 jurisdictions. Accordingly, Federal Defendants’ asserted

28

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United States District Court For the Northern District of California

1 rationale that the exclusion was reasonable because registered

2 domestic partnership was a novel legal status cannot be credited.

3

Next, Federal Defendants contend that it was not irrational

4 to exclude registered domestic partners from qualified state long-

5 term care plans because, in 1996, no state treated registered

6 domestic partners as spouses for state law purposes. Federal

7 Defendants point out that California extended to registered

8 domestic partners the full range of spousal rights and

9 responsibilities available under state law only after a 2003

10 legislative enactment. This argument, however, is not persuasive

11 because treating registered domestic partners as eligible for

12 enrollment in a state-maintained, long-term care plan does not

13 entail extending to registered domestic partners all rights and

14 responsibilities attached to marriage under a given state’s law.

15

Federal Defendants also argue that Congress reasonably

16 decided that the category of household members described in

17 § 152(d)(2)(H) was not a suitable basis to determine eligibility

18 for inclusion in a state long-term care plan because such

19 relationships may change from year to year. This justification,

20 however, cannot be credited because the eligibility of spouses,

21 step-relatives and relatives-in-law, which depends on the

22 existence of a marital relationship, may likewise change between

23 one year and the next.

24

Federal Defendants further contend that the exclusion of

25 registered domestic partners simplifies for state officials

26 administering long-term care plans the task of verifying

27 eligibility. This rationale is not plausible because the

28 relationships of distant relatives who are eligible for long-term

38

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United States District Court For the Northern District of California

1 care coverage through state-maintained plans are likely at least

2 as difficult to verify as the residence of individuals who live in

3 the same household as the taxpayer for the taxable year. Thus,

4 the exclusion of subparagraph (H) does not rationally relate to

5 efforts to ease administration of state-maintained long-term care

6 plans. In Moreno, 413 U.S. at 537-38, the Court held that a

7 provision that limited eligibility for food stamps to households

8 comprising “related” rather than “non-related” individuals was not

9 rationally connected to efforts to curb abuse of the program. In

10 addition, the Ninth Circuit in Diaz recently rejected the argument

11 that a state law eliminating health care benefits for domestic

12 partners served the interest of easing administrative burdens

13 where the challenged law amounted to a “selective” burden on a

14 small group of individuals. 656 F.3d at 1014.

15

Finally, Federal Defendants assert that Congress reasonably

16 could have assumed that there would not be any significant

17 disparity between qualified state long-term care plans and private

18 § 7702B plans, so that domestic partners of state employees would

19 not be discouraged from purchasing long-term care coverage simply

20 because they are ineligible for state-maintained long-term care

21 coverage. This does not amount to a rationale for excluding

22 household members under subparagraph (H) from the list of

23 relatives eligible for state-maintained plans. The availability

24 of long-term care coverage, with tax benefits, for purchase on the

25 private market does not explain this federally mandated exclusion

26 from state plans.

27

Section 7702B(f) is actually inconsistent with Congress’s

28 expressed policy goal of encouraging the purchase of long-term

39

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United States District Court For the Northern District of California

1 care coverage generally. Congress’s broad extension of favorable

2 tax treatment to private plans was consistent with its policy

3 goal. However, Congress imposed, pursuant to § 7702B(f), a

4 penalty, namely disqualification of state-maintained plans from

5 favorable federal tax treatment, if they extended long-term care

6 coverage to household members and relatives beyond the list of

7 individuals sanctioned by Congress.

8

Thus, none of the explanations put forth by Federal

9 Defendants satisfies the rational basis test.

10

Because Congress’s restriction on state-maintained long-term

11 care plans lacks any rational relationship to a legitimate

12 government interest, but rather appears to be motivated by anti-

13 gay animus, the exclusion of registered domestic partners of

14 public employees from § 7702B(f)’s list of individuals eligible to

15 enroll in state-maintained long-term care plans violates the

16 Constitution’s equal protection guarantee.

17 V. Substantive Due Process

18

The Court need not address Plaintiffs’ substantive due

19 process challenge to the disputed provisions because Plaintiffs

20 prevail on their motion for summary judgment with respect to their

21 equal protection challenge. Plaintiffs’ meritorious equal

22 protection challenge redresses their injuries by invalidating

23 federal law thwarting their enrollment in the CalPERS long-term

24 care plan and, thus, their substantive due process attack is moot.

25

CONCLUSION

26

The Court finds that § 3 of the DOMA violates the equal

27 protection rights of Plaintiff same-sex spouses, and

28 subparagraph (C) of § 7702B(f) violates the equal protection

40

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United States District Court For the Northern District of California

1 rights of Plaintiff registered domestic partners. Therefore, both

2 provisions are constitutionally invalid to the extent that they

3 exclude Plaintiff same-sex spouses and registered domestic

4 partners from enrollment in the CalPERS long-term care plan.

5 Thus, Plaintiffs’ motion for summary judgment is granted with

6 respect to their equal protection claims and the BLAG’s and

7 Federal Defendants’ cross-motions for summary judgment that § 3 of

8 the DOMA and § 7702B(f) of Title 26 are constitutional are denied.

9

Accordingly, the Court permanently enjoins State Defendants,

10 and those acting at their direction or on their behalf, from

11 denying Plaintiff class members enrollment in the CalPERS long-

12 term care plan on the basis of § 3 of the DOMA or § 7702B(f)’s

13 exclusion of same-sex spouses and registered domestic partners,

14 respectively. Federal Defendants are enjoined from disqualifying

15 the CalPERS long-term care plan under § 7702B(f) based on State

16 Defendants’ compliance with the terms of this injunction. A stay

17 on State Defendants’ compliance with this order will be granted,

18 if a timely appeal is filed.

19

The Clerk is directed to enter judgment in favor of the

20 Plaintiff class and against Defendants and Intervenors.

21

In their Prayer for Relief, Plaintiffs indicated their intent

22 to seek attorneys’ fees and costs. They may submit a motion

23 making such a request.

24

IT IS SO ORDERED.

25

26 Dated: 5/24/2012 27

CLAUDIA WILKEN United States District Judge

28

41

 
 Case4:10-cv-01564-CW Document95 Filed09/07/11 Page1 of 24

1 William C. McNeill III, State Bar No. 64392

2 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227

3 LEGAL AID SOCIETY-

EMPLOYMENT LAW CENTER 4 180 Montgomery Street, Suite 600

5

San Francisco, CA 94104 Telephone: (415) 864-8848

6 Facsimile: (415) 593-0096

7 Attorneys for Plaintiffs 8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11 MICHAEL DRAGOVICH, MICHAEL

Case No. CV 4:10-01564-CW

GAITLEY, ELIZABETH LITTERAL, 12 PATRICIA FITZSIMMONS, CAROLYN

LIGHT, CHERYL LIGHT, DAVID BEERS, 13 CHARLES COLE, RAFAEL V.

SECOND AMENDED COMPLAINT

DOMINGUEZ, and JOSE G. HERMOSILLO, FOR INJUNCTIVE AND 14 on behalf of themselves and all others similarly DECLARATORY RELIEF

situated, 15

Plaintiffs, 16

CLASS ACTION

v. 17

UNITED STATES DEPARTMENT OF THE 18 TREASURY, TIMOTHY GEITHNER, in his
official capacity as Secretary of the Treasury, 19 United States Department of the Treasury,
INTERNAL REVENUE SERVICE, 20 DOUGLAS SHULMAN, in his official
capacity as Commissioner of the Internal 21 Revenue Service, BOARD OF
ADMINISTRATION OF CALIFORNIA 22 PUBLIC EMPLOYEES‘ RETIREMENT
SYSTEM, and ANNE STAUSBOLL, in her 23 official capacity as Chief Executive Officer,
CalPERS, 24

Defendants. 25

26

27

28

Second Amended Complaint for Declaratory and Injunctive Relief

1

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1

INTRODUCTION

2

1. Plaintiffs are employees of the State of California and their spouses or partners who

3 are in long-term committed relationships legally recognized under California law as marriages

4 and domestic partnerships. But because Plaintiffs are same-sex couples, the federal and state

5 Defendants are unconstitutionally denying them the opportunity to purchase coverage through

6 the state‘s long-term care insurance program, an essential tool for financial and family security

7 that is offered to all other families of state workers.

8

2. As members of the California Public Employees‘ Retirement System (―CalPERS‖),

9 Plaintiffs MICHAEL DRAGOVICH, ELIZABETH LITTERAL, CAROLYN LIGHT, DAVID

10 BEERS, and RAFAEL V. DOMINGUEZ (―Plaintiff employees‖) are eligible to apply to join

11 the CalPERS Long Term Care (―LTC‖) Program, and seek this opportunity for their same-sex

12 partners, Plaintiffs MICHAEL GAITLEY, PATRICIA FITZSIMMONS, CHERYL LIGHT,

13 CHARLES COLE, and JOSE G. HERMOSILLO (―Plaintiff spouses‖ or ―Plaintiff partners‖).

14 Through participation in the LTC Program, the Plaintiffs seek to ensure an adequate safety net

15 for themselves and their loved ones in the event that future debilitating illness or injury requires

16 long-term care services.

17

3. Long-term care insurance provides coverage when a person needs assistance with

18 basic activities of living due to chronic illness, injury, the frailty of old age, or a severe

19 cognitive impairment such as Alzheimer‘s disease. In most instances, individuals and their

20 families are not otherwise covered for this type of extended long-term care by health insurance,

21 disability insurance, or Medicare. Long-term care insurance is thus an important benefit for

22 individuals, couples, and families – regardless of sexual orientation – to enhance financial

23 security, and to ensure access to appropriate care throughout the life cycle.

24

4. The U.S. Department of Health and Human Services reports that approximately

25 seventy percent of Americans over the age of 65—approximately nine million people—will

26 need long-term care services. By the year 2020, the number will increase to twelve million. At

27 2009 rates, the average stay in a nursing home lasts 2.4 years and costs more than $170,000.

28

Second Amended Complaint for Declaratory and Injunctive Relief

2

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page3 of 24

1 The average cost in 2009 for care provided by a home health aide was $21 per hour, or $27,000

2 annually.

3

5. Without long-term care insurance, the high costs of care can force families to make

4 painful choices such as selling a family home to pay the bills, or having a working adult give up

5 a job and income to work (unpaid) as a primary caretaker for a loved one who is no longer able

6 to care for herself. The consequences of such steps can be financially and emotionally

7 devastating, and in some cases may be insufficient, leaving individuals in poverty and

8 dependent upon the limited services provided by MediCal. Long-term care insurance allows

9 families to avoid such contingencies.

10

6. Long-term care coverage can allow families and individuals to achieve their

11 preferences with respect to assets, aging, and living arrangements, including community-based

12 care. According to the U.S. Department of Health and Human Services: ―By planning ahead,

13 you may be able to save your assets and income for uses other than long-term care, including

14 preserving the quality of life for your spouse or other loved ones. . . . Your choices for

15 receiving care outside of a facility and being able to stay at home or receive services in the

16 community for as long as possible are greater if you have planned ahead.‖ U.S. Department of

17 Health and Human Services National Clearinghouse for Long-Term Care Information, available

18 at http://www.longtermcare.gov/LTC/Main_Site/Planning_LTC/Importance/index.aspx.

19

7. Maximizing the number of families who purchase long-term health care insurance

20 serves the public interest by spreading the risk of catastrophic expense, and helping individuals

21 receive adequate assistance when they become unable to care for themselves, reducing the

22 burden on publicly funded programs. Access to long-term care services can also prevent

23 avoidable health problems, reducing the need for emergency care and other expensive medical

24 services.

25

8. The federal government, recognizing the importance of long term care insurance in

26 protecting families and the contributions to the public good made by public employees, enables

27 states to offer tax-shielded (―qualified‖) long term care insurance programs to public employees

28

Second Amended Complaint for Declaratory and Injunctive Relief

3

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page4 of 24

1 and their families. These tax provisions were adopted ―to provide an incentive for individuals

2 to take financial responsibility for their long-term care needs.‖ Joint Committee on Taxation,

3 ―Description of Federal Tax Rules and Legislative Background Relating to Long-Term Care

4 Scheduled for a Public Hearing Before the Senate Committee on Finance on March 27, 2001,‖

5 available at 2001 WL 36044116 (I.R.S.). ―The legislation … provides tax deductibility for long

6 term care and insurance, making it possible for more Americans to avoid financial difficulty as

7 the result of chronic illness.‖ 142 Cong. Rec. S3578-01 at *3608 (Statement of Sen. McCain)

8 (Apr. 18, 1996).

9

9. Under the Internal Revenue Code, a state may offer public employees a ―qualified,‖

10 tax-shielded long term care insurance plan that allows an employee to enroll himself or herself,

11 as well as any of the following family members:

12

Opposite-sex spouse;

13

Children;

14

Grandchildren;

15

Brothers;

16

Sisters;

17

Stepbrothers;

18

Stepsisters;

19

Father;

20

Mother;

21

Stepfather;

22

Stepmother;

23

Grandparents;

24

Nephews;

25

Nieces;

26

Aunts;

27

Uncles;

28

Second Amended Complaint for Declaratory and Injunctive Relief

4

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page5 of 24

1

Sons-in-law;

2

Daughters-in-law;

3

Father-in-law;

4

Mother-in-law

5

Brothers-in-law; and

6

Sisters-in-law.

7 26 U.S.C. §§ 7702B(f)(1)-(2); 152(d)(2)(A)-(G), 1 U.S.C. § 7. The rules do not limit the

8 number of family members who can enroll. Only one conceivable family member category –

9 same-sex spouses and other legally recognized same-sex partners such as registered domestic

10 partners – is excluded.

11

10. Consistent with federal statutory law, California statutory law mandates that

12 Defendant Board of Administration offer public employees and their families the opportunity to

13 purchase qualified long-term care insurance through the California Public Employees‘

14 Retirement System (―CalPERS‖) during periodic open enrollment. Cal. Gov‘t Code

15 § 21661(a). A state employee may enroll himself or herself, and his or her spouse, brothers,

16 sisters, father, mother, father-in-law, and mother-in-law in the qualified long-term care

17 insurance program offered to California public employees. Cal. Gov‘t Code § 21661(d). There

18 is no limit to the total number of family members who can enroll, so long as they fall into an

19 approved family member category. However, same-sex domestic partners are excluded under

20 the terms of state and federal statutory law. 26 U.S.C. §§ 7702B(f)(1)-(2); 152(d)(2)(A)-(G),

21 Cal. Fam. Code § 297.5(g). Same-sex spouses are excluded by virtue of federal statutory law, 1

22 U.S.C. § 7, which CalPERS has followed and has indicated that it will follow.

23

11. Thus, despite the important purposes underlying the establishment and development

24 of qualified long term care programs for public employees – to protect and provide for public

25 employees and their extended families – families headed by same-sex partners are singled out

26 for exclusion, and denied without basis an important tool of financial planning.

27

12. Defendants‘ discrimination against the Plaintiffs with regard to long-term health care

28

Second Amended Complaint for Declaratory and Injunctive Relief

5

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page6 of 24

1 insurance is particularly invidious given the historical exclusion of gay couples and families

2 from social and financial institutions and programs, including insurance plans, that help couples

3 and families protect their financial security and allow them the resources to make caretaking

4 decisions as a family.

5

13. Moreover, the statutory exclusion of same-sex partners from qualified long-term care

6 plans interferes with California‘s independent constitutional law. The California Supreme

7 Court has affirmed that ―saa matter of constitutional right,‖ California law accords same-sex

8 couples, whether in legally recognized marriages or domestic partnerships, the same respect and

9 dignity and the same substantive legal rights and attributes as married opposite-sex couples.

10 Strauss v. Horton, 36 Cal. 4th 364, 411 (2009).

11

14. As couples in legally recognized committed relationships, Plaintiffs are entitled to

12 respect for their fundamental liberty and privacy interests in marital and familial relationships,

13 and the full and equal protection of the law. The exclusion challenged herein disrespects

14 Plaintiffs‘ marital and familial relationships, and constitutes irrational discrimination, all in

15 violation of the constitutional guarantees of due process and equal protection.

16

15. Plaintiffs seek a determination that by excluding same-sex partners and spouses, the

17 federal provisions at issue – 26 U.S.C.A. §§ 7702B(f)(1)-(2) and 152(d)(2)(A)-(G) – violate the

18 due process and equal protection guarantees of the federal Constitution. Plaintiffs seek a further

19 determination that the CalPERS LTC Plan violates the federal Constitution by conforming its

20 requirements to the federal provisions, thereby denying Plaintiffs the same respect and benefits

21 as it grants to similarly situated heterosexual public employees and their spouses.

22

JURISDICTION

23

16. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 in that this

24 case arises under the Constitution of the United States and presents a federal question under

25 Article III of the United States Constitution; pursuant to 28 U.S.C. § 1343(a)(3), (4) and 42

26 U.S.C. § 1983 in that this action is brought to redress deprivations, under color of state

27 authority, of rights, privileges, and immunities secured by the Constitution of the United States;

28

Second Amended Complaint for Declaratory and Injunctive Relief

6

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page7 of 24

1 and pursuant to 5 U.S.C. § 702 in that the action states a claim that an agency of the United

2 States or an officer or employee thereof acted or failed to act in an official capacity or under

3 color of legal authority. The Court has authority to grant declaratory and injunctive relief

4 pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a) and § 2202. The Court has the

5 authority to award costs and attorneys‘ fees under 28 U.S.C. § 2412 and 42 U.S.C. § 1988.

6

VENUE

7

17. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(e) in

8 that this action does not involve real property, Plaintiffs reside in this District, and a substantial

9 part of the acts and/or omissions giving rise to Plaintiffs‘ claims occurred in this District.

10

PARTIES

11

18. Plaintiffs are public employees in the State of California who are eligible to purchase

12 long-term care coverage offered through CalPERS (―Plaintiff employees‖) and their legally

13 recognized spouses and domestic partners (―Plaintiff spouses‖ or ―Plaintiff partners‖).

14

19. Plaintiff MICHAEL DRAGOVICH is a U.S. citizen residing in San Francisco,

15 California, and is employed by the University of California, San Francisco (―UCSF‖) Medical

16 Center, where he has worked as a registered nurse and nurse coordinator in the area of liver

17 transplants since 1992. He is 51 years old. As part of his employee benefits package, he is

18 eligible for and participates in CalPERS, California‘s benefit program for public employees.

19 Plaintiff DRAGOVICH purchased long-term care coverage through the CalPERS program in

20 1997.

21

20. Plaintiff MICHAEL GAITLEY is also a U.S. citizen residing in San Francisco,

22 California, and he is 51 years old. Plaintiff GAITLEY is an attorney who runs free legal clinics

23 for low-wage workers throughout the Bay Area.

24

21. Plaintiff DRAGOVICH met Plaintiff GAITLEY in 1979. They have been a

25 committed couple for more than 30 years. Plaintiffs DRAGOVICH and GAITLEY were

26 married on June 28, 2008 pursuant to a duly issued marriage license; they are legally married

27 under California law.

28

Second Amended Complaint for Declaratory and Injunctive Relief

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Case4:10-cv-01564-CW Document95 Filed09/07/11 Page8 of 24

1

22. Plaintiff ELIZABETH LITTERAL is a U.S. citizen residing in San Francisco,

2 California, and is employed by the UCSF Medical Center, where she has worked as a nurse in

3 the areas of oncology and hematology since approximately 1995. She is 50 years old. As part

4 of her employee benefits package, she is eligible for and participates in CalPERS.

5

23. Plaintiff PATRICIA FITZSIMMONS is a U.S. citizen residing in San Francisco,

6 California, and she is 59 years old. Plaintiff FITZSIMMONS is an attorney who directs the

7 Child Advocacy Clinic at the University of San Francisco School of Law.

8

24. Plaintiff LITTERAL met Plaintiff FITZSIMMONS in 1992. They have been a

9 committed couple for more than 17 years. Plaintiffs LITERRAL and FITZSIMMONS

10 registered as domestic partners with the City and County of San Francisco on June 21, 1994. In

11 1997, they adopted their daughter Molly, now 14. They also registered as domestic partners

12 with the State of California when that registry became available through state law. Following

13 the decision of Mayor Gavin Newsom to provide marriage licenses on a nondiscriminatory

14 basis, Plaintiffs LITERRAL and FITZSIMMONS were married in San Francisco on February

15 13, 2004; this marriage was subsequently invalidated by the California Supreme Court.

16 Plaintiffs LITERRAL and FITZSIMMONS were then married on October 8, 2008 pursuant to a

17 duly issued marriage license; they are legally married under California law.

18

25. Plaintiff CAROLYN LIGHT is a U.S. citizen residing in San Francisco, California,

19 and is employed by the UCSF Medical Center, where she has worked as health care

20 administrator since 2005. She is 32 years old. As part of her employee benefits package, she is

21 eligible for and participates in CalPERS.

22

26. Plaintiff CHERYL LIGHT is a U.S. citizen residing in San Francisco, California, and

23 a massage therapist.

24

27. Plaintiffs CAROLYN and CHERYL LIGHT met in college and have been a

25 committed couple for seven years. They registered as domestic partners under California state

26 law in October 2006. On June 24, 2008, Plaintiffs CAROLYN and CHERYL LIGHT were

27 married pursuant to a duly issued marriage license; they are legally married under California

28

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1 law.

2

28. Plaintiff DAVID BEERS is a U.S. citizen residing in Oakland, California, and is

3 employed as a fiscal analyst for the State of California, Department of Public Health,

4 Tuberculosis Control Branch. He has held this position since 1999. Plaintiff BEERS is 57

5 years old, and has been employed by the State of California in various positions for more than

6 20 years. As part of his employee benefits package, he is eligible for and participates in

7 CalPERS. Plaintiff BEERS purchased long-term care coverage through the CalPERS program

8 in 1997.

9

29. Plaintiff CHARLES COLE is a U.S. citizen residing in Oakland, California. For

10 many years, Plaintiff COLE has worked as a consultant assisting health care organizations,

11 senior organizations, and communities of faith with fundraising, organizational development,

12 governance, and marketing. Since 2004, Plaintiff COLE has served as the Chief Operating

13 Officer of Chaparral House, a nonprofit skilled nursing facility for seniors. Plaintiff COLE is

14 59 years old.

15

30. Plaintiff BEERS met Plaintiff COLE in 1995. Plaintiffs BEERS and COLE registered

16 as domestic partners under California state law on July 24, 2000. They had a commitment

17 ceremony on July 15, 2001. On July 13, 2008, Plaintiffs BEERS and COLE were married

18 pursuant to a duly issued marriage license; they are legally married under California law.

19

31. Plaintiff RAFAEL V. DOMINGUEZ is a U.S. citizen residing in La Mesa, California.

20 Plaintiff DOMINGUEZ is employed as an EEO officer/Title VI liaison with CalTRANS in San

21 Diego, California. He has held this position since August 2010. Prior to working for

22 CalTRANS, Plaintiff DOMINGUEZ worked for the California Department of Fair Employment

23 and Housing and for the State Compensation Insurance Fund. He has been a state employee

24 since June of 2004. As part of his employee benefits package, he is eligible for and participates

25 in CalPERS.

26

32. Plaintiff JOSE G. HERMOSILLO is a U.S. citizen residing in La Mesa, California.

27 For about ten years, he has worked as an independent contractor providing Spanish language

28

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1 interpreting services to federal contractors throughout California and outside California.

2

33. Plaintiff DOMINGUEZ and Plaintiff HERMOSILLO became a committed couple in

3 2005, and registered as domestic partners under California state law on June 18, 2007. They are

4 not married.

5

34. Defendant DEPARTMENT OF THE TREASURY is a federal government

6 department established by Congress.

7

35. Defendant INTERNAL REVENUE SERVICE is a bureau of the DEPARTMENT OF

8 THE TREASURY that is organized to carry out the responsibilities of the Secretary of the

9 Treasury in executing and applying the internal revenue laws pursuant to 26 U.S.C. § 7801.

10

36. Defendant TIMOTHY GEITHNER is currently the Secretary of the Treasury and is

11 sued in his official capacity. In his official capacity, Secretary GEITHNER is responsible for

12 the administration of the DEPARTMENT OF THE TREASURY, including the administration

13 and enforcement of the internal revenue laws. 26 U.S.C. § 7801.

14

37. Defendant DOUGLAS SHULMAN is currently the Commissioner of Internal

15 Revenue and issued in his official capacity. In his official capacity, Commissioner SHULMAN

16 is responsible for administering and supervising the execution and application of the internal

17 revenue laws. 26 U.S.C. § 7803.

18

38. Defendant BOARD OF ADMINISTRATION of California Public Employees‘

19 Retirement System (―BOARD‖) is the thirteen-member body vested with management and

20 control of the Public Employees‘ Retirement System. Cal. Gov‘t Code § 20120.

21

39. Defendant ANNE STAUSBOLL is Chief Executive Officer of the California Public

22 Employees‘ Retirement System and is sued in her official capacity.

23

CLASS ACTION ALLEGATIONS

24

40. Plaintiffs DRAGOVICH, GAITLEY, LITTERRAL, FITZSIMMONS, CAROLYN

25 LIGHT, CHERYL LIGHT, BEERS, COLE, DOMINGUEZ, and HERMOSILLO bring this

26 action on behalf of themselves and all persons similarly situated. The class they seek to

27 represent is composed of CalPERS members who are in same-sex marriages and registered

28

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1 domestic partnerships legally recognized by the State of California, and their spouses and

2 partners, who as couples and families are denied access to the CalPERS Long-Term Care

3 Program that is equal to similarly situated CalPERS members who are in opposite-sex

4 marriages, and their spouses.

5

41. The persons in the class are so numerous that joinder of all such persons is

6 impracticable and the disposition of their claims in a class action is a benefit both to the parties

7 and to this Court. The Williams Institute at the University of California, Los Angeles, has

8 estimated that there are nearly 193,000 current state and local public employees who are

9 lesbian, gay, bisexual, and transgender.

10

42. There is a well-defined community of interest in the questions of law and fact

11 regarding the parties to be represented, and common questions of law and fact predominate.

12

43. The claims of Plaintiffs DRAGOVICH, GAITLEY, LITTERRAL, FITZSIMMONS,

13 CAROLYN LIGHT, CHERYL LIGHT, BEERS, COLE, DOMINGUEZ, and HERMOSILLO

14 are typical of those of the class, and Plaintiffs DRAGOVICH, GAITLEY, LITTERRAL,

15 FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, BEERS, COLE, DOMINGUEZ, and

16 HERMOSILLO will fairly and adequately represent the interests of the class.

17

STATEMENT OF FACTS

18

44. As California public employees, the Plaintiff employees are eligible for and

19 participate in California‘s public employee benefit program, administered through the

20 California Public Employees‘ Retirement System (―CalPERS‖).

21 The CalPERS Long-Term Care Program.

22

45. One benefit included in CalPERS is the opportunity to enroll in the CalPERS Long-

23 Term Care Program. The Long-Term Care Program (―Program‖) provides benefit payouts in

24 the event that the beneficiary requires long-term skilled nursing care (for example, due to

25 illness, injury, or advanced age). The Long-Term Care Program allows California public

26 employees and/or family members of employees, including spouses, adult siblings, parents and

27 parents-in-law to enroll in the Program. These family members can apply for the Program even

28

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1 if the public employee chooses not to enroll.

2

46. The 2008 CalPERS Long-Term Care Program Information Guide (―Information

3 Guide‖), made available to all members of CalPERS including the Plaintiff employees, defines

4 ―long-term care‖ as ―theextended care you or a loved one may need when you need assistance

5 with basic Activities of Daily Living (ADLs) like bathing, dressing, or eating.‖ This care can be

6 necessary ―because of a chronic illness, injury, or due to the frailty of old age [or] a Severe

7 Cognitive Impairment, such as Alzheimer‘s Disease.‖ The Program offers coverage options for

8 care provided at home, at an adult day care center, in an assisted living facility, or in a nursing

9 home.

10

47. In most instances, individuals and their families are not covered for long-term care by

11 other insurance or disability plans. Medicare and employer-sponsored or private health

12 insurance do not pay for the majority of long-term care services. MediCal provides limited

13 coverage for some long-term care only to individuals who meet a state-determined poverty level

14 and certain health-related criteria.

15

48. In a section entitled ―Do Not Forget Your Loved Ones,‖ the Information Guide offers

16 facts to ―help you better understand why you should tell your spouse, parents, parents-in-law

17 and adult siblings about the CalPERS Long-Term Care Program.‖ The Information Guide

18 repeatedly offers reminders that employees should enroll their ―spouse,‖ ―family,‖ and ―loved

19 ones.‖

20

49. According to CalPERS, three out of five people over age 65 will need some type of

21 long-term care over their lifetime. In 2007, the average cost of care in a nursing home in

22 California was $180 per day, or over $65,000 annually, and the average nursing home stay is 2.6

23 years, costing approximately $170,000. Care received at home can cost more than $20,000 a

24 year. As with other health care costs, the costs of long-term care are rising annually.

25 Defendants’ Exclusion of the Plaintiff Spouses.

26

50. Plaintiff DRAGOVICH has been employed as a registered nurse and nurse

27 coordinator at UCSF Medical Center for approximately eighteen years. Plaintiff DRAGOVICH

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1 has been in a committed relationship with Plaintiff GAITLEY for more than 30 years, since

2 1979. On June 28, 2008, following the decision of the California Supreme Court in In re

3 Marriage Cases, 43 Cal. 4th 757 (2008) (holding that denial of the right to marry to same-sex

4 couples violated the California Constitution), Plaintiff DRAGOVICH married Plaintiff

5 GAITLEY, pursuant to a duly issued California marriage license. Plaintiffs DRAGOVICH and

6 GAITLEY remain lawfully married spouses under the laws of the State of California. Strauss v.

7 Horton, 46 Cal. 4th 364 (2009).

8

51. Plaintiffs DRAGOVICH and GAITLEY are each 51 years old. Like families across

9 the country planning their future, Plaintiffs DRAGOVICH and GAITLEY seek the security that,

10 should either of them experience a debilitating illness or injury or otherwise become unable to

11 care for himself, there will be an adequate safety net in place to provide necessary long-term

12 health care. Additionally, Plaintiffs DRAGOVICH and GAITLEY seek the administrative

13 convenience of being insured by the same provider, particularly as they age. Plaintiff

14 DRAGOVICH purchased long-term care coverage through the CalPERS program in 1997;

15 Plaintiff GAITLEY seeks the same coverage.

16

52. Plaintiff LITTERAL has been employed as an oncology nurse at UCSF Medical

17 Center for approximately 15 years. Plaintiffs LITTERAL and FITZSIMMONS have been in a

18 committed relationship for more than 17 years. Plaintiffs LITTERAL and FITZSIMMONS

19 registered as domestic partners with the City and County of San Francisco on June 21, 1994.

20 They also registered as domestic partners with the State of California when that registry became

21 available through state law. Following the decision of Mayor Gavin Newsom to provide

22 marriage licenses on a nondiscriminatory basis, Plaintiffs LITTERAL and FITZSIMMONS

23 were married in San Francisco on February 13, 2004; this marriage was subsequently

24 invalidated by the California Supreme Court. Following the In re Marriage cases, Plaintiffs

25 LITTERAL and FITZSIMMONS were married on October 8, 2008 pursuant to a duly issued

26 marriage license; they are legally married under California law.

27

53. For some time, Plaintiffs LITTERAL and FITZSIMMONS have been reviewing their

28

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1 options for obtaining long-term care coverage. They are interested in joining the CalPERS

2 Long-Term Care Program because the benefits are tax-protected, and because, as a publicly

3 operated group plan, the premiums are lower than those charged by private carriers of individual

4 policies. If and when they are able to purchase the coverage, they intend to do so.

5

54. Plaintiff CAROLYN LIGHT has been employed as health care administrator at UCSF

6 Medical Center since 2005. She and Plaintiff CHERYL LIGHT have been in a committed

7 relationship for seven years. They registered as domestic partners in 2006, and married legally

8 in 2008. They are planning to have children. Plaintiffs CAROLYN and CHERYL LIGHT are

9 interested in coverage through the CalPERS Long-Term Care Program because they view this

10 coverage as a component of their financial planning as a couple. If and when they are able to

11 purchase the coverage, they intend to do so.

12

55. Plaintiff BEERS has been employed by the State of California for more than 20 years.

13 He currently serves as a fiscal analyst for the Tuberculosis Control Branch of the Department of

14 Public Health, Tuberculosis Control Branch. He has held this position since 1999. He and

15 Plaintiff COLE have been in a committed relationship since 1999. They registered as domestic

16 partners under California state law on July 24, 2000, and had a commitment ceremony on July

17 15, 2001. On July 13, 2008, Plaintiffs BEERS and COLE were married pursuant to a duly

18 issued marriage license; they are legally married under California law. Plaintiff BEERS has

19 long been aware of the need for, and the benefits of, long-term care coverage. He purchased

20 coverage through the CalPERS long-term care plan in 1997.

21

56. Like Plaintiff BEERS, Plaintiff COLE is intensely aware of the need for long-term

22 care coverage. As Chief Operating Officer for Chaparral House, a skilled nursing facility, and

23 as a consultant for health care organizations, Plaintiff COLE is intimately familiar with the daily

24 costs of long-term care, and the lack of adequate coverage provided by government programs

25 such as MediCal and Medicare. Moreover, during the AIDS epidemic beginning in the early

26 1980s, Plaintiff COLE cared for dozens of individuals living and dying with AIDS who

27 required assistance with basic activities of daily living such as bathing, dressing, and eating. A

28

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1 former Baptist minister, Plaintiff COLE was an active lay leader in the Metropolitan

2 Community Church of San Francisco; literally hundreds of MCCSF members died during the

3 AIDS years. Plaintiffs BEERS and COLE seek long-term care coverage because they want the

4 security and safety net it provides in the event that either of them experience a debilitating

5 illness or injury and requires daily care.

6

57. Beginning in 2004, Plaintiffs BEERS and COLE began discussing the possibility of

7 enrolling Plaintiff COLE in the CalPERS long-term care plan. In 2005, Plaintiff COLE began

8 sending emails to membership services for the CalPERS long-term care plan, inquiring about

9 whether he could become covered as a domestic partner. Eventually he was told via email by a

10 representative of the CalPERS long-term care plan that coverage was not available to him.

11 Plaintiff COLE continued to inquire, and finally spoke by telephone with a representative of the

12 CalPERS long-term care plan; the representative told Plaintiff COLE that there was nothing

13 CalPERS could do to include domestic partners because of the IRS rules. Plaintiff COLE

14 suggested that CalPERS sue the IRS. Plaintiff COLE made one more effort in about 2007,

15 emailing CalPERS about obtaining long-term care coverage; he was again told that he is not

16 eligible. Plaintiff COLE has surveyed the private long-term care market; however, he has been

17 unable to find a product comparable to the CalPERS program with respect to benefits,

18 escalation (also known as inflation protection), and premiums. As well, Plaintiff COLE seeks

19 the benefits and protections of being part of the CalPERS plan. Unlike private plans, the

20 CalPERS plan is run as a nonprofit, and has access to favorable investment opportunities.

21 Unlike private plans, increases in premiums are supervised by the Board of Administration, and

22 are imposed uniformly across the population of insured participants.

23

58. Plaintiff DOMINGUEZ and Plaintiff HERMOSILLO are in their 40s, and purchased a

24 home together in September 2007, shortly after they registered as domestic partners under state

25 law. Plaintiff DOMINGUEZ has looked into purchasing long-term care coverage from

26 CalPERS, and wishes to buy this coverage for himself and for Plaintiff HERMOSILLO. He is

27 aware from his own research, and from his mother‘s experiences of aging while living in her

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1 own home, that long-term care insurance coverage – separate from Medicare – is an important

2 option for protecting family assets while accessing services. He seeks CalPERS long-term care

3 coverage for himself and for Plaintiff HERMOSILLO because he wishes to protect their home

4 and the stability of their household and finances in the event that, as they get older, one or both

5 of them require assistance in their activities of daily living. For the same reasons, Plaintiff

6 HERMOSILLO seeks CalPERS long-term care coverage. If and when they are able to purchase

7 the coverage, they intend to do so.

8

59. After Plaintiffs DRAGOVICH and GAITLEY married, Plaintiff DRAGOVICH

9 sought to enroll Plaintiff GAITLEY in the CalPERS Long-Term Care Program. In December

10 2008, Plaintiff DRAGOVICH called the Program‘s toll-free number to request enrollment

11 materials, but was told by the Program representative with whom he spoke that same-sex

12 spouses are ineligible to enroll in the Program. When Plaintiff DRAGOVICH inquired further,

13 the representative informed him that this restriction was based on federal law.

14

60. Following Plaintiff DRAGOVICH‘s telephone conversation with the Long-Term Care

15 Program representative, his attorney wrote a letter to CalPERS on his behalf, objecting to

16 discrimination by CalPERS on the basis of sexual orientation. CalPERS Assistant Chief

17 Counsel responded with a letter explaining that the Program ―is atax-qualified plan for IRS

18 purposes,‖ under which members may make their contributions to the Program using pre-tax

19 dollars, and benefit payouts are not subject to the federal income tax. Counsel stated that in

20 order to maintain the tax-qualified status of the Program:

21

[The plan must meet certain IRS provisions, including providing enrollment to certain

22

persons such as employees, former employees, their spouses, and others within a specified

relationship. Within this context, the federal Defense of Marriage Act (DOMA) currently

23

recognizes a spouse to mean only a ―person of the opposite sex.‖ The enrollment of a

same-sex spouse into the [Long-Term Care Program]would therefore make the plan non-

24

compliant with IRC provisions based on DOMA and jeopardize the plan‘s tax-qualified

25

status.

26

61. The federal and state rules challenged herein burden the familial relationships of the

27 Plaintiffs, including the ability of the Plaintiff employees to support their families by enrolling

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1 their partners in the long-term care program available to spouses of California public

2 employees, and their rights to equal protection under the law.

3

62. Shortly after Plaintiff DRAGOVICH‘s attorney inquired on his behalf about

4 enrollment of his spouse, CalPERS suspended enrollment for any new enrollees. According to

5 the CalPERS website, enrollment remains closed, despite California law requiring that ―long-

6 term care insurance plans shall be made available periodically during open enrollment periods

7 determined by the board.‖ Cal. Gov‘t Code § 21661(a). Historically, the board has offered

8 open enrollment periods annually, beginning each April. At public meetings, CalPERS has

9 stated that it may hold an open enrollment in 2011.

10

63. Plaintiffs (as well as all others now foreclosed from enrollment) are being adversely

11 affected by the delay in enrollment for the CalPERS program. Applying for long-term health

12 care at a younger age increases the likelihood of qualifying for the coverage and results in lower

13 premiums because premiums are linked to age at enrollment. Already almost two years have

14 passed since Plaintiff DRAGOVICH first tried to enroll his spouse. Moreover, it is important

15 that individuals apply for long-term care insurance when they are in good health because long-

16 term care insurance plans like CalPERS uses underwriting which can prevent people from being

17 approved for coverage.

18

64. It is impossible to predict when Plaintiffs (and others now foreclosed from

19 enrollment) will need long-term care. The U.S. Department of Health and Human Services

20 advises about the importance of planning ahead for long-term care because if ―people first learn

21 about long-term care when they or a loved one need care … their options are often limited by

22 lack of information, the immediate need for services, and insufficient resources to pay for

23 preferred services.‖ U.S. Department of Health and Human Services National Clearinghouse

24 for Long-Term Care Information, available at

25 http://www.longtermcare.gov/LTC/Main_Site/Planning_LTC/Importance/index.aspx.

26 Marriage and Domestic Partnerships in California.

27

65. As a sovereign State of the United States of America, the State of California has

28

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1 exclusively established and ordained the legal requirements for civil marriage and registered

2 domestic partnerships within the State and the status of members of such marriages and

3 partnerships.

4

66. Effective January 1, 2005, and presently, California law allows same-sex couples to

5 enter into domestic partnerships, legally recognized committed relationships with all of the

6 same substantive legal rights, responsibilities, benefits, and protections as civil marriage affords

7 to opposite-sex couples who enter into civil marriages recognized by the State of California.

8 The California statute governing legal recognition of domestic partnerships, California Family

9 Code 297.5, states that ―Rgeistered domestic partners shall have the same rights, protections,

10 and benefits, and shall be subject to the same responsibilities, obligations, and duties under law,

11 whether they derive from statutes, administrative regulations, court rules, government policies,

12 common law, or any other provisions or sources of law, as are granted to and imposed upon

13 spouses.‖ Cal. Fam. Code § 297.5(a).

14

67. However, section (g) of the same statute specifically exempts the federally qualified

15 long term care program from this equality guarantee, stating, ―No public agency in this state

16 may discriminate against any person or couple of the ground that the person is a registered

17 domestic partner rather than a spouse or that the couple are registered domestic partners rather

18 than spouses, except that nothing in this section applies to modify eligibility for long-term care

19 plans pursuant to Chapter 15 (commencing with Section 21660) of Par 3 of Division 5 of Title 2

20 of the Government Code [Public Employees‘ Long-Term Care Act].‖

21

68. Effective June 15, 2008, with the implementation of the California Supreme Court‘s

22 constitutional determination in In re Marriage Cases, 43 Cal. 4th 757 (2008), same-sex couples

23 who otherwise complied with the requirements for obtaining a marriage license in the State of

24 California were entitled to marry under California law.

25

69. Although the California Constitution was modified on November 4, 2008 by the

26 passage of Proposition 8, eliminating the ability of same-sex couples to enter into a legally

27 recognized relationship designated ―marriage,‖ marriages of same-sex couples that occurred

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1 prior to the adoption of Proposition 8—including Plaintiffs‘ marriages—―remain valid in all

2 respects.‖ Strauss v. Horton, 36 Cal. 4th 364, 473-74 (2009).

3

70. Moreover, same-sex couples in California, whether in legally recognized marriages or

4 domestic partnerships, ―possess, under the state constitutional privacy and dues process clauses,

5 ‗the core set of basic substantive legal rights and attributes traditionally associated with

6 marriage,‘ including, ‗most fundamentally, the opportunity of an individual to establish—with

7 the person with whom the individual has chosen to share his or her life—an officially

8 recognized and protected family possessing mutual rights and responsibilities and entitled to the

9 same respect and dignity accorded a union traditionally designated as marriage.‘ Like opposite-

10 sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of

11 constitutional right.‖ Id. at 411.

12

71. Under California constitutional law, the Plaintiff couples must be accorded the same

13 status, responsibilities, and protections as married opposite-sex couples. By failing to offer

14 enrollment equally to the Plaintiffs, the Board is discriminating in violation of California law.

15 Violation of Federal Constitutional Protections.

16

72. The Plaintiff couples are similarly situated to California public employees and their

17 opposite-sex spouses. In excluding same-sex spouses and domestic partners from the vast array

18 of family members permitted to enroll in a qualified long-term care plan, the federal Defendants

19 are violating the Plaintiffs‘ fundamental liberty and privacy interests in marital and familial

20 relationships, and are discriminating against them in violation of the guarantee of equal

21 protection.

22

73. By implementing and conforming to the federal rules, and by excluding same-sex

23 spouses and domestic partners from the list of eligible participants in the Long-Term Care

24 Program, without basis, Defendants Board of Administration and Stausboll are violating

25 Plaintiffs‘ constitutionally protected rights to due process and equal protection.

26

74. The state and federal statutes challenged herein are particularly noxious in that they

27 interfere and conflict with the State of California‘s ability to comply with its own state

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1 constitutional mandates. Here, the California Supreme Court has articulated and affirmed the

2 State‘s strong interest under the California Constitution in according couples in same-sex

3 relationships and their families the same legal responsibilities, benefits, and protections as

4 couples in opposite-sex relationships and their families. In considering the legitimacy of federal

5 governmental interests, federal courts should endeavor to reconcile competing state interests.

6

INJUNCTIVE AND DECLARATORY RELIEF ALLEGATIONS

7

75. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 64 as

8 though fully set forth herein.

9

76. A present and actual controversy exists regarding the respective rights and obligations

10 of Plaintiffs and Defendants. Plaintiffs desire a judicial determination of their rights and

11 Defendants‘ obligations in a declaration as to whether Defendants‘ conduct violates the United

12 States Constitution.

13

77. Such a declaration is necessary and appropriate at this time in order that Plaintiffs may

14 ascertain their rights. Such a declaration is also necessary and appropriate to prevent further

15 harm or infringement of Plaintiffs‘ rights.

16

78. Plaintiffs have no adequate remedy at law and unless the relief requested herein is

17 granted, Plaintiffs will suffer irreparable harm by the deprivation of enrollment in a qualified

18 long-term care plan.

19

FIRST CLAIM FOR RELIEF

20

Violation of Fifth Amendment

Due Process

21

(against Federal Defendants)

22

79. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 78 as

23 though fully set forth herein.

24

80. As United States citizens, Plaintiffs have fundamental liberty and privacy interests in

25 marital and familial relationships protected by the Fifth Amendment to the U.S. Constitution.

26

81. Under federal statute, states are authorized to offer tax-shielded long-term care

27 insurance programs to public employees and a vast array of their family members, including

28

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Case4:10-cv-01564-CW Document95 Filed09/07/11 Page21 of 24

1 their opposite-sex spouses. 26 U.S.C.A. §§ 7702B(f)(1)-(2); 152(d)(2)(A)-(G). Same-sex

2 spouses and domestic partners are excluded. Id.; 1 U.S.C. § 7.

3

82. Plaintiffs‘ marriages and domestic partnerships are valid and legally recognized under

4 California law, and are afforded identical rights, responsibilities, benefits, and protections under

5 California law.

6

83. By burdening the Plaintiffs‘ ability and autonomy to engage in financial and long-term

7 care planning with their lawful spouses and domestic partners, the Defendants are violating the

8 fundamental liberty and privacy interests in marital and familial relationships protected by the

9 due process clause of the Fifth Amendment of the U.S. Constitution.

10

84. As a proximate result of these unlawful acts, the Plaintiffs have suffered and continue

11 to suffer irreparable injury.

12

85. The Plaintiffs are entitled to relief, including declaratory relief and injunctive relief,

13 and attorneys‘ fees and costs.

14

SECOND CLAIM FOR RELIEF Violation of Fifth Amendment

15

Equal Protection

(against Federal Defendants)

16 86. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 85 as if

17 fully set forth herein.

18 87. As United States citizens, the Plaintiffs are entitled to equal consideration and

19 treatment from the federal government, and with respect to each and every program operated by

20 the federal government, including the treatment of qualified long-term care insurance.

21 88. Under federal statute, states are authorized to offer tax-shielded long-term care

22 insurance programs to public employees and a vast array of their family members, including

23 their opposite-sex spouses. 26 U.S.C.A. §§ 7702B(f)(1)-(2); 152(d)(2)(A)-(G). Same-sex

24 spouses and domestic partners are excluded. Id.; 1 U.S.C. § 7.

25 89. Plaintiffs‘ marriages and domestic partnerships are valid and legally recognized under

26 California law, and are afforded identical rights, responsibilities, benefits, and protections under

27 California law.

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1

90. By treating the Plaintiffs differently from similarly situated opposite-sex married

2 couples without basis, the Defendants are violating their right to equal protection secured by the

3 Fifth Amendment of the United States Constitution.

4

91. As a proximate result of these unlawful acts, the Plaintiffs have suffered and continue

5 to suffer irreparable injury.

6

92. The Plaintiffs are entitled to relief, including declaratory relief, injunctive relief, and

7 attorneys‘ fees and costs.

8

THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983

9

For Violation of Due Process Clause of Fourteenth Amendment

(against Defendants Board of Administration and Stausboll)

10 93. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 92 as

11 though fully set forth herein.

12 94. Plaintiffs have fundamental liberty and privacy interests in marital and familial

13 relationships protected against state interference by the due process clause of the Fourteenth

14 Amendment of the U.S. Constitution. Plaintiffs‘ marriages and domestic partnerships are valid

15 and legally recognized under California law.

16 95. By denying Plaintiffs the right to enroll in the CalPERS Long-Term Care Program,

17 and by conforming the plan to the unconstitutional federal standards, Defendants Board of

18 Administration and Stausboll, acting under color of state law, are unconstitutionally burdening

19 Plaintiffs‘ ability and autonomy to engage in financial and health care planning with their

20 legally recognized spouses and domestic partners, in violation of the due process clause of the

21 Fourteenth Amendment.

22 96. As a proximate result of these unlawful acts, the Plaintiffs have suffered and continue

23 to suffer irreparable injury.

24 97. The Plaintiffs are entitled to relief, including declaratory relief, injunctive relief, and

25 attorneys‘ fees and costs.

26 / / /

27

28

Second Amended Complaint for Declaratory and Injunctive Relief

22

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page23 of 24

1

FOURTH CLAIM FOR RELIEF 42 U.S.C. § 1983

2

For Violation of Equal Protection Clause of Fourteenth Amendment

(against Defendants Board of Administration and Stausboll)

3 98. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 97 as

4 though fully set forth herein.

5 99. Plaintiffs have a right of equal protection secured by the Fourteenth Amendment to

6 the Constitution. Plaintiffs‘ marriages and domestic partnerships are valid and legally

7 recognized under California law. The State of California has an interest in treating Plaintiffs in

8 a manner equal to similarly situated state employees and their opposite-sex spouses.

9 100. By denying Plaintiffs the right to enroll in the CalPERS Long-Term Care Program,

10 and by conforming the plan to the unconstitutional federal standards, Defendants Board of

11 Administration and Stausboll, acting under color of state law, are unconstitutionally

12 discriminating against Plaintiffs compared to similarly situated California public employees and

13 their opposite-sex spouses in violation of the Fourteenth Amendment of the United States

14 Constitution.

15 101. As a proximate result of these unlawful acts, the Plaintiffs have suffered and continue

16 to suffer irreparable injury.

17 102. The Plaintiffs are entitled to relief, including declaratory relief, injunctive relief,

18 attorneys‘ fees and costs.

19 PRAYER FOR RELIEF

20 WHEREFORE, Plaintiffs pray that this Court:

21 1. Enter an order declaring that 26 U.S.C.A. §§ 7702B(f)(1)-(2) (cross-referencing

22 152(d)(2)(A)-(G)) is unconstitutional to the extent it excludes same-sex spouses and registered

23 domestic partners from enrollment in qualified long-term care plans;

24 2. Enter an order declaring that Cal. Fam. Code § 297.5(g) is unconstitutional to the

25 extent it excludes same-sex spouses and registered domestic partners from enrollment in the

26 CalPERS Long-Term Care Program;

27 3. Enter an order enjoining Defendant Board of Administration and Defendant Stausboll

28

Second Amended Complaint for Declaratory and Injunctive Relief

23

Case4:10-cv-01564-CW Document95 Filed09/07/11 Page24 of 24

1 from complying with these unconstitutional federal and state laws;

2

4. Enter an order directing the Defendant Board of Administration and Defendant

3 Stausboll to permit the enrollment of the same-sex spouses and registered domestic partners of

4 state employees during future open enrollment periods for its Long-Term Care Plan;

5

5. Enter an order enjoining Defendant United States Department of the Treasury,

6 Defendant Geithner, Defendant Internal Revenue Service, and Defendant Shulman from

7 challenging the tax-shielded ―qualified‖ status of the CalPERS LTC Program;

8

6. Award attorneys‘ fees and costs; and

9

7. Grant any other relief that the Court deems just and proper.

10

11

Respectfully submitted,

12

THE LEGAL AID SOCIETY

13

EMPLOYMENT LAW CENTER

14

15 Date: August 12, 2011
16
17

By:

/s/

Claudia Center

Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

Second Amended Complaint for Declaratory and Injunctive Relief

24

 
 1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

United States District Court For the Northern District of California

4 MICHAEL DRAGOVICH; MICHAEL GAITLEY;

5

ELIZABETH LITTERAL; PATRICIA FITZSIMMONS; CAROLYN LIGHT; and

6

CHERYL LIGHT; on behalf of themselves and all others similarly situated,

7

Plaintiffs,

8

v.

9 UNITED STATES DEPARTMENT OF THE

10

TREASURY; TIMOTHY GEITHNER, in his official capacity as Secretary of the

11

Treasury, United States Department of the Treasury; INTERNAL REVENUE

12

SERVICE; DOUGLAS SHULMAN, in his official capacity as Commissioner of

13

the Internal Revenue Service; BOARD OF ADMINISTRATION OF CALIFORNIA

14

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM; and ANNE STAUSBOLL, in her official

15

capacity as Chief Executive Officer, CalPERS,

16

Defendants.

17

/

No. 10-01564 CW
ORDER DENYING FEDERAL DEFENDANTS’ MOTION TO DISMISS (Docket No. 25)

18

19

Plaintiffs bring a constitutional challenge to section three

20 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and section

21 7702B(f) of the Internal Revenue Code (I.R.C.), 26 U.S.C.

22 § 7702B(f), which interfere with their ability to participate in a

23 state-maintained plan providing long-term care insurance. Long-

24 term care insurance provides coverage when a person needs

25 assistance with basic activities of living due to injury, old age,

26 or severe impairments related to chronic illnesses, such as

27 Alzheimer’s disease. Enacted on August 21, 1996, as part of the

28 Health Insurance Portability and Accountability Act (HIPAA),

1 section 7702B(f) provides favorable federal tax treatment to

2 qualified state-maintained long-term care insurance plans for state

3 employees. 26 U.S.C. § 7702B(f). Section 7702B(f) disqualifies a

4 state-maintained plan from this favorable tax treatment if it

5 provides coverage to individuals other than certain specified

6 relatives of state employees and former employees. § 7702B(f)(2).

7 The provision’s list of eligible relatives does not include

8 registered domestic partners, but does include spouses. 26 U.S.C.

9 § 7702B(f)(2)(C); 26 U.S.C. § 152(d)(2)(A)-(G)). One month later,

10 section three of the DOMA amended the United States Code to define,

United States District Court For the Northern District of California

11 for federal law purposes, the term “spouse” to mean solely “a

12 person of the opposite sex who is a husband or wife,” and

13 “marriage” to mean only “a legal union between one man and one

14 woman as husband and wife.” 1 U.S.C § 7.

15

Plaintiffs are three California public employees and their

16 same-sex spouses, who are in long-term committed relationships

17 legally recognized in California as both marriages and registered

18 domestic partnerships. California Public Employees’ Retirement

19 System (CalPERS) provides retirement and health benefits, including

20 long-term care insurance, to many of the state’s public employees,

21 retirees, and their families. CalPERS has refused to make

22 available its Long-Term Care (LTC) Program to the same-sex spouses

23 of the public employee Plaintiffs.

24

Plaintiffs contend that section three of the DOMA and

25 I.R.C. § 7702B(f) violate the Fifth and Fourteenth Amendment

26

27

28

2

1 guarantees of equal protection and substantive due process.1

2 Plaintiffs have named both Federal and State Defendants. Federal

3 Defendants move to dismiss under Federal Rule of Civil Procedure

4 12(b)(1), on grounds that this Court lacks subject matter

5 jurisdiction because Plaintiffs do not have standing. In addition,

6 Federal Defendants move to dismiss Plaintiffs’ action under Federal

7 Rule of Civil Procedure 12(b)(6) for failure to state claims for

8 violations of equal protection and substantive due process. State

9 Defendants have answered the complaint and do not join the motion

10 to dismiss.

United States District Court For the Northern District of California

11

BACKGROUND

12 I. Facts Alleged in the Complaint

13

On a motion to dismiss under Rule 12(b)(6), the Court must

14 take as true the facts alleged in Plaintiffs’ complaint. The

15 following summarizes the facts alleged.

16

A. Long-term care insurance and the CalPERS LTC Program

17

Pursuant to California law, Defendant CalPERS Board of

18 Administration offers public employees and their families the

19 opportunity to purchase long-term care insurance during periodic

20 open enrollment periods. Cal. Gov’t. Code § 2166(a).

21

Long-term care insurance has advantages which health and

22 disability insurance, Medicare and MediCal generally do not offer.

23 The official guide explaining the CalPERS LTC Program states that

24 1 While the Fourteenth Amendment equal protection guarantee
25 does not directly apply to the United States, courts have interpreted the Fifth Amendment’s Due Process Clause as imposing on
26 the United States the same principles of equal protection established in the Fourteenth Amendment. Adarand Constructors,
27 Inc. v. Pena, 515 U.S. 200, 213-18 (1995).

28

3

1 “Medicare, Medigap and health insurance may cover very limited

2 long-term care,” and such plans “were designed to pay for hospital

3 and doctor care–-not extended, personal care.” Pls.’ Compl. at

4 ¶ 38. The CalPERS guide further warns, “Medi-Cal only pays for

5 long-term care after [an individual has] exhausted most of [his or

6 her] own assets and income.” Id. at ¶ 38. Furthermore, long and

7 short term disability insurance policies generally only “replace

8 lost income due to disability” and “most long-term care is paid

9 directly by individuals and their families.” Id. Accordingly, the

10 insurance offered by the CalPERS LTC Program provides control over

United States District Court For the Northern District of California

11 where and how an individual receives care, allows an individual to

12 preserve assets for other uses, and helps reduce the high financial

13 and emotional cost of long-term care. Id. at ¶ 5. The CalPERS LTC

14 Program, and long-term care insurance in general, are an important

15 option for individuals and families to safeguard their financial

16 and emotional well-being.

17

B. I.R.C. § 7702B

18

As noted above, the United States has provided important tax

19 benefits for long-term care insurance policies. 26 U.S.C. § 7702B.

20 Premiums for qualified long-term care contracts are treated as

21 medical expenses and may be claimed as itemized deductions. 26

22 U.S.C. § 7702B(a)(4); 26 U.S.C. § 213(a), (d)(1)(D), (d)(10).

23 Benefits received under a qualified long-term care insurance

24 contract are excludable from gross income. 26

25 U.S.C. § 7702B(a)(2), (d); 26 U.S.C. § 104(a)(2).

26

Congress enacted these provisions because of the critical role

27 of long term care insurance in protecting families. “The

28

4

1 legislation . . . provides tax deductibility for long term care

2 insurance, making it possible for more Americans to avoid financial

3 difficulty as the result of chronic illness.” 142 Cong. Rec.

4 S3578-01 at *3608 (Statement of Sen. McCain) (Apr. 18, 1996); see

5 also, Joint Committee on Taxation, “Description of Federal Tax

6 Rules and Legislative Background Relating to Long-Term Care

7 Scheduled for a Public Hearing Before the Senate Committee on

8 Finance on March 27, 2001,” at 2001 WL 36044116 (provisions to

9 grant tax advantages for long-term care plans were adopted “to

10 provide an incentive for individuals to take financial

United States District Court For the Northern District of California

11 responsibility for their long-term care needs.”).

12

A state-maintained long-term care insurance program provides

13 its beneficiaries the same favorable federal tax treatment if the

14 program meets the requirements of I.R.C. § 7702B(b) and is offered

15 only to the state’s current and former employees, their spouses,

16 and certain relatives. Id. § 7702B(f). Eligible relatives include

17 children, grandchildren, brothers, sisters, stepbrothers,

18 stepsisters, fathers, mothers, stepfathers, stepmothers,

19 grandparents, nephews, nieces, aunts, uncles, sons-in-law,

20 daughters-in-law, fathers-in-law, mothers-in-law, brothers-in-law,

21 and sisters-in-law. See I.R.C. §§ 7702B(f)(2)(C)(iii);

22 152(d)(2)(A)-(G).

23

Registered domestic partners are not included on the list of

24 eligible relatives, 26 U.S.C. §§ 7702(B)(f)(1)-(2), 152(d)(2)(A)-

25 (G), and because the DOMA’s federal definition of spouse does not

26 include same-sex spouses, 1 U.S.C. § 7, a state cannot allow same-

27 sex couples to participate in its long-term care plan if it wishes

28

5

1 the plan to qualify for favorable tax treatment. The CalPERS LTC

2 Program is a qualified plan under § 7702B and, as such, does not

3 permit same-sex spouses or registered domestic partners of state

4 employees to enroll.

5

In their answer to Plaintiffs’ complaint, California

6 Defendants CalPERS and CalPERS Chief Executive Officer Stausboll

7 state that “they have no choice but to follow federal tax law.”

8 CalPERS Ans. at ¶¶ 10-11.

9

C. Plaintiff Couples and their California Status

10

As noted earlier, Plaintiffs are current California public

United States District Court For the Northern District of California

11 employees--Michael Dragovich, Elizabeth Litteral, and Carolyn

12 Light--and their same-sex spouses. Plaintiffs legally married

13 during the window of time that California allowed civil marriage

14 for same-sex couples, following the state supreme court’s decision

15 in In re Marriage Cases, 43 Cal. 4th 757 (2008) (holding that the

16 denial of the right to marry to same-sex couples violated the state

17 constitution, and that strict scrutiny review applies to laws

18 burdening persons based on sexual orientation). Although

19 Proposition 8 subsequently amended the California Constitution to

20 prohibit civil marriage for same-sex couples, Plaintiffs’ marriages

21 remain valid under California law. Strauss v. Horton, 46 Cal. 4th

22 364, 474 (2009)(“[W]e conclude that Proposition 8 cannot be

23 interpreted to apply retroactively so as to invalidate the

24 marriages of same-sex couples that occurred prior to the adoption

25 of Proposition 8. Those marriages remain valid in all respects.”).

26

In addition to being legally married, Plaintiff couples are

27 registered domestic partners, pursuant to California Family Code

28

6

1 § 297. Since January 1, 2005, California law has provided,

2

Registered domestic partners shall have the same rights,

protections, and benefits, and shall be subject to the

3

same responsibilities, obligations, and duties under

law, whether they derive from statutes, administrative

4

regulations, court rules, government policies, common

law, or any other provisions or sources of law, as are

5

granted to and imposed upon spouses.

6 Cal. Fam. Code § 297.5(a). However, section (g) of the same

7 statute specifically exempts CalPERS’ federally qualified LTC

8 Program from the general requirement that public agencies treat

9 registered domestic partners as spouses. Cal. Fam. Code

10 § 297.5(g).

United States District Court For the Northern District of California

11

Plaintiff couples wish to enroll in the CalPERS LTC Program.

12 Plaintiff Michael Dragovich has purchased long-term care coverage

13 for himself through the CalPERS LTC Program since 1997. In

14 December, 2008, after marrying his long-time partner Michael

15 Gaitley, Dragovich called the program’s toll-free number to request

16 enrollment materials for his spouse. The program representative

17 informed Dragovich that same-sex spouses were ineligible to enroll

18 in the program, and the restriction was based on federal law.

19 Following this telephone call, Dragovich’s attorney wrote a letter

20 to CalPERS on his behalf, objecting to the exclusion by CalPERS

21 based on sexual orientation. The Assistant Chief Counsel for

22 CalPERS responded with a letter explaining that the program “is a

23 tax-qualified plan for IRS purposes” and

24

must meet certain IRS provisions, including providing

enrollment to certain persons such as employees, former

25

employees, their spouses, and others within a specified

relationship. Within this context, the federal Defense

26

of Marriage Act (DOMA) currently recognizes a spouse to

mean only a “person of the opposite sex.” The

27

enrollment of a same-sex spouse into the [LTC Program]

28

7

1

would therefore make the plan non-compliant with IRC

provisions based on DOMA and jeopardize the plan’s tax-

2

qualified status.

3

At the time the lawsuit was filed, Plaintiffs Elizabeth

4 Litteral and Patricia Fitzsimmons had been in a committed

5 relationship for over seventeen years, and were raising a fourteen

6 year old daughter. They registered as domestic partners in 2006,

7 and married legally in 2008. Litteral has been employed with the

8 University of California San Francisco Medical Center since 1995.

9 Plaintiff Litteral has not purchased long-term care coverage

10 through CalPERS, nor has either of them purchased coverage through

United States District Court For the Northern District of California

11 a private insurer. They seek to join the CalPERS Program, because

12 the premiums are lower than those charged by private carriers of

13 individual policies.

14

Plaintiff Carolyn Light became an public employee at the

15 University of California San Francisco Medical Center in 2005. She

16 and Cheryl Light registered as California domestic partners in

17 October, 2006, and legally married in June, 2008. They are

18 planning to have children. They consider long-term care coverage

19 necessary for financial planning as a family though, like

20 Plaintiffs Litteral and Fitzsimmons, they have not purchased any

21 long-term care insurance privately or through CalPERS.

22

CalPERS suspended enrollment in the LTC Program in 2009.

23 California Government Code § 21661(a) requires CalPERS to open

24 enrollment periodically. Historically, CalPERS has opened

25 enrollment annually, beginning each April. CalPERS has stated that

26 it may hold open enrollment in 2011.

27

28

8

1 II. Facts Submitted by Declaration

2

In addition to the facts plead in the complaint, Plaintiffs

3 have submitted declarations providing details about the CalPERS LTC

4 Program, and their intent and efforts to participate in it.

5 Plaintiffs may furnish affidavits or other evidence necessary to

6 satisfy their burden of establishing subject matter jurisdiction.

7 Colwell v. Department of Health and Human Services, 558 F.3d 1112,

8 1121 (9th Cir. 2009). Thus, in considering Federal Defendants’

9 motion to dismiss under Rule 12(b)(1), the Court takes account of

10 these additional facts.

United States District Court For the Northern District of California

11

The CalPERS LTC Program offers a number of advantages over

12 private insurance. A market comparison chart produced by CalPERS

13 indicates that CalPERS’ Program is the lowest cost long-term care

14 insurance plan compared to six other similar policies included in

15 the comparison. Center Dec., Ex. D. The program guarantees that

16 coverage is inflation protected and premiums cannot be increased

17 due to changes in age or health. Id. at Ex. B. Furthermore, only

18 the CalPERS Board of Administration can approve a premium increase.

19 Id.

20

Plaintiffs affirmed their intent and financial ability to

21 participate in the CalPERS LTC Program as soon as they are

22 permitted. Michael Dragovich Dec. ¶¶ 27-28; Carolyn Light Dec.

23 ¶¶ 13-14; Patricia Fitzsimmons Dec. ¶¶ 13-14. Dragovich attested

24 that enrolling his spouse, Gaitley, in a long-term care policy is a

25 necessary step in their financial planning. Dragovich Dec. at ¶ 7.

26 He tried to enroll Gaitley in the CalPERS LTC Program in 2007,

27 prior to their marriage, when he and Gaitley were solely recognized

28

9

1 as registered domestic partners. Dragovich Dec. at ¶ 9. A CalPERS

2 representative informed him then that domestic partners were not

3 eligible for enrollment in the plan. Id. at ¶ 10. As noted above,

4 in 2008, after marrying Gaitley, Dragovich again contacted CalPERS

5 to request an application for the LTC Program. Id. at ¶ 11. After

6 a CalPERS representative informed Dragovich that same-sex spouses

7 were also ineligible due to federal law, he asked the

8 representative to provide him with an application anyway. Id. at

9 ¶ 12-14. Dragovich was told, however, that CalPERS would not

10 furnish a program application for a same-sex spouse. Id. at ¶ 15.

United States District Court For the Northern District of California

11 On March 14, 2009, Dragovich made an additional attempt to secure

12 an application for the LTC Program online through the CalPERS

13 website. Id. at Ex. A. CalPERS responded that applications were

14 not available, but his name would be added to a mailing list for

15 such materials. Though there was no open enrollment period for the

16 LTC Program in 2009, during that year CalPERS made available a

17 special, alternate application process for enrollment. Center

18 Dec., Ex. E. Nonetheless, Dragovich never received an application

19 to enroll his spouse. Dragovich Dec. ¶ 18.

20

By correspondence, and at a public meeting of the CalPERS

21 Board, Plaintiffs’ counsel inquired about the exclusion and

22 prospects for its elimination prior to initiating the lawsuit.

23 Dragovich Dec., Ex. C; Center Dec., Ex. C. CalPERS declined to

24 commit to changing the policy. Dragovich Dec., Ex. D; Center Dec.,

25 Ex. C.

26

As a component of her family’s financial planning, Fitzsimmons

27 has researched the cost and benefits of long-term care plans

28

10

1 offered by several private insurers, and the CalPERS LTC Program,

2 and believes that the CalPERS Program offers a greater value to

3 herself and her spouse, Litteral. Fitzsimmons Dec. at ¶¶ 5-8.

4

Fitzsimmons and Carolyn Light state that they have not applied

5 for long-term care insurance for their spouses through the CalPERS

6 LTC Program, because they understand that same-sex spouses and

7 registered domestic partners are not eligible. Fitzsimmons Dec. at

8 ¶ 9; Carolyn Light Dec. at ¶ 6. Carolyn Light specifically

9 attributed her knowledge about the exclusion to Dragovich, and

10 Dragovich confirmed that he spoke with her about his efforts to

United States District Court For the Northern District of California

11 enroll his spouse in the LTC Program. Id. at ¶ 8; Dragovich Dec.

12 at ¶ 21. Plaintiffs Carolyn Light and Litteral do not explain why

13 they did not purchase long-term insurance for themselves through

14 the CalPERS Program during prior open enrollment periods. Carolyn

15 Light has stated that CalPERS’ refusal to recognize her marriage or

16 registered domestic partnership with Cheryl Light has evidenced

17 disrespect towards her family, and caused her anxiety about her

18 family status. Carolyn Light Dec. at ¶ 10.

19

LEGAL STANDARD

20

Dismissal is appropriate under Rule 12(b)(1) when the

21 district court lacks subject matter jurisdiction over the claim.

22 Fed. R. Civ. P. 12(b)(1). Subject matter jurisdiction is a

23 threshold issue which goes to the power of the court to hear the

24 case. Federal subject matter jurisdiction must exist at the time

25 the action is commenced. Morongo Band of Mission Indians v. Cal.

26 State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). A

27 federal court is presumed to lack subject matter jurisdiction until

28

11

1 the contrary affirmatively appears. Stock W., Inc. v. Confederated

2 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

3

A Rule 12(b)(1) motion may either attack the sufficiency of

4 the pleadings to establish federal jurisdiction, or allege an

5 actual lack of jurisdiction which exists despite the formal

6 sufficiency of the complaint. Thornhill Publ'g Co. v. Gen. Tel. &

7 Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Roberts v.

8 Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). “In support of a

9 motion to dismiss under Rule 12(b)(1), the moving party may submit

10 affidavits or any other evidence properly before the court . . . It

United States District Court For the Northern District of California

11 then becomes necessary for the party opposing the motion to present

12 affidavits or any other evidence necessary to satisfy its burden of

13 establishing that the court, in fact, possesses subject matter

14 jurisdiction.” Colwell, 558 F.3d at 1121 (internal citations

15 omitted); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039

16 n.2 (9th Cir. 2003). The court enjoys broad authority to order

17 discovery, consider extrinsic evidence, and hold evidentiary

18 hearings in order to determine its own jurisdiction. Rosales v.

19 United States, 824 F.2d 799, 803 (9th Cir. 1987).

20

Dismissal under Rule 12(b)(6) for failure to state a claim is

21 appropriate only when the complaint does not give the defendant

22 fair notice of a legally cognizable claim and the grounds on which

23 it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A

24 complaint must contain a "short and plain statement of the claim

25 showing that the pleader is entitled to relief." Fed. R. Civ. P.

26 8(a). In considering whether the complaint is sufficient to

27 state a claim, the court will take all material allegations as true

28

12

1 and construe them in the light most favorable to the plaintiff. NL

2 Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

3 However, this principle is inapplicable to legal conclusions;

4 "threadbare recitals of the elements of a cause of action,

5 supported by mere conclusory statements," are not taken as true.

6 Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009)

7 (citing Twombly, 550 U.S. at 555).

8 I. Subject Matter Jurisdiction–-Standing

9

Federal Defendants move to dismiss Plaintiffs’ complaint for

10 lack of subject matter jurisdiction, arguing that Plaintiffs do not

United States District Court For the Northern District of California

11 have standing to pursue their claims.

12

In Lujan v. Defenders of Wildlife, the Supreme Court explained

13

the irreducible constitutional minimum of standing

contains three elements. First, the plaintiff must

14

have suffered an injury in fact--an invasion of a

legally protected interest which is (a) concrete and

15

particularized, and (b) actual or imminent, not

conjectural or hypothetical. Second, there must be a

16

causal connection between the injury and the conduct

complained of--the injury has to be fairly traceable

17

to the challenged action of the defendant, and not the

result of the independent action of some third party

18

not before the court. Third, it must be likely, as

opposed to merely speculative, that the injury will be

19

redressed by a favorable decision.

20 504 U.S. 555, 560-61 (1992)(internal citations and quotation marks

21 omitted).

22

“Because plaintiffs seek declaratory and injunctive relief

23 only, there is a further requirement that they show a very

24 significant possibility of future harm; it is insufficient for them

25 to demonstrate only a past injury.” Bras v. California Public

26 Utilities Com’n, 59 F.3d 869, 833 (9th Cir. 1995), cert. denied,

27 516 U.S. 1084 (1996).

28

13

1

A. Injury in Fact

2

Federal Defendants assert that Plaintiffs have not adequately

3 demonstrated injury in fact, because they have failed to apply for

4 the LTC Program. “Plaintiffs must demonstrate ‘a personal stake in

5 the outcome’ in order to ‘assure that concrete adverseness which

6 sharpens the presentation of issues’ necessary for the proper

7 resolution of constitutional questions.” City of Los Angeles v.

8 Lyons, 461 U.S. 95, 101-02 (1983) (quoting Baker v. Carr, 369 U.S.

9 186, 204 (1962)).

10

CalPERS refused to furnish an application to Dragovich for

United States District Court For the Northern District of California

11 Gaitley. Carolyn Light learned about the exclusion of same-sex

12 couples through Dragovich. Fitzsimmons also stated that she and

13 her spouse were aware of the policy prohibiting same-sex spouses

14 from enrollment in the LTC Program. CalPERS made the exclusion

15 abundantly clear in its written and oral communications. Moreover,

16 the DOMA and the I.R.C. plainly result in the exclusion of same-sex

17 spouses and registered domestic partners. The Ninth Circuit has

18 consistently held that standing does not require exercises in

19 futility. See, e.g., Aleknagik Natives Ltd. v. Andrus, 648 F.2d

20 496, 499 (9th Cir. 1981); Taniguchi v. Ashcroft, 303 F.3d 950, 957

21 (9th Cir. 2002); see also Black Faculty Ass’n of Mesa College v.

22 San Diego Community College Dist., 664 F.2d 1153, 1156 (9th Cir.

23 1981) (“We recognize that an individual need not always file and

24 perfect an application for a position to have standing . . .”)

25 (internal citation omitted).

26

In a number of cases, courts have found the plaintiffs to have

27 standing in spite of the absence of any formal application under a

28

14

1 challenged program or law. In Taniguchi, the petitioner challenged

2 the constitutionality of a provision that excluded her from a

3 waiver of deportation, though she never actually applied for the

4 waiver. 303 F.3d at 950. The Ninth Circuit held that “the

5 [challenged] statute unambiguously precludes Taniguchi, as [a

6 lawful permanent resident] convicted of an aggravated felony, from

7 the discretionary waiver. To apply for the waiver would have been

8 futile on Taniguchi’s part and, therefore, does not result in a

9 lack of standing.” Id. at 957. Contrary to Federal Defendants’

10 suggestion, the Ninth Circuit did not include in its reasoning that

United States District Court For the Northern District of California

11 the petitioner had already suffered an injury due to her

12 deportation.

13

In Desert Outdoor Advertising, Inc. v. City of Moreno Valley,

14 the plaintiffs challenged a local ordinance that conditioned

15 permits for signs and billboards on compliance with certain

16 requirements. 103 F.3d 814 (9th Cir. 1996). The Ninth Circuit

17 held that the plaintiffs established standing, though they had

18 never applied for a permit for their signs. “Applying for a permit

19 would have been futile because: (1) the City brought state court

20 actions against [the plaintiffs] to compel them to remove their

21 signs; and (2) the ordinance flatly prohibited [the plaintiffs’]

22 off-site signs[.]” Id. at 818.

23

The Ninth Circuit has denied standing where the absence of an

24 application rendered the policy and the legal dispute ambiguous.

25 In Madden v. Boise State University, 976 F.2d 1219 (9th Cir.

26 1992), the plaintiff brought a disability discrimination suit based

27 on a dispute with the University over the availability of free

28

15

1 disabled parking. After the University told him that no free

2 permits for disabled parking were available, the plaintiff filed a

3 complaint with the U.S. Department of Education, Office of Civil

4 Rights. In response to the OCR investigation finding the

5 University’s parking policy out of compliance with federal law, the

6 University voluntarily took remedial measures, installing nine

7 additional disabled parking spaces, three of which were designated

8 free of charge to disabled persons who did not wish to pay the fee

9 for a general disabled parking permit. The plaintiff,

10 nevertheless, sued the University without submitting a formal

United States District Court For the Northern District of California

11 application for a parking permit or otherwise requesting relief

12 from the parking permit fee. As a result, the court was “left

13 somewhat at sea” about the nature of the “real dispute.” Id. at

14 1221. There is no such ambiguity here.

15

Federal Defendants also argue that Plaintiffs lack injury

16 because they failed to seek long-term care insurance elsewhere.

17 The CalPERS LTC Program, however, offers a number of advantages

18 over private policies, including lower rates, inflation protection,

19 and restrictions on premium increases. Furthermore, Federal

20 Defendants mischaracterize the injury as the inability to obtain

21 insurance. The injury is the denial of equal access to the CalPERS

22 LTC Program. “When the government erects a barrier that makes it

23 more difficult for members of one group to obtain a benefit than it

24 is for members of another group . . . [t]he ‘injury in fact’ in an

25 equal protection case of this variety is the denial of equal

26 treatment resulting from the imposition of the barrier, not the

27 ultimate inability to obtain the benefit.” Ne. Fla. Chapter of

28

16

1 Assoc’d Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666

2 (1993); see also Gratz v. Bollinger, 539 U.S. 244, 261-62 (2003).

3

In an equal protection challenge to a purportedly

4 discriminatory program, the Ninth Circuit has applied an “able and

5 ready” standard to determine whether a plaintiff is in a position

6 to compete on an equal basis for a program benefit. Carroll v.

7 Nicotiana, 342 F.3d 934, 941-42 (9th Cir. 2003) (citing Bras v.

8 California Pub. Util. Comm’n., 59 F.3d 869, 873 (9th Cir. 1995)).

9 A plaintiff sufficiently alleges injury when a discriminatory

10 policy has interfered with the plaintiff’s otherwise equal ability

United States District Court For the Northern District of California

11 to compete for the program benefit. In Carroll, a case upon which

12 Federal Defendants rely, the court found that the plaintiff, who

13 alleged discrimination in a state-run business loan program, had

14 done “essentially nothing to demonstrate that he is in a position

15 to compete equally” with other loan applicants. Id. at 942. The

16 plaintiff presented no work history or experience in

17 entrepreneurial endeavors to bolster the bona fides of his business

18 loan application, and failed to respond to the defendant’s request

19 for more information to complete his application. Id. at 942-43.2

20

Unlike Carroll, there is no evidence here that Plaintiffs

21 would be unable to compete on an equal basis for the LTC Program

22 once CalPERS agrees to furnish applications. Dragovich, Carolyn

23

24

2 Carroll also considered an equal protection challenge to a

second program, which leased homesteads. Id. at 943. However, 25 contrary to Federal Defendants’ suggestion, the court did not hold

that the plaintiff was injured only because he had properly 26 submitted an application. No party disputed the existence of an

injury with respect to the homestead program, and the court simply 27 reiterated the district court’s finding.

28

17

1 Light and Fitzsimmons are current public employees. Plaintiffs

2 have attested to their willingness and financial ability to pay the

3 premiums associated with coverage through the CalPERS Program. Id.

4 at 942 (“[T]he intent of the applicant may be relevant to standing

5 in an equal protection challenge.”) (citing Gratz, 539 U.S. at

6 261).

7

Nor is it dispositive that state employee Plaintiffs Carolyn

8 Light and Litteral could have enrolled themselves in the CalPERS

9 LTC Program in earlier years. They have not alleged that the

10 CalPERS has barred them from individual enrollment in the LTC

United States District Court For the Northern District of California

11 Program. Rather, through their spouses’ participation in the LTC

12 Program, they seek equal treatment and greater financial security

13 for themselves and their families.

14

B. Causation

15

Next, Federal Defendants contest the causal connection between

16 Plaintiffs’ injury and the DOMA and I.R.C. § 7702B. Standing

17 requires that the alleged injury “fairly can be traced to the

18 challenged action” and is not the result of an independent action

19 by some third party. Allen v. Wright, 468 U.S. 737, 759 (1984).

20 Federal Defendants contend that Plaintiffs’ harm from lacking long-

21 term care insurance is attributable to Plaintiffs’ failure to

22 purchase the coverage from private insurers. However, again, this

23 argument misunderstands the nature of the injury alleged, namely

24 Plaintiffs’ inability to be considered on an equal basis as other

25 California public employees and their spouses who apply for the

26 CalPERS LTC Program. See Ne. Fla. Chapter of Assoc’d Gen.

27 Contractors, 508 U.S. at 666.

28

18

1

C. Redressability

2

Finally, Federal Defendants argue that Plaintiffs’ alleged

3 injury is not redressable by the relief they have requested. The

4 redressability element of standing is satisfied only where the

5 plaintiff shows “a likelihood that the requested relief will

6 redress the alleged injury.” Steel Co. v. Citizens for a Better

7 Environment, 523 U.S. 83, 103 (1998).

8

Federal Defendants contend that it is not clear that the

9 CalPERS plan would be available to Plaintiffs, even if they

10 prevailed, because enrollment is currently closed. This

United States District Court For the Northern District of California

11 contention, like Federal Defendants’ other arguments, misconstrues

12 the injury Plaintiffs have alleged. Furthermore, CalPERS has

13 opened an alternate, special application process even after

14 suspending open enrollment in the LTC Program. Thus, CalPERS

15 apparently can accept and enroll program participants though open

16 enrollment periods have been suspended. Furthermore, CalPERS must,

17 by law, periodically allow enrollment into its LTC Program. Cal.

18 Govt. Code § 21661(a) (“The long-term care insurance plans shall be

19 made available periodically during open enrollment periods

20 determined by the [CalPERS] board.”). Unless the contested

21 policies are changed, Plaintiffs will not be able to participate in

22 the next open enrollment period.

23

With respect to Plaintiffs’ registered domestic partner

24 status, Federal Defendants make an additional redressability

25 argument that California law independently precludes registered

26 domestic partners from participating in the CalPERS LTC Program.

27 As noted earlier, California Family Code § 297.5(g) exempts the

28

19

1 CalPERS LTC Program from the statute’s prohibition of

2 discriminating against couples and individuals based on their

3 status as registered domestic partners, as opposed to spouses. The

4 statute does not require CalPERS to exclude same-sex spouses or

5 registered domestic partners from its LTC Program; it merely

6 exempts the agency if it does. The provision’s legislative history

7 makes clear that the exception was created to protect the LTC

8 Program’s tax-qualified status under federal law. See Senate

9 Appropriations Committee, Bill Summary, AB 205 (August 21, 2003).

10

Because Plaintiffs have satisfied Article III standing

United States District Court For the Northern District of California

11 requirements, Federal Defendants’ challenge to the Court’s subject

12 matter jurisdiction fails.

13 II. Failure to State a Claim

14

In addition to challenging the Court’s subject matter

15 jurisdiction, Federal Defendants move to dismiss Plaintiffs’ action

16 for failure to state a claim for equal protection and substantive

17 due process.

18

A. Equal Protection

19

Equal protection is “essentially a direction that all persons

20 similarly situated should be treated alike.” City of Cleburne v.

21 Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “[T]he

22 Constitution ‘neither knows nor tolerates classes among citizens.’”

23 Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v.

24 Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The

25 principle embodies a commitment to neutrality where the rights of

26 persons are at stake. Id.

27

Yet courts must balance this mandate with the “practical

28

20

1 necessity that most legislation classifies for one purpose or

2 another, with resulting disadvantage to various groups or persons.”

3 Romer, 517 U.S. at 631. The equal protection guarantee preserves a

4 measure of power for states and the federal government to create

5 laws that classify certain groups. Personnel Administrator of

6 Mass. v. Feeney, 442 U.S. 256, 271-72 (1979). Certain

7 classifications, such as those based on race, are presumptively

8 invalid. Id. at 272. Courts apply heightened scrutiny to laws

9 burdening protected classes, while laws that do not burden a

10 protected class are subject to rational basis review. Romer, 517

United States District Court For the Northern District of California

11 U.S. at 631; Massachusetts Bd. Of Retirement v. Murgia, 427 U.S.

12 307, 312-314 (1976). Under the rational basis test, a law must be

13 rationally related to the furtherance of a legitimate state

14 interest. Romer, 517 U.S. at 631.

15

Because the Court finds that Plaintiffs state a claim under

16 the rational basis standard, the question of whether Plaintiffs are

17 members of a protected class need not be resolved here. Under the

18 rational basis test legislative enactments are accorded a strong

19 presumption of validity. Id. A court may “hypothesize the

20 motivations of the . . . legislature to find a legitimate objective

21 promoted by the provision under attack.” Shaw v. Or. Pub.

22 Employees’ Ret. Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal

23 quotation omitted). “[I]t is entirely irrelevant for

24 constitutional purposes whether the conceived reason for the

25 challenged distinction actually motivated the legislature.” FCC v.

26 Beach Comm., 508 U.S. 307, 313 (1993). On the other hand, the

27 rational basis test is not a “toothless” test. Mathews v. De

28

21

1 Castro, 429 U.S. 181, 185 (1976). “[E]ven in the ordinary equal

2 protection case calling for the most deferential of standards,

3 [courts] insist on knowing the relation between the classification

4 adopted and the object to be attained.” Gill v. Office of

5 Personnel Management, 699 F. Supp. 2d 374, 387 (D. Mass. 2010)

6 (quoting Romer, 517 U.S. at 633).

7

Federal Defendants disavow the governmental interests

8 identified by Congress in passing the DOMA, and instead assert a

9 post-hoc argument that the DOMA advances a legitimate governmental

10 interest in preserving the status quo of the states’ definitions of

United States District Court For the Northern District of California

11 marriage at the time the law was passed in 1996. At that time, no

12 state extended the right to marry to same-sex couples. According

13 to Federal Defendants, preserving the status quo allows states to

14 resolve the issue of same-sex marriage for themselves, and provides

15 uniformity in the federal allocation of marriage-related rights and

16 benefits.

17

Section three of the DOMA, however, alters the status quo

18 because it impairs the states’ authority to define marriage, by

19 robbing states of the power to allow same-sex civil marriages that

20 will be recognized under federal law. Federal Defendants concede

21 that section three of the DOMA effected a departure from the

22 federal government’s prior practice of generally accepting

23 marriages recognized by state law. Federal Defendants’ Mot. to

24 Dismiss at 21. In considering the legislation, Congress recognized

25 the longstanding disposition of the federal government to accept

26 state definitions of civil marriage, noting, “The determination of

27 who may marry in the United States is uniquely a function of state

28

22

1 law.” HR. Rep. 104-664 (House Report) at 2. Thus, section three

2 of the DOMA was a preemptive strike to bar federal legal

3 recognition of same-sex marriages should certain states decide to

4 allow them, rather than a law that furthered the status quo, which

5 gave the states authority to define marriage for themselves. See

6 Commonwealth of Massachusetts v. U.S. Dept. of Health and Human

7 Services, 698 F. Supp. 2d 234, 249 (D. Mass. 2010) (holding that

8 the “DOMA plainly intrudes on a core area of state sovereignty--the

9 ability to define the marital status of its citizens” and violates

10 the Tenth Amendment.)

United States District Court For the Northern District of California

11

Indeed, CalPERS’ exclusion of same-sex spouses from its LTC

12 Program is an example of the restraint on states’ authority to

13 extend legal recognition to same-sex marriages. CalPERS has made

14 clear that its exclusion is an effort to comply with federal

15 requirements for tax benefits. Plaintiffs have adequately stated a

16 claim that there is no relationship between section three of the

17 DOMA and its purported government interest--to maintain the status

18 quo while allowing states to decide the definition of marriage.

19

As noted above, Federal Defendants disavow the actual reasons

20 expressed by Congress for the DOMA. Nonetheless, those reasons–-

21 promoting procreation, encouraging heterosexual marriage,

22 preserving governmental resources, and expressing moral

23 disapproval--likewise would not justify granting Federal

24 Defendants’ motion to dismiss.

25

The DOMA’s definition of marriage does not bear a relationship

26 to encouraging procreation, because marriage has never been

27 contingent on having children. See Lawrence, 539 U.S. at 605

28

23

1 (Scalia, J., dissenting) (observing, “what justification could

2 there possibly be for denying the benefits of marriage to

3 homosexual couples . . . [s]urely not the encouragement of

4 procreation, since the sterile and the elderly are allowed to

5 marry.”); Goodridge v. Dept. of Public Health, 440 Mass. 309, 332

6 (2003) (“While it is certainly true that many, perhaps most,

7 married couples have children together (assisted or unassisted), it

8 is the exclusive and permanent commitment of the marriage partners

9 to one another, not the begetting of children, that is the sine qua

10 non of civil marriage.”). The exclusion of same-sex couples from

United States District Court For the Northern District of California

11 the federal definition of marriage does not encourage heterosexual

12 marriages. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D.

13 Cal. 2010) (“Permitting same-sex couples to marry will not affect

14 the number of opposite-sex couples who marry, divorce, cohabit,

15 have children outside of marriage or otherwise affect the stability

16 of opposite-sex marriages.”). Furthermore, the preservation of

17 resources does not justify barring some arbitrarily chosen group of

18 individuals from a government program. Plyler v. Doe, 457 U.S.

19 202, 229 (1982).

20

Nor does moral condemnation of homosexuality provide the

21 requisite justification for the DOMA’s section three. The “bare

22 desire to harm a politically unpopular group” is not a legitimate

23 state interest. Romer, 517 U.S. at 634-35; City of Cleburne, 473

24 U.S. at 446-47; Dept. of Agriculture v. Moreno, 413 U.S. 528, 534

25 (1973). In Romer the Supreme Court struck down a Colorado law,

26 which it found “made a general announcement that gays and lesbians

27 shall not have any particular protections from the law.” The Court

28

24

1 reasoned that the law “impos[ed] a broad and undifferentiated

2 disability on a single named group,” 517 U.S. at 632, yet was

3 “inexplicable by anything but animus[.]” Id. at 635.

4

The animus toward, and moral rejection of, homosexuality and

5 same-sex relationships are apparent in the Congressional record.

6 The House Report on the pending DOMA bill stated, “Civil laws that

7 permit only heterosexual marriage reflect and honor a collective

8 moral judgment about human sexuality. This judgment entails [a]

9 moral disapproval of homosexuality . . .” H.R. Rep. 104-664, at

10 15-16. The report further adopted the view that “‘[S]ame-sex

United States District Court For the Northern District of California

11 marriage, if sanctified by the law, if approved by the law,

12 legitimates a public union, a legal status that most people . . .

13 feel ought to be illegitimate.’” Id. at 16 (alteration and

14 omission in original).

15

In sum, Plaintiffs have sufficiently stated a claim that

16 section three of the DOMA bears no rational relationship to a

17 legitimate governmental interest. The section does not preserve

18 the status quo of the states’ authority to define marriage because

19 it instead impairs their customary and historic authority in the

20 realm of domestic relations. The Act’s contemporaneous

21 justifications have been found not to constitute legitimate

22 government interests. Because neither Federal Defendants’ current

23 justification, nor the actual contemporaneous reasons, for the

24 exclusion of same-sex couples from the federal definition of

25 marriage can be found as a matter of law to be rationally based on

26 a legitimate government interest, Plaintiffs have asserted a

27 cognizable claim for an equal protection violation.

28

25

1

B. Substantive Due Process

2

In addition to their equal protection claim, Plaintiffs assert

3 that section three of the DOMA and § 7702B of the I.R.C. infringe

4 “their fundamental liberty and privacy interests in marital and

5 familial relationships” in violation of their substantive due

6 process rights. Compl. at ¶ 59.

7

The substantive due process right “provides heightened

8 protection against interference with certain fundamental rights and

9 liberty interests . . .” William v. Glucksberg, 521 U.S. 702, 720

10 (1997) (recognizing “a long line of cases” holding that the Bill of

United States District Court For the Northern District of California

11 Rights protects “the rights to marry, to have children, to direct

12 the education and upbringing of one’s children, to marital privacy,

13 to use contraception, to bodily integrity, and to abortion.”)

14 (internal citations omitted).

15

When the government infringes a “fundamental liberty

16 interest,” the strict scrutiny test applies, and the law will not

17 survive constitutional muster “unless the infringement is narrowly

18 tailored to serve a compelling state interest.” Id. at 721. Where

19 no fundamental right is burdened by a challenged law, the law is

20 scrutinized under the rational basis standard; it must be

21 rationally related to a legitimate government interest. Id. at

22 728; Heller v. Doe, 509 U.S. 312, 319-320 (1993).

23

Courts have invoked substantive due process in striking down

24 laws burdening family life, including household occupancy

25 restrictions, see Moore v. East Cleveland, 431 U.S. 494 (1977), and

26 mandatory maternity leave, Cleveland Bd. of Educ. v. LaFleur, 414

27 U.S. 632, 640 (1974). More recently, decisions by the Supreme

28

26

1 Court and the Ninth Circuit have made clear that government

2 intrusion into a same-sex relationship may violate substantive due

3 process rights, though the precise nature of the liberty interest

4 has not been decided. See Lawrence, 539 U.S. at 578 (holding that

5 same-sex couples have the constitutional right to engage in

6 intimate relationships “without the intervention of the

7 government”); Witt, 527 F.3d at 812 (“We cannot reconcile what the

8 Supreme Court did in Lawrence with the minimal protections afforded

9 by traditional rational basis review.”). Lawrence invalidated laws

10 criminalizing same-sex intimacy, which amounted to a substantial

United States District Court For the Northern District of California

11 government intrusion into same-sex relationships through the threat

12 of criminal prosecution and related stigma. In Witt, the Ninth

13 vacated the district court’s dismissal of the plaintiff’s

14 substantive due process challenge of her discharge under the

15 military’s “Don’t Ask Don’t Tell” policy. The court held that

16 “[w]hen the government attempts to intrude upon the personal and

17 private lives of homosexuals, in a manner that implicates the

18 rights identified in Lawrence,” the law is reviewed with heightened

19 scrutiny. 527 F.3d at 819 (citing Sell v. United States, 539 U.S.

20 166 (2003)). The court remanded the case to the district court for

21 further development of the factual record and application of the

22 heightened scrutiny test it articulated in its decision.

23

Plaintiffs contend that by “burdening [their] ability and

24 autonomy to engage in financial and long-term care planning with

25 [their] lawful spouses and domestic partners, Defendants are

26 violating the fundamental liberty and privacy interests in marital

27 and familial relationships . . .” Compl. at ¶ 70. Federal

28

27

1 Defendants, however, characterize the laws as imposing an

2 incidental economic burden which does not amount to an infringement

3 on any fundamental right. Federal Defendants cite Regan v.

4 Taxation with Representation of Wash., 461 U.S. 540, 549 (1983),

5 where the plaintiffs challenged under the First Amendment the

6 denial of tax exemption to organizations engaged in lobbying. The

7 Court reasoned that “a legislature’s decision not to subsidize the

8 exercise of a fundamental right does not infringe the right, and

9 thus is not subject to strict scrutiny.” Id. at 549. Similarly,

10 the Supreme Court has ruled that the denial of food stamps to

United States District Court For the Northern District of California

11 households with striking workers did not infringe the strikers’

12 right of association, even though denying such benefits made it

13 harder for strikers to maintain themselves and their families.

14 Lyng v. International Union, United Auto, Aerospace and Agr.

15 Implement Workers of America, 485 U.S. 360, 368 (1998).

16

As discussed above in connection with their equal protection

17 claims, Plaintiffs have sufficiently stated a claim that the laws

18 at issue here do not bear a rational relationship to a legitimate

19 governmental interest. Thus, the Court need not address whether a

20 fundamental right or protected liberty interest is burdened.

21 Plaintiffs have stated a cognizable claim for violation of their

22 rights to substantive due process.

23 //

24 //

25 //

26 //

27 //

28

28

1

CONCLUSION

2

Federal Defendants’ motion to dismiss Plaintiffs’ claims for

3 lack of subject matter jurisdiction and for failure to state a

4 claim is denied.

5

Plaintiffs’ class certification motion shall be filed on

6 January 20, 2010, and heard on February 24, 2010.

7

IT IS SO ORDERED.

8

9

United States District Court For the Northern District of California

10 Dated: 1/18/2011 11

CLAUDIA WILKEN United States District Judge

12

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 Case4:10-cv-01564-CW Document112 Filed01/26/12 Page1 of 29

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 MICHAEL DRAGOVICH; MICHAEL GAITLEY; ELIZABETH LITTERAL;
5 PATRICIA FITZSIMMONS; CAROLYN LIGHT; CHERYL LIGHT; DAVID BEERS;
6 CHARLES COLE; RAFAEL V. DOMINGUEZ; and JOSE G.
7 HERMOSILLO, on behalf of themselves and all others
8 similarly situated,

No. C 10-01564 CW
ORDER DENYING FEDERAL DEFENDANTS' MOTION TO DISMISS CERTAIN CLAIMS (Docket No. 97)

9

Plaintiffs,

10

v.

11 UNITED STATES DEPARTMENT OF THE TREASURY, et al.,
12
Defendants. 13 ________________________________/

14

15

Plaintiffs challenge the constitutionality of section three

16 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, and

17 § 7702B(f) of the Internal Revenue Code, 26 U.S.C. § 7702B(f),

18 which limit their participation in a Long-Term Care (LTC)

19 insurance program maintained by the California Public Employees'
20 Retirement System (CalPERS). Plaintiffs contend that these
21 federal provisions violate the Constitution's guarantees of equal
22 protection and substantive due process because they exclude
23
24 legally married same-sex couples and registered domestic partners.

25

Federal Defendants earlier moved unsuccessfully to dismiss

26 Plaintiffs' equal protection and substantive due process challenge

27 to section three of the DOMA, which establishes a federal 28

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page2 of 29

United States District Court For the Northern District of California

1 definition of marriage that excludes legally married same-sex 2 spouses. At that time, Plaintiff couples were all legally married

3 under California law, so the Court did not find it necessary to

4 resolve whether a cognizable constitutional claim had been stated

5 with respect to § 7702B(f)'s exclusion of registered domestic
6 partners as family members eligible to enroll in federally
7 qualified, state-maintained long-term care plans. Nor did the
8 Court specifically address the constitutionality of section three
9
10 of the DOMA with respect to registered domestic partners.

11

Subsequently, however, Plaintiffs filed a Second Amended

12 Complaint adding as Plaintiffs Rafael V. Dominguez and Jose G.

13 Hermosillo, who are not legally married, but are registered as
14 domestic partners in California. In response, Federal Defendants 15
moved to dismiss, pursuant to Federal Rule of Civil Procedure 16
12(b)(6), the claims that § 7702B(f)'s exclusion of California 17 18 registered domestic partners violates equal protection and
19 substantive due process. Federal Defendants state that nothing in

20 their brief should be construed as support for the

21 constitutionality of section three of the DOMA. Thus, Federal

22 Defendants do not appear to move to dismiss the domestic partners'
23 challenge to that law. Having considered all of the parties'
24 submissions and oral argument, the Court denies Federal
25 Defendants' motion to dismiss.
26

27

28

2

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page3 of 29

United States District Court For the Northern District of California

1

BACKGROUND

2

Plaintiffs are California public employees and their same-sex

3 spouses and registered domestic partners, who are in long-term

4 committed relationships recognized and protected under California

5 law. As explained in this Court's previous order, CalPERS

6 provides retirement and health benefits, including long-term care
7 insurance, to many of the state’s public employees and retirees
8
and their families. 9

10

Long-term care insurance provides coverage when a person

11 needs assistance with basic activities of living due to injury,

12 old age, or severe impairments related to chronic illnesses, such

13 as Alzheimer’s disease. Internal Revenue Code § 7702B(f), which
14 was enacted on August 21, 1996, as part of the Health Insurance 15
Portability and Accountability Act (HIPAA), provides favorable 16
federal tax treatment to participants in qualified state17 18 maintained long-term care insurance plans for state employees,
19 such as the CalPERS LTC insurance program. 26 U.S.C. § 7702B(f).

20 Section 7702B(f)(2) disqualifies a state-maintained plan from this

21 favorable tax treatment if it provides coverage to individuals

22 other than those specified under its subparagraph (C). 26 U.S.C.
23 § 7702B(f)(2)(C).
24 The list of eligible individuals in subparagraph (C) of
25 § 7702B(f)(2) includes state employees and former employees, their
26
27 spouses, and individuals bearing a relationship to the employees

28

3

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page4 of 29

United States District Court For the Northern District of California

1 or spouses which is described in any of subparagraphs (A) through 2 (G) of section 152(d)(2). 26 U.S.C. § 7702B(f)(2)(C).

3

Section 152(d)(2), the part of the tax code from which

4 subparagraph (C)(iii) draws its list of eligible relatives,

5 defines the relatives for whom a taxpayer may claim a dependent

6 exemption. See 26 U.S.C. §§ 151-52. Section 152(d)(2) sets forth
7 subparagraphs (A) through (H) to identify the following
8
individuals as "qualifying relatives" for the exemption: 9

10

(A) A child or a descendant of a child.

11

(B) A brother, sister, stepbrother, or stepsister.

12

(C) The father or mother, or an ancestor of either.

13

(D) A stepfather or stepmother.

14

(E) A son or daughter of a brother or sister of the

15

taxpayer.

16

(F) A brother or sister of the father or mother of

the taxpayer. 17

18

(G) A son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law.

19 (H) An individual . . . who, for the taxable year of

20

the taxpayer, has the same principal place of

abode as the taxpayer and is a member of the

21

taxpayer's household.

22 26 U.S.C. § 152(d)(2).

23

When it chose to incorporate subparagraphs (A) through (G),

24 Congress specifically chose not to carry over subparagraph (H) to
25 subparagraph (C)(iii) of § 7702B(f)(2). Had Congress not chosen
26

27 to exclude subparagraph (H) in subparagraph (C)(iii) of

28

4

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United States District Court For the Northern District of California

1 § 7702B(f)(2), registered domestic partners would have been 2 eligible to enroll in the CalPERS LTC program.

3

Instead, CalPERS has refused to make its LTC insurance

4 program available to the registered domestic partners, as well as
5 the same-sex spouses, of the public employee Plaintiffs.
6 Plaintiffs' complaint asserts that Congress violated the
7 Constitution by excluding registered domestic partners as
8 relatives eligible for enrollment in qualified state-maintained
9
10 long-term care insurance plans.

11

In 1996, when Internal Revenue Code § 7702B(f) and the DOMA

12 were passed, registered domestic partnership laws had not been

13 widely adopted. Nonetheless, Congress had discussed registered
14 domestic partnerships prior to and during 1996. In April 1992, 15
the District of Columbia had passed the Health Care Benefits 16
Expansion Act, establishing a domestic partnership registry in 17 18 that jurisdiction. Congress reacted to the District of Columbia's
19 new law by barring any local or federal funding to implement,

20 enforce or administer the registry. District of Columbia

21 Appropriations Act, 1993, Pub. L. No. 102-382, 106 Stat. 1422
22 (1992).1 Representative Clyde Holloway argued, "If there ever was
23 an attack on the family in this country, it is this Domestic
24

25

1 The Health Care Benefits Expansion Act of 1992, D.C. Law 9-

26 114, which established the District of Columbia's domestic

partnership registry, was assigned Act No. 9-188 after its passage 27 by the Council and approval by the Mayor. See D.C. Code § 36-1401

28 (legislative history of law 9-114).

5

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1 Partnership Act . . . To me, this bill totally destroys the 2 families of this country." 138 Cong. Rec. H2950-04, 1992 WL

3 96521, at *H2950. He stated, "I do not think anyone that is

4 homosexual can stand here on this floor and openly tell me that
5 homosexuality is good for the future of America." 138 Cong. Rec.
6 H6120-02, 1992 WL 156371, at *H6129.
7 In arguing against the appropriations ban before the Senate,
8 Senator Brock Adams entered into the Congressional record
9
10 information detailing domestic partnership recognition in numerous

11 jurisdictions, apart from the District of Columbia.2 138 Cong.

12 Rec. S10876-01, 1992 WL 180795, at *S10904.

13

On July 30, 1992, the appropriations bill was amended to

14 include the funding ban, and on October 5, 1992, the District of
15 Columbia Appropriations Act, 1993, became law. Pub L. No. 102-
16

17 382.

18

The ban on funds for the District of Columbia's domestic

19 partnership registry was renewed in subsequent years. In 1993, as

20 part of a successful drive to renew the ban, Representative Ernst

21 Istook argued, "Now, obviously this was passed by the District of 22 Columbia to enable people, more than anything else, who are in a 23

24

2 The record includes mention of Travis County in Texas, Dane

25 County in Wisconsin, the California counties of Alameda, San Mateo and Santa Cruz, the cities of Berkeley, Los Angeles, Oakland,

26 Santa Cruz, San Francisco, West Hollywood, New York, Ithaca,
Cambridge, West Palm Beach, Ann Arbor, East Lansing, Madison, 27 Minneapolis, Seattle, and Tahoma Park, as well as others in which

28 domestic partner organizing efforts were underway.

6

United States District Court For the Northern District of California

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page7 of 29
1 homosexual relationship to register an equivalent of a gay 2 marriage. That is one of the reasons that this particular
3 proposal is abhorrent, in my view." 139 Cong. Rec. H4353-01, 1993
4 WL 236117, at *H4355, *H4358. The District of Columbia 5 Appropriations Act, 1994, included the ban. Pub. L. No. 103-127, 6
107 Stat. 1336 (1993). 7
In 1994, Representative Robert Dornan proclaimed, "From my 8
historical knowledge, this business of domestic partner benefits 9 10 started in Seattle where they were trying to give privileged 11 treatment to lesbian and homosexual partners . . . Let us get rid
12 of this domestic partnership nonsense." 140 Cong. Rec. H5589-02,
13 1994 WL 363727, at *H5601. Again, the funding ban was approved. 14 District of Columbia Appropriations Act, 1995, Pub. L. No. 10315
334, 108 Stat. 2576 (1994). 16
In 1995, opponents of registered domestic partnerships again 17 18 sought to include the ban in the District of Columbia 19 Appropriations Act, 1996. Representative Cliff Stearns asserted
20 that domestic partnership registration laws "undermine the
21 traditional moral values that are the bedrock of this Nation." 22 141 Cong. Rec. H11627-02, 1995 WL 639923, at *H11657. 23
Although the District of Columbia Appropriations Act was 24
never passed during the budget impasse of 1995, in 1996, during 25
the same legislative session in which § 7702B(f) and the DOMA were 26 27 passed, Congress passed continuing appropriations, which included 28 the ban on funding of the registry. Continuing Appropriations,
7

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1 1996, Pub. L. No. 104-90, 110 Stat. 3 (1996). See also, Pub. L. 2 No. 104-92, 110 Stat. 16 (1996). Later that year, Congress passed

3 two appropriations bills that also contained the ban on funding

4 for the registry. Omnibus Consolidated Rescissions and

5 Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321
6 (1996); District of Columbia Appropriations Act, 1997, Pub. L. No.
7 104-194, 110 Stat. 2356 (1996) (captioned "Prohibition on Domestic
8
Partners Act"). 9

10

The record of Congress' consideration of the DOMA, which also

11 occurred in 1996, likewise evidences animosity and moral

12 condemnation of same-sex relationships.3 Gill v. Office of

13 Personnel Mgmt., 699 F. Supp. 2d 374, 378-79 (D. Mass 2010).
14 Indeed, the issue of registered domestic partnerships arose within
15 the context of Congress' consideration of the DOMA. The day
16 17 Senator Nickles introduced the bill to enact the DOMA, he
18 explained that the law was needed to circumvent the recognition of

19 registered domestic partners under federal law. He stated,

20

Another example of why we need a Federal definition of

the terms "marriage" and "spouse" stems from

21

experience during debate on the Family and Medical

22

Leave Act of 1993. Shortly before passage of this act, I attached an amendment that defined "spouse" as "a

23

husband or wife, as the case may be." When the

Secretary of Labor published his proposed regulations,

24

a considerable number of comments were received urging

that the definition of "spouse" be "broadened to

25

include domestic partners in committed relationships,

26 3 The record of animus is detailed in this Court's January
27 18, 2011 order denying Federal Defendants' motion to dismiss 28 Plaintiffs' constitutional challenge to section three of the DOMA.

8

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United States District Court For the Northern District of California

1

including same-sex relationships." When the Secretary issued the final rules he stated that the definition

2

of "spouse" and the legislative history precluded such

a broadening of the definition.

3

142 Cong. Rec. 4851-02, 1996 WL 233584, at *S4869-70. 4

5

A proposed amendment to the bill that became the DOMA would

6 have required the General Accounting Office4 to "undertake a study

7 of the differences in the benefits, rights and privileges

8 available to persons in a marriage and the benefits, rights and
9 privileges available to persons in a domestic partnership 10
resulting from the non-recognition of domestic partnerships as 11
legal unions by State and Federal laws." 142 Cong. Rec. 7480-05, 12 13 1996 WL 392787, at *H7503. Representative Charles Canady stated,
14 in opposition to the amendment, "This motion represents a

15 transparent attempt to give some statutory recognition to domestic

16 partnerships." 142 Cong. Rec. 7480-05, 1996 WL 392787, at *H7504.

17 The amendment to require the study of domestic partnerships was
18 defeated. 142 Cong. Rec. 7480-05, 1996 WL 392787, at *H7505.
19 Congress continued until 2001 to approve annually the ban on
20 the use of local and federal funds to implement the District of
21
22 Columbia's domestic partnership registry. District of Columbia

23 Appropriations Act, 1998, Pub. L. No. 105-100, 111 Stat. 2160

24 (1997); Omnibus Consolidated and Emergency Supplemental

25 Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681
26 (1998); Consolidated Appropriations Act, 2000, Pub. L. No. 106-113 27
4 Now, the Government Accountability Office. 28

9

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1 (1999), District of Columbia Appropriations Act, 2001, Pub. L. 2 No. 106-522, 114 Stat. 2464 (2000). In 1998, Representative Frank

3 Riggs stated, "[W]e as Federal lawmakers have a duty to oppose

4 policies and laws that confer partner benefits or marital status

5 on same-sex couples." 144 Cong. Rec. 7335-03, 1998 WL 454432, at

6 *H7343. Representative Riggs took the position that the registry,
7 if permitted to take effect, would "legitimize same-sex activity."
8
Id. 9

10

Also in 1998, Congress considered the Domestic Partnership

11 Benefits and Obligations Act of 1998, introduced by Senator Paul

12 Wellstone. This Act would have provided benefits to the domestic

13 partners of federal employees. 144 Cong. Rec. S1959-02, 1998 WL
14 109601. In his statement in support of the bill, Senator 15
Wellstone catalogued the number of cities, municipalities, 16
counties, businesses, non-profit organizations and unions that 17 18 offered domestic partnership benefits. 144 Cong. Rec. 731-02,
19 1998 WL 55803, at S733. Senator Wellstone further expressed his

20 disappointment that Congress had yet to offer domestic partnership

21 benefits when such benefits "have already been offered in some

22 cities and by some businesses since 1982 . . ." Id. The bill was
23 not passed.
24 In 2001, Congress authorized a more limited appropriations
25 ban, permitting the use of non-federal funds to institute and
26
27 administer the District of Columbia domestic partnership registry.

28 District of Columbia Appropriations Act, 2002, Pub. L. No. 107-96,

10

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1 115 Stat. 923 (2001). Accordingly, in 2002, the District of 2 Columbia finally implemented its domestic partnership registry.

3 See 49 D.C. Reg. 5419 (June 14, 2002).5

4

Internal Revenue Code § 7702B(f)(2)(C)(iii) was amended in

5 2004 in the Working Families Tax Relief Act, Public Law No. 108-
6 311, 118 Stat. 1166 (2004). Congress did not take that
7
opportunity to change the provision to include registered domestic 8

9 partners. By then, California, New Jersey, Washington and Maine

10 had enacted domestic partnership legislation.

11

LEGAL STANDARD

12

Dismissal under Rule 12(b)(6) for failure to state a claim is

13 appropriate only when the complaint does not give the defendant
14 fair notice of a legally cognizable claim and the grounds on which
15 it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
16
17 A complaint must contain a "short and plain statement of the claim

18 showing that the pleader is entitled to relief." Fed. R. Civ. P.

19 8(a). In considering whether the complaint is sufficient to

20 state a claim, the court will take all material allegations as

21 true and construe them in the light most favorable to the
22 plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
23 1986). However, this principle is inapplicable to legal
24

25

5 In 2010, Congress lifted the ban on federal funding for the

26 District of Columbia's domestic partnership registry. See

Consolidated Appropriations Act, 2010, Public Law 111-117 27 (Division C--Financial Services and General Government

28 Appropriations Act, 2010); H.R. Rep. 111-202, at 7.

11

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United States District Court For the Northern District of California

1 conclusions; "threadbare recitals of the elements of a cause of 2 action, supported by mere conclusory statements," are not taken as

3 true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50

4 (2009) (citing Twombly, 550 U.S. at 555).

5

DISCUSSION

6 I. Equal Protection
7 The doctrine of equal protection exists to ensure the
8
Constitution's promise of equal treatment under the law. Romer v. 9

10 Evans, 517 U.S. 620, 631 (1996). Certain classifications by

11 statute or other government activity, such as classifications

12 based on race, have been found to be suspect. Harris v. McRae,

13 448 U.S. 297, 322 (1980) (noting race as "the principal example"
14 of a "suspect" classification). Where a challenged law burdens a 15
suspect class, courts apply strict scrutiny to determine the 16
constitutional validity of the provision. See Massachusetts Bd. 17 18 of Retirement v. Murgia, 427 U.S. 307, 312 (1976). Such laws are
19 "presumptively invalid and can be upheld only upon an

20 extraordinary justification." Personnel Administrator of Mass. v.

21 Feeney, 442 U.S. 256, 272 (1979). Courts apply an intermediate

22 level of scrutiny to certain other classifications, such as those
23 based upon sex, which "have traditionally been the touchstone for
24 pervasive and often subtle discrimination." Id. at 273. A law
25 that does not burden a protected class is subject to a lower
26
27 standard of review and need only "bear[] a rational relationship

28 to some legitimate end." Romer, 517 U.S. at 631.

12

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United States District Court For the Northern District of California

1

Plaintiffs claim that § 7702B(f) violates registered domestic

2 partners' constitutional right to equal protection on the basis of

3 sexual orientation and gender.

4

Plaintiffs assert, but point to no controlling authority for

5 the proposition, that classifications on the basis of sexual
6 orientation are suspect, akin to racial classifications,
7 triggering judicial scrutiny of the highest order. Federal
8 Defendants agree that the Court should hold that sexual
9
10 orientation is a suspect classification. Letter from Attorney

11 General, Docket No. 64-2. However, in the Ninth Circuit, gays and

12 lesbians have been held not to constitute a suspect or quasi-

13 suspect class. Philips v. Perry, 106 F.3d 1420, 1425 (9th Cir.
14 1997) (citing High Tech Gays v. Defense Indus. Sec. Clearance 15
Office, 895 F.2d 563, 574 (9th Cir. 1990)). In Witt v. Dept. of 16
the Airforce, 527 F.3d 806, 821 (9th Cir. 2008), a Ninth Circuit 17 18 panel held that Lawrence v. Texas, 539 U.S. 558 (2003), did not
19 disturb the application of rational basis review to an equal

20 protection challenge to a federal policy permitting the discharge

21 of service-members on account of homosexual activity. Cf., Witt,

22 527 F.3d at 824-25 (J. Canby's opinion concurring and dissenting
23 in part, arguing that because “Lawrence unequivocally overruled
24 Bowers[v. Hardwick, 478 U.S. 186 (1986)], it ‘undercut the theory
25 [and] reasoning underlying’ High Tech Gays and Philips ‘in such a
26
27 way that the cases are clearly irreconcilable,’ under Miller v.

28 Gammie, 335 F.3d 889, 900 (9th Cir. 2003)”) (alteration in

13

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United States District Court For the Northern District of California

1 original). The Ninth Circuit may, in light of developments in the 2 law, decide to change its ruling on the degree of protection to be

3 provided to gays and lesbians as a class, but unless and until it

4 does, this Court must follow its current holdings.

5

Although the Supreme Court has not established that sexual

6 orientation is a suspect or quasi-suspect class for purposes of
7 the equal protection doctrine, it did hold in Romer that gays and
8
lesbians, as a class, are at least protected from burdensome 9

10 legislation that is the product of sheer anti-gay animus and

11 devoid of any legitimate government purpose. 517 U.S. at 632-35

12 (holding that Colorado's anti-gay ballot measure "defies even

13 [the] conventional inquiry" applied under the rational basis
14 test). In striking down the ballot measure, the Supreme Court 15
reiterated, "If the constitutional conception of equal protection 16
of the laws means anything, it must at the very least mean that a 17 18 bare desire to harm a politically unpopular group cannot
19 constitute a legitimate governmental interest." Id. at 634-35

20 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534

21 (1973)) (internal quotation marks and alterations omitted). See

22 also, Lawrence, 539 U.S. at 577 ("the fact that the governing
23 majority in a State has viewed a particular practice as immoral is
24 not a sufficient reason for upholding a law prohibiting the
25 practice . . .") (quoting Bowers, 478 U.S. at 216 (Stevens, J.,
26
27 dissenting)). Thus, the Supreme Court has held that anti-gay

28

14

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1 animus is not a legitimate governmental interest that may serve to 2 justify legislative enactments burdening gays and lesbians.

3

The Court considers next whether the classification in

4 § 7702B(f) is justified, so as to withstand Plaintiffs’ equal

5 protection challenge. As noted earlier, the rational basis
6 standard applies where a challenged enactment does not burden a
7 protected class. Romer, 517 U.S. at 631.
8 Under the rational basis test, a law that imposes a
9
10 classification must be rationally related to the furtherance of a

11 legitimate state interest. Id. This standard of review accords a

12 strong presumption of validity to legislative enactments. Heller

13 v. Doe, 509 U.S. 312, 319 (1993). "[I]t is entirely irrelevant
14 for constitutional purposes whether the conceived reason for the 15
challenged distinction actually motivated the legislature." FCC 16
v. Beach Comm., 508 U.S. 307, 313 (1993). On the other hand, the 17 18 rational basis test is not "toothless." Mathews v. De Castro, 429
19 U.S. 181, 185 (1976). "[E]ven in the ordinary equal protection

20 case calling for the most deferential of standards, [courts]

21 insist on knowing the relation between the classification adopted

22 and the object to be attained." Gill, 699 F. Supp. 2d at 387
23 (quoting Romer, 517 U.S. at 633).
24 Plaintiffs contend that there is no fairly conceivable
25 rational relationship between a legitimate government interest and
26
27 the exclusion of registered domestic partners from subparagraph

28 (C)(iii) of § 7702B(f). Instead, they posit that the enactment

15

United States District Court For the Northern District of California

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1 was based upon animus. As noted earlier, the Supreme Court has 2 held that anti-gay animus is not a legitimate governmental
3 interest that may serve to justify legislative enactments
4 burdening gays and lesbians. See Lawrence, 539 U.S. at 577; 5 Romer, 517 U.S. at 634-35. 6
Federal Defendants take the position that § 7702B(f)'s non7
inclusion of registered domestic partners is not based on sexual 8
orientation. First, Federal Defendants contend that excluding 9 10 registered domestic partnerships is not a proxy for sexual11 orientation-based discrimination because many states permit
12 heterosexual couples to register as domestic partners. This
13 argument is not persuasive. In this state and many others, 14 registered domestic partnership is currently the only available 15
legal status that provides a complement of established rights and 16
obligations for same-sex couples seeking legal recognition of 17 18 their relationships. That California permits different-sex 19 couples, in which one or both persons are age sixty-two or older,
20 to choose registered domestic partnership over marriage does not
21 diminish the plain reality that same-sex couples are relegated to 22 registered domestic partnerships because legal marriage is 23
prohibited for them. The availability of registered domestic 24
partnership to different-sex couples does not negate the burdens 25
faced by same-sex registered domestic partners. The laws limiting 26 27 same-sex couples to registered domestic partnerships, while 28 precluding them from marriage, turn on sexual orientation.
16

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United States District Court For the Northern District of California

1

Federal Defendants also argue that the varying scope of

2 privileges afforded by different state registered domestic

3 partnership laws means that the legal relationship is not a proxy

4 for classification based on sexual orientation. This argument is

5 also unavailing. The number or type of privileges is irrelevant
6 when registered domestic partnerships provide the only
7 relationship rights available to same-sex couples.
8 Federal Defendants also assert that Plaintiffs cannot show
9
10 animus because the legislative history of § 7702B(f) is devoid of

11 any statement suggesting a purpose to discriminate against same-

12 sex domestic partners. Neither party points to legislative

13 history for § 7702B(f) illuminating the reasons why Congress chose

14 the eligible relatives contained in subparagraph (C)(iii).
15 Federal Defendants posit that an impermissible purpose for the
16 exclusion of registered domestic partners is not reasonably
17
18 inferred because no state recognized such relationships in 1996.

19

However, the history delineated above demonstrates that when

20 § 7702B(f) was adopted in 1996, Congress was aware that a number

21 of localities and entities across the country had recognized and

22 protected same-sex couples by offering registered domestic
23 partnerships. Indeed, in 1996, the District of Columbia would
24 have had a domestic partnership registry, but for Congress'
25 decision to ban all appropriations to implement, enforce or
26
27 administer the registry. Antipathy towards same-sex relationships

28 infused successful efforts to block implementation of the

17

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Case4:10-cv-01564-CW Document112 Filed01/26/12 Page18 of 29
1 registered domestic partnership law in the District from 1992 to 2 2001, which included the year that § 7702B(f) was enacted. The
3 statements reflecting moral condemnation of gays and lesbians in
4 the course of these deliberations support an inference that the 5 exclusion of domestic partners from the list of family members 6
eligible to enroll in federally qualified, state-maintained long7
term care plans was motivated by animus. 8
Facts beyond the legislative record pertaining directly to 9 10 § 7702B(f) are relevant. This includes the legislative history of 11 provisions that Congress considered contemporaneously with the
12 passage of § 7702B(f). Congress' decision to omit a provision
13 specifically reaching registered domestic partners, concurrently 14 with its denial of funding for the District of Columbia's domestic 15
partnership registry and its enactment of a federal definition of 16
marriage limited to heterosexual married couples, along with its 17 18 record of animosity towards gays and lesbians, may serve as 19 evidence of animus. See Arlington Heights, 429 U.S. at 267
20 (stating, in the context of a race-based, disparate impact claim,
21 that the "historical background of the decision" and the "specific 22 sequence of events leading up to the challenged decision" may shed 23
light on the decisionmaker's purposes). 24
Even after the District of Columbia implemented its domestic 25
partnership registry and other states adopted their own, Congress, 26 27 through the Working Families Tax Relief Act of 2004, enacted an 28 amended version of § 7702B(f) without adding registered domestic
18

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1 partners or otherwise allowing states to enroll family members who 2 were not expressly identified in subparagraph (C)(iii). Federal

3 Defendants attempt to diminish the legislation as a "technical

4 amendment," but the Act established substantive law that, among

5 other things, provided relief from the "marriage penalty" in
6 certain tax brackets and repealed scheduled reductions in the
7 child tax credit. Pub. L. No. 108-311.
8 Next, Federal Defendants assert that § 7702B(f) does not
9
10 impermissibly discriminate against same-sex registered domestic

11 partners because other relatives, such as cousins, and individuals

12 who share a close, dependent, family-like relationship are omitted

13 for reasons unrelated to sexual orientation. However, the
14 relevant comparison is between § 7702B(f)’s treatment of 15
registered domestic partners and its treatment of spouses. 16
Congress' record indicates that it saw registered domestic 17 18 partnership as a marriage-like status. The omission of distant
19 relatives and other household members from the list of family

20 members eligible for enrollment does not preclude a finding that

21 § 7702B(f) imposes a discriminatory classification.

22

Federal Defendants contend that there is a rational basis for

23 § 7702B(f)'s exclusion of domestic partners because the limitation
24 allows for the evolution of state domestic partnership laws. This
25
argument is not persuasive. Section 7702B(f) provides favorable 26

27 federal tax treatment for long-term care plans maintained and

28 administered by states. The provision does not have any bearing

19

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United States District Court For the Northern District of California

1 on how state domestic partnership laws evolve, one way or another. 2 By allowing federally qualified, state-maintained long-term care

3 plans to enroll only certain categories of family members,

4 § 7702B(f) simply withholds favorable tax treatment to domestic

5 partners that a state otherwise recognizes.
6 Federal Defendants contend that it was rational to decline to
7 carry over subparagraph (H) of § 152(d)(2) to subparagraph
8 (C)(iii) of § 7702B(f)(2), because (A) through (G) would reach an
9
10 adequate number of family members. Federal Defendants assert that

11 the list of relatives identified in section 152(d)(2)(A)-(G)

12 reasonably served the policy goal of encouraging individuals to

13 participate in a state long-term care insurance plan, and
14 ineligible family members, including registered domestic partners, 15
could secure long-term care insurance from other sources. The 16
fact that these private plans would enjoy the same tax benefits 17 18 under § 7702B(f) as state-maintained plans does not explain the
19 decision to exclude a particular group of family members from

20 state-maintained plans.

21

Federal Defendants assert that the eligibility limitation

22 could be justified as a rational effort to assure that the
23 eligibility of individuals seeking enrollment in a state-
24 maintained plan could be easily verified. According to Federal
25 Defendants, the catch-all provision of subparagraph (H), which
26
27 includes an individual living with the taxpayer as a member of the

28 household during a given tax year, describes a relationship that

20

United States District Court For the Northern District of California

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page21 of 29
1 may change from year to year. This justification, however, cannot 2 be credited because the eligibility of spouses, step-relatives and
3 relatives-in-law, which depends on the existence of a marital
4 relationship, may likewise change from one year to the next. 5 Marital relationships lack any minimum time commitment. Thus, the 6
exclusion of subparagraph (H) does not rationally relate to 7
efforts to ease administration of state-maintained long-term care 8
plans. See Moreno, 413 U.S. at 537-38 (holding that a provision 9 10 that limited eligibility for food stamps to households with 11 "related" rather than "non-related" individuals was not rationally
12 connected to efforts to curb abuse of the program). The Ninth
13 Circuit recently declined to credit the argument that a state law 14 eliminating health care benefits for domestic partners served the 15
interest of easing administrative burdens where the challenged law 16
amounted to "the selective application of legislation to a small 17 18 group." Diaz v. Brewer, 656 F.3d 1008, 1014 (9th Cir. 2011) 19 (affirming, in the context of a motion for preliminary injunction,
20 the district court's finding that the plaintiff same-sex domestic
21 partners were likely to succeed on their equal protection claim 22 under the rational basis test). 23
Federal Defendants' argument that the list of eligible family 24
members was adequate to further the policy goals of § 7702B(f) 25
suggests that the enactment was a rational decision to limit the 26 27 subsidy provided by the law. It is conceivable that an 28 incremental amount of tax revenue might be gained by not including
21

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1 registered domestic partners in subparagraph (C)(iii) of 2 § 7702B(f)(2). However, in light of the reasoning in Plyler v.
3 Doe, 457 U.S. 202, 227 (1982), and Rinaldi v. Yeager, 384 U.S.
4 305, 308-09 (1966), a law cannot satisfy the rational basis 5 standard of review based on a mere cost-saving rationale. 6
In Plyler, the Supreme Court considered the constitutionality 7
of a state statute that withheld state funds for the education of 8
undocumented children and authorized local school districts to 9 10 deny enrollment in their public schools to children not “legally 11 admitted” to the country. The Court held that undocumented
12 persons did not constitute a suspect class and the right to
13 education did not comprise a fundamental liberty interest. Id. at 14 223. Accordingly, the Court declined to apply the strict scrutiny 15
standard of review to the statute, and instead considered whether 16
the statute rationally furthered some substantial state interest. 17 18 Id. at 224. To the state's assertion that the challenged law 19 furthered the “preservation of the state’s limited resources for
20 the education of its lawful residents,” the Court responded that
21 “a concern for the preservation of resources standing alone can 22 hardly justify the classification used in allocating those 23
resources . . . [The state] must do more than justify its 24
classification with a concise expression of an intention to 25
discriminate." Id. at 227 (internal citation omitted). The 26 27 exclusion of the particular group, even if the group does not 28 constitute a protected class, must be justified. Id. at 229
22

United States District Court For the Northern District of California

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page23 of 29
1 (“[T]he State must support its selection of this group as the 2 appropriate target for exclusion.”) (emphasis in original).
3 Because the Court did not discern a conceivable, sufficient
4 justification for excluding undocumented children, it invalidated 5 the law. 6
Similarly, in Rinaldi, 384 U.S. at 308-09, the Court stated 7
that equal protection "imposes a requirement of some rationality 8
in the nature of the class singled out." There the Court struck 9 10 down, on equal protection grounds, a state statute that required 11 indigent prisoners to reimburse the cost of a transcript in the
12 event of an unsuccessful appeal, but did not impose the same
13 obligation on indigents who received a suspended sentence, were 14 placed on probation or were fined. The Court assumed that 15
replenishing a county treasury by seeking reimbursement from those 16
who had directly benefited from its expenditures could serve as a 17 18 legitimate basis for enacting the law. Id. at 309. However, in 19 applying the rational basis test, the Court noted that the law
20 "fasten[ed] a financial burden only upon those unsuccessful
21 appellants who are confined in state institutions," while those 22 appellants who had been given a lesser sanction had received the 23
same benefit from the county--a transcript used in an unsuccessful 24
appeal. Id. The factor distinguishing the groups was the nature 25
of the penalty attached to the offense committed. The Court found 26 27 the distinction arbitrary because it did not bear "some relevance 28 to the purpose for which the classification [was] made." Id.
23

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page24 of 29

United States District Court For the Northern District of California

1

Under the reasoning in Plyler and Rinaldi, Federal Defendants

2 must show that justifying the exclusion of registered domestic

3 partners for the purpose of meeting federal fiscal objectives did

4 not single out same-sex couples for arbitrary or impermissible

5 reasons. Here, as noted above, the distinction between spouses
6 and registered domestic partners turns on sexual orientation, a
7 factor that bears no relevance to the purpose for which § 7702B(f)
8 was enacted, that is, to incentivize the purchase of long-term
9
10 care insurance to improve the financial security of families

11 throughout the country. Moreover, the Ninth Circuit in Diaz

12 indicated that the cost-saving rationale may not succeed where the

13 amount of savings rendered by excluding same-sex domestic partners
14 is minimal. 656 F.3d at 1012-14 (noting evidence that the state 15
spent a minimal amount on domestic partners' benefits). It bears 16
repeating that Plaintiffs have provided legislative history 17 18 indicating that the distinction was actually motivated by anti-gay
19 animus.

20

In sum, Federal Defendants have failed to show a plausible,

21 legitimate rationale for excluding registered domestic partners

22 from § 7702B(f)(2)(C)(iii)'s list of eligible family members, and
23 the Court can think of none. Plaintiffs have pointed to a record
24 of animus that could explain the exclusion. None of the cases
25 upon which Federal Defendants rely establishes that the rational
26
27 basis test is satisfied where a challenged provision serves no

28 legitimate government interest and the enactment is tainted by

24

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page25 of 29

United States District Court For the Northern District of California

1 animus against a politically unpopular group. Therefore, 2 Plaintiffs' allegations on behalf of registered domestic partners

3 are sufficient to state an equal protection claim under the

4 rational basis test.

5

On the other hand, the sex discrimination basis of

6 Plaintiffs' equal protection claim fails because the allegations
7 do not evidence purposeful invidious discrimination on the basis
8
of sex. Feeney, 442 U.S. at 274. The Congressional record cited 9

10 by Plaintiffs demonstrates animus directed towards same-sex

11 couples, not men or women. Plaintiffs have not demonstrated how

12 their allegations, if proven, would establish an equal protection

13 violation based on sex discrimination.
14 II. Substantive Due Process 15
Arguing that family autonomy and decisionmaking are protected 16
liberty interests, Plaintiffs claim that § 7702B(f) violates their 17 18 substantive due process rights by penalizing their exercise of
19 such rights without a permissible basis. Under the doctrine of

20 substantive due process, when the government infringes a

21 "fundamental liberty interest," the strict scrutiny test applies,

22 and the law will not survive constitutional muster "unless the
23 infringement is narrowly tailored to serve a compelling state
24 interest." William v. Glucksberg, 521 U.S. 702, 721 (1997).
25 Assuming that family autonomy and decisionmaking do amount to a
26
27 constitutionally protected, fundamental right, § 7702B(f) creates

28 no more than an incidental economic burden on those interests.

25

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page26 of 29

United States District Court For the Northern District of California

1 Accordingly, the law does not trigger strict judicial scrutiny. 2 See Lyng v. Auto Workers, 485 U.S. 360, 370 (1988) ("Because the

3 statute challenged here has no substantial impact on any

4 fundamental interest . . . we confine our consideration to whether

5 the statutory classification 'is rationally related to a
6 legitimate governmental interest.'").
7 In Lyng, the challenged provision prevented a family that was
8 already on food stamps from receiving an increased allotment if a
9
10 family member stopped working due to a strike. The provision also

11 barred families from becoming eligible for food stamps if their

12 eligibility arose because a household member stopped working as

13 part of a labor strike. The Court found that the law did not
14 interfere with familial living arrangements because it was 15
"exceedingly unlikely" that the restriction would prevent a family 16
from "dining together" or compel a striking member to leave the 17 18 household in order to increase the household allotment of food
19 stamps. Id. at 365. The Court reasoned that the law did not

20 "directly and substantially" interfere with family living

21 arrangements. Id. at 365-66.

22

In Regan v. Taxation with Representation of Washington, 461

23 U.S. 540, 549 (1983), the plaintiff challenged a tax provision
24 that contributions to lobbying efforts were not tax deductible,
25
while charitable contributions were. The Court held that the 26

27 legislature is not required to subsidize the exercise of a

28 fundamental right. The Court cited cases upholding the denial of

26

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page27 of 29

United States District Court For the Northern District of California

1 subsidies for candidates in certain public elections, and the 2 denial of subsidies to pay for abortions. Id. Accordingly, the

3 Court declined to subject the provision to strict scrutiny review.

4

Plaintiffs rely on Cleveland Board of Education v. La Fleur,

5 414 U.S. 632, 639 (1974), which invalidated, on substantive due
6 process grounds, an employer's policy which set arbitrary cutoff
7 dates for when pregnant teachers were required to take leave and
8 could return to work. The Court found that the mandatory leave
9
10 policy penalized pregnant teachers for their decisions related to

11 family creation, namely the decision to bear a child. Id. at 648.

12 However, La Fleur is less analogous to the present claim than

13 Regan and Lyng because the law challenged in La Fleur was a more
14 significant intrusion, in that the pregnant teachers could not 15
work during the mandatory leave period. 16
Likewise, Speiser v. Randall, 357 U.S. 513 (1958), is 17 18 inapposite. There the Court struck down a law requiring persons
19 who sought to take advantage of a property tax exemption to sign a

20 declaration stating that they did not advocate the forcible

21 overthrow of the Government of the United States. The Speiser

22 Court stated, "To deny an exemption to claimants who engage in
23 speech is in effect to penalize them for the same speech." Id. at
24 518. The Court reasoned that the challenged law necessarily had
25 "the effect of coercing the claimants to refrain from the
26
27 proscribed speech." Id. at 519. Here, however, Plaintiffs cannot

28

27

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page28 of 29

United States District Court For the Northern District of California

1 plausibly allege that § 7702B(f) has coerced same-sex couples to 2 forgo engaging in same-sex relationships.

3

Lyng and Regan preclude the application of strict scrutiny in

4 deciding the domestic partner Plaintiffs' substantive due process

5 claim. However, where strict scrutiny does not apply, courts
6 weigh a substantive due process challenge under the rational basis
7 standard. See Glucksberg, 521 U.S. at 728 (applying the rational
8 basis test to a law banning assisted-suicide because it was held
9
10 not to infringe on a fundamental liberty interest protected by the

11 Due Process Clause). For the reasons explained earlier in the

12 Court's equal protection analysis, Plaintiffs have alleged

13 sufficiently that the exclusion of registered domestic partners
14 from subparagraph (C)(iii) of § 7702B(f)(2) fails constitutional 15
standards, even under the rational basis test. Accordingly, 16
Federal Defendants' motion to dismiss Plaintiffs' substantive due 17 18 process claim on behalf of registered domestic partners is denied.
19 //

20 //

21 //

22 //
23 //
24 //
25 //
26
27 //

28

28

Case4:10-cv-01564-CW Document112 Filed01/26/12 Page29 of 29

United States District Court For the Northern District of California

1

CONCLUSION

2

Plaintiffs have stated a viable constitutional challenge to

3 § 7702B(f) under the doctrines of equal protection and substantive

4 due process. Thus, Federal Defendants' motion to dismiss the

5 first and second claim in Plaintiffs' Second Amended Complaint to
6 the extent they are brought by registered domestic partners is
7 DENIED.
8
IT IS SO ORDERED. 9

10

11 Dated: 1/26/2012 12

CLAUDIA WILKEN United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

 
 Case4:10-cv-01564-CW Document64 Filed02/25/11 Page1 of 2

1 TONY WEST Assistant Attorney General
2 ARTHUR R. GOLDBERG (DC Bar No. 180661)
3 Assistant Branch Director

4 JEAN LIN (NY Bar No. 4074530) Senior Counsel
5 United States Department of Justice Civil Division
6 Federal Programs Branch 20 Massachusetts Ave., N.W.
7 Washington, DC 20530 (202) 514-3716
8 (202) 616-8470 (Fax) jean.lin@usdoj.gov
9 Attorneys for Federal Defendants
10

11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

OAKLAND DIVISION

13

)

14

MICHAEL DRAGOVICH, MICHAEL GAITLEY, ELIZABETH LITTERAL,

) )

15

PATRICIA FITZSIMMONS, CAROLYN ) LIGHT, and CHERYL LIGHT, on behalf )

16

of themselves and all others similarly situated,

) )

17

)

Plaintiffs,

)

18

)

vs.

)

19 UNITED STATES DEPARTMENT OF

) )

20

THE TREASURY, TIMOTHY GEITHNER, in his official capacity as

) )

21

Secretary of the Treasury, United States Department of the Treasury, INTERNAL

) )

22

REVENUE SERVICE, DOUGLAS SHULMAN, in his official capacity as

) )

23

Commissioner of the Internal Revenue Service, BOARD OF

) )

24

ADMINISTRATION OF CALIFORNIA ) PUBLIC EMPLOYEES’ RETIREMENT )

25

SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive

) )

26 Officer, CalPERS,

) )

27

Defendants.

)

)

28

No. 4:10-CV-01564-CW
NOTICE TO THE COURT BY FEDERAL DEFENDANTS

Notice to the Court by Federal Defendants No. 4:10-CV-01564-CW

Case4:10-cv-01564-CW Document64 Filed02/25/11 Page2 of 2

1

Defendants United States Department of the Treasury, Secretary Timothy Geithner,

2 Internal Revenue Service, and Commissioner Douglas Shulman (“Federal Defendants”), by its

3 undersigned counsel, hereby notify the Court and the parties that the Department of Justice will

4 cease defending the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7,

5 for the reasons explained in the attached letter to the Court from Tony West, Assistant Attorney

6 General for the Civil Division, dated February 24, 2011. The reasons cited in Assistant Attorney

7 General West’s letter are further explained in the letter from the Attorney General to The

8 Honorable John A. Boehner, Speaker of the House, dated February 23, 2011, which is attached

9 thereto. The Attorney General has informed Members of Congress of this decision pursuant to

10 28 U.S.C. § 530D(a)(1)(B)(ii), so that Members who wish to defend Section 3 may pursue that

11 option.

12 Date: February 25, 2011
13
14

Respectfully Submitted,
TONY WEST Assistant Attorney General

15

ARTHUR R. GOLDBERG

Assistant Branch Director

16

/s/ Jean Lin

17

JEAN LIN

Senior Counsel

18

U.S. Department of Justice, Civil Division

Federal Programs Branch

19

Attorneys for Federal Defendants

20

21

22

23

24

25

26

27

28

Notice to the Court by Federal Defendants

No. 4:10-CV-01564-CW

2

Case4:10-cv-01564-CW Document6U4.-S1. DFeipleadr0tm2/e2n5t/1of1JuPstaicgee1 of 1 Civil Division

A:;sislallf Attorney General

\Vu.1hiii!{IOI!. D.C. 20530

VIAECF

February 24, 2011

Honorable Claudia Wilken United States District Judge United States District Court for the
Northern District of California Oakland Courthouse 1301 Clay Street Oakland, CA 94612
Re: Dragovich v. Dep't ofthe Treasury, eta!, Civil Action No. 4:10-01564-CW
Dear Judge Wilken:
The above-referenced action involves, among other issues, the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), I U.S.C. § 7. The President and Attorney General have recently made a determination regarding the constitutionality of Section 3. Pursuant to the attached letter, the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law; and that tbe Department will cease its defense of Section 3 in such cases.
Further, as the Attorney General explained in the attached letter, we hereby "notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases." In addition, we "will remain parties to the case and continue to represent the interests of the United States throughout the litigation."
Respectfully submitted,

Assistant Attorney General

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page1 of 6
~ffice of t4t 1\ttorntt! ~eneral
m. Bas~ingtnn. Ql. 205:30
February 23, 2011
The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515
Re: Defense of Marriage Act Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 ofthe Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, 1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense ofthis provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 ofDOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form ofheightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications
1 DOMA Section 3 states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page2 of 6
based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.2
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587,602-03 (1987); City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have "demean[ed] the[] existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).3
2 See, e.g., Dragovich v. U.S. Department ofthe Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011 ); Gill v. Office ofPersonnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County ofOrange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009). 3 While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200,216 (1995)(classifications based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515,531 (1996) (observing that '"our Nation has had a long and unfortunate history of sex discrimination'" and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics "beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the group at issue); Boy Scouts ofAmerica v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions about homosexuals 'have ancient roots."' (quoting Bowers, 478 U.S. at 192)).
2

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page3 of 6
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of2010, Pub. L. No. 111321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 51 7 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And. while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.")
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).4 Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. 5 And none
4 See Equality Foundation v. City ofCincinnati, 54 F.3d 26I, 266-67 & n. 2. (6th Cir. I995); Steffan v. Perry, 4I F.3d 677, 685 (D.C. Cir. I994); Woodward v. United States, 871 F.2d I068, I076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 88I F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, I03 (D.C. Cir. I987).
5See, e.g, Lofton v. Secretary ofthe Dep't ofChildren & Family Servs., 358 F.3d 804, 818 (lith Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the
3

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page4 of 6
engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.6 But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia, 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." !d. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.7 See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or
argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No. I04-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. 6 See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation ofGreater Cincinnati, Inc. v. City ofCincinnati, 128 F.3d 289,292-94 (6th Cir. 1997).
7 See, e.g., H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality"); id. at 16 (same-sex marriage "legitimates a public union, a legal status that most people ... feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is immoral"); id. at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality"); id. (reasons behind heterosexual marriage-procreation and child-rearing-are "in accord with nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowers that an "anti-sodomy law served the rational purpose of expressing the presumed belief ... that homosexual sodomy is immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that "[t]his Court has no business ... pronouncing that 'animosity' toward homosexuality is evil").
4

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page5 of 6
fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married samesex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of
5

Case4:10-cv-01564-CW Document64-2 Filed02/25/11 Page6 of 6
DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position ofthe United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard. Our attorneys will also notifY the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr. Attorney General
6

 
 Case:C1a2s-e146:61208-cv-01105/2684/-2C0W13 DocuImDe: n8t81348748F3iledD1k0t/E28n/t1ry3: 2P1ageP1aogfe2: 1 of 2
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

OCT 28 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MICHAEL DRAGOVICH; et al.,
Plaintiffs - Appellees,
v.
UNITED STATES DEPARTMENT OF THE TREASURY; et al.,
Defendants - Appellants,
and
BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM and ANNE STAUSBOLL, Chief Executive Officer, CalPERS,
Defendants,
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES,
Intervenor-Defendant.

No. 12-16628 D.C. No. 4:10-cv-01564-CW Northern District of California, Oakland
ORDER

Before: THOMAS, McKEOWN, and RAWLINSON, Circuit Judges.

SL/MOATT

Case:C1a2s-e146:61208-cv-01105/2684/-2C0W13 DocuImDe: n8t81348748F3iledD1k0t/E28n/t1ry3: 2P1ageP2aogfe2: 2 of 2
Appellants’ unopposed “motion to vacate in part and remand” is granted. We vacate the portion of the district court’s judgment concerning the domestic partner plaintiffs, and remand the case for further proceedings in light of subsequent legal developments, including the Supreme Court’s subsequent decisions in United States v. Windsor, 133 S. Ct. 2675 (2013), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), as well as the resumption of marriage licenses for same-sex couples in California.
VACATED in part; and REMANDED.

SL/MOATT

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 1

2

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court For the Northern District of California

5
MICHAEL DRAGOVICH; MICHAEL 6 GAITLEY; ELIZABETH LITTERAL;
PATRICIA FITZSIMMONS; CAROLYN 7 LIGHT; CHERYL LIGHT; DAVID BEERS;
CHARLES COLE; RAFAEL V. 8 DOMINGUEZ; and JOSE G.
HERMOSILLO, on behalf of 9 themselves and all others
similarly situated, 10
Plaintiffs, 11
v. 12

13

UNITED STATES DEPARTMENT OF THE TREASURY; JACOB LEW, in his

14

official capacity as Secretary of the U.S. Treasury Department;

15

INTERNAL REVENUE SERVICE; JOHN KOSKINEN, in his official

16

capacity as Commissioner of the Internal Revenue Service; BOARD

17

OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT

18

SYSTEM; and ANNE STAUSBOLL, in her official capacity as Chief

19

Executive Officer, CalPERS; and BIPARTISAN LEGAL ADVISORY GROUP,

20

Defendants.

1

________________________________/ 21

No. C 10-1564 CW
ORDER DENYING MOTION TO WITHDRAW (Docket No. 149)

22

Defendant Bipartisan Legal Advisory Group (BLAG) moves to

23 withdraw as a party. Plaintiffs oppose the motion on the grounds

24 that the Court has yet to decide whether they may recover

25 attorneys’ fees and costs from BLAG. They note that they plan to

26 file a motion for attorneys’ fees and costs under 42 U.S.C. § 1988

27
1 The Court has substituted Defendants Jacob Lew and John Koskinen
28 as Defendants pursuant to Federal Rule of Civil Procedure 25(d).

United States District Court For the Northern District of California

1 and the Equal Access to Justice Act (EAJA), 28 U.S.C. §§ 2412 et

2 seq., after the stay of attorneys’ fee litigation is lifted.

3 Although BLAG contends that Plaintiffs may not recover attorneys’

4 fees under either of these statutes, this issue is not appropriate

5 for resolution on a motion to withdraw. BLAG’s motion to withdraw

6 as a party (Docket No. 149) is therefore DENIED. However, with

7 the exception of responding to Plaintiffs’ motion for attorneys’

8 fees and costs, BLAG is excused from participating in all matters

9 in this litigation. The Court will lift the stay of attorneys’

10 fee litigation and solicit briefing on the matter after it has

11 resolved the remaining claims of domestic partner Plaintiffs. As

12 previously stated, a hearing on the domestic partnership issues

13 will be held at 2:00 p.m. on April 3, 2014.

14

IT IS SO ORDERED.

15

16 Dated: 1/17/2014 17

CLAUDIA WILKEN United States District Judge

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 1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

5

6

7 MICHAEL DRAGOVICH, et al., on behalf of themselves and all
8 others similarly situated,

9

Plaintiffs,

10

v.

11 UNITED STATES DEPARTMENT OF THE TREASURY, et al.,
12
Defendants. 13

14

15 ________________________________/

No. C 10-01564 CW
ORDER DENYING PLAINTIFFS’ MOTIONS (1) FOR CLASS NOTICE; (2) FOR ADDITIONAL REMEDIES; (3) FOR LEAVE TO SUPPLEMENT THE COMPLAINT; (4) FOR SUMMARY ADJUDICATION; AND (5) TO COMPEL DISCOVERY, AND GRANTING FEDERAL AND STATE DEFENDANTS’ CROSSMOTIONS FOR SUMMARY JUDGMENT
(Docket No. 185)

United States District Court For the Northern District of California

16

Currently before the Court are Plaintiffs’ motions (1) for

17 class notice; (2) for additional remedies; (3) for leave to

18 supplement the complaint; (4) for summary adjudication; and (5) to

19 compel limited discovery from State Defendants. State Defendants

20 and Federal Defendants oppose the motions. In addition, State

21 Defendants cross-move for partial summary judgment as to the two

22 42 U.S.C. § 1983 claims against them and Federal Defendants cross-

23 move for summary judgment regarding Plaintiffs’ substantive due

24 process and equal protection claims brought on behalf of the

25 domestic-partner class members. Having considered the parties’

26 papers and oral argument on the matter, the Court DENIES

27 Plaintiffs’ motions and GRANTS Defendants’ cross-motions. Docket

28 No. 185.

United States District Court For the Northern District of California

1

BACKGROUND

2

The Court’s prior orders outline the relevant factual and

3 statutory background at length. This order provides only a brief

4 summary of the background relevant to the resolution of the

5 instant motions.

6 I. Long-term Care Insurance and the Challenged Provisions

7

Plaintiffs are California public employees and their same-sex

8 spouses and registered domestic partners, who are in long-term

9 committed relationships recognized and protected under California

10 law. As explained in this Court’s previous orders, CalPERS

11 provides retirement and health benefits, including long-term care

12 insurance, to many of the state’s public employees and retirees

13 and their families. Long-term care insurance provides coverage

14 when a person needs assistance with basic activities of living due

15 to injury, old age, or severe impairments related to chronic

16 illnesses, such as Alzheimer’s disease.

17

In 1996, Congress passed the Defense of Marriage Act (DOMA),

18 which, among other things, defined the terms “spouse” and

19 “marriage” for federal law purposes in a manner limiting them to

20 heterosexual couples. As amended by § 3 of the DOMA, the United

21 States Code provides,

22

In determining the meaning of any Act of Congress, or

of any ruling, regulation, or interpretation of the

23

various administrative bureaus and agencies of the

United States, the word “marriage” means only a legal

24

union between one man and one woman as husband and

25

wife, and the word “spouse” refers only to a person of

the opposite sex who is a husband or a wife.

26 1 U.S.C. § 7.
27

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2

United States District Court For the Northern District of California

1

Title 26 U.S.C. § 7702B(f) was also enacted in 1996, as part

2 of the Health Insurance Portability and Accountability Act

3 (HIPAA), providing favorable federal tax treatment to participants

4 in qualified state-maintained long-term care insurance plans for

5 state employees. 26 U.S.C. § 7702B(f). Currently, the CalPERS

6 long-term care insurance program is a qualified state-maintained

7 plan pursuant to § 7702B(f).

8

Section 7702B(f)(2) disqualifies a state-maintained plan from

9 favorable tax treatment if it provides coverage to individuals

10 other than those specified under its subparagraph (C). The list

11 of eligible individuals in § 7702B(f)(2)(C) includes state

12 employees and former employees, their spouses, and individuals

13 bearing a relationship to the employees or spouses which is

14 described in subparagraphs (A) through (G) of 26 U.S.C.

15 § 152(d)(2). Id.

16

Section 152(d)(2), the part of the tax code from which

17 subparagraph (C) draws its list of eligible relatives, defines the

18 relatives for whom a taxpayer may claim a dependent exemption.

19 See 26 U.S.C. §§ 151-52. Section 152(d)(2), subparagraphs (A)

20 through (H), identifies the following individuals as “qualifying

21 relatives” for the dependent exemption:

22

(A) A child or a descendant of a child.

23

(B) A brother, sister, stepbrother, or stepsister.

24

(C) The father or mother, or an ancestor of either.

25

(D) A stepfather or stepmother.

26

(E) A son or daughter of a brother or sister of the

27

taxpayer.

28

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United States District Court For the Northern District of California

1

(F) A brother or sister of the father or mother of the taxpayer.

2 (G) A son-in-law, daughter-in-law, father-in-law,

3

mother-in-law, brother-in-law, or sister-in-law.

4

(H) An individual . . . who, for the taxable year of

5

the taxpayer, has the same principal place of abode as the taxpayer and is a member of the

6

taxpayer’s household.

7 26 U.S.C. § 152(d)(2).

8

When it chose to incorporate subparagraphs (A) through (G),

Congress specifically chose not to carry over subparagraph (H) to 9

subparagraph (C) of § 7702B(f)(2). Had Congress not chosen to 10

exclude subparagraph (H) from subparagraph (C) of § 7702B(f)(2), 11

registered domestic partners of California public employees would 12

have qualified as individuals eligible to enroll in the CalPERS 13

long-term care plan. 14

In addition to providing favorable tax treatment to state15

maintained long-term care plans, Congress approved such treatment 16

for long-term care coverage purchased through the private market. 17

26 U.S.C. § 7702B(a)-(b). 18

19 II. Procedural History

20

In May 2012, this Court issued an order granting Plaintiffs’

21 motion for summary judgment on all claims, denying the Bipartisan

22 Legal Advisory Group’s (BLAG) cross-motion for summary judgment on

23 all claims, and denying Federal Defendants cross-motion for

24 summary judgment on the domestic-partner Plaintiffs’ claims.

25 Docket No. 124, May 24, 2012 Order. BLAG and Federal Defendants

26 each timely appealed that order and the Ninth Circuit consolidated

27 their appeals in September 2012.

28

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United States District Court For the Northern District of California

1

In July 2013, shortly after the Supreme Court issued its

2 decisions in United States v. Windsor, 133 S. Ct. 2675 (2013), and

3 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the Ninth Circuit

4 dismissed BLAG’s appeal. See Docket No. 146. Three months later,

5 in October 2013, the Ninth Circuit issued a separate decision in

6 Federal Defendants’ appeal, USCA Case No. 12-16628, granting

7 appellants' unopposed motion to vacate the portion of this Court’s

8 summary judgment order addressing the claims of domestic-partner

9 Plaintiffs and remanding for further proceedings in light of Perry

10 and Windsor. See Docket No. 147.

11

In 2013, the California Legislature enacted the Public

12 Employees’ Long-Term Care Act, which amended California law to

13 permit the enrollment of members “and their spouses, domestic

14 partners, parents, siblings, adult children, and spouses’

15 parents,” “[e]xcept as prohibited by the Internal Revenue Code,

16 including but not limited to, Section 7702B(f)(2) . . ., or any

17 other authority that governs eligibility for a federally qualified

18 state long-term care plan.” Cal. Gov’t Code § 21661(e).

19

DISCUSSION

20 I. Motion to Compel

21

Plaintiffs seek to compel production of documents that would

22 provide them with the names and contact information of registered

23 domestic partners who, if married, would be eligible for the

24 CalPERS Long-Term Care Program (LTCP). Plaintiffs assert that

25 they will use this information to contact domestic-partner class

26 members to seek additional information regarding barriers to

27 marriage they may be experiencing. For example, Plaintiffs

28 hypothesize that there may be retired class members who moved to

5

United States District Court For the Northern District of California

1 states that don’t recognize same-sex marriages and who are now

2 unable to travel to get married or that there may be class members

3 who have become disabled or whose domestic partners have become

4 disabled so that they cannot legally consent to marriage.

5

State Defendants argue that such discovery is improper

6 because discovery is not currently open and the purpose of the

7 discovery is to locate new class representatives. The Court need

8 not reach State Defendants’ arguments. Having considered

9 Plaintiffs’ request, the Court finds that the unlikely potential

10 benefit of the proposed discovery does not outweigh the burden

11 associated with the discovery, particularly in light of the

12 CalPERS’ members’ privacy rights that would be implicated by a

13 mass mailing to all domestic-partner members.

14 II. Plaintiffs’ Motion to Supplement the Complaint

15

Rule 15(d) of the Federal Rules of Civil Procedure provides,

16 “On motion and reasonable notice, the court may, on just terms,

17 permit a party to serve a supplemental pleading setting out any

18 transaction, occurrence, or event that happened after the date of

19 the pleading to be supplemented.” “Under the Rule, allowance or

20 denial of leave to file a supplemental pleading is addressed to

21 the sound discretion of the District Court.” United States v.

22 Reiten, 313 F.2d 673, 675 (9th Cir. 1963).

23

Plaintiffs seek leave pursuant to Rule 15(d) to file a

24 supplemental complaint to add claims for relief for violations of

25 Title VII against the State of California and the Regents of the

26

27

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United States District Court For the Northern District of California

1 University of California.1 Plaintiffs’ proposed supplemental

2 complaint indicates that they have filed a class charge with the

3 Equal Employment Opportunity Commission alleging a Title VII

4 violation. Docket No. 185, Kristen Dec., Ex. D ¶ 92. The Title

5 VII claim, filed by class representative Michael Dragovich, seeks,

6 “Placement of [Dragovich’s] spouse in the Long Term Care Program

7 with recognition that there should be some accommodations for the

8 possible increased costs caused by the inability to enroll my

9 spouse immediately after our nuptials.” Docket No. 188, Kristen

10 Dec., Ex. F. The claim further seeks, “Accommodation for the

11 delay in being able to have my spouse join the CalPERS Long Term

12 Care Program so that any new premium will be at a reasonable cost

13 based on the previous unlawful exclusion.” Id. The claim is

14 filed “as a class based charge on behalf of [Dragovich] and other

15 state employees whose same-sex spouses and same-sex domestic

16 partners have been denied enrollment.” Id.

17

However, judgment has already entered as to the same-sex

18 spouse class members. BLAG appealed that ruling, but the appeal

19 was dismissed following Windsor and Perry. Accordingly, that

20

21

1 Plaintiffs state that this request is “[p]ursuant to their

understanding of the Court’s July 29, 2014 Order,” which directed

22 the parties to brief the issues in their case management

statement, including Plaintiffs' request for leave to file an 23 amended complaint. Docket No. 185 at 12. However, the Court’s

24

reason for entertaining a motion for leave to amend the complaint was to allow Plaintiffs to seek leave to amend to include

25 allegations regarding ongoing harm to impacted domestic-partner class members and to add representative class members suffering

26 such harm. Plaintiffs did not include any such allegations or

class representatives in their proposed supplemental complaint 27 and, as discussed above, it does not appear likely that they will

find evidence of such harm through reasonable discovery. 28

7

United States District Court For the Northern District of California

1 judgment is now final. The Court expresses no opinion regarding

2 whether Plaintiffs' proposed Title VII claim could be filed as a

3 new complaint and whether it would be appropriate for class

4 treatment. To the extent that Plaintiffs seek to supplement the

5 complaint on behalf of same-sex domestic partners, the Court finds

6 that any entitlement to discounted premiums would require multiple

7 individualized inquiries, such as the age at which the class

8 members would have sought coverage, the level of coverage they

9 would have sought and whether they would have maintained the same

10 level of coverage over time, that are not appropriate in this

11 class action. Moreover, administration of discounted premiums

12 would require complicated individualized calculations of back

13 premiums owed and the oversight of the payment of such back

14 premiums.

15

Accordingly, the Court declines to exercise its discretion to

16 allow Plaintiffs to supplement their complaint.

17 III. Cross-Motions for Summary Judgment

18

Summary judgment is properly granted when no genuine and

19 disputed issues of material fact remain, and when, viewing the

20 evidence most favorably to the non-moving party, the movant is

21 clearly entitled to prevail as a matter of law. Fed. R. Civ. P.

22 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

23 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

24 1987).

25

The moving party bears the burden of showing that there is no

26 material factual dispute. The court must draw all reasonable

27 inferences in favor of the party against whom summary judgment is

28 sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

8

United States District Court For the Northern District of California

1 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem.

2 Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Material facts which

3 would preclude entry of summary judgment are those which, under

4 applicable substantive law, may affect the outcome of the case.

5 The substantive law will identify which facts are material.

6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

7

A. Claims against Federal Defendants

8

1. Equal Protection Claim

9

In their cross-motion for summary judgment, Federal

10 Defendants argue that, following the Supreme Court’s decisions in

11 Windsor and Perry, the Court should enter judgment in their favor

12 because § 7702B(f) “no longer discriminates on the basis of sexual

13 orientation.” Docket No. 186 at 16. In other words, because

14 same-sex couples can now get married in California and the federal

15 government is no longer enforcing the DOMA, any couple may get

16 married and then apply for LTCP coverage. Federal Defendants

17 continue that § 7702B(f) no longer creates a discriminatory impact

18 because, now that same-sex couples can choose to marry in

19 California, the exclusion of registered domestic partners from

20 § 7702B(f) impacts same-sex and heterosexual couples equally. See

21 De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978) (where there

22 is no facial discrimination in statute, plaintiffs “are required

23 to prove two essential elements . . . discriminatory effect and

24 invidious discriminatory intent or purpose.”).

25

Plaintiffs argue that Defendants' position “ignores the legal

26 history of discrimination in relationship recognition and its

27 present effects, which have shaped the lives and choices of the

28 California gay and lesbian couples who comprise the certified

9

United States District Court For the Northern District of California

1 class.” Docket No. 185 at 15. Plaintiffs do not dispute that an

2 ongoing discriminatory impact is required, but argue that the

3 continued exclusion of registered domestic partners from

4 § 7702B(f) imposes unnecessary harms and continuing discriminatory

5 effects on the basis of sexual orientation. Plaintiffs argue that

6 potential barriers to marriage “result from the history of

7 unconstitutional discrimination.” Docket No. 185 at 18. In light

8 of these possible ongoing harms, Plaintiffs argue that the Court

9 should reaffirm its previous finding that the exclusion of

10 registered domestic partners from § 7702B(f) is an

11 unconstitutional classification based on sexual orientation.

12

Plaintiffs contend that § 7702B(f) has a disparate impact on

13 same-sex couples because a greater percentage of domestic partners

14 are same-sex couples. However, Plaintiffs do not provide any

15 evidence to support a finding that this continues to be true in

16 California following Perry and the fact remains that virtually all

17 of the domestic-partner class members could marry.

18

Plaintiffs further argue that “[b]ut for the history of

19 sexual orientation discrimination,” domestic-partner class members

20 “would not be uniquely required by Federal Defendants to perfect a

21 subsequent second form of legal relationship recommendation,”

22 incurring the cost of a marriage license and the burden of a

23 ceremony performed by a lawful officiant. Docket No. 188 at 11.

24 In other words, although heterosexual and same-sex registered

25 domestic partners may get married, only same-sex registered

26 domestic partners were previously forced to choose to become

27 domestic partners, without the option to marry in the first

28 instance. The Court notes that the Plaintiffs make no such

10

United States District Court For the Northern District of California

1 allegations in their complaint or their proposed supplemental

2 complaint. Further, it remains that same-sex registered domestic

3 partners now have the opportunity to marry on the same terms as

4 heterosexual registered domestic partners. Moreover, as Federal

5 Defendants note, the barriers applicable to all class members,

6 such as marriage license fees and participation in a marriage

7 ceremony, are minimal and apply equally to heterosexual registered

8 domestic partners who wish to get married.

9

Finally, Plaintiffs argue that there may be registered

10 domestic partners in the class who face barriers to marriage.

11 Among the barriers that Plaintiffs identify are that some couples

12 may have moved to states that do not allow same-sex marriage and

13 may not be able to travel to a state that does; some couples may

14 not be able to consent to marry due to failing capacity of one

15 partner; and some couples may have difficulty appearing in person

16 to obtain a marriage license as required by California law. Such

17 speculative individualized claims cannot be resolved in this class

18 action.2 Further, Plaintiffs do not include any allegations

19 regarding these potential barriers to marriage in their proposed

20 amended complaint. See Docket No. 185, Kristen Decl., Ex. D.

21

22

23

2 Plaintiffs also argue that the State of California treats

24

registered domestic partners as though they are married for various benefits and some states, but not California, have

25 automatically “converted” or “merged” domestic partnerships into marriages. The federal government treats these converted or

26 merged relationships as marriages. Plaintiffs assert that these

distinctions impermissibly elevate form over substance. However, 27 no such harm is alleged in the complaint or in the proposed

supplemental complaint. 28

11

United States District Court For the Northern District of California

1

Accordingly, the Court finds that Plaintiffs have failed to

2 provide evidence of an ongoing discriminatory impact sufficient to

3 support an equal protection violation. The Court DENIES

4 Plaintiffs’ motion for summary judgment on their equal protection

5 claim and GRANTS Federal Defendants’ cross-motion for summary

6 judgment on that claim.

7

2. Substantive Due Process Claim

8

Plaintiffs also assert a substantive due process claim,

9 arguing that by excluding registered domestic partners from the

10 list of family members eligible to participate in tax-advantaged

11 state-provided long-term care plans, the government “selectively

12 burdens and penalizes the Plaintiffs’ exercise of their right to

13 family autonomy and decision-making, on the basis of sexual

14 orientation, and in doing so demeans their lives and intimate

15 decisions.” Docket No. 185 at 24. Plaintiffs argue that Federal

16 Defendants prevent same-sex registered domestic partners “from

17 participating in a critical government-sponsored tool for

18 decisions regarding life and family planning” and therefore

19 “impose[] a selective burden on the family relationships of same-

20 sex couples without an adequate justification.” Id. at 25.

21 However, as discussed above with respect to Plaintiffs’ equal

22 protection claim, the Court finds that Plaintiffs have not

23 presented any evidence of such a continuing “selective burden” on

24 same-sex registered domestic partners. Following Perry, same-sex

25 registered domestic partners can choose to marry, just as

26 heterosexual registered domestic partners can. Accordingly, the

27 Court denies Plaintiffs’ motion for summary adjudication and

28

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United States District Court For the Northern District of California

1 grants Federal Defendants’ cross-motion for summary judgment with

2 respect to Plaintiffs’ substantive due process claim.

3

B. Claims against State Defendants

4

Plaintiffs assert two claims pursuant to 42 U.S.C. § 1983

5 against State Defendants, based on State Defendants “denying

6 Plaintiffs the right to enroll in the CalPERS Long-Term Care

7 Program, and [] conforming the plan to [] unconstitutional federal

8 standards.” Docket No. 66 ¶¶ 95, 100. As discussed above, the

9 Court finds that, following Windsor and Perry, the federal

10 standards no longer violate the Constitution. Accordingly, the

11 Court denies Plaintiffs’ motion for summary adjudication as to the

12 State Defendants and grants State Defendants’ cross-motion for

13 summary judgment.

14 IV. Plaintiffs’ Motion for Class Notice

15

Plaintiffs move for class notice, arguing that class members

16 should be advised that same-sex spouses of CalPERS members may

17 apply for LTCP, and same-sex registered domestic partners of

18 CalPERS members may not apply. Plaintiffs argue that such notice

19 “will permit class members the opportunity to, inter alia,

20 intervene in the action, submit comments, and contact class

21 counsel.” Docket No. 185 at 6-7. Further, Plaintiffs argue that

22 CalPERS should bear the burden of providing the notice they

23 request.

24

“The trial court may in its discretion in a class action

25 certified under Rule 23(b)(2) direct that notice be given under

26 Rule 23(d).” EEOC v. General Tel. Co. of Northwest, 599 F.2d 322,

27 334 (9th Cir. 1979); see also Fed. R. Civ. P. 23(c)(2)(A) (“For

28 any class certified under Rule 23(b)(1) or (b)(2), the court may

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United States District Court For the Northern District of California

1 direct notice to the class.”). Plaintiffs assert that the Court

2 should exercise its discretion to require notice to the class,

3 citing cases in which trial courts have required notice because

4 “the issues of potential relief involved are important to class

5 members and the Court desires to have the maximum input from the

6 class.” Am. Counsel of the Blind v. Astrue, 2008 WL 4279674, *7

7 (N.D. Cal.).

8

However, that case is distinguishable from the instant case.

9 In Counsel of the Blind, the parties sought “to compel the Social

10 Security Administration to provide alternative formats of

11 communication that would enable the putative class [of individuals

12 with vision impairment] to have equal access to participate in SSA

13 programs.” Id. at *1. The court specifically noted that “class

14 members could be given notice and a choice of what type of

15 accommodation they would prefer.” Id. at *3. There, it made

16 sense to seek input from class members regarding the types of

17 alternative formats that would best address their needs. In

18 contrast, Plaintiffs here do not need the input of class members

19 with respect to the remedy sought. There are no fact-based

20 remedies, such as disability accommodations, that require feedback

21 from class members.

22

State Defendants further argue that the type of “notice

23 relief” that Plaintiffs seek is barred by the Eleventh Amendment

24 because there is no ongoing violation of federal law. In Green v.

25 Mansour, the Supreme Court held that plaintiffs in a putative

26 class action seeking changes to public assistance calculations

27 were not entitled to “notice relief” or a declaration that the

28 state practice the plaintiffs sought to change violated federal

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United States District Court For the Northern District of California

1 law when Congress changed the federal law to clarify federal

2 requirements and the state amended its practices in response. 474

3 U.S. 64, 65-66 (1985). Plaintiffs argue that Green is

4 distinguishable because “Defendants here have not established that

5 they are in compliance with the Constitution.” Docket No. 188 at

6 1.

7

To the extent that Plaintiffs seek notice to CalPERS members

8 with same-sex spouses, the Court notes that this relief was not

9 sought prior to the entry of judgment. BLAG appealed that ruling,

10 but the appeal was dismissed following Windsor and Perry, and that

11 judgment is now final. There is no ongoing constitutional

12 violation and Green controls. The Court has now found that there

13 is no ongoing constitutional violation with respect to same-sex

14 registered domestic partners. Therefore, Green also precludes

15 notice to domestic-partner class members. Accordingly, the Court

16 denies Plaintiffs’ motion for class notice.

17 V. Plaintiffs’ Motion for Additional Remedies

18

Finally, Plaintiffs argue that the Court should exercise “its

19 equitable powers to provide full relief to class members by

20 placing them in the position they would have occupied absent the

21 discriminatory conduct.” Docket No. 185 at 10. Specifically,

22 Plaintiffs argue that “class members should be permitted to

23 purchase CalPERS LTCP insurance for the premiums they would have

24 paid in the year they originally sought to enroll their same-sex

25 partner.” Id.

26

A. Same-Sex Spouses

27

As previously noted, the Court already ruled in favor of

28 same-sex spouse class members and judgment entered. The remedy

15

United States District Court For the Northern District of California

1 Plaintiffs now seek was not sought at that time and the appeal of

2 the judgment as to same-sex spouses was dismissed. The Court

3 finds no basis on which it may revisit its earlier judgment, which

4 is now final.

5 B. Registered Domestic Partner Plaintiffs

6

State Defendants also argue that any claim for discounted

7 premiums is prohibited by the Eleventh Amendment because there is

8 no ongoing federal violation to justify prospective relief.

9 Plaintiffs do not dispute that an ongoing violation is required

10 for the Court to order prospective relief. See Ex parte Young,

11 209 U.S. 123, 156 (1908). The Court has now found that there is

12 no ongoing constitutional violation with respect to domestic-

13 partner class members and grants State and Federal Defendants’

14 cross-motions for summary judgment. As discussed above, providing

15 the requested discounts would require multiple individualized

16 inquiries including the age at which the class members would have

17 sought coverage, the level of coverage they would have sought and

18 whether they would have maintained the same level of coverage over

19 time. Moreover, the requested relief would require complicated

20 individualized calculations of back premiums owed and oversight of

21 the payment of those back premiums.

22

Because there is no ongoing constitutional violation to

23 justify the grant of injunctive relief and because the relief

24 sought would require individualized inquiries, the Court denies

25 Plaintiffs’ motion for additional remedies as to same-sex domestic

26 partners.

27

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United States District Court For the Northern District of California

1

CONCLUSION

2

For the reasons stated above, the Court DENIES Plaintiffs’

3 motions (1) for class notice; (2) for additional remedies; (3) for

4 leave to supplement the complaint; (4) for summary adjudication;

5 and (5) to compel limited discovery from State Defendants. The

6 Court GRANTS Defendants’ cross-motions for summary judgment. An

7 Amended Judgment will enter separately.

8

IT IS SO ORDERED.

9

10 Dated: December 4, 2014 11

CLAUDIA WILKEN United States District Judge

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 Case 4:10-cv-01564-CW Document 218 Filed 10/20/15 Page 1 of 7

1 William C. McNeill, III, State Bar No. 64392

Elizabeth Kristen, State Bar No. 218227

2 LEGAL AID SOCIETY-

EMPLOYMENT LAW CENTER

3 180 Montgomery Street, Suite 600

San Francisco, CA 94104
4 Telephone: (415) 864-8848

5

Facsimile: (415) 593-0096 Email: wmcneill@las-elc.org

6

ekristen@las-elc.org

7

Daniel S. Mason, State Bar No. 54065 Heather T. Rankie State Bar No. 268002

8

ZELLE HOFMANN VOELBEL & MASON LLP 44 Montgomery Street, Suite 3400

9 San Francisco, CA 94104
Telephone: (415) 693-0700

10 Facsimile: (415) 693-0770

Email: pclayton@zelle.com

11

Attorneys for Plaintiffs

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 MICHAEL DRAGOVICH, MICHAEL

) CASE NO. 4:10-CV-01564-CW

15

GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN

) ) Assigned to the Hon. Claudia Wilken

16

LIGHT, and CHERYL LIGHT, DAVID BEERS, ) CHARLES COLE, RAFAEL V. DOMINGUEZ, ) PLAINTIFFS’ AND FEDERAL

17

and JOSE G. HERMOSILLO, on behalf of themselves and all others similarly situated,

) DEFENDANTS’ STIPULATION ) REGARDING ATTORNEYS’ FEES

18

Plaintiffs,

) AND COSTS AND ) [PROPOSED] ORDER

19

)

vs.

)

20

)

UNITED STATES DEPARTMENT OF THE )

21 TREASURY, JACOB LEW, in his official

)

capacity as Secretary of the Treasury, United )
22 States Department of the Treasury, INTERNAL )

REVENUE SERVICE, JOHN KOSKINEN, in )
23 his official capacity as Commissioner of the )

24

Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA

) )

25

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her

) )

26

official capacity as Chief Executive Officer, CalPERS,

) )

27

)

Defendants.

)

28

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PLAINTIFFS’ AND FEDERAL DEFENDANTS’ STIPULATION REGARDING ATTORNEYS’ FEES

AND COSTS AND [PROPOSED] ORDER

Case 4:10-cv-01564-CW Document 218 Filed 10/20/15 Page 2 of 7

1

STIPULATION REGARDING ATTORNEYS’ FEES AND COSTS

2

WHEREAS, on July 15, 2011, this case was certified as a class action pursuant to Fed. R.

3 Civ. P. 23(b)(2).

4

WHEREAS, on December 4, 2014, this Court denied Plaintiffs’ motion for class notice

5 and for additional discovery of the class member list from State Defendants.

6

WHEREAS, the December 4, 2014 amended judgment fully resolved the merits in this

7 matter and is now final under FRAP 4(a)(1)(B).

8

WHEREAS, the only remaining issue in this case is Plaintiffs’ motion for attorneys’ fees

9 and costs, filed March 12, 2015, and fully briefed (the “Motion”) as against Federal Defendants

10 (the United States Department of the Treasury, Jacob Lew in his official capacity as Secretary of

11 the Treasury, the Internal Revenue Service, and John Koskinen in his official capacity as the

12 Commissioner of the Internal Revenue Service) and intervenor Bipartisan Legal Advisory Group

13 (“BLAG”).

14

WHEREAS, on April 20, 2015, the Court took the Motion under submission without oral

15 argument.

16

WHEREAS, pursuant to the parties’ stipulation, the Court stayed consideration of the

17 motion for 60 days from July 17, 2015.

18

WHEREAS, Plaintiffs and Federal Defendants disagree regarding Plaintiffs’ entitlement

19 to attorneys’ fees and certain costs from Federal Defendants and the amount of those fees and

20 costs.

21

WHEREAS, Plaintiffs and Federal Defendants wish to fully and finally resolve the

22 attorneys’ fees and costs issue in order to avoid further cost and expense of litigation and forever

23 resolve all remaining issues between them in this litigation on the terms set out here.

24

1. Complete Resolution. This Stipulation, if approved, fully and finally resolves the

25 remaining claims and issues in this action regarding attorneys’ fees, costs and litigation expenses

26 between Plaintiffs, on the one hand, and Federal Defendants, on the other hand. Nothing in this

27 Stipulation shall be construed or admitted as an admission by any of the parties of any violation

28 of its policies or procedures; any violation of federal, state or local law, ordinance or regulation;

{00450830.DOCX}

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AND COSTS AND [PROPOSED] ORDER

Case 4:10-cv-01564-CW Document 218 Filed 10/20/15 Page 3 of 7

1 or any liability or wrongdoing whatsoever. Nor will this Stipulation constitute a determination

2 or an admission that Federal Defendants lacked substantial justification for any position taken in

3 this action. Nor will any of the terms herein be offered or received in evidence or in any way

4 referred to in any civil, criminal, or administrative action other than an action for breach of this

5 Agreement.

6

The terms of this Stipulation constitute the entire agreement of Plaintiffs and Federal

7 Defendants, and no statement, remark, agreement, or understanding, oral or written, that is not

8 contained herein shall be recognized or enforced.

9

2. Release. In exchange for the payment described in paragraph 3, Plaintiffs and their

10 attorneys agree to fully and finally release any and all claims for attorneys’ fees, costs and

11 expenses against Federal Defendants only in connection with this action, including any and all

12 potential claims against Federal Defendants relating to any attorneys’ fees, costs, or expenses

13 Plaintiffs incurred or allegedly incurred in litigating against BLAG in this action.

14

3. Payment. In exchange for Plaintiffs’ releases in this Stipulation, Federal Defendants

15 agree to pay Plaintiffs an amount equal to Ninety-five Thousand Dollars and No Cents

16 ($95,000.00) (the “Payment”). Federal Defendants shall make this Payment as soon as

17 practicable after the Court approves this Stipulation, as set out below, or issues any other

18 judgment or order to effectuate this Stipulation. Federal Defendants shall make the Payment by

19 direct deposit to Legal Aid Society-Employment Law Center in the account identified in the

20 ACH form described below.

21

(a) Plaintiffs’ attorneys shall furnish a completed Automatic Clearing House Payment

22 Enrollment Form (“ACH Form”) (SF 3881) to Federal Defendants in advance of this Payment.

23 The IRS shall issue Form 1099 to the payee identified in the ACH Form.

24

(b) With respect to the Payment, compliance with all applicable federal, state and local

25 tax requirements will be the sole responsibility of Plaintiffs. Nothing in this Stipulation waives

26 or modifies federal, state or local law pertaining to taxes, offsets, levies, and liens that may apply

27 to this Stipulation or the Payment, and Plaintiffs’ counsel are executing this Stipulation without

28 reliance on any representation by Federal Defendants as to the application of any such law.

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AND COSTS AND [PROPOSED] ORDER

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1

(c) Plaintiffs and their attorneys acknowledge the Payment satisfies all their claims for

2 attorneys’ fees, costs and expenses against Federal Defendants in this action and forever bars any

3 claim for additional or different fees, costs and expenses in connection with this action against

4 Federal Defendants only, including any and all potential claims against Federal Defendants

5 relating to any attorneys’ fees, costs, or expenses Plaintiffs incurred or allegedly incurred in

6 litigating against BLAG in this action.

7

(d) The Payment and this Stipulation are not intended to and in no way obviate the

8 alleged liability of BLAG for Plaintiffs’ attorneys’ fees and costs, which are the subject of

9 Plaintiffs’ currently pending Motion, nor do they represent an admission by Federal Defendants

10 with respect to any requirement Plaintiffs must satisfy in order to prevail on that motion. Federal

11 Defendants and the United States reserve all rights to submit a Statement of Interest or amicus

12 brief concerning BLAG’s alleged liability for attorneys’ fees and costs in this action.

13

4. Withdrawal of Motion. As of the date that the Court enters this Stipulation as an order

14 as requested below, the Motion for Award of Reasonable Attorneys’ Fees, Costs and Expenses as

15 it relates to Federal Defendants will be deemed withdrawn as moot.

16

5. Court Approval. Consistent with this Court’s April 27, 2015 Order on Stipulated

17 Attorneys’ Fees with respect to State Defendants (ECF No. 205), Plaintiffs and Federal

18 Defendants request this Court’s approval of this Stipulation without notice to the class.

19

THEREFORE, Plaintiffs and Federal Defendants, through their counsel, agree to and ask

20 the Court to approve this Stipulation Regarding Attorneys’ Fees and Costs.

21

22

SO STIPULATED:

23 24 25 Dated: October 9, 2015 26

U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION
By: /s/ Jean Lin Jean Lin, Counsel for Federal Defendants

27

LEGAL AID SOCIETY – EMPLOYMENT

28

LAW CENTER

{00450830.DOCX}

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AND COSTS AND [PROPOSED] ORDER

Case 4:10-cv-01564-CW Document 218 Filed 10/20/15 Page 5 of 7

1 Dated: October 9, 2015 2 3 4 Dated: October 9, 2015 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By: /s/ William C. McNeill, III William C. McNeill, III, Counsel for Plaintiffs
ZELLE HOFFMANN VOELBEL & MASON LLP
By: /s/ Heather T. Rankie Heather T. Rankie, Counsel for Plaintiffs

{00450830.DOCX}

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Case 4:10-cv-01564-CW Document 218 Filed 10/20/15 Page 6 of 7

1

GENERAL ORDER 45 ATTESTATION

2

In accordance with General Order 45, concurrence in the filing of this document has been

3 obtained from each of the signatories, and I shall maintain records to support this concurrence

4 for subsequent production for the court if so ordered or for inspection upon request by a party.

5

6

/S/ William c. McNeill, III

William C. McNeill, III

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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{00450830.DOCX}

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AND COSTS AND [PROPOSED] ORDER

Case 4:10-cv-01564-CW Document 218 Filed 10/20/15 Page 7 of 7

1

2

It is so ordered.

3

4 October 20, 2015

5

Dated

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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PROPOSED ORDER
HON. CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

{00450830.DOCX}

6

CASE NO. 4:10-CV-01564-CW

PLAINTIFFS’ AND FEDERAL DEFENDANTS’ STIPULATION REGARDING ATTORNEYS’ FEES

AND COSTS AND [PROPOSED] ORDER

 
 11/4/2017

CAND-ECF

ADRMOP,CLOSED,E-Filing,PROTO

U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:10-cv-01564-CW

Dragovich et al v. United States Department of the Treasury et al Assigned to: Hon. Claudia Wilken Case in other court: Ninth Circuit Court of Appeals, 12-16461
Ninth Circuit Court of Appeals, 12-16628 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 04/13/2010 Date Terminated: 12/04/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Michael Dragovich on behalf of himself and all others similarly situated

represented by Claudia Center The Legal Aid Society Employment Law Center 180 Montgomery Street Suite 600 San Francisco, CA 94104 415-864-8848 Fax: 415-593-0096 Email: ccenter@las-elc.org TERMINATED: 04/04/2014

Daniel Simon Mason Furth Salem Mason & Li LLP 101 California Street, Suite 2710 San Francisco, CA 94111 (415) 365-9685 Email: dmason@fsmllaw.com ATTORNEY TO BE NOTICED

Elizabeth Kristen Legal Aid at Work 180 Montgomery Street, Suite 600 San Francisco, CA 94104 415-864-8848 Fax: 415-864-8199 Email: EKristen@legalaidatwork.org ATTORNEY TO BE NOTICED

Heather T. Rankie Zelle Hofmann Voelbel & Mason LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 415-693-0700 Fax: 415-693-0770 Email: hrankie@zelle.com ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

Lori Rifkin Hadsell Stormer & Renick LLP
1/31

11/4/2017

CAND-ECF

4300 Horton Street, #15 Emeryville, CA 94608 415-685-3591 Fax: 626-577-7079 Email: lrifkin@hadsellstormer.com TERMINATED: 06/10/2011

Patrick Bradford Clayton Law Ofﬁces of Francis O. Scarpulla 456 Montgomery Street, 17th Floor San Francisco, CA 94104 415-788-7210 Fax: 415-788-0706 Email: pbc@scarpullalaw.com TERMINATED: 07/30/2015

Shelley Ann Gregory The Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94107 (415) 864-8848 Fax: 415-593-0096 Email: shelleyagregory@gmail.com TERMINATED: 06/10/2011

Plaintiff
Michael Gaitley on behalf of himself and all others similarly situated

William Clarence McNeill , III The Legal Aid at Work 180 Montgomery Street, Suite 600 San Francisco, CA 94104 415-864-8848 Fax: 415-593-0096 Email: WMcNeill@legalaidatwork.org ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Daniel Simon Mason (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

Lori Rifkin (See above for address)
2/31

11/4/2017

CAND-ECF

TERMINATED: 06/10/2011

Patrick Bradford Clayton (See above for address) TERMINATED: 07/30/2015

Shelley Ann Gregory (See above for address) TERMINATED: 06/10/2011

Plaintiff
Elizabeth Litteral on behalf of herself and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Daniel Simon Mason (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED

Lori Rifkin (See above for address) TERMINATED: 06/10/2011

Patrick Bradford Clayton (See above for address) TERMINATED: 07/30/2015

Shelley Ann Gregory (See above for address) TERMINATED: 06/10/2011

Plaintiff
Patricia Fitzsimmons on behalf of herself and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

Daniel Simon Mason (See above for address)
3/31

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CAND-ECF

(See above for address) ATTORNEY TO BE NOTICED

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED

Lori Rifkin (See above for address) TERMINATED: 06/10/2011

Patrick Bradford Clayton (See above for address) TERMINATED: 07/30/2015

Shelley Ann Gregory (See above for address) TERMINATED: 06/10/2011

Plaintiff
Carolyn Light on behalf of herself and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Daniel Simon Mason (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED

Lori Rifkin (See above for address) TERMINATED: 06/10/2011

Patrick Bradford Clayton (See above for address) TERMINATED: 07/30/2015

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

Shelley Ann Gregory (See above for address) TERMINATED: 06/10/2011
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CAND-ECF

Plaintiff
Cheryl Light on behalf of herself and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Daniel Simon Mason (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED

Lori Rifkin (See above for address) TERMINATED: 06/10/2011

Patrick Bradford Clayton (See above for address) TERMINATED: 07/30/2015

Shelley Ann Gregory (See above for address) TERMINATED: 06/10/2011

Plaintiff
Joanne Schmidt on behalf of themselves and all others similarly situated TERMINATED: 09/07/2011

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014
Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Reide Garnett

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

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11/4/2017
on behalf of themselves and all others similarly situated TERMINATED: 09/07/2011

CAND-ECF

(See above for address) TERMINATED: 04/04/2014
Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Beers on behalf of themselves and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Charles Cole on behalf of themselves and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rafael V. Dominguez on behalf of themselves and all others similarly situated

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014

Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED

Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED

William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

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Plaintiff
Jose G. Hermosillo on behalf of themselves and all others similarly situated

CAND-ECF
represented by Claudia Center (See above for address) TERMINATED: 04/04/2014
Elizabeth Kristen (See above for address) ATTORNEY TO BE NOTICED
Heather T. Rankie (See above for address) ATTORNEY TO BE NOTICED
William Clarence McNeill , III (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of the Treasury

represented by Jean Lin US Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 202-514-3716 Fax: 202-616-8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen R Hartnett Boies Schiller & Flexner 435 Tasso St Suite 205 Palo Alto, CA 94301 650-798-3508 Email: khartnett@bsﬂlp.com ATTORNEY TO BE NOTICED

Defendant
Timothy Geithner Secretary of the Treasury TERMINATED: 01/17/2014
https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

Matthew J. Berns U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202-616-8016 Email: Matthew.J.Berns@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address)
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Defendant Internal Revenue Service

CAND-ECF

LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen R Hartnett (See above for address) ATTORNEY TO BE NOTICED

Defendant
Douglas Shulman Commissioner of the Internal Revenue Service TERMINATED: 01/17/2014
Defendant
Board of Administration of California Public Employees' Retirement System

Matthew J. Berns (See above for address) ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward George Gregory Steptoe & Johnson LLP 633 West Fifth St Suite 700 Los Angeles, CA 90071 213-439-9433 Fax: 213-438-7033 Email: egregory@steptoe.com ATTORNEY TO BE NOTICED

Defendant
Anne Stausboll Chief Executive Ofﬁcer, CalPERS

Jennifer Lynn Morrow Steptoe & Johnson LLP 633 West Fifth Street, Suite 700 Los Angeles, CA 90071 213-439-9400 Fax: 213-439-9599 Email: jmorrow@steptoe.com ATTORNEY TO BE NOTICED
represented by Edward George Gregory (See above for address) ATTORNEY TO BE NOTICED

Defendant

Jennifer Lynn Morrow (See above for address) ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

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Jacob Lew in his ofﬁcial capacity as Secretary of the U.S. Treasury Department
Defendant John Koskinen in his ofﬁcial capacity as Commissioner of the Internal Revenue Service

CAND-ECF
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen R Hartnett (See above for address) ATTORNEY TO BE NOTICED
Matthew J. Berns (See above for address) ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen R Hartnett (See above for address) ATTORNEY TO BE NOTICED
Matthew J. Berns (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Dft Bipartisan Legal Advisory Group

represented by Paul D. Clement Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202-234-0090 Fax: 202-234-2806 Email: pclement@bancroftpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Conor Brendan Dugan Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202-234-0090 Fax: 202-234-2806 Email: cdugan@bancroftpllc.com ATTORNEY TO BE NOTICED

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

H. Christopher Bartolomucci Bancroft PLLC
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CAND-ECF

1919 M Street NW Suite 470 Washington, DC 20036 202-234-0090 Fax: 202-234-2806 Email: cbartolomucci@bancroftpllc.com ATTORNEY TO BE NOTICED
Isaac Benjamin Rosenberg U.S. House of Representatives Ofﬁce of General Counsel 219 Cannon House Ofﬁce Building Washington, DC 20515 202-225-9700 Fax: 202-226-1360 Email: isaac.rosenberg@mail.house.gov ATTORNEY TO BE NOTICED
Kerry W. Kircher Ofﬁce of General Counsel United States House of Representatives 219 Cannon House Ofﬁce Building Washington, DC 20515 202-225-9700 Fax: 202-226-1630 Email: kerry.kircher@mail.house.gov ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

04/13/2010

1 CLASS ACTION COMPLAINT for Injunctive and Declaratory Relief against Board of Administration of California Public Employees' Retirement System, Timothy Geithner, Internal Revenue Service, Douglas Shulman, Anne Stausboll, United States Department of the Treasury (Filing fee $ 350.00, receipt number 34611044628). Filed by Michael Gaitley, Elizabeth Litteral, Carolyn Light, Cheryl Light, Michael Dragovich, Patricia Fitzsimmons. (Attachments: # 1 Civil Cover Sheet) (gba, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/13/2010)

04/13/2010

2 Summons Issued as to Board of Administration of California Public Employees' Retirement System, Timothy Geithner, Internal Revenue Service, Douglas Shulman, Anne Stausboll, United States Department of the Treasury. (gba, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/13/2010)

04/13/2010

3 ADR SCHEDULING ORDER: Case Management Statement due by 7/16/2010. Case Management Conference set for 7/23/2010 01:30 PM in Courtroom A, 15th Floor, San Francisco. (gba, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/13/2010)

04/13/2010

CASE DESIGNATED for Electronic Filing. (gba, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/13/2010)

04/21/2010

4 CLERKS NOTICE to Plaintiffs re: Consent or Declination to Proceed before a U.S. Magistrate Judge. Form due by 5/5/10. (klh, COURT STAFF) (Filed on 4/21/2010) (Entered: 04/21/2010)

04/29/2010

5 NOTICE of Appearance by Jean Lin for Federal Defendants (Lin, Jean) (Filed on

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?523633539403787-L_1_0-1

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04/29/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 05/03/2010
05/04/2010 05/06/2010
05/06/2010
05/06/2010 05/07/2010 05/12/2010 05/26/2010

CAND-ECF
4/29/2010) (Entered: 04/29/2010)
6 Declination to Proceed Before a U.S. Magistrate Judge by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 4/29/2010) (Entered: 04/29/2010)
7 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (klh, COURT STAFF) (Filed on 4/30/2010) (Entered: 04/30/2010)
8 AFFIDAVIT of Service for Summons served on Anne Stausboll on 4/19/2010, ﬁled by Michael Dragovich. (Center, Claudia) (Filed on 4/30/2010) (Entered: 04/30/2010)
9 AFFIDAVIT of Service for Summons served on Board of Administration, CalPERS on 4/19/2010, ﬁled by Michael Dragovich. (Center, Claudia) (Filed on 4/30/2010) (Entered: 04/30/2010)
10 CERTIFICATE OF SERVICE by Michael Dragovich re Douglas Shulman (Center, Claudia) (Filed on 4/30/2010) (Entered: 04/30/2010)
11 CERTIFICATE OF SERVICE by Michael Dragovich re IRS (Center, Claudia) (Filed on 4/30/2010) (Entered: 04/30/2010)
12 CERTIFICATE OF SERVICE by Michael Dragovich re Timothy Geithner (Center, Claudia) (Filed on 4/30/2010) (Entered: 04/30/2010)
13 CERTIFICATE OF SERVICE by Michael Dragovich re U.S. Dept of the Treasury (Center, Claudia) (Filed on 4/30/2010) (Entered: 04/30/2010)
14 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Claudia Wilken for all further proceedings. Judge Magistrate Judge Joseph C. Spero no longer assigned to the case. Signed by Executive Committee on 4/30/10. (mab, COURT STAFF) (Filed on 5/3/2010) (Entered: 05/03/2010)
***Deadlines terminated. 14 Order Reassigning Case (cp, COURT STAFF) (Filed on 5/4/2010) (Entered: 05/04/2010)
15 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASE: Case Management Statement due by 7/20/2010. Case Management Conference set for 7/27/2010 02:00 PM. Signed by Judge Claudia Wilken on 5/6/2010. (ndr, COURT STAFF) (Filed on 5/6/2010) Modiﬁed on 5/6/2010 (ndr, COURT STAFF). (Entered: 05/06/2010)
16 STIPULATION to Extend Time for Response to Complaint by Board of Administration of California Public Employees' Retirement System, Anne Stausboll. Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Gregory, Edward) (Filed on 5/6/2010) Modiﬁed on 5/7/2010 (cp, COURT STAFF). (Entered: 05/06/2010)
17 NOTICE of Appearance by Edward George Gregory for Defendants CalPERS and Anne Stausboll (Gregory, Edward) (Filed on 5/6/2010) (Entered: 05/06/2010)
18 CERTIFICATE OF SERVICE by Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Carolyn Light, Cheryl Light, Elizabeth Litteral re 15 Case Management Scheduling Order, (Gregory, Shelley) (Filed on 5/7/2010) (Entered: 05/07/2010)
19 ORDER re 16 Granting Stipulation to Extend Time for Response to Complaint. Signed by Judge Claudia Wilken on 5/12/2010. (ndr, COURT STAFF) (Filed on 5/12/2010) (Entered: 05/12/2010)
20 STIPULATION to Extend Time for Federal Defendants to Respond to Complaint by

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Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Lin, Jean) (Filed on 5/26/2010) Modiﬁed on 5/27/2010 (cp, COURT STAFF). (Entered: 05/26/2010)

06/01/2010

21 ORDER re 20 Granting Stipulation to Extend Time for Federal Defendants to Respond to Complaint. Signed by Judge Claudia Wilken on 6/1/2010. (ndr, COURT STAFF) (Filed on 6/1/2010) (Entered: 06/01/2010)

06/02/2010

22 STIPULATION TO EXTEND TIME for Federal Defendants to Respond to Complaint by Board of Administration of California Public Employees' Retirement System, Anne Stausboll. (Gregory, Edward) (Filed on 6/2/2010) Modiﬁed on 6/3/2010 (vlk, COURT STAFF). (Entered: 06/02/2010)

06/04/2010

23 STIPULATION AND ORDER: Allowing Defendants CalPERS and Stausboll an Extension of Time to ﬁle Answer to Complaint to 07/02/10. Signed by Judge Claudia Wilken on 6/4/2010. (ndr, COURT STAFF) (Filed on 6/4/2010) Modiﬁed on 6/7/2010 (jlm, COURT STAFF). (Entered: 06/04/2010)

07/01/2010

24 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Gregory, Shelley) (Filed on 7/1/2010) (Entered: 07/01/2010)

07/02/2010

25 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Motion Hearing set for 9/2/2010 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(Lin, Jean) (Filed on 7/2/2010) (Entered: 07/02/2010)

07/02/2010

26 ANSWER to Complaint FOR INJUNCTIVE AND DECLARATORY RELIEF byBoard of Administration of California Public Employees' Retirement System, Anne Stausboll. (Attachments: # 1 ANSWER (PAGE 6-10 ), # 2 ANSWER (PAGE 11-15), # 3 ANSWER (PAGE 16-19))(Gregory, Edward) (Filed on 7/2/2010) (Entered: 07/02/2010)

07/06/2010

27 ADR Clerks Notice Setting ADR Phone Conference on 7/21/10 at 11:30 a.m. Paciﬁc time. Please take note that at the appointed time, all parties shall call 218-339-2500 and use access code 1057593. (sgd, COURT STAFF) (Filed on 7/6/2010) (Entered: 07/06/2010)

07/06/2010

28 Certiﬁcate of Interested Entities by Michael Dragovich (Gregory, Shelley) (Filed on 7/6/2010) Modiﬁed on 7/7/2010 (cp, COURT STAFF). (Entered: 07/06/2010)

07/06/2010

29 STIPULATION to Continue Case Management Conference and Proposed Order by Michael Dragovich, Board of Administration of California Public Employees' Retirement System, Timothy Geithner, Douglas Shulman, Anne Stausboll, United States of Department of Treasury, . (Attachments: # 1 Afﬁdavit Declaration of Shelley A. Gregory in Support of Stipulation to Continue Case Management Conference)(Gregory, Shelley) (Filed on 7/6/2010) Modiﬁed on 7/7/2010 (cp, COURT STAFF). (Entered: 07/06/2010)

07/08/2010

30 Amended Notice of re 25 MOTION to Dismiss ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Motion Hearing set for 9/9/2010 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Lin, Jean) (Filed on 7/8/2010) Modiﬁed on 7/9/2010 (cp, COURT STAFF). (Entered: 07/08/2010)

07/08/2010

31 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options ADR Certiﬁcation by Parties and Counsel-Michael Dragovich (Center, Claudia) (Filed on 7/8/2010) (Entered: 07/08/2010)

07/08/2010

32 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options ADR Certiﬁcation by Parties and Counsel-Michael Gaitley (Center, Claudia) (Filed on 7/8/2010) (Entered:

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07/09/2010

Set/Reset Deadlines as to 25 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted. Motion Hearing set for 9/9/2010 02:00 PM. (cp, COURT STAFF) (Filed on 7/9/2010) (Entered: 07/09/2010)

07/12/2010

33 ORDER re 29 Granting Stipulation to Continue Case Management Conference. Case Management Conference set for 8/3/2010 02:00 PM. Signed by Judge Claudia Wilken on 7/12/2010. (ndr, COURT STAFF) (Filed on 7/12/2010) (Entered: 07/12/2010)

07/20/2010

34 *** FILED IN ERROR. PLEASE SEE DOCKET # 38 . *** NOTICE by Michael Dragovich Notice of Constitutional Question (Gregory, Shelley) (Filed on 7/20/2010) Modiﬁed on 7/20/2010 (ewn, COURT STAFF). (Entered: 07/20/2010)

07/20/2010

35 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options ADR Certiﬁcation By Parties and Counsel-Cheryl Light (Gregory, Shelley) (Filed on 7/20/2010) (Entered: 07/20/2010)

07/20/2010

36 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options ADR Certiﬁcation by Parties and Counsel-Carolyn Light (Gregory, Shelley) (Filed on 7/20/2010) (Entered: 07/20/2010)

07/20/2010

37 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options by Federal Defendants (Lin, Jean) (Filed on 7/20/2010) (Entered: 07/20/2010)

07/20/2010

38 NOTICE by Michael Dragovich Notice of Constitutional Question (Gregory, Shelley) (Filed on 7/20/2010) (Entered: 07/20/2010)

07/20/2010

39 ADR Certiﬁcation (ADR L.R. 3-5 b) of discussion of ADR options BY PARTIES AND COUNSEL (Gregory, Edward) (Filed on 7/20/2010) (Entered: 07/20/2010)

07/21/2010

ADR Remark: ADR Phone Conference held by RWS on 7/21/10. (sgd, COURT STAFF) (Filed on 7/21/2010) (Entered: 07/21/2010)

07/26/2010

40 CLERKS NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 9/2/2010. Case Management Conference set for 9/9/2010 02:00 PM. (ndr, COURT STAFF) (Filed on 7/26/2010) (Entered: 07/26/2010)

08/02/2010

41 STIPULATION AND [PROPOSED] PROTECTIVE ORDER by Board of Administration of California Public Employees' Retirement System, Anne Stausboll. (Attachments: # 1 Part 2 0f 4, # 2 Part 3 of 4, # 3 Part 4 of 4)(Gregory, Edward) (Filed on 8/2/2010) (Entered: 08/02/2010)

08/03/2010

42 ORDER re 41 Granting Stipulation and PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 8/3/2010. (ndr, COURT STAFF) (Filed on 8/3/2010) (Entered: 08/03/2010)

08/12/2010

43 Memorandum in Opposition re 25 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted ﬁled byMichael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light. (Center, Claudia) (Filed on 8/12/2010) Modiﬁed on 8/13/2010 (cp, COURT STAFF). Modiﬁed on 8/13/2010 (cp, COURT STAFF). (Entered: 08/12/2010)

08/12/2010

44 DECLARATION of Patricia Fitzsimmons in support of 43 Memorandum in Opposition ﬁled byMichael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light. (Related document(s) 43 ) (Center, Claudia) (Filed on 8/12/2010) Modiﬁed on 8/13/2010 (cp, COURT STAFF). (Entered: 08/12/2010)

08/12/2010 45 DECLARATION of Carolyn Light in support of 43 Memorandum in Opposition ﬁled

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byMichael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light. (Related document(s) 43 ) (Center, Claudia) (Filed on 8/12/2010) Modiﬁed on 8/13/2010 (cp, COURT STAFF). (Entered: 08/12/2010)

08/12/2010

46 DECLARATION of Michael Dragovich in support of 43 Memorandum in Opposition ﬁled byMichael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light. (Related document(s) 43 ) (Center, Claudia) (Filed on 8/12/2010) Modiﬁed on 8/13/2010 (cp, COURT STAFF). (Entered: 08/12/2010)

08/12/2010

47 DECLARATION of Claudia Center in support of 43 Memorandum in Opposition ﬁled byMichael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light. (Attachments: # 1 Exhibit Exhibit A to Center Declaration, # 2 Exhibit Exhibit B to Center Declaration, # 3 Exhibit Exhibit C to Center Declaration, # 4 Exhibit Exhibit D and E to Center Declaration)(Related document(s) 43 ) (Center, Claudia) (Filed on 8/12/2010) Modiﬁed on 8/13/2010 (cp, COURT STAFF). (Entered: 08/12/2010)

08/12/2010

48 NOTICE by Michael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light of Association of Counsel (Center, Claudia) (Filed on 8/12/2010) Modiﬁed on 8/13/2010 (cp, COURT STAFF). (Entered: 08/12/2010)

08/26/2010

49 REPLY in support re 25 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 8/26/2010) Modiﬁed on 8/27/2010 (cp, COURT STAFF). (Entered: 08/26/2010)

09/02/2010

50 CLERKS NOTICE CONTINUING MOTION TO DISMISS AND CASE MANAGEMENT CONFERENCE. Case Management Statement due by 9/30/2010. Case Management Conference set for 10/7/2010 02:00 PM. Motion Hearing set for 10/7/2010 02:00 PM. (ndr, COURT STAFF) (Filed on 9/2/2010) (Entered: 09/02/2010)

09/02/2010

51 JOINT CASE MANAGEMENT STATEMENT ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury, Board of Administration of California Public Employees' Retirement System, Anne Stausboll, Michael Dragovich, Michael Gaitley, Elizabeth Litteral, Patricia Fitzsimmons, Carolyn Light, Cheryl Light. (Lin, Jean) (Filed on 9/2/2010) Modiﬁed on 9/3/2010 (kc, COURT STAFF). (Entered: 09/02/2010)

09/13/2010

52 STIPULATION and Proposed Order to Continue Case Management Conference and Hearing of the Federal Defendants' Motion to Dismiss by Michael Dragovich, Board of Administration of California Public Employees' Retirement System, Timothy Geithner, Internal Revenue Service, Douglas Shulman, Anne Stausboll, United States of Department of the Treasury. (Center, Claudia) (Filed on 9/13/2010) Modiﬁed on 9/14/2010 (cp, COURT STAFF). (Entered: 09/13/2010)

09/14/2010

53 ORDER re 52 Granting Stipulation to Continue Case Management Conference and Hearing of the Federal Defendants' Motion to Dismiss. Case Management Conference set for 10/14/2010 02:00 PM. Motion Hearing set for 10/14/2010 02:00 PM. Signed by Judge Claudia Wilken on 9/14/2010. (ndr, COURT STAFF) (Filed on 9/14/2010) (Entered: 09/14/2010)

10/14/2010

54 Minute Entry: Initial Case Management Conference held on 10/14/2010 before Claudia Wilken (Date Filed: 10/14/2010). to be ﬁled) Dispositive Motion Hearing set for 2/24/2011 02:00 PM. (Court Reporter Diane Skillman.) (ndr, COURT STAFF) (Date Filed: 10/14/2010) (Entered: 10/29/2010)

10/14/2010

55 Minute Entry: Motion Hearing held on 10/14/2010 before Claudia Wilken (Date Filed: 10/14/2010). (Court Reporter Diane Skillman.) (ndr, COURT STAFF) (Date Filed:

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10/14/2010) (Entered: 10/29/2010)

01/18/2011

56 ORDER by Judge Claudia Wilken DENYING FEDERAL DEFENDANTS 25 MOTION TO DISMISS. (ndr, COURT STAFF) (Filed on 1/18/2011) (Entered: 01/18/2011)

01/19/2011

57 STIPULATION and Proposed Order Re Plaintiffs' Motion for Class Certiﬁcation by Michael Dragovich, Board of Administration of California Public Employees' Retirement System, Douglas Shulman, United States Department of the Treasury, et al. (Center, Claudia) (Filed on 1/19/2011) Modiﬁed on 1/21/2011 (cp, COURT STAFF). (Entered: 01/19/2011)

01/19/2011

58 ORDER Granting 57 Stipulation Re Plaintiffs' Motion for Class Certiﬁcation. Motion Hearing set for 6/9/2011 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 1/19/2011. (ndr, COURT STAFF) (Filed on 1/19/2011) (Entered: 01/19/2011)

01/26/2011

59 MOTION for Clariﬁcation of January 18, 2011 Order Denying Motion to Dismiss re 56 Order on Motion to Dismiss ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Attachments: # 1 Proposed Order)(Lin, Jean) (Filed on 1/26/2011) Modiﬁed on 1/27/2011 (cp, COURT STAFF). (Entered: 01/26/2011)

02/09/2011

60 ORDER by Judge Claudia Wilken REGARDING FEDERAL DEFENDANTS 59 MOTION FOR CLARIFICATION.(ndr, COURT STAFF) (Filed on 2/9/2011) (Entered: 02/09/2011)

02/18/2011

61 NOTICE of Change of Address by Claudia Center (Center, Claudia) (Filed on 2/18/2011) (Entered: 02/18/2011)

02/24/2011

62 STIPULATION and Proposed Order Granting Plaintiffs Leave to File First Amended Complaint for Injunctive and Declaratory Relief by Michael Dragovich, United States Department of the Treasury, et al. (Attachments: # 1 Afﬁdavit Declaration of Claudia Center, # 2 Exhibit Proposed First Amended Complaint for Injunctive and Declaratory Relief)(Center, Claudia) (Filed on 2/24/2011) Modiﬁed on 2/25/2011 (cp, COURT STAFF). (Entered: 02/24/2011)

02/24/2011

63 Transcript of Proceedings held on October 14, 2010, before Judge Claudia Wilken. Court Reporter Diane E. Skillman, Telephone number 510-451-2930, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Ofﬁce public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this ﬁling. Redaction Request due 3/17/2011. Redacted Transcript Deadline set for 3/28/2011. Release of Transcript Restriction set for 5/25/2011. (Skillman, Diane) (Filed on 2/24/2011) (Entered: 02/24/2011)

02/25/2011

64 NOTICE by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury (Attachments: # 1 Attachment, # 2 Attachment)(Lin, Jean) (Filed on 2/25/2011) (Entered: 02/25/2011)

03/01/2011

65 ORDER Granting 62 Plaintiffs Leave to File First Amended Complaint for Injunctive and Declaratory Relief. Signed by Judge Claudia Wilken on 3/1/2011. (ndr, COURT STAFF) (Filed on 3/1/2011) Modiﬁed on 3/2/2011 (cp, COURT STAFF). (Entered: 03/01/2011)

03/01/2011

66 AMENDED COMPLAINT First Amended Complaint for Injunctive and Declaratory Relief against United States Department of the Treasury. Filed byMichael Dragovich. (Center, Claudia) (Filed on 3/1/2011) (Entered: 03/01/2011)

03/09/2011 67 MOTION to Stay Proceedings for Sixty Days; (Proposed) Order ﬁled by Timothy

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05/02/2011 05/02/2011 05/03/2011 05/06/2011 05/10/2011 05/10/2011 05/10/2011 05/12/2011

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Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Attachments: # 1 Proposed Order)(Lin, Jean) (Filed on 3/9/2011) Modiﬁed on 3/10/2011 (cp, COURT STAFF). (Entered: 03/09/2011)
68 RESPONSE (re 67 MOTION to Stay Proceedings for Sixty Days ) Plaintiffs' Opposition to the Federal Defendants' Motion For Stay ﬁled byMichael Dragovich. (Attachments: # 1 Afﬁdavit Declaration of Elizabeth Kristen, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B) (Kristen, Elizabeth) (Filed on 3/11/2011) (Entered: 03/11/2011)
69 ORDER by Judge Claudia Wilken Denying Federal Defendants' 67 Motion to Stay. (ndr, COURT STAFF) (Filed on 3/17/2011) (Entered: 03/17/2011)
70 MOTION to Certify Class ﬁled by Michael Dragovich. Motion Hearing set for 6/9/2011 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Afﬁdavit Declaration of Patrick B. Clayton, # 3 Exhibit Exhibit A to the Declaration of Patrick B. Clayton, # 4 Afﬁdavit Declaration of William C. McNeill, # 5 Afﬁdavit Declaration of Claudia Center, # 6 Afﬁdavit Declaration of Elizabeth Kristen, # 7 Exhibit Exhibits A-C to the Declaration of Elizabeth Kristen, # 8 Afﬁdavit Declaration of Michael Dragovich, # 9 Exhibit Exhibits A-D to the Declaration of Michael Dragovich, # 10 Afﬁdavit Declaration of Patricia Fitzsimmons, # 11 Afﬁdavit Declaration of Joanne Schmidt, # 12 Afﬁdavit Declaration of Leslie Cooley, # 13 Afﬁdavit Declaration of Charles Cole, # 14 Proposed Order Proposed Order)(Kristen, Elizabeth) (Filed on 4/14/2011) (Entered: 04/14/2011)
71 MOTION to Dismiss First Amended Complaint ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Motion Hearing set for 6/23/2011 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. (Attachments: # 1 Attachments, # 2 Proposed Order)(Lin, Jean) (Filed on 5/2/2011) (Entered: 05/02/2011)
72 MOTION to Intervene; (Proposed) Order ﬁled by Bipartisan Legal Advisory Group. Motion Hearing set for 6/16/2011 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. (Kircher, Kerry) (Filed on 5/2/2011) Modiﬁed on 5/3/2011 (cp, COURT STAFF). (Entered: 05/02/2011)
73 ORDER EXPEDITING BRIEFING ON BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES 72 MOTION TO INTERVENE FOR A LIMITED PURPOSE. Signed by Judge Claudia Wilken on 5/3/2011. (ndr, COURT STAFF) (Filed on 5/3/2011) (Entered: 05/03/2011)
74 CLERKS NOTICE Continuing Motion Hearing as to 70 MOTION to Certify Class. Motion Hearing set for 6/23/2011 02:00 PM before Hon. Claudia Wilken. (ndr, COURT STAFF) (Filed on 5/6/2011) (Entered: 05/06/2011)
75 RESPONSE (re 72 MOTION to Intervene ) ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Attachments: # 1 Proposed Order)(Lin, Jean) (Filed on 5/10/2011) (Entered: 05/10/2011)
76 RESPONSE (re 70 MOTION to Certify Class ) ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 5/10/2011) (Entered: 05/10/2011)
77 RESPONSE (re 72 MOTION to Intervene ) Plaintiffs' Opposition to the Bipartisan Legal Advisory Group's Motion to Intervene ﬁled byMichael Dragovich. (Kristen, Elizabeth) (Filed on 5/10/2011) (Entered: 05/10/2011)
78 Stipulation and Proposed Order to Alter Brieﬁng Schedule on the Federal Defendants' Motion to Dismiss by Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley,

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Carolyn LIght, Cheryl Light, Elizabeth Litteral, Board of Administration of California Public Employees' Retirment Systesm, Timothy Geithner, Internal Revenue Service, Douglas Shulman, Anne Stausbool, United States Department of the Treasury, . (Center, Claudia) (Filed on 5/12/2011) Modiﬁed on 5/13/2011 (cp, COURT STAFF). (Entered: 05/12/2011)

05/12/2011

79 ORDER granting Stipulation. Signed by Judge Claudia Wilken on May 12, 2011. (cwlc3, COURT STAFF) (Filed on 5/12/2011) Modiﬁed on 5/12/2011 (cwlc3, COURT STAFF). (Entered: 05/12/2011)

05/17/2011

80 REPLY (re 72 MOTION to Intervene ) ﬁled byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 5/17/2011) (Entered: 05/17/2011)

05/26/2011

81 RESPONSE (re 71 MOTION to Dismiss First Amended Complaint ) ﬁled byMichael Dragovich. (Kristen, Elizabeth) (Filed on 5/26/2011) (Entered: 05/26/2011)

06/03/2011

82 CLERKS NOTICE TAKING MOTION UNDER SUBMISSION. (ndr, COURT STAFF) (Filed on 6/3/2011) (Entered: 06/03/2011)

06/07/2011

83 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d ﬁled byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kircher, Kerry) (Filed on 6/7/2011) (Entered: 06/07/2011)

06/09/2011

84 REPLY (re 71 MOTION to Dismiss First Amended Complaint ) ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 6/9/2011) (Entered: 06/09/2011)

06/10/2011

85 NOTICE of Appearance by Conor Brendan Dugan (Dugan, Conor) (Filed on 6/10/2011) (Entered: 06/10/2011)

06/10/2011

86 NOTICE of Appearance by Paul D. Clement (Clement, Paul) (Filed on 6/10/2011) (Entered: 06/10/2011)

06/10/2011

87 NOTICE of Appearance by H. Christopher Bartolomucci (Bartolomucci, H. Christopher) (Filed on 6/10/2011) (Entered: 06/10/2011)

06/10/2011

88 ORDER by Judge Claudia Wilken Granting 72 Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose. (ndr, COURT STAFF) (Filed on 6/10/2011) (Entered: 06/10/2011)

06/10/2011

89 NOTICE of Change In Counsel by Elizabeth Kristen (Kristen, Elizabeth) (Filed on 6/10/2011) (Entered: 06/10/2011)

06/21/2011

90 STIPULATION and Proposed Order to Postpone Hearing on the Federal Defendants' Motion to Dismiss and the Plaintiffs' Motion for Class Certiﬁcation by Michael Dragovich. (Center, Claudia) (Filed on 6/21/2011) (Entered: 06/21/2011)

06/21/2011

91 ORDER Granting 90 Stipulation to Postpone Hearing on the Federal Defendants' Motion to Dismiss and the Plaintiffs' Motion for Class Certiﬁcation. 70 , 71 Motion Hearings Noticed for 6/23/2011 are Vacated Pursuant to this Order. Signed by Judge Claudia Wilken on 6/21/2011. (ndr, COURT STAFF) (Filed on 6/21/2011) (Entered: 06/21/2011)

07/15/2011

92 ORDER by Judge Claudia Wilken granting 70 Motion to Certify Class; denying without prejudice to reﬁling 71 Motion to Dismiss (cwlc3, COURT STAFF) (Filed on 7/15/2011) (Entered: 07/15/2011)

08/15/2011

93 STIPULATION and Proposed Order Granting Plaintiff's' Leave to File Second Amended Complaint and Setting Schedule on Motion to Dismiss by Michael Dragovich, United States Department of the Treasury, Board of Administration of California Public Employees' Retirement System, et al. (Attachments: # 1 Declaration Declaration of

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09/15/2011

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Claudia Center, # 2 Exhibit Exhibit A)(Center, Claudia) (Filed on 8/15/2011) Modiﬁed on 8/16/2011 (cp, COURT STAFF). (Entered: 08/15/2011)
94 ORDER Granting 93 Stipulation Plaintiff's' Leave to File Second Amended Complaint and Setting Schedule on Motion to Dismiss. Motion to Dismiss due by 9/15/2011. Replies due by 9/29/2011. Responses due by 10/13/2011. Motion Hearing set for 10/27/2011 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 8/19/2011. (ndr, COURT STAFF) (Filed on 8/19/2011) . (Entered: 08/19/2011)
95 AMENDED COMPLAINT Second Amended Complaint against United States Department of the Treasury. Filed byMichael Dragovich. (Kristen, Elizabeth) (Filed on 9/7/2011) (Entered: 09/07/2011)
96 MOTION to Dismiss Second Amended Complaint (Regarding Domestic Partner Issue) ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Motion Hearing set for 10/20/2011 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 9/29/2011. Replies due by 10/13/2011. (Attachments: # 1 Attachments)(Lin, Jean) (Filed on 9/15/2011) (Entered: 09/15/2011)
October 20, 2011 Hearing Date as to 96 Motion to Dismiss is Terminated. Counsel to ReNotice 96 Motion to Dismiss in Accordance with the Court's Order. See Docket No. 94.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 9/15/2011) (Entered: 09/15/2011)

09/16/2011

97 MOTION to Dismiss Second Amended Complaint (Regarding Domestic Partner Issue) (same ﬁling as Docket No. 96 with corrected hearing date) ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Motion Hearing set for 10/27/2011 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 9/29/2011. Replies due by 10/13/2011. (Attachments: # 1 Attachments)(Lin, Jean) (Filed on 9/16/2011) Modiﬁed on 9/30/2011 (cp, COURT STAFF). (Entered: 09/16/2011)

09/29/2011

98 RESPONSE (re 97 MOTION to Dismiss Second Amended Complaint (Regarding Domestic Partner Issue) (same ﬁling as Docket No. 96 with corrected hearing date) ﬁled byMichael Dragovich. (Center, Claudia) (Filed on 9/29/2011) Modiﬁed on 9/30/2011 (cp, COURT STAFF). (Entered: 09/29/2011)

10/12/2011

99 REPLY (re 97 MOTION to Dismiss Second Amended Complaint (Regarding Domestic Partner Issue) ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 10/12/2011) Modiﬁed on 10/13/2011 (cp, COURT STAFF). (Entered: 10/12/2011)

10/27/2011

101 Minute Entry: Motion Hearing held on 10/27/2011 before Claudia Wilken (Date Filed: 10/27/2011). (Court Reporter Jennifer Macato.) (ndr, COURT STAFF) (Date Filed: 10/27/2011) (Entered: 11/07/2011)

11/01/2011

100 Supplemental Authority in Support of 98 Opposition to the Federal Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (Regarding Domestic Partner Issue) ﬁled by Michael Dragovich. (Attachments: # 1 Exhibit House Judiciary Committee Report on the Defense of Marriage Act)(Center, Claudia) (Filed on 11/1/2011) Modiﬁed on 11/2/2011 (kc, COURT STAFF). (Entered: 11/01/2011)

11/22/2011

102 Parties' Stipulation and Proposed Order Regarding Brieﬁng Schedule For Motion for Summary Judgment by Michael Dragovich. (Center, Claudia) (Filed on 11/22/2011) Modiﬁed on 11/23/2011 (kc, COURT STAFF). (Entered: 11/22/2011)

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103 ORDER Granting 102 Stipulation Regarding Brieﬁng Schedule For Motion for Summary Judgment. Motions due by 1/19/2012. Cross Motions due by 2/21/2012. Responses due by 2/21/2012. Replies due by 3/22/2012. Replies due 4/12/2012. Motion Hearing set for 4/26/2012 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 11/23/2011. (ndr, COURT STAFF) (Filed on 11/23/2011) (Entered: 11/23/2011)
104 STIPULATION and Proposed Order Regarding Plaintiffs' Expert Witnesses by Michael Dragovich, Bipartisan Legal Advisory Group. (Attachments: # 1 Exhibit Exhibit A) (Center, Claudia) (Filed on 12/21/2011) Modiﬁed on 12/22/2011 (cp, COURT STAFF). (Entered: 12/21/2011)
105 ORDER Granting 104 Stipulation Regarding Plaintiffs' Expert Witnesses. Signed by Judge Claudia Wilken on 12/22/2011. (Attachments: # 1 Exhibit)(ndr, COURT STAFF) (Filed on 12/22/2011) (Entered: 12/22/2011)
106 MOTION for Leave to File Excess Pages Re: Motion for Summary Judgment and Proposed Order ﬁled by Michael Dragovich, United States Department of the Treasury, Bipartisan Legal Advisory Group . (Center, Claudia) (Filed on 1/5/2012) Modiﬁed on 1/6/2012 (cp, COURT STAFF). (Entered: 01/05/2012)
107 ORDER by Judge Claudia Wilken Granting 106 Motion for Leave to File Excess Pages (ndr, COURT STAFF) (Filed on 1/6/2012) (Entered: 01/06/2012)
108 Federal Defendants' Brief In Partial Support of Plaintiffs' Motion for Summary Judgment ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 1/19/2012) Modiﬁed on 1/20/2012 (cp, COURT STAFF). (Entered: 01/19/2012)
109 MOTION for Summary Judgment ﬁled by Michael Dragovich, Michael Gaitley, et al. Motion Hearing set for 4/26/2012 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 2/21/2012. Replies due by 3/22/2012. (Attachments: # 1 Declaration Claudia Center, # 2 Exhibit A to Center Declaration, # 3 Exhibit B to Center Declaration, # 4 Exhibit C to Center Declaration, # 5 Exhibit D to Center Declaration, # 6 Exhibit E to Center Declaration, # 7 Exhibit F to Center Declaration, # 8 Exhibit G to Center Declaration, # 9 Exhibit H to Center Declaration, # 10 Exhibit I to Center Declaration, # 11 Exhibit J to Center Declaration, # 12 Exhibit K to Center Declaration, # 13 Exhibit L to Center Declaration, # 14 Exhibit M to Center Declaration, # 15 Declaration Pederson, # 16 Declaration Dominguez/Hermosillo, # 17 Declaration Dragovich/Gaitley, # 18 Exhibit A-D to Dragovich/Gaitley, # 19 Declaration Cooley/Jenson, # 20 Declaration Beers/Cole, # 21 Declaration Chauncey, # 22 Exhibit A to Chauncey Declaration, # 23 Exhibit B to Chauncey Declaration, # 24 Declaration Cott, # 25 Exhibit A to Cott Declaration, # 26 Exhibit B to Cott Declaration, # 27 Declaration Infanti, # 28 Exhibit A to Infanti Declaration, # 29 Exhibit B to Infanti Declaration, # 30 Exhibit C to Infanti Declaration, # 31 Declaration Lamb, # 32 Exhibit A to Lamb Declaration, # 33 Exhibit B to Lamb Declaration, # 34 Declaration Peplau, # 35 Exhibit A to Peplau Declaration, # 36 Exhibit B to Peplau Declaration, # 37 Declaration Segura, # 38 Exhibit A to Segura Declaration, # 39 Exhibit B to Segura Declaration, # 40 Proposed Order)(Center, Claudia) (Filed on 1/19/2012) Modiﬁed on 1/20/2012 (cp, COURT STAFF). (Entered: 01/19/2012)
110 (Corrected) Notice of Motion and Motion for Summary Judgment or Summary Adjudication: Memorandum of Points and Authorities in Support of Motion ﬁled by Michael Dragovich. Motion Hearing set for 4/26/2012 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 2/21/2012. Replies due by 3/22/2012. (Center, Claudia) (Filed on 1/20/2012) Modiﬁed on 1/23/2012 (cp, COURT STAFF). (Entered: 01/20/2012)

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111 (Corrected) MOTION for Summary Judgment or Summary Adjudication ﬁled by Michael Dragovich. Motion Hearing set for 4/26/2012 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 2/21/2012. Replies due by 3/22/2012. (Attachments: # 1 Declaration Declaration of Center, # 2 Exhibit Exhibit A to Center Declaration, # 3 Exhibit Exhibit B to Center Declaration, # 4 Exhibit Exhibit C to Center Declaration, # 5 Exhibit Exhibit D to Center Declaration, # 6 Exhibit Exhibit E to Center Declaration, # 7 Exhibit Exhibit F to Center Declaration, # 8 Exhibit Exhibit G to Center Declaration, # 9 Exhibit Exhibit H to Center Declaration, # 10 Exhibit Exhibit I to Center Declaration, # 11 Exhibit Exhibit J to Center Declaration, # 12 Exhibit Exhibit K to Center Declaration, # 13 Exhibit Exhibit L to Center Declaration, # 14 Exhibit Exhibit M to Center Declaration, # 15 Declaration Declaration of Pederson, # 16 Declaration Declaration of Dominguez/Hermosillo, # 17 Declaration Declaration of Dragovich/Gaitley, # 18 Exhibit Exhibits A-D to Dragovich/Gaitley Declaration, # 19 Declaration Declaration of Cooley/Jenson, # 20 Declaration Declaration of Beers/Cole, # 21 Declaration Declaration of Chauncey, # 22 Exhibit Exhibit A to Chauncey Declaration, # 23 Exhibit Exhibit B to Chauncey Declaration, # 24 Declaration Declaration of Cott, # 25 Exhibit Exhibit A to Cott Declaration, # 26 Exhibit Exhibit B to Cott Declaration, # 27 Declaration Declaration of Infanti, # 28 Exhibit Exhibit A to Infanti Declaration, # 29 Exhibit Exhibit B to Infanti Declaration, # 30 Exhibit Exhibit C to Infanti Declaration, # 31 Declaration Declaration of Lamb, # 32 Exhibit Exhibit A to Lamb Declaration, # 33 Exhibit Exhibit B to Lamb Declaration, # 34 Declaration Declaration of Peplau, # 35 Exhibit Exhibit A to Peplau Declaration, # 36 Exhibit Exhibit B to Peplau Declaration, # 37 Declaration Declaration of Segura, # 38 Exhibit Exhibit A to Segura Declaration, # 39 Exhibit Exhibit B to Segura Declaration, # 40 Proposed Order)(Center, Claudia) (Filed on 1/20/2012) Modiﬁed on 1/23/2012 (cp, COURT STAFF). (Entered: 01/20/2012)
112 ORDER by Judge Claudia Wilken DENYING FEDERAL DEFENDANTS' 97 MOTION TO DISMISS CERTAIN CLAIMS. (ndr, COURT STAFF) (Filed on 1/26/2012) (Entered: 01/26/2012)
113 STIPULATION WITH PROPOSED ORDER GRANTING STATE DEFENDANTS TO FEBRUARY 21, 2012 TO RESPOND TO PLAINTIFFS' SUMMARY JUDGMENT MOTION AND FEDERAL DEFENDANTS' SUPPORTING BRIEF ﬁled by Board of Administration of California Public Employees' Retirement System, Anne Stausboll. (Gregory, Edward) (Filed on 2/17/2012) (Entered: 02/17/2012)
114 RESPONSE (re 111 MOTION for Summary Judgment or Summary Adjudication ) And Cross Motion for Summary Judgment ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Attachments: # 1 Exhibit 1)(Lin, Jean) (Filed on 2/21/2012) (Entered: 02/21/2012)
115 RESPONSE (re 111 MOTION for Summary Judgment or Summary Adjudication ) and Cross-Motion for Summary Judgment ﬁled byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kircher, Kerry) (Filed on 2/21/2012) (Entered: 02/21/2012)
116 Cross MOTION for Summary Judgment (same ﬁling as ECF No. 114 ) ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Motion Hearing set for 4/26/2012 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 3/22/2012. Replies due by 4/12/2012. (Attachments: # 1 Exhibit 1)(Lin, Jean) (Filed on 2/21/2012) Modiﬁed on 2/22/2012 (cp, COURT STAFF). (Entered: 02/21/2012)
117 Cross MOTION for Summary Judgment (same ﬁling as ECF No. 115 ) ﬁled by Bipartisan Legal Advisory Group. Motion Hearing set for 4/26/2012 02:00 PM in Courtroom 2, 4th

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Floor, Oakland before Hon. Claudia Wilken. Responses due by 3/22/2012. Replies due by 4/12/2012. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kircher, Kerry) (Filed on 2/21/2012) Modiﬁed on 2/22/2012 (cp, COURT STAFF). (Entered: 02/21/2012)

02/24/2012

118 Order granting 113 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 02/24/2012)

02/24/2012

119 RESPONSE (re 111 MOTION for Summary Judgment or Summary Adjudication ) AND TO FEDERAL DEFENDANTS' SUPPORTING BRIEF ﬁled byBoard of Administration of California Public Employees' Retirement System, Anne Stausboll. (Gregory, Edward) (Filed on 2/24/2012) (Entered: 02/24/2012)

02/27/2012

Set/Reset Deadlines as to 111 MOTION for Summary Judgment or Summary Adjudication. Responses due by 2/25/2012. (ndr, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)

03/22/2012

120 Combined Opposition and Reply re: Motion and Cross-Motion for Summary Judgment ﬁled by Michael Dragovich. (Attachments: # 1 Declaration Declaration of Claudia Center, # 2 Exhibit Exhibit A to Center Declaration, # 3 Exhibit Exhibit B to Center Declaration, # 4 Declaration Declaration of Yarbrough and Ruys)(Center, Claudia) (Filed on 3/22/2012) Modiﬁed on 3/23/2012 (cp, COURT STAFF). (Entered: 03/22/2012)

04/12/2012

121 REPLY (re 116 Cross MOTION for Summary Judgment ) ﬁled byTimothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 4/12/2012) (Entered: 04/12/2012)

04/12/2012

122 REPLY (re 117 Cross MOTION for Summary Judgment ) ﬁled byBipartisan Legal Advisory Group. (Attachments: # 1 Exhibit A)(Kircher, Kerry) (Filed on 4/12/2012) (Entered: 04/12/2012)

04/26/2012

123 Minute Entry: Motion Hearing held on 4/26/2012 before Claudia Wilken (Date Filed: 4/26/2012). (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 4/26/2012) (Entered: 05/07/2012)

05/24/2012

124 ORDER GRANTING PLAINTIFFS 11 MOTION FOR SUMMARY JUDGMENT AND DENYING THE BLAGS AND FEDERAL DEFENDANTS 116 , 117 CROSSMOTIONS FOR SUMMARY JUDGMENT.. Signed by Judge Claudia Wilken on 5/24/2012. (ndr, COURT STAFF) (Filed on 5/24/2012) (Entered: 05/24/2012)

05/24/2012

125 CLERK'S JUDGMENT in favor of Carolyn Light, Charles Cole, Cheryl Light, Elizabeth Litteral, Jose G. Hermosillo, Michael Dragovich, Michael Gaitley, Patricia Fitzsimmons, Rafael V. Dominguez against Bipartisan Legal Advisory Group, Board of Administration of California Public Employees' Retirement System, Internal Revenue Service, United States Department of the Treasury, Anne Stausboll, Douglas Shulman, Timothy Geithner (ndr, COURT STAFF) (Filed on 5/24/2012) (Entered: 05/24/2012)

06/07/2012

126 BILL OF COSTS by Michael Dragovich. (Attachments: # 1 Declaration Declaration of Elizabeth Kristen, # 2 Declaration Exhibits A-F)(Kristen, Elizabeth) (Filed on 6/7/2012) (Entered: 06/07/2012)

06/07/2012

127 STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Motion for Reasonable Attorneys' Fees and Costs ﬁled by Michael Dragovich, Board of Administration of California Public Employees' Retirement Systems, United States Department of the Treasury. (Kristen, Elizabeth) (Filed on 6/7/2012) Modiﬁed on 6/8/2012 (cpS, COURT STAFF). (Entered: 06/07/2012)

06/07/2012 128 MOTION for Extension of Time to File Plaintiffs' Motion for Reasonable Attorneys' Fees as to BLAG ﬁled by Michael Dragovich. (Attachments: # 1 Declaration Declaration of

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Elizabeth Kristen, # 2 Exhibit Exhibit A-H)(Kristen, Elizabeth) (Filed on 6/7/2012) (Entered: 06/07/2012)

06/08/2012

129 RESPONSE (re 128 MOTION for Extension of Time to File Plaintiffs' Motion for Reasonable Attorneys' Fees as to BLAG ) ﬁled byBipartisan Legal Advisory Group. (Bartolomucci, H. Christopher) (Filed on 6/8/2012) (Entered: 06/08/2012)

06/11/2012

130 Order granting 127 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 06/11/2012)

06/11/2012

131 Order granting 128 Motion for Extension of Time to File entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 06/11/2012)

06/12/2012

Set Deadlines: Motions due by 8/22/2012. See Texet 130 Order. (ndr, COURT STAFF) (Filed on 6/12/2012) (Entered: 06/12/2012)

06/26/2012

132 NOTICE OF APPEAL to the 9th CCA Bipartisan Legal Advisory Group. Appeal of Order, Order Dismissing Case 124 , Clerk's Judgment, 125 (Appeal fee FEE WAIVED.) (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Kircher, Kerry) (Filed on 6/26/2012) (Entered: 06/26/2012)

06/26/2012

134 USCA Case Number 12-16461 Ninth Circuit Court of Appeals for 132 Notice of Appeal, ﬁled by Bipartisan Legal Advisory Group. (kk, COURT STAFF) (Filed on 6/26/2012) (Entered: 06/27/2012)

06/27/2012 133 Costs Taxed in amount of $ 693.99 against All Defendants. (oh, COURT STAFF) (Filed on 6/27/2012) (Entered: 06/27/2012)

07/02/2012 135 Transcript Designation and Ordering Form for proceedings held on 04/26/2012 before Judge Hon. Claudia Wilken, (Kircher, Kerry) (Filed on 7/2/2012) (Entered: 07/02/2012)

07/20/2012

136 NOTICE OF APPEAL to the 9th CCA Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Appeal of Order, Order Dismissing Case 124 , Clerk's Judgment, 125 (Appeal fee FEE WAIVED.) (Attachments: # 1 Exhibit Judgment, # 2 Exhibit Order)(Lin, Jean) (Filed on 7/20/2012) (Entered: 07/20/2012)

07/23/2012

137 USCA Case Number 12-16628 Ninth Circuit Court of Appeals for 136 Notice of Appeal, ﬁled by United States Department of the Treasury, Douglas Shulman, Timothy Geithner, Internal Revenue Service. (kk, COURT STAFF) (Filed on 7/23/2012) (Entered: 07/23/2012)

07/24/2012

138 MOTIONFOR AN ORDER STAYING COMPLIANCE WITH THE COURT'S SUMMARY JUDGMENT RULING AND JUDGMENT; [PROPOSED] ORDER ﬁled by Board of Administration of California Public Employees' Retirement System, Anne Stausboll. Responses due by 8/7/2012. Replies due by 8/14/2012. (Attachments: # 1 Declaration DECLARATION OF EDWARD GREGORY SUPPORTING STATE DEFENDANTS' ADMINISTRATIVE MOTION FOR ORDER STAYING COMPLIANCE WITH COURT'S SUMMARY JUDGMENT RULING AND JUDGMENT)(Gregory, Edward) (Filed on 7/24/2012) Modiﬁed on 7/25/2012 (cpS, COURT STAFF). (Entered: 07/24/2012)

07/31/2012

139 Order granting 138 Motion to stay ruling pending appeal entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 07/31/2012)

08/08/2012 140 Transcript of Proceedings held on April 26, 2012, Court Reporter Raynee H. Mercado,

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Telephone number (510)451-7530, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Ofﬁce public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this ﬁling. Redaction Request due 8/29/2012. Redacted Transcript Deadline set for 9/10/2012. Release of Transcript Restriction set for 11/6/2012. (rhm, ) (Filed on 8/8/2012) (Entered: 08/08/2012)

08/08/2012

141 MOTION to Stay All Attorney's Fee Litigation or In the Alternative for Entry of Stipulated Brieﬁng Schedule; (Proposed) Order ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the Treasury. Responses due by 8/13/2012. (Attachments: # 1 Declaration of Jean Lin)(Lin, Jean) (Filed on 8/8/2012) Modiﬁed on 8/9/2012 (cp, COURT STAFF). (Entered: 08/08/2012)

08/13/2012

142 RESPONSE (re 141 MOTION to Stay All Attorney's Fee Litigation or In the Alternative for Entry of Stipulated Brieﬁng Schedule ) ﬁled byMichael Dragovich. (Kristen, Elizabeth) (Filed on 8/13/2012) (Entered: 08/13/2012)

08/20/2012

143 Order granting 141 Motion to Stay attorneys' fees litigation pending appeal, entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 08/20/2012)

09/21/2012

144 ORDER of USCA granting appellees' motion to consolidate appeal; granting motion to stay appeal pending the U.S. Supreme Court's decision on granting certiorari on pending petions as to 136 Notice of Appeal, ﬁled by United States Department of the Treasury, Douglas Shulman, Timothy Geithner, Internal Revenue Service, 132 Notice of Appeal, ﬁled by Bipartisan Legal Advisory Group (cp, COURT STAFF) (Filed on 9/21/2012) (Entered: 09/24/2012)

06/25/2013

145 ORDER of USCA granting motion to stay appeal until August 1, 2013 as to 136 Notice of Appeal, ﬁled by United States Department of the Treasury, Douglas Shulman, Timothy Geithner, Internal Revenue Service, 132 Notice of Appeal, ﬁled by Bipartisan Legal Advisory Group (cpS, COURT STAFF) (Filed on 6/25/2013) (Entered: 06/27/2013)

07/22/2013

146 ORDER OF USCA lifting stay of proceedings as to 136 Notice of Appeal, ﬁled by United States Department of the Treasury, Douglas Shulman, Timothy Geithner, Internal Revenue Service: MANDATE of USCA only as to 132 Notice of Appeal, ﬁled by Bipartisan Legal Advisory Group (cp, COURT STAFF) (Filed on 7/22/2013) (Entered: 07/23/2013)

10/28/2013

147 ORDER of USCA: VACATED in part; and REMANDED as to 136 Notice of Appeal, ﬁled by United States Department of the Treasury, Douglas Shulman, Timothy Geithner, Internal Revenue Service (cp, COURT STAFF) (Filed on 10/28/2013) (Entered: 10/28/2013)

11/26/2013

148 ORDER SETTING BRIEFING SCHEDULE: Motions due by 1/2/2014; Responses due by 1/16/2014; Replies due by 1/23/2014; Motion Hearing set for 2/6/2014 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 11/26/2013. (ndr, COURT STAFF) (Filed on 11/26/2013) (Entered: 11/26/2013)

12/03/2013

149 MOTION to Withdraw as a Party ﬁled by Bipartisan Legal Advisory Group. Motion Hearing set for 1/9/2014 02:00 PM before Hon. Claudia Wilken. Responses due by 12/17/2013. Replies due by 12/24/2013. (Attachments: # 1 Declaration of Kerry W. Kircher, # 2 Proposed Order)(Kircher, Kerry) (Filed on 12/3/2013) (Entered: 12/03/2013)

12/03/2013 150 STIPULATION WITH PROPOSED ORDER re Brieﬁng Schedule ﬁled by Timothy Geithner, Internal Revenue Service, Douglas Shulman, United States Department of the

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12/04/2013 12/16/2013
12/19/2013 12/20/2013 12/23/2013 12/23/2013 12/30/2013 01/17/2014 02/13/2014 03/06/2014
03/10/2014 03/20/2014 03/28/2014

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Treasury, Board of Administration of California Public Employees' Retirement System, Michael Dragovich, et al. (Lin, Jean) (Filed on 12/3/2013) Modiﬁed on 12/4/2013 (cpS, COURT STAFF). (Entered: 12/03/2013)
151 Order granting 150 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 12/04/2013)
152 RESPONSE (re 149 MOTION to Withdraw as a Party ) ﬁled byDavid Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Reide Garnett, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral, Joanne Schmidt. (Attachments: # 1 Declaration of Elizabeth Kristen)(Kristen, Elizabeth) (Filed on 12/16/2013) (Entered: 12/16/2013)
153 Consent Ex Parte Application to Extend by Three Business Days Its Time to File a Reply in Support of Its Motion to Withdraw as a Party ﬁled by Bipartisan Legal Advisory Group. (Attachments: # 1 Declaration of Kerry W. Kircher, # 2 Proposed Order)(Kircher, Kerry) (Filed on 12/19/2013) (Entered: 12/19/2013)
154 Order granting 153 Ex Parte Application entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 12/20/2013)
Reset Deadlines as to 149 MOTION to Withdraw (See Docket No. 581 ): Replies due by 12/30/2013. (ndr, COURT STAFF) (Filed on 12/23/2013) (Entered: 12/23/2013)
155 MANDATE of USCA as to 136 Notice of Appeal, ﬁled by United States Department of the Treasury, Douglas Shulman, Timothy Geithner, Internal Revenue Service (cpS, COURT STAFF) (Filed on 12/23/2013) (Entered: 12/26/2013)
156 REPLY (re 149 MOTION to Withdraw as a Party ) ﬁled byBipartisan Legal Advisory Group. (Kircher, Kerry) (Filed on 12/30/2013) (Entered: 12/30/2013)
157 ORDER by Judge Claudia Wilken DENYING 149 MOTION TO WITHDRAW. (ndr, COURT STAFF) (Filed on 1/17/2014) (Entered: 01/17/2014)
158 Supplemental Brief Regarding Implication of Windsor and Perry pursuant to 148 Order ﬁled byTimothy Geithner, Internal Revenue Service, John Koskinen, Jacob Lew, United States Department of the Treasury. (Related document(s) 148 ) (Lin, Jean) (Filed on 2/13/2014) Modiﬁed on 2/14/2014 (cpS, COURT STAFF). (Entered: 02/13/2014)
159 Responsive Brief of Plaintiff Class Re Subsequent Legal Developments re 158 ﬁled byDavid Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Related document(s) 158 ) (Center, Claudia) (Filed on 3/6/2014) Modiﬁed on 3/7/2014 (cpS, COURT STAFF). (Entered: 03/06/2014)
160 ERRATA re 158 Supplemental Brief, by Timothy Geithner, Internal Revenue Service, John Koskinen, Jacob Lew, Douglas Shulman, United States Department of the Treasury. (Attachments: # 1 Errata)(Lin, Jean) (Filed on 3/10/2014) (Entered: 03/10/2014)
161 Reply Brief re 159 Brief, Regarding Windsor & Perry ﬁled byInternal Revenue Service, John Koskinen, Jacob Lew, United States Department of the Treasury. (Related document(s) 159 ) (Lin, Jean) (Filed on 3/20/2014) Modiﬁed on 3/21/2014 (cpS, COURT STAFF). (Entered: 03/20/2014)
162 NOTICE of Appearance by Kathleen R Hartnett for Federal Defendants (Hartnett, Kathleen) (Filed on 3/28/2014) (Entered: 03/28/2014)

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05/19/2014 05/28/2014
05/29/2014

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163 MOTION for Leave to File Surreply ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Center, Claudia) (Filed on 3/31/2014) (Entered: 03/31/2014)
164 MOTION permission to ﬁle position statement as to subsequent legal developments ﬁled by Board of Administration of California Public Employees' Retirement System, Anne Stausboll. Motion Hearing set for 4/3/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 4/14/2014. Replies due by 4/21/2014. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Supplement)(Gregory, Edward) (Filed on 3/31/2014) (Entered: 03/31/2014)
165 Order granting 163 Motion for Leave to File entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 03/31/2014)
166 Order granting 164 Motion to ﬁle position statement entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 03/31/2014)
168 Minute Entry: Hearing held on 4/3/2014 before Claudia Wilken (Date Filed: 4/3/2014). Further Case Management Conference set for 6/4/2014 02:00 PM. (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 4/3/2014) (Entered: 04/09/2014)
167 NOTICE of Change In Counsel by Claudia Center Notice of Withdrawal as Counsel of Record (Center, Claudia) (Filed on 4/4/2014) (Entered: 04/04/2014)
169 TRANSCRIPT ORDER by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral for Court Reporter Raynee Mercado. (Kristen, Elizabeth) (Filed on 4/10/2014) (Entered: 04/10/2014)
170 TRANSCRIPT ORDER by Board of Administration of California Public Employees' Retirement System, Anne Stausboll for Court Reporter Raynee Mercado. (Gregory, Edward) (Filed on 4/10/2014) (Entered: 04/10/2014)
171 Transcript of Proceedings held on April 3, 2014, before Judge Claudia Wilken. Court Reporter Raynee H. Mercado, CSR, Telephone number 510-502-6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Ofﬁce public terminal or may be purchased through the Court Reporter ntil the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this ﬁling. Release of Transcript Restriction set for 7/29/2014. (Related document(s) 170 , 169 ) (rhm) (Filed on 4/30/2014) (Entered: 04/30/2014)
172 TRANSCRIPT ORDER by Timothy Geithner, Internal Revenue Service, John Koskinen, Jacob Lew, Douglas Shulman, United States Department of the Treasury for Court Reporter Raynee Mercado. (Lin, Jean) (Filed on 5/19/2014) (Entered: 05/19/2014)
173 STIPULATION WITH PROPOSED ORDER to Extend the Case Management Conference to June 25, 2014 ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Kristen, Elizabeth) (Filed on 5/28/2014) Modiﬁed on 5/29/2014 (cpS, COURT STAFF). (Entered: 05/28/2014)
174 Order granting 173 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.)

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(Entered: 05/29/2014)

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Set Deadline/Hearing (see docket no. 174 : Case Management Statement due by 6/18/2014; Case Management Conference set for 6/25/2014 02:00 PM. (ndr, COURT STAFF) (Filed on 5/29/2014) (Entered: 05/29/2014)

175 STIPULATION WITH PROPOSED ORDER to Extend the Case Management Conference to July 30, 2014 ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral, Board of Administration of California Public Employees' Retirement System, United States Department of the Treasury. (Kristen, Elizabeth) (Filed on 6/17/2014) Modiﬁed on 6/18/2014 (cpS, COURT STAFF). (Entered: 06/17/2014)

177 ORDER by Judge Claudia Wilken Granting 175 Stipulation to Extend the Case Management Conference to July 30, 2014. (ndr, COURT STAFF) (Filed on 6/18/2014) (Entered: 06/18/2014)

reset Deadline/Hearing (See docket no. 177 ): Case Management Statement due by 7/23/2014; Case Management Conference set for 7/30/2014 02:00 PM. (ndr, COURT STAFF) (Filed on 6/18/2014) (Entered: 06/18/2014)

178 STIPULATION WITH PROPOSED ORDER to Extend Case Management Conference Statement Due Date to July 25, 2014 ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral, et al. (Kristen, Elizabeth) (Filed on 7/23/2014) Modiﬁed on 7/24/2014 (cpS, COURT STAFF). (Entered: 07/23/2014)

179 Order granting 178 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 07/24/2014)

Reset Deadline (see docket no. 179 ): Case Management Statement due by 7/25/2014. (ndr, COURT STAFF) (Filed on 7/24/2014) (Entered: 07/24/2014)

180 JOINT CASE MANAGEMENT STATEMENT ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral, Board of Administration of California Public Employees' Retirement System, Anne Stausboll, United States of Department of the Treasury. (Kristen, Elizabeth) (Filed on 7/25/2014) Modiﬁed on 7/28/2014 (cpS, COURT STAFF). (Entered: 07/25/2014)

181 ORDER VACATING CASE MANAGEMENT CONFERENCE. Motions due by 8/14/2014; Responses due by 8/28/2014; Replies due by 9/4/2014; Motion Hearing set for 9/18/2014 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 7/29/2014. (ndr, COURT STAFF) (Filed on 7/29/2014) (Entered: 07/29/2014)

182 STIPULATION WITH PROPOSED ORDER to Extend Brieﬁng Schedule ﬁled by Timothy Geithner, Internal Revenue Service, John Koskinen, Jacob Lew, Douglas Shulman, United States Department of the Treasury. (Lin, Jean) (Filed on 8/13/2014) Modiﬁed on 8/14/2014 (cpS,, Board of Administration of California Public Employees' Retirement System, Anne Stausboll COURT STAFF). (Entered: 08/13/2014)

183 Order granting 182 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 08/14/2014)

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184 CLERKS NOTICE. Notice is hereby given that a Further Case Management Conference will be held on November 20, 2014, at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. Case Management Statement due by November 13, 2014.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 8/18/2014) (Entered: 08/18/2014)

08/28/2014

185 MOTION (1) FOR CLASS NOTICE; (2) FOR ADDITIONAL REMEDIES; (3) FOR LEAVE TO FILE SUPPLEMENT COMPLAINT; (4) FOR SUMMARY ADJUDICATION AND (5) TO COMPEL LIMITED DISCOVERY FROM THE STATE DEFENDANTS ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. Motion Hearing set for 11/20/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 9/11/2014. Replies due by 9/18/2014. (Attachments: # 1 Declaration Declaration of Elizabeth Kristen In Support of Plaintiffs' Motion, # 2 Exhibit Exhibit A to Elizabeth Kristen Declaration, # 3 Exhibit Exhibit B to Elizabeth Kristen Declaration, # 4 Exhibit Exhibit C to Elizabeth Kristen Declaration, # 5 Exhibit Exhibit D to Elizabeth Kristen Declaration, # 6 Proposed Order [Proposed] Order Granting Plaintiffs' Motion)(Kristen, Elizabeth) (Filed on 8/28/2014) (Entered: 08/28/2014)

09/25/2014

186 JOINT BRIEF IN OPPOSITION (re 185 MOTION (1) FOR CLASS NOTICE; (2) FOR ADDITIONAL REMEDIES; (3) FOR LEAVE TO FILE SUPPLEMENT COMPLAINT; (4) FOR SUMMARY ADJUDICATION AND (5) TO COMPEL LIMITED DISCOVERY FROM THE STATE DEFENDANTS ) (State and Federal Defendants' Joint Brief in Opposition) ﬁled byInternal Revenue Service, John Koskinen, Jacob Lew, United States Department of the Treasury Board of Administration of California Public Employees' Retirement Systems, Anne Stausboll. (Attachments: # 1 Declaration of Tyrone Espinoza, # 2 Declaration of Jennifer Morrow, # 3 Proposed Order)(Lin, Jean) (Filed on 9/25/2014) Modiﬁed on 9/26/2014 (cpS, COURT STAFF). (Entered: 09/25/2014)

09/25/2014

187 Cross MOTION for Summary Judgment (State and Federal Defendants' Joint Filing) (same documents as Dkt. No. 186) ﬁled by Internal Revenue Service, John Koskinen, Jacob Lew, United States Department of the Treasury. Motion Hearing set for 11/20/2014 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 10/21/2014. Replies due by 11/6/2014. (Attachments: # 1 Declaration of Tyrone Espinoza, # 2 Declaration of Jennifer Morrow, # 3 Proposed Order)(Lin, Jean) (Filed on 9/25/2014) (Entered: 09/25/2014)

10/21/2014

188 RESPONSE (re 185 MOTION (1) FOR CLASS NOTICE; (2) FOR ADDITIONAL REMEDIES; (3) FOR LEAVE TO FILE SUPPLEMENT COMPLAINT; (4) FOR SUMMARY ADJUDICATION AND (5) TO COMPEL LIMITED DISCOVERY FROM THE STATE DEFENDANTS ) Plaintiffs' Opposition to Defendants' Motions for Summary Adjudication and Plaintiffs' Reply In Support of Their Motions ﬁled byDavid Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Attachments: # 1 Declaration of Elizabeth Kristen In Support of Plaintiffs' Opposition and Reply, # 2 Exhibit A-F to Kristen Declaration)(Kristen, Elizabeth) (Filed on 10/21/2014) (Entered: 10/21/2014)

11/06/2014

189 Joint Reply in Support of 187 Cross Motions for Summary Judgment, ﬁled by Internal Revenue Service, John Koskinen, Jacob Lew, United States Department of the Treasury. (Lin, Jean) (Filed on 11/6/2014) Modiﬁed on 11/6/2014 (jlmS, COURT STAFF). (Entered: 11/06/2014)

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190 Minute Entry for proceedings held before Hon. Claudia Wilken: 185 MOTION (1) FOR CLASS NOTICE; (2) FOR ADDITIONAL REMEDIES; (3) FOR LEAVE TO FILE SUPPLEMENT COMPLAINT; (4) FOR SUMMARY ADJUDICATION AND (5) TO COMPEL LIMITED DISCOVERY FROM THE STATE DEFENDANTS and 187 Cross MOTION for Summary Judgment (same documents as Dkt. No. 186 ) Hearings held on 11/20/2014. Time: 2:38-3:26. Further Case Management Conference NOT held on 11/20/2014. Court Reporter: Diane Skillman. Plaintiff Attorney: Elizabeth Kristen; William McNeill; Patrick Clayton. Defendant Attorney: Jean Lin; Edward Gregory; Jennifer Morrow; Marie Holvick. The motions are argued and submitted by the parties, and taken under submission by the Court. A further case management conference will be set by the Court. Written order to follow.

(This is a text only minute entry, there is no document associated with this entry.)

(ndr, COURT STAFF)(Date Filed: 11/20/2014) (Entered: 11/20/2014)

11/26/2014

191 TRANSCRIPT ORDER by Board of Administration of California Public Employees' Retirement System, Anne Stausboll for Court Reporter Diane Skillman. (Gregory, Edward) (Filed on 11/26/2014) (Entered: 11/26/2014)

12/04/2014

192 ORDER by Judge Claudia Wilken DENYING PLAINTIFFS' 185 MOTIONS (1) FOR CLASS NOTICE; (2) FOR ADDITIONAL REMEDIES; (3) FOR LEAVE TO SUPPLEMENT THE COMPLAINT; (4) FOR SUMMARY ADJUDICATION; AND (5) TO COMPEL DISCOVERY, AND GRANTING FEDERAL AND STATE DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 12/4/2014) Modiﬁed on 12/5/2014 (cpS, COURT STAFF). (Entered: 12/04/2014)

12/04/2014 193 AMENDED CLERK'S JUDGMENT. (ndr, COURT STAFF) (Filed on 12/4/2014) (Entered: 12/04/2014)

12/12/2014

194 STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Motion for Reasonable Attorneys' Fees, Costs, and Expenses ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral, Board of Administration of California Public Employees Retirement System, Anne Stausboll, United States Department of the Treasury, Internal Revenue Service. (Kristen, Elizabeth) (Filed on 12/12/2014) Modiﬁed on 12/15/2014 (cpS, COURT STAFF). (Entered: 12/12/2014)

12/15/2014

195 Order granting 194 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 12/15/2014)

12/16/2014

Reset Deadlines/Hearing (see docket no. 195 ): Motions due by 1/30/2015; Responses due by 3/13/2015; Replies due by 4/13/2015; Motion Hearing set for 5/7/2015 02:00 PM before Hon. Claudia Wilken. (ndr, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/16/2014)

12/23/2014

196 Transcript of Proceedings held on November 20, 2014, before Judge Claudia Wilken. Court Reporter Diane E. Skillman, Telephone number 510-451-2930, Diane_Skillman@cand.uscourts.gov, diane.transcripts@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Ofﬁce public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this ﬁling. (Re 191 Transcript Order ) Release of Transcript Restriction set

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for 3/23/2015. (Related documents(s) 191 ) (Skillman, Diane) (Filed on 12/23/2014) (Entered: 12/23/2014)
197 STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Motion for Reasonable Attorneys' Fees, Costs, and Expenses ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral, Board of Administration of California Public Employees' Retirement System, Anne Stausboll, et al. (Kristen, Elizabeth) (Filed on 1/26/2015) Modiﬁed on 1/27/2015 (cpS, COURT STAFF). (Entered: 01/26/2015)
198 ORDER by Judge Claudia Wilken Granting 197 Stipulation Regarding Plaintiffs' Motion for Reasonable Attorneys' Fees, Costs, and Expenses. (ndr, COURT STAFF) (Filed on 1/28/2015) (Entered: 01/28/2015)
Reset Deadlines/Hearings (see docket no. 198 ): Motions due by 3/12/2015; Responses due by 4/27/2015; Replies due by 5/21/2015; Motion Hearing set for 6/11/2015 02:00 PM before Hon. Claudia Wilken. (ndr, COURT STAFF) (Filed on 1/28/2015) (Entered: 01/28/2015)
199 NOTICE of Appearance by Matthew J. Berns for Federal Defendants (Berns, Matthew) (Filed on 1/30/2015) (Entered: 01/30/2015)
200 MOTION for Attorney Fees ﬁled by Michael Dragovich. Motion Hearing set for 6/11/2015 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 4/27/2015. Replies due by 5/21/2015. (Attachments: # 1 Declaration Elizabeth Kristen, # 2 Exhibit A-I, # 3 Declaration Patrick Clayton, # 4 Exhibit A-C, # 5 Declaration Richard Pearl, # 6 Exhibit A-F, # 7 Declaration Harrison Frahn, # 8 Exhibit A-C, # 9 Declaration Mark A. Chavez)(Kristen, Elizabeth) (Filed on 3/12/2015) (Entered: 03/12/2015)
201 Proposed Order re 200 MOTION for Attorney Fees Order Granting Plaintiffs Motion for an Award of Reasonable Attorneys Fees and Litigation Expenses by Michael Dragovich. (Kristen, Elizabeth) (Filed on 3/16/2015) (Entered: 03/16/2015)
202 STIPULATION WITH PROPOSED ORDER AMENDED JUDGMENT REGARDING ATTORNEYS' FEES ﬁled by Board of Administration of California Public Employees' Retirement System, Anne Stausboll, Michael Dragovich, et al. (Gregory, Edward) (Filed on 4/14/2015) Modiﬁed on 4/14/2015 (cp, COURT STAFF). (Entered: 04/14/2015)
203 CLERK'S NOTICE Vacating Hearing. 200 Motion for Attorney Fees which has been noticed for Thursday, 06/11/2015, will be decided on the papers submitted without oral argument. Accordingly, the hearing is hereby VACATED. The previous brieﬁng schedule remains in effect. This is a text only docket entry. There is no document associated with this notice. (tmi, COURT STAFF) (Filed on 4/20/2015) (Entered: 04/20/2015)
204 Statement of Non-Opposition to Plaintiffs' Attorneys' Fees Motion Based on Filing of Stipulated Amended Judgment Regarding Attorneys' Fees ﬁled byBoard of Administration of California Public Employees' Retirement System, Anne Stausboll. (Gregory, Edward) (Filed on 4/24/2015) Modiﬁed on 4/24/2015 (cpS, COURT STAFF). (Entered: 04/24/2015)
205 ORDER ON STIPULATED ATTORNEYS' FEES. Signed by Judge Claudia Wilken on 04/27/2015. (tmi, COURT STAFF) (Filed on 4/27/2015) (Entered: 04/27/2015)
206 RESPONSE (re 200 MOTION for Attorney Fees ) ﬁled byInternal Revenue Service, John Koskinen, Jacob Lew, United States Department of the Treasury. (Attachments: # 1

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Declaration of Matthew J. Berns, # 2 Exhibit A-F, # 3 Exhibit G-K, # 4 Exhibit L-N, # 5 Exhibit O-S)(Berns, Matthew) (Filed on 4/27/2015) (Entered: 04/27/2015)

04/27/2015 207 NOTICE of Appearance by Isaac Benjamin Rosenberg (Rosenberg, Isaac) (Filed on 4/27/2015) (Entered: 04/27/2015)

04/27/2015 208 RESPONSE (re 200 MOTION for Attorney Fees ) ﬁled byBipartisan Legal Advisory Group. (Rosenberg, Isaac) (Filed on 4/27/2015) (Entered: 04/27/2015)

05/12/2015 209 NOTICE of Voluntary Dismissal Dismissal With Prejudice as to State Defendants by Michael Dragovich (McNeill, William) (Filed on 5/12/2015) (Entered: 05/12/2015)

05/21/2015

210 REPLY (re 200 MOTION for Attorney Fees ) ﬁled byDavid Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Attachments: # 1 Declaration Elizabeth Kristen, # 2 Exhibit A - B, # 3 Declaration Patrick Clayton, # 4 Exhibit A)(Kristen, Elizabeth) (Filed on 5/21/2015) (Entered: 05/21/2015)

07/17/2015

211 STIPULATION WITH PROPOSED ORDER REGARDING PLAINTIFFS MOTION FOR REASONABLE ATTORNEYS FEES, COSTS AND EXPENSES ﬁled by Michael Dragovich, Bipartisan Legal Advisory Group, United States of the Treasury. (Kristen, Elizabeth) (Filed on 7/17/2015) Modiﬁed on 7/20/2015 (cpS, COURT STAFF). (Entered: 07/17/2015)

07/17/2015

212 ORDER by Judge Claudia Wilken granting 211 Stipulation Re: Plaintiffs' Motion for Attorney Fees. (mklS, COURT STAFF) (Filed on 7/17/2015) (Entered: 07/17/2015)

07/30/2015 213 NOTICE by Michael Dragovich NOTICE OF ATTORNEY WITHDRAWAL (Mason, Daniel) (Filed on 7/30/2015) (Entered: 07/30/2015)

07/30/2015 214 NOTICE of Appearance by Daniel Simon Mason (Mason, Daniel) (Filed on 7/30/2015) (Entered: 07/30/2015)

09/15/2015

215 STIPULATION WITH PROPOSED ORDER REGARDING PLAINTIFFS MOTION FOR ATTORNEYS FEES, COSTS AND EXPENSES ﬁled by David Beers, Charles Cole, Rafael V. Dominguez, Michael Dragovich, Patricia Fitzsimmons, Michael Gaitley, Jose G. Hermosillo, Carolyn Light, Cheryl Light, Elizabeth Litteral. (Kristen, Elizabeth) (Filed on 9/15/2015) (Entered: 09/15/2015)

09/16/2015

216 STIPULATION AND ORDER REGARDING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES COSTS AND EXPENSES. Will be stayed for 30 days from the date of the entry of the Courts order on this stipulation in order for the Plaintiffs and Federal Defendants to discuss settlement terms. by Hon. Claudia Wilken granting 215 Stipulation.(napS, COURT STAFF) (Filed on 9/16/2015) Modiﬁed on 9/17/2015 (cpS, COURT STAFF). (Entered: 09/16/2015)

10/09/2015

217 STIPULATION WITH PROPOSED ORDER REGARDING ATTORNEYS FEES AND COSTS ﬁled by Michael Dragovich, Jacob Lew, Internal Revenue Service, et al. (McNeill, William) (Filed on 10/9/2015) Modiﬁed on 10/13/2015 (cpS, COURT STAFF). (Entered: 10/09/2015)

10/20/2015

218 PLAINTIFFS' AND FEDERAL DEFENDANTS' STIPULATION REGARDING ATTORNEYS' FEES AND COSTS AND ORDER by Hon. Claudia Wilken granting 217 Stipulation. (jebS, COURT STAFF) (Filed on 10/20/2015) (Entered: 10/20/2015)

11/09/2015

219 ORDER DENYING PLAINTIFFS MOTION FOR ATTORNEYS FEES FROM BLAG by Hon. Claudia Wilken denying 200 Motion for Attorney Fees. (jebS, COURT STAFF) (Filed on 11/9/2015) (Entered: 11/09/2015)

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