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1

JOSEPH J. LEVIN, JR. (Pro Hac Vice)[email protected] P. SUN (SBN 218701)[email protected] E. SHORT (Pro Hac Vice)[email protected]

SOUTHERN POVERTY LAW CENTER400 Washington AvenueMontgomery, AL 36104Telephone: (334) 956-8200Facsimile: (334) 956-8481

(Caption Continued on Next Page)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Western Division

TRACEY COOPER-HARRIS and ) Case No. CV12-887 CBM (AJWx)MAGGIE COOPER-HARRIS, )

)Plaintiffs, ) JOINT CONFERENCE REPORT

v. ) PURSUANT TO FEDERAL RULE) OF CIVIL PROCEDURE 26(f)

UNITED STATES OF AMERICA; )ERIC H. HOLDER, JR., in his official )capacity as Attorney General; and ) Hon. Consuelo B. MarshallERIC K. SHINSEKI, in his official capacity )as Secretary of Veterans Affairs, ) No Scheduling Conference Requested

)Defendants. )

)BIPARTISAN LEGAL ADVISORY )GROUP OF THE U.S. HOUSE )OF REPRESENTATIVES )

)Intervenor-Defendant. )

)

Case 2:12-cv-00887-CBM-AJW Document 51 Filed 08/17/12 Page 1 of 16 Page ID #:675

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28 2JOINT RULE 26(f) CONFERENCE REPORT

CASE NO. CV 12-887 CBM (AJWx)

RANDALL R. LEE (SBN 152672)[email protected] BENEDETTO (SBN 252379)[email protected] CUTLER PICKERING HALE AND DORR LLP350 South Grand Avenue, Suite 2100

Los Angeles, CA 90071Telephone: (213) 443-5300Facsimile: (213) 443-5400

ADAM P. ROMERO (Pro Hac Vice)[email protected] CUTLER PICKERING HALE AND DORR LLP7 World Trade CenterNew York, NY 10007Telephone: (212) 230-8800Facsimile: (212) 230-8888

EUGENE MARDER (SBN 275762)

[email protected] CUTLER PICKERING HALE AND DORR LLP950 Page Mill RoadPalo Alto, CA 94304Telephone: (650) 858-6000Facsimile: (650) 858-6100

Attorneys for Plaintiffs

STUART F. DELERYActing Assistant Attorney General

ANDRE BIROTTE, JR.United States Attorney

ARTHUR R. GOLDBERG (DC Bar 180661)Assistant Branch Director

JEAN LIN (NY Bar 4074530)[email protected] Trial CounselUnited States Department of JusticeCivil DivisionFederal Programs Branch

20 Massachusetts Ave., N.W.Washington, DC 20530(202) 514-3716(202) 616-8470 (Fax)

Attorneys for Federal Defendants


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Paul D. Clement (DC Bar 433215)[email protected]. Christopher Bartolomucci (DC Bar 453423)[email protected] J. Nelson (DC Bar 1001696)[email protected]

BANCROFT PLLC1919 M Street, N.W.Suite 470Washington, D.C. 20036202-234-0090 (telephone)202-234-2806 (facsimile)

Of Counsel:Kerry W. Kircher, General Counsel (DC Bar 386816)[email protected] Pittard, Deputy General Counsel (DC Bar 482949)[email protected]

Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000)[email protected] B. Tatelman, Assistant Counsel (VA Bar 66008)[email protected] Beth Walker, Assistant Counsel (DC Bar 501033)[email protected]

OFFICE OF GENERAL COUNSEL,U.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515202-225-9700 (telephone)202-226-1360 (facsimile)

Counsel for Intervenor-Defendant the BipartisanLegal Advisory Group of the U.S. House of Representatives


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1

JOINT CONFERENCE REPORT PURSUANT TO FEDERAL RULE OF

CIVIL PROCEDURE 26(f)

Pursuant to Fed. R. Civ. P. 26(f), Local Rule 26-1, and the Standing Order of

Honorable Consuelo B. Marshall, Plaintiffs Tracey and Maggie Cooper-Harris,

Federal Defendants, and Intervenor Bipartisan Legal Advisory Group of the U.S.

House of Representatives (Intervenor) by and through their respective counsel,

hereby submit this Joint Conference Report and request that the Court enter it as its

Order.

A. Statement of the Case

Plaintiffs Factual AllegationsThe parties agree that Plaintiffs have alleged the following facts:

Plaintiff Tracey Cooper-Harris served honorably in the United States Army for

approximately twelve years, nine in active duty, reaching the rank of Sergeant. For

Traceys distinguished service, the United States government awarded her with over

two dozen medals and commendations. She was honorably discharged in 2003.

In November 2008, Tracey married her same-sex spouse, Plaintiff Maggie

Cooper-Harris, in Van Nuys, California. The State of California legally recognizes

Tracey and Maggies marriage and provides them with the same status,

responsibilities, and protections as other legally married couples under state law.

Tracey suffers from a number of conditions, including multiple sclerosis and

post-traumatic stress disorder (PTSD). In 2011, the U.S. Department of Veterans

Affairs (VA) determined that those conditions are service-connected under 38

U.S.C. 101(16), and accordingly, Tracey receives monthly disability compensation.

The VA provides a number of benefits to married veterans and their families,

including additional disability benefits; Dependency and Indemnity Compensation,

which provides monthly benefits to a surviving spouse after a veteran has died from a

service-connected injury or disease; and joint burial benefits for the veterans spouse

at a veterans ceremony.


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In 2011, Tracey filed a claim with the VA to add Maggie as her spouse and

obtain these benefits. The VA denied Traceys claim because the statute that governs

veterans benefits defines spouse as a person of the opposite sex who is a wife or a

husband. 38 U.S.C. 101(31). Title 38 similarly limits surviving spouse to a

person of the opposite sex. Id. 101(3).

Even if Title 38 recognized Tracey and Maggies marriage for the purpose of

veterans benefits eligibility, Section 3 of the Defense of Marriage Act (DOMA)

would prevent the VA from recognizing their marriage. DOMA provides that, for

purposes of federal statutes, the word marriage means only a legal union between

one man and one woman as husband and wife, and the word spouse means only aperson of the opposite sex who is a husband or a wife. 1 U.S.C. 7.

Plaintiffs Legal Position

Plaintiffs Tracey and Maggie Cooper-Harris seek declaratory and injunctive

relief pursuant to 28 U.S.C. 2201-2202 and Fed. R. Civ. P. 57. Plaintiffs seek a

determination that the definitions of spouse and surviving spouse in Title 38

violate on their face the United States Constitution by denying them benefits received

by other married veterans and their spouses solely because they are married to a

person of the same sex. Plaintiffs also seek a determination that Section 3 of DOMA,

as applied to them, violates the United States Constitution by denying them benefits

that similarly-situated married veterans and their spouses in heterosexual marriages

receive.

Federal Defendants Legal Position

Federal Defendants previously have informed this Court and the parties that the

Department of Justice will not defend the constitutionality of Section 3 of the Defense

of Marriage Act (DOMA), 1 U.S.C. 7, and Sections 101(3) and 101(31) of Title

38 of the United States Code under the equal protection component of the Fifth

Amendment. It is the position of the Department that those provisions classify on the


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basis of sexual orientation; that heightened scrutiny is the appropriate standard of

review for classifications based on sexual orientation, and that consistent with that

standard, Section 3 of DOMA and 38 U.S.C. 101(3) and 101(31) may not be

constitutionally applied to same-sex couples whose marriages are legally recognized

under state law. Federal Defendants, however, intend to raise appropriate

jurisdictional defenses, if any, in this case.

Intervenors Legal Position

Intervenor believes that this Court lacks jurisdiction to hear this case. See 38

U.S.C. 511; Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1021-36 (9th

Cir. 2012) (en banc).Regarding the merits of Plaintiffs claims (should this Court find that it has

jurisdiction to hear this case), Intervenor believes that DOMA Section 3 and 38 U.S.C

101(3), (31) are constitutional. Under binding Ninth Circuit and Supreme Court

precedent, this Court must apply rational basis review to Plaintiffs challenge to the

constitutionality of these statutes. DOMA Section 3 and 38 U.S.C. 101(3), (31)

plainly survive rational basis review. Even if this Court could ignore binding Ninth

Circuit and Supreme Court precedent which it cannot these statutes would also

survive review under the heightened scrutiny standard proposed by Federal

Defendants.

B. Subject Matter Jurisdiction

Plaintiffs Position

Plaintiffs rely on this Courts subject matter jurisdiction under 28 U.S.C. 1331

and 28 U.S.C. 1346(a)(2).

Federal Defendants Position

Federal Defendants intend to raise appropriate defenses, if any, relating to this

Courts subject matter jurisdiction in accordance with the motion schedule set forth

below.


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Intervenors Position

As noted above, it is Intervenors position that 38 U.S.C. 511 precludes this

Courts from exercising jurisdiction over this case. See Veterans for Common Sense

v. Shinseki, 678 F.3d 1013, 1021-36 (9th Cir. 2012) (en banc).

C. Initial Disclosures

The parties shall exchange initial disclosures on August 24, 2012 in compliance

with the requirements set forth in Federal Rule of Civil Procedure 26(a)(1).

D. Responsive Pleading Deadline Tolled

Plaintiffs agree to extend the time for Federal Defendants to file their respective

responsive pleading pursuant to motion schedule set forth below.

E. Discovery Plan and Dispositive Motions Schedule

The parties agree that pending the resolution of all motions to dismiss or stay

that they will preserve discoverable information in accordance with the Federal Rules

of Civil Procedure. Plaintiffs believe that the material factual and legal issues that

would be resolved and on which discovery may be needed include, without limitation:

(1) the constitutionality of 38 U.S.C. 101 (3) and (31); and (2) the constitutionality

of Section 3 of DOMA, 1 U.S.C. 7, as applied to Plaintiffs.

Plaintiffs further state that they do not intend to seek any discovery against

Federal Defendants. Accordingly, the Federal Defendants do not object to the

deadlines set forth by Plaintiffs. Plaintiffs further state that they do not intend to seek

any discovery against Intervenor based on Intervenors position that it has no

discoverable information relevant to this case.

Plaintiffs Position

Under Plaintiffs proposed schedule, the parties would have 60 days to

complete the very limited discovery in this case: namely, the depositions of Dr.

Lawrence Korb and Gen. Dennis Laich, two experts that Plaintiffs identified in their

opposition to Intervenors motion to stay. Plaintiffs have offered that the parties begin


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scheduling the depositions of these two experts now in order to accommodate the

schedules of counsel. Given the nature of this case and the very limited discovery

involved, it is Plaintiffs position that 60 days is more than sufficient time to complete

discovery.

With respect to expert discovery, Plaintiffs position is that the parties should

submit any expert reports concurrently, given that (1) Plaintiffs identified all of their

experts and the subject matter of their testimony as early as June 18, 2012 in

Plaintiffs opposition to Intervenors motion to stay; and (2) there is no basis for

Intervenor to delay in disclosing any expert testimony that it intends to offer on these

subjects, particularly because under heightened scrutiny review, the burden lies withIntervenor. For these reasons, it does not presently make sense to provide for a time

period for rebuttal reports, and doing so would only serve to further delay resolution

of this case, which has been pending since February 2012. After the parties serve

their affirmative expert reports, if any party wishes to submit an appropriate rebuttal

report which Plaintiffs do not anticipate any party could move to extend the

discovery period.

Similarly, given the extremely limited discovery in this case, Plaintiffs do not

anticipate any discovery disputes. However, if a dispute arises that cannot be resolved

in the discovery period, any party could move to extend the discovery period.

Intervenors Position

Intervenor states that it proposes a modest 30-day extension to Plaintiffs

exceedingly expedited discovery period. Intervenors proposal maintains an expedited

discovery period, which lasts only ninety (90) days under its proposed schedule.

Intervenor maintains that its 90-day proposal is a practical compromise that will

result in discovery being completed on an expedited basis while still allowing the

parties time to complete fact and expert discovery and to resolve any discovery


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disputes within the allotted discovery period without need to seek additional time

from the Court.

Regarding Intervenors expert disclosures, as an initial matter, Intervenor

disagrees that it bears any burden this case or that heightened scrutiny review is

applicable to Plaintiffs challenge to DOMA Section 3 and 38 U.S.C. 101(3), (31).

Under binding Ninth Circuit precedent, rational basis, not heightened scrutiny, applies

to this Courts review of DOMA Section 3 and 38 U.S.C. 101(3), (31).

In any event, the issue of burden this case is distinct from the issue of timing of

the disclosure of rebuttal expert reports. Intervenor does not intend to offer any

affirmative experts. See Section F, infra. Intervenor reserves only the right to offerrebuttal expert reports to Plaintiffs two Title 38 experts. See id. Accordingly,

pursuant to Fed. R. Civ. P. 26(a)(2)(D)(ii), Intervenors rebuttal expert reports should

be submitted thirty (30) days after Plaintiffs expert reports as shown in its proposed

schedule below.

Although Plaintiffs have offered to begin scheduling the depositions of their

two Title 38 experts now, Intervenor will not have access to Plaintiffs expert reports

until September 12, 2012. Scheduling may well be impacted by the content of

Plaintiffs expert reports as well as by Intervenors decision to offer any rebuttal

expert witnesses. Additionally, Plaintiffs schedule provides no time for rebuttal

expert reports and/or depositions.

Plaintiffs Proposed

Deadline

Intervenors

Proposed Deadline

Event

Friday, August 17,

2012

Friday, August 17,

2012

Discovery period opens.

Friday, September

14, 2012

Friday, September

14, 2012

Last day for parties to serve

affirmative expert reports.


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Plaintiffs Proposed

Deadline

Intervenors

Proposed Deadline

Event

Friday, September

14, 2012 [Plaintiffs

position is that allreports must be

disclosed at the same

time]

Monday, October

15, 2102

Last day for Intervenor to serve

rebuttal expert reports.

Tuesday, October 16,

2012

Tuesday, November

13, 2012

Discovery period closes.

Thursday, November

15, 2012

Thursday, December

13, 2012

Last date on which Intervenor may

file any dispositive motions.

Last date on which Federal

Defendants may file anydispositive motion other than a

dispositive motion regarding the

constitutionality of DOMA

Section 3 or 38 U.S.C. 101(3),

(31) under the equal protection

component of the Due Process

Clause.

Monday, December

17, 2012

Monday, January 14,

2013

Last date on which Plaintiffs may

file any dispositive motion andany response to any dispositive

motions filed by Federal

Defendants and/or Intervenor.


Defendants may file any response

to any dispositive motion filed by

Intervenor.

Last date on which Intervenor mayfile a response to Federal

Defendants dispositive motion


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Plaintiffs Proposed

Deadline

Intervenors

Proposed Deadline

Event

Monday, January 14,

2013

Wednesday,

February 13, 2013

Last date on which Intervenor may

file any response to Plaintiffs

dispositive motion, any responseto Federal Defendants response to

Intervenors dispositive motion,

and any reply in support of its

dispositive motion.


Defendants may file any reply in

support of their dispositive motion

and any response to Plaintiffs

dispositive motion

Wednesday,

February 13, 2013

Thursday, March 14,

2013

Last date on which Plaintiffs may

file a reply in support of their

dispositive motion.

Monday, March 11,

2013 at 11 a.m.

Monday, April 16,

2013 at 11:00 a.m.

Hearing on parties dispositive

motions

14 days after Order

on dispositive

motions

14 days after Order

on dispositive

motions or as set bythe Court

Pre-Trial Scheduling Conference

(if necessary)

F. Expert Witnesses

The parties agree that the Federal Rules of Civil Procedure, as revised and in

effect as of December 1, 2010, will apply to the entire litigation, including the rule

changes regarding expert discovery. The parties positions with respect to the dates

for disclosures pursuant to Rule 26(a)(2) are set forth in Section E, supra.

Plaintiffs expect to submit expert testimony by the following: Drs. George

Chauncey, Nancy F. Cott, Michael Lamb, Letitia Anne Peplau, Gary Segura,

Lawrence Korb, and Gen. Dennis Laich. With respect to Plaintiffs experts


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Chauncey, Cott, Lamb, Peplau, and Segura, Plaintiffs agree to submit declarations in

connection with the above-captioned action that are substantively identical to those

submitted in Windsor v. United States, No. 10-cv-08435 BSJ (S.D.N.Y.), and

Pedersen v. OPM, 3:10cv-1750 (VLB) (D. Conn.). Accordingly, Intervenor and

Federal Defendants agree that these experts will not be subject to deposition, provided

that their declarations are substantively identical to those submitted in Windsorand

Pedersen. The parties agree that the deposition transcripts of these experts taken in

connection with the Windsorcase may be used for all purposes in the above-captioned

action. Intervenor reserves its right to depose Plaintiffs experts Dr. Korb and Gen.

Laich.The Federal Defendants do not expect to submit expert testimony. The

Intervenor reserves its right to submit rebuttal expert testimony in response to any

testimony offered by Dr. Korb and/or Gen. Laich. It is Plaintiffs position that any

expert testimony that Intervenor intends to rely upon should be disclosed concurrently

with Plaintiffs expert disclosures, as indicated in Plaintiffs proposed schedule and

discussed in Section E, supra. It is Intervenors position that rebuttal expert reports

should be submitted thirty (30) days after Plaintiffs expert disclosures pursuant to

Fed. R. Civ. P. 26(a)(2)(D)(ii). Intervenor disagrees that it bears any burden this case

or that heightened scrutiny review is applicable to Plaintiffs challenge to DOMA

Section 3 and 38 U.S.C. 101(3), (31). See Section E, supra.

G. Discovery Limitations

The parties propose complying with the discovery limitations set forth in the

Federal Rules of Civil Procedure.

H. Protective Order

Plaintiffs do not anticipate a protective order will be needed unless information

of a highly personal nature is sought from the Plaintiffs such as sensitive medical or


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financial information. If such information is sought, the parties agree to negotiate a

protective order in good faith under Fed. R. Civ. P. 26(c).

I. Claims of Privilege, Attorney Work-Product, or Protection

The parties agree to return any privileged or work-product materials as soon as

it is discovered they were produced and the receiving party or parties is/are notified of

the disclosure by the producing party, without any need to show that production was

inadvertent. The parties agree to meet and confer in good faith concerning this and

other issues that arise in this area.

J. Magistrate Judge

The parties do not consent to designation of a magistrate judge to conduct allproceedings pursuant to General Order 05-07.

K. Additional Matters Under Local Rule 26-1

i. Complexity of the Case

Plaintiffs do not propose that any of the procedures from the Manual for

Complex Litigation be utilized.

ii. Motion Schedule

The parties positions with respect to the motion schedule are set forth in

Section E, supra.

iii. Settlement

The parties do not believe settlement in this case is possible because the

constitutionality of federal statutes is at issue. Accordingly, the parties request relief

from L.R. 16-15, because the Alternative Dispute Resolution process cannot result in

resolution of this case.

iv. Trial Estimate

If a trial is necessary, the parties estimate that trial would take no longer than 5

days, depending on the claims remaining in the case.


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v. Additional Parties

The parties do not presently expect any additional parties to be joined in this

action, but reserve the right to seek leave of the Court for the addition of parties.

vi. Trial Counsel

Plaintiffs Trial Counsel

Plaintiffs identify the following attorneys as trial counsel:

Christine P. Sun and Caren E. Short of Southern Poverty Law Center, and

Randall R. Lee, Adam P. Romero, Matthew D. Benedetto, and Eugene Marder of

Wilmer Cutler Pickering Hale and Dorr LLP.

Federal Defendants Trial CounselFederal Defendants trial counsel will be Jean Lin.

Intervenors Trial Counsel

Intervenor identifies the following attorneys as trial counsel:

Paul D. Clement, H. Christopher Bartolomucci, and Nicholas J. Nelson of

Bancroft PLLC, and Kerry W. Kircher, William Pittard, Christine Davenport, Todd B.

Tatelman, and Mary Beth Walker of the Office of General Counsel, U.S. House of

Representatives.

viii. Scheduling Conference

Although the parties do not request a scheduling conference before the Court,

the parties are available by telephone should the Court have questions about the above

report or the parties respective positions.

/

/

/

/

/

/


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DATED: August 17, 2012

Respectfully submitted,

SOUTHERN POVERTY LAW CENTER

WILMER CUTLER PICKERING HALEAND DORR LLP

BY: /s/ Randall R. Lee__________RANDALL R. LEE350 South Grand Avenue, Suite 2100Los Angeles, CA 90071(213) [email protected]

Attorneys for Plaintiffs Tracey Cooper-Harrisand Maggie Cooper-Harris

DEPARTMENT OF JUSTICE

BY: /s/Jean Lin__________JEAN LINSenior Trial CounselU.S. Dept of JusticeCivil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.

Washington, DC 20530(202) 514-3716

[email protected]

Attorneys for Federal Defendants

BANCROFT PLLC

BY: /s/ Paul D. ClementPaul D. Clement

Counsel for Intervenor-Defendant the

Bipartisan Legal Advisory Group of the U.S.House of Representatives


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CASE NO CV 12 887 CBM (AJWx)

The Court adopts the agreed upon matters set forth above, and adopts

[Plaintiffs] [Intervenors] discovery schedule.

SO ORDERED.

Date:

____________________________________

Hon. Consuelo B. MarshallUnited States District Judge


Documents

2:12-cv-00887 #51