Case 1:09-cv-10309-JLT Document 72 Filed 08/13/10 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE
DISTRICT OF MASSACHUSETTS

)
NANCY GILL & MARCELLE LETOURNEAU, )
et al. )
Plaintiffs, ) No. 1:09-cv-10309 JLT
)
v. )
)
)
OFFICE OF PERSONNEL MANAGEMENT,
)
et al.
)
Defendants.
)

JOINT MOTION FOR ENTRY OF AMENDED JUDGMENT

AND UNOPPOSED MOTION FOR STAY PENDING APPEAL

Pursuant to Fed. R. Civ. P. Rule 59(e), the parties jointly move for entry of an

Amended Judgment. A proposed form of Amended Judgment to be entered in this action

is attached to this Request as Exhibit 1.

In addition, the Defendants hereby move for a stay pending appeal which is

unopposed by the Plaintiffs. A proposed form of Order for the stay pending appeal to be

entered in this action is attached hereto as Exhibit 2.

With respect to these motions, the parties state that, since the Court’s decision on

July 8, 2010, they have been diligently working on a joint request for entry of judgment

and stay and had been preparing to file the foregoing with the Court today. We
 Case 1:09-cv-10309-JLT Document 72 Filed 08/13/10 Page 2 of 3

respectfully submit that the proposed Amended Judgment and Order are worthy of the

Court’s consideration and entry.

The Defendants note that their concurrence in Exhibit 1 as the proposed form of

Amended Judgment is contingent upon entry of the proposed Order submitted as Exhibit

2.

Respectfully submitted,

GAY & LESBIAN ADVOCATES & TONY WEST

DEFENDERS Assistant Attorney General

/s/ Gary D. Buseck CARMEN M. ORTIZ

______________________________ United States Attorney
Gary D. Buseck, BBO#067540
Mary L. Bonauto, BBO#549967 ARTHUR R. GOLDBERG
Janson Wu, BBO#600949 Assistant Director
Samuel P. Bickett, BBO#676190
30 Winter Street, Suite 800 /s/ W. Scott Simpson
Boston, MA 02108 ________________________________
Telephone: (617) 426-1350 W. SCOTT SIMPSON
Email: gbuseck@glad.org Senior Trial Counsel

FOLEY HOAG LLP Attorneys, Department of Justice

Claire Laporte, BBO#554979 Civil Division, Room 7210
Vickie L. Henry, BBO#632367 Post Office Box 883
Matthew Miller, BBO#655544 Washington, D.C. 20044
Amy Senier, BBO#672912 Telephone: (202) 514-3495
Catherine Deneke, BBO#673871 Facsimile: (202) 616-8470
Seaport World Trade Center West Email: scott.simpson@usdoj.gov
155 Seaport Boulevard
Boston, MA 02210-2600
Telephone: (617) 832-1000 COUNSEL FOR DEFENDANTS
E-mail: claporte@foleyhoag.com

JENNER & BLOCK LLP

Paul M. Smith (pro hac vice)
Telephone: (202) 639-6060
Email: psmith@jenner.com

COUNSEL FOR PLAINTIFFS

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 Case 1:09-cv-10309-JLT Document 72 Filed 08/13/10 Page 3 of 3

SULLIVAN AND WORCESTER LLP

David J. Nagle, BBO#638385
Richard L. Jones, BBO#631273
One Post Office Square
Boston, MA 02109
Telephone: (617) 338-2800
Email: dangle@sandw.com

COUNSEL FOR PLAINTIFFS MARY RITCHIE, KATHLEEN BUSH,

MELBA ABREU, BEATRICE HERNANDEZ, MARLIN NABORS,
JONATHAN KNIGHT, MARYBOWE-SHULMAN and DORENE BOWE-SHULMAN

Certificate of Service

I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing
(NEF) and paper copies will be sent to those indicated as non-registered participants on
August 13, 2010.

/s/ Gary D. Buseck .

Gary D. Buseck

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 Case 1:09-cv-10309-JLT Document 72-1 Filed 08/13/10 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

)
NANCY GILL & MARCELLE LETOURNEAU, )
et al. )
Plaintiffs, ) No. 1:09-cv-10309 JLT
)
v. )
)
)
OFFICE OF PERSONNEL MANAGEMENT,
)
et al.
)
Defendants.
)

PROPOSED AMENDED JUDGMENT

This action came on for a hearing before the Court on the Defendants’ Motion to Dismiss

[#20] and Plaintiffs’ Motion for Summary Judgment [#25], and the issues having been duly

heard and a Memorandum having been issued on July 8, 2010,

It is ORDERED AND ADJUDGED:

The Plaintiffs’ Motion for Summary Judgment is ALLOWED and:

(1) The rights of the Plaintiffs are declared as follows:

(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), is

unconstitutional as applied to the Plaintiffs by the Defendants in the administration and

application of (1) the Federal Employees Health Benefits Program (“FEHB”), (2) the

Federal Employees Dental and Vision Insurance Program (“FEDVIP”), (3) the United

States Postal Service Health Care Flexible Spending Account program (“Postal Service

Health Care FSA”), (4) certain retirement and survivor benefit provisions of the Social

Security Act, as set forth below, and (5) the Internal Revenue Code.
 Case 1:09-cv-10309-JLT Document 72-1 Filed 08/13/10 Page 2 of 6

(b) The Plaintiff Nancy Gill is entitled to review of her applications for

enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without

regard to Section 3 of DOMA.

(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the

Postal Service Health Care FSA for eligible medical expenses incurred by her spouse,

Marcelle Letourneau, subject to the other relevant requirements of the program.

(d) The Plaintiff Martin Koski is entitled to review of his application for

enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of

DOMA.

(e) The Plaintiff Dean Hara is entitled to review of his application for the

Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.

(f) The Plaintiff Jo Ann Whitehead is entitled to review of her application for

Retirement Insurance Benefits based on the earning record of her spouse, Bette Jo Green,

without regard to Section 3 of DOMA.

(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application

for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.

(h) The Plaintiff Herb Burtis is entitled to review of his applications for the

Social Security Lump-Sum Death Benefit and for the Widower’s Insurance Benefit

without regard to Section 3 of DOMA.

(2) The Defendant United States Postal Service and Defendant John E. Potter, in his

official capacity as the Postmaster General of the United States, are permanently enjoined,

ordered, and directed:

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 Case 1:09-cv-10309-JLT Document 72-1 Filed 08/13/10 Page 3 of 6

(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau

as her spouse in accordance with the requirements of the FEHB but without regard to

Section 3 of DOMA; and

(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service

Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle

Letourneau.

(3) The Defendant Office of Personnel Management (“OPM”) is permanently

enjoined, ordered, and directed:

(a) to review and process, without regard to Section 3 of DOMA, the request

of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB

from “self only” to “self and family” so as to provide coverage for his spouse, Plaintiff

James Fitzgerald;

(b) to refrain from interfering with or from declining to permit enrollment, on

the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff

Nancy Gill; and

(c) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau

as an eligible family member in accordance with the requirements of the FEDVIP but

without regard to Section 3 of DOMA.

(4) The Defendant Michael J. Astrue, in his official capacity as the Commissioner of

the Social Security Administration, is permanently enjoined, ordered, and directed:

(a) to review the Plaintiff Dean Hara’s application for the Social Security

Lump-Sum Death Benefit without regard to Section 3 of DOMA;

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 Case 1:09-cv-10309-JLT Document 72-1 Filed 08/13/10 Page 4 of 6

(b) to review the Plaintiff Jo Ann Whitehead’s application for the Retirement

Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green,

without regard to Section 3 of DOMA;

(c) to review the Plaintiff Randell Lewis-Kendell’s application for the Social

Security Lump-Sum Death Benefit without regard to Section 3 of DOMA; and

(d) to review the Plaintiff Herb Burtis’s application for the Social Security

Lump-Sum Death Benefit and for the Widower’s Insurance Benefit without regard to

Section 3 of DOMA.

(5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental

Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section

6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check

by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as

against the United States of America:

(a) For the taxable year ending December 31, 2004: $1,054.

(b) For the taxable year ending December 31, 2005: $2,703.

(c) For the taxable year ending December 31, 2006: $4,390.

(d) For the taxable year ending December 31, 2007: $6,371.

(e) For the taxable year ending December 31, 2008: $4,548.

(6) On Counts IX, X, XI, XII, and XIII of the Second Amended and Supplemental

Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section

6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check

by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as

against the United States of America:

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 Case 1:09-cv-10309-JLT Document 72-1 Filed 08/13/10 Page 5 of 6

(a) For the taxable year ending December 31, 2004: $4,687.

(b) For the taxable year ending December 31, 2005: $3,785.

(c) For the taxable year ending December 31, 2006: $5,546.

(d) For the taxable year ending December 31, 2007: $5,697.

(e) For the taxable year ending December 31, 2008: $5,644.

(7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental

Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section

6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check

by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as

against the United States of America:

(a) For the taxable year ending December 31, 2006: $1,286.

(b) For the taxable year ending December 31, 2007: $1,234.

(c) For the taxable year ending December 31, 2008: $374.

(8) On Count XVII of the Second Amended and Supplemental Complaint, the

amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon

at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date

preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs

Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America.

(9) Plaintiffs are awarded their costs.

The Defendants’ Motion to Dismiss is ALLOWED IN PART and DENIED IN PART,

being allowed solely on the Plaintiff Dean Hara’s claim for enrollment in the FEHB Program as

a matter of standing.

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 Case 1:09-cv-10309-JLT Document 72-1 Filed 08/13/10 Page 6 of 6

JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT

ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH

BENEFIT) AND IV-XX.

COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB

HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.

The parties’ concurrence in the form of this Amended Judgment is without prejudice to

any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or

produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69,

#70] and the original Judgment of August 12, 2010 [#71].

________________________________
Joseph L. Tauro
United States District Judge

ENTERED:

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 Case 1:09-cv-10309-JLT Document 72-2 Filed 08/13/10 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

)
NANCY GILL & MARCELLE LETOURNEAU, )
et al. )
Plaintiffs, ) No. 1:09-cv-10309 JLT
)
v. )
)
)
OFFICE OF PERSONNEL MANAGEMENT,
)
et al.
)
Defendants.
)

PROPOSED ORDER

August ____, 2010

TAURO, J.

The Defendants have moved for a stay of the judgment in this action pending appeal, and

the Plaintiffs do not oppose that motion.

Upon consideration thereof,

IT IS ORDERED THAT:

The Defendants’ motion is granted, and the judgment in this action is stayed pending the

disposition of any appeal filed by the Defendants.

______________________________
Joseph L. Tauro
United States District Judge