1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

STATE OF FLORIDA, et al., )

)

Plaintiffs, )

)

) Case No. 3:10cv00091/RV

)

) Pensacola, Florida

) April 14, 2010

v. ) 9:05 a.m.

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

et al., )

)

Defendants. )

 )

RULE 16 SCHEDULING CONFERENCE PROCEEDINGS

BEFORE THE HONORABLE ROGER VINSON,

SENIOR UNITED STATES DISTRICT JUDGE

(Pages 1 through 46)

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 1 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2

APPEARANCES FOR PLAINTIFFS

State of Florida: CHESTERFIELD SMITH, JR., ESQUIRE

Senior Assistant Attorney General

BLAINE H. WINSHIP, ESQUIRE

Assistant Attorney General

JOSEPH W. JACQUOT, ESQUIRE

Deputy Attorney General

(via teleconference) SCOTT D. MAKAR, ESQUIRE

Deputy Solicitor General

Office of the Attorney General

The Capitol, Suite PL-01

Tallahassee, Florida 32399-1050

DAVID B. RIVKIN, JR., ESQUIRE

BAKER & HOSTETLER, LLP

Washington Square, Suite 1100

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5304

State of Alabama: PETER J. SMYCZEK, ESQUIRE

(via teleconference) Deputy Attorney General

Office of the Attorney General

500 Dexter Avenue

Montgomery, Alabama 36130

State of Colorado: DANIEL D. DOMENICO, ESQUIRE

(via teleconference) Solicitor General

Office of the Attorney General

1525 Sherman Street

Denver, Colorado 80203

State of Indiana: THOMAS M. FISHER, ESQUIRE

(via teleconference) Solicitor General

Office of the Attorney General

Indiana Government Center South

302 W. Washington Street, 5th Floor

Indianapolis, Indiana 46204

State of Michigan: B. ERIC RESTUCCIA, ESQUIRE

(via teleconference) Solictor General

Office of the Attorney General

G. Mennen Williams Building, 4th Floor

525 W. Ottawa Street

Lansing, Michigan 48909

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 2 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

3

APPEARANCES FOR PLAINTIFFS

State of Nebraska: KATHERINE J. SPOHN, ESQUIRE

(via teleconference) Special Counsel

Office of the Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

State of Nevada: MARK A. HUTCHISON, ESQUIRE

(via teleconference) Special Counsel

JACOB REYNOLDS, ESQUIRE

HUTCHISON & STEFFEN

Peccole Professional Park

10080 West Alta Drive, Suite 200

Las Vegas, Nevada 89145

State of South Carolina: BRYAN P. STIRLING, ESQUIRE

(via teleconference) Deputy Attorney General

J. EMORY SMITH, JR., ESQUIRE

Assistant Deputy Attorney General

Office of the Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

State of South Dakota: MARTY J. JACKLEY, ESQUIRE

(via teleconference) Attorney General

CHARLIE MCGUIGAN, ESQUIRE

Assistant Attorney General

Office of the Attorney General

1302 E. Highway 14, Suite 1

Pierre, South Dakota 57501-8501

State of Pennsylvania: J. BART DELONE, ESQUIRE

(via teleconference) Senior Deputy Attorney General

Office of the Attorney General

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

State of Texas: WILLIAM J. COBB, III, ESQUIRE

(via teleconference) Special Assistant and Senior Counsel

Office of the Attorney General

300 W. 15th Street

Austin, Texas 78701

State of Utah: JOHN SWALLOW, ESQUIRE

(via teleconference) Chief Deputy, Civil Divisions

Office of the Attorney General

Utah State Capitol Complex

350 North State Street, Suite 230

Salt Lake City, Utah 84114-2320

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 3 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4

APPEARANCES FOR PLAINTIFFS

State of Washington: ROBERT M. MCKENNA, ESQUIRE

(via teleconference) Attorney General

BRIAN T. MORAN, ESQUIRE

Chief Deputy Attorney General

1125 Washington Street SE

Olympia, Washington 98504-0100

State of Arizona: JOSEPH KANEFIELD, ESQUIRE

(via teleconference) General Counsel

Office of the Attorney General

1275 West Washington Street

Phoenix, Arizona 85007

APPEARANCES FOR DEFENDANTS

United States of America: IAN HEATH GERSHENGORN, ESQUIRE

Deputy Assistant Attorney General

U.S. Department of Justice

RFK Main Justice Building, Room 3137

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

BRIAN G. KENNEDY, ESQUIRE

Senior Trial Counsel

ERIC. B. BECKENHAUER, ESQUIRE

Trial Attorney

U.S. Department of Justice, Civil

Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, DC 20530

PAMELA A. MOINE, ESQUIRE

Assistant United States Attorney

21 East Garden Street, Suite 400

Pensacola, Florida 32502

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 4 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

5

PROCEEDINGS

(Court called to order.)

THE COURT: Good morning, everyone. Be seated,

please.

Let me welcome those of you who are from out of town.

And pursuant to notice, we're here for a Rule 16 conference.

And we have a number of participants on the telephone.

Have you already checked those in, Jerry?

THE CLERK: I have, Judge. There's a couple that did

not answer up.

THE COURT: All right. Let's take appearances then,

starting with those here in the courtroom, and then we'll

proceed to see who is on the line.

So beginning with our Plaintiffs, who wants to begin?

MR. WINSHIP: I will. Thank you, Your Honor. Blaine

Winship, Assistant Attorney General for the State of Florida,

here for Plaintiffs.

MR. SMITH: Chesterfield Smith, Senior Assistant

Attorney General on behalf of the Plaintiffs the State of

Florida and the other states and attorneys general.

MR. RIVKIN: David Rivkin, Baker & Hostetler, on

behalf of Plaintiffs.

THE COURT: Mr. Rivkin, all right.

MR. JACQUOT: Joe Jacquot, Deputy Attorney General, on

behalf of Plaintiffs.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 5 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

6

THE COURT: All right. And for our Defendants?

MR. GERSHENGORN: Good morning, Your Honor. Ian

Gershengorn from the civil division of the Justice Department on

behalf of the United States, the Defendants.

MR. KENNEDY: Brian G. Kennedy, also from the civil

division.

MR. BECKENHAUER: Eric Beckenhauer, also from the

Department of Justice, civil division.

MS. MOINE: Pamela Moine from the U.S. Attorney's

Office for the United States.

THE COURT: All right. And now those who are on the

phone, I don't know what particular order you want to -- all

right, let's see, do we have Alabama?

MR. SMYCZEK: Yes, Your Honor. Pete Smyczek with the

Alabama Attorney General's Office.

THE COURT: And Florida?

MR. MAKAR: Yes. This is Scott Makar with the

Solicitor General's Office.

THE COURT: Very well. And Colorado?

MR. DOMENICO: This is Dan Domenico, Solicitor

General.

THE COURT: All right, sir. Indiana?

MR. FISHER: Tom Fisher, Solicitor General.

THE COURT: All right, sir. And Michigan?

MR. RESTUCCIA: Eric Restuccia, Solicitor General.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 6 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

7

THE COURT: All right, sir. And Nebraska?

MS. SPOHN: Katie Spohn, special counsel.

THE COURT: All right. And Nevada?

MR. HUTCHISON: Mark Hutchison, special counsel to the

governor --

THE COURT: I'm sorry, I missed the second one. Do

you have someone with you, Mr. Hutchison?

MR. HUTCHISON: Yes. Jacob Reynolds is with me as

well, Your Honor. He's with my firm.

THE COURT: All right. And South Carolina?

MR. STIRLING: Bryan Stirling, Deputy Attorney

General, and Emory Smith, Assistant Deputy Attorney General.

THE COURT: Very well. And South Dakota?

MR. JACKLEY: Marty Jackley, Attorney General, and

Deputy Attorney General Charlie McGuigan.

THE COURT: All right, sir. Pennsylvania?

MR. DELONE: Bart Delone, Senior Deputy Attorney

General.

THE COURT: All right, sir. And Texas?

MR. COBB: Bill Cobb, Special Assistant and Senior

Counsel to the Attorney General.

THE COURT: Thank you. Utah?

MR. SWALLOW: John Swallow, Chef Deputy Attorney

General.

THE COURT: And Washington State?

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 7 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

8

MR. MCKENNA: Attorney General Rob McKenna and Chief

Deputy Brian Moran.

THE COURT: All right, sir. I think that's all that I

have listed who are participating. Did I miss anyone?

MS. TAITZ: Your Honor --

MR. KANEFIELD: Yes, Your Honor. Joseph Kanefield

with the Arizona Governor Jan Brewer's office.

THE COURT: I'm sorry, I missed that. Say it again,

please.

MR. KANEFIELD: Joseph Kanefield, general counsel to

Arizona Governor Jan Brewer.

THE COURT: All right, Arizona. Thank you. Anyone

else? Yes, ma'am.

MR. TAITZ: I'm Orly Taitz, an attorney. I brought

the pleadings, Your Honor.

THE COURT: Why don't you come up and use this

microphone. Are you the one who filed the Motion to Intervene?

MR. TAITZ: Yes, I filed Motion for Reconsideration.

There are two copies here, one with the Plaintiff and one with

the Defendant.

THE COURT: All right. I've already dealt with the

Motion to Intervene. I'll deal with whatever the

reconsideration is, but as of now you are not a participant.

Thank you.

All right. I think we have everyone, right?

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 8 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

9

Well, as you know, we're here for purposes of a Rule

16 to try to schedule what we need to do and how to do it. And

I don't need to remind you that Rule 1 of the Rules of Civil

Procedure emphasize that these proceedings should secure the

just, speedy and inexpensive determination of every action and

proceeding, so I hope that's what we'll be able to do.

There are a number of things that I want to go over

with you, and in no particular order, frankly. But let me see

if any of you have some suggestions on maybe ways that we can

facilitate this and make it more effective.

MR. WINSHIP: Yes, Your Honor. Blaine Winship for the

Plaintiffs. We have been in discussion with the attorneys who

are here for the Defendants, for the United States, from late

last week right up through this morning, in fact, about trying

to work together to come up with the best way to expedite this

case.

And I have a proposed form of order that I think might

be very useful to Your Honor. And if I may be permitted to

approach just to hand you a copy?

THE COURT: Mr. Gershengorn, have you seen this?

MR. GERSHENGORN: I have seen it, Your Honor. It's

not a joint proposal, but I have seen it. Thank you, sir.

THE COURT: All right.

MR. WINSHIP: Thank you, Your Honor. And let me say

at the outset, speaking on behalf of the Plaintiffs, that we

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 9 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

10

have not only taken to heart the spirit and intent of Rule 1,

but we also have been very mindful of Your Honor's own statement

in your order of last week, I believe it was published on the

8th of April, that the parties to this litigation and indeed the

citizens of this country have an interest in having this case

resolved as soon as practically possible.

We believe that we have come up with an approach that

would enable us to do exactly that. We proposed -- we

indicated, by the way, to the Department of Justice attorneys

that we would be amending this complaint of ours. We have a

need to do that not only because we have several other parties

coming in, several states that are going to be joining, but in

addition to that, of course, we had reconciliation legislation

that was passed that has modified the terms of the Act itself,

and the Act, of course, as Your Honor knows, is quite lengthy.

We have -- in this proposed scheduling order we have

indicated a date for our amended complaint to be filed, which

would be May 14th. Our understanding, from talking to counsel

for the Department of Justice, is that there is no dispute with

respect to that. If we have any difference at all, it lies

downstream from there. We have indicated to them why --

THE COURT: That's 30 days from today basically, May

14th?

MR. WINSHIP: Yes, Your Honor. They had indicated to

us that they desired to file a Motion to Dismiss, which, of

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 10 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

11

course, is not at all surprising in this type of litigation. We

indicated to them that we wanted to file a Motion for Summary

Judgment, and we wanted to file that very quickly. We believe

that our claims in this litigation are ripe for a determination

by Summary Judgment. They raise essentially questions of law

concerning the constitutionality of the Act in question.

THE COURT: Well, let me cut you short just a minute,

because it seems to me that this is really a case with no

factual issues, so there will be no discovery, if I view the

case as it seems to be. Is that a fair assumption or am I

wrong?

MR. WINSHIP: Well, I think you are essentially

correct, and that is our view. Most of our causes of action

really will sound purely in law. To the extent that there might

be any question of fact that would be involved, we believe that

those will be facts that are matters of public record and that

are beyond reasonable dispute.

What we propose is to have our Motion for Summary

Judgment and their Motion to Dismiss, in effect, sequenced.

When we brought that up to the Department of Justice, they

actually sent us back a proposed form of sequencing of these,

and that's pretty much reflected in what I've given Your Honor.

We had a couple of differences that are really minor

with regard to dates for -- I think the September 7th date for

the Plaintiffs to do an opposition to the Defendants' Motion to

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 11 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12

Dismiss and for us to file our own Summary Judgment Motion.

They had proposed a slightly different date from that. But

otherwise, we were fairly well in agreement, we thought, on

that.

This morning they indicated to us, and I'm sure they

will present this point themselves, that the way they would

prefer to proceed would be to have a Motion to Dismiss filed by

them and briefed and argued and decided, and then after that is

over we would then proceed to have our Motion for Summary

Judgment filed and briefed and heard.

And we believe that that's not in the best interest of

the Court or judicial economy. We think there are a lot of

overlapping arguments between what they're going to be arguing

as a matter of law for dismissal, what we're going to be arguing

as a matter of law for a judgment in our favor as a matter of

Summary Judgment under Rule 56.

We note that under Rule 56 we have the right to move

for Summary Judgment at any time. We also note that Rule 57,

with respect to declaratory judgments, does consider within its

purview the ordering of a speedy trial by the Court.

We're interested in expediting this case as well. We

think that the legal issues are basically going to be

substantially overlapping, and we think that this proposed

interlocking schedule of motions and briefs, the way this is set

up, which is largely the product of suggestions from the

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 12 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

13

Department of Justice lawyers themselves, very much work to that

end in order to achieve that.

If at the end of the day, Your Honor, when all of

these motions are heard -- and we believe they should be heard

together at the same time. And under our timing, we have -- the

last submission would be November 14th, and we would be ready to

have a hearing anytime Your Honor would be ready to receive us

to argue these motions, anytime thereafter. I think that's a

fairly aggressive and efficient way of moving this case along,

and we would urge the Court to give that consideration.

If at the end of the day, when the Court has ruled --

has considered and ruled on these motions, if the Court were,

for whatever reason, to decide that the case should neither be

dismissed nor disposed of by way of Summary Judgment in favor of

Plaintiffs, we believe this motion practice will help greatly in

terms of narrowing the issues and focussing us all on what

discovery there might be that would be in order with regard to

anything that remains before the Court after that.

It is our hope that all of this would be resolved as a

matter of law. I would note in connection with that that we've

added a provision that I think both parties are in agreement

with that we would ask that the requirements for initial

disclosure under Rule 26 and other reporting requirements under

Rule 16 and the corresponding local rules, that we be excused

from complying with those for the time being pending further

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 13 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

14

order of the Court, precisely because we do basically subscribe

to Your Honor's view that this case sounds essentially at law.

And so we think the best resolution of this case would

be along the lines of what we have proposed and what we had

understood that the Department of Justice favored as well.

And I guess in fairness, if Your Honor -- do you have

any questions of me?

THE COURT: Well, let me just ask in the alternative,

because our circuit has sometimes indicated that it's not

necessary to go through the formalities of Summary Judgment

motions if, in fact, it's a purely legal matter that can be

resolved on briefing.

In lieu of handling it by Rule 56, can we just set up

a briefing schedule, because that's really what it seems to be

coming down to, in the nature of the way you do it in an

appellate setting?

MR. WINSHIP: Well, we could -- we could be --

certainly try to be a little more creative in how we're doing

this.

We did -- in terms of doing these motions together, we

and the Department of Justice attorneys did consider how best to

proceed for this, and we did think it would be orderly to do it

in this particular fashion that we have set forth here. I do

think there will be a lot of economy of scale.

If you'll note, the September 7th date would have us

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 14 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

15

filing a Memorandum in Opposition to the Motion to Dismiss along

with a Motion for Summary Judgment. I think the Summary

Judgment route for us, in terms of asking for affirmative relief

from the Court as compared to avoiding relief that the

Defendants seek which is dismissal, has some benefits because it

will allow us to focus on a claim-by-claim basis with regard to

what the elements are and what the showing would have to be.

And in order to get everything, I think, fully briefed and

argued in accordance with each of the claims in a separate

sense, I think the structure has some genuine merit to it, Your

Honor.

THE COURT: Very well.

Mr. Gershengorn?

MR. GERSHENGORN: Thank you, Your Honor. I guess I

would say that we share a lot of the goals of Florida and the

Plaintiffs here.

THE COURT: Let me remind everyone, I think we're all

either directly or indirectly working for the taxpayers,

including myself, so we have that at heart.

MR. GERSHENGORN: And we recognize that, Your Honor,

and therefore, I do think judicial economy, which my colleague

mentioned, is definitely a central theme, and narrowing the

issues is also what we're interested in.

We do think, however, that a Motion to Dismiss,

largely for the reasons Your Honor mentioned that these are

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 15 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

16

likely to be legal issues, we do think there is a strong basis

for a Motion to Dismiss. And we would -- we think that it

serves the purpose of narrowing the issues, which, again, the

Plaintiffs have suggested and Your Honor has recognized as well,

and also comports with the notion of dealing with the

jurisdictional issues, and we think there are some here that,

for at least a number of the claims, and perhaps all, that we

would want the Court to resolve.

And it seems to us that proceeding first through a

Motion to Dismiss briefing and holding off on the Summary

Judgment, either holding briefing in abeyance or otherwise, is

the right way to proceed, that that allows this Court to narrow

the issues, rule on the jurisdictional question, and then set a

sensible course going forward.

THE COURT: Well, let me -- and I don't mean to put

you on the spot. I know the Federal Government normally has 60

days in which to file its responsive pleading, but in this case

it seems like that time could be reduced somewhat. Is it

possible to move the proposed schedule so that your Motion to

Dismiss would be, say, 30 days earlier?

MR. GERSHENGORN: Your Honor, certainly from the May

14th date I will say that we do have some flexibility. I will

just note for the Court that we have some personal scheduling

issues that we'd like to try to work around, in particular a

wedding for one of the -- a daughter of one of the lead counsel.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 16 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

17

Perhaps, Your Honor, is there a way two weeks -- we had

proposed, I think, July 16th or July 1st.

THE COURT: Well, just looking at these dates, I would

like to see us move everything about one month up. I think that

would seem to me to be certainly within the rule of possibility.

MR. GERSHENGORN: So you would have -- Your Honor, I'm

sorry. June 16th would be a Motion to Dismiss.

THE COURT: August would be the response time, and

then they would then use that time for the Motion for Summary

Judgment to which you would respond.

MR. GERSHENGORN: And I'm sorry, Your Honor, would you

be working off the -- with a Motion to Dismiss briefing first,

the complete briefing on the Motion to Dismiss --

THE COURT: Well, we'll get into that. I'm just

talking about the timing right now. I would like to see us move

about a month faster than the proposed schedule, is really what

I'm suggesting to you.

MR. GERSHENGORN: And Your Honor, the only hesitancy I

have --

THE COURT: And it may be appropriate to deal with the

Motion to Dismiss completely independent of any subsequent

filing. But I think if we go by Rule 56, that motion can be

filed at any time, so it can be filed while, you know, while the

Motion to Dismiss is still pending. But I can promise you it

will be ruled on rather quickly, as soon as I can deal with it.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 17 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

18

MR. GERSHENGORN: Right. I guess, Your Honor, a

couple of things. The only hesitancy I have -- we certainly

could move it up, as Your Honor suggests. The only hesitancy I

have is we haven't seen the amended complaint, so it's a little

tricky.

On the Summary Judgment Motion, I would say that it

does seem to us that holding the briefing on -- it certainly

could be filed at any time, but holding the briefing in abeyance

pending resolution of the Motion to Dismiss is the way that we

think makes the most sense for Your Honor, but we certainly

could move -- we are prepared, you know, to move more

expeditiously than is scheduled here, as Your Honor --

THE COURT: Well, let me do it this way: I will give

you -- what have you -- you've used a 40-day response time or 30

-- 40 days to respond?

MR. GERSHENGORN: Oh, yes, okay.

THE COURT: I'll give you 40 days to respond to the

Motion for Summary Judgment. After a ruling is made on the

Motion to Dismiss, if it's necessary for you to respond, then

you'll have 40 days in which to do that.

MR. GERSHENGORN: Okay.

THE COURT: If I grant your motion, that will be the

end of it. If I deny the motion, then you'll have 40 days from

the time it's denied.

MR. GERSHENGORN: Okay. And just so I'm clear, Your

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 18 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

19

Honor, so we would have a Motion to Dismiss and the briefing on

that. Whatever the Summary Judgment Motion is, it would be 40

days from the time you rule on the Motion to Dismiss?

THE COURT: Let me see how that jibes with the other

time sequence we have, because -- well, there's no reply brief

time, I don't think, set out in your schedule.

MR. GERSHENGORN: Well, I think actually there would

be, Your Honor. I understand the local rules don't generally

contemplate reply. I think both sides would request -- I speak

for the Plaintiffs, but I certainly request here that it be

unilateral. I do think that the schedule does provide for the

motion for a reply, so we would request that.

THE COURT: Mr. Winship, do you have a reply time

cranked into the schedule?

MR. WINSHIP: I do, sir. On the October 14th date,

you'd note, Your Honor, that there would be Defendants' reply in

support of the Motion to Dismiss. And then on November 14th,

there would be Plaintiffs' reply in support of the Motion for

Summary Judgment. We understand, of course, Your Honor, that --

THE COURT: You have another 30 days. I will have to

say that should be reduced for your reply time to about 14 days.

Can you do that?

MR. WINSHIP: Certainly, Your Honor.

THE COURT: That will expedite things. Because that

actually will -- well, let me see. Wait just a minute.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 19 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

20

Everything is moved up a month anyway, but we're looking at --

instead of September, it would be August.

MR. GERSHENGORN: So something like June 16th, August

7th, and then August -- Your Honor was suggesting the 21st or --

THE COURT: August 21st would be the reply. That

would --

MR. GERSHENGORN: Can we get three weeks for that,

Your Honor? Split the difference, so make it the 20th?

THE COURT: I contemplate, now, there will be a Motion

for Summary Judgment from the Plaintiffs. Are the Defendants

moving for Summary Judgment?

MR. GERSHENGORN: No, no, I'm sorry. The Defendants

-- I'm sorry. Your Honor, are you talking about the briefing

schedule for the Motion to Dismiss? So it would be June --

THE COURT: The Motion to Dismiss would be June 16th.

The response would be due August 7th.

MR. GERSHENGORN: Right, and then the reply.

THE COURT: And then they would also be able to file

their Motion for Summary Judgment at that same time, August 7th,

to which you would not have to respond until we deal with the

Motion to Dismiss, which will be going on simultaneously.

MR. GERSHENGORN: Right. And then the only question

then is the reply --

THE COURT: Their reply would be --

MR. GERSHENGORN: And that's when I was asking Your

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 20 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

21

Honor whether you would consider three weeks there, so it would

be August 28th would be the reply brief on the Motion to

Dismiss.

THE COURT: Your reply would be -- instead of 14,

you're asking for 21?

MR. GERSHENGORN: 21, yes, sir.

THE COURT: Well, if I gave you 21, they're going to

have to have 21 days, too.

MR. GERSHENGORN: We have no objection.

THE COURT: Can we do that? I mean, I'm happy. 21

days.

MR. GERSHENGORN: So it'll be Motion to Dismiss, June

16th, August 7th, August 28th.

THE COURT: August 28th. Now let me see what the

calendar looks like. I suspect we may be getting over into the

weekend here.

THE CLERK: The 28th is a Saturday, Judge.

THE COURT: That's a Saturday, so we can't do that.

THE CLERK: The 27th is a Friday.

THE COURT: 27th, can we make it that way?

MR. GERSHENGORN: Sure.

THE COURT: And that means August 7th is also a

Saturday.

THE CLERK: Correct.

THE COURT: So that would have to be August 6th.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 21 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

22

MR. GERSHENGORN: Okay. And Your Honor, I presume

that this is all premised off of that May 14th amended complaint

filed?

THE COURT: Right, that's where it starts.

MR. GERSHENGORN: From the Defendants' perspective,

Your Honor, we are comfortable in saying that we can work with

that schedule.

MR. WINSHIP: Your Honor, if I may just interject on

that?

THE COURT: Okay.

MR. WINSHIP: I'm a little bit confused at this point

that we would be having our Motion for Summary Judgment filed

and served on them and then just basically held in abeyance

pending all the briefings --

THE COURT: It would be held in abeyance. And we can

move that Summary Judgment date back some because obviously

we're not going to be able to decide the Motion to Dismiss until

you've had an opportunity to respond and the Defendants have

responded. So we could actually move that to anytime you want

up until -- well, I'll leave it up to you.

MR. WINSHIP: Well, all right, Your Honor. I just

wanted to mention one more time that -- I understand the

sequence you have. I do believe that we would have a faster

resolution of all of this if we did have this stuff interlocking

even if we ended up with a hearing that resolved the Motion to

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 22 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

23

Dismiss beforehand. It was our goal -- because we do believe

there is going to be significant overlap of the arguments and

the issues as between what we're asking for as a matter of law

for relief and what they're asking for as a matter of law for

relief.

THE COURT: Well, you have a much better grasp of what

the overlap might be. I've given it some thought, and as I

understand it, there's really no challenge to any of the action

in Congress. In other words, the way this Act was adopted or

anything about that is not being challenged in the least.

So the question of justiciability is probably, at

least with respect to that, is not going to be coming up. But

there may be some overlaps in other areas which at this point in

time I can't anticipate, but maybe the two of you can enlighten

me.

Are there some other areas that --

MR. GERSHENGORN: Yeah, I do think, Your Honor, that

there are -- that there's good reason to keep it separate, as

Your Honor has proposed.

I think there are going to be some serious

jurisdictional and standing issues that are really better

resolved in a Motion to Dismiss setting or at least presented to

the Court in a Motion to Dismiss setting, and that once those

issues are resolved, I actually think, although we share the

desire for expedition, that it's actually more expeditious to do

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 23 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

24

it that way, have a ruling from Your Honor on the Motion to

Dismiss so that the parties know exactly what is still on the

table. So I guess we do think that what you broached along the

line, Your Honor, is the way to go.

MR. WINSHIP: Well, Your Honor, if I may say, when we

asked -- when we were asked by counsel for the United States how

long they thought we would need to respond --

THE COURT: Let me ask you all just to use that

microphone so our telephone participants can hear better.

MR. WINSHIP: Sure, Your Honor. Thank you. When we

were asked --

TELEPHONE OPERATOR: Joseph Kanefield has just joined

conference.

MR. GERSHENGORN: Shall we start again, Your Honor?

THE COURT: All right. Mr. Winship, go ahead.

MR. WINSHIP: Thank you, sir.

When we were asked by counsel for Defendants last week

how long we thought we would need to respond to their Motion to

Dismiss, we asked them, well, that would depend on the nature of

the motion. And the response that we got from them was that the

motion was not really going to be limited just to jurisdictional

issues.

They are, as we understand it from what they've said,

going to be pitching a very broad-based Motion to Dismiss, not

just on issues of justiciability or ripeness or standing or just

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 24 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

25

preliminary sorts of things, but also on the basis of whether

our causes of actions state legal claims for which relief can be

granted.

And that is really what led us to be talking about

this kind of an interlocking schedule to begin with, which, as I

pointed out to Your Honor, actually the Department of Justice

sent back to us with the idea in mind that we all thought -- and

I certainly thought we were in concurrence -- that there is -- I

mean, I understand tactically why they want to have their bite

of the apple first, and I think that's going to slow this entire

procedure down a lot to have all of that resolved -- briefed and

resolved, and then we turn our attention to summary judgment,

when, in fact, they are going to be broadly addressing reasons

why our causes of action do not lie at law and they are really,

in effect, the obverses of the positions that we're going to be

taking in our own moving papers, that they certainly do and

that, as a matter of law, we're entitled to relief.

That is the essence that gave rise to this concept of

interlocking motions. I mean, we often see, of course, in

constitutional challenges cross-motions for Summary Judgment.

This is a little unusual because they wanted to file a Motion to

Dismiss and raise other types of issues as well.

And we appreciate that, but as I said at the very

beginning, we are mindful of the need to move this case forward,

and we are trying to do precisely that. We're trying to move

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 25 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

this forward as aggressively as possible. We had frankly

envisioned that by the end of this briefing process and moving

the end of this up so that instead of ending it November 14th,

it would end around maybe October 14th -- we can understand the

Court's reasons for doing that, and we are in a position to

agree with that. We certainly will comply with that, and we

think it's in the best interest of moving the case along to do

that.

After that, the question of whether the Motion to

Dismiss should -- when the Court has had the benefit of all of

the briefing, whether the Motion to Dismiss should be heard in a

separate hearing or should be collapsed into the same hearing

with maybe jurisdictional arguments addressed first is

something, obviously, that is entirely within Your Honor's

discretion.

We would urge Your Honor to consider having a single

hearing that would address the Motion to Dismiss and the Motion

for Summary Judgment because we believe Your Honor will see that

there is a tremendous economy of scale to be achieved here and a

great deal of judicial efficiency in moving this case forward.

That is why this interlocking briefing schedule came to be in

the first place and why it came to emanate from the Department

of Justice.

They do, as we understand it, anticipate doing a very

broad-based Motion to Dismiss that will go very much into the

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 26 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

27

very questions that we will be broaching for the Court in our

Summary Judgment Motion.

THE COURT: I think Mr. Rivkin stood up to say

something. I want to give him the chance.

MR. RIVKIN: Your Honor, thank you very much.

THE COURT: Let me ask you to use microphone, too,

please.

MR. RIVKIN: Thank you very much. Actually, Mr.

Winship made the same points, but all I was going to reiterate

is that we believe there are advantages to Your Honor in the

full briefing schedule completed on both Defendants' Motion to

Dismiss and our Motion for Summary Judgment, opportunity for you

to get the full flavor of all the arguments.

How you choose to rule on them, whether it is in a

single hearing, that we are suggesting, or staggered, is

something that is entirely in your discretion. But again, the

benefits of laying out the full sets of briefs for you rather

than deferring the briefing on our motions is, I think, very

palpable, given all the imperatives that Your Honor has laid

out. Thank you.

THE COURT: Well, I anticipated in -- you know,

because I thought about what we could discuss today, I

anticipated that the Government is going to want to go through

with the regular Motion to Dismiss.

And I think -- my leaning is that we ought to take it

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 27 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

28

one bite at a time, even though, as I've already indicated to

you, I think we can go ahead and start the Summary Judgment

process, particularly if there's not going to be cross-motions

for Summary Judgment, and that's where I understand we are.

The Motion for Summary Judgment is going to be yours,

right?

MR. WINSHIP: Yes, Your Honor.

MR. GERSHENGORN: Well, again, it would depend, Your

Honor, on where we stood after our Motion to Dismiss. It's

unclear at this point whether there will be, you know,

cross-motions of which their opposition may --

THE COURT: Well, there are all sorts of

possibilities.

MR. GERSHENGORN: Well, yeah.

THE COURT: I mean, the Motion to Dismiss could be

successful with some claims and not others.

MR. GERSHENGORN: Sure, right.

THE COURT: It could be totally successful or totally

unsuccessful or any variation, I suppose.

MR. GERSHENGORN: Certainly.

THE COURT: So there are some reasons, I guess, to

deal with that. But again, I don't have a good, full grasp of

how these issues are going to mesh, and you're telling me

there's a lot of overlap.

MR. RIVKIN: If I may, Your Honor, that's why -- I

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 28 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

29

guess the real issue -- and we are entirely agreeable with

judicial expedition as to the schedule that has been suggested.

All we're really debating here, if we're debating

anything, is whether or not the briefing on the Motion for

Summary Judgment would be delayed after we file the motion or

would it proceed at the same time as the briefing on the Motion

to Dismiss unfolds.

And again, it seems to us that completing both

briefing processes puts you in the best position at that point

in time in exercising your discretion how you wish to tackle

these motions. I see no particular benefit in delaying the

briefing, especially since the Government, undoubtedly, is going

to have sufficient resources to -- in fact, in a lot of cases,

the Department of Justice -- I know how many able attorneys they

would be able to put on this. You can have one team working on

the Motion to Dismiss briefing and one team working on the

Motion for Summary Judgment.

THE COURT: Well, one thing I'm looking forward to is

the quality of what I'm going to receive, so that's good.

MR. RIVKIN: Thank you, Your Honor.

THE COURT: Well, let's see what --

MR. GERSHENGORN: Well, I actually want to say a

couple of things, Your Honor. Again, not to seem prejudice, but

I think that Your Honor's one bite at a time is exactly the way

to proceed in this case.

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 29 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

30

I do want to make clear and candor to the Court, we

think there are substantial 12(b)(1) issues, but we do intend

most likely to file the 12(b)(1) and the 12(b)(6) as

appropriate.

But there is -- you know, although counsel for the

Plaintiffs suggest that Your Honor is better with a sort of mass

of undifferentiated briefs, I think there is a good reason that

the Federal Rules provide for the Motion to Dismiss first, and

it's precisely to narrow the issues before the Court for the

benefit of judicial economy both for the Court and for the

parties so we know exactly what remains live.

And I guess just to -- in the interest of keeping it

brief, I'll just say I think that the schedule that's been set

up -- we have the Motion to Dismiss, we narrow the issues, the

Summary Judgment Motion is on file. As soon as Your Honor

rules, we've got 40 days and we will meet that. We certainly

have both the resources and the talent to meet Your Honor's

schedule, and so we would be happy to do that.

THE COURT: Well, I haven't asked you, I asked Mr.

Winship, about the alternative of just going directly to a

briefing of the issues instead of really going through the

formal Summary Judgment Motion under Rule 56.

I don't think it really has any substantive

difference. It's just that sometimes there's some steps that

have to be taken that, when you blow away all the chaff, the

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 30 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

31

real substance of it is the same.

MR. GERSHENGORN: Your Honor, I guess I can say a

couple of things. First of all, I mean, I do think that this is

one where we do want to dot the Is and cross the Ts on this

case, and I do think that an approach that sticks to the Motion

to Dismiss in the normal course is actually the better way to

proceed for all concerned. I think it sets the right tone and

narrows the issues.

THE COURT: Well, that's fine. I mean, I'm just --

I'm just tossing it out as an alternative.

MR. GERSHENGORN: That would be our recommendation,

Your Honor, so the approach that you have outlined so far has

worked and we think is the one better suited for this case.

Thank you, sir.

THE COURT: Let me find where I think we are on our

dates and see what that leaves us.

I think we're agreed that the Plaintiffs may have up

until and through May 14th to amend the complaint. The

Defendants will have up until and through June 16th -- let me

see if that date is right. That's a Wednesday, so that should

not be a problem -- to file their -- actually, it says Motion to

Dismiss, but I suppose that's the answer to the amended

complaint as well.

MR. GERSHENGORN: That's correct, Your Honor.

THE COURT: You would have until June 16th to respond,

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 31 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

32

including the Motion to Dismiss. And the motion would be

accompanied by the appropriate briefing. And we'll get to some

page numbers and things about that in a bit.

The Plaintiffs' opposition brief to the Motion to

Dismiss would give you to August 6th. And they may file a

Motion for Summary Judgment at that time or anytime subsequent

to that, and we'll deal with it in the manner that I've

indicated, and that is that the Defendants will not have to

respond to that until I have ruled on the Motion to Dismiss.

And we will take the Motion to Dismiss separately. I

understand the rationale that the Plaintiffs are proposing here,

but it seems to me that it's just a much cleaner way to deal

with it is to get any issues that may be subject to a Motion to

Dismiss fully aired and resolved one way or the other before we

get into the Summary Judgment.

As soon as there is a -- well, wait just a minute.

Before we do that, August 6th, and then there will be a response

to the reply to the Plaintiffs' opposition to the Motion to

Dismiss, which would be due August 27th, I think we said.

MR. GERSHENGORN: Yes, Your Honor.

THE COURT: Now, I think we need to schedule an

argument date on the Motion to Dismiss soon after that, and I'm

agreeable to most any date, probably. And we're really looking

at the latter half of the month of August, it looks like to me.

Is that --

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 32 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

33

MR. GERSHENGORN: The reply brief comes in August

27th, Your Honor.

THE COURT: That's right, so it would be, really,

early September.

MR. GERSHENGORN: Your Honor, the only thing I'd ask

-- I don't have the calendar in front of me. I know that there

are some -- it's not -- there are some Jewish holidays that come

up in the middle of September. I would sure like to predate

those, if we could, and work around those.

THE COURT: Let's see, I think I've got those on this

calendar.

MR. GERSHENGORN: I apologize, Your Honor, for not

having the calendar with me.

THE COURT: Rosh Hashanah begins September 8th and

runs, well, through the remainder of that week, and Yom Kippur

begins September 17th.

MR. GERSHENGORN: Maybe the 15th?

THE COURT: I'm looking at the week of September 13th.

What does that look like?

MR. WINSHIP: That's fine for us, Your Honor.

MR. GERSHENGORN: Sometime around the 15th, Your

Honor, if that's consistent with your schedule? Yom Kippur is

on which date?

THE COURT: I'm looking at the week of September 13th.

Anytime during that week will be fine. We can put it Tuesday or

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 33 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

34

Wednesday. What's a good day?

MR. WINSHIP: Either is fine with us, Your Honor.

THE COURT: Either one?

MR. GERSHENGORN: Perhaps the Tuesday -- Your Honor, I

apologize. One more time, Yom Kippur is on which date?

THE COURT: Yom Kippur begins Friday the 17th, which

would be Friday of that week.

MR. GERSHENGORN: So either Tuesday or Wednesday is

fine.

THE COURT: Either of those? Let's do it for Tuesday

then. Tuesday, September 14th at nine o'clock. That's on the

Motion to Dismiss.

As soon as I have ruled on that, then the Defendants

will have -- what did I give you, 40 days?

MR. GERSHENGORN: 40 days.

THE COURT: 40 days. 40 days and 40 nights. Well,

we'll give you the biblical period then, 40 days from whenever

that comes for your response. And then there will be a reply,

and then I think I've given you 21 days after to reply.

MR. WINSHIP: That will be fine, Your Honor. Thank

you.

THE COURT: And then we'll set an argument after that.

We'll set an argument once we get into that scheduling, once we

see where we are, but that will be set so that it's convenient

for everybody. All right. Have you got all of these dates?

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 34 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

35

Okay.

Now, can we talk about the size of the briefing and

how that will be -- actually the mechanics of how that will be

done? Mr. Gershengorn, if you want to start.

MR. GERSHENGORN: I guess one question, Your Honor,

would be whether it would be more efficient for the Court to --

we haven't talked about page lengths, I mean, to propose a

length for the Court.

THE COURT: Well, obviously, I don't want a 100-page

brief. Thirty pages may not be adequate.

MR. GERSHENGORN: That's what we were thinking, Your

Honor, somewhere more on the order of 45 or 50 pages.

THE COURT: I don't know what your preference is, but

I'm agreeable to anything up to 50 pages, if you want to do

that.

MR. GERSHENGORN: I think that would be fine, Your

Honor, from our perspective.

MR. WINSHIP: I think that would be fine. Let me ask

you one question, Your Honor, and I know that it would differ

from one federal judge to another.

In terms of Summary Judgment Motions, if we have

multiple counts and we have multiple motions, we have a Summary

Judgment with regard to this count and a Summary Judgment with

regard to that count, would Your Honor be agreeable to us filing

separate Summary Judgment Motions directed at different counts

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 35 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

36

or do you want --

THE COURT: I'm a great advocate of putting all the

motions together. I don't like breaking up Summary Judgments

because -- particularly timewise, but I like to have it all

together so you can try to grasp the whole thing.

Now, I don't know what that does to your page count,

though, because some of these issues I know are quite complex,

but I still think 50 pages ought to be enough to do it for you.

MR. WINSHIP: That sounds reasonable at this stage,

Your Honor. Let me just say that if it turned out that we

thought that there was a need to have more than that, we would

confer with other counsel first.

THE COURT: There are three counts in this complaint.

I don't know if you're going to change that around in the

amended complaint or not, but that ought to be enough to deal

with that. It seems to me it should be.

Is that reasonable? If it's not, I'm open to

suggestions.

MR. GERSHENGORN: I think it's reasonable. But as

counsel said, if it turns out that --

THE COURT: Now, we're talking the principal brief.

Now, the reply brief ought to be certainly no more than half

that.

MR. GERSHENGORN: That's fair, Judge. But I would

also say, Your Honor, that if counsel finds that it --

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 36 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

37

(Inaudible) --

COURT REPORTER: Judge, I can't hear.

MR. GERSHENGORN: I'm sure we could work out -- I'm

sorry, Your Honor.

THE COURT: Yeah, I need you to use the mic.

MR. GERSHENGORN: Counsel had suggested that 50 pages

-- opposing counsel suggested that 50 pages would likely be

enough but they might be pressed at the end, and we certainly

would be amenable to working something out, if Your Honor is

amenable if they need more. And we think as a general structure

50/50/25 is certainly a good baseline.

MR. WINSHIP: And we would agree with that, Your

Honor.

THE COURT: All right. Let's do that. And I don't

think we're going to need any separate statements of facts in

this case because both of you have indicated that the facts are

really not contested, not an issue and really not all that

material, it seems like.

MR. WINSHIP: If we -- Your Honor, if we do -- on our

Motion for Summary Judgment, if we do need to do that, I will

represent that we will be endeavoring only to delve into facts

that are supportable of Summary Judgment, and that is to say,

facts that we believe would be beyond reasonable dispute and yet

nevertheless may not appear in the four corners of the pleading.

THE COURT: Well, you know, if you say a state has X

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 37 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

38

number of Medicaid patients, I don't think it really makes a

difference if it's X minus 1 or X minus 100.

MR. WINSHIP: We agree with you, Your Honor. We're

just saying that, technically speaking, in terms of complying

with the requirement of Rule 56. And as I said, if we're

getting into something that is outside the actual pleading

itself, since this is something that is asking for affirmative

relief as compared to asking for dismissal, which does target

the pleading, I think it would behoove us to perhaps be

satisfying the requirements of Rule 56. But I'm not purporting

to indicate to Your Honor that we think that we would

necessarily have a great amount of statement of material facts

at this point that we would be putting in. But whatever we

would be doing in that regard would be with an eye towards

satisfying the Court that Summary Judgment is, in fact,

appropriate.

THE COURT: Okay. Let me ask about one question that

has arisen. We've had numerous Motions to Intervene or

requests, none of them -- I don't think they've really got to be

formal, but requests for leave to file an amicus filing of some

nature.

I've already ruled on at least one of the motions to

intervene, but I would like your suggestions on how to deal with

these. I don't think they should be a part of the official

court record if anybody wants to file anything that's in the

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 38 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

39

nature of an amicus filing, but I want to keep those so that

they can be referenced by anyone who needs to, including you.

So do either of you have any suggestions on how you would like

to have those treated?

And I'm anticipating that at this point no one is

going to really make a case for permissive intervention, but

there may be some. But assuming that there are none, we have

enough plaintiffs, I think, without bringing in a lot of

intervenors. But I'm open to whatever you may want to feel is

an appropriate way to deal with this.

Mr. Winship?

MR. WINSHIP: Yes, Your Honor. Well, I guess our view

of it is that we agree with Your Honor. From what you've

communicated in your order of last week, we believe that these

issues are being properly presented and represented by the

counsel that are already in this case for the named plaintiffs

and for the defendants.

We certainly understand how many people in this nation

are very galvanized about this action that has been filed as

they are about the Act of Congress that has become law. It's

not at all our desire to squelch in any way the desire of the

people to be heard. We do have mechanisms for formal

petitioning of the Court in order to file amicus briefs and

such.

Our only concern, it's really more in a sense of that

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 39 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

40

we don't want the expeditious resolution of this litigation to

be bogged down with a lot of extraneous voices that the Court

might believe are not really helpful to the Court in terms of

doing the best thing under the rule of law on behalf of the

people of this country in this litigation.

And I think the formal mechanisms with regard to the

standards for intervention and for being heard as amicus curiae

are in place probably for a pretty good reason. And I think

beyond that, it's hard for us to say, other than to look at a

case-by-case basis, with regard to who it is who wants to be

heard in this action and why and in what form.

I mean, do they want to be filing motions? Do they

want to be heard and depriving us perhaps of time before Your

Honor to present our own arguments? These are considerations I

think we would have to address as and when they are presented,

sir.

MR. GERSHENGORN: Your Honor, I largely agree that we

need to address when we're presented. I do think that --

THE COURT: And let me say that these are not just --

these are on both sides of this issue.

MR. GERSHENGORN: Right, yes, Your Honor.

THE COURT: People have strong feelings.

MR. GERSHENGORN: I guess the one thing I would

distinguish between intervenors and amici, I do think that there

are going to be a number of amici who are, I suspect, on both

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 40 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

41

sides who are going to want to file. We're supposed to be on

the electronic record. I don't know what Your Honor's practice

is, but I do think that we may get -- we may get a host of

people.

THE COURT: Well, there's a formal way to do that, and

I would anticipate that those who are serious about wanting to

do that will follow that procedure.

MR. GERSHENGORN: Correct. That's all I would

suggest.

MR. WINSHIP: Your Honor, if I may ask one other

related question with respect to that. We notice, as Your Honor

does and as counsel for the Department of Justice does, that we

are getting a number of filings that are coming in. Some of

them are not complying with the rules, and the Court has been

dealing with them accordingly. But in the days and weeks to

come, we can't predict how many more of these we're going to be

seeing. I think we just have had one or two within the last few

business days, even postdating Your Honor's order of April 8th.

And in that respect, we would ask if we would be

excused from having to actually direct our attention away from

presenting the issues we need to get before the Court, be

excused from having to respond to these various motions, unless

we, for whatever reason, choose to do so.

THE COURT: I don't expect you to respond to any of

those. If you want to respond, you certainly may, but I --

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 41 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

42

you're not obligated to respond to any of those.

MR. GERSHENGORN: So we can assume that unless the

Court -- if the Court is interested in a particular response or

particular filing, you'll let us know?

THE COURT: That's right. Unless you feel it's

something that you want to respond to for whatever reason, you

don't have to.

MR. WINSHIP: Thank you, Your Honor.

MR. GERSHENGORN: Thank you, Your Honor.

THE COURT: I'll take care of that.

Let me just make sure -- there's some required items

that we're supposed to put into a scheduling order under the

rules, and let me make sure that I've got all of those

addressed.

The time to amend the pleadings we've addressed, but

we haven't discussed joining or adding parties. I presume that

same time would apply, and that would mean anybody who wants to

join in officially would have to have done so by May 14th.

MR. WINSHIP: That is our expectation. That, by the

way, Your Honor, is a time that's keyed into, roughly speaking,

the amount of time that we would have in order to move to amend

as a matter of course.

THE COURT: Yes.

MR. WINSHIP: If we needed after that or wanted after

that to be able to add some other parties, we would ask for

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 42 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

43

leave of the Court to do so, of course.

THE COURT: You've also asked, and I certainly agree,

that the disclosures under Rule 26 can be waived. You don't

have to comply with those mandatory disclosures, but I think we

need to at least put a discovery deadline in case there is some

discovery that you see that you may want to do at some point.

And I would propose that we use the Motion to Dismiss date as

the discovery date. Is that adequate? That would be June 16th,

or do you want to just put another date?

I don't have any feelings one way or the other. I

mean, we can make this date as long as you want, but I would

like to make sure that it's sufficiently in advance of the

Summary Judgment time so that we have a record that's pretty

well fixed.

MR. GERSHENGORN: I guess one question would be, does

it make sense to see where we are after the Motions to Dismiss?

Does it make sense -- I mean, I don't think either side is

anticipating discovery, although I don't think either side has

foreclosed it. I guess the question is, does it make sense to

see where we are after the Motion to Dismiss and have a brief

time for discovery after that?

THE COURT: We can do that. I will simply say that

the discovery must be completed by September 14th. That's the

oral argument. If we need more time, just ask for it, and we'll

deal with it, but I don't contemplate that you will. So let's

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 43 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

44

just put that date in, and we can move it if necessary.

Is that all right?

MR. WINSHIP: That would be acceptable if Your Honor

feels we have to have a date in. I just wanted to note that the

nature of our Summary Judgment is such that we actually expected

it -- as I said earlier, when the dust settles and Your Honor

has ruled that you're not granting their motion and you're not

granting our motion, it would give us an opportunity at that

time to be framing where we need to go with regard to discovery.

So if Your Honor is uncomfortable with what is really

paragraph No. 2 of what I presented to Your Honor, then if you

feel we need to put a date in but with the understanding that

that would be revisited, then that would be fine. But we still

would prefer to just basically all understand that this is not

your typical sort of Motion to Dismiss and then discovery and

then at the close of discovery a Motion for Summary Judgment.

This isn't that typical kind of sequence.

THE COURT: It isn't. This is -- you know, this is a

rule that's -- I mean, a case that's extraordinary in a number

of ways, and the rules don't neatly fit it. But I would prefer

to put a deadline for discovery just to have it in there. So

we'll use that. And as I said, it's a flexible date and, if

necessary, we can change it.

MR. WINSHIP: Thank you, Your Honor.

THE COURT: I don't know if there are any other

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 44 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

45

motions that you may contemplate filing other than the Motions

to Dismiss and the Summary Judgment Motion.

Any other motions that may be out there?

MR. GERSHENGORN: Not at the current time, Your Honor.

THE COURT: I can't think -- if there are, just put it

in a motion, file a motion.

Let's see if there are some other things that we need

to discuss. I think I've exhausted my list.

Do you have anything else?

MR. WINSHIP: Not at this time, Your Honor.

MR. GERSHENGORN: Not at this time, Your Honor.

THE COURT: All right. Then I will enter the

scheduling order, and it will come out this week. And it will

set out these dates and the procedure that we've outlined, and

that's the schedule we will endeavor to follow.

There are always things that are unanticipated, so

don't be reluctant if there's something that comes up and you

can't seem to work it out between the two of you. I'm available

for a telephone conference on short notice, and we can certainly

address whatever issues may come up.

Let's see, we have the participants from Arizona, and

I don't think we had those formally identified on the record.

And you may have to spell your name so that our court reporter

can get that.

Would you do that for us, please? Are the

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 45 of 46
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

46

representatives from Arizona still on the telephone line?

MR. KANEFIELD: Yes, Your Honor. I'm sorry. Joseph

Kanefield, J-O-S-E-P-H, K-A-N-E-F-I-E-L-D.

THE COURT: And your title, sir?

MR. KANEFIELD: General counsel to Arizona Governor

Jan Brewer.

THE COURT: Is there anything further we need to

discuss this morning?

If not, thank you very much. We're adjourned.

(Proceedings concluded at 10:06 a.m.)

--------------------

I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter. Any

redaction of personal data identifiers pursuant to the Judicial

Conference Policy on Privacy are noted within the transcript.

s/Donna L. Boland 5-19-10

________________________

Donna L. Boland, RPR, FCRR Date

Official Court Reporter

Case 3:10-cv-00091-RV-EMT Document 43-1 Filed 05/25/10 Page 46 of 46