Case 3:10-cv-01750-VLB Document 69 Filed 07/15/11 8 Pages

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT CIVIL ACTION NO. 3:10 CV 1750 (VLB) ___________________________________________ JOANNE PEDERSEN & ANN MEITZEN, ) GERALD V. PASSARO II, ) LYNDA DEFORGE & RAQUEL ARDIN, ) JANET GELLER & JOANNE MARQUIS, ) SUZANNE & GERALDINE ARTIS, ) BRADLEY KLEINERMAN & JAMES GEHRE, and ) DAMON SAVOY & JOHN WEISS, ) ) Plaintiffs, ) ) v. ) ) OFFICE OF PERSONNEL MANAGEMENT, ) TIMOTHY F. GEITHNER, in his official capacity ) as the Secretary of the Treasury, and ) HILDA L. SOLIS, in her official capacity as the ) Secretary of Labor, ) MICHAEL J. ASTRUE, in his official capacity ) as the Commissioner of the Social Security ) Administration, ) UNITED STATES POSTAL SERVICE, ) JOHN E. POTTER, in his official capacity as ) The Postmaster General of the United States of ) America, ) DOUGLAS H. SHULMAN, in his official ) capacity as the Commissioner of Internal ) Revenue, ) ERIC H. HOLDER, JR., in his official capacity ) as the United States Attorney General, ) JOHN WALSH, in his official capacity as Acting ) Comptroller of the Currency, and ) THE UNITED STATES OF AMERICA, ) ) Defendants. ) ___________________________________________)

JOINT AFFIDAVIT OF BRADLEY KLEINERMAN AND JAMES FLINT GEHRE

Bradley Kleinerman (Brad) and James Flint Gehre (Flint), being duly sworn, hereby depose and say as follows: 1. Brad and Flint: We have been a committed couple for 20 years, since 1991.

We currently live in Avon, Connecticut, having moved here from California in 2007 to provide a better life for our family. We have three sons ages 20, 19 and 10. After our eldest son graduated from high school, he enrolled in culinary school and now lives on his own. 2. Brad and Flint: On March 6, 2009, on our 18th anniversary, we got married in

Connecticut in front of our family. For us, it was important to be married for the legal protections and social recognition that it provided our family. We have now been legally married for over two years. 3. Brad: I am 49 years old and am a human resources director at CIGNA

Healthcare, located in Bloomfield, Connecticut.

4.

Flint: I am 46 years old and have been a stay-at-home parent since we

moved to Connecticut. I manage our youngest sons travelling hockey team. Back in California, I was a police officer and then a school teacher. 5. Brad and Flint: In 1997, we adopted the first two of our children. At the

time, they were 5 and 6 years old and had been living in the foster care system in Los Angeles, where they had suffered a history of abuse and neglect. Although we had not planned on adopting any more children, in 2001, when we were approached by an attorney with the Los Angeles foster care system about adopting the six-week old biological sibling of our two adopted sons, we leapt at the opportunity. 6. Brad and Flint: Its always been extremely important to us to do everything

possible to provide for the integrity and security of our family. Shortly after adopting our first two boys, we executed all of the legal documents we could to protect our family and children including wills, trusts, powers of attorney, and health care proxies to provide others with a context for understanding our family should an injury or emergency arise. We also entered into a registered domestic partnership under California law in 2001, which was the best option we had at that time to safeguard our family. 7. Brad and Flint: In 2007, we moved our family to Connecticut because we

hoped it would provide a better quality of life for our family. We choose to live in Avon for its respected school system and family-oriented community. 8. Brad and Flint: DOMA has increased the amount of federal taxes we have

to pay, because of our inability to file our taxes jointly as a married couple.

DOMA forces us to lie on our federal tax returns and claim that we are not married. Not only is that hurtful to our family, but it cost us $2,085 dollars in 2009 and substantially more in 2010. 9. Brad: In 2009, I filed an original and then a first amended federal income tax

return using the Head of Household filing status, rather than a joint return with Flint, as required by DOMA. My first amended federal income tax return was filed to correct the original returns unintentional omission of certain 1099-R income. 10. Flint: I had no income in 2009 and thus was not required to file a federal

income tax return as an individual. 11. Brad and Flint: On November 23, 2010, we submitted to the IRS a second

amended federal income tax return on IRS Form 1040X for the tax year 2009, changing our filing status from Brad filing alone as Head of Household to both of us filing together as Married Filing Jointly. The 2009 second amended federal income tax return claimed a refund of $2,085. 12. Brad and Flint: Our second amended 2009 federal income tax return

attached a written statement titled Explanation of Changes, a Form 8275 Disclosure Statement and a Form 8275-R, Regulation Disclosure Statement, which explained the reason for our refund claim and the differences from the first amended return. It stated: Attachment To Form 1040X, Part C, Explanation of Changes Form 8275, Disclosure Statement Form 8275-R, Regulation Disclosure Statement 2009 Tax Year REFUND CLAIM BASED ON THE UNCONSTITUTIONALITY OF THE DEFENSE OF MARRIAGE ACT

The taxpayer, Bradley Kleinerman (####-##-####), a spouse in a same-sex couple, was married under the laws of the Connecticut as of December 31, 2009. For the tax year of this amended return, the taxpayer filed a joint Connecticut income tax return with his spouse, James Gehre (####-##-####). However, in accordance with the federal law known as the Defense of Marriage Act (DOMA), the taxpayer filed an individual, federal income tax return as though he were unmarried. The taxpayer believes that being required to file as though he were unmarried amounts to unequal treatment compared to other married persons in Connecticut. The taxpayer believes that his marriage, which is valid under Connecticut law, should be respected for federal tax purposes, just like the Connecticut marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes that DOMA is unconstitutional and that he should be allowed to file this amended joint return with his spouse and receive the refund shown herein. The taxpayers filing position is supported by the following decisions from the U.S. District Court-District of Massachusetts: Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) and Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010). The decisions in these cases, which found Section 3 of DOMA to be unconstitutional, have been stayed pending the governments appeals to the U.S. Court of Appeals in the First Circuit. In particular, if the taxpayer were able to file as married filing jointly, the federal tax decreases from $2,947 to $862. As a result of these adjustments, the amount of overpayment is $2,085. 13. Brad and Flint: We received a certified, return receipt from the U.S. Postal

Service confirming that the IRS received our 2009 second amended federal income tax return and accompanying refund claim on December 1, 2010. 14. Brad and Flint: On December 23, 2010, by certified mail, we requested an

immediate denial of our refund claim. The letter stated that where a refund claim is based on a Constitutional challenge to a federal statute, the taxpayers request that their refund claim be immediately rejected and that a notice of claim disallowance be issued promptly pursuant to Internal Revenue News Release IR1600 (April 26, 1976). 15. Brad and Flint: To date, we have not received a denial of our refund claim.

16.

Brad and Flint: The extra money weve had to pay in income taxes because

of DOMA is money that could have gone into savings for our sons college education or toward household expenses. Especially with two sons at home and one at college, we could really use those resources to provide for our family. 17. Brad and Flint: In 2002, when returning to the U.S. from a family trip to

Canada, we had filled out a single Customs form, as a family, per the instructions. After we handed the U.S. Customs agent our form, he looked at it and said to us and in front of the children that the U.S. did not recognize us as a family. He instructed us to fill out two customs forms. This was the first time our children had directly heard and seen from the U.S. government that our marriage and family didnt count. 18. Brad and Flint: DOMA makes it feel like the government is standing in the

way of having our family fully recognized and attempting to diminish the meaning of our marriage. We are married like our neighbors and friends, and yet the federal government does not recognize our marriage. In particular, we have to explain to our sons why our family is not being treated the same as their friends families.

Signed under the pains and penalties of perjury on this 7th day of July, 2011.

/s/ Bradley Kleinerman _________________________ Bradley Kleinerman

/s/ James Flint Gehre _________________________ James Flint Gehre

CERTIFICATE OF SERVICE I hereby certify that on July 15, 2011, a copy of the foregoing Affidavit of Bradley Kleinerman and James Flint Gehre was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system. Parties may access this filing through the Courts CM/ECF System.

/s/ Gary D. Buseck______________ Gary D. Buseck