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PAUL D. CLEMENT, ESQ. (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI, ESQ. (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN, ESQ. (MI Bar P66901) cdugan@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) )

KAREN GOLINSKI,

Case No. 3:10-cv-0257-JSW Hearing: Sept. 16, 2011 at 9:00 a.m. INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES

Plaintiff,

vs.

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) UNITED STATES OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) __________________________________________)

OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

The Bipartisan Legal Advisory Group of the U.S. House of Representatives (the House) hereby opposes Plaintiff Karen Golinskis motion for summary judgment. Because the Houses pending motion to dismiss should be granted, Plaintiffs motion for summary judgment should be denied as moot. In the alternative, the Court should deny Plaintiffs summary

judgment motion on the ground that a ruling on the merits of the motion would be premature at this early stage of this case. See Fed. R. Civ. P. 56(d); Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003) (in the event of an early-filed summary judgment motion, relief under Rule 56(d) should be granted fairly freely). BACKGROUND This Court granted the Houses motion to intervene just last month, on June 3, 2011. ECF No. 116. On that same day, the House filed its motion to dismiss and supporting brief. ECF No. 119. The Court has not yet ruled on the Houses motion. Nor could the Court have done so before now, since the Houses reply brief in support of its motion was not due until today, July 15, 2011. In response to the Houses motion to dismiss, Plaintiff filed an administrative motion that sought leave to file an over-length brief that would both oppose the Houses motion to dismiss and support a motion for summary judgment that Plaintiff stated she would file along with her opposition to the Houses motion to dismiss. See Plaintiffs Admin. Mot. Regarding Opps. to 1 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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Mots. to Dismiss and Anticipated Mot. for Summ. J. at 2, ECF No. 121 (plaintiff anticipates filing a motion for summary judgment at the same time as her oppositions to the motions to dismiss). The House opposed Plaintiffs administrative motion insofar as it sought to combine her opposition to the Houses motion to dismiss with a brief in support of summary judgment. See Houses Oppn to Pl.s Admin. Mot., ECF No. 127. The House noted that a ruling on a
summary judgment motion would be clearly premature at this point, as the House was granted leave to intervene only ten days ago, and the House has not yet had the opportunity to engage in discovery. Id. at 4 (record citation omitted). The House also cited the Advisory Committees note to Rule 56: [a]lthough the rule allows a motion for summary judgment to be filed at the

commencement of an action, in many cases the motion will be premature until the nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had. Id. (quoting Fed. R. Civ. P. 56, Advisory Committees Note (2010)). The House further explained that it intends to depose Plaintiffs experts, and it is clearly premature to require the House to respond to her summary judgment motion until it has completed those depositions. Id. at 5.

On June 15, 2011, this Court denied Plaintiffs administrative motion to the extent that she sought leave to consolidate a summary judgment brief with an opposition to the Houses motion to dismiss, stating that her motion is denied as premature. Order at 2, ECF No. 128. On June 24, 2011, Plaintiff filed her opposition to the Houses motion to dismiss. See Pl.s Mem. in Oppn to Mots. to Dismiss (Pl.s Oppn), ECF No. 133. And, despite the clear import of this Courts Order of June 15, 2011, she proceeded to attach to her opposition five expert affidavits. See ECF Nos. 134-138. She also proceeded to liberally cite and rely upon those summary judgment materials throughout her opposition. See Pl.s Oppn 10-11, 12 & n.7, 2 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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13 n.10, 15, 23, 25 n.21-22. On July 1, 2011, without waiting for a ruling or even the completion of briefing on the Houses motion to dismiss, and before the House could complete its discovery, Plaintiff filed her motion for summary judgment. See Pl.s Mot. for Summ. J., ECF No. 142. Like her opposition to the Houses motion to dismiss, her summary judgment motion relies upon the affidavits of her five experts. See id. at pg. i (Ms. Golinskis motion is based on . . . [inter alia] the declarations of Gary Segura, Michael Lamb, Nancy Cott, Letitia Anne Peplau, and George Chauncey filed on June 24, 2011 (Dkt. 134-38)). Over the last month, the House has taken the depositions of each of Plaintiffs five expert witnesses. Each of these depositions required significant preparation time as well as travel time from Washington, D.C. to New York or Boston. The House took these depositions in connection with two other pending DOMA cases, Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-01750 (D. Conn.) and Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.). Counsel for Plaintiff has indicated that they are amenable to the use of those depositions in this case, to avoid the need to re-depose the five witnesses. The House completed its depositions of the five witnesses just three days ago, on July 12, 2011. The House deposed Professor Peplau on June 17, Professor Lamb on June 24, Professor Cott on July 6, Professor Segura on July 8, and Professor Chauncey on July 12. To date, the House has received the transcripts of the Peplau and Lamb depositions only. And neither of those witnesses has certified their transcripts. ARGUMENT Plaintiffs motion for summary judgment should be denied, for either of two reasons. First, Plaintiffs summary judgment motion can, and should, be denied on the ground that the Houses motion to dismiss should be granted. Briefing on the Houses motion to dismiss is 3 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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now complete, and the motion is ripe for a ruling. As a matter of logic and proper civil procedure, this Court should rule on the Houses motion before it considers, let alone rules upon, the merits of Plaintiffs summary judgment motion, and the Court should find the Houses motion to be meritorious. If the Court grants the Houses motion to dismiss, as it should do, the

Court can and should deny Plaintiffs motion for summary judgment, with prejudice, on the ground that it is moot. Second, if the Court does not grant the Houses motion to dismiss or decides to defer consideration of that motion, the Court should nevertheless deny Plaintiffs motion for summary judgment without prejudice or else hold that motion in abeyance, pending the completion of discovery in this case. See Fed. R. Civ. P. 56(d) (formerly designated as Rule 56(f)); see also Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (holding a Courts authority to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.). This Courts Order of June 15, 2011, ECF No. 128, recognized that a ruling on the merits of a summary judgment motion would be premature given the posture of this case. This Court was correct. Both the Supreme Court and the Ninth Circuit have recognized that Rule 56(d) requires that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). In Burlington N. Santa Fe R.R. Co., the plaintiff brought a summary judgment motion less than a month after filing suit. 323 F.3d at 773. The Ninth Circuit explained that where a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56(f) motion fairly freely. Id. Indeed, a Rule 56(f)-based 4 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course unless the non-moving party has not diligently pursued discovery of the evidence. Id. at 773-74 (quoting Wichita Falls Office Assoc. v. Banc One Corp., 978 F.2d 915, 919 n.4 (5th Cir. 1992)); see also Ladd v. Law & Tech. Press, 762 F.2d 809, 811 (9th Cir. 1985) (The party opposing summary judgment must have an opportunity to respond to the motion, which includes time for discovery of facts essential to its opposition.). Here, Plaintiffs motion for summary judgment should be denied without prejudice or held in abeyance pursuant to Rule 56(d). Plaintiff would have this Court end this case with a hasty summary judgment even though the case has barely begun. The House was allowed to intervene in this case only last month, on June 3. Plaintiff filed her summary judgment motion less than a month after the House joined this case, on July 1. Plaintiff did so without even waiting for a ruling on the Houses pending motion to dismiss. Indeed, Plaintiff moved for summary judgment even before the briefing on the Houses motion was completed, which occurred today, July 15. The House has been diligently pursuing relevant discovery in this case. Plaintiffs

summary judgment motion heavily relies upon the expert declarations of witnesses Segura, Lamb, Cott, Peplau, and Chauncey in support of her arguments that homosexuals are a suspect class, that DOMA is subject to heightened scrutiny, and other arguments. The House has deposed each of these witnesses since it joined this case on June 3, but the last of those depositions, the deposition of Mr. Chauncey, occurred only three days ago, on July 12. The House has not yet received the transcripts of the Cott, Segura, and Chauncey depositions. And the Peplau and Lamb transcripts have not yet been certified by the witnesses. The House cannot properly respond to Plaintiffs reliance on these experts without adequate time to digest the 5 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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evidence generated and suggested by these depositions. As she states in her summary judgment motion, Plaintiff has offered to stipulate to the admissibility of the[se] expert depositions . . . so long as [the House] and defendants agreed not to re-depose the experts here. Pl.s Mot. for Summ. J. at 19, ECF No. 142. The House is prepared to so stipulate. Furthermore, having now deposed Plaintiffs expert witnesses, the House may wish to identify one or more expert witnesses of its own. The Court should not rule on Plaintiffs summary judgment motion (except to deny it) until the House has had time to consider and decide whether it will identify its own expert witnesses. In addition, the House intends to serve written discovery requests on Plaintiff next week. The House intends to serve interrogatories, requests for admission, and requests for the production of documents under Rules 26, 33, 34, and 36. To this point in the litigation, the Houses discovery efforts have focused on deposing Plaintiffs five experts, the last of which was deposed three days ago. The House has also been focused upon briefing its motion to dismiss and preparing a response to Plaintiffs premature motion for summary judgment. These efforts concluded today. Plaintiff cannot be heard to object that discovery requests served on her next week are untimely. A defendant should not be faulted for deferring preparation of its written discovery requests until after it has finished briefing its motion to dismiss and responded to an early-filed summary judgment motion. The Houses written discovery requests will seek information, admissions, and documents relating to, among other things, the contentions of Plaintiff and her expert witnesses that homosexuals are a suspect class, including subsidiary contentions (e.g., that homosexuals lack political power and that homosexuality is an immutable characteristic). Whether

homosexuals are a suspect class is central to Plaintiffs claim on summary judgment that DOMA 6 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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is subject to heightened scrutiny. The House will also seek proof that Plaintiff was and remains lawfully married. Without such proof, she lacks standing to challenge DOMA under binding circuit precedent. See Smelt v. Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006). Plaintiff failed to submit with her motion for summary judgment any documentary evidence, such as a valid marriage license, that would prove she is married under California law. This is a material fact that Plaintiff must establish to support her legal claim. Allegations in a complaint do not suffice for purposes of a summary judgment motion. The Houses forthcoming discovery will also probe whether Plaintiff has suffered an injury-in-fact sufficient to confer standing. Plaintiff claims injury from her inability to include Amy Cunninghis to her health insurance, the Federal Employees Health Benefits Program (FEHBP). Thus, according to Chief Judge Kozinski, sitting as an administrative hearing officer, Golinski pays out of pocket to purchase additional health insurance for her spouse. In re Golinski, 587 F.3d 901, 904 (9th Cir. 2009) (Kozinski, C.J.). Yet Chief Judge Kozinski ordered that Plaintiff is entitled to ongoing back pay awards to offset that out of pocket expense. See In re Golinski, 587 F.3d 956, 960 (9th Cir. 2009) (Kozinski, C.J.) (finding Ms. Golinski is entitled to an award equal in amount to the benefits she would have received, but has been denied, under the FEHBP . . . . I determine the relevant measure of those benefits to be the cost of obtaining comparable private insurance for her wife); Order at 2, In re Golinski, No. 0980173 (9th Cir. Mar. 5, 2010) (Kozinski, C.J.), ECF No. 40, also attached to Second Am. Compl., ECF No. 102-5 (awarding Ms. Golinski $6,272 in back pay for the period September 2008 through December 2009, plus interest, and ordering that she is entitled to additional back pay for subsequent periods); Second Am. Compl. 55, ECF No. 102 (alleging that Chief Judge 7 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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Kozinski awarded Ms. Golinski ongoing back pay to reimburse her for the cost of purchasing separate individual insurance to cover Ms. Cunninghis). Given Chief Judge Kozinskis ongoing back pay awards, it is not clear whether Plaintiff has suffered an injury-in-fact for purposes of Article III standing requirements. Cf. Order at 3, In re Golinski, ECF No. 102-5 (that ongoing back pay awards are inadequate). The Houses written discovery will seek to determine what economic loss, if any, Plaintiff has suffered. In addition to propounding written discovery, the House may wish to depose Plaintiff, including for the purpose of asking her questions about her injury-in-fact, if any. Article III standing is, of course, an issue that can be raised at any point in litigation as it goes to the Courts jurisdiction. Anticipating the Houses Rule 56(d) objection, Plaintiff contends that [d]iscovery has been open in this case since . . . May 24, 2010. Pl.s Mot. for Summ. J. at 19, ECF No. 142. This ignores the fact that the House was granted intervention only on June 3, 2011. Plaintiffs contention that the House has refused to respond, id., to her counsels overtures regarding discovery and scheduling is incorrect and misstates the Houses position. At the request of Plaintiffs counsel, counsel for the House participated in a conference call with Plaintiffs counsel and the Department of Justice regarding discovery and scheduling matters on June 7, 2011. On that call which occurred only four days after the House was granted leave to intervene Plaintiffs counsel indicated that they intended to move for summary judgment right away, without waiting for a ruling on the Houses motion to dismiss or even the completion of briefing on the Houses motion to dismiss. On the call and in a subsequent email, counsel for the House advised Plaintiffs counsel that, in the Houses view, a motion for summary judgment was premature at that time, only days after the House had been granted leave to intervene. See Exhibit A to Declaration of H. Christopher Bartolomucci Pursuant to Federal Rule of Civil 8 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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Procedure 56(d). The next day, June 8, 2011, Plaintiff filed her administrative motion, which sought leave to file a single consolidated memorandum both opposing the Houses motion to dismiss and supporting Plaintiffs motion for summary judgment. See Plaintiffs Admin. Mot. Regarding Oppns to Mots. to Dismiss and Anticipated Mot. for Summ. J. 1, ECF No. 121. This Court denied in relevant part Plaintiffs administrative motion on grounds of prematurity. ECF No. 128. Nevertheless, Plaintiff, in opposition to the Houses motion to dismiss, filed on June 24, 2011, a brief that improperly attached expert affidavits. ECF No. 133. Plaintiff also filed a motion for summary judgment on July 1, 2011. ECF No. 142. Plaintiff did so less than a month after the Houses intervention in this case. Given Plaintiffs insistence on filing a premature motion for summary judgment and on improperly using summary judgment materials in attempted opposition to the Houses motion to dismiss counsel for the House concluded that any further discussions with Plaintiffs counsel regarding a discovery schedule should occur only after the House had completed briefing on its motion to dismiss and its opposition to Plaintiffs motion for summary judgment. With this opposition, the House has submitted a proposed schedule for discovery and the Houses response to Plaintiffs summary judgment motion (assuming it is not denied as moot). The Court should enter the Houses proposed schedule as an order. In the alternative, if the Court prefers, the House is amenable to working with Plaintiffs counsel and the Department of Justice on an agreed-upon schedule. Pursuant to Rule 56(d), the affidavit of H. Christopher Bartolomucci accompanies and supports this opposition to Plaintiffs motion for summary judgment.

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CONCLUSION For the foregoing reasons, Plaintiffs motion for summary judgment should be denied or held in abeyance. Respectfully submitted,

/s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC1 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 Counsel for The Bipartisan Legal Advisory Group of the U.S. House of Representatives

Of Counsel Kerry W. Kircher, General Counsel Christine Davenport, Sr. Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel

Bancroft PLLC has been specially retained by the Office of General Counsel of the House to litigate the constitutionality of Section III of DOMA on behalf of the House. Its attorneys are, therefore, entitled, for the purpose of performing [that] function[], to enter an appearance in any proceeding before any court of the United States . . . without compliance with any requirement for admission to practice before such court . . . . 2 U.S.C. 130f(a). Kerry W. Kircher, Esq., as the ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatories Paul D. Clement, Esq., H. Christopher Bartolomucci, Esq., and Conor B. Dugan, Esq. 10 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (phone) (202) 226-1360 (fax) July 15, 2011

11 INTERVENOR-DEFENDANT U.S. HOUSE OF REPRESENTATIVES OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENTCASE NO. 3:10-CV-0257-JSW

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CERTIFICATE OF SERVICE I certify that on July 15, 2011, I served one copy of the Bipartisan Legal Advisory Group of the U.S. House of Representatives Opposition to Plaintiffs Motion for Summary Judgment by CM/ECF, by electronic mail (.pdf format), and by first-class mail, postage prepaid, on the following:

James R. McGuire, Esq. Gregory P. Dresser, Esq. Rita F. Lin, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Jon W. Davidson, Esq. Tara L. Borelli, Esq. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd. Suite 1300 Los Angeles, CA 90010-1729 Christopher R. Hall, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch Room 7128 20 Massachusetts Ave., N.W. Washington, DC 20001

/s/ Kerry W. Kircher Kerry W. Kircher

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PAUL D. CLEMENT, ESQ. (DC Bar 433215) pclement@bancroftpllc.com H. CHRISTOPHER BARTOLOMUCCI, ESQ. (DC Bar 453423) cbartolomucci@bancroftpllc.com CONOR B. DUGAN, ESQ. (MI Bar P66901) cdugan@bancroftpllc.com BANCROFT PLLC 1919 M Street, NW, Suite 470 Washington, DC 20036 202-234-0090 (phone); 202-234-2806 (fax) OF COUNSEL: KERRY W. KIRCHER, GENERAL COUNSEL (DC Bar 386816) Kerry.Kircher@mail.house.gov CHRISTINE DAVENPORT, SR. ASST COUNSEL (NJ Bar) Christine.Davenport@mail.house.gov KATHERINE E. MCCARRON, ASST COUNSEL (DC Bar 486335) Katherine.McCarron@mail.house.gov WILLIAM PITTARD, ASST COUNSEL (DC Bar 482949) William.Pittard@mail.house.gov KIRSTEN W. KONAR, ASST COUNSEL (DC Bar 979176) Kirsten.Konar@mail.house.gov OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 (phone); 202-226-1360 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) )

KAREN GOLINSKI, Plaintiff, vs. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al.,

Case No. 3:10-cv-0257-JSW [Proposed] ORDER SCHEDULING DISCOVERY AND BRIEFING ON PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

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) Defendants. ) __________________________________________)

It is hereby ORDERED that the following schedule is established to govern discovery in this matter and briefing on Plaintiff Karen Golinskis (plaintiff) motion for summary judgment: 1. Defendant-Intervenor, The Bipartisan Legal Advisory Group of the U.S. House of Representatives (the House) and plaintiff (collectively, the parties), shall exchange all written requests for discovery (including document requests, interrogatories and requests for admission pursuant to Fed. R. Civ. P. 26, 33, 34, and 36) on or before August 12, 2011; 2. The House shall identify its experts (if any) on or before August 15, 2011 (plaintiff has already identified her experts); 3. The House shall serve its expert reports (if any) on or before August 29, 2011 (plaintiff has already served her expert reports); 4. Plaintiff may take depositions of the Houses experts (if any) beginning on August 30, 2011; 5. All fact and expert discovery shall be completed by September 30, 2011; 6. The House shall file its opposition to plaintiffs motion for summary judgment on or before October 14, 2011; 7. Plaintiff may submit a reply in support of her motion for summary judgment on or before October 28, 2011;

PROPOSED SCHEDULING ORDERCASE NO. 3:10-CV-257-JSW

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8. The parties may stipulate that the depositions of the expert witnesses in Windsor v. United States, No. 10-cv-8435 (S.D.N.Y.) and Pedersen v. Office of Personnel Management, No. 310-cv-1750 (D. Conn.), who are the same five experts designated by the plaintiff, are admissible in this case; 9. If the parties so stipulate, plaintiffs experts shall not be re-deposed in this case without leave of Court; 10. If parties do not so stipulate, the House, if it chooses, may take the depositions of plaintiffs experts beginning July 22, 2011; and 11. A hearing on plaintiffs motion for summary judgment is set for November ____, 2011, at ______ AM.

So ordered.

______________________________________ JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE Dated: ___________

PROPOSED SCHEDULING ORDERCASE NO. 3:10-CV-257-JSW