Case 3:10-cv-01750-VLB Document 89

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ___________________________________________ JOANNE PEDERSEN & ANN MEITZEN, ) GERALD V. PASSARO II, ) LYNDA DEFORGE & RAQUEL ARDIN, ) JANET GELLER & JOANNE MARQUIS, ) SUZANNE & GERALDINE ARTIS, ) BRADLEY KLEINERMAN & JAMES GEHRE, and ) DAMON SAVOY & JOHN WEISS, ) ) Plaintiffs, ) ) v. ) ) OFFICE OF PERSONNEL MANAGEMENT, ) TIMOTHY F. GEITHNER, in his official capacity ) as the Secretary of the Treasury, and ) HILDA L. SOLIS, in her official capacity as the ) Secretary of Labor, ) MICHAEL J. ASTRUE, in his official capacity ) as the Commissioner of the Social Security ) Administration, ) UNITED STATES POSTAL SERVICE, ) JOHN E. POTTER, in his official capacity as ) The Postmaster General of the United States of ) America, ) DOUGLAS H. SHULMAN, in his official ) capacity as the Commissioner of Internal ) Revenue, ) ERIC H. HOLDER, JR., in his official capacity ) as the United States Attorney General, ) JOHN WALSH, in his official capacity as Acting ) Comptroller of the Currency, and ) THE UNITED STATES OF AMERICA, ) ) Defendants. ) ___________________________________________)

CIVIL ACTION No. 3:10-cv-1750 (VLB)

PLAINTIFFS OPPOSITION TO INTERVENOR-DEFENDANTS MOTION TO STRIKE THE PLAINTIFFS SEPARATE STATEMENT OF NON-ADJUDICATIVE FACTS Oral Argument is Not Requested.

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In accordance with Local Rule 7(a), the Plaintiffs submit this opposition to the motion of the Intervenor-Defendant, the Bipartisan Legal Advisory Group of the United States House of Representative (the House), to strike the Plaintiffs Separate Statement of Non-Adjudicative Facts, submitted as part of the Plaintiffs summary judgment materials. Background In accordance with the governing Scheduling Order, on July 15, 2011, the Plaintiffs filed a motion for summary judgment. As part of its motion package, the Plaintiffs filed: Seven (7) affidavits of the various Plaintiffs (Docket Nos. 64-70); Five (5) expert affidavits (Docket Nos. 71-75); One (1) attorney affidavit (Docket No. 76); A motion for summary judgment and a supporting memorandum of law (Docket Nos. 60 and 63); A Rule 56(a)(1) Statement of undisputed facts (Docket No. 61); and A Separate Statement of Non-Adjudicative Facts (Docket No. 62). The Rule 56(a)(1) Statement sets out all the material, undisputed adjudicative facts with specific citations in the record for each of the numbered paragraphs. In this case, all of those references are to one or more of the Plaintiffs affidavits. (It should be noted that the House has acknowledged that there are no disputed issues of material adjudicative fact. Docket No. 86, p. 9.) Beyond adjudicative facts, the Plaintiffs have submitted that there are nonadjudicative, or constitutional, facts relevant to certain issues in this case, e.g.,

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the proper standard of review for sexual orientation classifications. The Plaintiffs expert affidavits are expressly directed to these constitutional facts, and the Separate Statement of Non-Adjudicative Facts was an effort by the Plaintiffs to summarize this expert material for the courts convenience in numbered paragraphs with specific references to the experts affidavits for each numbered paragraph. In turn, also in accordance with the Scheduling Order, on August 15, 2011, the House filed: A motion to dismiss and supporting memorandum of law (Docket Nos. 8081); A memorandum of law in opposition to Plaintiffs summary judgment motion (Docket No. 82); An attorney affidavit with 5 Exhibits (Docket No. 83); and A Local Rule 56(a)2 Statement. In its summary judgment opposition, the House noted that its opposition also serves as a rebuttal of the Plaintiffs Separate Statement of Non-Adjudicative Facts. (Docket No. 82, p. 1 n.1). Now, thirty-eight (38) days after the Plaintiffs summary judgment filings and one full week after responding to all of Plaintiffs summary judgment submissions, the House moves to strike Plaintiffs statement of non-adjudicative, constitutional facts as unsupported by any procedural rule and as an improper attempt to circumvent the page limitations on Plaintiffs summary judgment memorandum of law. (Docket No. 87, p. 1).

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Discussion I. THE INTERVENOR-DEFENDANTS MOTION TO STRIKE SHOULD BE DENIED. Taken on its face, the gist of the Houses motion is quite simple: that the Plaintiffs have exceeded their allowed page limit (60 pages granted by the court) by smuggling in an 18-page legal brief on equal-protection issues through an extra statement of facts. (Docket No. 88, p. 3). To support that argument, the House characterizes the Plaintiffs Statement of Non-Adjudicative Facts as composed almost entirely of vague generalities and policy statements, pure legal conclusions, and sweeping generalizations regarding legal history, all of which often are worded in an overtly argumentative manner. (Id., p. 2). While the House calls the Statement attempted additional briefing, (id. p. 4), it fails to mention that the Statement is not legal argument from lawyers at all but rather a distillation of the Plaintiffs expert affidavits and that each of the paragraphs of the Statement has specific references to those expert affidavits and their specific expert opinions. And that makes all the difference. A review of the cases cited by the House makes this clear. Indeed, the Houses first case citation, Perkins v. S. New England Tel. Co., 669 F. Supp.2d 212, 226 (D. Conn. 2009), rather squarely rejects the Houses position. In Perkins, it is true that the court struck attorney affidavits to the extent they stray into legal argument about the merits of the case. Id. However, at the same time, the court rejected the motion to strike two charts because they were not arguments by counsel but were instead excerpts of deposition testimony or declarations which are proper exhibits before the court and which were accompanied by

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the respective pages of the deposition testimony or declaration. Id. The court found them merely a summary to provide the court with a roadmap to voluminous deposition testimony and declarations and authorized by Federal Rules of Evidence 1006. Id.1 As noted above, Plaintiffs Statement is a summary of expert declarations accompanied by record references and quite obviously not attorney legal argument. The House fares no better with its other citations. In each case, the court chastised counsel for clearly attempting to extend the length of their legal memoranda through some other vehicle. Cooper Indus., Inc. v. Agway, Inc., No 92-cv-0748, 1996 WL 550128, at *7 (N.D.N.Y. Sept. 23, 1996) (plaintiffs attached two government briefs from a prior case to their own reply memorandum); Dejesus v. Village of Pelham Manor, 282 F. Supp.2d 162, 166 n.2 (S.D.N.Y. 2003) (defendants have essentially submitted two memoranda of law by using 19 pages of its Rule 56.1 Statement for factual argumentation with legal citations); Housing Works, Inc. v. Turner, No. 00 Civ. 1122(LAK), 2003 WL 22096475, at *1 (S.D.N.Y. Sept. 9, 2003) (court denied a summary judgment motion without prejudice because of the moving partys filing, in part, of a 261 page, 891 paragraph affidavit of [the defendants] attorney which contains an elaborate, detailed, lengthy and argumentative statement of facts of which the attorney manifestly has little or no personal knowledge); Goldstick v. The Hartford, Inc., No. 00-Civ. 8577(LAK),
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The Perkins court also noted the irony that the party moving to strike because the other party had exceeded the 30-page limit had itself filed a 70page Opposition (albeit with the permission of the court). Id. at 226 n.8. Here, of course, the House sought and received permission to file 106 pages of briefing. -4-

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2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (parts of Rule 56.1 Statement stricken where it adds argumentative and often lengthy narrative in almost every case the object of which is to spin the impact of the admissions plaintiff has been compelled to make and, in effect, a manifest evasion of the page limitation on plaintiffs memorandum in opposition to the motion for summary judgment). To recite the salient points of these cases is to demonstrate that they have no relevance to the current case and the Plaintiffs Statement of Non-Adjudicative Facts. The Statement is simply not legal argument and cannot be construed as a subterfuge to obtain additional pages for legal argument. Rather, the Plaintiffs effort was to assist the court with regard to non-adjudicative facts as the Rule 56(a)1 Statement assists the court as to adjudicative facts. Indeed, in another pending challenge to Section 3 of DOMA and where the House is facing a motion to strike certain of its submissions, the House filed its memorandum of law in opposition on August 19, 2011 and included, as exhibits, the Plaintiffs Separate Statement of Non-Adjudicative Facts and Plaintiffs Local Rule 56(a)1 Statement, seemingly as models of how one should present the two types of facts to a court in support of summary judgment. Windsor v. U.S., No. 10-CV-8435 (BSJ)(JCF) (S.D.N.Y.) (August 19, 2011)(ECF No. 69). In sum, the Plaintiffs respectfully request that the Houses motion to strike be denied. In the alternative, to the extent that the Court finds that the Plaintiffs statement of non-adjudicative facts should be considered a part of its summary judgment memorandum of law, the Plaintiffs respectfully requests that the Court

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grant Plaintiffs leave, nunc pro tunc, to submit a memorandum of 77 pages in the form of the papers already on file with the Court. Respectfully submitted, Joanne Pedersen & Ann Meitzen Gerald V. Passaro, II Raquel Ardin & Lynda Deforge Janet Geller & Joanne Marquis Suzanne & Geraldine Artis Bradley Kleinerman & James Gehre And Damon Savoy & John Weiss By their attorneys,

GAY & LESBIAN ADVOCATES & DEFENDERS /s/ Gary D. Buseck Gary D. Buseck, #ct28461 gbuseck@glad.org Mary L. Bonauto, #ct28455 mbonauto@glad.org Vickie L. Henry, #ct28628 vhenry@glad.org Janson Wu, #ct28462 jwu@glad.org 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350

JENNER & BLOCK /s/ Paul M. Smith Paul M. Smith, (pro hac vice motion to be filed) psmith@jenner.com 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060

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HORTON, SHIELDS & KNOX /s/ Kenneth J. Bartschi_____________ Kenneth J. Bartschi, #ct17225 kbartschi@hortonshieldsknox.com Karen Dowd, #ct09857 kdowd@hortonshieldsknox.com 90 Gillett St. Hartford, CT 06105 (860) 522-8338 AS TO PLAINTIFFS SUZANNE & GERALDINE ARTIS BRADLEY KLEINERMAN & JAMES GEHRE SULLIVAN & WORCESTER LLP /s/ David J. Nagle David J. Nagle, #ct28508 dnagle@sandw.com Richard L. Jones, #ct28506 rjones@sandw.com One Post Office Square Boston, MA 02109 (617) 338-2800

DATED: August 25, 2011 CERTIFICATE OF SERVICE I hereby certify that on August 25, 2011, a copy of the foregoing Plaintiffs Opposition to Intervenor-Defendants Motion to Strike Plaintiffs Separate Statement of Non-Adjudicative Facts was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system. Parties may access this filing through the Courts CM/ECF System. /s/ Gary D. Buseck ___________________________ Gary D. Buseck

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