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William C. McNeill, III, State Bar No. 64392 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227 LEGAL AID SOCIETYEMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 Email: wmcneill@las-elc.org ccenter@las-elc.org ekristen@las-elc.org Daniel S. Mason, State Bar No. 54065 Patrick Clayton, State Bar No. 240191 Zelle Hofmann Voelbel & Mason LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Telephone: (415) 693-0700 Facsimile: (415) 693-0770 Email: pclayton@zelle.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) MICHAEL DRAGOVICH, MICHAEL GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, DAVID BEERS, CHARLES COLE, RAFAEL V. DOMINGUEZ, and JOSE G. HERMOSILLO, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE TREASURY, TIMOTHY GEITHNER, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, INTERNAL REVENUE SERVICE, DOUGLAS SHULMAN, 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. Case No. CV 4:10-01564-CW ADMINISTRATIVE MOTION OF PLAINTIFF CLASS FOR LEAVE TO FILE SURREPLY AND SURREPLY Local Rule 7-11

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MOTION FOR ADMINISTRATIVE RELIEF LEAVE TO FILE CONCISE SURREPLY The Federal Defendants reply brief responding to the submission of the Plaintiff Class raises new legal issues including issues related to the class representatives and the scope of the certified class. See, e.g., Federal Defendants Reply, pp. 7-9. Plaintiffs seek leave to file this concise reply brief. Counsel for plaintiffs have advised counsel for the Federal Defendants and counsel for the State Defendants of this motion. The State Defendants do not object. The Federal Defendants requested and received a draft, and do not object. Plaintiffs respectfully request that the Court grant this administrative motion, and file the surreply.

Respectfully submitted, LEGAL AID SOCIETY EMPLOYMENT LAW CENTER March 31, 2012 By: /s/Claudia Center Counsel for Plaintiffs

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It is so ordered.

Dated:

By: United States District Court

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SURREPLY BRIEF The Federal Defendants mischaracterize Plaintiffs argument. Plaintiffs do not now claim that the Internal Revenue Code violates equal protection by treating married couples differently than domestic partners (presumably regardless of their sexual orientation). Federal Defendants Reply Brief, p. 3; see also id. at 1 ( 7702B(f) no longer classifies on the basis of sexual orientation). Rather, for all the reasons stated in their responsive brief, Plaintiffs contend that the Federal Defendants continue to discriminate on the basis of sexual orientation in excluding the registered domestic class members. The change in legal landscape ameliorating but not eliminating the burdensome effects of discrimination does not convert a previously unconstitutional exclusion into lawful line-drawing. Unchanged is the history of anti-gay animus which motivated the unconstitutional exclusion. As this Court recognized, gays and lesbians have been subjected to a history of discrimination; this history animated the exclusion challenged herein, and generated the two-tiered legal system that relegated gay and lesbian couples on the basis of sexual orientation to registered domestic partnership in California: Laws limiting same-sex couples to registered domestic partnerships, while precluding them from marriage, turn on sexual orientation, and the availability of registered domestic partnership to different-sex couples does not negate the burdens faced by same-sex registered domestic partners. [I]n applying rational basis review to Plaintiffs equal protection challenge to 7702B(f), as with 3 of the DOMA, the Court considers evidence of anti-gay animus and the existence of any other rational basis for 7702B(f)'s exclusion of registered domestic partners. [N]one of the explanations put forth by Federal Defendants satisfies the rational basis test. Because Congress's restriction on state-maintained long-term care plans lacks any rational relationship to a legitimate government interest, but rather appears to be motivated by antigay animus, the exclusion of registered domestic partners of public employees from 7702B(f)'s list of individuals eligible to enroll in state-maintained long-term care plans violates the Constitution's equal protection guarantee. Dragovich v. U.S. Dept. of Treasury, 872 F.Supp.2d 944, 961-64 (N.D. Cal. 2012). The authorities cited by the Federal Defendants on page 3 of their reply do not support a finding that the exclusion is now constitutional. In Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67 (1977), the Supreme Court reviewed the sensitive

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inquiry into whether an invidious purpose was a motivating factor, an inquiry that includes such circumstantial and direct evidence of intent as may be available, and the impact of the official action. See Dragovich, 872 F. Supp.2d at 962 (The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes ... The specific sequence of events leading up to the challenged decision may also shed some light on the decisionmaker's purposes.) (quoting Arlington Heights). In U.S. Dept of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), the Supreme Court held that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. In Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011), the Ninth Circuit held that when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular. See also Dragovich, 872 F. Supp.2d at 961 (quoting same). These authorities underscore the Courts 2012 judgment. That the impact of the discrimination experienced by the gay and lesbian class members here has been lessened following the conclusion of the Perry litigation does not somehow sanitize the original state action. None of the cases cited suggest such an outcome. As Plaintiffs explained in their responsive brief, the continued exclusion of the registered domestic partner class members from section 7702(b)(f) imposes unnecessary harms and burdens on the basis of sexual orientation. Contrary to the Federal Defendants, see Reply Brief at 2 (describing barriers as unrelated to their sexual orientation), the unnecessary harms and burdens experienced by the registered domestic partner class members derive directly from sexual orientation. This is not a fact pattern regarding the task of classifying persons for benefits without reference to sexual orientation. Cf. Reply Brief at 6. But for the history of discrimination on the basis of sexual orientation, the registered domestic partner class members would not be excluded from the CalPERS Long-Term Care Program, would not have a history of being relegated to registered domestic partnership, and would not be uniquely required by the Federal Defendants to perfect a subsequent second form of legal relationship recognition. As Plaintiffs have explained, the exclusion is subject to heightened scrutiny. SmithKline Beecham Corp. v.

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Abbott Laboratories, 740 F.3d 471, 483 (2014). Moreover, Plaintiffs are not proposing a new certified class, and are not required to identify new class representatives. This class has been certified under Rule 23(b)(2) since July 15, 2011. The action alleges that the defendants have acted on grounds that apply generally to the class, and seeks injunctive and declaratory relief. See Wal-Mart v. Dukes, 131 S. Ct. 2541, 254849, 2557 (2011); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011). As this Court has already concluded, the named Plaintiffs including the named registered domestic partner Plaintiffs are adequate class representatives. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (under the permissive standards of Rule 23(a)(3), the representative's claims are typical if they are reasonably co-extensive with those of absent class members; they need not be substantially identical). Here, all of the registered domestic partner class members are subject to the Federal Defendants exclusion. All of the registered domestic partner class members, including the named representatives, are excluded from the CalPERS Long-Term Care Program unless they marry. See id. (The test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.) (citation omitted). While some class members may find the unconstitutional exclusion more or less onerous, depending upon their willingness and/or ability to marry post-Perry, all are subject. 1 Further, by obtaining class certification, the plaintiffs including the named Plaintiffs who are registered domestic partners have preserved the controversy for review. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991); Sosna v. Iowa, 419 U.S. 393, 402 (1975); see also Robidoux v. Celani, 987 F.2d 931, 938-39 (2d Cir. 1993) (fact that class representative received their The Federal Defendants misstate the Joint Declaration of Dominguez and Hermosillo. See Reply Brief, at 6, 8 (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. [T]he record makes clear that Plaintiffs Dominguez and Hermosillo intend to marry.) (emphasis in original). This is not accurate. The declaration states the basis for Dominguez and Hermosillo entering into a registered domestic partnership with the state of California in June of 2007, including a statement that during the marriage equality window in 2008 they decided to wait. The declaration does not include a statement regarding the couples intent to marry in the future.
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unlawfully delayed benefits after the lawsuit was commenced did not moot claims of unnamed members of class); Chappell by Savage v. Bradley, 834 F. Supp. 1030, 1032 n.3 (N.D. Ill 1993) (While Chappells case is moot, nevertheless, he may continue as a class representative because he was a member of the class on the date the class was certified. ) (citing Sosna v. Iowa, 419 U.S. 393, 402 (1975)). Finally, the potential relief sought by the class for its past exclusion from the CalPERS Long-Term Care Program would not be monetary damages, but the natural consequence of injunctive and declaratory relief. See Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d 364, 369 (7th Cir. 2012); U.S. v. Louisiana, 380 U.S. 145, 154 (1965) (We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.); Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976) (Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.) (citing Milliken v. Bradley, 418 U.S. 717, 744 (1974) and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971)). A court of equity has traditionally had the power to fashion any remedy deemed necessary and appropriate to do justice in the particular case. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs . U.S. v. Price, 688 F.2d 204, 211 (3d Cir. 1982) (quoting from Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)). Plaintiffs seek no individualized monetary relief that is inconsistent with their certified class under Rule 23(b)(2). Respectfully submitted, LEGAL AID SOCIETY EMPLOYMENT LAW CENTER March 31, 2012 By: /s/Claudia Center Counsel for Plaintiffs

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