Hegar et al v. Panetta

Filing 74

STIPULATION AND ORDER re 73 STIPULATION WITH PROPOSED ORDER re 72 Stipulation and Order filed by Ashton Carter. Case Management Statement due by 4/28/2016. Further Case Management Conference set for 5/5/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 3/6/16. (bpfS, COURT STAFF) (Filed on 3/7/2016)

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]
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CHRISTINE P. SUN (SBN 218701)
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]
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Attorneys for Plaintiffs
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BENJAMIN MIZER
Principal Deputy Assistant Attorney General
BRIAN STRETCH
Acting 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 Trial 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 ASHTON B. CARTER

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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18 MARY JENNINGS HEGAR, JENNIFER
HUNT, ALEXANDRA ZOE BEDELL,
19 COLLEEN FARRELL, AND SERVICE
WOMEN’S ACTION NETWORK,
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Plaintiffs,
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vs.
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ASHTON B. CARTER, Secretary of Defense,
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Defendant.
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Case No. 12-CV-06005 EMC
STIPULATED REQUEST AND
[PROPOSED] ORDER FOR
CONTINUANCE OF FURTHER CMC and
UPDATED CMC STATEMENT
Judge: Hon. Edward M. Chen
Case Management Conference: Mar. 10, 2016
Time:
10:30 a.m.

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

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

2 Service Women’s Action Network and Defendant Ashton B. Carter, Secretary of Defense
3 (“Secretary”) (collectively, “the parties”), by and through their respective counsel, submit this
4 Stipulated Request and Proposed Order for a continuance of the deadline for the parties’ updated
5 joint Case Management Conference (CMC) Statement to April 17, 2016, and further CMC to
6 April 24, 2016. The joint CMC Statement is currently due March 3, 2016, and the further CMC is
7 currently scheduled for March 10, 2016. The parties submit that the following facts and
8 circumstances set forth in the attached Declaration of counsel for Defendant Caroline Lewis
9 Wolverton establish good cause for the requested continuance as follows:
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1. On November 20, 2015, the Court scheduled a further CMC in this matter for February

11 18, 2016. ECF No. 67. The Court directed that, for the further CMC, Defendant should provide
12 specific information as to the nature and status of accession, training and assignment policies. On
13 February 9, 2016, based on a stipulated request for continuance made by Defendant’s counsel, the
14 Court rescheduled the further CMC to March 10, 2015. ECF No. 72.
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2. On December 3, 2015, the Secretary of Defense announced his “determin[ation] that no

16 exceptions are warranted to the full implementation of the rescission of the ‘1994 Direct Combat
17 Definition and Assignment Rule’” and that “[a]nyone, who can meet operationally relevant and
18 gender neutral standards, regardless of gender, should have the opportunity to serve in any
19 position.” See http://www.defense.gov/Portals/1/Documents/pubs/OSD014303-15.pdf. The
20 Secretary further directed the Secretaries of the Military Departments and the Chiefs of the
21 Military Services to submit final, detailed implementation plans for the opening of all military
22 occupational specialties, career fields, and branches for accession by women for approval no later
23 than January 1, 2016, and to begin to execute their approved plans as soon as practicable but no
24 later than April 1, 2016. Id. The Services and Special Operations Command have all submitted
25 their implementation plans for the Secretary’s review and approval. Defendant expects that once
26 approved, the implementation plans will be made publicly available.
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CASE NO. C-12-6005 EMC
STIPULATED REQUEST AND [PROPOSED] ORDER

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3.

Defendant’s counsel denied Plaintiffs’ request for copies of the implementation

2 plans submitted by the Services and Special Operations Command. Defendant’s position is that
3 prior to approval by the Secretary the plans are deliberative, subject to revision, and for those
4 reasons not releasable.
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4.

In the course of preparing for the further CMC, it became apparent to Defendant

6 that “specific information as to the nature and status of accession, training and assignment
7 policies” referenced in the Court’s November 20, 2015 Minute Order will likely be set forth in the
8 implementation plans and thus available after April 1, 2016, the date by which it is expected that
9 approved implementation plans will be available publicly.
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5. Accordingly, Defendant expects he will be able to provide more information about the

11 nature and status of accession, training and assignment policies if the CMC and Updated Joint
12 CMC Statement deadline are continued until after April 1, 2016. Plaintiffs do not oppose
13 Defendants’ request for a continuance of the March 10, 2016 CMC, but Plaintiffs remain
14 concerned and frustrated by the continuing delays, both in the implementation process and in the
15 provision of the “specific information as to the nature and status of accession, training and
16 assignment policies” referenced in the Court’s November 20, 2015 Minute Order. These
17 continued delays only reinforce Plaintiffs’ concern that, as stated in our November 13, 2015 CMC
18 statement, it will be years from now before we see actual implementation of the Secretary’s
19 January 24, 2013 decision to rescind the ban on women in combat positions, which was
20 supposedly “effective immediately.” Plaintiffs nevertheless recognize that a CMC at this time
21 may not serve any meaningful purpose. For that reason, and because Defendant expects to be able
22 to provide the approved implementation plans for the Services and Special Operations Command
23 to Plaintiffs shortly after April 1, 2016, Plaintiffs agree that it would be appropriate to continue the
24 CMC to April 24.
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6. Defendant disagrees with Plaintiffs’ suggestion that the time during which the Secretary

26 is reviewing the implementation plans represents delay in the process of integrating previously
27 closed positions and MOSs. As the Secretary explained in his December 3, 2015 Memorandum,
28 the plans are part of “the continuation of a deliberate, methodical, evidence-based, and iterative
CASE NO. C-12-6005 EMC
STIPULATED REQUEST AND [PROPOSED] ORDER

1 process that ensures combat effectiveness and protects the welfare of the force.” See
2 http://www.defense.gov/Portals/1/Documents/pubs/OSD014303-15.pdf. The Court should reject
3 attempts by Plaintiffs to pressure the Secretary to rush the integration process at the risk of
4 jeopardizing its success.
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7. In light of the foregoing, the parties respectfully request that the Court continue the

6 further CMC to April 21, 2016, or any date convenient for the Court thereafter except between
7 April 22-29, and the parties’ updated joint CMC Statement to seven (7) days before the date set
8 for the CMC.
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10 DATED: March 3, 2016
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BENJAMIN MIZER
Principal Deputy Assistant Attorney General
BRIAN STRETCH
Acting United States Attorney
ALEX TSE
Chief, Civil Division
ANTHONY J. COPPOLINO
Deputy Branch Director

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/s/
Caroline Lewis Wolverton
CAROLINE LEWIS WOLVERTON
U.S. Department of Justice
Attorneys for Defendant ASHTON B. CARTER

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19 DATED: March 3, 2016

MUNGER, TOLLES & OLSON LLP

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By:

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/s/ Rosemarie T. Ring
ROSEMARIE T. RING

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Attorneys for Plaintiffs
MARY JENNINGS HEGAR, JENNIFER HUNT,
ALEXANDRA ZOE BEDELL, COLLEEN FARRELL,
AND SERVICE WOMEN’S ACTION NETWORK

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Additional Counsel:
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STEVEN M. PERRY (SBN 106154)
27 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor
28 Los Angeles, CA 90071-1560

LENORA M. LAPIDUS [pro hac vice]
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
WOMEN’S RIGHTS PROJECT
CASE NO. C-12-6005 EMC
STIPULATED REQUEST AND [PROPOSED] ORDER

1 Telephone: [phone]
Facsimile: [phone]
2 Email: [e-mail]
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125 Broad Street, 18th Floor
New York, NY 10004
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

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ATTESTATION PURSUANT TO GENERAL ORDER 45
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I, Caroline Lewis Wolverton, am the ECF User whose identification and password are
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being used to file this Stipulated Request and [Proposed] Order for Continuance of Further Case
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Management Conference and Updated Case Management Statement. In compliance with General
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Order 45.X.B, I hereby attest that all signatories have concurred in this filing.
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/s/

Caroline Lewis Wolverton

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CASE NO. C-12-6005 EMC
STIPULATED REQUEST AND [PROPOSED] ORDER

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[PROPOSED] ORDER

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Pursuant to the stipulated request, and based on good cause shown, it is hereby

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ORDERED that the Stipulated Request for Continuance of Further Case Management

4 Conference and Updated Case Management Statement is hereby GRANTED; and it is further
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ORDERED that the Further Case Management Conference is hereby CONTINUED to
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6 April 24, 2016; and it is further
ORDERED that the deadline for the parties’ Updated Joint CMC Statement is
May 5, 2016 at 10:30 a.m.

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HONORABLE EDWARD M. CHEN
United States District Judge

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8 CONTINUED to April 17, 2016.

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CASE NO. C-12-6005 EMC
STIPULATED REQUEST AND [PROPOSED] ORDER