Gill et al v. Office of Personnel Management et al

Response to Plaintiffs' Statement of Undisputed Facts Response

D. Mass.January 29, 2010

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS __________________________________________ NANCY GILL & MARCELLE LETOURNEAU, ) et al., ) ) Plaintiffs, ) Case No. 1:09-cv-10309 JLT ) v. ) ) OFFICE OF PERSONNEL MANAGEMENT, ) et al., ) ) Defendants. ) ) RESPONSE TO PLAINTIFFS’ STATEMENT OF UNDISPUTED FACTS Defendants submit this response to Plaintiffs’ Statement of Undisputed Facts (Doc. 26) pursuant to Local Rule 56.1: 1. For purposes of Plaintiffs’ Motion for Summary Judgment (Doc. 25) only, defendants do not dispute the accuracy of Plaintiffs’ Statement of Undisputed Facts (Doc. 26), except as stated below. Defendants do not, however, concede the materiality of any item in Plaintiffs’ Statement, nor do defendants concede that plaintiffs are entitled to judgment as a matter of law herein. 2. The assertions, in paragraphs 22, 51, 57, 61, and 63 of Plaintiffs’ Statement of Undisputed Facts, that the Social Security Administration denied some of the plaintiffs’ claims for Social Security benefits “because of DOMA” are not accurate to the extent they imply that the Defense of Marriage Act was the only basis for those denials. The expedited appeal agreements signed by plaintiffs Jo Ann Whitehead, Randell Lewis-Kendell, and Herbert Burtis, see 20 C.F.R. §§ 404.924, 404.926, 404.927, stated that the claims were denied pursuant to both DOMA and the Social Security Act (see Attachments 1, 2, and 3 hereto). Case 1:09-cv-10309-JLT Document 56 Filed 01/29/10 Page 1 of 3 3. Plaintiffs’ Statement of Undisputed Facts states that some of the plaintiffs have submitted amended tax returns to the Internal Revenue Service seeking refunds for certain tax years that are not included in plaintiffs’ First Amended and Supplemental Complaint (Doc. 18). Specifically, paragraph 28 of Plaintiffs’ Statement says that plaintiffs Mary Ritchie and Kathleen Bush have submitted an amended return for 2008; paragraph 34 says that plaintiffs Melba Abreu and Beatrice Hernandez have submitted amended returns for 2007 and 2008; and paragraph 40 says that plaintiffs Marlin Nabors and Jonathan Knight have submitted an amended return for 2008 – none of which tax years are mentioned in the First Amended and Supplemental Complaint in relation to these plaintiffs. The dollar amounts stated for each of these plaintiff couples, in paragraphs 31, 37, and 43 of Plaintiffs’ Statement of Undisputed Facts, are correspondingly larger than the amounts sought by these plaintiffs in the prayers for relief of the First Amended and Supplemental Complaint. Plaintiffs’ claims or assertions regarding tax years for which relief is not sought in the operative pleading are not “material” to this action and should be stricken from Plaintiffs’ Statement of Undisputed Facts. See Local Rule 56.1 (“Motions for summary judgment shall include a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried . . . .”) (emphasis added); see also St. Paul Fire & Marine Ins. Co. v. Birch, Stewart, Kolasch & Birch, LLP, 379 F. Supp. 2d 183, 186 n.1 (D. Mass. 2005) (disregarding Local Rule 56.1 statement that included immaterial facts). For the same reason, defendants neither dispute nor concede the dollar amounts stated in paragraphs 31, 37, and 43 of Plaintiffs’ Statement of Undisputed Facts, given that each of those figures purports to include an alleged overpayment amount for the tax years that are not pled in plaintiffs’ First Amended and Supplemental Complaint. 2 Case 1:09-cv-10309-JLT Document 56 Filed 01/29/10 Page 2 of 3 Dated this 29th day of January, 2010. Respectfully submitted, TONY WEST Assistant Attorney General CARMEN M. ORTIZ United States Attorney ARTHUR R. GOLDBERG Assistant Director /s/ W. Scott Simpson _________________________ W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS Certificate of Service I hereby certify that this document(s) 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 January 29, 2010. /s/ W. Scott Simpson ________________________________ W. SCOTT SIMPSON 3 Case 1:09-cv-10309-JLT Document 56 Filed 01/29/10 Page 3 of 3