Case4:10-cv-01564-CW Document161 Filed03/20/14 Page1 of 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 26 27 28

STUART F. DELERY Assistant Attorney General KATHLEEN R. HARTNETT Deputy Assistant Attorney General ARTHUR R. GOLDBERG (DC Bar No. 180661) Assistant Branch Director JEAN LIN (NY Bar No. 4074530) Senior Trial Counsel United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 (202) 514-3716 (202) 616-8470 (Fax) jean.lin@usdoj.gov Attorneys for Federal Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) MICHAEL DRAGOVICH, MICHAEL Case No. CV 4:10-01564-CW GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, DAVID BEERS, CHARLES COLE, RAFAEL V. DOMINGUEZ, FEDERAL DEFENDANTS REPLY and JOSE G. HERMOSILLO, on behalf of BRIEF REGARDING WINDSOR v. themselves and all others similarly situated, UNITED STATES AND Plaintiffs, HOLLINGSWORTH v. PERRY v. UNITED STATES DEPARTMENT OF THE TREASURY, JACOB LEW, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, INTERNAL REVENUE SERVICE, JOHN KOSKINEN, in his official capacity as Commissioner of the Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS, Defendants.

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page2 of 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 26 27 28

INTRODUCTION Federal Defendants demonstrated in their opening brief that Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), and Windsor v. United States, 133 S. Ct. 2675 (2013), have eliminated the fundamental premise of this Courts prior rulingthat not including domestic partners as eligible relatives in statemaintained long-term care (LTC) plans under 7702B(f) of the Internal Revenue Code, 26 U.S.C. 7702B(f), discriminates on the basis of sexual orientation in violation of the equal protection component of the Fifth Amendment. See Fed. Defs. Br. Regarding Windsor & Perry [Fed. Defs. Br.] [Dkt. 160-1] at 5-9. This Court previously found that failure to include domestic partners was a proxy for homosexuality because, even though both same-sex and opposite-sex couples can qualify as domestic partners under state law, same-sex couples are relegated to domestic partnership because they are barred from civil marriage by California law. Dragovich v. U.S. Dept of the Treasury, 872 F. Supp. 2d 944, 960 (N.D. Cal. 2012). As Federal Defendants have explained, following Perry and Windsor, same-sex couples can now freely marry in California and have their marriages federally recognized. Simply by marrying, the domestic partner plaintiffs can enroll the non-state employee plaintiff in the LTC plan maintained by the California Public Employees Retirement System (CalPERS) and receive the benefits they seek in this case. Plaintiffs acknowledge that many class member couples who are in domestic partnerships may choose to marry and thus become eligible for enrollment in CalPERSs LTC plan. Pls. Resp. Br. [Dkt. 159] at 5. They insist, however, that it is inconsistent with equal protection to require such couples to marry before they may access the CalPERS Plan. Id. However, Plaintiffs offer no good reason why this is so, given that marriage equality in California now means that same-sex and opposite-sex domestic partners have precisely the same ability to marry and thus enroll in CalPERSs LTC plan. Nor do Plaintiffs explain why, given that 7702B(f) no longer classifies on the basis of sexual orientation under this Courts prior reasoning, it nevertheless fails the highly deferential rational basis review. Federal Defendants have proffered many plausible policy reason[s] for 7702B(f)s non-inclusion of domestic partners, Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012), each of which is sufficient to immuniz[e] the congressional choice from constitutional challenge under rational basis
Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW Page 1

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page3 of 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 26 27 28

review, FCC v. Beach Commcns, Inc., 508 U.S. 307, 320 (1993). See Fed. Defs. Br. at 9-12. Not only is Congresss latitude at its apogee when drawing lines involving federal tax benefits, but also the Internal Revenue Codes distinction between marriagea well-accepted status throughout federal programsand domestic partnershipa state law creation available only in a handful of states with varying rightsreflects the type of legislative line-drawing that easily withstands constitutional scrutiny under rational basis review. See Heller v. Doe, 509 U.S. 312, 319-20 (1993); Dandrige v. Williams, 397 U.S. 471, 485 (1970). Although they now have a straightforward path to enrollment eligibilitymarryingPlaintiffs hypothesize that certain class members may face barriers to marriage for reasons unrelated to their sexual orientation, including the inability to pay the $100 license fee, the lack of capacity to marry, or access to a marriage-equality state (if they have retired and moved out of California). These hypothetical scenarios are beyond the scope of this lawsuit. This class action is not certified to include the classes that Plaintiffs now speculate may exist, nor have Plaintiffs shown, among other prerequisites for class certification, that the two domestic partner class representatives would be the proper representatives for such hypothetical classes. In fact, the record indicates that they are not. This class action seeks to redress claimed sexual orientation discrimination under 7702B(f). As a result of Windsor and Perry, and Plaintiffs consequent ability to marry freely, no discriminatory classification exists today under this Courts prior reasoning, and 7702B(f) satisfies rational basis review. Thus, Plaintiffs equal protection challenge fails, and judgment should be entered for the Federal Defendants. ARGUMENT I. THE INTERNAL REVENUE CODES DISTINCTION BETWEEN DOMESTIC PARTNERSHIP AND MARRIAGE SATISFIES RATIONAL BASIS REVIEW Plaintiffs brought this suit alleging that they were discriminated against based on sexual orientation for purposes of eligibility to enroll in CalPERSs LTC plan under 7702B(f) of the Internal Revenue Code. See 2d Am. Compl. 15 (Plaintiffs seek a determination that by excluding same-sex partners and spouses the federal provisions at issue violate the due process and equal protection guarantees of the federal constitution.); id. at 9 (section 7702B(f) excludes same-sex spouses and
Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW

Page 2

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page4 of 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 26 27 28

other legally recognized same-sex partners such as registered domestic partner); id. at 10 (same-sex domestic partners are excluded under the terms of state and federal statutory law). The Supreme Courts decisions in Windsor and Perry eliminated the basis for the challenged sexual orientation discrimination and now ensure that 7702B(f) operates neutrally toward all California couples. After those decisions, same-sex domestic partners, like opposite-sex domestic partners, may participate in CalPERSs LTC plan simply by marrying under California law. Under the Supreme Court and Ninth Circuit precedents upon which this Court previously relied prior to these recent decisionsVillage of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266-67 (1977), USDA v. Moreno, 413 U.S. 528, 529 (1973), and Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011)the fact that 7702B(f) now treats same-sex and opposite-sex couples precisely the same extinguishes the domestic partner plaintiffs equal protection challenge on the basis of sexual orientation. See Fed. Defs. Br. at 8-9. Plaintiffs have made no attempt to rebut Federal Defendants arguments. Instead of confronting the consequences of Windsor and Perry, they repeat their prior contentions that, historically, 7702B(f) discriminated on the basis of sexual orientation. See Pls. Resp. Br. at 8-12. Although Federal Defendants respectfully disagree with this Courts prior ruling that 7702B(f)s non-inclusion of domestic partners constituted sexual orientation discrimination,1 it is indisputable that following Windsor and Perry, no such discrimination exists under 7702B(f). California same-sex and oppositecouples are now treated exactly the same for purposes of the relevant state and federal laws. In light of this new reality, Plaintiffs now claim that the Internal Revenue Code violates equal protection by treating married couples differently than domestic partners (presumably regardless of their sexual orientation).2 See Pls. Resp. Br. at 5-6, 13-14. According to Plaintiffs, the domestic partner
Federal Defendants are not rearguing this point here because, notwithstanding that the district courts judgment concerning the domestic partner plaintiffs has been vacated by the Court of Appeals (see Oct. 28, 2013 Order [Dkt. 21], No. 12-16628 (9th Cir.)), this Court has limited the briefing to the import of subsequent legal developments on this Courts judgment concerning domestic partnership Plaintiffs. Nov. 26, 2013 Order [Dkt. 148]. Federal Defendants do, however, preserve their objection to this prior ruling for purposes of any subsequent appeal. Following Windsor, the Internal Revenue Service (IRS) issued Revenue Ruling 2013-17, 2013-38 I.R.B. 201, 2013 WL 4607583 (Aug. 30, 2013), which provides that [f]or Federal tax purposes, the term marriage does not Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW
2 1

Page 3

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page5 of 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 26 27 28

class members should not be required to marry in order to access CalPERSs LTC plan because they have already taken the step of registering as domestic partners; because California law does not require them to marry in order to enroll in CalPERSs LTC plan or to gain all the benefits of marriage under state law;3 and because four other states have enacted laws that converted same-sex civil unions and domestic partnerships into marriages. See id. at 5-6. In Plaintiffs view, the federal governments distinction between marriage and domestic partnership is merely a formulaic exaltation of form over substance, id. at 6, and must be rejected as a constitutional matter. Plaintiffs arguments, however, are unpersuasive. To begin with, Plaintiffs observation that four states have enacted laws converting domestic partnerships or civil unions into marriages highlights that California has not enacted such a law, but currently still distinguishes between domestic

include domestic partnerships, civil unions, or other similar formal relationships recognized under state law that are not denominated as a marriage under that states law, and that this interpretation is without regard to whether individuals who have entered into such relationships are of the opposite sex or the same sex. Plaintiffs argue that Revenue Ruling 2013-17 failed to satisfy the notice-and-comment requirements of the Administrative Procedure Act (APA). Pls. Resp. Br. at 15. The APAs rulemaking procedures, however, are inapplicable to interpretative rules such as Rev. Rul. 2013-17, see 5 U.S.C. 553(b)(A). Moreover, Revenue Ruling 2013-17 does not have the force and effect of Treasury Department Regulations, but was published to provide precedents to be used in the disposition of other cases, and may be cited and relied upon for that purpose. 26 C.F.R. 601.601(d)(2)(v)(d). The IRSs interpretation therefore is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), as applied in United States v. Mead, 533 U.S. 228 (2001). Omohundro v. United States, 300 F.3d 1065, 1068 (9th Cir. 2002) (applying Skidmore deference to a Revenue Ruling); see Tualatin Valley Builders Supply, Inc. v. United States, 522 F.3d 937, 941-942 (9th Cir. 2008) (Revenue Procedure entitled to significant deference). The IRS has, for decades, recognized the marital status of individuals as determined under state law in the administration of the federal income tax laws. Rev. Rul. 58-66, 1958-1 C.B. 60, 1958 WL 10653 (1958). As discussed herein, California law specifically distinguishes domestic partnerships from marriages, compare Cal. Fam. Code 297 with id. 300, and the IRS has consistently made the same distinction in administering the federal tax laws, see Fed. Defs. Oppn to Pls. MSJ and Cross MSJ [Dkt. 116] at 20 (countering Plaintiffs argument that a 2011 information letter from an IRS Senior Technician Reviewer regarding Revenue Ruling 58-66 on common law marriages constituted an IRS interpretation that couples forming civil unions in Illinois are entitled to joint filing status). The IRS interpretation in Revenue Ruling 2013-17 is, therefore, the most natural and consistent reading of 7702B(f) and other provisions of the Internal Revenue Code that turn on the marital status of the affected taxpayer; it is certainly not an unreasonable statutory construction, Pls. Resp. Br. at 14. Federal Defendants previously noted that California law posed an independent bar to Plaintiffs eligibility in CalPERSs LTC plan because California Government Code 21661 limited eligibility for CalPERSs LTC plan to four categories of relatives, which did not include domestic partners. The California legislature has amended California Government Code 21661, which lists domestic partners as an additional category of eligible relatives, [e]xcept as prohibited by the Internal Revenue Code, including, but not limited to, Section 7702B(f)(2) of Title 26 of the United States Code, or any other authority that governs eligibility for a federally qualified state long-term care plan. In light of this change, California Government Code 21661 is no longer a bar to the domestic partner plaintiffs access to CalPERSs LTC plan. Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW
3

Page 4

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page6 of 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 26 27 28

partnerships and marriages as a matter of state law. See Cal. Fam. Code 297 (domestic partnership); id. 300 (marriage); see also In re Marriage Cases, 183 P.3d 384, 416 n.24 (Cal. 2008) (discussing the differences between domestic partnership and marriage). Contrary to Plaintiffs arguments, the designation of marriage is not immaterial as a matter of state (or federal) law. See Perry v. Brown, 671 F.3d 1052, 1078 (9th Cir. 2012) (We need consider only the many ways in which we encounter the word marriage in our daily lives and understand it, consciously or not, to convey a sense of significance.), revd on grounds by Perry, 133 S. Ct. 2652. Of course, if and when California enacts a law converting domestic partnerships into marriages, then the equal protection challenge to 7702B(f) would be moot because the domestic partner plaintiffs would be married under state law, and therefore recognized as such under federal law. See Rev. Rul. 2013-17. Until then, however, there is no support for Plaintiffs contention that domestic partnership must, as a constitutional matter, be treated synonymously with marriage, or that interpreting spouse not to include domestic partners as a matter of federal law is an unreasonable statutory construction. Pls. Resp. Br. at 14. Moreover, contrary to Plaintiffs argument, the fact that California law generally accords domestic partners the same rights and benefits as married couples does not call into question the rationality of not including domestic partners in 7702B(f). Under rational basis review, Congress need not conform the federal tax code to the idiosyncrasies of state laws, including Californias domestic partnership law. See Armour, 132 S. Ct. at 2083 (The Constitution does not require the [government] to draw the perfect line nor even to draw a line superior to some other line it might have drawn.). Whereas there are only a few states that treat domestic partnerships or civil unions substantially the same as marriages,4 Congress has long based qualification for federal benefits on marital status without providing like benefits for other types of household relationships. See, e.g., 5 U.S.C. 8901(5) (defining member of family as the spouse of an employee or annuitant and an unmarried dependent child). Indeed, there are more than 1,000 federal statutory provisions in which marital status is a factor

They include Delaware (Del. Code Ann. tit. 13, 212, 214), Hawaii (Haw. Rev. Stat. Ann. 572B-9), Illinois (750 Ill. Comp. Stat. Ann. 75/20), Nevada (Nev. Rev. Stat. Ann. 122A.200), New Jersey (N.J. Stat. Ann. 37:1-31, 37:1-32), Oregon (Or. Rev. Stat. 106.340), and Rhode Island (R.I. Gen. Laws 15-3.1-6, 15-3.1-7). Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW

Page 5

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page7 of 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 26 27 28

in determining benefits, rights, privileges and responsibilities. See Defense of Marriage Act: Update to Prior Report, General Accounting Office, GAO-04-353R Defense of Marriage Act, available at http://www.gao.gov/assets/100/92441.pdf. Some are contained in the federal tax code, see, e.g., 26 U.S.C. 529(e)(2)(B); id. 170(g)(3); id. 2(b)(3)(B)(i), and some predate any discussion of same-sex domestic partnerships, see, e.g., 26 U.S.C. 1-2 (1969), currently codified at 26 U.S.C. 2(b)(3)(B)(i); Pub. L. No. 86-779, 7, 74 Stat. 1002 (1960), currently codified at 26 U.S.C. 170(g)(3). Drawing the line at marriage is a long-accepted and rational basis for ensuring national uniformity in the administration of the federal tax code. See Rev. Rul. 2013-17 (uniform nationwide rules are essential for efficient and fair tax administration.). Even assuming that domestic partners in California are treated nearly identically to married couples in California (aside from the non-trivial difference in name), the federal government is not constitutionally compelled to treat the two groups equally for purposes of federal law under the applicable rational basis review. As the Supreme Court has made clear, [t]he task of classifying persons for . . . benefits . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line. Fitzgerald v. Racing Assn of C. Iowa, 539 U.S. 103, 108-09 (2003) (quotation marks and citation omitted); see also Heller, 509 U.S. at 319-21 (courts are compelled under rational-basis review to accept a legislatures generalizations even when there is an imperfect fit between means and ends). [T]he fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. Fitzgerald, 539 U.S. at 108-09 (quotation marks and citation omitted); see also Russell v. Hug, 275 F.3d 812, 820 (9th Cir. 2002) (rejecting as irrelevant plaintiffs individual circumstances because to consider them in evaluating legislative judgment under rational basis review would ratchet up our standard of review from rational basis toward strict scrutiny). Not only do the domestic partner plaintiffs have no constitutional right to be treated as married before they actually marry, but in this case, the only two domestic partner class representatives in this case do intend to marry. See Joint Decl. of Rafael V. Dominguez & Jose G. Hermosillo in Supp. of Pls. MSJ [Dkt. 111-16], 4-5 (explaining that they became domestic partners because at the time,
Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW Page 6

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page8 of 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 26 27 28

becoming registered domestic partners was the only legal recognition available to [them] and because they wanted to have the same basic civil rights and legal protections under state law as a married couple); id. at 15 (explaining that they did not marry in the brief period in 2008 during which gay and lesbian couples in California were permitted to marry because it seemed very rushed and it wasnt even certain what would happen to the couples who did get married if Proposition 8 passed); id. (stating that they decided to wait until everything was more settled to marry); id., 16 (stating that after the passage of Proposition 8, they were not permitted to marry and were back to having registered domestic partnership as the only legal status available to [them]). Indeed, as a result of Perry and Windsor, Plaintiffs Dominguez and Hermosillo can marry and have their marriage recognized by the State of California and the federal government. Once they marry, they will be eligible to enroll in CalPERSs LTC plan, obtaining the benefit they seek in this case. In short, Perry and Windsor have fundamentally changed the applicable legal landscape and have provided these Plaintiffs with a ready path to the benefit they seekprecisely the same path available to opposite-sex domestic partners.5 Therefore, their equal protection challenge must fail. II. PLAINTIFFS HYPOTHESIZED NEW CLASSES, INCLUDING THOSE UNABLE TO MARRY OR WHO SEEK TO REDRESS PAST INJURIES, ARE BEYOND THE SCOPE OF THIS SUIT Plaintiffs argue that the return of marriage equality to California does not extinguish the harms flowing from the history of discrimination. Pls. Resp. Br. at 7-8. Specifically, in light of the fact that California same-sex partners can now marry and obtain the benefit they seek in this lawsuit, Plaintiffs speculate that there may be domestic partner class members who do not want to marry or who face barriers to marriage today, including those who may have retired, moved to a state without marriage equality, and are unable to travel back to California to marry; those who no longer have the capacity to

If Plaintiffs Dominguez and Hermosillo no longer intend to marry, despite their intent to enroll the non-state employee in CalPERSs LTC plan, they would need to amend the complaint to reflect the changed factual circumstances and assert the different claim that the federal tax code irrationally treats domestic partners differently from married couples, even in the absence of the basis for sexual orientation discrimination previously found by this Court. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (It is a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.) (quotation marks and citation omitted). Such a challenge, however, would still fail under rational basis review. Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW

Page 7

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page9 of 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 26 27 28

consent to marry or to appear before a county clerk in person (assuming that they do not qualify for a waiver of the personal-appearance requirement, see Cal. Fam. Code 426); and those who cannot pay the $100 license fee. Id. Plaintiffs also assert that marriage equality has come too late, because LTC plans are likely to be more expensive today as class members have grown older. Id. at 15. Plaintiffs request that the Court hold a hearing to determine how to remedy these newly alleged past injuries due to class members prior inability to enroll in CalPERSs LTC plan during the four different periods in which different policies with different terms were available: LTC1 (between 1995 and 2002), LTC2 (between 2003 and 2004), LTC3 (between 2005 and 2008), and LTC4 (after December 2013). See id. Plaintiffs arguments ignore the crucial fact that these newly hypothesized classes of individuals are not within the scope of this lawsuit. A class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quotation marks and citations omitted). In order to justify that departure, Federal Rule of Civil Procedure 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. Id. Rule 23(a)(3) requires that a class can be maintained only if the claims or defenses of the representative parties are typical of the claims or defenses of the class, and Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. As the Supreme Court put it, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. WalMart Stores, 131 S. Ct. at 2550 (quotation marks and citations omitted). As explained above, the record makes clear that Plaintiffs Dominguez and Hermosillo intend to marry. Any class members who do not intend to do so, therefore, have distinct interests from the class representatives, and are not properly within the scope of this class action. The same is true with respect to class members who hypothetically are unable to marry today. This Court previously certified a class encompassing same-sex domestic partners of state employees who were precluded by California law from marrying and who want to enroll the non-state employee domestic partners in CalPERSs LTC plan. Plaintiffs Dominguez and Hermosillo represent such domestic partners, and the record reflects that they reside in California and are otherwise able to marry.
Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW Page 8

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page10 of 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

See 2d Am. Compl. 58; Joint Decl. of Dominguez & Hermosillo, 4-5, 15, 16. Again, Rule 23(a), which sets forth four prerequisites for a class actionnumerosity, commonality, typicality, and adequate representationeffectively limit[s] the class claims to those fairly encompassed by the named plaintiffs claims. Wal-Mart Stores, 131 S. Ct. at 2550. No class representatives exist in this case for the hypothetical classes of individuals who allegedly are unable to marry; nor has the requisite rigorous analysis been performed to determine whether the prerequisites of Rule 23(a) have been satisfied for purposes of class certification. Id. at 2551 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). Because actual, not presumed, conformance with Rule 23(a) is indispensable, Falcon, 457 U.S. at 160, the hypothetical classes are not before this Court. Equally improper is Plaintiffs request that this Court hold a hearing to delineate the domestic partner class based on their supposed past injuries due to being denied access to CalPERSs LTC plan dating back to 1995which incidentally is even before California recognized domestic partnerships (in 1999), gave domestic partners the same rights as married couples (in 2006) or added domestic partners as eligible relatives subject to 7702B(f) (in 2014). Plaintiffs may not change the nature of the class action that they have brought and maintained, for two reasons. First, as is fairly encompassed by the class representatives claim, this class action seeks only prospective injunctive relief to allow the domestic partners of state employees to enroll in CalPERSs LTC plan. Although Plaintiffs Dominguez and Hermosillo stated that they planned to apply in the future, they had not attempted to apply prior to this suit. See Joint Decl. of Dominguez & Hermosillo, 10. They stated that they considered and decided not to apply for the LTC plan in 2008 due to the expense of having a new home, and that they did not know that Hermosillo was ineligible until learning about this lawsuit in 2011.6 Id. 10, 11. In fact, until recently, they could not have applied, for reasons entirely unrelated to their sexual orientationCalPERS had closed LTC plan enrollment from 2008 until December 2013. See News, CalPERS Long-Term Care Program Opens Statewide,
6

26 27 28

Dominguez and Hermosillo joined this case only as of the Second Amended Complaint because Reide Garnett, the only non-state employee domestic partner class representative in the First Amendment Complaint, was independently eligible to apply for CalPERSs LTC plan, given her status as a public school employee, see First Am. Compl. 29.

Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW

Page 9

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page11 of 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 26 27 28

http://www.calpers.ca.gov/index.jsp?bc=/about/newsroom/news/long-term-care.xml. Plaintiffs claims of past injuries to class members, therefore, are outside the scope of this class action. Second, Plaintiffs moved for, and the Court certified, a class pursuant to Federal Rule of Civil Procedure 23(b)(2). July 15, 2011 Order [Dkt. 92] at 2. The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warrantedthe notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. Wal-Mart Stores, 131 S. Ct. at 2557 (quotation marks and citations omitted and emphasis added). In contrast with a Rule 23(b)(3) class, which allows class certification in a much wider set of circumstances but with greater procedural protections: Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. *** Permitting the combination of individualized and classwide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatmentthat individual adjudications would be impossible or unworkable, as in a (b)(1) class, or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class. Id. at 2558. Because the instant (b)(2) class action necessarily seeks an indivisible injunction benefitting all its members at once, id., and because what is fairly encompassed by the class representatives claim, id. at 2550, is a request for the prospective relief of being able to enroll in CalPERSs LTC plan, Plaintiffs request for individualized determinations as to the appropriate relief for different categories of hypothetical class members is entirely inappropriate. See Wal-Mart Stores, 131 S. Ct. at 2557 (explaining that in a (b)(2) class, the common contention . . . must be of such a nature that it is capable of classwide resolutionwhich means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke) (emphasis added). CONCLUSION For the foregoing reasons, and the reasons stated in Federal Defendants opening brief, this Court should grant judgment in Federal Defendants favor.
Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW

Page 10

Case4:10-cv-01564-CW Document161 Filed03/20/14 Page12 of 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 26 27 28

Date: March 20, 2014

Respectfully Submitted, STUART F. DELERY Assistant Attorney General KATHLEEN R. HARTNETT Deputy Assistant Attorney General ARTHUR R. GOLDBERG Assistant Branch Director __/s/ Jean Lin___________ JEAN LIN Senior Trial Counsel U.S. Department of Justice, Civil Div. Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 (202) 514-3716 (202) 616-8470 (Fax) jean.lin@usdoj.gov Attorneys for Federal Defendants

Fed. Defs Reply Regarding Windsor and Perry, Case No. CV 4:10-01564-CW

Page 11