Case 2:04-cv-08425 Document 267 Filed 10/20/10 71 Pages


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4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PHYLLIS A. PRESTON, CSR License No. 8701 Federal Official Court Reporter United States District Court 3470 Twelfth Street Riverside, California 92501 REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS Riverside, California Monday, April 26, 2010 LOG CABIN REPUBLICANS, ) ) Plaintiff, ) ) V. ) DOCKET NO. CV 04-8425 VAP ) UNITED STATES OF AMERICA, ) et al., ) ) Defendants. ) ________________________________)


1 2 For the Plaintiff: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendants:

APPEARANCES WHITE & CASE By: DAN WOODS PATRICK HUNNIUS 633 West Fifth Street, Suite 1900 Los Angeles, California 90071-2007



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MONDAY, APRIL 26, 2010, RIVERSIDE, CALIFORNIA ---o0o--THE CLERK: Item No. 7, CV04-8425 VAP, Log Cabin

Republicans versus United States of America. Counsel, please state your appearance. MR. WOODS: Good afternoon, Your Honor. Dan Woods,

White & Case, for the plaintiff, Log Cabin Republicans, and Patrick Hunnius from our office. THE COURT: Thank you. Good afternoon. Paul


Good afternoon, Your Honor.

Freeborne on behalf of the United States and Secretary Gates. With me at counsel table are my colleagues Scott Simpson, Ian Gershengorn and Captain Patrick Grant. THE COURT: Good afternoon.

Well, I haven't checked the electronic filing since about 11:30 this morning, so I hope I'm up to date. filed since 11:30? MR. WOODS: THE COURT: You are up to date. All right. Then I'm up to date. Nothing

Things have been changing quickly. The Court sent out, as I think you all know, a tentative ruling late last week, on Thursday I believe, which was addressed not to all the issues that the parties have briefed in connection with this motion for summary judgment that's before the Court today, but addressed only to the


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issue of standing, which was one of the issues briefed, of course, in the motion, but addressed to an aspect of standing that although raised in -- certainly standing had been raised in the motion, but an aspect of standing that although raised, I did not feel had been necessarily fully addressed by the parties. So, in an effort to make sure that both sides were aware of my concerns with whether the Court had jurisdiction over the case, we sent out a tentative ruling early so that the parties would be prepared to address it today. And then

both sides filed further supplemental briefing I think after that. I can't remember the exact date, but by Friday I had

received a supplemental memorandum from the plaintiff, and then in response to that, I think it was entitled a response brief, the defendants' response to the plaintiff's supplemental filing from the defendants. And then this morning two more documents were filed. One, the declaration of Mr. Meekins, and evidentiary

objections filed by the plaintiff to some of the evidence that was submitted by the Government earlier. I have not I have

looked -- I have read the declaration of Mr. Meekins. not had time to review the evidentiary objections.

So, the first question is whether the tentative ruling is superseded by these supplemental filings from Thursday, Friday, and this morning.


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When I read and reviewed the supplemental filings late last week, and I had a long further tentative ruling to read to you, but I think I'll skip that, at least at this point, unless the parties want to argue that. I'll skip it

because I think, although I've thought a lot about the arguments and done some further research in connection with the arguments raised by the plaintiff, that the Court should consider the standing issue as of April 28, 2006, the day that the amended complaint was filed. I think that that is

mooted by the information contained in the declaration of Mr. Meekins, which states that, in short -- it's a very short declaration, but in short, that John Doe paid dues before the date that this action was commenced on October the 12th, 2004. Mr. Meekins was on the national board of the plaintiff, was on the board of directors at the time this action was filed in October of 2004, and he was also an associate of White & Case, the plaintiff's counsel. He,

Mr. Meekins, met with Doe before the case was filed and with at least three others about the filing of the case, and that Doe was so concerned about keeping his identity secret and confidential that he paid the money for his dues through his -- in Meekins' words, through his lawyer, because Meekins considered himself Doe's lawyer. And Doe was at the time a

member of the board of directors and he paid that money to


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LCR or Log Cabin Republicans as Doe's dues. So, I think that moots the standing issue, because if either Nicholson or Doe was a member, the association, of course, only needs one person to have been a member at the time. At least for purposes of the hearing today, I don't

think I necessarily need to hear argument on the issue of whether Mr. Nicholson was a member. It's an interesting -- well, to me it's an interesting question. I've read many times over all the

cases that both sides have cited on this issue, the McLaughlin case, the Loux v. Rhay case, and a few others besides all of the cases that you've cited to me, and I think it's an interesting crinkle when you have associational standing on top of the issue of an action being dismissed and then an amended complaint being filed. But I don't

necessarily have to reach that issue as to whether Mr. Nicholson -- and then there's the issue that the Government raises about whether Nicholson as an honorary member was really a member under the bylaws, but I don't necessarily need to reach that issue if, as I believe, Doe was a member before the action was filed. the case appears to me now. However, and I think you've all appeared in front of me enough to know this, I usually -- well, almost always, when I have a motion to be heard, I give out a written And that's the way


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tentative. On the merits of this case, although I've read everything that the parties have submitted and read many of the cases, I didn't really prepare thinking that this case was really revolved around standing. I would like the

parties to argue it today, and I have several questions to direct to both sides on the merits of the motion. I'm concerned about whether, after hearing you argue today, I will be able to get a final ruling out to you in time that you can finish your trial preparation such that we can keep the June 14th trial date. elicit such a hasty response. response to that. I didn't mean to

I guess I could listen to your

So I'm thinking that I'm probably going to

have to move the trial date a short -- not a significant period, but a short period, but I am prepared to have you argue. I do have several questions to focus the argument on

the substance or the merits of the claims that are raised. Since you both, apparently, want to be heard as to the trial date and the issues with respect to the standing, you can do so first, if you'd like. MR. WOODS: Well, Your Honor, I was just going to

say that in light of the tentative ruling and with the filing just today of Mr. Meekins' declaration, we aren't entirely surprised the Court doesn't have a tentative ruling on the merits of the motion. We're quite happy, if it's your


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desire, to come back another day and argue that.

At the same

time we're happy to argue it today, but whatever your choice would be. We understand, of course, given the timing of

everything, that the trial date would have to be moved. THE COURT: All right. Mr. Freeborne.


Well, Your Honor, I would like to

speak first to the standing issue, if I may. THE COURT: Go ahead. Your Honor, with all due respect,


your tentative ruling is correct and it properly disposes of this case. complaint. initiated. The operative complaint here is the first amended The cases make clear that when the action is When Judge Schiavelli afforded plaintiff the

opportunity to correct the deficiency in its original complaint, he was very clear not to dismiss the underlying action. So standing, as Your Honor correctly ruled in the

tentative, is determined at the time that this action was initiated. THE COURT: Well, let me stop you there, though,

because that's procedurally almost exactly what happened in the case I referred to a moment ago, Loux v. Rhay, which is the case where a state prisoner sued the State of Washington. And it was eventually decided on Eleventh Amendment immunity grounds. But what's interesting about that case is there

were three holdings in the Circuit, and it was Judge Byrne


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from this court sitting on the Circuit who wrote the decision, and what you just said was the first holding, which was there was a complaint filed. It was dismissed. And so

first the Court -- the Ninth Circuit held, all right, the dismissal of that action, as you said, was moved to amend, so it didn't get rid of the case. But, nevertheless, although the trial court's dismissal of the original complaint did not amount to dismissal of the action, the amended complaint superseded the original complaint and thereafter the original complaint should be treated as nonexistent. There was a discussion of

standing in this case, even though, as I said, it really turned on Eleventh Amendment immunity. But if you applied

that logic to our case, the dismissal of the original complaint for lack of jurisdiction, which is exactly what happened in the Loux case, means that it should be treated, as the Ninth Circuit said there, as nonexistent. So then it follows, doesn't it, that the Court should not do a standing analysis based on the date of the filing of the action? MR. FREEBORNE: new parties -THE COURT: Loux v. Rhay. MR. FREEBORNE: Well, Your Honor, perhaps they Which there were neither of in Your Honor, absent new claims or


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could refile and perhaps that would be the remedy here. what we have here is a situation where they filed suit in


2004, October 12th, 2004, and they attempted to manufacture members to support their claim. That's the opposite of how Hunt is very clear in

it should work and for good reason.

requiring you bring suit, and when associational standing is at issue, you must have a member at hand at that time who could sue on his or her own right. THE COURT: I agree with you, you can't manufacture

standing, and you can't manufacture persons, but given what the Meekins' declaration says is they had a member. MR. FREEBORNE: THE COURT: If I could turn to that point?

Why don't you. With respect to the -- first of


all, it's an eleventh-hour declaration and we have considered, but it's improper. They've had six years to come

forward and prove that they had standing in this case. THE COURT: Well, let me -- in terms of the

eleventh-hour issue, the Government didn't squarely raise this. I mean, you certainly have raised standing. It's not

the first time you've raised standing, you've raised it before, but you did raise it in this motion. very difficult issue for the Court. And this is a

When I say "for the

Court," whether I raise something that a party hasn't raised. But when it comes to standing, the Court has no


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The Court has to raise even an aspect of standing

whether one side or the other -- when it comes to any jurisdictional issue, if you haven't raised it, the Court has to. The Court has a duty to. So, although you've raised standing, you had to raise the issue that I felt duty bound to raise, which was that the declaration was more general than I thought it should have been. So, to criticize, if that's not too harsh

a word, to criticize the plaintiffs for coming in at the eleventh hour, if I hadn't raised this in the tentative ruling, they wouldn't have come in at the eleventh hour. MR. FREEBORNE: that. Your Honor, if I could respond to

The law in this case is Judge Schiavelli's March 22nd,

2006 order in which he required them to identify by name a member, not an anonymous member, a member by name. And so,

yes, our briefing was directed at Mr. Nicholson, because I think we all now agree that Mr. Nicholson has been proven not to be a member either at the time of the initial complaint or, frankly, even in 2006. And so, yes, our briefing was

focused on Mr. Nicholson because that's what we understood the law of the case to be. Now, with respect to Mr. Doe, as Your Honor is aware, they have offered up a declaration in the past for Mr. Doe. It's very curious now that they've offered up a And there's a lot of questions to

declaration from counsel.


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be raised about the Doe declaration. First of all, Mr. Meekins' is very carefully drafted. When? Mr. Meekins says funds were transferred to him. He also concludes in the final Well, that

We don't know.

paragraph that he considers Mr. Doe a member.

doesn't leave us in any better position than we were after the Bradley declaration. He, too, considered Mr. Doe to be a

member, but that doesn't sustain their burden of proof on the issue. And even if they could get beyond all those hurdles, Judge Schiavelli's order on March 22, 2006, governs this case, and for good reason. It was only because we could

depose Mr. Nicholson and, frankly, Mr. Hamilton, their director, were we able to learn that they had -- that Mr. Nicholson was not a member at the time that this action was commenced, and he was not a member at the time of the filing of the first amended complaint. What the Meekins' declaration does show us, though, is the extent to which they have attempted to manufacture standing in this case. didn't have any member. What it makes clear is that they They purportedly went to four

enlisted service members and say, "Will you help us with this lawsuit?" And then they attempted to -- they apparently were

able to enlist Mr. Doe, but again, the declaration is very unclear as to whether or not he was a member. And all


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Mr. Meekins tells us is that they considered Mr. Doe to be a member, not that he was a member, not that he's on the membership roles, not that he was on the membership roles back in 2004. Your Honor, all of this points to the fact why Judge Schiavelli's ruling was correct. We need to have an They said

identified member which they said that they have. that in the original complaint. discharged members."

They said, "We have

And to identify one of those

individuals certainly doesn't cause them any harm, the individuals harm, because they've been discharged. Moreover, Mr. Woods handed me at Mr. Hamilton's deposition a survey of anonymous discharged members. said, "We have plenty of discharged members." They

They can

identify one of those discharged members to sustain their burden of showing standing, associational standing. To

manufacture standing as they've done in this case in a constitutional challenge, Your Honor, is an improper forum for this Court to be exercising Article III powers, particularly when we have a facial challenge. As Your Honor is aware, facial challenges are independently frowned upon for good reason. They have What we

potential of intervening the democratic process.

have here from all appearances is a generalized grievance where the Court should not be exercising its Article III


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powers, particularly where we have a constitutional challenge at issue. So, with all due respect, we believe that they have not sustained their burden of proving that Mr. Doe was a member and, therefore, a proper basis for the Court to find associational standing, but even if you were, the March 22, 2006 order should govern this case. THE COURT: I've addressed that already in the

order that I issued about what anonymous means and what the circumstances of this case mean in terms of the exception in rare cases where a person may be identified as a John Doe. But, Mr. Woods, do you want to respond to the other arguments? MR. FREEBORNE: that analysis? THE COURT: I've already ruled on that issue, so I Your Honor, if I could speak to

think you've preserved it. Mr. Woods, do you want to respond on the other issues? MR. WOODS: standing for now. if you would like. THE COURT: MR. WOODS: Let's focus on standing first. First of all, associational standing is There are several Yes, Your Honor. Let me just focus on

I'm happy to talk today about the merits,

a recognized part of our legal system.


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cases cited in the briefs where courts do find associational standing to exist, which includes the Biodiversity case in the Ninth Circuit, the Associated General Contractors case in the Ninth Circuit, and from the Supreme Court, the Friends of the Earth case and the Hunt case. We all agree, I believe, on what the elements of associational standing are. Three elements in the Hunt case,

and the Government is only contesting one of them, which is whether one member of the organization has standing in his or her own right to present the claim. What the Government misstates, and again, Mr. Freeborne's argument misstates again, is the burden on this motion of establishing this issue. The case that I

believe, Your Honor, sets out this most clearly is the Lujan case which is cited in your tentative. It's a Supreme Court

case and it talks about the burden of standing at different stages of the litigation. I know this is important, so if I just want to read a little

you don't mind, bear with me.

bit of it without citing the cases that relies on them. This is the Lujan case, Your Honor, page 561. party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere "The

pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the


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burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." So, in this argument, Your Honor, it's not that we have the burden of proving standing to exist, we only have, in response to the Government's motion, the burden of showing the genuine issue of material fact does exist. And we have

carried that burden, we believe, Your Honor, both with respect to Colonel Doe and with respect to Mr. Nicholson. So the evidence before you on Colonel Doe's standing is contained in his original declaration, Mr. Bradley's declaration, and now in Mr. Meekins' declaration. And all of that evidence shows you that he was

a member of Log Cabin Republicans prior to the filing of the original complaint which was in October of 2004. At a minimum, Your Honor, this evidence that we


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presented to you at least creates a genuine issue of material fact on this issue. And we may have to prove it at trial as

well, but that is the standard and we have met that standard. With respect to Mr. Nicholson, Your Honor, the question, first of all, is a legal question about when you look at the issue, at the time we filed the original complaint or at the time of the filing of the first amended complaint. And in our brief we did cite the case you've And we noticed

already mentioned, the Ninth Circuit case.

that in the Government's response to our supplemental brief there was no mention of that case or of the treatise that also stated the same point. Also, Your Honor, sorry to fill you up with one more case for you to look at in your reading on this issue. I apologize again for not citing it earlier, but we were short of time. An additional case that we believe supports our

position, Your Honor, is called Forum for Academic and Institutional Rights, Inc. v. Rumsfeld. The Citation is 291

F.Supp.2d, 269, from the District of New Jersey in 2003. THE COURT: MR. WOODS: Sorry, 291 F.Supp.2d? At 269. You will find, Your Honor,

there is subsequent history to the case on the other issues in the case but not on the standing issues raised. The

plaintiff in that case, Forum for Academic and Institutional


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Rights, is called FAIR.

It's a Solomon Act case in which

FAIR and other -- FAIR was an association of law schools challenging the Solomon Act. And the standing in that case And prior to

was raised by a Government motion to dismiss.

the hearing on the motion to dismiss, FAIR identified by name two law schools who were members of the organization. the standing issue is decided in that case on a second amended complaint that had been filed in that case that included the names of the two law schools that had not previously been mentioned in the prior complaints. case the District Court found standing to exist. In that The And

subsequent history has to do with the other issue in the case which is whether the plaintiffs were entitled to preliminary injunction. I also want to say, Your Honor, that some of the cases that the Government cites in its supplemental papers actually do not support the positions cited by the Government, and perhaps indeed support our position. One of

those is the Lynch case which demonstrates its standing in the class action case which is somewhat analogous to our case. Can and should be evaluated based on when the

proffered representative is added to the litigation, need not be determined at the time of commencement. The Court their

evaluates standing based on the later added class representative, not the class representative named in the


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original complaint. The other case that the Government relies on here is the Schreiber case. And the Government quotes soundbites

from that case, but the actual case says something else. It's a very odd case where the plaintiff had standing on a patent litigation when they filed the case, then transferred the patent rights and then at some point prior to judgment got them back. And again, the Court there does not look at standing at any one particular point in time and actually says, with respect to the general rule about standing, that the plaintiff must have initial standing and continue to have a personal stake in the outcome of the case that, quote, this rule is not absolute. So that case, we believe, also

establishes our position that you could and should look to standing as of the date of the filing of the first amended complaint. And if you agree with that proposition, Your Honor, we have also established at least a genuine issue of material fact as to whether Mr. Nicholson has standing. We have

evidence before you that showed bylaws of the Log Cabin Republicans allowed for honorary members and that Mr. Nicholson became an honorary member in April of 2006. That evidence is found in the Engle declaration, Mr. Nicholson's deposition, and in the Ensley declaration.


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It is also our view, Your Honor, that the Government does not get to decide who is or isn't a member of the Log Cabin Republicans. It is our position that's what

the Government seems to be trying to do by questioning the relationship between the bylaws of our organization and the articles of the corporation. THE COURT: on this last point. Well, let me interrupt you for a moment The McLaughlin case -- you mentioned

class actions a moment ago, and the McLaughlin v. County of Riverside case, which perhaps not surprisingly I am familiar with, is a class action case that started out with a single named plaintiff who filed for putative class action. And when the Supreme Court analyzed

the standing question, it expressly referred only to the filing of the second amended complaint when determining the basis of the standing. Now, Mr. Freeborne, I'm sure, would

point out correctly the single named plaintiff filed the putative class action which claimed that the County violated his rights under the Gerstein case about timely hearings to determine whether a warrantless arrest had been made to determine probable cause, speedy arraignment, and bail. And then when the County moved to dismiss for lack of standing on the basis that that plaintiff hadn't shown that he would again be subject to all of this unconstitutional conduct, then three more plaintiffs joined


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So I think, as Mr. Freeborne argued earlier, it's a case The thing

where there were additional plaintiffs added.

that's similar in a sense to this case where we have associational standing is that was a class action. So

although there are, in a sense, named plaintiffs, they are representing a class just as an association here. There's

some similarities or an analogy can be drawn between associational standing and the requirements of class representation. So the three additional plaintiffs, the representative plaintiffs, join in filing a second amended complaint. It's a little hazy. I think the judge in

question never ruled on the first amended complaint but allowed a second amended complaint to be filed by a motion to dismiss the first amended, but a second amended complaint was filed. again. And as I said, the Supreme Court only analyzed standing from at the point in time which the second amended complaint was filed in July of 1988, adding the three new plaintiffs as class representatives. So the defense in And the County moved to dismiss for lack of standing

the -- I think it's in their reply papers in this motion argues that a complaint may be amended to show that jurisdiction exists but -- it actually was argued again today -- it can't be amended to create jurisdiction when it didn't


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exist in the first place. But I don't think you can escape the import of McLaughlin where the Supreme Court only analyzed the standing issue as of the date that the second amended complaint was filed and not the date that the action was originally commenced. So even if you argue that the focus on a later

date in McLaughlin can be explained as the result of the addition of the new plaintiffs in that case, I'm not sure that distinction is persuasive, because while in McLaughlin there were three new plaintiffs that were added, the amended complaint here, of course, remains one filed only by one plaintiff, the association. But the principles governing associational standing, there only has to be a member of the association who has standing, which is similar to the principles of standing for purposes of -- it's similar to the principles of having class members who are representative for purposes of a class action, which is what happens and what often happens when a class action is filed. And the representative in that

case was -- the representative class member was held not to have standing and perhaps, therefore, defeating the entire class's standing because he couldn't show that the unconstitutional acts were likely to be repeated. But when

three more plaintiffs were added, standing was held to exist.


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So I'm not sure you can really distinguish the two cases by saying, oh, but they had more -- more plaintiffs were added, because if you've got a class and you've got an association, in a sense, you still really have one plaintiff. If you've got a class or an association, you've

got representative class members that have to be representative, if you've got a class action. And in an

association you have to have at least one member who would independently have standing, but the principle should be the same. Do you want to respond to that? MR. FREEBORNE: THE COURT: Yes, Your Honor.

And then I'll let you finish your


With respect to Lujan --

No, actually, if you could just respond

briefly on this point about McLaughlin. MR. FREEBORNE: Well, Your Honor, when you add new

claims and you add new parties, of course, the standing that exists will be determined based upon those new claims and those new parties. Here the parties have remained the same.

And in Lujan what it makes clear is that, after the discussion that Mr. Woods just read, is that where you're suing on behalf of someone else. You recall in Lujan the

plaintiff argued, well, now that the Government had been


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added as defendants there, that that solved the redressability problem, and that's what Lujan specifically rejected in footnote No. 4. So, the point is, that you bring a lawsuit and -THE COURT: scheduled. (The Court and the clerk confer) THE COURT: Go ahead. Your Honor, what Lujan makes clear I'm sorry, I have a conference call


as well as the cases that actually address associational standing, Biodiversity, for example, and the Laidlaw case, is that when you bring an action and you purport to sue on behalf of individual members, those members, of course, must exist at the time of the suit. All the cases we've been

discussing don't address the associational context, again, Biodiversity and Laidlaw do. And Lujan makes clear that

where you're suing on behalf of someone else, there's an extra showing that Mr. Woods is not acknowledging in his argument. With respect to Mr. Nicholson, our argument is not that we get to decide who is a member of Log Cabin Republicans. We acknowledge that it's Log Cabin's decision

to make, but must be pursuant to the articles of incorporation, which D.C. law makes clear in their articles of incorporation that you're to have one class of members,


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dues paying members, and the undisputed facts show that Mr. Nicholson was not a dues paying member, even at the time of the first amended complaint. THE COURT: members? MR. FREEBORNE: Your Honor, to the extent they do, The bylaws don't provide for honorary

they're void, because they're in conflict with the articles of incorporation. As Your Honor will recall, bylaws are not The

reviewed by the government of the District of Colombia.

articles of incorporation where Log Cabin is incorporated, the government does review the articles of incorporation. Those articles of incorporation make clear that there is only one class of membership, the dues paying members. separate class for honorary members. THE COURT: Well, the articles of incorporation are There's no

filed with -- the equivalent is of the Secretary of State from the state. But I'm not sure what your authority is for

the proposition that if it's in the bylaws and it's not in the articles of incorporation, that makes that section of the bylaws void, as you said. MR. FREEBORNE: THE COURT: Your Honor -- sorry.

No, go ahead. I was going to say we have Because, again, in

MR. FREEBORNE: authority.

D.C. law makes that clear.

case law from this very Circuit makes clear, the District


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Court's position makes clear that to the extent that bylaws are in contravention of the corporation's articles of incorporation, the bylaws are void. authority in our brief. We have cited that

And it just follows, because, again,

the corporation only exists because they have articles of incorporation that have been blessed by the Government. The facts of this case show, A, that those articles of incorporation require the payment of dues, as Mr. Hamilton, the Director of Log Cabin, acknowledged at his deposition. To the extent the bylaws create a separate

category of members, honorary members, they're in conflict with the articles of incorporation and therefore are void. And the fact that they've now filed Mr. Meekins' declaration is implicit acknowledgement of the dues paying aspect of their membership, because that's why they highlight that issue. But, again, they can't even -THE COURT: Well, not necessarily. I mean it

doesn't -- there is no evidence that Mr. Doe -- I'm sorry, I should be saying "Colonel." I know titles are important to

everyone, to get your name and the title correct, so I apologize for that. Apparently, there's no evidence he was

ever made an honorary member, so they can't say he was an honorary member, so they're saying he is a dues paying member. The reason I am so puzzled by this conflict between


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the -- I didn't focus on it before, so I will go back and look at the authorities that you're telling me about. It

just sort of goes against my -- assuming what you told me, I mean it does seem like a drastic consequence that that part of the bylaws would be void. The Federal Bar Association, I don't know if you remember, the Federal Bar Association provides for honorary members for all judges. At least the bylaws do. I don't But many

know if the articles of incorporation do or not.

organizations have a very loose category of honorary memberships. And I've never really thought about the

interplay between the articles of incorporation and bylaws, so I'll take another look at that issue. All right. MR. WOODS: You may continue. Thank you, Your Honor. On that issue

there were no District Court cases cited for the proposition that the bylaws would be void. Instead, the Government cited

a state court case from Nevada and a state court case from Illinois. point. THE COURT: MR. WOODS: THE COURT: of Colombia? MR. WOODS: No case cited in the papers, Your On the issue of whether bylaws are void? Right. Isn't there anything from the District That's the authority they could find on this


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Honor. THE COURT: Do you have something to say? Did you

have some authority from the District of Colombia on that? MR. FREEBORNE: We had a D.C. code, Your Honor,

Section 29-301-0512, which states clearly that bylaws cannot be inconsistent with articles of incorporation under the laws of the District of Columbia. THE COURT: they're void? MR. FREEBORNE: Well, it says they cannot be We cited But it doesn't say in the code that

inconsistent with the articles of incorporation.

two state cases, the Nevada case as well as an Illinois case, setting forth that proposition. Again, the D.C. law makes

clear that to the extent the bylaws are inconsistent with -Your Honor, they can't be inconsistent with -THE COURT: It says they can't be. It doesn't say

what the consequence is if they are? MR. WOODS: Right. It defines the power of the


nonprofit corporation, the power to make and alter bylaws not inconsistent with its articles of incorporation or the laws of the District of Columbia for the administration and regulation of the affairs of the corporation. the power. So it defines

So to the extent the bylaws are inconsistent with

the articles of incorporation, they are void pursuant to


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D.C. law. MR. WOODS: Again, Your Honor, it is our position,

and I think it's a correct position, that all this does is possibly trade the genuine issue of material fact that would have to be tried on the standing issue, again, only with respect to Mr. Nicholson, not with respect to Colonel Doe. Another small point, Your Honor. Counsel in his

argument seems to criticize our case as being a facial challenge. And I want to tell you that facial challenges are There's nothing inappropriate about a They're an important, recognized part of The Lawrence case was a facial

not inappropriate. facial challenge.

constitutional law. challenge.

Just last week the United States Supreme Court

cited another facial challenge, United States v. Stevens, and reversed on constitutional grounds a facial challenge, an animal cruelty statute and, of all things, an 8 to 1 vote of our Supreme Court. appropriate. I was prepared, Your Honor, to talk to you about the consequences if you had stayed with your tentative ruling about standing. I don't need to go into that now, but one of So facial challenges are more than

the consequences might have been to ask you for an opportunity to find more members, to file an amended complaint, because all that would have done, Your Honor, would be to require us to file a new lawsuit tomorrow, which


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might have named Mr. Nicholson and Colonel Doe as members, because there's no doubt that there are damages. There's no

point in doing that because we do have standing, we both recognize now. And, again, our apologies -Let me ask you -- let's go back to some


of the arguments that Mr. Freeborne made about what he contends are the weaknesses in the declaration submitted by Mr. Meekins. MR. WOODS: I'm only going to tell you, Your Honor,

that going back six years trying to find out what happened and what we've done in the short amount of time we've had, I think we did a good job of finding out evidence and presenting it to you. issue of material fact. And, again, this creates a genuine Before this case is tried, whenever

it's tried, we will be better prepared to give you more evidence on that, but I don't know what else to tell you. we need to have Mr. Meekins testify at trial on this, we will. I imagine to have the other witnesses about the If

honorary membership of Mr. Nicholson and the like testify at trial. Again, as I said, with respect to the Lujan case, the standing issue is determined at different stages of the litigation by the governing burdens that apply to each stage of the lawsuit. THE COURT: I'm going to take a short recess at


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3:30 because I had a conference call on another case on a status conference. And when they called at 3, Ms. Dillard So at 3:30 I'm going to take And then I'll

told them to call back at 3:30.

a short recess to take that call in chambers. come back out and we'll talk.

I want to at least have some

argument on some of the issues on the merits that I would like to hear from the parties on. But one last set of questions I have about the Meekins' declaration. Mr. Freeborne has brought up some of

the Government's concerns with the Meekins' declaration in terms of the -- I'm not concerned about the issue that the Government has argued. I have listened to their argument,

but I'm not concerned about it being an eleventh-hour issue, because the issue about the exact timing of Colonel Doe's membership was not squarely raised except by the Court in the form of the question raised in the tentative ruling. So the

fact that it wasn't dealt with until after the Court issued the tentative ruling, I think that's the reason. But the

Court has a duty to raise issues regarding its jurisdiction, including standing, on its own even if neither party has raised it. MR. WOODS: Your Honor, excuse me for interrupting. That specific point

On that point you're absolutely right.

was not even mentioned in the meet and confer session that led to the motion for summary judgment.


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All right.

I'm not faulting either

side either for not, you know, either about raising it or for not having anticipated it. That sometimes -- I just didn't

want to have the parties do all the work to prepare and then come to court and have the Court raise something that needs to be raised but everybody is caught by surprise. But as to Mr. Freeborne's arguments about the Meekins' declaration, I have done this once or twice before, not in connection with the standing issue but actually in connection with matters that have come up regarding performance in criminal cases, in that sort of a context. I'm not sure it's necessary, but one solution to the concerns that the Government has raised about whether Colonel Doe is a manufactured plaintiff, I'm not sure if that's really what the Government is suggesting here, but if that's the Government's contention, then it seems to me that the solution for that, because that's a serious allegation, and if that's the suggestion or the concern of the Government, then the solution, it seems to me, is as follows: That if I was persuaded that there was a serious doubt as to the existence of a fictitious member, I mean someone who is named with a fictitious name, and I stand by my ruling that this is a rare case where it was appropriate to allow someone to use a fictitious name, but to verify the existence of someone who is allowed to proceed under a


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fictitious name, then I would have a hearing where plaintiff's counsel, rather than even filing it under seal, just to make sure that there's -- in my experience with the court, there hasn't been a situation where something that was filed under seal was inadvertently disclosed, but just to make sure that that doesn't happen, then I would allow a hearing where plaintiff's counsel could physically bring into court documents that would verify the existence of Colonel Doe, the information about his service and so forth, bring them into my courtroom and hand them to me. I will either sit on the bench or take them into chambers, review them, satisfy myself, and hand them back. So they don't get filed with the court. who has eyes on them. I am the only one

And if I am satisfied that this is not

a fictitious person but just a fictitiously named real person, then that's the end of the inquiry. If I am not

satisfied, then we'll have to have a further hearing on it. But if the Government has -- I'm not sure I am understanding the Government's concerns, but if I am understanding the Government's concern correctly that there is a manufactured plaintiff; that is, that the person is just not fictitiously named but is fictitious, then that to me is the way to verify that. And as I said, I've done this procedure where rather than having something filed under seal, it's usually,


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as I said, I think I've done it twice before and it's been in the context of very sensitive information with respect to informants or private medical information, and that's the way I've proceeded. So I would let the parties talk about this, if you'd want to, but that's the way I would proceed. And I'll I

tell the parties that I have considered that in this case. might consider it in the future. MR. WOODS:

Well, Your Honor, what I understood the

Government to be saying about Mr. Meekins' declaration was that there were four people he talked to, and he talked to them shortly before the complaint was filed, and only one of them became a plaintiff in the sense of a member of Log Cabin Republicans who was injured by the policy. You know, what I think the Government is missing is that this isn't intended to show you the entire universe of information about efforts to locate plaintiffs or members who have been injured by the policy. What we did was to find for

you the person who had personal knowledge about this Colonel Doe. So I think the Government was sort of reaching a little

bit in trying to suggest that we are manufacturing anything. And I never have seen the Government try even to claim in this case that Colonel Doe does not exist. And, remember, Your Honor, at the beginning of this when we were first asked by Judge Schiavelli to name somebody


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by name, we suggested to the Government that we would name Colonel Doe by name if the Government would agree not to take action against him, and the Government declined. THE COURT: MR. WOODS: Right. I understand that.

We are in that position because of the

Government's refusal to agree to that process that we had suggested. MR. FREEBORNE: Your Honor, what we were arguing,

and it's based upon the Meekins' declaration, is that they decided to bring this lawsuit and then they were trying to enlist as members service members within the Armed Services who are not members. THE COURT: Right. But you're not contending that

Colonel Doe does not exist? MR. FREEBORNE: No, Your Honor. Although the

declaration does have some discrepancies in that regard when it talks about Colonel Doe and then it talks about him as an enlisted service member as opposed to a commissioned service member. THE COURT: I wondered about that. I'm not

entirely familiar with the difference between those terms, but familiar enough. You can enlist and be an officer. I

mean, only you're commissioned when you're an officer. MR. FREEBORNE: Your Honor, but our primary concern

is the concern that was identified in the


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Washington Legal Foundation case.

A proper associational

plaintiff should have a membership that has been harmed in whatever way you're now seeking to base your challenge upon. You should have an existing membership. associational standing. That's why you have

You shouldn't have an entity like

Log Cabin Republicans challenging the constitutionality of a duly enacted statute and then trying to get members to support your lawsuit. work. And so when I make the point, that's related to the facial challenge point. sinister. I'm not saying that they're That's not the way it's supposed to

I'm just saying that the Court should be careful

when it exercises its Article III powers to ensure there's a case for controversy. THE COURT: challenges. And facial challenges -I understand your point about facial

You've cited your authorities on that point.

And I think I understand better your position with respect to identity of the Doe member in this case. All right. I'm going to take a recess so I can

take care of this status conference in my other case and then we'll continue on at about 3:40. (Recess) THE COURT: All right. Let's turn to the next Thank you.

issue which is partly an issue connected to the standing issue and partly an issue that is related to the merits. And


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that is the argument that the Government raises about whether as to Colonel Doe -- I'm sorry, let me find it in my notes here. That as he has never been discharged and, as the

Government argues, the "Don't Ask, Don't Tell" policy has never been applied to him, the Government argues that his asserted harm is based on a future possible conjectural or hypothetical application of the policy; and therefore, this doesn't satisfy the standing requirements of a concrete and actual or imminent injury. The cases that the Government cites in support of this argument, the two primary cases the Government cites are the Vermont Agency of National Resources v. Stevens, which is a qui tam case where in general the Court addressed the type of injury a relator suffered in order to satisfy the first element of the standing inquiry, but that case really is so factually distinct from our case, I don't find its analysis to be that helpful. The Gange Lumber case also cited by the Government, the 1945 case, which deals with the State of Washington's change in the administration of that state's industrial insurance program, apart from a reiteration of the general principles of standing, which aren't really in controversy, that case, too, is not particularly helpful. Both sides argue a bit about the -- or rely to a certain extent, argue the impact of the City of L.A. v.


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Lyons, which originated in this District but is a United States Supreme Court case. That's the choke hold case which

does deal with the issue of whether the plaintiff satisfied the requirement of showing a concrete particular imminent injury. And so while it talks about whether the plaintiffs

who were added -- no, I'm sorry, there weren't plaintiffs added in that case. That was the case where the plaintiff filed suit because he was arrested after a traffic violation subject to the choke hold applied by an LAPD officer which injured his larynx and then sued to prevent future such injury. The

Supreme Court held that there wasn't really a danger of such an incident happening again; that is, that he be arrested for a minor traffic violation, and according to the allegations in the complaint, immediately subject to -- even though he wasn't resisting, according to the complaint, being subject again to a choke hold, because among other things, there had been 15 deaths from choke holds in the meantime and the LAPD had changed its policy. also made it conjectural. That case is just so dissimilar from ours that -- I didn't think any of the -- neither side really cited the line of cases that I was looking for, that I thought were the line that would be similar factually and persuasive, which would be cases where somebody was threatened with prosecution or But all of the other facts involved


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thought they faced imminent prosecution. So I found a number of cases that I think are either closer factually or provide such a contrast that they aluminate the problem that the defense is pointing to here. First, Babbitt v. United Farm Workers, which is 442 U.S. 289, which first sets forth the principle that a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. And it relies on

O'Shea v. Littleton, which I think the Government did cite here. But it goes on to hold that one does not have to await

the consummation of threatened injury to obtain preventive relief. enough. If the injury is certainly impending, that is And there is various other cases that are cited. I think that's exactly the situation here where the -- it's certainly impending; that is, initiation of separation proceedings, if Colonel Doe announces his sexual orientation. In fact, in the merit section of the moving

papers in the Government's careful discussion of the policy, both the findings that support it and the policy itself, a statement that one is homosexual is grounds for initiation of separation proceedings. So I don't think that the Government's position here that it's conjectural or hypothetical that the "Don't Ask, Don't Tell" policy would be enforced is well-taken.


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There's a policy, it's enforced, and the injury to a member of the Armed Forces while serving, that it's simply not conjectural or hypothetical. There are a number of other cases and one the name of which I thought I had in my notes, but I don't. It

involved -- I think it was a Ninth Circuit case which involved someone who was passing out handbills and was challenging the ordinance that forbade that. He was warned

specifically by a police officer that if he was caught doing it again, he would be arrested. His companion who was also And the Court held that

handing out handbills was arrested.

that was enough to show standing and that was a facial challenge. So I think that that is certainly -- that's probably as close factually as we could find. persuaded by the Government's argument. So I'm not

That's pretty much

the last argument that we haven't addressed here on standing. Do you want to respond, Mr. Freeborne? MR. FREEBORNE: Your Honor, the phrase that you

referenced in the Babbitt opinion mirrors that in the Lyons decision which isn't pending. If Colonel Doe is to be

believed in his declaration, he has served for over 20 years without being subject to the policy. He alleges that his

speech has been chilled, but Your Honor has already dismissed that aspect of their First Amendment claim. So now


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we're left with his potential discharge.

And our argument is

that because he has served, any threatened separation is inherently speculative. It is not imminent or impending as

the term is used in the Babbitt decision. And as Your Honor is aware, the O'Shea case is referenced in Lyons, so that analysis is subsumed within the Lyons analysis. That analysis is important here because what

plaintiff is seeking to do is to enjoin the enforcement of a federal statute in seeking declaratory injunctive relief, which Lyons speaks to and points to the heightened showing that must be provided in that context, as does the Hodgers-Durgin case that we cited. THE COURT: But if this is not a case where, as in

the language I just read to you, one doesn't have to await the consummation of threatened injury to obtain preventive relief, but one who challenges the statute just has to demonstrate a realistic danger of sustaining injury, if this isn't that case, what would be the case? policy the Government has stated. I mean, there's a It's

The policy exists.

the Government's duty to enforce it.

So if this is not such

a case, how could there be a case where there is a more direct danger of concrete, impending injury? MR. FREEBORNE: Well, Your Honor, with respect to

the statements analysis, Your Honor is aware that the service member can rebut the presumption as it relates to that


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There's a whole discharge proceeding that would

have to occur before the service member would have to be discharged. THE COURT: But the initiation of the discharge --

I mean, I think -- is your argument that the initiation of the discharge itself is not an injury? MR. FREEBORNE: Well, Your Honor, our argument is

that the fact that that would occur, given that Lieutenant Colonel Doe has served for over 20 years, is inherently speculative and it's not imminent or impending as the case law had said. THE COURT: Well, Ms. Witt had served for

approximately 20 years, so the length of service doesn't seem to -- and yet the -- I think her branch was the Navy, but they initiated separation proceedings against her. So if

your argument is that once somebody has served a certain number of years, they're less likely to initiate separation proceedings, the reported cases have no support for that proposition. MR. FREEBORNE: Your Honor, the difference here is

they're seeking declaratory injunctive relief, which again, Lyons speaks to, and it was not at issue in the Witt case. THE COURT: But your argument -- if I understood

your argument correctly, you seem to be saying, well, he served for 20 years so they're not likely to initiate


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separation proceedings.

There just doesn't seem to be any

support for that proposition. MR. FREEBORNE: Our argument is it's inherently

speculative and should not be the basis for awarding declaratory injunctive relief, and they do not have standing to pursue that claim. THE COURT: That's our argument. How is it speculative? Again -The Government

MR. FREEBORNE: THE COURT: enforces the policy.

There is a policy.

So how is it speculative that

separation proceedings would be initiated? MR. FREEBORNE: Your Honor, again, his conduct.

He, by his own admission, has served many years without being subject to the policy. And any harm that would result from I'm not sure how much It's

the policy is inherently speculative.

I can add to the analysis, but that's our argument. much like the stop case in Hodgers-Durgin where the

individual there was allowed to cross the border without incident, and here he's served for many years without being discharged. THE COURT: Well, according to the policy, which is

Sections 654(b)(1), (f)(3)(A)-(B) of Title 10, the defendants may initiate separation proceedings if a service member engages in a homosexual act, which is further defined as any bodily contact actively undertaken or passively permitted


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between members of the same sex for the purpose of satisfying sexual desires; and any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A), and such acts include holding hands and kissing, which is found in the regulations at 1332.14 at E3.A41.2.4.1; or, just to give a couple of examples, or the defendants may initiate separation if the service member makes a statement that he or she is a homosexual or words to that effect. So I've been quoting from two parts of the policy. The Government -- I don't mean to keep repeating myself. The

Government enforces the policy, so if -- I'm really having a hard time understanding your argument that the harm -- the injury, that is, that he be subject to what's called separation proceedings, that is, he be discharged, isn't the concrete and particular and imminent injury. The fact that

he has served 20 years, that's sort of irrelevant. MR. FREEBORNE: Well, Your Honor, in any case, he He has served

has not been the subject of the policy. without incident.

It makes it just like the stop cases that

we've cited and the choke hold case. THE COURT: He has been the subject of the policy. He has not been the subject of


discharge proceedings because he has operated within the confines of the statute. And so to use him as a basis to


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seek declaratory injunctive relief is improper under Lyons, Hodgers-Durgin and the other authority that we cited. THE COURT: MR. WOODS: Do you wish to respond? Yes, Your Honor. Thank you.

Colonel Doe has been injured every day of his service under "Don't Ask, Don't Tell." express his core identity. He is not allowed to

He is not allowed to engage in

the type of private consensual conduct that he might wish to engage in. And he's not even allowed to participate, as he So he has

ought to be allowed to participate, in this case. been injured every day.

There is no legal requirement, as the Government would like to suggest, that he must be discharged before he could have standing to sue. If you take the Government's

argument to its natural end, then no current member of the Armed Forces could challenge this statute prior to being discharged. No one. The thousands and thousands of our

Armed Forces, they would argue, no one could challenge it because you haven't been discharged. And then, Your Honor, here's what they would do next, as they did in this case before when we put in Mr. Nicholson to the case initially. They then argued that,

well, Mr. Nicholson has been discharged; therefore, he can't be the person who represents those people who are currently serving. So they want to have it both ways and they can't


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have it either way. Your Honor.

The position just doesn't make sense,

There's no case they've cited to you that says

the only injury that counts in this context is discharge. Assuming that we're right in our constitutional law analysis of this case, Colonel Doe's rights have been violated every day that he has been in the service since "Don't Ask, Don't Tell" was enacted. And that's the point

we're trying to make, that he has been injured. And, again, going back to the burden issue, and again, there is at least, Your Honor, a genuine issue of material fact about this that precludes summary judgment. THE COURT: Well, I mean there's at least two ways

of looking at what the injury is, and they're not necessarily mutually exclusive. But one of the injuries, going back to

the argument you made just a moment ago, your argument is that the Government is trying to have it both ways. one of the injuries is the discharge, the separation procedure. So if Colonel Doe is identified, then he would be At least

subject to -- according to the regulations and the statute that I've read, he would be subject to discharge under the policy. MR. WOODS: injury to him. conjectural. Correct. So that's a real risk of It's not

That's not speculative. It's real.

And, again, we tried to avoid that

by offering to stipulate with the Government that he would


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come forward and identify himself by name as long as no discharge proceedings were brought, and the Government refused to do that. THE COURT: But your argument, in the alternative,

is that there's another sort of injury that he suffers by virtue of the policy, but that's different from the standing injury, in a sense. MR. WOODS: I'm not sure it is, Your Honor. I mean

he has been injured by "Don't Ask, Don't Tell" even though he hasn't been discharged. He's been injured, as he stated in

his declaration, because he desires the same right to communicate the core of emotions and identity to others as granted to heterosexual members of the United States Armed Forces. In other words, he has to every day live a lie about That gives him standing to

who he is, and that's an injury.

bring a due process claim in this case. THE COURT: But the other type of injury that we've

been discussing, that is, the danger of discharge, is sufficient -MR. WOODS: THE COURT: MR. WOODS: Yes. -- as for a standing purpose. Yes, it is. And he's very concerned

about this risk by even the minimal participation that he's been involved in in this case. He's very concerned about the

fact that we've now told you that he is a lieutenant colonel,


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he's been in the Army Reserves for 20 years, he just got back from Iraq. He's very worried that the Government is trying So

to find out who he is so that they could discharge him. we think, Your Honor, for all the reasons you've already

articulated that there is standing, and, of course, there are no genuine issues about whether standing exists. THE COURT: All right. Let me last focus on some

of the issues regarding the timing of -- well, let me start with focusing on the evidentiary problems. As I said, I did not have a chance to review the plaintiff's filing this morning on the evidentiary problems, but before -- I haven't even looked at it, but before I decided that there was this threshold issue of standing in reviewing the motion, there were -- so I'm not even sure what I'm about to articulate as to the evidentiary deficiencies in the Government's moving papers are the subject of the evidentiary objections or whether my focus on the evidentiary deficiencies in the Government's moving papers are different ones than the plaintiff has objected to. But the moving papers in this case, to my recollection, almost none of the exhibits that were submitted in support of the moving papers could be considered by the Court. They are not authenticated by a declaration of

counsel to the extent that they could be so authenticated. The exhibits attached to the appendix of exhibits


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that are or purport to be excerpts of deposition transcripts do not bear the necessary certificate of the court reporter. Those can't be authenticated by a declaration of counsel. They have to have the certification of the court reporter. And there's a number of cases that set forth that requirement. Orr v. Bank of America is the case most that I So I would

usually cite in my orders with respect to that.

not be able to consider any of the deposition transcripts. And to the extent there's an objection that's been filed, I would sustain that objection. There's no declaration of counsel authenticating the other exhibits, so -- let's see. are deposition transcripts. The first four exhibits

The fifth one is an e-mail.

That would take a declaration of counsel, but I'm not -that's the one about being an honorary versus a dues paying member. So that's not authenticated and it's not a

self-authenticating document. Exhibit 6, again, it's not a self-authenticating document, but I think both sides have relied upon that document. That's the letter from Mr. Nicholson. I think if

both sides have relied upon it then that might be admissible. And Exhibit 7 is the letter from Mr. Nicholson's attorney, Mr. Cleghorn. I think the same thing applies. I

think both sides have relied on that.

If I'm correct about


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that, then Exhibits 6 and 7 could be considered, but the rest of them couldn't be, which would affect the extent to which the Court could consider some of the arguments raised in the moving papers. And as to the first four, even without an objection from the other side, the case law is clear that the Court should not consider the deposition transcripts without a court reporter's certification. So that especially affects

the Court's ruling on the substance of the motion, the merits of the motion, as to the substantive due process claim. There's certain portions of -- well, to a large extent, that would affect the Court's ruling on the substantive due process claim. If I'm correct in my recollection that Exhibit 6, I think it's 6 and 7, the letters regarding Mr. Nicholson, were relied on by both parties, then the Court could consider those. And those have more of an effect on the First

Amendment claim. Do you wish to be heard on that issue? MR. FREEBORNE: Your Honor, with respect to the

depositions, as you know, we were up against the discovery deadline. We did lodge all of the depositions that we had at

the time of the filing with the Court. THE COURT: Have the originals been lodged? Yes.



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 both.


Then that would cure that. And with respect to the letters,


Mr. Hunnius and I have had communications about -- we actually, given that they were produced by the plaintiff -THE COURT: I don't think there's an issue. I just wanted to address them


With respect to -- we also did reference articles of

incorporation in our reply brief, and that was certified to by Secretary of State -THE COURT: Those are self-authenticating once

you've got the certification. MR. FREEBORNE: With apologies, we weren't trying

to run afoul, given the time for the depositions, and we have lodged all the depositions that we had at the time of filing. THE COURT: When did you lodge the depositions? Your Honor, I could find the day. It was before we filed. It


I don't have it handy right now.

was in accordance with whatever the rules say. time frame.

I forget the

But to be clear, we also had a read and sign issue given that most of the depositions were taken late in the day. So, again, Mr. Hunnius and I have discussed that. THE COURT: If you lodge the originals, then that

takes care of the certification issue. MR. FREEBORNE: Very well. Thank you.


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Then let's turn lastly to the combined I'm thinking, unless either side

issues of the trial date.

-- I don't think I need any more briefing on the standing issue. On the merits issue, whether the parties want to come back and argue the merits, the only real issue that I would -- I'm not sure whether more argument is necessary. You could argue it briefly this afternoon. But if I were

inclined to -- having reread Witt and read everything that the parties have submitted in connection with the substantive due process claim, to hold that -- given that in Witt there wasn't a facial challenge as there is here, I mean there wasn't one even brought. It's not as though one was brought The only challenges brought in

and dismissed by the court.

Witt were an equal protection claim, a substantive due process claim, and a procedural due process claim. no facial claim brought. And, of course, what the Witt court held was that Philips v. Perry and some of the earlier Ninth Circuit holdings, which held that the most deferential standard of review applied, were no longer good law on the standard of review after the Lawrence case. So, in a sense, one could There was

look at Witt and say that the language in the Witt opinion about a different standard of review, and I quoted that language in the order on the motion to dismiss, would be


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better considered as dicta because, as I just said, there wasn't a substantive -- there wasn't a facial attack being considered by the court. So if I was to reconsider that ruling and hold what I would call the Witt standard, something more than the most deferential standard of review applied, let me ask the Government. First, does that change -- I mean, you've argued

in your papers that the policy withstands the deferential -an attack based on the most deferential standard. Does it

change your position if the Witt standard applies, which is kind of loosely defined as something more than the most deferential standard? MR. FREEBORNE: Well, Your Honor, I'm a little

confused because Your Honor ruled in June of last year the rational basis governs this case because this is not the as-applied challenge that was presented in Witt. So just

understanding Your Honor's question, are you now changing your ruling or thinking about changing your ruling? THE COURT: Yes. Your Honor, we believe we can


satisfy heightened scrutiny, but we have proceeded and argued, of course, based upon the rational basis test that was enunciated in the Court's June 9th decision. We don't

believe it changes the Salerno test, which is, we need only point to one conceivable constitutional application in this


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And we believe Philips is still good law on that, and

that Congress could have, back in 1993, made the determinations that it did. As Your Honor is aware, we've

also relied upon the Western case which instructs that the Government -- Congress could have concluded back in 1993 that the policy was necessary for military effectiveness. That said, we believe we would also win under a Beller-type analysis. And we don't believe that Beller was We would take

disturbed in any way by the Witt decision. issue with the Court.

We don't believe that Philips was

overturned by Witt, but I think we've had that discussion in the past. But we do believe we could win under Beller and

the test and substantive due process analysis that was set forth there by Judge Kennedy. And we believe that that

analysis is particularly instructive here given that Judge Kennedy became Justice Kennedy and issued the Lawrence decision, and said pointedly that this is just a different sphere, that this is the military sphere and the courts are to defer to military judgment and Congress's judgment in exercising its constitutional authority. So, again, we believe we would prevail under either standard. We have been proceeding along the lines that were

set forth on the Court's June 9th decision order. THE COURT: Let me ask you. There was something in I

particular -- my color coding system has failed me.


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thought I had a green tab on the particular language I wanted to ask you about to follow up on that. In your moving papers, and let me give you some context, this is when you're discussing the policy and the background to its adoption in the hearings and so forth. recall the legislative history of it. You go on to talk I

about these 15 legislative findings that, of course, you urge the Court to apply deference to, but there's a quote that you include from the Senate Armed Services Committee. If you

have your papers there, it's on page 5 of the points and authorities starting at line 15 -MR. FREEBORNE: THE COURT: Yes, Your Honor. Among both

-- about sexual behavior.

heterosexuals and homosexuals sexual behavior is one of the most intimate and powerful forces in society. I won't go on

to read the whole quote, which is kind of lengthy, but the finding goes on to say, basically, that there's no presumption that the military has -- I would sort of characterize it as a matter of common sense -- in dealing with adults there's no presumption that everyone is going to remain celibate. editorializing. The bit about common sense, that's my It says, "When dealing with issues, the

Armed Services do not presume that service members will remain celibate." But the language in particular that I think is


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important that I wanted to ask you about in connection with all of this quote here is about the -- I would almost call it sort of an admission on the part of, for these purposes, the Government about the importance of this, because in terms of thinking of what the standard of review here is, when courts determine what standard of review to apply, one of the -well, let me start over a little bit. In looking at, you know, what was first a deferential standard and then the strict scrutiny and then there was an intermediate standard, I think what the Witt court enunciated was somewhere between the most deferential standard and the intermediate standard. But, in any event,

in all of the standards of review that courts have enunciated in looking at constitutional issues, one end of the balance is the right that's being considered. And here what we have

is this language about one of the -- pointing to one of the most intimate and powerful forces in society. So, I guess my question is, on the one hand what is being considered here is, it is conceded to be something that is so crucial and important at the same time the Government is saying we have to -- and we're admitting that we're not going to presume that adults are going to just forswear that important part of human life. Then doesn't that sort of cut

against the Government's position in this case, that a deferential standard of review should apply?


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Your Honor, it's a good question.

What this instructs the Court about is the fact that this is a conduct-based policy, and what Congress's determination back in 1993 was, that the same forces that dictate this policy exist within the genders. And we've recognized, for

example, with men and women, as we've discussed previously, separate accommodations are necessary between men and women to accommodate the sexual tension privacy rationale that we've discussed before. level of review. So that doesn't dictate a higher

With cases like Palmore and Lawrence and -You're right it doesn't dictate -- I


didn't mean to suggest and maybe I worded the question poorly, because I don't mean -- you're correct. to suggest it dictates the standard of review. I don't mean Within the

standard of review that's selected, of course, the right that's being protected is one of the factors that's balanced, would be a better way of articulating my question. MR. FREEBORNE: On that issue, Your Honor, the

Court recognized in the equal protection analysis in the June 9th decision that there is no fundamental right to engage in homosexual consensual sex. endorse that. I mean Lawrence doesn't

So Your Honor has ruled that there is no such We believe rational basis is the

fundamental right.

governing standard, because you don't even have active rational basis review in a case like Palmore where the


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exclusive purpose was to single out a particular group based upon status, or in Lawrence where you have criminalization of the behavior, which is not present here. In Cleburne, again,

you're singling out a particular group that you don't happen to like. This is a conduct-based policy. And for that

reason, that's why courts have universally held, with the exception of Cook, and I'll get to Cook in a second which I think goes back to Your Honor's first question, have found a rational basis review is the appropriate standard. I don't want to fail to mention Cook. In Cook, as

Your Honor is aware, that heightened scrutiny was applied there and the policy was found to pass constitutional muster. Even under that standard faced with a motion to dismiss, the First Circuit found that. out. So, for all those reasons, we believe rational basis review applies; that even the more active form that you find in Romer doesn't apply, because the stated evidence is a conduct-based policy, not a status-based policy. to have considered this statute has so found. THE COURT: Mr. Woods. MR. WOODS: I'm not entirely sure what the original All right. Every court I just didn't want to leave that

question was, but let me start by talking about the Cook case


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which Mr. Freeborne just mentioned. First Circuit case. after Witt.

The Cook case is this

And the First Circuit decided that case

And the First Circuit in Cook said repeatedly And so it's

that it acknowledged that it disagreed with.

pointless for a court in this Circuit to talk about the Cook case or rely on the Cook case or even to be guided by the Cook case. We think, Your Honor, that we've briefed this issue and explained or tried to that some more -- some more active review than the lowest possible form of review is appropriate given Lawrence and Witt. It's not altogether clear what the

standard should be because Witt did not, as you point out, address a facial challenge. It didn't address it, so it

didn't rule on what standard to apply to a facial challenge. But I think there's no reason why the same standard of Witt wouldn't apply or, at a minimum, something in between the Witt standard and mere rational basis review ought to apply. That's because, in part, the importance of the rights

that are being effected here, and in part, because that's what the Circuit has done before when faced with this in cases like Beller. I think, Your Honor, also that regardless of what standard is applied, whether it's the lowest possible rational basis standard or some other standard, we have presented enough evidence to show you that there are genuine


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issues of material fact about whether the statute was constitutional when it was enacted, whether what we now know about the statute shows that it wasn't constitutional when enacted, and whether the situation has now changed. We've presented to you an enormous amount of evidence showing that there was no study done at the time to show that the policy furthered its stated objectives. We've

shown you that there were studies of foreign militaries at the time. It showed that a ban of homosexuals or homosexual

conduct was not necessary to further for purposes of the military to those countries. We've shown you that the policy We've shown you that

is disproportionately applied to women.

the policy is disproportionately applied in times of peace rather than war, which tells us that it really isn't enforced as it is supposed to be, if that's the purpose of it. We've

shown you that and much, much more in our opposition in the four volumes of evidence that we submitted, and as to which, Your Honor, there is no evidence submitted by the Government in response. What's important is the Government submitted some evidentiary objections to some of our evidence. There is no

evidentiary objection by the Government to a single piece of our expert's declaration in support of our opposition. And

what we filed today, Your Honor, was actually our response to the Government's evidentiary objections filed to our


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materials. Let me mention, Your Honor, the point that Mr. Freeborne suggested again about how you ought to defer to the military. And, again, as we've said, we're not asking

you to decide for the military how many tanks to buy or how many missiles to launch, we're asking you to rule on the constitutional rights of citizens of our country. And

deference to the military ought not mean abdication of the Court's traditional role in adjudicating constitutional rights. Witt is a good example of that. We cited other

cases in our opposition to the Government's motion on that. The Government didn't dispute at all our citation of the Hamdi case, H-A-M-D-I, the Hamdan case, H-A-M-D-A-N. And so

there's no doubt this Court ought not defer to the military on important constitutional rights. I continue, Your Honor, to find it curious that the Government is asking you to, again, defer to the military on this, because what the Government's current military leaders are saying is in our opposition papers, not in the Government's papers. And there's no response in the

Government's reply to the evidence that we've put forth about the views of the military leaders today. These are

admissions against the Government's interest about whether there is or isn't a rational basis. We cited to you Colin Powell's statements in


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February of 2010, that circumstances have changed since "Don't Ask, Don't Tell" was enacted, and the Government did not reply to that. We have President Obama's statements as Commander in Chief that "Don't Ask, Don't Tell," quote, doesn't contribute to our national security, close quote, and, quote, weakens our national security, close quote. And that "Don't

Ask, Don't Tell" -- I'm sorry, and that reversing "Don't Ask, Don't Tell," quote, is essential for our national security. Again, there's no response by the Government in its reply papers to these admissions against its interests. The Government also ignored and didn't respond to admissions made by Admiral Mullen, the General of the Joint Chiefs of Staff who said that he was not aware of any studies or any evidence that suggests that repealing "Don't Ask, Don't Tell" would undermine unit cohesion. And Secretary Gates also said that what they need to address in some study that's going on now are assertions that have been made for which we, quote, have no basis in fact. And, again, the Government didn't respond to this. So

it's a little curious that the Government would be arguing about deferring to the military when the military is on our side, for lack of a better word. And I guess, Your Honor, it's because the Government's brief and all the cases it cites are out of the


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What we have here in the Government's motion are Colin

Powell's statements from the '90s and people's statements from the '90s as if that's Gospel truth that you must accept and there's no way to challenge a law that is passed because there is some congressional finding that might support it. Your task here is to review whether that was or wasn't rational under whichever standard you decide to employ. You know, the Government is citing Beller in its motion three times and, you know, the Witt court held, quote, we also conclude that our holding in Beller is no longer good law. The Government cites the Holmes case in its motion and

its reply, and you have already ruled that the Lawrence case, quote, removed the foundation on which Holmes rested, close quote, and that Lawrence, quote, dissolved, close quote, your words again, the foundation on which Holmes rested. from your June 9 order at page 18. The main case cited by the Government's motion is the Philips case. This Court has already ruled that that is That's

an equal protection case and that that makes a difference here, because Lawrence treated equal protection of due process separately, and Lawrence doesn't support the Government's arguments about Philips. You ruled that in your

July 24, 2009 order when we were arguing about discovery. You said then, quote, accordingly, the Court does not find that Perry's equal protection holding forecloses relief for


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plaintiff's substantive due process claims. So, I guess, Your Honor, I would say this: We

argued a motion to dismiss the due process claim some time ago. What the Government is doing now is basically asking

you to review or revisit that decision without any real reason to do that. It's arguing the same points, citing the

same cases, and we're right back where we were some time ago. The only so-called evidence that the Government has provided in support of its motion are just a few snippets from testimony from the congressional hearings. That's all.

And we have provided you with, you know, a voluminous amount of evidence that we think is admissible, much of which is unchallenged, to show you that there are entities, again, genuine issues of material fact, regardless of which standard you decide to employ. THE COURT: MR. WOODS: All right. I'm happy to answer any other

questions, Your Honor. THE COURT: I appreciate that.

I think what I'm going to do is to take the motion under submission. If I feel that, and I may, but if I feel

that I need to have further argument on the merits, we will notify the parties and pick a date that's convenient for both sides. At this point I don't think I'm going to need to have

any further argument.


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As to your trial date, what is the current status of that, even apart from the issues created by the delay of getting a ruling to you on the motion because of this threshold issue of standing? Everything was good for

June 15th until last Wednesday when, you know, it's like a series of Dominoes. Everything was great until I had a

criminal case that was supposed to start, and I won't give you all the gory details, but there was a little issue between the defendant and his attorney, and as a result of that there is a short -- and it's a case that really is going to go to trial, and so I had to grant a short continuance of that trial which was supposed to start on May the 4th. So

it's now starting on May the 18th, which wouldn't be so bad except that because of that, the civil case that was starting behind it, which would have been finished in time for your case to start on June 14th, now has to follow that case. so by the time I finish that civil case, I probably would have had to continue your case about one week anyway. Let's see. Do I have that right? So I probably And

wouldn't have been able to start your case until the end of -- I would have had to continue your case about two weeks which is, in fact, out. So, I mean, all of which could

change if I'm wrong and the defendant in my criminal case decides tomorrow to plead, but I don't think that will happen.


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So your case was supposed to start on June 15th. Realistically, probably -- so the last of your pretrial documents were due around the middle of May. your trial -- what are your schedules? difficult for people. So if we move

I know summer is I

If you have vacations, speak up.

realize you may have to contact your witnesses and so forth. What I'm looking at for a trial date for you now is probably, oh, about the first week of July. You look pained, Mr. Freeborne. MR. FREEBORNE: I'm blanking on a week. I do have

something planned I believe the first week in July. THE COURT: Any time -- I'm going to give you --

this is an older case, so I'm going to give you all priority for trial, but if you have plans -MR. FREEBORNE: have to check. THE COURT: I'm just letting you know. I'm going If I could alert the Court, I just

to try to set it on a date in July that's good for everyone, so check your witnesses, check your calendars, and -MR. FREEBORNE: THE COURT: Your Honor, can I just be heard?

Certainly. I'm sorry. We would ask for


additional briefing on a few of the standing issues that the Court raised today on the Loux case, McLaughlin and Lujan, particularly the intersection or the comparison between class


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certification and associational standing. could afford the Court with -THE COURT: All right.

We believe that we

Ten pages, no more than

ten pages by a week from today. MR. FREEBORNE: And we would also like to depose

Mr. Meekins on the standing issue, and particularly on the transfer issue, which seems to be critical in this case, the transfer of the monies. We're not asking at this juncture to

depose Colonel Doe, but we do believe we are entitled to a deposition of Mr. Meekins. And I also have some points on the substantive due process point. I can basically condense them down to, what

Your Honor is looking at in this trial is just a replay of 1993. The foreign militaries, yes. Congress had before it

the comparison between foreign militaries and all of the evidence that plaintiff is going to be providing to you during the course of this trial, which is a replay of 1993, which we believe is inappropriate on a rational basis review. And military judgments are just not susceptible to empirical proof. So the thesis of Mr. Woods' argument, the plaintiff's

argument, is that because this policy is not somehow susceptible to empirical proof, it's necessarily invalid. THE COURT: you've -MR. FREEBORNE: I was trying to condense it, but I I think that's been briefed. I think


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did want to be heard on that issue, because we believe very strongly that, A, this type of review is inappropriate, but, B, it's just a replay of 1993, and the appropriate place to consider this policy is within the political domain, not in this court. THE COURT: Well, if you want to include that I think you've briefed it.

within your ten pages, you may.

I think both sides have briefed it, but you can argue it further, if you wish, in a supplemental briefing. Both sides

may file a supplemental brief by a week from today. Now, as to the deposition of Mr. Meekins, let me think about that. MR. FREEBORNE: issue of fact. Mr. Woods has said it's a genuine

We seek to explore that issue of fact. This case is being tried to the Court,


so I'm not inclined to -- well, it goes without saying this case -- I mean, on the one hand, every case is unique and has to be looked at uniquely. On the other hand, this case has

to be treated in a procedural fashion like any other case. After a summary judgment motion and after discovery is cut off and if a triable issue of fact has been shown to exist, there isn't discovery about it. It's over. So, I'm not

inclined to -- assuming that I deny the motion, I'm not inclined to allow further discovery on that issue. I'll

think about that, but I'm not inclined to allow further


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discovery, especially given that this is a case that's going to be tried to the Court. MR. FREEBORNE: Your Honor, all we're asking for

is, if this issue is going to be tried before the Court, that we properly prepare for trial by being allowed to depose a witness that was not identified by plaintiff in their 26(f) disclosures. We would seek to depose Mr. Meekins on this

critical issue, this threshold issue. THE COURT: I know what you're asking. I

understand what you're asking. unlikely I'm going to allow it. going to allow it.

I'll consider that, but it's Well, it's unlikely I'm

There might be other limited discovery

that could take place, such as written interrogatories, very limited written interrogatories that I'd consider. A

deposition by written interrogatories, something like that. I'll consider the request. All right. So the parties should confer about a

trial date sometime in -- the earliest possible date in July that the parties can agree upon that's satisfactory to your schedules and to your witnesses. And you might submit a And then I will

couple of dates that are mutually agreeable.

give you notice of the continued trial date and pretrial conference date. MR. WOODS: that to Your Honor? How would you like us to communicate


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By virtue of a stipulation.

If you're

not able to agree, then at least set forth what the difficulties are and what your first, second, and third choices are, I suppose, in writing. Thank you very much. The motion will stand submitted as of a week from today when your briefs are due. (Proceedings concluded) ---o0o---

C E R T I F I C A T E DOCKET NO. CV 04-8425 VAP I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and accurate transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

/S/ Phyllis Preston PHYLLIS A. PRESTON, CSR Federal Official Court Reporter License No. 8701


May 18, 2010

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