STATE OF FLORIDA et al v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al

Filing 44

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Rule 16 Hearing (46 pgs) held on April 14, 2010, before Judge Roger Vinson. Court Reporter/Transcriber Donna L. Boland, Telephone number 850.470.8189. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/2/2010. Release of Transcript Restriction set for 8/31/2010. (dlb)

STATE OF FLORIDA et al v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al
1

Doc. 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

STATE OF FLORIDA, et al., Plaintiffs,

v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 3:10cv00091/RV Pensacola, Florida April 14, 2010 9:05 a.m.

RULE 16 SCHEDULING CONFERENCE PROCEEDINGS BEFORE THE HONORABLE ROGER VINSON, SENIOR UNITED STATES DISTRICT JUDGE (Pages 1 through 46)

Dockets.Justia.com

2

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 State of Michigan: (via teleconference) State of Indiana: (via teleconference) State of Colorado: (via teleconference) State of Alabama: (via teleconference) (via teleconference) State of Florida:

APPEARANCES FOR PLAINTIFFS CHESTERFIELD SMITH, JR., ESQUIRE Senior Assistant Attorney General BLAINE H. WINSHIP, ESQUIRE Assistant Attorney General JOSEPH W. JACQUOT, ESQUIRE Deputy Attorney General SCOTT D. MAKAR, ESQUIRE Deputy Solicitor General Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 DAVID B. RIVKIN, JR., ESQUIRE BAKER & HOSTETLER, LLP Washington Square, Suite 1100 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5304 PETER J. SMYCZEK, ESQUIRE Deputy Attorney General Office of the Attorney General 500 Dexter Avenue Montgomery, Alabama 36130 DANIEL D. DOMENICO, ESQUIRE Solicitor General Office of the Attorney General 1525 Sherman Street Denver, Colorado 80203 THOMAS M. FISHER, ESQUIRE Solicitor General Office of the Attorney General Indiana Government Center South 302 W. Washington Street, 5th Floor Indianapolis, Indiana 46204 B. ERIC RESTUCCIA, ESQUIRE Solictor General Office of the Attorney General G. Mennen Williams Building, 4th Floor 525 W. Ottawa Street Lansing, Michigan 48909

3

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

APPEARANCES FOR PLAINTIFFS State of Nebraska: (via teleconference) KATHERINE J. SPOHN, ESQUIRE Special Counsel Office of the Attorney General 2115 State Capitol Lincoln, Nebraska 68509 MARK A. HUTCHISON, ESQUIRE Special Counsel JACOB REYNOLDS, ESQUIRE HUTCHISON & STEFFEN Peccole Professional Park 10080 West Alta Drive, Suite 200 Las Vegas, Nevada 89145

State of Nevada: (via teleconference)

State of South Carolina: BRYAN P. STIRLING, ESQUIRE (via teleconference) Deputy Attorney General J. EMORY SMITH, JR., ESQUIRE Assistant Deputy Attorney General Office of the Attorney General Post Office Box 11549 Columbia, South Carolina 29211 State of South Dakota: (via teleconference) MARTY J. JACKLEY, ESQUIRE Attorney General CHARLIE MCGUIGAN, ESQUIRE Assistant Attorney General Office of the Attorney General 1302 E. Highway 14, Suite 1 Pierre, South Dakota 57501-8501 J. BART DELONE, ESQUIRE Senior Deputy Attorney General Office of the Attorney General 16th Floor, Strawberry Square Harrisburg, Pennsylvania 17120 WILLIAM J. COBB, III, ESQUIRE Special Assistant and Senior Counsel Office of the Attorney General 300 W. 15th Street Austin, Texas 78701 JOHN SWALLOW, ESQUIRE Chief Deputy, Civil Divisions Office of the Attorney General Utah State Capitol Complex 350 North State Street, Suite 230 Salt Lake City, Utah 84114-2320

State of Pennsylvania: (via teleconference)

State of Texas: (via teleconference)

State of Utah: (via teleconference)

4

1 2 3 4 5 6 7 8

APPEARANCES FOR PLAINTIFFS State of Washington: (via teleconference) ROBERT M. MCKENNA, ESQUIRE Attorney General BRIAN T. MORAN, ESQUIRE Chief Deputy Attorney General 1125 Washington Street SE Olympia, Washington 98504-0100 JOSEPH KANEFIELD, ESQUIRE General Counsel Office of the Attorney General 1275 West Washington Street Phoenix, Arizona 85007

State of Arizona: (via teleconference)

APPEARANCES FOR DEFENDANTS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PAMELA A. MOINE, ESQUIRE Assistant United States Attorney 21 East Garden Street, Suite 400 Pensacola, Florida 32502 United States of America: IAN HEATH GERSHENGORN, ESQUIRE Deputy Assistant Attorney General U.S. Department of Justice RFK Main Justice Building, Room 3137 950 Pennsylvania Avenue, N.W. Washington, DC 20530 BRIAN G. KENNEDY, ESQUIRE Senior Trial Counsel ERIC. B. BECKENHAUER, ESQUIRE Trial Attorney U.S. Department of Justice, Civil Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, DC 20530

5

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 please.

PROCEEDINGS (Court called to order.) THE COURT: Good morning, everyone. Be seated,

Let me welcome those of you who are from out of town. And pursuant to notice, we're here for a Rule 16 conference. And we have a number of participants on the telephone. Have you already checked those in, Jerry? THE CLERK: not answer up. THE COURT: All right. Let's take appearances then, I have, Judge. There's a couple that did

starting with those here in the courtroom, and then we'll proceed to see who is on the line. So beginning with our Plaintiffs, who wants to begin? MR. WINSHIP: I will. Thank you, Your Honor. Blaine

Winship, Assistant Attorney General for the State of Florida, here for Plaintiffs. MR. SMITH: Chesterfield Smith, Senior Assistant

Attorney General on behalf of the Plaintiffs the State of Florida and the other states and attorneys general. MR. RIVKIN: behalf of Plaintiffs. THE COURT: MR. JACQUOT: behalf of Plaintiffs. Mr. Rivkin, all right. Joe Jacquot, Deputy Attorney General, on David Rivkin, Baker & Hostetler, on

6

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 General. division.

THE COURT:

All right.

And for our Defendants? Ian

MR. GERSHENGORN:

Good morning, Your Honor.

Gershengorn from the civil division of the Justice Department on behalf of the United States, the Defendants. MR. KENNEDY: Brian G. Kennedy, also from the civil

MR. BECKENHAUER:

Eric Beckenhauer, also from the

Department of Justice, civil division. MS. MOINE: Pamela Moine from the U.S. Attorney's

Office for the United States. THE COURT: All right. And now those who are on the

phone, I don't know what particular order you want to -- all right, let's see, do we have Alabama? MR. SMYCZEK: Yes, Your Honor. Pete Smyczek with the

Alabama Attorney General's Office. THE COURT: MR. MAKAR: And Florida? Yes. This is Scott Makar with the

Solicitor General's Office. THE COURT: Very well. And Colorado?

MR. DOMENICO:

This is Dan Domenico, Solicitor

THE COURT: MR. FISHER: THE COURT:

All right, sir.

Indiana?

Tom Fisher, Solicitor General. All right, sir. And Michigan?

MR. RESTUCCIA:

Eric Restuccia, Solicitor General.

7

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 General. General.

THE COURT: MS. SPOHN: THE COURT:

All right, sir.

And Nebraska?

Katie Spohn, special counsel. All right. And Nevada?

MR. HUTCHISON: governor -THE COURT:

Mark Hutchison, special counsel to the

I'm sorry, I missed the second one.

Do

you have someone with you, Mr. Hutchison? MR. HUTCHISON: well, Your Honor. Yes. Jacob Reynolds is with me as

He's with my firm. All right. And South Carolina?

THE COURT:

MR. STIRLING:

Bryan Stirling, Deputy Attorney

General, and Emory Smith, Assistant Deputy Attorney General. THE COURT: MR. JACKLEY: Very well. And South Dakota?

Marty Jackley, Attorney General, and

Deputy Attorney General Charlie McGuigan. THE COURT: MR. DELONE: All right, sir. Pennsylvania?

Bart Delone, Senior Deputy Attorney

THE COURT: MR. COBB:

All right, sir.

And Texas?

Bill Cobb, Special Assistant and Senior

Counsel to the Attorney General. THE COURT: MR. SWALLOW: Thank you. Utah?

John Swallow, Chef Deputy Attorney

THE COURT:

And Washington State?

8

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 else? please.

MR. MCKENNA: Deputy Brian Moran. THE COURT:

Attorney General Rob McKenna and Chief

All right, sir.

I think that's all that I

have listed who are participating. MS. TAITZ: Your Honor --

Did I miss anyone?

MR. KANEFIELD:

Yes, Your Honor.

Joseph Kanefield

with the Arizona Governor Jan Brewer's office. THE COURT: I'm sorry, I missed that. Say it again,

MR. KANEFIELD:

Joseph Kanefield, general counsel to

Arizona Governor Jan Brewer. THE COURT: Yes, ma'am. MR. TAITZ: I'm Orly Taitz, an attorney. I brought All right, Arizona. Thank you. Anyone

the pleadings, Your Honor. THE COURT: microphone. Why don't you come up and use this

Are you the one who filed the Motion to Intervene? Yes, I filed Motion for Reconsideration.

MR. TAITZ:

There are two copies here, one with the Plaintiff and one with the Defendant. THE COURT: Motion to Intervene. All right. I've already dealt with the

I'll deal with whatever the

reconsideration is, but as of now you are not a participant. Thank you. All right. I think we have everyone, right?

9

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

Well, as you know, we're here for purposes of a Rule 16 to try to schedule what we need to do and how to do it. I don't need to remind you that Rule 1 of the Rules of Civil Procedure emphasize that these proceedings should secure the just, speedy and inexpensive determination of every action and proceeding, so I hope that's what we'll be able to do. There are a number of things that I want to go over with you, and in no particular order, frankly. But let me see And

if any of you have some suggestions on maybe ways that we can facilitate this and make it more effective. MR. WINSHIP: Plaintiffs. Yes, Your Honor. Blaine Winship for the

We have been in discussion with the attorneys who

are here for the Defendants, for the United States, from late last week right up through this morning, in fact, about trying to work together to come up with the best way to expedite this case. And I have a proposed form of order that I think might be very useful to Your Honor. And if I may be permitted to

approach just to hand you a copy? THE COURT: Mr. Gershengorn, have you seen this? I have seen it, Your Honor. It's

MR. GERSHENGORN:

not a joint proposal, but I have seen it. THE COURT: MR. WINSHIP: All right.

Thank you, sir.

Thank you, Your Honor.

And let me say

at the outset, speaking on behalf of the Plaintiffs, that we

10

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

have not only taken to heart the spirit and intent of Rule 1, but we also have been very mindful of Your Honor's own statement in your order of last week, I believe it was published on the 8th of April, that the parties to this litigation and indeed the citizens of this country have an interest in having this case resolved as soon as practically possible. We believe that we have come up with an approach that would enable us to do exactly that. We proposed -- we

indicated, by the way, to the Department of Justice attorneys that we would be amending this complaint of ours. We have a

need to do that not only because we have several other parties coming in, several states that are going to be joining, but in addition to that, of course, we had reconciliation legislation that was passed that has modified the terms of the Act itself, and the Act, of course, as Your Honor knows, is quite lengthy. We have -- in this proposed scheduling order we have indicated a date for our amended complaint to be filed, which would be May 14th. Our understanding, from talking to counsel

for the Department of Justice, is that there is no dispute with respect to that. If we have any difference at all, it lies We have indicated to them why -That's 30 days from today basically, May

downstream from there. THE COURT: 14th? MR. WINSHIP:

Yes, Your Honor.

They had indicated to

us that they desired to file a Motion to Dismiss, which, of

11

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

course, is not at all surprising in this type of litigation. indicated to them that we wanted to file a Motion for Summary Judgment, and we wanted to file that very quickly. We believe

We

that our claims in this litigation are ripe for a determination by Summary Judgment. They raise essentially questions of law

concerning the constitutionality of the Act in question. THE COURT: Well, let me cut you short just a minute,

because it seems to me that this is really a case with no factual issues, so there will be no discovery, if I view the case as it seems to be. wrong? MR. WINSHIP: Well, I think you are essentially Most of our causes of action To the extent that there might Is that a fair assumption or am I

correct, and that is our view.

really will sound purely in law.

be any question of fact that would be involved, we believe that those will be facts that are matters of public record and that are beyond reasonable dispute. What we propose is to have our Motion for Summary Judgment and their Motion to Dismiss, in effect, sequenced. When we brought that up to the Department of Justice, they actually sent us back a proposed form of sequencing of these, and that's pretty much reflected in what I've given Your Honor. We had a couple of differences that are really minor with regard to dates for -- I think the September 7th date for the Plaintiffs to do an opposition to the Defendants' Motion to

12

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

Dismiss and for us to file our own Summary Judgment Motion. They had proposed a slightly different date from that. But

otherwise, we were fairly well in agreement, we thought, on that. This morning they indicated to us, and I'm sure they will present this point themselves, that the way they would prefer to proceed would be to have a Motion to Dismiss filed by them and briefed and argued and decided, and then after that is over we would then proceed to have our Motion for Summary Judgment filed and briefed and heard. And we believe that that's not in the best interest of the Court or judicial economy. We think there are a lot of

overlapping arguments between what they're going to be arguing as a matter of law for dismissal, what we're going to be arguing as a matter of law for a judgment in our favor as a matter of Summary Judgment under Rule 56. We note that under Rule 56 we have the right to move for Summary Judgment at any time. We also note that Rule 57,

with respect to declaratory judgments, does consider within its purview the ordering of a speedy trial by the Court. We're interested in expediting this case as well. think that the legal issues are basically going to be substantially overlapping, and we think that this proposed interlocking schedule of motions and briefs, the way this is set up, which is largely the product of suggestions from the We

13

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

Department of Justice lawyers themselves, very much work to that end in order to achieve that. If at the end of the day, Your Honor, when all of these motions are heard -- and we believe they should be heard together at the same time. And under our timing, we have -- the

last submission would be November 14th, and we would be ready to have a hearing anytime Your Honor would be ready to receive us to argue these motions, anytime thereafter. I think that's a

fairly aggressive and efficient way of moving this case along, and we would urge the Court to give that consideration. If at the end of the day, when the Court has ruled -has considered and ruled on these motions, if the Court were, for whatever reason, to decide that the case should neither be dismissed nor disposed of by way of Summary Judgment in favor of Plaintiffs, we believe this motion practice will help greatly in terms of narrowing the issues and focussing us all on what discovery there might be that would be in order with regard to anything that remains before the Court after that. It is our hope that all of this would be resolved as a matter of law. I would note in connection with that that we've

added a provision that I think both parties are in agreement with that we would ask that the requirements for initial disclosure under Rule 26 and other reporting requirements under Rule 16 and the corresponding local rules, that we be excused from complying with those for the time being pending further

14

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

order of the Court, precisely because we do basically subscribe to Your Honor's view that this case sounds essentially at law. And so we think the best resolution of this case would be along the lines of what we have proposed and what we had understood that the Department of Justice favored as well. And I guess in fairness, if Your Honor -- do you have any questions of me? THE COURT: Well, let me just ask in the alternative,

because our circuit has sometimes indicated that it's not necessary to go through the formalities of Summary Judgment motions if, in fact, it's a purely legal matter that can be resolved on briefing. In lieu of handling it by Rule 56, can we just set up a briefing schedule, because that's really what it seems to be coming down to, in the nature of the way you do it in an appellate setting? MR. WINSHIP: Well, we could -- we could be --

certainly try to be a little more creative in how we're doing this. We did -- in terms of doing these motions together, we and the Department of Justice attorneys did consider how best to proceed for this, and we did think it would be orderly to do it in this particular fashion that we have set forth here. think there will be a lot of economy of scale. If you'll note, the September 7th date would have us I do

15

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

filing a Memorandum in Opposition to the Motion to Dismiss along with a Motion for Summary Judgment. I think the Summary

Judgment route for us, in terms of asking for affirmative relief from the Court as compared to avoiding relief that the Defendants seek which is dismissal, has some benefits because it will allow us to focus on a claim-by-claim basis with regard to what the elements are and what the showing would have to be. And in order to get everything, I think, fully briefed and argued in accordance with each of the claims in a separate sense, I think the structure has some genuine merit to it, Your Honor. THE COURT: Very well.

Mr. Gershengorn? MR. GERSHENGORN: Thank you, Your Honor. I guess I

would say that we share a lot of the goals of Florida and the Plaintiffs here. THE COURT: Let me remind everyone, I think we're all

either directly or indirectly working for the taxpayers, including myself, so we have that at heart. MR. GERSHENGORN: And we recognize that, Your Honor,

and therefore, I do think judicial economy, which my colleague mentioned, is definitely a central theme, and narrowing the issues is also what we're interested in. We do think, however, that a Motion to Dismiss, largely for the reasons Your Honor mentioned that these are

16

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

likely to be legal issues, we do think there is a strong basis for a Motion to Dismiss. And we would -- we think that it

serves the purpose of narrowing the issues, which, again, the Plaintiffs have suggested and Your Honor has recognized as well, and also comports with the notion of dealing with the jurisdictional issues, and we think there are some here that, for at least a number of the claims, and perhaps all, that we would want the Court to resolve. And it seems to us that proceeding first through a Motion to Dismiss briefing and holding off on the Summary Judgment, either holding briefing in abeyance or otherwise, is the right way to proceed, that that allows this Court to narrow the issues, rule on the jurisdictional question, and then set a sensible course going forward. THE COURT: you on the spot. Well, let me -- and I don't mean to put

I know the Federal Government normally has 60

days in which to file its responsive pleading, but in this case it seems like that time could be reduced somewhat. Is it

possible to move the proposed schedule so that your Motion to Dismiss would be, say, 30 days earlier? MR. GERSHENGORN: Your Honor, certainly from the May I will

14th date I will say that we do have some flexibility.

just note for the Court that we have some personal scheduling issues that we'd like to try to work around, in particular a wedding for one of the -- a daughter of one of the lead counsel.

17

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

Perhaps, Your Honor, is there a way two weeks -- we had proposed, I think, July 16th or July 1st. THE COURT: Well, just looking at these dates, I would I think that

like to see us move everything about one month up.

would seem to me to be certainly within the rule of possibility. MR. GERSHENGORN: sorry. So you would have -- Your Honor, I'm

June 16th would be a Motion to Dismiss. THE COURT: August would be the response time, and

then they would then use that time for the Motion for Summary Judgment to which you would respond. MR. GERSHENGORN: And I'm sorry, Your Honor, would you

be working off the -- with a Motion to Dismiss briefing first, the complete briefing on the Motion to Dismiss -THE COURT: Well, we'll get into that. I'm just

talking about the timing right now.

I would like to see us move

about a month faster than the proposed schedule, is really what I'm suggesting to you. MR. GERSHENGORN: have -THE COURT: And it may be appropriate to deal with the And Your Honor, the only hesitancy I

Motion to Dismiss completely independent of any subsequent filing. But I think if we go by Rule 56, that motion can be

filed at any time, so it can be filed while, you know, while the Motion to Dismiss is still pending. But I can promise you it

will be ruled on rather quickly, as soon as I can deal with it.

18

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 end of it.

MR. GERSHENGORN: couple of things.

Right.

I guess, Your Honor, a

The only hesitancy I have -- we certainly The only hesitancy I

could move it up, as Your Honor suggests.

have is we haven't seen the amended complaint, so it's a little tricky. On the Summary Judgment Motion, I would say that it does seem to us that holding the briefing on -- it certainly could be filed at any time, but holding the briefing in abeyance pending resolution of the Motion to Dismiss is the way that we think makes the most sense for Your Honor, but we certainly could move -- we are prepared, you know, to move more expeditiously than is scheduled here, as Your Honor -THE COURT: Well, let me do it this way: I will give

you -- what have you -- you've used a 40-day response time or 30 -- 40 days to respond? MR. GERSHENGORN: THE COURT: Oh, yes, okay.

I'll give you 40 days to respond to the After a ruling is made on the

Motion for Summary Judgment.

Motion to Dismiss, if it's necessary for you to respond, then you'll have 40 days in which to do that. MR. GERSHENGORN: THE COURT: Okay.

If I grant your motion, that will be the

If I deny the motion, then you'll have 40 days from

the time it's denied. MR. GERSHENGORN: Okay. And just so I'm clear, Your

19

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

Honor, so we would have a Motion to Dismiss and the briefing on that. Whatever the Summary Judgment Motion is, it would be 40

days from the time you rule on the Motion to Dismiss? THE COURT: Let me see how that jibes with the other

time sequence we have, because -- well, there's no reply brief time, I don't think, set out in your schedule. MR. GERSHENGORN: be, Your Honor. Well, I think actually there would

I understand the local rules don't generally I think both sides would request -- I speak

contemplate reply.

for the Plaintiffs, but I certainly request here that it be unilateral. I do think that the schedule does provide for the

motion for a reply, so we would request that. THE COURT: Mr. Winship, do you have a reply time

cranked into the schedule? MR. WINSHIP: I do, sir. On the October 14th date,

you'd note, Your Honor, that there would be Defendants' reply in support of the Motion to Dismiss. And then on November 14th,

there would be Plaintiffs' reply in support of the Motion for Summary Judgment. We understand, of course, Your Honor, that -You have another 30 days. I will have to

THE COURT:

say that should be reduced for your reply time to about 14 days. Can you do that? MR. WINSHIP: THE COURT: Certainly, Your Honor. That will expedite things. Because that

actually will -- well, let me see.

Wait just a minute.

20

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

Everything is moved up a month anyway, but we're looking at -instead of September, it would be August. MR. GERSHENGORN: So something like June 16th, August

7th, and then August -- Your Honor was suggesting the 21st or -THE COURT: would -MR. GERSHENGORN: Your Honor? Can we get three weeks for that, August 21st would be the reply. That

Split the difference, so make it the 20th? I contemplate, now, there will be a Motion Are the Defendants

THE COURT:

for Summary Judgment from the Plaintiffs. moving for Summary Judgment? MR. GERSHENGORN: -- I'm sorry.

No, no, I'm sorry.

The Defendants

Your Honor, are you talking about the briefing So it would be June --

schedule for the Motion to Dismiss? THE COURT:

The Motion to Dismiss would be June 16th.

The response would be due August 7th. MR. GERSHENGORN: THE COURT: Right, and then the reply.

And then they would also be able to file

their Motion for Summary Judgment at that same time, August 7th, to which you would not have to respond until we deal with the Motion to Dismiss, which will be going on simultaneously. MR. GERSHENGORN: then is the reply -THE COURT: Their reply would be -And that's when I was asking Your Right. And then the only question

MR. GERSHENGORN:

21

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

Honor whether you would consider three weeks there, so it would be August 28th would be the reply brief on the Motion to Dismiss. THE COURT: you're asking for 21? MR. GERSHENGORN: THE COURT: 21, yes, sir. Your reply would be -- instead of 14,

Well, if I gave you 21, they're going to

have to have 21 days, too. MR. GERSHENGORN: THE COURT: days. MR. GERSHENGORN: So it'll be Motion to Dismiss, June We have no objection. I mean, I'm happy. 21

Can we do that?

16th, August 7th, August 28th. THE COURT: calendar looks like. weekend here. THE CLERK: THE COURT: THE CLERK: THE COURT: The 28th is a Saturday, Judge. That's a Saturday, so we can't do that. The 27th is a Friday. 27th, can we make it that way? Sure. August 28th. Now let me see what the

I suspect we may be getting over into the

MR. GERSHENGORN: THE COURT: Saturday. THE CLERK: THE COURT:

And that means August 7th is also a

Correct. So that would have to be August 6th.

22

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 that?

MR. GERSHENGORN:

Okay.

And Your Honor, I presume

that this is all premised off of that May 14th amended complaint filed? THE COURT: Right, that's where it starts. From the Defendants' perspective,

MR. GERSHENGORN:

Your Honor, we are comfortable in saying that we can work with that schedule. MR. WINSHIP: Your Honor, if I may just interject on

THE COURT: MR. WINSHIP:

Okay. I'm a little bit confused at this point

that we would be having our Motion for Summary Judgment filed and served on them and then just basically held in abeyance pending all the briefings -THE COURT: It would be held in abeyance. And we can

move that Summary Judgment date back some because obviously we're not going to be able to decide the Motion to Dismiss until you've had an opportunity to respond and the Defendants have responded. So we could actually move that to anytime you want

up until -- well, I'll leave it up to you. MR. WINSHIP: Well, all right, Your Honor. I just

wanted to mention one more time that -- I understand the sequence you have. I do believe that we would have a faster

resolution of all of this if we did have this stuff interlocking even if we ended up with a hearing that resolved the Motion to

23

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

Dismiss beforehand.

It was our goal -- because we do believe

there is going to be significant overlap of the arguments and the issues as between what we're asking for as a matter of law for relief and what they're asking for as a matter of law for relief. THE COURT: the overlap might be. Well, you have a much better grasp of what I've given it some thought, and as I

understand it, there's really no challenge to any of the action in Congress. In other words, the way this Act was adopted or

anything about that is not being challenged in the least. So the question of justiciability is probably, at least with respect to that, is not going to be coming up. But

there may be some overlaps in other areas which at this point in time I can't anticipate, but maybe the two of you can enlighten me. Are there some other areas that -MR. GERSHENGORN: Yeah, I do think, Your Honor, that

there are -- that there's good reason to keep it separate, as Your Honor has proposed. I think there are going to be some serious jurisdictional and standing issues that are really better resolved in a Motion to Dismiss setting or at least presented to the Court in a Motion to Dismiss setting, and that once those issues are resolved, I actually think, although we share the desire for expedition, that it's actually more expeditious to do

24

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

it that way, have a ruling from Your Honor on the Motion to Dismiss so that the parties know exactly what is still on the table. So I guess we do think that what you broached along the

line, Your Honor, is the way to go. MR. WINSHIP: Well, Your Honor, if I may say, when we

asked -- when we were asked by counsel for the United States how long they thought we would need to respond -THE COURT: Let me ask you all just to use that

microphone so our telephone participants can hear better. MR. WINSHIP: were asked -TELEPHONE OPERATOR: conference. MR. GERSHENGORN: THE COURT: MR. WINSHIP: Shall we start again, Your Honor? Mr. Winship, go ahead. Joseph Kanefield has just joined Sure, Your Honor. Thank you. When we

All right.

Thank you, sir.

When we were asked by counsel for Defendants last week how long we thought we would need to respond to their Motion to Dismiss, we asked them, well, that would depend on the nature of the motion. And the response that we got from them was that the

motion was not really going to be limited just to jurisdictional issues. They are, as we understand it from what they've said, going to be pitching a very broad-based Motion to Dismiss, not just on issues of justiciability or ripeness or standing or just

25

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

preliminary sorts of things, but also on the basis of whether our causes of actions state legal claims for which relief can be granted. And that is really what led us to be talking about this kind of an interlocking schedule to begin with, which, as I pointed out to Your Honor, actually the Department of Justice sent back to us with the idea in mind that we all thought -- and I certainly thought we were in concurrence -- that there is -- I mean, I understand tactically why they want to have their bite of the apple first, and I think that's going to slow this entire procedure down a lot to have all of that resolved -- briefed and resolved, and then we turn our attention to summary judgment, when, in fact, they are going to be broadly addressing reasons why our causes of action do not lie at law and they are really, in effect, the obverses of the positions that we're going to be taking in our own moving papers, that they certainly do and that, as a matter of law, we're entitled to relief. That is the essence that gave rise to this concept of interlocking motions. I mean, we often see, of course, in

constitutional challenges cross-motions for Summary Judgment. This is a little unusual because they wanted to file a Motion to Dismiss and raise other types of issues as well. And we appreciate that, but as I said at the very beginning, we are mindful of the need to move this case forward, and we are trying to do precisely that. We're trying to move

26

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

this forward as aggressively as possible.

We had frankly

envisioned that by the end of this briefing process and moving the end of this up so that instead of ending it November 14th, it would end around maybe October 14th -- we can understand the Court's reasons for doing that, and we are in a position to agree with that. We certainly will comply with that, and we

think it's in the best interest of moving the case along to do that. After that, the question of whether the Motion to Dismiss should -- when the Court has had the benefit of all of the briefing, whether the Motion to Dismiss should be heard in a separate hearing or should be collapsed into the same hearing with maybe jurisdictional arguments addressed first is something, obviously, that is entirely within Your Honor's discretion. We would urge Your Honor to consider having a single hearing that would address the Motion to Dismiss and the Motion for Summary Judgment because we believe Your Honor will see that there is a tremendous economy of scale to be achieved here and a great deal of judicial efficiency in moving this case forward. That is why this interlocking briefing schedule came to be in the first place and why it came to emanate from the Department of Justice. They do, as we understand it, anticipate doing a very broad-based Motion to Dismiss that will go very much into the

27

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

very questions that we will be broaching for the Court in our Summary Judgment Motion. THE COURT: something. I think Mr. Rivkin stood up to say

I want to give him the chance. MR. RIVKIN: THE COURT: Your Honor, thank you very much. Let me ask you to use microphone, too,

please. MR. RIVKIN: Thank you very much. Actually, Mr.

Winship made the same points, but all I was going to reiterate is that we believe there are advantages to Your Honor in the full briefing schedule completed on both Defendants' Motion to Dismiss and our Motion for Summary Judgment, opportunity for you to get the full flavor of all the arguments. How you choose to rule on them, whether it is in a single hearing, that we are suggesting, or staggered, is something that is entirely in your discretion. But again, the

benefits of laying out the full sets of briefs for you rather than deferring the briefing on our motions is, I think, very palpable, given all the imperatives that Your Honor has laid out. Thank you. THE COURT: Well, I anticipated in -- you know,

because I thought about what we could discuss today, I anticipated that the Government is going to want to go through with the regular Motion to Dismiss. And I think -- my leaning is that we ought to take it

28

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

one bite at a time, even though, as I've already indicated to you, I think we can go ahead and start the Summary Judgment process, particularly if there's not going to be cross-motions for Summary Judgment, and that's where I understand we are. The Motion for Summary Judgment is going to be yours, right? MR. WINSHIP: Yes, Your Honor. Well, again, it would depend, Your It's

MR. GERSHENGORN:

Honor, on where we stood after our Motion to Dismiss. unclear at this point whether there will be, you know, cross-motions of which their opposition may -THE COURT: possibilities. MR. GERSHENGORN: THE COURT: Well, yeah. Well, there are all sorts of

I mean, the Motion to Dismiss could be

successful with some claims and not others. MR. GERSHENGORN: THE COURT: Sure, right.

It could be totally successful or totally

unsuccessful or any variation, I suppose. MR. GERSHENGORN: THE COURT: deal with that. Certainly.

So there are some reasons, I guess, to

But again, I don't have a good, full grasp of

how these issues are going to mesh, and you're telling me there's a lot of overlap. MR. RIVKIN: If I may, Your Honor, that's why -- I

29

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

guess the real issue -- and we are entirely agreeable with judicial expedition as to the schedule that has been suggested. All we're really debating here, if we're debating anything, is whether or not the briefing on the Motion for Summary Judgment would be delayed after we file the motion or would it proceed at the same time as the briefing on the Motion to Dismiss unfolds. And again, it seems to us that completing both briefing processes puts you in the best position at that point in time in exercising your discretion how you wish to tackle these motions. I see no particular benefit in delaying the

briefing, especially since the Government, undoubtedly, is going to have sufficient resources to -- in fact, in a lot of cases, the Department of Justice -- I know how many able attorneys they would be able to put on this. You can have one team working on

the Motion to Dismiss briefing and one team working on the Motion for Summary Judgment. THE COURT: Well, one thing I'm looking forward to is

the quality of what I'm going to receive, so that's good. MR. RIVKIN: THE COURT: Thank you, Your Honor. Well, let's see what -Well, I actually want to say a Again, not to seem prejudice, but

MR. GERSHENGORN:

couple of things, Your Honor.

I think that Your Honor's one bite at a time is exactly the way to proceed in this case.

30

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

I do want to make clear and candor to the Court, we think there are substantial 12(b)(1) issues, but we do intend most likely to file the 12(b)(1) and the 12(b)(6) as appropriate. But there is -- you know, although counsel for the Plaintiffs suggest that Your Honor is better with a sort of mass of undifferentiated briefs, I think there is a good reason that the Federal Rules provide for the Motion to Dismiss first, and it's precisely to narrow the issues before the Court for the benefit of judicial economy both for the Court and for the parties so we know exactly what remains live. And I guess just to -- in the interest of keeping it brief, I'll just say I think that the schedule that's been set up -- we have the Motion to Dismiss, we narrow the issues, the Summary Judgment Motion is on file. As soon as Your Honor We certainly

rules, we've got 40 days and we will meet that.

have both the resources and the talent to meet Your Honor's schedule, and so we would be happy to do that. THE COURT: Well, I haven't asked you, I asked Mr.

Winship, about the alternative of just going directly to a briefing of the issues instead of really going through the formal Summary Judgment Motion under Rule 56. I don't think it really has any substantive difference. It's just that sometimes there's some steps that

have to be taken that, when you blow away all the chaff, the

31

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

real substance of it is the same. MR. GERSHENGORN: couple of things. Your Honor, I guess I can say a

First of all, I mean, I do think that this is

one where we do want to dot the Is and cross the Ts on this case, and I do think that an approach that sticks to the Motion to Dismiss in the normal course is actually the better way to proceed for all concerned. narrows the issues. THE COURT: Well, that's fine. I mean, I'm just -I think it sets the right tone and

I'm just tossing it out as an alternative. MR. GERSHENGORN: That would be our recommendation,

Your Honor, so the approach that you have outlined so far has worked and we think is the one better suited for this case. Thank you, sir. THE COURT: Let me find where I think we are on our

dates and see what that leaves us. I think we're agreed that the Plaintiffs may have up until and through May 14th to amend the complaint. The

Defendants will have up until and through June 16th -- let me see if that date is right. That's a Wednesday, so that should

not be a problem -- to file their -- actually, it says Motion to Dismiss, but I suppose that's the answer to the amended complaint as well. MR. GERSHENGORN: THE COURT: That's correct, Your Honor.

You would have until June 16th to respond,

32

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

including the Motion to Dismiss.

And the motion would be And we'll get to some

accompanied by the appropriate briefing.

page numbers and things about that in a bit. The Plaintiffs' opposition brief to the Motion to Dismiss would give you to August 6th. And they may file a

Motion for Summary Judgment at that time or anytime subsequent to that, and we'll deal with it in the manner that I've indicated, and that is that the Defendants will not have to respond to that until I have ruled on the Motion to Dismiss. And we will take the Motion to Dismiss separately. I

understand the rationale that the Plaintiffs are proposing here, but it seems to me that it's just a much cleaner way to deal with it is to get any issues that may be subject to a Motion to Dismiss fully aired and resolved one way or the other before we get into the Summary Judgment. As soon as there is a -- well, wait just a minute. Before we do that, August 6th, and then there will be a response to the reply to the Plaintiffs' opposition to the Motion to Dismiss, which would be due August 27th, I think we said. MR. GERSHENGORN: THE COURT: Yes, Your Honor.

Now, I think we need to schedule an

argument date on the Motion to Dismiss soon after that, and I'm agreeable to most any date, probably. And we're really looking

at the latter half of the month of August, it looks like to me. Is that --

33

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 calendar.

MR. GERSHENGORN: 27th, Your Honor. THE COURT: early September. MR. GERSHENGORN:

The reply brief comes in August

That's right, so it would be, really,

Your Honor, the only thing I'd ask I know that there

-- I don't have the calendar in front of me.

are some -- it's not -- there are some Jewish holidays that come up in the middle of September. I would sure like to predate

those, if we could, and work around those. THE COURT: Let's see, I think I've got those on this

MR. GERSHENGORN: having the calendar with me. THE COURT:

I apologize, Your Honor, for not

Rosh Hashanah begins September 8th and

runs, well, through the remainder of that week, and Yom Kippur begins September 17th. MR. GERSHENGORN: THE COURT: Maybe the 15th?

I'm looking at the week of September 13th.

What does that look like? MR. WINSHIP: That's fine for us, Your Honor. Sometime around the 15th, Your Yom Kippur is

MR. GERSHENGORN:

Honor, if that's consistent with your schedule? on which date? THE COURT:

I'm looking at the week of September 13th. We can put it Tuesday or

Anytime during that week will be fine.

34

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

Wednesday.

What's a good day? MR. WINSHIP: THE COURT: Either is fine with us, Your Honor. Either one? Perhaps the Tuesday -- Your Honor, I

MR. GERSHENGORN: apologize.

One more time, Yom Kippur is on which date? THE COURT: Yom Kippur begins Friday the 17th, which

would be Friday of that week. MR. GERSHENGORN: fine. THE COURT: then. Either of those? Let's do it for Tuesday That's on the So either Tuesday or Wednesday is

Tuesday, September 14th at nine o'clock.

Motion to Dismiss. As soon as I have ruled on that, then the Defendants will have -- what did I give you, 40 days? MR. GERSHENGORN: THE COURT: 40 days. 40 days and 40 nights. Well,

40 days.

we'll give you the biblical period then, 40 days from whenever that comes for your response. And then there will be a reply,

and then I think I've given you 21 days after to reply. MR. WINSHIP: you. THE COURT: And then we'll set an argument after that. That will be fine, Your Honor. Thank

We'll set an argument once we get into that scheduling, once we see where we are, but that will be set so that it's convenient for everybody. All right. Have you got all of these dates?

35

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

Okay. Now, can we talk about the size of the briefing and how that will be -- actually the mechanics of how that will be done? Mr. Gershengorn, if you want to start. MR. GERSHENGORN: I guess one question, Your Honor,

would be whether it would be more efficient for the Court to -we haven't talked about page lengths, I mean, to propose a length for the Court. THE COURT: brief. Well, obviously, I don't want a 100-page

Thirty pages may not be adequate. MR. GERSHENGORN: That's what we were thinking, Your

Honor, somewhere more on the order of 45 or 50 pages. THE COURT: I don't know what your preference is, but

I'm agreeable to anything up to 50 pages, if you want to do that. MR. GERSHENGORN: Honor, from our perspective. MR. WINSHIP: I think that would be fine. Let me ask I think that would be fine, Your

you one question, Your Honor, and I know that it would differ from one federal judge to another. In terms of Summary Judgment Motions, if we have multiple counts and we have multiple motions, we have a Summary Judgment with regard to this count and a Summary Judgment with regard to that count, would Your Honor be agreeable to us filing separate Summary Judgment Motions directed at different counts

36

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

or do you want -THE COURT: motions together. I'm a great advocate of putting all the

I don't like breaking up Summary Judgments

because -- particularly timewise, but I like to have it all together so you can try to grasp the whole thing. Now, I don't know what that does to your page count, though, because some of these issues I know are quite complex, but I still think 50 pages ought to be enough to do it for you. MR. WINSHIP: Your Honor. That sounds reasonable at this stage,

Let me just say that if it turned out that we

thought that there was a need to have more than that, we would confer with other counsel first. THE COURT: There are three counts in this complaint.

I don't know if you're going to change that around in the amended complaint or not, but that ought to be enough to deal with that. It seems to me it should be. Is that reasonable? suggestions. MR. GERSHENGORN: I think it's reasonable. But as If it's not, I'm open to

counsel said, if it turns out that -THE COURT: Now, we're talking the principal brief.

Now, the reply brief ought to be certainly no more than half that. MR. GERSHENGORN: That's fair, Judge. But I would

also say, Your Honor, that if counsel finds that it --

37

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

(Inaudible) -COURT REPORTER: MR. GERSHENGORN: sorry, Your Honor. THE COURT: Yeah, I need you to use the mic. Counsel had suggested that 50 pages Judge, I can't hear. I'm sure we could work out -- I'm

MR. GERSHENGORN:

-- opposing counsel suggested that 50 pages would likely be enough but they might be pressed at the end, and we certainly would be amenable to working something out, if Your Honor is amenable if they need more. And we think as a general structure

50/50/25 is certainly a good baseline. MR. WINSHIP: Honor. THE COURT: All right. Let's do that. And I don't And we would agree with that, Your

think we're going to need any separate statements of facts in this case because both of you have indicated that the facts are really not contested, not an issue and really not all that material, it seems like. MR. WINSHIP: If we -- Your Honor, if we do -- on our

Motion for Summary Judgment, if we do need to do that, I will represent that we will be endeavoring only to delve into facts that are supportable of Summary Judgment, and that is to say, facts that we believe would be beyond reasonable dispute and yet nevertheless may not appear in the four corners of the pleading. THE COURT: Well, you know, if you say a state has X

38

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

number of Medicaid patients, I don't think it really makes a difference if it's X minus 1 or X minus 100. MR. WINSHIP: We agree with you, Your Honor. We're

just saying that, technically speaking, in terms of complying with the requirement of Rule 56. And as I said, if we're

getting into something that is outside the actual pleading itself, since this is something that is asking for affirmative relief as compared to asking for dismissal, which does target the pleading, I think it would behoove us to perhaps be satisfying the requirements of Rule 56. But I'm not purporting

to indicate to Your Honor that we think that we would necessarily have a great amount of statement of material facts at this point that we would be putting in. But whatever we

would be doing in that regard would be with an eye towards satisfying the Court that Summary Judgment is, in fact, appropriate. THE COURT: has arisen. Okay. Let me ask about one question that

We've had numerous Motions to Intervene or

requests, none of them -- I don't think they've really got to be formal, but requests for leave to file an amicus filing of some nature. I've already ruled on at least one of the motions to intervene, but I would like your suggestions on how to deal with these. I don't think they should be a part of the official

court record if anybody wants to file anything that's in the

39

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

nature of an amicus filing, but I want to keep those so that they can be referenced by anyone who needs to, including you. So do either of you have any suggestions on how you would like to have those treated? And I'm anticipating that at this point no one is going to really make a case for permissive intervention, but there may be some. But assuming that there are none, we have

enough plaintiffs, I think, without bringing in a lot of intervenors. But I'm open to whatever you may want to feel is

an appropriate way to deal with this. Mr. Winship? MR. WINSHIP: Yes, Your Honor. Well, I guess our view From what you've

of it is that we agree with Your Honor.

communicated in your order of last week, we believe that these issues are being properly presented and represented by the counsel that are already in this case for the named plaintiffs and for the defendants. We certainly understand how many people in this nation are very galvanized about this action that has been filed as they are about the Act of Congress that has become law. It's

not at all our desire to squelch in any way the desire of the people to be heard. We do have mechanisms for formal

petitioning of the Court in order to file amicus briefs and such. Our only concern, it's really more in a sense of that

40

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

we don't want the expeditious resolution of this litigation to be bogged down with a lot of extraneous voices that the Court might believe are not really helpful to the Court in terms of doing the best thing under the rule of law on behalf of the people of this country in this litigation. And I think the formal mechanisms with regard to the standards for intervention and for being heard as amicus curiae are in place probably for a pretty good reason. And I think

beyond that, it's hard for us to say, other than to look at a case-by-case basis, with regard to who it is who wants to be heard in this action and why and in what form. I mean, do they want to be filing motions? Do they

want to be heard and depriving us perhaps of time before Your Honor to present our own arguments? These are considerations I

think we would have to address as and when they are presented, sir. MR. GERSHENGORN: Your Honor, I largely agree that we I do think that --

need to address when we're presented. THE COURT:

And let me say that these are not just --

these are on both sides of this issue. MR. GERSHENGORN: THE COURT: Right, yes, Your Honor.

People have strong feelings. I guess the one thing I would

MR. GERSHENGORN:

distinguish between intervenors and amici, I do think that there are going to be a number of amici who are, I suspect, on both

41

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

sides who are going to want to file. the electronic record.

We're supposed to be on

I don't know what Your Honor's practice

is, but I do think that we may get -- we may get a host of people. THE COURT: Well, there's a formal way to do that, and

I would anticipate that those who are serious about wanting to do that will follow that procedure. MR. GERSHENGORN: suggest. MR. WINSHIP: Your Honor, if I may ask one other We notice, as Your Honor Correct. That's all I would

related question with respect to that.

does and as counsel for the Department of Justice does, that we are getting a number of filings that are coming in. Some of

them are not complying with the rules, and the Court has been dealing with them accordingly. But in the days and weeks to

come, we can't predict how many more of these we're going to be seeing. I think we just have had one or two within the last few

business days, even postdating Your Honor's order of April 8th. And in that respect, we would ask if we would be excused from having to actually direct our attention away from presenting the issues we need to get before the Court, be excused from having to respond to these various motions, unless we, for whatever reason, choose to do so. THE COURT: those. I don't expect you to respond to any of

If you want to respond, you certainly may, but I --

42

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

you're not obligated to respond to any of those. MR. GERSHENGORN: So we can assume that unless the

Court -- if the Court is interested in a particular response or particular filing, you'll let us know? THE COURT: That's right. Unless you feel it's

something that you want to respond to for whatever reason, you don't have to. MR. WINSHIP: Thank you, Your Honor. Thank you, Your Honor.

MR. GERSHENGORN: THE COURT:

I'll take care of that.

Let me just make sure -- there's some required items that we're supposed to put into a scheduling order under the rules, and let me make sure that I've got all of those addressed. The time to amend the pleadings we've addressed, but we haven't discussed joining or adding parties. I presume that

same time would apply, and that would mean anybody who wants to join in officially would have to have done so by May 14th. MR. WINSHIP: That is our expectation. That, by the

way, Your Honor, is a time that's keyed into, roughly speaking, the amount of time that we would have in order to move to amend as a matter of course. THE COURT: MR. WINSHIP: Yes. If we needed after that or wanted after

that to be able to add some other parties, we would ask for

43

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

leave of the Court to do so, of course. THE COURT: You've also asked, and I certainly agree, You don't

that the disclosures under Rule 26 can be waived.

have to comply with those mandatory disclosures, but I think we need to at least put a discovery deadline in case there is some discovery that you see that you may want to do at some point. And I would propose that we use the Motion to Dismiss date as the discovery date. Is that adequate? That would be June 16th,

or do you want to just put another date? I don't have any feelings one way or the other. I

mean, we can make this date as long as you want, but I would like to make sure that it's sufficiently in advance of the Summary Judgment time so that we have a record that's pretty well fixed. MR. GERSHENGORN: I guess one question would be, does

it make sense to see where we are after the Motions to Dismiss? Does it make sense -- I mean, I don't think either side is anticipating discovery, although I don't think either side has foreclosed it. I guess the question is, does it make sense to

see where we are after the Motion to Dismiss and have a brief time for discovery after that? THE COURT: We can do that. I will simply say that That's the

the discovery must be completed by September 14th. oral argument.

If we need more time, just ask for it, and we'll So let's

deal with it, but I don't contemplate that you will.

44

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

just put that date in, and we can move it if necessary. Is that all right? MR. WINSHIP: That would be acceptable if Your Honor I just wanted to note that the

feels we have to have a date in.

nature of our Summary Judgment is such that we actually expected it -- as I said earlier, when the dust settles and Your Honor has ruled that you're not granting their motion and you're not granting our motion, it would give us an opportunity at that time to be framing where we need to go with regard to discovery. So if Your Honor is uncomfortable with what is really paragraph No. 2 of what I presented to Your Honor, then if you feel we need to put a date in but with the understanding that that would be revisited, then that would be fine. But we still

would prefer to just basically all understand that this is not your typical sort of Motion to Dismiss and then discovery and then at the close of discovery a Motion for Summary Judgment. This isn't that typical kind of sequence. THE COURT: It isn't. This is -- you know, this is a

rule that's -- I mean, a case that's extraordinary in a number of ways, and the rules don't neatly fit it. But I would prefer So

to put a deadline for discovery just to have it in there. we'll use that.

And as I said, it's a flexible date and, if

necessary, we can change it. MR. WINSHIP: THE COURT: Thank you, Your Honor. I don't know if there are any other

45

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

motions that you may contemplate filing other than the Motions to Dismiss and the Summary Judgment Motion. Any other motions that may be out there? MR. GERSHENGORN: THE COURT: Not at the current time, Your Honor.

I can't think -- if there are, just put it

in a motion, file a motion. Let's see if there are some other things that we need to discuss. I think I've exhausted my list.

Do you have anything else? MR. WINSHIP: Not at this time, Your Honor. Not at this time, Your Honor. Then I will enter the And it will

MR. GERSHENGORN: THE COURT:

All right.

scheduling order, and it will come out this week.

set out these dates and the procedure that we've outlined, and that's the schedule we will endeavor to follow. There are always things that are unanticipated, so don't be reluctant if there's something that comes up and you can't seem to work it out between the two of you. I'm available

for a telephone conference on short notice, and we can certainly address whatever issues may come up. Let's see, we have the participants from Arizona, and I don't think we had those formally identified on the record. And you may have to spell your name so that our court reporter can get that. Would you do that for us, please? Are the

46

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

representatives from Arizona still on the telephone line? MR. KANEFIELD: Yes, Your Honor. I'm sorry. Joseph

Kanefield, J-O-S-E-P-H, K-A-N-E-F-I-E-L-D. THE COURT: And your title, sir? General counsel to Arizona Governor

MR. KANEFIELD: Jan Brewer. THE COURT: discuss this morning?

Is there anything further we need to

If not, thank you very much.

We're adjourned.

(Proceedings concluded at 10:06 a.m.) -------------------I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Any redaction of personal data identifiers pursuant to the Judicial Conference Policy on Privacy are noted within the transcript.

s/Donna L. Boland ________________________ Donna L. Boland, RPR, FCRR Official Court Reporter

5-19-10 Date