Case 3:10-cv-01750-VLB Document 70 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 PLAINTIFFS DAMON SAVOY AND JOHN WEISS

Damon Savoy and John Weiss, being duly sworn, hereby depose and say as follows: 1. Damon (Jerry) and John: We met in August 1998 and have been in a

committed relationship for 12 years. We married on October 9, 2010, in a simple ceremony at our familys church. It was just us, the reverend who married us, and our 3 children. After the ceremony, we celebrated by taking the children out to a nice lunch. We married to provide each other and our children with security and legal protections. 2. Jerry and John: In February 2008, we moved from New York City to

Danbury, Connecticut, and purchased a home together in anticipation of expanding our family by adopting children. Our 3 children (now ages 12, 10 and 2) joined our family as foster children in August 2009, and their adoptions were finalized on December 28, 2010. Becoming parents has really enriched our lives. 3. Jerry: I am now 47 years old and have been a federal government employee

for over 20 years. Since 1992, I have worked as a government attorney for the Office of the Comptroller of the Currency (OCC), a self-funded bureau of the United States Treasury. During this time, I moved my family several times to 2

accommodate my job because of my commitment to government service. I am currently the sole breadwinner for my family. 4. John: I am now 41 years old. I am an interior designer, but I set aside my

career to focus full-time on raising our 3 young children. 5. John: As part of the physical examinations during the process of us

becoming licensed as adoptive parents, we learned in March 2009 that I suffer from Type II Diabetes. My diagnosis and the fact that I am the primary caregiver for our children make it extremely important to the wellbeing and security of our family that I be enrolled in health insurance. 6. John: I received health insurance through COBRA continuation health

coverage from my prior job until July 2010. When my COBRA continuation health coverage terminated, I was uninsured for several months. It was difficult for me to secure health insurance on the private market due to my pre-existing condition (diabetes). 7. John: As a parent, it was upsetting to me to be without health insurance for

a number of months because it undermined my familys sense of security. I know that our children depend on me and that stability is really important to them after spending some of their formative years without the security and comfort of such stability. Its painful to know that I should be allowed to be included on my spouses health plan with the accompanying assurance of medical care and without the unfair extra financial burden to our family and that the only reason I am excluded is because of DOMA.

8.

John: After several months without health insurance, I enrolled in an

individual private health insurance plan through Anthem Blue Cross Blue Shield (BCBS) the same insurer that provides the FEHB Self and Family Plan that covers Jerry and our 3 kids in December 2010. My individual private health insurance plan through BCBS costs $449.08 per month. 9. Jerry: Before our children joined our family, I had been enrolled as a

federal employee in the Federal Employees Health Benefits Program (FEHB) under a Self Only plan. When our children joined our family as foster children, I changed my FEHB enrollment to a Self and Family plan that covers me and our 3 children. 10. Jerry: After John and I married, I wanted to add him to my existing Self

and Family plan that was already providing coverage for me and our 3 children. He had recently been diagnosed with diabetes and had spent several months uninsured, so it was more important to me than ever to be able to include him in my family insurance plan. 11. Jerry: I discovered from looking on the OPM website that I should be able

to add a new family member my spouse to my existing Self and Family enrollment based on our recent change in marital status. 12. Jerry: On November 22, 2010, I contacted OCCs human resources

departments open season information line in an attempt to add John to my FEHB Self and Family plan. I was informed that the process for adding my spouse simply required me to contact my insurance company, Anthem Blue Cross Blue Shield (BCBS).

13.

Jerry: I called BCBS on November 22, 2010, to add John to my existing

FEHB Self and Family plan. I spoke with a BCBS employee named Chris T. who informed me that I could not add John, my lawfully married spouse, to my existing FEHB Self and Family plan because federal law excludes same-sex spouses from federal benefits that would otherwise be available to my family if my spouse was a different sex (Anthem Blue Cross Blue Shield Inquiry Reference # 10326011632963). 14. Jerry: On January 13, 2011, in an email to Linda Whalen, Benefits Analyst

for the Human Resources Department of the OCC, I requested that my lawfully married spouse, John Weiss, be added to my existing FEHB Self and Family plan. 15. Jerry: OCC denied my request to add my husband to my FEBH Self and

Family plan in an email I received from Linda Whalen on January 20, 2011. In her email, Linda explained that: The reason that the OCC can not permit you to enroll your spouse, John, to you (sic) FEHB coverage is because the rules the (sic) govern the FEHB program are provided to agencies by the Office of Personnel Management (OPM). OPM sponsors the program and they have issued an FEHB handbook that agencies are to use in the day-to-day administration of the program. In that FEHB handbook, it defines who eligible members of your family are for coverage. Same sex partners are not eligible family members. The law defines family members as a spouse and an unmarried dependent child under age 22 (but as of this year the child age is now up to age 26 due to the Affordable Care Act under Health Care Reform). Public Law 104-199, Defense of Marriage Act, states the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. Linda also informed me in this email of my right to request reconsideration of the OCCs decision.

16.

Jerry: In a letter to Benjamin Katcoff, Director of Compensation and

Benefits for the OCC Human Resources Department, dated January 26, 2011, I requested reconsideration of the OCCs denial of my request to add John to my existing FEHB Self and Family Plan. 17. Jerry: I received a responsive letter from Benjamin Katcoff dated March 4,

2011, in which OCC denied my request for reconsideration to add your wife, (sic) John Weiss to my existing Self and Family plan because FEHB follows DOMAs definition for spouse. Mr. Katcoff explained in the letter that, as a result of DOMA, OCC does not have the authority to approve my request to add my same-sex spouse as a covered dependent under my FEHB plan. 18. Jerry and John: It felt wrong to us that the only reason John couldnt join

the family health insurance plan that was already covering the rest of our family was because we are gay and our marriage is singled out for disrespect. 19. Jerry: Even though we are lawfully married, because of DOMA, the OCC

treats John as my domestic partner, rather than as my husband. As a result, the OCC denied my request to add John to my FEHB plan, but it partially underwrites Johns privately procured insurance by paying 72% of the premium, up to a maximum of $330 per month in 2010 and $345 per month in 2011. I filed my first reimbursement claim to OCC for the subsidized portion of Johns individual private health insurance plan on or around January 3, 2011, which covered the period of December 1, 2010 through December 31, 2010. On February 2, 2011, I received a net reimbursement of $217.76 from OCC after taxes were deducted, which was 72% of the premium cost of $449.08. I filed my second such

reimbursement claim on or around March 30, 2011, for the period of January 1, 2011, through March 31, 2011. I received a net reimbursement of $569.63 after taxes were deducted on April 15, 2011, which was 72% of the premium cost of $1174.68. 20. Jerry and John: Even though we are grateful that Jerrys employer

subsidizes some of the cost of Johns health insurance, our family is still paying approximately an additional $217 a month ($2,604 a year) for Johns health insurance. Thats real money to a family raising 3 young children. 21. Jerry: The unfairness and burden to our family extends to the fact that the

OCCs contribution to Johns private health insurance plan is treated as income to me, so it is taxed. If the federal government recognized and respected John as my spouse, my federal employers contribution to my spouses insurance premium would not be taxed. Signed under the pains and penalties of perjury on this 24th day of May, 2011.

/s/ Damon Savoy _____________________ Damon Savoy

/s/ John Weiss _____________________ John Weiss

CERTIFICATE OF SERVICE I hereby certify that on July 15, 2011, a copy of the foregoing Joint Affidavit of Damon Savoy and John Weiss 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