Hegar et al v. Panetta

Filing 37

STIPULATION AND ORDER re 36 STIPULATION WITH PROPOSED ORDER Regarding a Limited Stay of This Matter filed by Service Women's Action Network, Colleen Farrell, Jennifer Hunt, Mary Jennings Hegar, Alexandra Zoe Bedell, Motions t erminated: 36 STIPULATION WITH PROPOSED ORDER Regarding a Limited Stay of This Matter filed by Service Women's Action Network, Colleen Farrell, Jennifer Hunt, Mary Jennings Hegar, Alexandra Zoe Bedell, 23 MOTION for Protec tive Order to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Chuck Hagel, 19 MOTION to Dismiss for Lack of Jurisdiction filed by Leon Panetta, Chuck Hagel. CMC reset from 9/4/14 to 11/13/14 at 9:30 a.m. Signed by Judge Edward M. Chen on 5/5/14. (bpf, COURT STAFF) (Filed on 5/5/2014)

1 ROSEMARIE T. RING (SBN 220769)
[e-mail]
2 MARI OVERBECK (SBN 261707)
[e-mail]
3 MUNGER, TOLLES & OLSON LLP
560 Mission Street
4 Twenty-Seventh Floor
San Francisco, California 94105-2907
5 Telephone:
[phone]
Facsimile:
[phone]
6
MARGARET C. CROSBY (SBN 56812)
7 [e-mail]
ELIZABETH O. GILL (SBN 218311)
8 [e-mail]
AMERICAN CIVIL LIBERTIES UNION
9 FOUNDATION OF NORTHERN
CALIFORNIA, INC.
10 39 Drumm Street
San Francisco, CA 94111
11 Telephone:
[phone]
Facsimile:
[phone]
12
Attorneys for Plaintiffs
13

STUART F. DELERY
Principal Deputy Assistant Attorney General
MELINDA HAAG
United States Attorney
ALEX TSE
Chief, Civil Division
ANTHONY J. COPPOLINO
Deputy Branch Director
CAROLINE LEWIS WOLVERTON
[e-mail]
District of Columbia Bar No. 496433
Senior Counsel
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant CHUCK HAGEL

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17
18 MARY JENNINGS HEGAR, JENNIFER
HUNT, ALEXANDRA ZOE BEDELL,
19 COLLEEN FARRELL, AND SERVICE
WOMEN’S ACTION NETWORK,
20
Plaintiffs,
21
vs.
22
CHUCK HAGEL, Secretary of Defense,
23
Defendant.
24

Case No. 12-CV-06005 EMC
STIPULATION AND [PROPOSED]
ORDER REGARDING A LIMITED
STAY OF THIS MATTER (Modified)
Judge: Hon. Edward M. Chen

25
26
27
28
23350026.1

CASE NO. 12-6005 EMC
STIPULATION AND [PROPOSED] ORDER

1
2

STIPULATION
Plaintiffs Mary Jennings Hegar, Jennifer Hunt, Alexandra Zoe Bedell, Colleen Farrell and

3 Service Women’s Action Network and Defendant Chuck Hagel, Secretary of Defense
4 (“Secretary”) (collectively, “the parties”), by and through their respective counsel, submit this
5 Stipulation and Proposed Order. The parties have met and conferred and believe that the
6 following facts and circumstances establish good cause for a limited stay of the case, subject to
7 certain conditions set forth below.
8

1.

On November 27, 2012, Plaintiffs filed their Complaint for Declaratory and

9 Injunctive Relief challenging as unconstitutional the 1994 direct ground combat definition and
10 assignment rule.
11

2.

On January 24, 2013, the Secretary and Chairman of the Joint Chiefs of Staff

12 issued a directive rescinding the 1994 direct ground combat definition and assignment rule
13 pursuant to which “[i]ntegration of women into newly opened positions and units will occur as
14 expeditiously as possible, considering good order and judicious use of fiscal resources, but must
15 be completed no later than January 1, 2016.” Exceptions to the directive may be requested by the
16 Military Services (Army, Navy, Air Force and Marine Corps) and the U.S. Special Operations
17 Command (“SOCOM”) (referred to collectively as the “Services”), but must be “narrowly tailored
18 and based on a rigorous analysis of factual data regarding the knowledge, skills and abilities
19 needed for the position” and personally approved first by the Chairman of the Joint Chiefs of Staff
20 and then by the Secretary. The Military Services were ordered to submit plans for implementation
21 of the directive to the Secretary by May 15, 2013.
22

3.

In light of the above, the parties filed a stipulation agreeing to meet and confer after

23 the May 15, 2013 deadline for submission of the implementation plans and allowing the Secretary
24 thirty (30) days after that meet and confer to respond to the Complaint (Dkt 9), and a stipulation
25 and proposed order continuing the initial case management conference and related deadlines until
26 after the parties meet and confer on the implementation plans (Dkt 10). The Court entered the
27 proposed order on February 8, 2013 (Dkt 11).
28
23350026.1

-1CASE NO. C-12-6005 EMC
STIPULATION AND [PROPOSED] ORDER

1

4.

On May 30, 2013, the parties held a telephone conference. Defendant notified

2 Plaintiffs that the Military Services had submitted implementation plans to the Secretary, but that
3 the plans would not be made public because the Department of Defense (“DoD”) was treating
4 them as pre-decisional and deliberative. Defendant further notified Plaintiffs that, pursuant to the
5 National Defense Authorization Act of 2013, section 526, H.R. 4310, the DoD would submit a
6 report to Congress in July 2013 on the feasibility of developing gender-neutral occupational
7 standards for military occupational specialties currently closed to women and that DoD anticipated
8 that the report would provide some information about the implementation plans.
9

5.

In light of the above, the parties filed a stipulation and proposed order agreeing to

10 hold a further meet and confer by August 20, 2013 and allowing the Secretary thirty (30) days
11 after that meet and confer to respond to the Complaint, which the Court entered on June 11, 2013
12 (Dkt 14).
13

6.

On June 18, 2013, DoD made the implementation plans public. DoD completed

14 the above-referenced report to Congress in July 2013 and submitted a written report to Congress
15 on August 2, 2013.
16

7.

Beginning on August 20, 2013, the parties held several telephone conferences in

17 which they discussed, among other things, the implementation plans. Plaintiffs also requested
18 information regarding the date by which Defendant will announce whether certain positions,
19 specialties, units, and schools of interest to Plaintiffs will continue to be closed to women and
20 informed Defendant that they intended to file an Amended Complaint.
21

8.

On September 13, 2013, the parties filed a stipulation and proposed order setting a

22 schedule for Plaintiffs to file an Amended Complaint and for Defendant to respond to the
23 Amended Complaint, which the Court entered on September 18, 2013 (Dkt 17).
24

9.

On October 31, 2013, Plaintiffs filed an Amended Complaint (Dkt 18). Plaintiffs

25 also served discovery requests on Defendant on December 3, 2013.
26

10.

On December 19, 2013, Defendant filed a motion to dismiss the Amended

27 Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
28 12(b)(1), arguing, inter alia, that Plaintiffs’ challenge to the 1994 direct ground combat definition
23350026.1

-2CASE NO. C-12-6005 EMC
STIPULATION AND [PROPOSED] ORDER

1 and assignment rule is not ripe because the implementation process is ongoing and set to be
2 completed by January 1, 2016 (Dkt 19). On January 21, 2014, Defendant filed a motion for
3 protective order seeking a stay of all discovery pending a decision on Defendant’s motion to
4 dismiss, arguing, inter alia, that a stay is required to protect the collaborative environment and to
5 avoid chilling the deliberative process in which the DoD and the Services are engaged as they
6 work toward the January 1, 2016 implementation deadline (Dkt 23).
7

11.

On January 23, 2014, the Court entered a stipulation and proposed order setting a

8 schedule to allow for resolution of Defendant’s motion for protective order before the deadline for
9 Plaintiffs to file their opposition to Defendant’s motion to dismiss and setting a deadline for
10 Plaintiffs’ opposition based on the outcome of Defendant’s motion for protective order (Dkt 24).
11

12.

On February 4, 2014, Plaintiffs filed an opposition to Defendant’s motion for

12 protective order, arguing, inter alia, that their challenge to the 1994 direct ground combat
13 definition and assignment rule is ripe and that discovery should be allowed to proceed (Dkt 25).
14

13.

On February 27, 2014, the Court held a hearing on Defendant’s motion for

15 protective order and issued a minute order stating that the Court would defer its ruling on the
16 motion pending completion of briefing on Defendant’s motion to dismiss and then “consider the
17 relevance and probative value of the requested documents.” (Dkt 29).
18

14.

On April 7, 2014, the parties held a telephone conference and agreed, subject to the

19 Court’s approval, to a short continuance of the briefing schedule and hearing date on Defendant’s
20 motion to dismiss to allow the parties time to discuss a potential resolution of the pending
21 motions. On April 10, 2014, the Court approved the parties’ stipulation to that effect (Dkt 35).
22

15.

The parties subsequently engaged in a meet-and-confer process and, based on and

23 without conceding their respective positions on the pending motions, agreed to seek a limited stay
24 of the case until the January 1, 2016 deadline for implementing the rescission of the 1994 direct
25 ground combat definition and assignment rule, pursuant to which: (1) the briefing and hearing on
26 Defendant’s motion to dismiss would be suspended; (2) the parties’ discovery obligations (other
27 than obligations to preserve relevant information, including information responsive to pending
28 discovery requests) would be suspended; (3) the parties would submit a joint status report to the
23350026.1

-3CASE NO. C-12-6005 EMC
STIPULATION AND [PROPOSED] ORDER

1 Court at six-month intervals that would convey to the Court DoD’s most recent notifications to
2 Congress, along with any other publicly available information on the status of implementation;
3 and (4) either party can request that the Court schedule a status conference and/or set a briefing
4 schedule and hearing on whether the limited stay should be lifted.
5

16.

In light of the foregoing, the parties respectfully request that the Court enter a

6 limited stay of the case as set out in the Proposed Order, filed herewith.
7
8 DATED: May 1, 2014

MUNGER, TOLLES & OLSON LLP

9
By:

10

/s/ Rosemarie T. Ring
ROSEMARIE T. RING

11
12
13
DATED: May 1, 2014
14
15
16
17

Attorneys for Plaintiffs
MARY JENNINGS HEGAR, JENNIFER HUNT,
ALEXANDRA ZOE BEDELL, COLLEEN FARRELL,
AND SERVICE WOMEN’S ACTION NETWORK
STUART F. DELERY
Principal Deputy Assistant Attorney General
MELINDA HAAG
United States Attorney
ALEX TSE
Chief, Civil Division
ANTHONY J. COPPOLINO
Deputy Branch Director

18
/s/
Caroline Lewis Wolverton
CAROLINE LEWIS WOLVERTON
U.S. Department of Justice
Attorneys for Defendant CHUCK HAGEL

19
20
21

Additional Counsel:

22

STEVEN M. PERRY (SBN 106154)
23 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor
24 Los Angeles, CA 90071-1560
Telephone: [phone]
25 Facsimile: [phone]
Email: [e-mail]
26

LENORA M. LAPIDUS [pro hac vice]
ARIELA MIGDAL [pro hac vice]
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
WOMEN’S RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Email: [e-mail]

27
28
23350026.1

-4CASE NO. C-12-6005 EMC
STIPULATION AND [PROPOSED] ORDER

1
2

ATTESTATION PURSUANT TO GENERAL ORDER 45
I, Rosemarie T. Ring, am the ECF User whose identification and password are being used

3 to file this STIPULATION AND [PROPOSED] ORDER REGARDING A LIMITED STAY OF
4 THIS MATTER. In compliance with General Order 45.X.B, I hereby attest that all signatories
5 have concurred in this filing.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23350026.1

-5CASE NO. C-12-6005 EMC
STIPULATION AND [PROPOSED] ORDER

1
2

[PROPOSED] ORDER
Pursuant to stipulation, and based on good cause shown, the Court enters a limited stay of

3 this case until January 1, 2016, pursuant to which:
4

(1) the briefing and hearing on Defendant’s motion to dismiss is hereby suspended;

5

(2) the parties’ discovery obligations (other than obligations to preserve relevant

6 information, including information responsive to pending discovery requests) are hereby
7 suspended;
8

(3) the parties shall submit a joint status report to the Court at six-month intervals that

9 conveys DoD’s most recent notifications to Congress, along with any other publicly available
10 information on the status of implementation;
11

(4) either party may request that the Court schedule a status conference and/or set a

12 briefing schedule and hearing on whether the limited stay should be lifted at any time; and

NO

20

RT

ER

22

n

M. Che

H

21

dward
Judge E

R NIA

19

FO

18

DERED
SO OR ED
IT IS
DIFI
AS MO

LI

17

RT
U
O

16

A

15

S

14

(5) the first joint status report shall be due on September 4, 2014. The 9/4/14 CMC
is reset for 11/13/14 at 9:30 a.m. A joint CMC Statement shall be
filed by 11/6/14. The motion to dismiss (Docket #19) and motion
Dated: for protective order (Docket
S DISTRICT
HonorableE
T Edward M. ChenC
#23) are hereby terminated.
TA
Parties to renotice those motions United States District Judge
at a later time).

UNIT
ED

13

N

D IS T IC T
R

OF

C

23
24
25
26
27
28
23350026.1

-6CASE NO. C-12-6005 EMC
STIPULATION AND [PROPOSED] ORDER