Dragovich et al v. United States Department of the Treasury et al

Filing 107

ORDER by Judge Claudia Wilken Granting 106 Motion for Leave to File Excess Pages (ndr, COURT STAFF) (Filed on 1/6/2012)

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William C. McNeill, III, State Bar No. 64392
Claudia Center, State Bar No. 158255
Elizabeth Kristen, State Bar No. 218227
LEGAL AID SOCIETYEMPLOYMENT LAW CENTER
600 Harrison Street, Suite 120
San Francisco, CA 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
Daniel S. Mason, State Bar No. 54065
Patrick Clayton, State Bar No. 240191
Zelle Hofmann Voelbel & Mason LLP
44 Montgomery St Ste 3400
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION)

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MICHAEL DRAGOVICH, MICHAEL
Case No. CV 4:10-01564-CW
GAITLEY, ELIZABETH LITTERAL,
PATRICIA FITZSIMMONS, CAROLYN
LIGHT, CHERYL LIGHT, DAVID BEERS,
JOINT ADMINISTRATIVE MOTION OF THE
CHARLES COLE, RAFAEL V. DOMINGUEZ, PLAINTIFFS, THE FEDERAL DEFENDANTS,
and JOSE G. HERMOSILLO, on behalf of
AND INTERVENOR THE BILATERAL LEGAL
themselves and all others similarly situated,
ADVISORY GROUP OF THE UNITED STATES
HOUSE OF REPRESENTATIVES FOR LEAVE
Plaintiffs,
TO FILE OVERLENGTH BRIEFS RE:
v.
MOTION(S) FOR SUMMARY JUDGMENT AND
UNITED STATES DEPARTMENT OF THE
ORDER
TREASURY, TIMOTHY GEITHNER, in his
official capacity as Secretary of the Treasury,
[Local Rules 7-2(b), 7-3(a), 7-3(c), 7-4(b)
United States Department of the Treasury,
INTERNAL REVENUE SERVICE, DOUGLAS and 7-11]
SHULMAN, in his official capacity as
Commissioner of the Internal Revenue Service, [Hon. Claudia Wilken]
BOARD OF ADMINISTRATION OF
CALIFORNIA PUBLIC EMPLOYEES’
RETIREMENT SYSTEM, and ANNE
STAUSBOLL, in her official capacity as Chief
Executive Officer, CalPERS,
Defendants.

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Pursuant to Civil Local Rules 7-2(b), 7-3(a), 7-3(c), 7-4(b) and 7-11, the Plaintiffs, the

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Federal Defendants, and Intervenor Bilateral Legal Advisory Group jointly request leave to file

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overlength briefs with respect to the Motion(s) for Summary Judgment, as described herein.

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This joint request is warranted based upon the complexity and number of issues which

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must be reviewed. See Bloom v. Calderon, 72 F.3d 109 (9th Cir. 1995) (complexity of death

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penalty case warranted increased pages); Stutz Motor Car v. Reebok Intern., 909 F. Supp. 1353,

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1359 (C.D. Cal. 1995) (“relatively complex” patent dispute justified increased pages).

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The undersigned parties will set forth their arguments succinctly and concisely, and will

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not submit papers that are “cumulative or prolix.” See Stutz, 909 F. Supp. at 1359 (permitting

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longer briefs may be proper where the requesting party’s papers are not “cumulative or prolix.”).

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No party opposes this administrative motion.

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Plaintiffs’ Request.

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The Plaintiffs respectfully request leave of the Court to file a motion for summary
judgment on January 19, 2012 of up to 35 pages (ten pages more than are provided under the
rules). The Plaintiffs also seek leave to file a combined opposition and reply brief on March 22,
2012 of up to 35 pages (ten pages more than are provided under the rules).
The Plaintiffs’ request is warranted given the myriad issues to be considered in their
motion for summary judgment, which encompass: (1) the procedural and legal history of this
matter, including the several state and federal laws implicated; (2) the undisputed facts relating

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to the plaintiffs and class members and relating to the CalPERS Long-Term Care Program; (3)
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the appropriate level of scrutiny to be applied to the Plaintiffs’ constitutional claims for
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violations of equal protection and due process, pursuant to the factors set forth in Carolene
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Products and in other Supreme Court and Ninth Circuit cases; and (4) an articulation of the equal
protection and due process claims of the plaintiff couples who were married in California during
the marriage equality window in 2008, and of the plaintiff couples who are registered domestic
partners but who were not married in 2008, which will include, inter alia: (a) a review of the
legislative history, meaning, and intent of the Defense of Marriage Act (DOMA), including its
expression of animus towards gays and lesbians and their relationships, and its prohibition of any
ADMINISTRATIVE MOTION FOR OVERLENGTH BRIEFS
AND [PROPOSED] ORDER
Case No. CV 4:10-01564-CW

Page 1

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recognition under federal law of the relationships of gay and lesbian couples, regardless of state

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law; (b) the disparate impact of the federal tax code as amended by the DOMA upon the lives of

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the gay and lesbian couples who are plaintiffs and class members in this matter, and the

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relevance of such impact under Arlington Heights and other federal precedents; and (c) the

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continued disparate treatment by the federal government, enforcing the federal tax code as

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amended by the DOMA, with respect to straight couples who are in state-recognized

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relationships as compared to gay and lesbian couples who are in state-recognized relationships.

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Federal Defendants’ Request.

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The Federal Defendants respectfully request leave of the Court to file a brief on January 19,

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2012 in support of Plaintiffs’ motion for summary judgment of up to 30 pages (five pages more than

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are provided under the rules). The brief will set forth the position of the Department of Justice

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regarding the appropriate level of scrutiny to be applied to review DOMA. The Department will

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require up to 30 pages because examination of the factors traditionally applied by the Supreme Court
to make this determination is necessarily complex. The brief will also discuss the role the federal
government has played in the history of discrimination against gay and lesbian individuals. The
Federal Defendants further respectfully request leave of the Court to file a combined brief of up to
30 pages (five pages more than as provided under the rule) on February 21, 2012 in opposition to
Plaintiffs’ motion for summary judgment and in cross moving for partial summary judgment.
Federal Defendants require the page extension for many of the same reasons explained above by

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Plaintiffs. The combined brief will need to address Plaintiffs’ substantive due process arguments,
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among other things, and move for judgment regarding Plaintiffs’ domestic partner claims.
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Request of the Intervenor Bilateral Legal Advisory Group of the United States House
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of Representatives.
Intervenor the Bipartisan Legal Advisory Group of the United States House of
Representatives (“the House”) respectfully requests leave of the Court to file a combined brief of
up to 30 pages (five pages more than as provided under the rule) on February 21, 2012, in
opposition to Plaintiffs’ motion for summary judgment and in cross moving for summary
judgment. The House will require that number of pages both to respond to plaintiffs’ overlength
ADMINISTRATIVE MOTION FOR OVERLENGTH BRIEFS
AND [PROPOSED] ORDER
Case No. CV 4:10-01564-CW

Page 2

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brief in support of their summary judgment motion, and to identify and explain the many

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government interests advanced by DOMA.

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Respectfully submitted,
LEGAL AID SOCIETY –
EMPLOYMENT LAW CENTER

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January 5, 2012

By:
s/Claudia Center
Claudia Center, Counsel for Plaintiffs

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U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION

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January 5, 2012

By:
Jean Lin, Counsel for the Federal Defendants

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PAUL D. CLEMENT
H. CHRISTOPHER BARTOLOMUCCI
CONOR B. DUGAN
NICHOLAS J. NELSON
BANCROFT PLLC

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January 5, 2012

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By:
H. Christopher Bartolomucci, Counsel for
Intervenor the Bipartisan Legal Advisory Group of
the United States House of Representatives

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ADMINISTRATIVE MOTION FOR OVERLENGTH BRIEFS
AND [PROPOSED] ORDER
Case No. CV 4:10-01564-CW

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ORDER

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The Plaintiffs are granted leave to file to file a motion for summary judgment on January

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19, 2012 of up to 35 pages. The Plaintiffs are further granted leave to file a combined opposition

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and reply brief on March 22, 2012 of up to 35 pages.

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The Federal Defendants are granted leave to file a brief on January 19, 2012 in support of

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Plaintiffs’ motion for summary judgment of up to 30 pages. The Federal Defendants are further

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granted leave to file a brief on February 21, 2012 of up to 30 pages in opposition to Plaintiffs’

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motion for summary judgment and in cross moving for partial summary judgment.

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Intervenor the Bilateral Legal Advisory Group of the U.S. House of Representatives is

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granted leave to file a brief on February 21, 2012 of up to 30 pages in opposition to Plaintiffs’

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motion for summary judgment and in cross moving for summary judgment.

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It is so ordered.

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1/6/2012
Dated

UNITED STATES DISTRICT JUDGE

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ADMINISTRATIVE MOTION FOR OVERLENGTH BRIEFS
AND [PROPOSED] ORDER
Case No. CV 4:10-01564-CW

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