Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 1 of 34

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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MAJ SHANNON L. MCLAUGHLIN;

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CASEY MCLAUGHLIN;

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LTC VICTORIA A. HUDSON;

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MONIKA POXON;

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COL STEWART BORNHOFT (RET);

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STEPHEN MCNABB;

) Civil Action No. _____

LT GARY C. ROSS;

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DAN SWEZY;

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CPT STEVE M. HILL;

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JOSHUA SNYDER;

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A1C DANIEL HENDERSON;

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JERRET HENDERSON;

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CW2 CHARLIE MORGAN;

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KAREN MORGAN;

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CAPT JOAN DARRAH (RET);

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JACQUELINE KENNEDY,

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Plaintiffs,

)

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v.

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COMPLAINT

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LEON E. PANETTA, in his official capacity as )

Secretary of Defense;

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ERIC H. HOLDER, JR., in his official capacity as )

Attorney General;

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ERIC K. SHINSEKI, in his official capacity as )

Secretary of Veterans Affairs;

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UNITED STATES OF AMERICA,

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Defendants.

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________________________________________ )

COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF

Preliminary Statement

1. This is an action by current and former active duty members of the United States armed

forces seeking equal benefits for equal work. Specifically, the Plaintiffs seek the same

recognition, family support and benefits for their same-sex spouses that the military has provided

and currently provides to opposite-sex spouses of current and former service members. These

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benefits include medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefits, and the right to be buried together in military cemeteries. 2. Providing spousal benefits is important to the well-being of all military families, and the military's ability to attract and retain the best and brightest members of the armed services. During this time of war, the need to provide spousal benefits is particularly acute because the men and women in uniform who put their lives on the line every day in service to their country must remain focused on the task at hand. All service members should be confident that, if they should die serving their country, their country will assure that their families are provided for in their absence. The military makes that promise to its service members who are married to spouses of the opposite sex, and it recognizes that it is critical to our national security that this promise be kept. For the very same reasons, the military's inability to make that promise to its service members who are married to a spouse of the same sex is a threat to national security. 3. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 2201-2202, and Federal Rule of Civil Procedure 57. Specifically, Plaintiffs seek a determination that the socalled Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, is unconstitutional as applied to military spousal benefits. To the extent that the definitions of "spouse" in Title 10, Title 32 and Title 38 prevent the recognition of same-sex spouses, Plaintiffs also seek a determination that these provisions suffer from the same constitutional defects as Section 3 of DOMA. 4. There is no enumerated power in the Constitution that allows the federal government to define marriage in such a way as to deny Plaintiffs the benefits they seek, and the Tenth Amendment entrusts the regulation of marriage to the states. As applied to military benefits in this context, these statutes deny the Plaintiffs equal protection, place an unconstitutional
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condition upon the fundamental constitutional right to marry in accordance with state law, and are legislative penalties imposed on persons in same-sex marriages that constitute impermissible bills of attainder in violation of Article I, § 9. 5. Plaintiffs also seek an award of attorneys fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. The government cannot maintain that its position in denying the Plaintiffs' claims for spousal benefits is "substantially justified" when the President and the Attorney General have acknowledged that DOMA Section 3 is unconstitutional. Like members of the Federal Judicial Branch, Executive Branch officials take an oath to uphold the Constitution. While the courts may have the last word as to whether a legislative enactment is constitutional, the political branches have the first word. And where, as here, the President and the Attorney General acknowledge a law is unconstitutional, they should not enforce it. In this case, the Executive Branch has enforced DOMA and specifically denied each Plaintiff spousal benefits on the basis of that statute. 6. In spite of the fact that the Commander in Chief and the Attorney General have concluded that DOMA is unconstitutional, the Department of Defense has stated that DOMA, "and the existing definition of 'dependent' in some laws, prohibit the extension of many military benefits -- such as medical care, travel and housing allowances, and other benefits -- to same sex couples." Memorandum for Secretaries of the Military Departments, Repeal of Don't Ask, Don't Tell and Future Impact on Policy at 4 (Jan. 28, 2011) ("Stanley Memorandum"). 7. On July 8, 2010, this Court held that Section 3 of DOMA is unconstitutional in Commonwealth of Massachusetts v. United States Department of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010) (Tauro, J.) ("Massachusetts") and Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) (Tauro, J.).
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8. In the consolidated appeal of Massachusetts and Gill before the First Circuit, the government conceded that "Section 3 of DOMA violates the Constitution's equal protection guarantee" and "Section 3 of DOMA is unconstitutional." Commonwealth of Massachusetts v. United States Department of Health and Human Services, Nos. 10-2204, 10-2207 and 10-2214, Gov't Resp. in Support of Pet. For Initial Hearing En Banc, at 4 (1st Cir. filed July 7, 2011). 9. Because these consolidated cases raise the same constitutional challenges to Section 3 of DOMA, the Plaintiffs have filed this case as a related case pursuant to Local Rule 40.1(G). See also Massachusetts, 698 F. Supp. 2d at 239-241 (addressing constitutionality of DOMA as applied to burial benefits for same-sex military spouses under Veterans Affairs grants). 10. It would be futile for Plaintiffs to appeal the denial of spousal benefits to the Board for Corrections of Military Records or otherwise undertake further administrative review of the denial decisions because the denial of Plaintiffs' benefits entails a substantial constitutional question, appeal would prove futile, and the Board for Corrections of Military Records will not provide Plaintiffs with a genuine opportunity for adequate relief as that relief requires correcting an act of Congress, an action beyond the Board's authority.
Background 11. The Plaintiffs commend several of the named Defendants -- the Secretary of Defense, the Attorney General, and the United States (under the leadership of President Obama) -- for working to eliminate the military's long-standing practice of discriminating against gay and lesbian service members by repealing the so-called "Don't Ask, Don't Tell" policy ("DADT"), formerly codified at 10 U.S.C. § 654, and allowing for open service in the military by gays and lesbians. Regrettably, the repeal of DADT, alone, does not guarantee equal treatment for gay and lesbian service members.
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12. DOMA precludes the military from providing same-sex married couples with the same spousal benefits that are afforded to opposite-sex married couples. Section 3 of DOMA provides: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United 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." 1 U.S.C. § 7. 13. Even in the absence of DOMA, questions would persist as to whether spousal benefits are available to same-sex couples under Title 10, concerning active-duty benefits; Title 32, concerning National Guard benefits; and Title 38, concerning veterans' benefits. Because samesex marriages were not legal prior to the enactment of DOMA and DADT has only been recently repealed, there has been no opportunity to determine whether those titles would exclude samesex spouses independently from DOMA. 14. The definition of "spouse" in Title 38 prevents recognition of same-sex spouses: "[t]he term 'spouse' means a person of the opposite sex who is a wife or husband." 38 U.S.C. § 101(31). Similarly, Title 38 provides, "The term 'surviving spouse' means … a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death…." 38 U.S.C. § 101(3). 15. The definitions of "spouse" in Title 10 and Title 32 are not as clear in their application to same-sex marriages, as they both provide that "'spouse' means husband or wife, as the case may be." 10 U.S.C. § 101(f)(5); 32 U.S.C. § 101(18). 16. Each service member or retiree Plaintiff sought recognition for his or her spouse, which would have enabled his or her family to receive the same benefits that are provided to opposite-
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sex married couples, but that recognition was denied. Therefore, the Plaintiffs file this suit because, while the repeal of DADT was an important first step in the military's march for equality, it is time to take the next step and provide equal benefits for equal work. 17. The Plaintiffs do not anticipate that the United States will contest this suit because the government agrees that Section 3 of DOMA is unconstitutional. As noted in Paragraph 7, the government has conceded that DOMA is unconstitutional before the First Circuit in the appeal of the Massachusetts and Gill cases. 18. In addition, in a February 23, 2011 letter to Congress, Attorney General Holder wrote:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination. 19. More recently, on October 1, 2011, President Obama addressed the Human Rights Campaign, stating:
I vowed to keep up the fight against the so-called Defense of Marriage Act. There's a bill to repeal this discriminatory law in Congress, and I want to see that passed. But until we reach that day, my administration is no longer defending DOMA in the courts. I believe the law runs counter to the Constitution, and it's time for it to end once and for all. It should join "Don't Ask, Don't Tell" in the history books.
20. Nor do the Plaintiffs anticipate that the Secretary of Defense will oppose the relief sought by the Plaintiffs in this lawsuit. The military has no interest in seeing that some of its service members receive fewer benefits, or in having those benefits distributed unequally among similarly-situated service members. To the contrary, the military has eschewed any governmental interest in a service member's sexual orientation whatsoever. The military's often-
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repeated mantra since DADT's repeal was announced is that "[s]exual orientation is a personal and private matter," and sexual orientation is deemed so irrelevant that the military will not even collect data concerning the sexual orientation of its service members. Stanley Memorandum at 4. 21. The military has emphasized repeatedly that providing these benefits is necessary to compete with the private sector to maintain quality enlistment and retention, and that the assurance that a service member's family will be provided for in the event the service member dies serving their country is important for maintaining morale and faithful service. 22. Moreover, the military recognizes the link between the payment of benefits and national security, explaining that service members who are distracted by thoughts that their loved ones are not being cared for may render the service members less effective combatants: "Success in modern warfare demands the full utilization of every ounce of both the physical and mental strength and stamina of its participants. No soldier can be and remain at his best with the constant realization that his family and loved ones are in dire need of financial assistance." Sen. Rpt. 93-235 (June 20, 1973), reprinted in 1973 U.S.C.C.A.N. 1579, 1585. Because the military believes that the provision of these benefits serves the interest of national security, it is doubtful the military would support the penalty that DOMA inflicts upon its service members. 23. The military also has steadfastly opposed treating similarly-situated service members differently when it comes to compensation and benefits. For example, the military opposed legislation to pay a special death benefit to survivors of 14 service members and 1 federal civilian accidentally killed by friendly fire in Iraq in 1994, explaining "[w]e are concerned that enactment of this bill would create inequities in the treatment of survivors of service members dying on active duty." H.R. Rep. No. 106-270, at 7 (1999). Because DOMA effectively creates
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inequities in the treatment of survivors based on whether they are in a same-sex or opposite-sex marriage with a military spouse, the Plaintiffs expect that the Department of Defense will find the disparate treatment equally troubling and a serious threat to recruitment and retention. 24. In addition, the military appreciates that unequal treatment threatens unit cohesion. The Army specifically has given guidance that "[l]eaders are expected to dispassionately enforce standards and correct behaviors that undermine unit cohesion." Army DADT Contingency Planning Vignettes No. 9 (Feb. 25, 2011); S. REP. No. 1647 at 3339-40 (1960) ("The effectiveness of [personnel] performance is directly related to the fairness and wisdom inherent in the policies under which personnel are employed"). For example, the military has emphasized that it will not build separate living or bathroom facilities for gay and straight service members because "separate facilities would create divisions within units and inappropriately isolate a portion of the force." Air Force, Repeal of Don't Ask, Don't Tell: Air Force Frequently Asked Questions at 3. The military has emphasized that even "[p]ublicly joking about this issue [sexual orientation] is inappropriate behavior, as it undermines unit cohesion; and harassment or abuse based on sexual orientation is unacceptable." Id. This stance is consistent with Department of Defense policy, which is "to treat all members with dignity and respect." Stanley Memorandum at Cover Letter. If joking about sexual orientation is unacceptable and if separate facilities are a threat to unit cohesion, then telling gay and lesbian service members they will be provided with fewer benefits than their heterosexual counterparts would be even more divisive. This unfair practice would undoubtedly compromise cohesion among unit members, sending a clear message that some members of the unit are not equal. 25. The military does not appear to support such discrimination based on sexual orientation, which it deems a "personal and private matter." To the contrary, its DADT repeal guidance is
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emphatic that there will be "ZERO tolerance for harassment, violence, or discrimination of any kind." Navy, Repeal of Don't Ask, Don't Tell at 2 (emphasis added); see also Marine Corps, slide presentation "Repeal of Don't Ask, Don't Tell (DADT)" at 5 (The Department of Defense and the Marine Corps maintain: "Zero tolerance for harassment, violence or discrimination"). Given the military's "zero tolerance" for discrimination based on sexual orientation, it is unconscionable that DOMA forces the military to engage in the very discrimination that it prohibits its service members from engaging in through its "zero tolerance" policy. 26. In other contexts, the military has acknowledged the need to provide for same-sex spouses of its service members. For instance, the military has recognized the significance of spouses in the lives of gay and lesbian service members by emphasizing that emergency leave is available if the same-sex spouse becomes ill because the "sexual orientation of the Soldier's partner has no bearing on the decision [to support a soldier's family]." Army DADT Contingency Planning Vignettes No. 5 (Feb. 25, 2011). The Department of Defense also is continuing to "study" whether there are benefits that are not constrained by DOMA that can be provided to same-sex spouses. Stanley Memorandum at 5.
Jurisdiction and Venue 27. This action arises under the Constitution of the United States. Because the action involves a federal question, jurisdiction is proper pursuant to 5 U.S.C. §§ 8912 and 8991, and 28 U.S.C. §§ 1331 and 1346(a)(2). 28. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) and 28 U.S.C. § 1402(a)(1) because Plaintiffs Shannon L. McLaughlin and Casey McLaughlin reside in this district, and because the events giving rise to these claims arose in this district.
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Plaintiffs Plaintiffs Shannon and Casey McLaughlin 29. Plaintiff Major Shannon L. McLaughlin, ARNG, is a citizen of the United States. She resides in Boston, Massachusetts. She is legally married, pursuant to the laws of the Commonwealth of Massachusetts, to her wife, Plaintiff Casey McLaughlin. 30. Major McLaughlin is a member of the United States Army, currently serving in the Massachusetts National Guard in Milford, Massachusetts. She began her military service in 1998. Major McLaughlin has deployed overseas in support of Operation Enduring Freedom. She and her wife Casey first met in 1998. They were married on December 15, 2009 in Foxborough, Massachusetts. 31. Plaintiffs are the parents of ten-month-old twins named Grace and Grant. While Grace and Grant are eligible for the benefits attendant to Major McLaughlin's service, her wife Casey -a former high school teacher and now a stay-at-home mother -- is not. 32. On October 19, 2011, at approximately 3:15 p.m., Major McLaughlin went to the Administration Office of the Massachusetts National Guard, located at Joint Force Headquarters in Milford, Massachusetts to obtain benefits for Casey. She was told that same-sex legal spouses are excluded from the Defense Enrollment Eligibility Reporting System ("DEERS") and that they are therefore not entitled to the benefits that Plaintiff sought. 33. Because the only way for Plaintiffs to obtain the benefits sought is by first registering with DEERS, their inability to register with the system constitutes an effective denial of the benefits sought. Similarly-situated heterosexual couples are permitted to enroll their legal spouses in the DEERS system.
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Plaintiffs Victoria A. Hudson and Monika Poxon 34. Plaintiff Lieutenant Colonel Victoria A. Hudson, USAR, is a citizen of the United States. She resides in Hayward, California. She is legally married, pursuant to the laws of the State of California, to her wife, Plaintiff Monika Poxon. 35. Lieutenant Colonel Hudson is a member of the United States Army Reserve. She began her military service in 1979. She and her wife Monika met in 2000 and have been together since 2001. They were married on November 1, 2008 in Alameda County, California. 36. Even though Monika gave birth to the couple's daughter, the Army recognizes Lieutenant Colonel Hudson as a single parent and requires her to regularly submit and maintain a "Family Care Plan." If she were to fail to maintain this plan with annual certification, Lieutenant Colonel Hudson could be subject to discharge and separation from the Army. 37. On Friday, October 14, 2011 at approximately 9:30 a.m., Lieutenant Colonel Hudson visited the Parks Reserve Forces Training Area ID Office to register Monika in DEERS. Lieutenant Colonel Hudson was greeted by Angelina Gattis, a civilian worker, who notified the couple that same-sex spouses cannot be registered in DEERS. Consequently they cannot receive the benefits they have sought. Plaintiffs Stewart Bornhoft and Stephen McNabb 38. Plaintiff Colonel Stewart Bornhoft, USA (Ret.), is a citizen of the United States. He resides in Bonita, California. He is legally married, pursuant to the laws of the State of California, to his husband, Plaintiff Stephen McNabb. 39. Colonel Bornhoft began his military service when he entered the United States Military Academy in 1965. He served two voluntary tours in Vietnam, commanding both a combat engineer company and an infantry headquarters company, and then at Fort Bragg, North
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Carolina, he commanded a construction engineer company. He later commanded two districts in the US Army Corps of Engineers, the Charleston District in South Carolina and the Omaha District, which is one of the largest in the country. He and his husband Stephen met in 1996 and have been together ever since. They were married on September 21, 2008 in San Diego, California. 40. In July of 2009, Colonel Bornhoft's appendix perforated and he was rushed to the Naval Medical Center of San Diego for emergency surgery. During this ordeal, Colonel Bornhoft was afraid that his husband would be denied access to his hospital room. 41. On October 11, 2011, at approximately 1:45 p.m., Colonel Bornhoft went to the Marine Corps Recruit Depot ID Card Processing Center in San Diego, California to obtain benefits for Stephen. Even though Stephen is already enrolled in the DEERS system because of his own military service, Colonel Bornhoft was told that same-sex legal spouses are not entitled to the benefits that he sought. Plaintiffs Gary C. Ross and Dan Swezy 42. Plaintiff Lieutenant Gary C. Ross, USN, is a citizen of the United States. He resides in Tucson, Arizona. He is legally married, pursuant to the laws of Vermont, to his husband Plaintiff Dan Swezy. 43. Lieutenant Ross is in the United States Navy, currently serving with the Joint Interoperability Test Command at Fort Huachuca, Arizona. His military service began in 1995. He served as a Surface Warfare Officer, as one of the Decommissioning Officers of the USS Valley Forge, as a Reactor Division Officer on the USS John C. Stennis, as the Pacific Fleet Commander at Recruit Training Command in Great Lakes, Illinois, and as the Alternate Chairman for the Coalition Warrior Interoperability Demonstration's Assessment Working
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Group. He was the second American in history to receive the Admiral De Grasse Award given on behalf of the French Chief of Naval Operations in recognition for leadership in seamanship, navigation and ship handling. He and his husband met in 2000 while Lieutenant Ross was attending the United States Naval Academy. They were married in Vermont at 12:01 a.m. on September 20, 2011. This was the very moment that the Don't Ask, Don't Tell Repeal Act became effective. 44. Plaintiffs are not able to afford health insurance for Dan, who must travel to Mexico for many health care services. This past September, Dan was crossing the Mexico-United States border on his way back from a medical procedure. Gunfire broke out at the border, and a customs agent and many civilians were hurt. Ever since that time, Plaintiffs have been especially anxious about Dan's health, knowing that he will have to cross the border to obtain care. 45. On October 14, 2011, at approximately 11:00 a.m., Lieutenant Ross went to the DEERS/ID Office at Fort Huachuca, Arizona to obtain benefits for his husband. He was told that the DEERS system does not allow same-sex couples to be enrolled, and that attempts to enroll same-sex spouses result in an error message. He also was told that military ID cards are only available for spouses who are enrolled in DEERS. Plaintiffs Steve M. Hill and Joshua Snyder 46. Plaintiff Captain Steve M. Hill, USAR, is a citizen of the United States. He resides in Columbus, Ohio, but is currently on deployment in Iraq. He is legally married, pursuant to the laws of the District of Columbia, to his husband, Plaintiff Joshua Snyder. 47. Captain Hill is currently serving in the United States Army in Iraq. Captain Hill's military service began in 1988. During his tenure with the military, he has been stationed in Germany, Asia and Egypt. He also served in Iraq during Operation Desert Storm. He and his
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husband met in 2010. They were married in the Congressional Cemetery in Washington, D.C. at the grave of Leonard Matlovich on May 3, 2011. Matlovich, a deceased Vietnam veteran, successfully sued the Air Force for retirement benefits after he was discharged for acknowledging his sexual orientation. 48. Just days after the couple's wedding, Captain Hill returned to duty in Tikrit, Iraq. Because the Army does not recognize Joshua as Captain Hill's spouse, if Captain Hill were to be killed while on deployment, the Army would be unwilling to return his body to Joshua, and Joshua would not receive a surviving spouse death benefit. 49. On September 26, 2011, at approximately 3:00 p.m., Captain Hill spoke with Major Richard Sugarman, Command Judge Advocate, Al Asad Air Base, Iraq about obtaining benefits for his husband, Plaintiff Joshua Snyder. During that conversation, Captain Hill was told that he could not enroll Joshua in the DEERS system and that enrolling same-sex legal spouses in that system is impossible. Plaintiff also was told that Joshua cannot receive benefits that oppositesex legal spouses receive because the Army is following the law. Plaintiffs Daniel and Jerret Henderson 50. Plaintiff Airman First Class Daniel Henderson, USAF, is a citizen of the United States. He resides in Cheyenne, Wyoming. He is legally married, pursuant to the laws of the State of Iowa, to his husband, Plaintiff Jerret Henderson. 51. Airman First Class Henderson is currently serving in the United States Air Force in Cheyenne, Wyoming. His military service began in 2010, and he has been stationed in Lackland, Texas and in Cheyenne, Wyoming. He and his husband met in 2009 and were married in Sidney, Iowa, on May 19, 2011.
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52. Plaintiffs cannot afford medical insurance for Jerret. In March of 2010, Jerret fell down a flight of stairs while at work and suffered severe injuries. He has trouble walking and needs surgery, but the couple cannot afford this necessary treatment. 53. On September 21, 2011, at approximately 10:30 a.m., Airman First Class Henderson went to the Military Personnel Flight Office in Cheyenne, Wyoming to obtain benefits for Jerret. At that time, he was told that same-sex spouses are not eligible for DEERS registration. On September 26, 2011, he received a phone call indicating that he was denied the housing allowance that he sought because same-sex couples are not entitled to the allowance. Plaintiffs Charlie and Karen Morgan 54. Plaintiff Chief Warrant Officer Charlie Morgan, ARNG, is a citizen of the United States. She resides in Rye, New Hampshire. She and her wife, Plaintiff Karen Morgan, are married pursuant to the laws of the State of New Hampshire. 55. Chief Warrant Officer Morgan is currently serving in the New Hampshire National Guard and is stationed at Joint Force Headquarters in Concord, New Hampshire. Chief Warrant Officer Morgan is a full-time member of the Army National Guard in the Active Guard Reserve. Chief Warrant Officer Morgan's military service began in 1982. Since that time, she has served in Kuwait, Qatar and Iraq. She and her wife, Plaintiff Karen Morgan, met in 1997 and have been together since August of that year. They were married in New Hampshire on October 24, 2011. 56. In 2008, Chief Warrant Officer Morgan was diagnosed with breast cancer, and has undergone chemotherapy, radiation treatment and a double mastectomy. On September 1, 2011, Chief Warrant Officer Morgan was diagnosed with recurring cancer. Plaintiffs are especially concerned with obtaining all the death benefits and burial rights that opposite-sex couples receive.
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57. In late July of 2011, Chief Warrant Officer Morgan received an application to participate in the mandatory Yellow Ribbon Reintegration Event. During that time, Chief Warrant Officer Morgan and Karen were in a legally-recognized civil union. Families are strongly encouraged to attend this event, and the application requested information about Chief Warrant Officer Morgan's spouse. Because Karen is not a DEERS dependent, she is not permitted to attend this event. After contacting United States Senator Jeanne Shaheen about this problem, Charlie received a letter, addressed to Senator Shaheen, from Major General William N. Reddel, III of the New Hampshire National Guard. That letter, dated September 26, 2011 stated that "[p]articipation at a Yellow Ribbon Event is a military benefit limited to Service members and their families as recognized by the Defense Enrollment Eligibility Reporting System (DEERS). Specifically, the Defense of Marriage Act (DOMA) prohibits the extension of many benefits to same sex couples . . . . I am sorry that we could not provide a better solution to this issue." Ultimately, due to Senator Shaheen's intervention, the military granted a one-time exception. 58. On October 25, 2011 at approximately 2:00 p.m., Plaintiffs entered the ID Card section located at Pease Air Force Base in Portsmouth, New Hampshire to obtain benefits for Karen. Sue Williams, the customer service representative, attempted to process Karen into the RAPIDS system in order to register her for DEERS. After entering Karen's information, Ms. Williams encountered an error message stating "sponsor and spouse cannot have the same gender" in red letters in the notes section of the screen. Plaintiffs Joan Darrah and Jacqueline Kennedy 59. Plaintiff Captain Joan Darrah, USN (Ret.) is a citizen of the United States. She resides in Alexandria, Virginia. She is legally married, pursuant to the laws of the District of Columbia, to her wife, Plaintiff Jacqueline Kennedy.
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60. On September 11, 2001, Captain Darrah was stationed at the Navy Annex, located just above the Pentagon. That morning she attended a briefing at the Pentagon that ended just seven minutes before the building was hit by American Airlines flight #77. The space she had been in was destroyed, and seven of her co-workers were killed. Had Captain Darrah been killed or injured, Jacqueline would not have been notified -- Captain Darrah dared not include Jacqueline's name in any of her emergency paperwork due to her fear of DADT and its repercussions. The experience caused Plaintiffs to fully comprehend the sacrifice that living under the DADT regime demanded. It caused them to reevaluate their lives together, and they decided to retire one year earlier than they had planned. 61. On December 17, 2010, Captain Darrah and Jacqueline were married at the Einstein Memorial in Washington, D.C. This date coincided with their twentieth anniversary as a couple. 62. On Monday, October 24, 2011, at approximately 9:41 a.m., Captain Darrah spoke with Mr. Lowrie at customer service at the Personnel Support Detachment Office in Washington, D.C. Captain Darrah asked Mr. Lowrie whether she could update her DEERS profile to include Jacqueline. Mr. Lowrie told Captain Darrah that same-sex spouses are not recognized by DEERS.
The Defendants 63. Defendant Leon E. Panetta is the duly appointed, confirmed, and acting Secretary of Defense of the United States. In that official capacity, Defendant is the federal official responsible for the administration of the United States Army, Navy, Marine Corps, and Air Force. Defendant is named in his official capacity only. 64. Defendant Eric H. Holder, Jr. is the duly appointed, confirmed, and acting Attorney General of the United States. In that official capacity, Defendant is the federal official
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responsible for all enforcing federal statutes in accordance with the Constitution. Defendant is named in his official capacity only. 65. Defendant Eric K. Shinseki is the duly appointed, confirmed, and acting Secretary of Veterans Affairs of the United States. In that official capacity, Defendant is the federal official responsible for the administration of Veteran's Affairs. Defendant is named in his official capacity only. 66. The United States of America is named as a defendant because this action challenges the constitutionality of an Act of Congress. 28 U.S.C. § 2403(A).
Facts Military Benefits 67. The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well. 68. Plaintiffs seek all the support services and benefits available to their peers who have opposite-sex spouses, including retirement benefits, an additional housing allowance, family separation benefits, extended coverage for TRICARE, a military ID card for the service
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member's spouses and, in the event the service member dies serving their country, the spousal death benefit.
DOMA 69. DOMA provides, in relevant part, "[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United 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." 1 U.S.C. § 7. 70. In passing DOMA, 1 U.S.C. § 7, Congress took the unprecedented step of preemptively subordinating an entire classification of marriages and, indeed, an entire class of people. Plaintiffs are among those affected. 71. At the time of DOMA's passage in 1996, same-sex marriage did not exist in any state and the Act existed in a vacuum. 72. Today, however, DOMA operates to effectively subordinate Plaintiffs' legally recognized same-sex marriages. As a result, Plaintiffs have been denied the privileges normally available to all service members by virtue of their immutable status as gays and lesbians. 73. As a direct result of DOMA's application to federal military benefits, Plaintiffs have been denied the status and protections enjoyed by their peers in opposite-sex marriages. 74. In passing DOMA, Congress set forth four rationales. First, Congress cited a government interest in defending and nurturing the institution of traditional, heterosexual marriage. H.R. Rep. No. 104-664, 12 (1996). Second, Congress affirmed an interest in defending traditional notions of morality. Id. at 15. Third, Congress stated its interest in protecting state sovereignty and democratic self-governance. Id. at 16. Finally, Congress maintained that DOMA furthers its
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 20 of 34
interest in preserving scarce government resources. Id. at 18. None of these stated objectives is furthered by the Act; moreover, these objectives do not justify the Act's unconstitutional exclusion of same-sex marriages from federal recognition for the purposes of military benefits. Rather than a "defense of marriage," DOMA would require the Plaintiffs to divorce and marry someone else of the opposite sex to obtain spousal benefits. 75. This Court already has held DOMA unconstitutional in Massachusetts and Gill. 76. If not for the restrictive definition of "spouse" in DOMA, and the definitions in Title 10, Title 32 and Title 38, to the extent those definitions would prohibit recognition of same-sex spouses, Plaintiffs, as legally-married members of the military, would receive the same benefits as their peers with opposite-sex spouses. Yet, because the military must obey these statutes it is forced to single out the Plaintiffs, to deny the validity of their legally-recognized marriages, and to deny them the benefits they should receive.
Legalization of Same-Sex Marriage 77. Same-sex marriages are legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and Washington, D.C., and some same-sex couples were legally married in California. 78. Massachusetts was the first state in the country to legalize same-sex marriage. On November 18, 2003, the Massachusetts Supreme Judicial Court invalidated a state constitutional provision that prohibited same-sex marriage in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Same-sex marriages in Massachusetts began on May 17, 2004. 79. On May 15, 2008, the California Supreme Court overturned a state ban on same-sex marriage. Same-sex marriages in California began on June 16, 2008. California stopped performing same-sex marriages on November 5, 2008 as a result of the passing of Proposition 8.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 21 of 34
80. On April 3, 2009 the Iowa Supreme Court invalidated a state law that prohibited samesex marriage in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). Same-sex marriages in Iowa began on April 27, 2009. 81. On April 7, 2009, the Vermont state legislature passed a bill recognizing same-sex marriage. Same-sex marriages in Vermont began on September 1, 2009. 82. On June 3, 2009, the New Hampshire state legislature approved a bill legalizing same-sex marriage in that state. Same-sex marriages in New Hampshire began on January 1, 2010. 83. On December 18, 2009, the District of Columbia's Mayor Adrian Fenty signed a bill passed by the Council of the District of Columbia recognizing same-sex marriage. Same-sex marriages in the District of Columbia began on March 9, 2010.
Repeal of DADT 84. On December 22, 2010, President Obama signed the Don't Ask, Don't Tell Repeal Act of 2010. Pursuant to that Act, the repeal of 10 U.S.C. § 654 became effective on September 20, 2011. Since that time, Plaintiffs have openly acknowledged their legal, same-sex marriages and have applied for federal military benefits for their spouses. The extension of these benefits was effectively denied to each Plaintiff when they were denied the opportunity to add their legally recognized same-sex spouses to DEERS or were otherwise denied the opportunity to apply for benefits.
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Causes of Action TITLE 10
COUNT I: TITLE 10, INDEPENDENTLY AND AS MODIFIED BY DOMA, VIOLATES PLAINTIFFS' EQUAL PROTECTION RIGHTS
85. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Victoria A. Hudson, Monika Poxon, Gary C. Ross, Dan Swezy, Steve M. Hill, Joshua Snyder, Daniel Henderson, Jerret Henderson, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 86. Title 10 of the United States Code governs, inter alia, benefits for members of the armed services. 87. DOMA requires the federal government to treat couples in same-sex marriages differently than couples in opposite-sex marriages. DOMA's application to federal military benefits in Title 10 mandates unequal treatment, rendering same-sex marriages non-existent for the purposes of military benefits. Consequently, Plaintiffs were denied military benefits that have been extended to their peers in opposite-sex relationships in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States. 88. To the extent that the definition of "spouse" in 10 U.S.C. § 101(f)(5) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
COUNT II: TITLE 10, INDEPENDENTLY AND AS MODIFIED BY DOMA, VIOLATES THE TENTH AMENDMENT AND CONSTITUTIONAL PRINCIPLES
OF FEDERALISM 89. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Victoria A. Hudson, Monika Poxon, Gary C. Ross, Dan Swezy, Steve M. Hill, Joshua Snyder, Daniel Henderson, Jerret
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 23 of 34
Henderson, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 90. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government. 91. The Tenth Amendment preserves for the states the authority to regulate and define marriage for their citizens. 92. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage. 93. DOMA represents an unprecedented, unjustified and unconstitutional expansion of federal regulation into the field of domestic relations, including marriage. 94. Section 3 of DOMA violates the Tenth Amendment, exceeds Congress' Article I powers, and runs afoul of the Constitution's principles of federalism by undermining the states' sovereign authority to define marriage and regulate the marital relationships and status of their citizens, as applied to Title 10. 95. As a direct result of DOMA's unconstitutional expansion of federal regulation into the field of domestic relations, Plaintiffs have been denied federal military benefits that have been extended to their peers in opposite-sex marriages. 96. To the extent that the definition of "spouse" in 10 U.S.C. § 101(f)(5) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 24 of 34
COUNT III: TITLE 10, INDEPENDENTLY AND AS MODIFIED BY DOMA, PLACES AN UNCONSTITUTIONAL CONDITION ON THE FUNDAMENTAL RIGHT TO
MARRY IN ACCORDANCE WITH STATE LAW 97. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Victoria A. Hudson, Monika Poxon, Gary C. Ross, Dan Swezy, Steve M. Hill, Joshua Snyder, Daniel Henderson, Jerret Henderson, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 98. Section 3 of DOMA forces Plaintiffs to renounce their fundamental constitutional right to marry in accordance with state law to obtain federal military spousal benefits under Title 10. To obtain federal military spousal benefits, the Plaintiffs would have to divorce their same-sex spouses and then marry someone of the opposite sex. This imposes an unconstitutional condition on the exercise of the fundamental constitutional right to marry the person of one's choice in accordance with state law. 99. To the extent that the definition of "spouse" in 10 U.S.C. § 101(f)(5) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
COUNT IV: TITLE 10, INDEPENDENTLY AND AS MODIFIED BY DOMA, IS AN IMPERMISSIBLE BILL OF ATTAINDER
100. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Victoria A. Hudson, Monika Poxon, Gary C. Ross, Dan Swezy, Steve M. Hill, Joshua Snyder, Daniel Henderson, Jerret Henderson, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 101. Article I, Section 9 of the United States Constitution states that "No Bill of Attainder or ex post facto Law shall be passed."
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 25 of 34
102. The Bill of Attainder clause prohibits as unconstitutional any law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. 103. As a direct result of DOMA's application to federal military benefits in Title 10, the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder. 104. To the extent that the definition of "spouse" in 10 U.S.C. § 101(f)(5) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
TITLE 32 COUNT V: TITLE 32, INDEPENDENTLY AND AS MODIFIED BY DOMA,
VIOLATES PLAINTIFFS' EQUAL PROTECTION RIGHTS 105. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 106. Title 32 of the United States Code governs, inter alia, benefits for members of the National Guard. 107. DOMA requires the federal government to treat married couples in same-sex marriages differently than married couples in opposite-sex marriages. DOMA's application to federal military benefits in Title 32 mandates unequal treatment, making certain marriages non-existent
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 26 of 34
for the purposes of military benefits. Consequently, Plaintiffs were denied military benefits that have been extended to their peers in opposite-sex relationships in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States. 108. To the extent that the definition of "spouse" in 32 U.S.C. § 101(18), can be construed, independent of Section 3 of DOMA to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
COUNT VI: TITLE 32, INDEPENDENTLY AND AS MODIFIED BY DOMA, VIOLATES THE TENTH AMENDMENT AND CONSTITUTIONAL PRINCIPLES OF
FEDERALISM 109. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 110. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government. 111. The Tenth Amendment preserves for the states the authority to regulate and define marriage for their citizens. 112. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage. 113. DOMA represents an unprecedented, unjustified and unconstitutional expansion of federal regulation into the field of domestic relations, including marriage. 114. Section 3 of DOMA violates the Tenth Amendment, exceeds Congress' Article I powers, and runs afoul of the Constitution's principles of federalism by undermining the states' sovereign authority to define marriage and regulate the marital relationships and status of their citizens, as applied to Title 32.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 27 of 34
115. As a direct result of DOMA's unconstitutional expansion of federal regulation into the field of domestic relations, Plaintiffs have been denied federal military benefits that have been extended to their peers in opposite-sex marriages. 116. To the extent that the definition of "spouse" in 32 U.S.C. § 101(18), can be construed, independent of Section 3 of DOMA to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
COUNT VII: TITLE 32, INDEPENDENTLY AND AS MODIFIED BY DOMA, PLACES AN UNCONSTITUTIONAL CONDITION ON THE FUNDAMENTAL RIGHT TO
MARRY IN ACCORDANCE WITH STATE LAW 117. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 118. Section 3 of DOMA forces Plaintiffs to renounce their fundamental constitutional right to marry in accordance with state law to obtain federal military spousal benefits under Title 32. To obtain federal military spousal benefits, the Plaintiffs would have to divorce their same-sex spouses and then marry someone of the opposite sex. This imposes an unconstitutional condition on the exercise of the fundamental constitutional right to marry the person of one's choice in accordance with state law. 119. To the extent that the definition of "spouse" in 32 U.S.C. § 101(18) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 28 of 34
COUNT VIII: TITLE 32, INDEPENDENTLY AND AS MODIFIED BY DOMA, IS AN IMPERMISSIBLE BILL OF ATTAINDER
120. Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Charlie Morgan and Karen Morgan reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 121. Article I, Section 9 of the United States Constitution states that "No Bill of Attainder or ex post facto Law shall be passed." 122. The Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. 123. As a direct result of DOMA's application to federal military benefits in Title 32, the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder. 124. To the extent that the definition of "spouse" in 32 U.S.C. § 101(18) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 29 of 34
TITLE 38 COUNT IX: TITLE 38, INDEPENDENTLY AND AS MODIFIED BY DOMA,
VIOLATES PLAINTIFFS' EQUAL PROTECTION RIGHTS 125. Plaintiffs Stewart Bornhoft, Stephen McNabb, Joan Darrah and Jacqueline Kennedy reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 126. Title 38 of the United States Code governs, inter alia, benefits for armed services veterans. 127. DOMA requires the federal government to treat married couples in same-sex marriages differently than married couples in opposite-sex marriages. DOMA's application to federal military benefits under Title 38 mandates unequal treatment, making certain marriages nonexistent for the purposes of military benefits. Consequently, Plaintiffs were denied military benefits that have been extended to their peers in opposite-sex relationships in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States. 128. To the extent that the definitions of "spouse" in 38 U.S.C. §§ 101(3) and 101(31) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, it suffers from the same constitutional defects as Section 3 of DOMA.
COUNT X: TITLE 38, INDEPENDENTLY AND AS MODIFIED BY DOMA, VIOLATES THE TENTH AMENDMENT AND CONSTITUTIONAL PRINCIPLES OF
FEDERALISM 129. Plaintiffs Stewart Bornhoft, Stephen McNabb, Joan Darrah and Jacqueline Kennedy reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 30 of 34
130. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government. 131. The Tenth Amendment preserves for the states the authority to regulate and define marriage for their citizens. 132. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage. 133. DOMA represents an unprecedented, unjustified and unconstitutional expansion of federal regulation into the field of domestic relations, including marriage. 134. Section 3 of DOMA violates the Tenth Amendment, exceeds Congress' Article I powers, and runs afoul of the Constitution's principles of federalism by undermining the states' sovereign authority to define marriage and regulate the marital relationships and status of their citizens, as applied to Title 38. 135. As a direct result of DOMA's unconstitutional expansion of federal regulation into the field of domestic relations, Plaintiffs have been denied federal military benefits that have been extended to their peers in opposite-sex marriages. 136. To the extent that the definitions of "spouse" in 38 U.S.C. §§ 101(3) and 101(31) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, they suffer from the same constitutional defects as Section 3 of DOMA. COUNT XI: TITLE 38, INDEPENDENTLY AND AS MODIFIED BY DOMA, PLACES AN
UNCONSTITUTIONAL CONDITION ON THE FUNDAMENTAL RIGHT TO MARRY IN ACCORDANCE WITH STATE LAW
137. Plaintiffs Stewart Bornhoft, Stephen McNabb, Joan Darrah and Jacqueline Kennedy reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein.
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 31 of 34
138. Section 3 of DOMA forces Plaintiffs to renounce their fundamental constitutional right to marry in accordance with state law to obtain federal military spousal benefits. To obtain federal military spousal benefits, the Plaintiffs would have to divorce their same-sex spouses and then marry someone of the opposite sex. This imposes an unconstitutional condition on the exercise of the fundamental constitutional right to marry the person of one's choice in accordance with state law. 139. To the extent that the definitions of "spouse" in 38 U.S.C. §§ 101(3) and 101(31) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, they suffer from the same constitutional defects as Section 3 of DOMA.
COUNT XII: TITLE 38, INDEPENDENTLY AND AS MODIFIED BY DOMA, IS AN IMPERMISSIBLE BILL OF ATTAINDER
140. Plaintiffs Stewart Bornhoft, Stephen McNabb, Joan Darrah, and Jacqueline Kennedy reallege and incorporate by reference all allegations contained within paragraphs 1-84 as if set forth fully herein. 141. Article I, Section 9 of the United States Constitution states that "No Bill of Attainder or ex post facto Law shall be passed." 142. The Bill of Attainder clause prohibits as unconstitutional any law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. 143. As a direct result of DOMA's application to federal military benefits in Title 38, the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if
31

Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 32 of 34
not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder. 144. To the extent that the definitions of "spouse" in 38 U.S.C. §§ 101(3) and 101(31) can be construed, independent of Section 3 of DOMA, to prevent recognition of same-sex spouses, they suffer from the same constitutional defects as Section 3 of DOMA.
WHEREFORE, Plaintiffs pray for a judgment and order: (a) Declaring that Title 10, independently and as modified by DOMA, 1 U.S.C. § 7, cannot be constitutionally applied to deny benefits to same-sex married couples, including Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Victoria A. Hudson, Monika Poxon, Gary C. Ross, Dan Swezy, Steve M. Hill, Joshua Snyder, Daniel Henderson, Jerret Henderson, Charlie Morgan and Karen Morgan; (b) Declaring that Title 32, independently and as modified by DOMA, 1 U.S.C. § 7, cannot be constitutionally applied to deny benefits to same-sex married couples, including Plaintiffs Shannon L. McLaughlin, Casey McLaughlin, Charlie Morgan and Karen Morgan; (c) Declaring that Title 38, independently and as modified by DOMA, 1 U.S.C. § 7, cannot be constitutionally applied to deny benefits to same-sex married couples, including Plaintiffs Stewart Bornhoft, Stephen McNabb, Joan Darrah and Jacqueline Kennedy; (d) Enjoining Defendants from continuing to discriminate against Plaintiffs because they have lawfully married someone of the same gender. Specifically, Plaintiffs ask the Court to issue an injunction requiring Defendants to consider Plaintiffs' claims for benefits without regard to the gender of their spouses; (e) Granting such other relief as the Court may deem just, including an award of reasonable attorneys' fees and allowed costs pursuant to 28 U.S.C. § 2412. President Obama swore to
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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 33 of 34

uphold the Constitution, taking the same oath as the members of this Court. The President has
stated his view that Section 3 of DOMA, as applied to same-sex couples who are legally married
under state law, violates the equal protection component of the Fifth Amendment, and this Court
has agreed. Yet, the President also has informed the Department of Justice that Section 3 of
DOMA will continue to be enforced by the Executive Branch, despite its unconstitutionality.
This conflicted position of the Executive Branch enforcing a law it knows to be unconstitutional
is not substantially justified. See 5 U.S.C. § 504(a)(2).
MAJ Shannon L. McLaughlin Casey McLaughlin LTC Victoria A. Hudson Monika Poxon COL Stewart Bornhoft (Ret) Stephen McNabb LT Gary C. Ross Dan Swezy CPT Steve M. Hill Joshua Snyder A1C Daniel Henderson Jerret Henderson CW2 Charlie Morgan Karen Morgan CAPT Joan Darrah (Ret) Jacqueline Kennedy
By their Attorneys,

/s/ Ian McClatchey Ian McClatchey, BBO No. 676664 IMcClatchey@Chadbourne.com CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-5303 (phone) (646) 710-5303 (fax)

/s/ John M. Goodman John M. Goodman JGoodman@SLDN.org David McKean DMcKean@SLDN.org SERVICEMEMBERS LEGAL DEFENSE NETWORK Post Office Box 65301 Washington, DC 20035 (202) 621-5401 (phone) (202) 797-1635 (fax)

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Case 1:11-cv-11905 Document 1 Filed 10/27/11 Page 34 of 34
/s/ Abbe David Lowell Abbe David Lowell ADLowell@Chadbourne.com Christopher D. Man CMan@Chadbourne.com CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036 (202) 974-5600 (phone) (202) 974-5602 (fax)
34

Case 1:11-cv-11905 Document 1-1 Filed 10/27/11 Page 1 of 2

JS 44 (Rev. 12/07)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Í ¸¿²²± ² Ô òÓ ½Ô ¿«¹¸´·²ô»¬¿´ò

Ô »± ² Û òÐ ¿²»¬¬¿ô·² ¸·- ± ºº·½·¿´½¿° ¿½·¬§ ¿- Í »½®»¬¿®§ ± ºÜ »º»²- »ô »¬¿´ò

(b) County of Residence of First Listed Plaintiff Ò ± ®º± ´µôÓ ¿- - ¿½¸«- »¬¬-
(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant ß ®´·²¹¬± ²ôÊ·®¹·²·¿
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

×¿² Ó ½Ý ´¿¬½¸»§åÝ ¸¿¼¾± «®²» ú Ð ¿®µ» Ô Ô Ð åí ð Î ± ½µ»º»´´»® Ð ´¿¦¿

Ò »© Ç ± ®µôÒ »© Ç ± ®µ ïðïïîåÐ ¸± ²»æ øîïî÷ìðè óë í ðí

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff

(For Diversity Cases Only) Ò ± ¬ß ° ° ´·½¿¾´»

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

4

4

of Business In This State

2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business In Another State

5

5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a

3

Foreign Country

FORFEITURE/PENALTY

3 Foreign Nation BANKRUPTCY

6

6

OTHER STATUTES

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury
CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/
Accommodations 444 Welfare 445 Amer. w/Disabilities -
Employment 446 Amer. w/Disabilities -
Other 440 Other Civil Rights

PERSONAL INJURY 362 Personal Injury -
Med. Malpractice 365 Personal Injury -
Product Liability 368 Asbestos Personal
Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability
PRISONER PETITIONS 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure
of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational
Safety/Health 690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting
& Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc.
Security Act
IMMIGRATION 462 Naturalization Application 463 Habeas Corpus -
Alien Detainee 465 Other Immigration
Actions

422 Appeal 28 USC 158 423 Withdrawal
28 USC 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff
or Defendant) 871 IRS—Third Party
26 USC 7609

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/
Exchange 875 Customer Challenge
12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information
Act 900Appeal of Fee Determination
Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN 1 Original
Proceeding

(Place an “X” in One Box Only)

2 Removed from State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5

Transferred from another district

(specify)

6 Multidistrict Litigation

Appeal to District

7

Judge from Magistrate

Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): ï Ë òÍ òÝ òy é
VI. CAUSE OF ACTION Brief description of cause:

ß ² ¿- ó¿° ° ´·»¼ ½¸¿´´»²¹» ¬± ï Ë òÍ òÝ òy é ¾®± «¹¸¬¾§ ½«®®»²¬¿²¼ º± ®³ »® ³ »³ ¾»®- ± º¬¸» ß ®³ »¼ Í »®ª·½»- ò

VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND:

Yes è No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

Ì ¿«®±

DOCKET NUMBER Ò ± òïæðç ó½ªóïðí ðç óÖÔ Ì

DATE

SIGNATURE OF ATTORNEY OF RECORD

ïðñîé ñîðïï
FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:11-cv-11905 Document 1-1 Filed 10/27/11 Page 2 of 2

JS 44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes

unless diversity.

Example:

U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

Case 1:11-cv-11905 Document 1-2 Filed 10/27/11 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

1. Title of case (name of first party on each side only) Maj Shannon L McLaughlin, et al., Plaintiffs v. Leon E. Panetta, in his official capacity as Secretary of Defense, et al., Defendants

2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local rule 40.1(a)(1)).

I.

410, 441, 470, 535, 830*, 891, 893, 894, 895, R.23, REGARDLESS OF NATURE OF SUIT.

è

II.

110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442-446, 710, 720, 730, 740, 790, 820*, 840*, 850, 870, 871.

III.

120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 368, 385, 400, 422, 423,

450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 610, 620, 625, 630, 640, 650, 660, 690, 791, 810, 861-

865, 875, 890, 892, 900, 950.

*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.

3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this district please indicate the title and number of the first filed case in this court.
Nancy Gill & Marcelle Letourneau et al. v. Office of Personnel Management et al., Case 1:09-cv-10309-JLT

4. Has a prior action between the same parties and based on the same claim ever been filed in this court?

YES

NO è

5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC §2403)

YES è

NO

If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?

YES è

NO

6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?

YES

NO è

7. Do all of the parties in this action, excluding governmental agencies of the united states and the Commonwealth of Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).

YES

NO è

A.

If yes, in which division do all of the non-governmental parties reside?

Eastern Division

Central Division

Western Division

B.

If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,

residing in Massachusetts reside?

Eastern Division è

Central Division

Western Division

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes, submit a separate sheet identifying the motions)

YES

NO

(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME Ian McClatchey (BBO#: 676664) ADDRESS c/o Chadbourne & Parke LLP; 30 Rockefeller Plaza; New York, New York 10112 TELEPHONE NO. (212) 408-5303
(CategoryForm4-4-11.wpd - 4/4/11)

 
 Case 1:11-cv-11905-RGS Document 13 Filed 11/21/11 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

________________________________________

MAJ SHANNON L. MCLAUGHLIN, et al.

)

)

Plaintiffs,

)

)

v.

) No. 1:11-cv-11905-RGS

)

LEON E. PANETTA, in his official capacity as )

Secretary of Defense; et al.,

)

)

Defendants.

)

________________________________________ )

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

The Plaintiffs respectfully move, pursuant to Federal Rule of Civil Procedure 56(a), for

summary judgment in their favor as to all of the counts asserted in the Plaintiffs’ Complaint.

In support of this motion for summary judgment, Plaintiffs rely upon the following

documents that are being filed simultaneously with this motion:

(1) Plaintiffs’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 in Support of

Plaintiff’s Motion for Summary Judgment;

(2) Declarations from each of the Service Members or Veteran Plaintiffs who requested and was

denied federal benefits for their spouse, which are attached to Plaintiffs’ Statement of undisputed

Facts; and

(3) a Memorandum of Law in Opposition to Defendants’ Motion to Dismiss and in Support of

Plaintiffs’ Motion for Summary Judgment.

The reasons for granting the Plaintiffs’ motion are set forth in full in the Plaintiffs’

Memorandum of Law identified as Document (3) above.

CPAM: 4331279.1

Case 1:11-cv-11905-RGS Document 13 Filed 11/21/11 Page 2 of 2

CERTIFICATE UNDER LOCAL RULE 7.1(A)(2)

In accordance with Local Rule 7.1(a)(2), Plaintiffs' counsel conferred with counsel for the

government. The government has not announced a decision about the defense of this case. The

government has requested additional time to consider this motion and the complaint before filing

an answer or other responsive pleading, and the Plaintiffs are amenable to providing the

government with more time to do so.

REQUEST FOR ORAL ARGUMENT

The Plaintiffs believe that oral argument will assist the Court in the resolution of the

significant constitutional, and other, issues presented by this motion. Therefore, the Plaintiffs

request oral argument after these issues have been fully briefed.

Respectfully submitted,

/s/ Ian McClatchey Ian McClatchey, BBO No. 676664 IMcClatchey@Chadbourne.com CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-5303 (phone) (646) 710-5303 (fax)

/s/ John M. Goodman John M. Goodman JGoodman@SLDN.org David McKean DMcKean@SLDN.org SERVICEMEMBERS LEGAL DEFENSE NETWORK Post Office Box 65301 Washington, DC 20035 (202) 621-5401 (phone) (202) 797-1635 (fax)

/s/ Abbe David Lowell Abbe David Lowell ADLowell@Chadbourne.com Christopher D. Man CMan@Chadbourne.com CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036 (202) 974-5600 (phone) (202) 974-5602 (fax)

Counsel for Plaintiffs

Dated: November 21, 2011

2
CPAM: 4331279.1

 
 Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)
SHANNON L. MCLAUGHLIN, et at., )

)

Plaintiffs,

)

)

v.

)

)

CHUCK HAGEL, et al.,

)

)

Defendants.

)

Civil Action No.1: ll-cv-11905-RGS

Plaintiffs, veterans and members of the U.S. armed forces and their same-sex spouses, filed this action on October 27,20 I I, challenging the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), I U.S.C. § 7, and the provisions defining the terms "spouse" and "surviving spouse" in Titles 10,32, and 38 of the United States Code, which govern military and veterans benefits. Plaintiffs filed a motion for summary judgment on November 21,2011 [# I4], and this Court subsequently stayed this action on June 6, 2012.
On June 26, 2013, the Supreme Court held in United States v. Windsor, 133 S. Ct. 2675, 2693 (2013), that Section 3 of DOMA "violates basic due process and equal protection principles" and is therefore unconstitutional. In light of Windmr, the Department of Defense ("DoD") represented that it will now construe the term "spouse" in Titles 10 and 32 to include same-sex spouses. The President also has directed that the Executive Branch cease enforcement of Sections 10 I(3) and 10 I(31) of Title 38 to the extent they limit veterans' benefits to oppositesex couples, and the Department of Veterans Affairs ("VA") is working to implement this directive. Having considered these developments and the record,

Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 2 of 4
It is ORDERED AND ADJUDGED that the rights of the Plaintiffs are declared as follows:
(1) The definitions of the term "spouse" in Section 101(f)(5) of Title 10 of the U.S. Code and Section 101(18) ofTitIe 32 of the U.S. Code are unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment as applied to Plaintiffs by the Department of Defense in the administration of military benefits governed by Titles 10 and 32, to the extent those definitions are construed to limit the provision of military benefits to married opposite-sex couples and precluded Plaintiffs from registering the spouse plaintiffs in the Defense Enrollment Eligibility Reporting System ("DEERS").
(2) Plaintiffs Shannon McLaughlin and Casey McLaughlin are entitled to apply for benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Casey McLaughlin in DEERS as a spouse, effective as of October 19, 20 II, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(3) Plaintiffs Victoria Hudson and Monika Paxon are entitled to apply for benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Monika Paxon in DEERS as a spouse, effective as of October 14, 2011, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(4) Plaintiffs Stewart Bornhoft and Stephen McNabb are entitled to apply for, benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Stephen McNabb in DEERS as a spouse, effective as of October 11,
2

Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 3 of 4
20 II, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(5) Plaintiffs Gary Ross and Dan Swezy are entitled to apply for benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Dan Swezy in DEERS as a spouse, effective as of October 14,2011, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(6) Plaintiffs Steven Hill and Joshua Snyder are entitled to apply for benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Joshua Snyder in DEERS as a spouse, effective as of September 26, 2011, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(7) Plaintiffs Daniel Henderson and Jerret Henderson are entitled to apply for benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Jerret Henderson in DEERS as a spouse, effective as of September 21, 2011, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(8) Plaintiff Karen Morgan is entitled to apply for benefits under Title 10 and Title 32, for which Charlie Morgan and Karen Morgan previously were precluded from applying because of their inability to register Karen Morgan in DEERS as a spouse, effective as of October 25,2011, the date on which they attempted the DEERS registration. Karen Morgan is entitled to have that application evaluated without regard to being a couple of the same gender.
3

Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 4 of 4

(9) Plaintiffs Joan Darrah and Jacqueline Kennedy are entitled to apply for benefits under Title 10 and Title 32, for which they previously were precluded from applying because of their inability to register Jacqueline Kennedy in DEERS as a spouse, effective as of October 24, 2011, the date on which they attempted the DEERS registration. They are entitled to have that application evaluated without regard to being a couple of the same gender.
(10) The definitions of the terms "spouse" and "surviving spouse" in Sections 101 (3) and (31) of Title 38 of the U.S. Code are unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment as applied to Plaintiffs by the Department of Veterans Affairs in the administration of veterans' benefits governed by Title 38 to the extent those definitions are construed to limit the provision of veterans' benefits to married oppositesex couples.

Dated: /O-~-/~.

Judge Richard G. Steams

4

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 11-11905-RGS SHANNON I. MCLAUGHLIN, et al.
v. CHUCK HAGEL, et al.
MEMORANDUM AND ORDER ON PLAINTIFFS’ APPLICATION FOR AN AWARD OF ATTORNEY’S FEES AND COSTS December 17, 2013
STEARNS, D.J. Plaintiffs, as the prevailing parties in this constitutional challenge to the
application of Section 3 of the Defense of Marriage Act (DOMA),1 1 U.S.C. § 7, to same-sex military spouses, seek an award of attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. §§ 2412(a)(1) & (d), in the amount of $170,229 (plus costs of $350). Under the EAJA, the United States is not liable for attorney’s fees if its litigating position was “substantially justified . . . to a degree that could satisfy a reasonable person.” Pierce v. , Underwood 487 U.S. 552, 564-565 (1988).
1 Section 3 of DOMA applied to definitions of marriage in Title 10, Title 32, and Title 38 of the United States Code as they affected active service members, veterans, and their spouses. I will use Section 3 in its collective sense as referring to all relevant applications of DOMA in this litigation.

Some background is in order. Plaintiffs filed this lawsuit on October 27, 2011. Eight months earlier, President Obama had determined that classifications based on sexual orientation were subject to a heightened standard of scrutiny that DOMA could not meet with respect to legallymarried, same-sex couples. As a consequence, he ordered the Department of Justice to cease its legal defense of equal protection challenges to Section 3. However, in deference to the Congress, the President also instructed the Executive Branch to continue to enforce Section 3 pending its possible repeal by Congress or a definitive verdict from the judicial branch.
Before this ligation was meaningfully joined, at the parties’ request, the court entered a stay in deference to two cases then pending in the First Circuit involving similar challenges to Section 3 of DOMA. On May 31, 2012, the First Circuit ruled Section 3 unconstitutional, but withheld the issuance of its mandate given the “highly likely” imminent review of DOMA by the United States Supreme Court. , 682 F.3d 1, 17 (1st Cir. See Massachusetts v. HHS 2012). In conformity with the First Circuit’s decision, this court continued the stay of the instant ligation (over plaintiffs’ objection). On June 26, 2013, the Supreme Court decided United States v. , Windsor 133 S. Ct. 2675 (2013), by a 5-to-4 vote, the majority of Justices holding Section 3 of DOMA unconstitutional under the Equal Protection Clause of the Fifth Amendment.
2

This court immediately responded with an Order to the parties to show cause why, in light of Windsor, judgment should not enter for plaintiffs. On October 2, 2013, the court adopted and entered the parties’ proposed form of final judgment declaring DOMA unconstitutional as applied to plaintiffs.
The sole issue in determining whether plaintiffs are entitled to an award of attorney’s fees is whether the government has met its burden of showing that its litigating position that, in deference to Congress, it would continue to enforce Section 3 of DOMA until the courts (or Congress itself) had definitively spoken, while in the interim conceding the unconstitutionality of Section 3, lacked substantial justification. To answer this question, the court need go no further than the Windsor decision itself. As the High Court recognized, the approach taken by the President of preserving the justiciability of Section 3 of DOMA by continuing to enforce it despite a personal belief that the statute was unconstitutional, paid the appropriate respect to the primacy of the Supreme Court in matters of constitutional interpretation. As the Court stated in echoing Marbury v. ’s Madison seminal definition oftheseparation-of-powers,
if the Executive’s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is
3

alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’” , Windsor 133 S. Ct. at 2688-2689 (internal citations omitted). The issue is not dissimilar from the controversy over the self-asserted right of Presidents on signing Congressional enactments to declare which portions of the law they will or will not personally enforce.2 The practice led the American Bar Association to declare its opposition “as contrary to the rule of law and our constitutional system of separation of powers, a President’s issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of the law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress . . . .” Am. Bar Ass’n, Report of the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine 1 (2006) . It is not that the President could not have ended all enforcement of Section 3 by executive fiat – the government is careful to make the point that it was among his prerogatives to do so – the issue is whether under the circumstances to do so
2 In their reply brief, plaintiffs point to a President Bush-era defense of signing statements offered to Congress by Deputy Assistant Attorney General John P. Elwood as supporting their argument that President Obama acted unreasonably in enforcing DOMA despite his personal conviction that the statute was unconstitutional.
4

would have been constitutionally reasonable. It is clear from Windsor that the Supreme Court would have thought not.
In sum, this court would be loath to deem unjustified by any substantial measure a litigating position that has its roots in the very fundamentals of our constitutional form of government.3
ORDER For the foregoing reasons, the application for an award of attorney’s fees is DENIED.4
SO ORDERED. /s/ Richard G. Stearns ________________________ UNITED STATES DISTRICT JUDGE
3 The reasonableness of the President’s litigating decision is further underscored by the fact that four Justices in Windsor would have found Section 3 of DOMA constitutional. Had the President taken the contrary course, and had the Court ruled differently (assuming a finding of justiciability), the decision would have wreaked havoc on many more lives than did the relatively brief delay in the plaintiffs’ obtaining a full vindication of their rights.
4 Given the court’s determination that a fee award is not justified under the EAJA’s “substantially justified” test, it is unnecessary for the court to address the government’s arguments that special circumstances would render an award in this case unjust or, alternatively, that the number of hours billed by plaintiffs’ attorneys in the fee petition is grossly excessive.
5

 
 Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u1menDt a7t1e FFilieledd: 09/23/210414PageEn1troyf I1D5: 5854823

United States Court of Appeals
For the First Circuit

No. 14-1035
MAJ. SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC. VICTORIA A. HUDSON; MONIKA POXON; COL. STEWART BORNHOFT; STEPHEN MCNABB; LT. GARY C. ROSS; DAN SWEZY; CPT. STEVE M. HILL;
JOSHUA SNYDER; A1C DANIEL HENDERSON; JERRET HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN; CPT. JOAN DARRAH; JACQUELINE KENNEDY,
Plaintiffs, Appellants,
v.
CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, JR., in his official capacity as Attorney
General; ERIC K. SHINSEKI, in his official capacity as Secretary of Veterans Affairs; UNITED STATES,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Lynch, Chief Judge, Torruella and Ripple,* Circuit Judges.

Christopher D. Man , with whom Abbe David Lowell

, and

Chadbourne & Parke LLP were on brief, for appellants.

Jeffrey E. Sandberg , Attorney, Appellate Staff, Civil

Division, with whom Michael E. Robinso,n Attorney, Appellate Staff,

Civil Division, Stuart F. Delery , Assistant Attorney General,

Carmen M. Ortiz , United States Attorney, and Michael Jay Singer ,

Attorney, Appellate Staff, Civil Division, were on brief, for

appellee.

*

Of the Seventh Circuit, sitting by designation.

Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u2menDt a7t1e FFilieledd: 09/23/210414PageEn2troyf I1D5: 5854823 September 23, 2014

Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u3menDt a7t1e FFilieledd: 09/23/210414PageEn3troyf I1D5: 5854823
LYNCH, Chief Judge. T h e p l a i n t i f f s ( " M c L a u g h l i n Group"), who prevailed in a constitutional challenge to Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, appeal from the district court's denial of fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. §§ 2412(a)(1) & (d). Whether prevailing parties who successfully challenged Section 3 of DOMA are entitled to fees under EAJA is an issue of first impression in any Court of Appeals.
On appeal, the McLaughlin Group argues that the government's position could not have been substantially justified because its pre-litigation and during-litigation position involved "knowingly and intentionally violat[ing] the [McLaughlin Group's] constitutional rights," and its litigate-to-lose strategy concedes that its position is not substantially justified.1 The McLaughlin Group also contends that, even if not entitled to fees, they are entitled to $350 in costs under a separate provision of the EAJA, 28 U.S.C. § 2412(a), and Fed. R. Civ. P. 54(d).
We reject these arguments. The district court's denial of fees was correct as a matter of law because the government reasonably believed its actions were constitutionally appropriate under the circumstances. See Aronov v. Napolitano, 562 F.3d 84, 94 (1st Cir. 2009) (en banc). And its denial of costs without comment
1 We use "government" to refer only to the Executive Branch, not to the Bipartisan Legal Advisory Group of the U.S. House of Representatives who intervened in this case.
-2-

Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u4menDt a7t1e FFilieledd: 09/23/210414PageEn4troyf I1D5: 5854823
was not an abuse of discretion because the reason for the denial -that the case was "close and difficult" -- was "readily apparent on the face of the record." See B. Fernández & HNOS, Inc. v. Kellogg USA, Inc. , 516 F.3d 18, 28 (1st Cir. 2008) (quoting In re Two Appeals Arising Out of the San Juan DuPont Plaza Hotel Fire Litig,. 994 F.2d 956, 963 & n.9 (1st Cir. 1993)).
I. The McLaughlin Group are active duty members of the United States armed forces and National Guard, veterans, and their same-sex spouses. On October 27, 2011, they brought suit against the United States of America, and Secretary of Defense Leon E. Panetta, Attorney General Eric H. Holder, Jr., and Secretary of Veterans Affairs Eric K. Shinseki, in their official capacities. The suit challenged the constitutionality of Section 3 of DOMA as applied to definitions of marriage in Title 10, Title 32, and Title 38 of the United States Code as they affect same-sex military spouses. President Obama had previously determined, eight months earlier in February 2011, that: (1) he personally believed that Section 3 of DOMA was unconstitutional; (2) out of deference to the courts and to Congress, and in light of the executive's obligation to faithfully execute the laws, the President would nonetheless
-3-

Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u5menDt a7t1e FFilieledd: 09/23/210414PageEn5troyf I1D5: 5854823

instruct that the executive branch continue to enforce

DOMA; however,

(3) this presented the "rare case" in which the

Department of Justice should decline to defend the

statute.

The government, pursuant to this Presidential position, did not

oppose the McLaughlin Group's suit on the merits.

At the parties' request, the district court stayed the

case in light of two other similar challenges that were then on

appeal before the First Circuit. This court held Section 3 of DOMA

invalid on May 31, 2012. SeeMassachusetts v. U.S. Dep't of Health

& Human Servs. , 682 F.3d 1 (1st Cir. 2012). The district court

continued the stay, over the McLaughlin Group's objection,

following this court's decision in that case, id.

at 17, to

withhold issuance of a mandate in deference to anticipated DOMA

challenges before the Supreme Court.

On June 26, 2013, the Supreme Court held Section 3

unconstitutional as a violation of the Fifth Amendment. SeeUnited

States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013).

The district court resumed proceedings in this case,

entering judgment in favor of the McLaughlin Group on October 2,

2013. The district court did not address costs at that time.

On October 28, 2013, the McLaughlin Group moved for fees

and costs under the EAJA. The district court denied the McLaughlin

-4-

Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u6menDt a7t1e FFilieledd: 09/23/210414PageEn6troyf I1D5: 5854823
Group's motion, finding that the government's position was
substantially justified. The district court reasoned:
To answer this question, the court need go no further than the Windsor decision itself. As the High Court recognized, the approach taken by the President of preserving the justiciability of Section 3 of DOMA by continuing to enforce it despite a personal belief that the statute was unconstitutional, paid the appropriate respect to the primacy of the Supreme Court in matters of constitutional interpretation.
McLaughlin v. Hagel, 987 F. Supp. 2d 132, 134 (D. Mass. 2013). The
court added that the relevant question was not whether the
President could have ended enforcement of Section 3, but whether it
would have been "constitutionally reasonable" under the
circumstances, concluding that "[i]t is clear from Windsorthat the
Supreme Court would have thought not." Id.
II.
A district court's determination of whether the
government's position 2 was "substantially justified," and so
2 "Defining the concept of the Government's 'position' -- at least with any precision -- has proved . . . elusive." SeeSaysana v. Gillen , 614 F.3d 1, 5 (1st Cir. 2010). The statute itself offers little guidance, stating simply that a court shall award fees "unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). It adds that the "'position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based . . . ." 28 U.S.C. § 2412(d)(2)(D). The district court described the government's position as "its litigating position that, in deference to Congress, it would continue to enforce Section 3 of DOMA until the courts (or Congress itself) had definitively spoken, while in the interim conceding the
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Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u7menDt a7t1e FFilieledd: 09/23/210414PageEn7troyf I1D5: 5854823
whether to award attorney's fees under EAJA, is reviewed for abuse of discretion. See Pierce v. Underwood , 487 U.S. 552, 562-63 (1988). Legal determinations made in finding a position substantially justified are reviewed de novo. SeeAronov, 562 F.3d at 88.
A denial of costs is reviewed for abuse of discretion. B. Fernández, 516 F.3d at 28.
III. Under the EAJA, "a court shall award to a prevailing party other than the United States fees and other expenses . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The burden is on the United States to make those showings. See Saysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010). Because we agree with the district court that the position of the United States was substantially justified, we do not reach the question of special circumstances.
unconstitutionality of Section 3." McLaughlin, 987 F. Supp. 2d at 134. By contrast, the McLaughlin Group variously describes the government's position as "the government's defense of its unlawful conduct on the merits," and "the government's conduct in knowingly and purposefully violating the Plaintiffs' constitutional rights, and then forcing them to litigate a case the government would not defend on the merits." These characterizations are narrower than the district court's in that they emphasize the government's refusal to defend Section 3 -- and so too its "unlawful conduct" -but exclude constitutional considerations for continued enforcement pending judicial review.
-6-

Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u8menDt a7t1e FFilieledd: 09/23/210414PageEn8troyf I1D5: 5854823
A "position" of the United States is "substantially justified" if it is "justified to a degree that could satisfy a reasonable person" -- that is, if the position has a "reasonable basis both in law and fact." Pierce , 487 U.S. at 565. If the government "reasonably believes the action or inaction is required by law, then, by definition it cannot be the basis for an award of EAJA fees." Aronov, 562 F.3d at 94 (citing Dantran, Inc. v. U.S. Dep't of Labor , 246 F.3d 36, 41 (1st Cir. 2001)) (holding government was substantially justified as a matter of law). Both the government's pre-litigation and litigation positions are evaluated holistically in making this determination. See Saysana, 614 F.3d at 5.
This extraordinary case presents the unusual situation in which the government's pre-litigation and during-litigation position was to enforce a challenged statute, but in which the government's litigation position was to argue that the challenged statute is unconstitutional. The McLaughlin Group makes a twofold argument: the government pursued pre-litigation actions that it believed violated the McLaughlin Group's constitutional rights, and the government's litigation position agreed with the McLaughlin Group in denying that the opposite position, defense of the statute, had any merit.
The McLaughlin Group attempts to divorce the government's position from the practical constitutional difficulty the
-7-

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government faced. The President and the Department of Justice concluded unilaterally both that heightened scrutiny was the appropriate standard of review -- contrary to "substantial circuit authority" -- and that there was no reasonable argument consistent with that standard available in defense of Section 3. The government then "face[d] a difficult choice": either enforce (but decline to defend) a statute it believed unconstitutional, or decline to enforce the statute under a novel legal theory while simultaneously precluding judicial review of that novel theory. See Windsor, 133 S. Ct. at 2688-89. The district court appreciated this difficulty, and found that, under the Supreme Court's decision in Windsor , the government's enforce-but-not-defend position was substantially justified.3
In Windsor, the Court observed that the alternative to finding justiciability would be to find that the government's refusal to defend Section 3 precluded judicial review. Id. at 2688. The Court reasoned that this alternative was unacceptable because it "would undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, [i]t is emphatically the province and duty of the judicial department to say what the law
3 The McLaughlin Group's argument that Windsor 's finding of justiciability is not the same as finding that a position is "substantially justified" misses the mark. The district court relied on the Windsor Court's reasoning, not the finding itself.
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Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u1m0 entD7a1teFFiilleedd:0099/2/233/1/2401P4age E1n0troyf I1D5: 5854823

is." Id. (quoting Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427-28

(2012) (quoting Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177

(1803))) (internal quotation marks omitted). The district court

found that this dilemma provided a reasonable basis for the

government's position. We agree. First, had the government not

continued to enforce Section 3, it would have precluded judicial

review of a controversial conclusion

regarding the statute's

validity. Second, had it not continued to enforce Section 3, the

government would also have posed a second "grave challenge[]" to

separation of powers by effectively "nullify[ing] Congress'

enactment solely on its own initiative and without any

determination from the Court." Id.

This practical difficulty highlights the conceptual

difficulty in identifying the government's position: The McLaughlin

Group urges that the government's "litigation position" was the

narrow position that Section 3 -- and so too its pre- and during-

litigation conduct of enforcing Section 3 -- is unconstitutional.

But the district court understood the government's position to be

the broader, nuanced position that the government represented

itself as taking, namely, that it enforced the statute to permit

judicial review of its novel legal theory in deference to the other

branches.

We agree with the district court that the government's

position is the broader one and must be "assessed in its totality."

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See Saysana , 614 F.3d at 5, 7. Contrary to what the McLaughlin

Group argues, the district court did not improperly look to "non-

merits based justifications." Rather, the lower court properly

focused on the constitutional difficulties faced by the government.

Our en banc decision in Aronov v. Napolitano, 562 F.3d

84 (1st Cir. 2009) (en banc), held that a denial of fees is correct

as a matter of law where the government reasonably believes its

actions are legally required. Id. at 94. Here, the district court

correctly found that the government

reasonably believed its

actions, whether or not required, 4 were appropriate given "the

Executive's obligation" to faithfully execute the laws. SeeLetter

from Eric H. Holder, Jr., Att'y Gen., U.S. Dep't of Justice, to

John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23,

2011) (emphasis added) (explaining the government's decision to

enforce but not defend Section 3 of DOMA). Similarly, we agree

with the district court's conclusion that the Supreme Court would

not have found "constitutionally reasonable" the opposite course of

action, urged by the McLaughlin Group, of refusing to enforce

Section 3. See McLaughlin, 987 F. Supp. 2d at 134. Because the

government reasonably believed its actions were the most

4 While the government made clear it believed the President could have lawfully chosen to end enforcement of Section 3, see McLaughlin, 987 F. Supp. 2d at 134, we believe the reasoning behind Aronov is still applicable to the unique facts of this case given the uncertainty of that position in light of the acknowledged separation-of-powers concerns, see Windsor, 133 S. Ct. at 2688.
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constitutionally appropriate available, its actions were "by definition" substantially justified. See Aronov, 562 F.3d at 94. We find the denial of fees correct as a matter of law. See id.
The McLaughlin Group's argument that this is erroneous under different First Circuit precedent is unavailing. They argue that in Sierra Club v. Sec'y of the Army, 820 F.2d 513, 519-20 (1st Cir. 1987), the First Circuit held that if the government subjectively believes that its actions are unlawful, then its decision to take those actions cannot be substantially justified. This stretches the precedent. Sierra Club does not make the government's subjective belief dispositive. The court observed, first, that this was one among many considerations counseling against the position's justification, and, second, that during the EAJA phase of litigation, the government "chose not to . . . argu[e] that their position turned on some close or unsettled question of law." Id. at 520. This differs from the present case where the government had at least two strong separation-of-powers reasons for its actions and argues that the constitutionality of its pre-litigation action -- not merely the statute's constitutionality, but also the constitutionally appropriate action in this unusual si tuation -- turned on a close question of law. See also United States v. Marolf , 277 F.3d 1156, 1162 (9th Cir. 2002) (quoting TKB Int'l, Inc. v. United States , 995 F.2d 1460, 1468 (9th Cir. 1993)).
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The McLaughlin Group correctly argues the law should not encourage government abuse by condoning a "knowing" rights violation, and that there is the need to provide incentives for litigation of rights violations. But that is not this case, which was "not routine." Windsor , 133 S. Ct. at 2689. This is an extraordinary case in which the government "face[d] a difficult choice." Id. ; see also Pierce , 487 U.S. at 562 (holding that whether the government's position is "substantially justified" is reviewed for abuse of discretion to provide "needed flexibility"). Moreover, while the President and the executive branch may have thought Section 3 of DOMA was unconstitutional, the House of Representatives strongly disagreed. The President may have ultimately been correct, but until the Supreme Court resolved the issue in Windsor , it is hard to see how the enforcement of Section 3 was a "knowing" rights violation.
Finally, the McLaughlin Group, relying on Pierce , 487 U.S. at 560, urges that the government's litigation position could not have been substantially justified because the government has not argued for the "opposite me rits determination." But Pierce does not "require" that the government "urg[e] . . . the opposite merits determination." Rather, the quoted passage explains why the appropriate standard of review is the "deferential,
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abuse-of-discretion review." See id. 5 First Circuit precedent does not suggest otherwise. See, e.g. , Castañeda-Castillo v. Holder, 723 F.3d 48, 73 (1st Cir. 2013) (recognizing that, at least on appeal, advancing only procedural arguments might be substantially justified); Aronov, 562 F.3d at 87, 89-93 (permitting immediate settlement without exposure to fees). Though novel, the government's litigate-to-lose position is not barred by the case law. And because it was constitutionally appropriate, fees were correctly denied as a matter of law. See Aronov, 562 F.3d at 94.
IV. The McLaughlin Group also contends that, even if not entitled to fees, the "district court erred as a matter of law by applying the 'substantially justified' test to [the McLaughlin Group's] claim for [$350 in] costs" under 28 U.S.C. § 2412(a)(1) and Fed. R. Civ. P. 54(d). As the government concedes, this would be an error of law if that were what happened. But the district court did not improperly apply the standard. It merely declined to address costs separately. Under other circumstances, this silence could be a problem. "There is a background presumption favoring cost recovery

5 Pierce frames the relevant inquiry as "determin[ing]

whether urging of the opposite merits determination

was

substantially justified." Pierce , 487 U.S. at 560 (emphasis

added). That this framing does not describe this case is not

surprising because the government's litigation position is unusual.

See Windsor, 133 S. Ct. at 2689.

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Case: 14-C10a3s5e 1:1D1o-cvu-m11e9n0t:53-R4 GSPaDgoec: u1m5 entD7a1teFFiilleedd:0099/2/233/1/2401P4age E1n5troyf I1D5: 5854823 for prevailing parties," and so "[w]hen denying costs, a district court must offer an explanation for doing so unless the basis for denying costs is 'readily apparent on the face of the record.'" B. Fernández, 516 F.3d at 28 (quoting San Juan Dupont Plaza Hotel, 994 F.2d at 963). Here, the basis for denying costs was readily apparent: as we have thoroughly detailed above, the case was "close and difficult," and "required considered balancing." See id. While an explanation would have avoided any confusion about the district court's reasoning, we find that the district court's unexplained decision to deny costs was not an abuse of discretion. V. We affirm . Costs are assessed against the McLaughlin Group.
-14-

 
 Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 1 of 16
APPEAL,STAYED
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:11−cv−11905−RGS

McLaughlin, et al. v Panetta, et al Assigned to: Judge Richard G. Stearns Case in other court: USCA, 14−01035 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 10/27/2011 Date Terminated: 10/02/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

MAJ Shannon L. McLaughlin

represented by Abbe David Lowell Chadbourne &Parke LLP 1200 New Hampshire Avenue, NW Washington, DC 20036 202−974−5605 Fax: 202−974−6705 Email: adlowell@chadbourne.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man Chadbourne &Parke LLP 1200 New Hampshire Ave, N.W. Washington, DC 20036 202−974−5600 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean Servicemembers Legal Defense Network P.O. Box 65301 Washington, DC 20035 202−621−5401 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey Chadbourne &Parke 30 Rockefeller Plaza New York, NY 10112 212−408−5303 Email: imcclatchey@chadbourne.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M. Goodman Servicemembers Legal Defense Network P.O. Box 65301 Washington, DC 20035 202−621−5401 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Casey McLauglin

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 2 of 16

PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LTC Victoria A. Hudson

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Monika Poxon

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 3 of 16

PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff COL Stewart Bornhoft

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Stephen McNabb

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 4 of 16

PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff LT Gary C. Ross

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dan Swezy

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 5 of 16

PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CPT Steve M. Hill

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joshua Snyder

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 6 of 16

Plaintiff A1C Daniel Henderson
Plaintiff Jerret Henderson
Plaintiff CW2 Charlie Morgan

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED
represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED
represented by Abbe David Lowell (See above for address) LEAD ATTORNEY

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 7 of 16

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Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karen Morgan

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CAPT Joan Darrah

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 8 of 16

PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jacqueline Kennedy

represented by Abbe David Lowell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Man (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David McKean (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M. Goodman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ian M. McClatchey (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Leon E. Panetta In his official capacity as Secretary of Defense
Defendant

represented by Jean Lin Department of Justice Civil Division − Room 1014 Ben Franklin Station P.O. Box 883 Washington, DC 20044 202−514−4781 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 9 of 16

Eric H. Holder, Jr. In his official capacity as Attorney General

represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Eric K. Shinseki In his official capacity as Secretary of Veterans Affairs

represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
Bipartisan Legal Advisory Group of the U.S. House of Representatives TERMINATED: 07/19/2013

represented by H. Christopher Bartolomucci Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202−234−0090 Email: cbartolomucci@bancroftpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/27/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011 10/27/2011

# Docket Text
1 COMPLAINT against All Plaintiffs Filing fee: $ 350, receipt number 0101−3645994 (Fee Status: Filing Fee paid), filed by Shannon L. McLaughlin. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet)(McClatchey, Ian) (Entered: 10/27/2011)
2 MOTION for Leave to Appear Pro Hac Vice for admission of Abbe David Lowell Filing fee: $ 200, receipt number 0101−3646028 by All Plaintiffs. (Attachments: # 1 Exhibit Declaration of A. D. Lowell)(McClatchey, Ian) Modified to add filers on 10/27/2011 (Anderson, Jennifer). (Entered: 10/27/2011)
3 MOTION for Leave to Appear Pro Hac Vice for admission of Christopher Man by All Plaintiffs. (Attachments: # 1 Exhibit Declaration of C. Man)(McClatchey, Ian) Modified to add filers on 10/27/2011 (Anderson, Jennifer). (Entered: 10/27/2011)
4 MOTION for Leave to Appear Pro Hac Vice for admission of John M. Goodman by All Plaintiffs. (Attachments: # 1 Exhibit John Goodman)(McClatchey, Ian) Modified to add filers on 10/27/2011 (Anderson, Jennifer). (Entered: 10/27/2011)
5 MOTION for Leave to Appear Pro Hac Vice for admission of David McKean by All Plaintiffs. (Attachments: # 1 Exhibit Declaration of D. McKean)(McClatchey, Ian) Modified to add filers on 10/27/2011 (Anderson, Jennifer). (Entered: 10/27/2011)
ELECTRONIC NOTICE of Case Assignment. Judge Joseph L. Tauro assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Robert B. Collings. (Folan, Karen) (Entered: 10/27/2011)
6 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Anderson, Jennifer) (Entered: 10/27/2011)

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 10 of 16

11/03/2011
11/03/2011
11/03/2011
11/03/2011
11/07/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011

7 AFFIDAVIT OF SERVICE Executed by Jacqueline Kennedy, Monika Poxon, Joan Darrah, Steve M. Hill, Casey McLauglin, Gary C. Ross, Shannon L. McLaughlin, Joshua Snyder, Stewart Bornhoft, Charlie Morgan, Daniel Henderson, Jerret Henderson, Victoria A. Hudson, Stephen McNabb, Dan Swezy, Karen Morgan. Eric H. Holder, Jr. served on 10/27/2011, answer due 11/17/2011. Acknowledgement filed by Jacqueline Kennedy; Monika Poxon; Joan Darrah; Steve M. Hill; Casey McLauglin; Gary C. Ross; Shannon L. McLaughlin; Joshua Snyder; Stewart Bornhoft; Charlie Morgan; Daniel Henderson; Jerret Henderson; Victoria A. Hudson; Stephen McNabb; Dan Swezy; Karen Morgan. (McClatchey, Ian) (Entered: 11/03/2011)
8 AFFIDAVIT OF SERVICE Executed by Jacqueline Kennedy, Monika Poxon, Joan Darrah, Steve M. Hill, Casey McLauglin, Gary C. Ross, Shannon L. McLaughlin, Joshua Snyder, Stewart Bornhoft, Charlie Morgan, Daniel Henderson, Jerret Henderson, Victoria A. Hudson, Stephen McNabb, Dan Swezy, Karen Morgan. United States of America served on 10/27/2011, answer due 11/17/2011. Acknowledgement filed by Jacqueline Kennedy; Monika Poxon; Joan Darrah; Steve M. Hill; Casey McLauglin; Gary C. Ross; Shannon L. McLaughlin; Joshua Snyder; Stewart Bornhoft; Charlie Morgan; Daniel Henderson; Jerret Henderson; Victoria A. Hudson; Stephen McNabb; Dan Swezy; Karen Morgan. (McClatchey, Ian) (Entered: 11/03/2011)
9 AFFIDAVIT OF SERVICE Executed by Jacqueline Kennedy, Monika Poxon, Joan Darrah, Steve M. Hill, Casey McLauglin, Gary C. Ross, Shannon L. McLaughlin, Joshua Snyder, Stewart Bornhoft, Charlie Morgan, Daniel Henderson, Jerret Henderson, Victoria A. Hudson, Stephen McNabb, Dan Swezy, Karen Morgan. Eric K. Shinseki served on 10/28/2011, answer due 11/18/2011. Acknowledgement filed by Jacqueline Kennedy; Monika Poxon; Joan Darrah; Steve M. Hill; Casey McLauglin; Gary C. Ross; Shannon L. McLaughlin; Joshua Snyder; Stewart Bornhoft; Charlie Morgan; Daniel Henderson; Jerret Henderson; Victoria A. Hudson; Stephen McNabb; Dan Swezy; Karen Morgan. (McClatchey, Ian) (Entered: 11/03/2011)
10 AFFIDAVIT OF SERVICE Executed by Jacqueline Kennedy, Monika Poxon, Joan Darrah, Steve M. Hill, Casey McLauglin, Gary C. Ross, Shannon L. McLaughlin, Joshua Snyder, Stewart Bornhoft, Charlie Morgan, Daniel Henderson, Jerret Henderson, Victoria A. Hudson, Stephen McNabb, Dan Swezy, Karen Morgan. Leon E. Panetta served on 10/28/2011, answer due 11/18/2011. Acknowledgement filed by Jacqueline Kennedy; Monika Poxon; Joan Darrah; Steve M. Hill; Casey McLauglin; Gary C. Ross; Shannon L. McLaughlin; Joshua Snyder; Stewart Bornhoft; Charlie Morgan; Daniel Henderson; Jerret Henderson; Victoria A. Hudson; Stephen McNabb; Dan Swezy; Karen Morgan. (McClatchey, Ian) (Entered: 11/03/2011)
Reset Answer Deadlines for Eric H. Holder, Jr. Answer due by 12/26/2011 pursuant to Fed. R. Civ. P. 12 (a)(2) or (3) United States agency, or an officer or employee of the United States served. (Geraldino−Karasek, Clarilde) (Entered: 11/07/2011)
Reset Answer Deadlines for United States of America. Answer due by 12/26/2011 pursuant to Fed. R. Civ. P. 12 (a)(2) or (3) United States agency, or an officer or employee of the United States served. (Geraldino−Karasek, Clarilde) (Entered: 11/07/2011)
Reset Answer Deadlines for Eric K. Shinseki. Answer due by 12/27/2011 pursuant to Fed. R. Civ. P. 12 (a)(2) or (3) United States agency, or an officer or employee of the United States served. (Geraldino−Karasek, Clarilde) (Entered: 11/07/2011)
Reset Answer Deadlines for Leon E. Panetta. Answer due by 12/27/2011 pursuant to Fed. R. Civ. P. 12 (a)(2) or (3) United States agency, or an officer or employee of the United States served. (Geraldino−Karasek, Clarilde) (Entered: 11/07/2011)
11 AFFIDAVIT OF SERVICE Executed by Jacqueline Kennedy, Monika Poxon, Joan Darrah, Steve M. Hill, Casey McLauglin, Gary C. Ross, Shannon L. McLaughlin, Joshua Snyder, Stewart Bornhoft, Charlie Morgan, Daniel Henderson, Jerret Henderson, Victoria A. Hudson, Stephen McNabb, Karen Morgan. United States of America, US Attorney Office served on 10/28/2011,

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 11 of 16

11/09/2011 11/15/2011 11/18/2011 11/21/2011 11/21/2011
11/21/2011 11/21/2011 11/21/2011
11/21/2011 11/21/2011

answer due 12/27/2011. Acknowledgement filed by Jacqueline Kennedy; Monika Poxon; Joan Darrah; Steve M. Hill; Casey McLauglin; Gary C. Ross; Shannon L. McLaughlin; Joshua Snyder; Stewart Bornhoft; Charlie Morgan; Daniel Henderson; Jerret Henderson; Victoria A. Hudson; Stephen McNabb; Karen Morgan. (Geraldino−Karasek, Clarilde) (Entered: 11/07/2011)
ELECTRONIC NOTICE of Reassignment. Judge Richard G. Stearns added. Judge Joseph L. Tauro no longer assigned to case. (Folan, Karen) (Entered: 11/09/2011)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 3 Motion for Leave to Appear Pro Hac Vice ; granting 4 Motion for Leave to Appear Pro Hac Vice ; granting 5 Motion for Leave to Appear Pro Hac Vice ; granting 2 Motion for Leave to Appear Pro Hac Vice (Flaherty, Elaine) (Entered: 11/15/2011)
12 NOTICE by Bipartisan Legal Advisory Group of the U.S. House of Representatives of Potential Intervenor (Kircher, Kerry) (Entered: 11/18/2011)
13 MOTION for Summary Judgment by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy.(McClatchey, Ian) (Entered: 11/21/2011)
14 MEMORANDUM in Support re 13 MOTION for Summary Judgment filed by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(McClatchey, Ian) (Entered: 11/21/2011)
15 Statement of Material Facts L.R. 56.1 re 13 MOTION for Summary Judgment filed by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (McClatchey, Ian) (Entered: 11/21/2011)
16 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF MAJ SHANNON L. MCLAUGHLIN by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit A)(McClatchey, Ian) (Entered: 11/21/2011)
17 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF LTC VICTORIA A. HUDSON by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(McClatchey, Ian) (Entered: 11/21/2011)
18 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF COL STEWART BORNHOFT (RET) by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McClatchey, Ian) (Entered: 11/21/2011)
19 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF LT GARY C. ROSS by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1)(McClatchey, Ian) (Entered: 11/21/2011)

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 12 of 16

11/21/2011
11/21/2011
11/21/2011
11/21/2011
11/22/2011 11/22/2011
12/05/2011 12/06/2011 12/06/2011 12/13/2011 02/14/2012 02/15/2012 02/21/2012

20 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF CPT STEVE M. HILL by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McClatchey, Ian) (Entered: 11/21/2011)
21 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF A1C DANIEL HENDERSON by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McClatchey, Ian) (Entered: 11/21/2011)
22 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF CW2 CHARLIE MORGAN by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McClatchey, Ian) (Entered: 11/21/2011)
23 DECLARATION re 15 Statement of Material Facts L.R. 56.1, OF CAPT JOAN DARRAH (RET) by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit 1)(McClatchey, Ian) (Entered: 11/21/2011)
24 NOTICE of Appearance by Jean Lin on behalf of Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America (Lin, Jean) (Entered: 11/22/2011)
25 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy re 20 Declaration, 16 Declaration, 21 Declaration, 17 Declaration, 15 Statement of Material Facts L.R. 56.1, 18 Declaration, 22 Declaration, 14 Memorandum in Support of Motion, 13 MOTION for Summary Judgment, 19 Declaration, 23 Declaration,. (McClatchey, Ian) (Entered: 11/22/2011)
26 Consent MOTION for Extension of Time to February 28, 2012 to answer or otherwise respond to Complaint and to respond to plaintiffs' motion for summary judgment by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America.(Lin, Jean) (Entered: 12/05/2011)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 26 Motion for Extension of Time to 2/28/12 to respond to complaint (Flaherty, Elaine) Modified on 12/6/2011 (Flaherty, Elaine). (Entered: 12/06/2011)
Set/Reset Answer Deadlines for Eric H. Holder, Jr., Eric K. Shinseki, United States of America and respond to summary judgment by 02/28/12. (Flaherty, Elaine) (Entered: 12/06/2011)
Set/Reset Answer Deadlines for Eric H. Holder, Jr., Eric K. Shinseki, United States of America to 2/28/12. (Flaherty, Elaine) (Entered: 12/13/2011)
27 Joint MOTION to Stay Case for Sixty Days by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America.(Lin, Jean) (Entered: 02/14/2012)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 27 Motion to Stay case for Sixty Days (April 28, 2012). (Seelye, Terri) (Entered: 02/15/2012)
28 NOTICE by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America (Attachments: # 1 Assistant Attorney General's Letter to the Court, # 2 Attorney General's Letter)(Lin, Jean) (Entered: 02/21/2012)

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 13 of 16

02/22/2012 04/11/2012
04/12/2012 04/20/2012 04/22/2012 05/01/2012 05/01/2012
05/09/2012 05/09/2012 05/10/2012
05/10/2012 05/15/2012 05/15/2012 05/15/2012

29 NOTICE by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America re 28 Notice (Other) (Amended Notice) (Attachments: # 1 Attorney General Letter dated Feb. 23, 2011)(Lin, Jean) (Entered: 02/22/2012)
30 MOTION To set deadline for seeking intervention by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy.(McClatchey, Ian) (Entered: 04/11/2012)
Judge Richard G. Stearns: ELECTRONIC ORDER entered denying 30 Motion to Set a Deadline for seeking intervention in this case. In light of the current posture of the case, the court sees no reason to set such a deadline. (Zierk, Marsha) (Entered: 04/12/2012)
31 Consent MOTION to Stay Obligations to Answer the Complaint and to Respond to Plaintiffs' Summary Judgment Motion by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America.(Lin, Jean) (Entered: 04/20/2012)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 31 Motion to Stay response to summary judgment to twenty−one(21) days after the Court of Appeals issues a decision in 10−2204 and 10−2207. (Flaherty, Elaine) (Entered: 04/23/2012)
32 MOTION to Intervene by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Bartolomucci, H.) (Entered: 05/01/2012)
33 MEMORANDUM in Support re 32 MOTION to Intervene filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Bartolomucci, H.) (Entered: 05/01/2012)
34 Opposition re 32 MOTION to Intervene filed by Shannon L. McLaughlin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McClatchey, Ian) (Entered: 05/09/2012)
35 MOTION for Leave to File Excess Pages for Opposition to Motion to Intervene by Shannon L. McLaughlin. (Attachments: # 1 Memorandum In Support of Motion to File Oversized Opposition, # 2 Proposed Order)(McClatchey, Ian) (Entered: 05/09/2012)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 35 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Flaherty, Elaine) (Entered: 05/10/2012)
36 Opposition re 32 MOTION to Intervene filed by Shannon L. McLaughlin. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McClatchey, Ian) (Entered: 05/10/2012)
37 RESPONSE to Motion re 32 MOTION to Intervene filed by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America. (Attachments: # 1 Text of Proposed Order)(Lin, Jean) (Entered: 05/15/2012)
38 MOTION for Leave to File Consolidated Reply Memorandum in Support of Motion to Intervene by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Text of Proposed Order)(Bartolomucci, H.) (Entered: 05/15/2012)
39 MEMORANDUM in Support re 38 MOTION for Leave to File Consolidated Reply Memorandum in Support of Motion to Intervene filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Bartolomucci, H.) (Entered: 05/15/2012)

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 14 of 16

05/16/2012 06/05/2012 06/06/2012 06/06/2012 02/12/2013 02/13/2013
06/27/2013
07/17/2013
07/18/2013 07/18/2013 07/19/2013 07/19/2013

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 32 Motion to Intervene "ALLOWED, every court of appeals that has addressed the issue has found standing. "Finding as Moot 38 Motion for Leave to File Document. (Flaherty, Elaine) Modified text on 5/17/2012 (Seelye, Terri). (Entered: 05/16/2012)
40 MOTION to Stay or, in the Alternative, for An Extension of Time, (with partial consent) by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America.(Lin, Jean) (Entered: 06/05/2012)
41 RESPONSE to Motion re 40 MOTION to Stay or, in the Alternative, for An Extension of Time, (with partial consent) filed by Shannon L. McLaughlin. (McClatchey, Ian) (Entered: 06/06/2012)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 40 Motion to Stay. This case will be stayed until thirty (30) days after the First Circuit issues its mandate in Massachusetts v. U.S. Dept. of Health and Human Services, 2012 WL 1948017 (1st Cir. 2012). (RGS, law3) (Entered: 06/06/2012)
42 NOTICE by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy of the Death of Plaintiff Chief Warrant Officer Charlie Morgan (McClatchey, Ian) (Entered: 02/12/2013)
43 ELECTRONIC ENDORSEMENT re 42 Notice (Other), filed by Joshua Snyder, Charlie Morgan, Joan Darrah, Jerret Henderson, Victoria A. Hudson, Steve M. Hill, Casey McLauglin, Karen Morgan, Stephen McNabb, Stewart Bornhoft, Daniel Henderson, Jacqueline Kennedy, Gary C. Ross, Shannon L. McLaughlin, Monika Poxon, Dan Swezy "The passing of Chief Warrant Officer Charlie Morgan is recorded on the court docket. The court extends sympathies to spouse Karen Morgan." (Flaherty, Elaine) (Entered: 02/13/2013)
44 Judge Richard G. Stearns: ELECTRONIC ORDER entered. In light of the United States Supreme Court's decision in United States v. WIndsor, 570 U.S. __ (June 26, 2013) ("The federal statute [DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."), the court asks the parties to submit within twenty ones days any reasons why judgment should not enter for plaintiffs in this case..(Zierk, Marsha) (Entered: 06/27/2013)
45 MOTION for the Court to Enter a Judgment on Their Fifth Amendment Claims by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy.(Lowell, Abbe) Modified on 7/18/2013 (Flaherty, Elaine). (Entered: 07/17/2013)
46 Consent MOTION to Withdraw as Intervenor−Defendant by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Text of Proposed Order)(Bartolomucci, H.) (Entered: 07/18/2013)
47 RESPONSE TO ORDER TO SHOW CAUSE by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America. (Lin, Jean) (Entered: 07/18/2013)
48 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 46 Motion to Withdraw (Flaherty, Elaine) (Entered: 07/19/2013)
49 Judge Richard G. Stearns: ELECTRONIC ORDER entered regarding parties' response to show cause. In light of the Department of Defense's change to its definitional provisions of "spouse" in Titles 10 and 32 to include same−sex spouses, and its representation to expeditiously make available benefits provided under Titles 10 and 32 to same−sex spouses of service members, the court will continue the stay in this case. The court expects a status report from the

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 15 of 16

09/09/2013 09/10/2013
09/12/2013 09/30/2013 09/30/2013 10/02/2013 10/28/2013
10/29/2013 10/30/2013 12/11/2013 12/16/2013
12/16/2013

Department of Defense on September 9, 2013, regarding its implementation of military and veterans' benefits for eligible same−sex spouses. SO ORDERED.(Zierk, Marsha) (Entered: 07/19/2013)
50 STATUS REPORT by Eric H. Holder, Jr., Leon E. Panetta. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lin, Jean) (Entered: 09/09/2013)
51 Plaintiffs' Response by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy to 50 Status Report . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McClatchey, Ian) (Entered: 09/10/2013)
52 Judge Richard G. Stearns: ELECTRONIC ORDER entered. The court agrees that a declaratory judgment is appropriate in this case, and asks the parties to collaborate on a simple and straight−forward draft form of judgment, submitting it for the court's review by September 30, 2013. (Zierk, Marsha) (Entered: 09/12/2013)
53 RESPONSE TO COURT ORDER by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America (Joint Response). (Attachments: # 1 Exhibit A (Proposed Judgment))(Lin, Jean) (Entered: 09/30/2013)
54 Errata by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America to 53 Response to Court Order (Corrected Proposed Judgment). (Attachments: # 1 Exhibit A (Proposed Judgment))(Lin, Jean) (Entered: 09/30/2013)
55 Judge Richard G. Stearns: JUDGMENT, ENTERED. (Flaherty, Elaine) (Entered: 10/02/2013)
56 MOTION for Attorney Fees by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Memorandum In Support, # 2 Text of Proposed Order, # 3 Declaration of Abbe David Lowell, # 4 Declaration of Christopher D. Man, # 5 Declaration of John M. Goodman, # 6 Declaration of David McKean)(McClatchey, Ian) (Entered: 10/28/2013)
57 Consent MOTION for Extension of Time to File Response/Reply as to 56 MOTION for Attorney Fees by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America. (Attachments: # 1 Text of Proposed Order)(Lin, Jean) (Entered: 10/29/2013)
58 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 57 Motion for Extension of Time to File Response/Reply re 56 MOTION for Attorney Fees Responses due by 12/11/2013 (Flaherty, Elaine) (Entered: 10/30/2013)
59 MEMORANDUM in Opposition re 56 MOTION for Attorney Fees filed by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America. (Attachments: # 1 Exhibit (A through E))(Lin, Jean) (Entered: 12/11/2013)
60 MOTION for Leave to File a Reply Brief in Support of Plaintifs' Application for an Award of Attorneys' Fees and Costs by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Exhibit A − Reply Brief in Support of Plaintiffs' Application for An Award of Attorneys' Fees and Costs)(McClatchey, Ian) (Entered: 12/16/2013)
61 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 60 Motion for Leave to File Reply; Counsel should now file the Reply in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on 12/16/2013 −− in the caption of the Reply. (Zierk, Marsha) (Entered: 12/16/2013)

Case: 1:11-cv-11905 As of: 11/06/2014 01:36 PM EST 16 of 16

12/16/2013
12/17/2013 01/06/2014
01/07/2014 01/07/2014 02/03/2014
02/04/2014 02/04/2014 08/20/2014 09/23/2014 09/23/2014

62 REPLY to Response to 56 MOTION for Attorney Fees and Costs filed by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (McClatchey, Ian) (Entered: 12/16/2013)
63 Judge Richard G. Stearns: ORDER entered denying 56 Motion for Attorney Fees (Zierk, Marsha) (Entered: 12/17/2013)
64 NOTICE OF APPEAL as to 63 Order on Motion for Attorney Fees by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Charlie Morgan, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy Filing fee: $ 505, receipt number 0101−4797693 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 1/27/2014. (McClatchey, Ian) (Entered: 01/06/2014)
65 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 64 Notice of Appeal (Paine, Matthew) (Entered: 01/07/2014)
66 USCA Case Number 14−1035 for 64 Notice of Appeal filed by Joshua Snyder, Charlie Morgan, Joan Darrah, Jerret Henderson, Victoria A. Hudson, Steve M. Hill, Casey McLauglin, Karen Morgan, Stephen McNabb, Stewart Bornhoft, Daniel Henderson, Jacqueline Kennedy, Gary C. Ross, Shannon L. McLaughlin, Monika Poxon, Dan Swezy. (Paine, Matthew) (Entered: 01/07/2014)
67 Joint MOTION to Alter Judgment Under Federal Rule of Civil Procedure 60(a) by Stewart Bornhoft, Joan Darrah, Daniel Henderson, Jerret Henderson, Steve M. Hill, Victoria A. Hudson, Jacqueline Kennedy, Shannon L. McLaughlin, Casey McLauglin, Stephen McNabb, Karen Morgan, Monika Poxon, Gary C. Ross, Joshua Snyder, Dan Swezy. (Attachments: # 1 Text of Proposed Order Proposed Judgment)(McClatchey, Ian) (Entered: 02/03/2014)
68 Judge Richard G. Stearns: (AMENDED) Judgment, ENTERED. (Flaherty, Elaine) (Entered: 02/04/2014)
69 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 67 Motion to Alter Judgment. (Zierk, Marsha) (Entered: 02/04/2014)
70 Doc. 56−1 re−docketed to correct docket. (Flaherty, Elaine) (Entered: 08/20/2014)
71 OPINION of USCA as to 64 Notice of Appeal filed by Joshua Snyder, Charlie Morgan, Joan Darrah, Jerret Henderson, Victoria A. Hudson, Steve M. Hill, Casey McLauglin, Karen Morgan, Stephen McNabb, Stewart Bornhoft, Daniel Henderson, Jacqueline Kennedy, Gary C. Ross, Shannon L. McLaughlin, Monika Poxon, Dan Swezy. (Paine, Matthew) (Entered: 09/24/2014)
72 USCA Judgment as to 64 Notice of Appeal filed by Joshua Snyder, Charlie Morgan, Joan Darrah, Jerret Henderson, Victoria A. Hudson, Steve M. Hill, Casey McLauglin, Karen Morgan, Stephen McNabb, Stewart Bornhoft, Daniel Henderson, Jacqueline Kennedy, Gary C. Ross, Shannon L. McLaughlin, Monika Poxon, Dan Swezy. AFFIRMED. (Paine, Matthew) (Entered: 09/24/2014)