Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 1 of 23 Page ID #:10

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TRACEY COOPER-HARRIS and

Case IDJ 12 O·88 7'CB,rrJ

MAGGIE COOPER-HARRIS,

COMPLAINT FOR

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Plaintiffs,

DECLARATORY,

v.

INJUNCTIVE, AND OTHER

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RELIEF

UNITED STATES OF AMERICA;

ERIC H. HOLDER, JR., in his official

[Violation of Equal Protection

ccwacityas Attorn~'y General; and

under the Fifth Amendment

ERIC K. SHINSEKI, in his official capacity

to the U.S. Constitution]

as Secretary of Vet'erans Affairs, .

Defendants. 18

19

20

PRELIMINARY STATEMENT

21

1. This is an action by a disabled and decorated United States Army veteran

22 and her same-sex spouse, who seek recognition by the U.S. Department of Veterans

23 Affairs ("VA") of their lawful marriage so that they may receive the same benefits

24 afforded to other married veterans and their spouses.

25

2. Plaintiff Tracey Cooper-Harris ("Tracey") served honorably in the United

26 States Army for approximately twelve years, nine in active duty, reaching the rank of

27 Sergeant. In 2002, Tracey was deployed to Kyrgyzstan in support of Operation

28 Enduring Freedom, and in 2003 Tracey was stationed in Kuwait in support of
2 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 2 of 23 Page ID #:11

1 JOSEPH J. LEVIN, JR. (pro hac vice motion pending) j oe.levin@,splcenter.org
2 CHRlSTtNE P. SUN (SBN218701) christine.sun@,sjJlcenter.org
3 CAREN E. SBORT (pro hac vice motion pending) caren.short@,sjJlcenter.o_rg
4 SOUTHERN POVERTY LAW CENTER 400 Washington Avenue
5 Montgomery AL 36104 Telephone: (334) 956.,.8200
6 FacsImile: (334) 956-8481

7 RANDALL R. LEE (SBN 152672)

randall.lee@,wilmerhale.com

8 MATTHEW BENEDETTO (SBN 252379)

matthew.benedetto@,wilmerhale.com

9 WILMER CUTLElZPICKERING HALE AND DORR LLP

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350 South Grand Avenue, Suite 2100 10 Los Angeles, CA 90071
Telephone: (213) 443-5300

FacsImile: (213) 443-5400

DANIEL S. NOBLE (oro hac vice motion pending) daniel.noble@,wilmernale.com WILMER COTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 Teleph~me: (212) 230-8800 FacsImIle: (212) 230-8888

EUGENE MARDER (SBN 275762) eugene.marder@,wilmerhale.com 17 WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road 18 Palo Alto, California 94304 Telephone: (650) 858-6000 19 FacsImile: (650) 858-6100

20 Attom~s for Plaintiffs TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS
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1

COMPLAINT

CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 3 of 23 Page ID #:12

1 Operation Iraqi Freedom, from which she was sent on frequent missions into Iraq.

2 For Tracey's distinguished service to the military and our nation, the United States

3 government awarded her with over two dozen medals and commendations, including

4 three Army Commendation medals, five Army Achievement Medals, two Army Good

5 Conduct Medals, and one Air Force Commendation Medal. In 2003, Tracey

6 completed her military service and received an honorable discharge.

7

3. In November 2008, Tracey married her same-sex spouse, plaintiff

8 Maggie Cooper-Harris ("Maggie"), in Van Nuys, California. The State of California

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legally recognizes Tracey and Maggie's marriage and provides them with the same status, responsibilities, and protections as other legally married couples under state law.
4. In 2010, Tracey was diagnosed with multiple sclerosis by a neurologist at her local VA hospital. Multiple sclerosis is a chronic, often disabling disease that attacks a person's brain and central nervous system, and for which there is no known cure. After being diagnosed with multiple sclerosis, Tracey began making end-of-life preparations, including those to ensure some level of financial security for Maggie after Tracey's death.
5. In 2011, the VA determined that Tracey's multiple sclerosis is service-

19· connected. As a result, Tracey receives disability compensation from the VA for her

20 condition. Tracey also receives disability compensation from the VA for other

21 service-connected conditions, including post-traumatic stress disorder ("PTSD"), an

22 anxiety disorder common among veterans that can be triggered by a traumatic event.

23

6. The VA provides a number of significant benefits to married veterans

24 and their families, including additional disability benefits; Dependency and Indemnity

25 Compensation, which provides monthly benefits to a surviving spouse after a veteran

26 has died from a service-connected injury or disease; and joint burial benefits for the

27 veteran and the veteran's spouse at a veterans' cemetery.

28
3 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 4 of 23 Page ID #:13

· 1

7. Solely because of Tracey's sexual orientation and her sex in relation to

2 her spouse, Tracey is barred from receiving those benefits, which similarly-situated

3 heterosexual married veterans routinely receive. If Tracey were a man, or if she were

4 married to a man, she would receive all of the benefits that our nation affords to

5 married veterans.

6

8. Solely because of Maggie's sexual orientation and her sex in relation to

7 her spouse, Maggie is barred from receiving those benefits, which similarly-situated

8 spouses of heterosexual married veterans routinely receive. If Maggie were a man, or

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if she were married to a male veteran, she would receive all of the benefits that our nation affords to spouses of married veterans.
9. In April 2011, Tracey filed a claim with the VA to add Maggie as her spouse and obtain additional dependency compensation based on her serviceconnected conditions. The VA denied Tracey's claim because the statute that governs veterans' benefits defines "spouse" as "a person of the opposite sex who is a wife or a husband." 38 U.S.C. § 101(31). The statute similarly limits "surviving spouse" to "a person of the opposite sex." Id. § 101(3) (collectively "Title 38").
10. Even if Title 38 recognized Tracey and Maggie's marriage for the purpose of veterans' benefits eligibility, Section 3 of the so-called Defense of

19 Marriage Act ("DOMA") would prevent the VA from recognizing their marriage.

20 DOMA provides that, for purposes of federal statutes, the word "marriage" means

21 only "a legal union between one man and one woman as husband and wife," and the

22 word "spouse" means only "a person of the opposite sex who is a husband or a wife."

23 1 U.S.C. § 7.

24

11. As a result, the VA has denied, and will continue to deny, Tracey.and

25 Maggie the veterans' benefits that would be available to them if they were in a

26 heterosexual marriage. This unequal treatment of Tracey and Maggie's marriage

27 under federal law demeans not only their marriage but also the remarkable sacrifices

28 of Tracey, a woman who gave more than nine years of her life in active-duty military
4
COMPLAINT CASENO. ____________

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 5 of 23 Page ID #:14

1 service to this country. This discrimination also demeans the integral role that

2 Maggie-like other spouses ofdisabled veterans-plays in Tracey's continued health

3 and well-being.

4

12. This action seeks declaratory and injunctive relief pursuant to 28 U.S.C.

5 §§ 2201-2202 and Fed. R. Civ. P. 57. It seeks a determination that the definitions of

6 "spouse" and "surviving spouse" in Title 38 of the United States Code violate on their

7 face the United States Constitution by denying benefits to Tracey and Maggie and

8 other married veterans and their spouses solely because they are married to a person of

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the same sex. This action also seeks a determination that DOMA, as applied to plaintiffs, violates the United States Constitution by denying them benefits that similarly-situated married veterans and their spouses in heterosexual marriages receIve .
JURISDICTION AND VENUE 13. This action arises under the Constitution of the United States and the laws of the United States. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1346(a)(2). 14. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) and 28 U.S.C. § 1402(a)(1) because plaintiffs Tracey Cooper-Harris and Maggie Cooper-

19 Harris reside in this district and the events giving rise to these claims arose in this

20 district.

21

PARTIES

22

15. Plaintiff Tracey Cooper-Harris is a United States citizen and a resident of

23 Pasadena, California. She is legally married under the laws of the State of California

24 to Plaintiff Maggie Cooper-Harris, who is also a United States citizen and a resident

25 of Pasadena, California.

26

16. The United States of America is named as a defendant because this action

27 challenges the constitutionality of an Act of Congress. See 28 U.S.C. § 2403(a).

28
5 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 6 of 23 Page ID #:15

1

17. Defendant Eric H. Holder, Jr., is the duly appointed, confirmed, and

2 acting Attorney General of the United States. In that official capacity, Defendant

3 Holder is the federal official responsible for enforcing all federal statutes in

4 accordance with the Constitution. Defendant Holder is named in his official capacity

5 only.

6

18. Defendant Eric K. Shinseki is the duly appointed, confirmed, and acting

7 Secretary of Veterans Affairs of the United States. In that official capacity, Defendant

8 Shinseki is the federal official responsible for the administration of Veterans Affairs.

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Defendant Shinseki is named in his official capacity only. FACTS
Tracey Cooper-Harris' s Background and Military Service 19. Tracey Cooper-Harris was born in Jersey City, New Jersey, on February 24, 1973. 20. In January 1991, when she was a senior in high school, Tracey enlisted in the United States Army. After graduating high school in June 1991, Tracey entered basic training in July 1991 at Fort Jackson, South Carolina. 21. Following basic training, Tracey completed advanced individual training in December 1991 at Walter Reed Army Institute of Research as an Animal Care

19 Specialist, focusing on the care and maintenance of military working animals. Animal

20 Care Specialists are trained to perform basic veterinary procedures and assist military

21 veterinarians with all aspects of animal care so that the military working animals are

22 able to perform their duties. During the course of her military service, Tracey also

23 completed advanced training courses in field medical aid, leadership, and combat

24 lifesaving.

25

22. After completing her training, Tracey was assigned to the 64th Medical

26 Detachment and stationed at Bitburg Air Base in Bitburg, Germany, where she served

27 from January 1992 to December 1993. Tracey was then assigned to the Northeast

28 District Veterinary Command and stationed at Brunswick Naval Air Station in Maine,
6 COMPLAINT
CASE NO. - - - - - - -

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 7 of 23 Page ID #:16

1 where she served from January 1994 to September 1998. Tracey then received orders 2 to transfer to Seoul, South Korea, where she served with the 129th Medical

3 Detachment at the Yongsan Army Post for approximately one year.

4

23. In October 1999, Tracey completed her required active duty service and

5 moved to South Carolina, in part to be close to her then-ailing mother. Tracey

6 enrolled at Clemson University in the fall of 1999 and joined the South Carolina

7 National Guard. After her mother's death in June 2001, Tracey withdrew from

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Clemson and moved to Claremont, California, where she continued her military service in the Army Reserves with the 109th Medical Detachment out of Stanton, California.
24. In October 2001, the United States commenced Operation Enduring Freedom in Afghanistan. In July 2002, Tracey was called back to active duty. One month later, she reported to Camp Doha, the Army's main military base in Kuwait, where she then was assigned to the 376th Expeditionary Medical Group, 376th Air Expeditionary Wing of the United States Air Force in Kyrgyzstan. Around the same time, Tracey was promoted to Sergeant.
25. While in Kyrgyzstan, Tracey was responsible for the health and wellbeing of over fifty military working dogs from the United States and Europe. She

19 provided medical care to Military Police dogs so that they could safeguard military

20 bases and detect bombs and explosives to protect the lives of American troops.

21 Tracey conducted veterinary first-aid training for the handlers of military working

22 dogs and ensured that the dogs were properly cared for. She also developed a

23 contingency plan to execute in the event of an attack, explosion, or other emergency

24 that might result in the injury of numerous working dogs.

25

26. According to an Air Force Commendation Medal that Tracey received

26 from Lieutenant General T. Michael Mosely for her service in Kyrgyzstan, Tracey

27 "distinguished herself by outstanding achievement" through, among other things,

28 providing outstanding veterinary care, coordinating emergency veterinary treatment,
7 COMPLAINT
CASE NO. - - - - - - -

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 8 of 23 Page ID #:17

1 developing training in dog handling and first aid, refurbishing the veterinary facilities

2 "in extremely austere conditions," helping to coordinate a local food procurement

3 program, and being "always the true team player."

4

27. While Tracey was stationed in Kyrgyzstan, the United States

5 commenced Operation Iraqi Freedom. In February 2003, Tracey was transferred back

6 to Camp Doha in Kuwait and was sent on frequent missions into southern Iraq to

7 assist military veterinarians and maintain the health and well-being of military

8 working dogs on United States military bases.

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28. Over the course of her military career, including her service in Operations Enduring Freedom and Iraqi Freedom, Tracey was awarded, among other honors, three Army Commendation Medals; the Air Force Commendation Medal; five Army Achievement Medals; two Army Good Conduct Medals; the Armed Forces Reserve Medal with Mobilization Device; two National Defense Service Medals; an Iraq Campaign Medal with two Bronze Service Stars; the Global War on Terrorism Expeditionary Medal; the Global War on Terrorism Service Medal; two Overseas Service Ribbons; and the Joint Meritorious Unit Award.
29. Although Tracey's enlistment contract expired in January 2003, Tracey did not return to the United States until May 2003 as a result of the military's "stop-

19 loss" program. In June 2003, after more than nine years of active duty and

20 approximately three years of reserve duty, Tracey was honorably discharged from the

21 United States Army.

22

30. After leaving the army, Tracey returned to California. Like many

23 soldiers returning from war, Tracey underwent a difficult transition back to civilian

24 life. Her relationship at the time ended, and she began receiving treatment at her local

25 VA hospital for PTSD, which continues to this day.

26

31. After some time, Tracey was able to resume her college studies. In

27 December 2010, she received a Bachelor of Science in Kinesiology from California

28 State University at Northridge.
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COMPLAINT CASE NO. - - - - - - -

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 9 of 23 Page ID #:18

1

32. In January 2012, Tracey was accepted into the Master of Public

2 Administration program at Clemson University, which she will attend via online

3 courses.

4

Tracey and Maggie's Relationship

5

33. Tracey first met Maggie when Tracey moved to California in 2001,

6 during Tracey's service in the Army Reserves and before her deployment to the

7 Middle East. Tracey and Maggie played on opposing rugby teams and met during a

8 game.

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34. Maggie was born in Ventura County, California, and received a Bachelor of Arts in Cognitive Science from Occidental College in Los Angeles, California, in 1999. Maggie was a teacher until 2009, when she became a transportation electrician's apprentice with the International Brotherhood of Electrical Workers.
35. After Tracey returned to California in May 2003, she joined Maggie's rugby club team. Tracey found a support system in the rugby team, and Maggie and her roommates at the time offered Tracey a place to stay while Tracey looked for an apartment during her transition back to civilian life.
36. Tracey and Maggie became close friends and, in the fall of2005, they started dating. A year later, Tracey moved in with Maggie.

19

37. On November 1, 2008, Tracey and Maggie were married in Van Nuys,

20 California, pursuant to a duly issued marriage license from the State of California.

21 The State of California legally recognizes Tracey and Maggie's marriage and provides

22 them with the same status, responsibilities, and protections as other legally married

23 couples under state law.

24

.' 38. Tracey and Maggie currently reside together in Pasadena, California.

25

Tracey's Service-Connected Conditions and Claim for Spousal Benefits

26

39. Tracey receives monthly disability compensation for a number of

27 conditions that have been determined by the VA to be service-connected, including

28 multiple sclerosis and PTSD.
9

COMPLAINT CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 10 of 23 Page ID #:19

1

40. On April 19, 2011, Tracey filed VA Form 21-686c, Declaration of Status

2 of Dependents, indicating her desire to add her spouse, Maggie, for purposes of

3 receiving additional dependencycompensation that the VA provides to married

4 disabled veterans. Along with that form, Tracey submitted a copy of the marriage

5 certificate issued to her and Maggie by the State of California.

6

41. In a letter dated May 2,2011, the VA Regional Office denied Tracey's

7 claim. The sole basis for denial cited by the letter was that "a veteran may only

8 receive additional compensatory benefits for a spouse ofthe opposite sex."

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42. Tracey timely filed a Notice of Disagreement along with a request for a personal hearing. On June 22, 2011, Tracey appeared at a hearing held before a Decision Review Officer.
43. By letter dated August 8, 2011, the VA Regional Office again denied Tracey's claim on the grounds that "[t]he veteran's marriage is not valid for VA purposes." The letter stated:
For VA purposes and under VA Law 38 CFR 3.50(a) a veteran may only receive additional compensatory benefits for a spouse of the opposite sex. Although you have a valid marriage to Mrs. Maggie Lorraine Cooper in the state of

19

California, this marriage is not valid under current Federal

20

Regulations.

21

The testimony at your present hearing was very thorough

22

and complete, however, our regulation defining marriage

23

states that for VA purposes, a "spouse" means a person of

24

the opposite sex whose marriage to the veteran meets the

25

requirements [of] CFR 3.1 (which defines a veteran.)

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You are a veteran and have served honorably, however we

27

must deny your claim for dependency at this time. Your VA

28

payments will remain as a single veteran.

10
COMPLAINT CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 11 of 23 Page ID #:20

1

Federal Benefits for Married Veterans

2

44. The United States government provides a number of benefits to active

3 duty military service members, retired service members, and veterans to ease the

4 burden that military service imposes on a service member and the service member's

5 family, as well as to honor the veteran's service and the sacrifices made by the

6 veteran's family, among other reasons. The military often emphasizes the importance

7 of providing support to service members, veterans, and their families in order to

8 increase recruitment and retention and to boost morale among the troops.

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45. One significant benefit that the VA provides to veterans and their families is compensation for conditions and disabilities that the VA has determined are "service-connected." See U.S. Dep't of Veterans Affairs, Federal Benefits for Veterans, Dependents and Survivors 25-26 (2011), available at http://www.va.gov/opa/publications/benefits_booklfederal_benefits.pdf (hereinafter "Dependents and Survivors").
. 46. The VA determines monthly compensation for veterans with serviceconnected disabilities based on a system of percentages. For example, under the current Veterans Compensation Benefits Rate Table, a veteran (with no dependents) who is rated as 10% disabled receives $127 per month; a veteran (with no dependents)

19 who is rated as 100% disabled receives $2,769 per month. See U.S. Dep't of Veterans

20 Affairs, Veterans Compensation Benefits Rate Tables - Effective 12/1/11,

21 http://www.vba.va.gov/blnl211Rates/compOl.htm(lastvisitedJan.ll. 2012).

22

47. For veterans who are rated as 30% disabled or higher, VA compensation

23 increases with the number of dependents that the veteran claims. For example, under

24 the current Veterans Compensation Benefits Rate Table, a veteran who is rated as

25 300/0 disabled with no dependents receives $389 per month; a married veteran who is

26 rated as 30% disabled receives $435 per month; and a married veteran who is rated as

27 30% disabled with a child receives $469 per month. Compensation also increases

28 where a veteran has dependent parents. See id.
11

COMPLAINT CASE NO. - - - - - - -

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 12 of 23 Page ID #:21

1

48. Based on her service-connected conditions, Tracey is currently rated as

2 80% disabled and is legally married in California. Under the current Veterans

3 Compensation Benefits Rate Table, married veterans rated as 80% disabled receive

4 $1,602 per month. However, because Maggie is not recognized by the VA as

5 Tracey's legal spouse, Tracey is treated as a single veteran and receives only $1,478

6 per month.

7

49. The VA also provides Disability and Indemnity Compensation to

8 surviving spouses of (1) veterans whose death resulted from a service-connected

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injury or disease, and (2) veterans whose death resulted from a non-service-connected injury or disease and who were receiving, or entitled to receive, VA compensation for a service-connected disability that was rated as totally disabling for a specified number of years. See Dependents and Survivors 103-05. Effective December 1, 2011, eligible surviving spouses are entitled to receive a minimum monthly compensation of$I,195. See U.S. Dep't of Veterans Affairs,Dependents Indemnity Compensation -Effective 12/1/11, http://www.vba.va.gov/blnl21IRates/comp03.htm (last visited Jan. 11,2012). Tracey and Maggie are not eligible to receive this benefit because the VA does not recognize Tracey and Maggie's marriage and considers Tracey to be a single veteran.

19

50. Another important benefit that the VA provides to veterans and their

20 spouses is burial benefits. Burial benefits include a gravesite at a veterans' cemetery;

21 a government headstone or marker; a burial flag; spousal burial with the veteran, even

22 if the spouse predeceases the veteran; inscription of the veteran's and spouse's name

23 and dates of birth and death; and perpetual care. See Dependents and Survivors

24 69-72. When Tracey inquired about obtaining burial benefits for her and Maggie, she

25 was told that Maggie was not eligible to receive those benefits because federal law

26 does not recognize their marriage and considers Tracey to be a single veteran.

27

28
12 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 13 of 23 Page ID #:22

1

The Definition of "Spouse" in Title 38

2

51. Title 38 of the United States Code, which governs veterans' benefits,

3 recognizes that the federal government should defer to the states when determining

4 whether a person is legally married: "In determining whether or not a person is or was

5 the spouse of a veteran, their marriage shall be proven as valid for the purposes of all

6 laws administered by the Secretary according to the law of the place where the parties

7 resided at the time of the marriage or the law of the place where the parties resided

8 when the right to benefits accrued." 38 U.S.C. §103(c). This includes common law

9

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marriages that are recognized in the jurisdiction where the veteran resides. 52. Another section of Title 38, however, defines the term "spouse" as "a
person of the opposite sex who is a wife or husband." 38 U.S.C. § 101(31). Similarly, the term "surviving spouse" is defined as "a person of the opposite sex who wasthe spouse of a veteran at the time of the veteran's death ...." Id. § 101(3).
53. The legislative history behind Title 38's definition of "spouse" as "a person of the opposite sex" does not reflect Congressional intent to preclude veterans in same-sex marriages from obtaining spousal benefits. Rather, this language represents a legislative effort to create gender equality in the statute. In 1975, two years after the Supreme Court ruled that the military could not distribute benefits

19 differently based on gender in Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764,

20 36 L.Ed.2d 583 (1973), Congress removed references to exclusively male veterans

21 and their "widows" from Title 38. The legislative-history of this revision contains no

22 discussion of veterans who are in same-sex marriages. Instead, the Senate Committee

23 on Veterans Affairs explained that it "add[ed] the term 'spouse' to mean wife or

24 husband and the term 'surviving spouse' to mean widow or widower" to the definition

25 section of Title 38 and substituted these terms throughout the title in order "to

26 eliminate unnecessary gender references." S. Rep. No. 94-532, at 78 (1975)

27 (emphasis added). Thus, the definition of "spouse" as a "person of the opposite sex"

28 manifests Congress's commitment to equality-not intent to deny spousal benefits to
13 COMPLAINT
CASENO. ____________

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 14 of 23 Page ID #:23

1 same-sex spouses of veterans or to create a federal definition ofmarriage for the

2 purpose of excluding same-sex couples.

3

54. Although the Congressional intent behind the definitions found at

4 38 U.S.C. § 101(3) and (31) did not contemplate precluding veterans in same-sex

5 marriages from receiving spousal benefits, those definitions now bar Tracey and

6 Maggie from receiving additional benefits solely because of their sexual orientation

7 and because of their sex in relation to each other.

8

The Defense of Marriage Act

9

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55. Even if the definitions of "spouse" and "surviving spouse" in Title 38 were amended to include same-sex spouses, Section 3 of the so-called Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified as amended at 1 U.S.C. § 7) ("DOMA"), would prohibit the VA from recognizing Tracey and Maggie's marriage for purposes of determining the couple's eligibility to receive benefits.
56. Section 3 ofDOMA provides, in pertinent part: Sec. 3 DEFINITION OF MARRIAGE (a) IN GENERAL - Chapter 1 of title 1, United States Code is amended by adding at the end of the following:

19

§7. Definition of 'marriage' and 'spouse'

20

"In determining the meaning of any Act of Congress,

21

or of any ruling, regulation, or interpretation of the various

22

administrative bureaus and agencies of the United States, the

23

word 'marriage' means only a legal union between one man

24

and one woman as husband and wife, and the word 'spouse'

25

refers only to a person of the opposite sex who is a husband

26

or a wife."

27

57. The federal government does not have a rational basis for, much less a

28 compelling or important interest in, so defining "spouse" or "marriage" for purposes
14 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 15 of 23 Page ID #:24

1 of federal benefits and burdens. According to the House Report on DOMA, H.R. Rep.

2 No. 106-664 (1996), Congress offered four justifications for treating an individual

3 married to a person of the same sex differently from an individual married to a person

4 of a different sex. All are irrational.

5

58. First, Congress claimed that DOMA advances the government's interest

6 in defending and nurturing the institution of traditional heterosexual marriage. See id.

7 at 12. This so-called rationale simply restates the government's intent to discriminate

8 against same-sex couples and provides no independent justification for the

9

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government's discriminatory action. The federal government has long accepted state determinations of marital status,even in the face of changes in marriage licensing by the states. The only state-licensed marriages it categorically refuses to respect are those of same-sex couples. The federal government's refusal to recognize Tracey and Maggie's marriage does not nurture, improve, stabilize, or enhance the marriages of other married couples. Nor would the federal government's recognition of their marriage have any negative impact on the marriages of other married couples.
59. Second, Congress claimed an interest in defending traditional notions of morality. See id. at 15. This so-called justification is simply another reframing of Congress's disapproval of lesbians and gay men. Lesbians and gay men are a

19 minority group that has suffered a long history of public and private discrimination.

20 Discrimination for its own sake is not a legitimate purpose upon which

21 disadvantageous classifications may be imposed. Moreover, sexual orientation is an

22 immutable characteristic that bears no relation whatsoever to an individual's ability to

23 participate in or contribute to society.

24

60. Third, Congress claimed that DOMA advances the government's interest·

25 in protecting state sovereignty and democratic self-governance. See id. at 16. On the

26 contrary, DOMA infringes state sovereignty because it refuses to respect state

27 decisions as to the licensing and recognition of marriages, a key component of states'

28 long-recognized authority to regulate domestic relations. Prior to DOMA's passage,
15 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 16 of 23 Page ID #:25

1 states such as California determined the marital status oftheir citizens, and the federal

2 government deferred to a state's determination of marriage in the application of

3 federal law. Far from protecting state sovereignty in enacting DOMA, Congress in

4 fact violated the sovereignty of the states that license or recognize marriages of same-

5 sex couples.

6

61. Fourth, Congress claimed that DOMA advances the government's

7 interest in preserving scarce government resources. See id. at 18. In fact, according

8 to the Congressional Budget Office, the recognition of marriages of same-sex couples

9

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will not deplete scarce government resources; rather, recognition of same-sex marriages will increase annual net federal revenue. See Congo Budget Office, u.S. Cong., The Potential Budgetary Impact of Recognizing Same-Sex Marriages 1 (June 21, 2004), http://www.cbo.gov/ftpdocs/55xx/doc5559/06-21-SameSexMarriage.pdf. Moreover, while the federal government's fiscal health is always a matter of concern, the government cannot advance this interest by singling out a similarly-situated minority group, such as individuals in same-sex marriages, for discrimination based on their sexual orientation and sex in relation to the sex of their spouse. There was and is no valid justification to deny veterans and their same-sex spouses the federal benefits available to similarly-situated veterans and their spouses in heterosexual

19 marriages.

20

FIRST CLAIM FOR RELIEF

21

. 62. Plaintiffs re-allege and incorporate by reference each and every allegation

22 contained in the preceding paragraphs as if set forth fully herein.

23

63. As a result of the definitions of "spouse" and "surviving spouse" in

24 38 U.S.C. § 101 (3) and (31), the federal government treats veterans in same-sex

25 marriages differently from veterans in heterosexual marriages. Because of this

26 disparity in treatment, Tracey Cooper-Harris is unable to have her spouse recognized

27 by the VA and receive all the benefits afforded to similarly-situated married veterans

28
16 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 17 of 23 Page ID #:26

1 based solely on her sexual orientation and her sex in relation to the sex ofher spouse.

2

64. As a result of the definitions of "spouse" and "surviving spouse" in

3 38 U.S.C. § 101 (3) and (31), the federal government treats the spouses of veterans in

4 same-sex marriages differently from the spouses of veterans in heterosexual

5 marriages. Because of this disparity in treatment, Maggie Cooper-Harris is not

6 recognized as a spouse by the VA and is ineligible to receive all the benefits afforded

7 to similarly-situated spouses of married veterans based solely on her sexual

8 orientation and her sex in relation to the sex of her spouse.

9

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65. Because the definitions of "spouse" and "surviving spouse" in 38 U.S.C.

§ 101 (3) and (31) on their face require this disparity of treatment with regard to

veterans' eligibility for spousal benefits from the VA, the definitions create a

classification that singles out one class of valid marriages-those of same-sex

couples-and subjects persons in those marriages to differential treatment compared

to other similarly-situated married couples without justification in violation of the

right to equal protection secured by the Fifth Amendment to the Constitution of the

United States.

SECOND CLAIM FOR RELIEF

66. Plaintiffs re-allege and incorporate by reference each and every allegation

19 contained in the preceding paragraphs as if set forth fully herein.

20

67. Even if the definitions of "spouse" and "surviving spouse" in 38 U.S.C.

21 § 101(3) and (31) allowed for recognition of a veteran's spouse of the same sex,

22 DOMA prevents the VA from recognizing veterans in legal same-sex marriages.

23 Accordingly, Tracey Cooper-Harris would continue to be denied the recognition of

24 her spouse by the VA and the benefits afforded to similarly-situated married veterans

25 based solely on her sexual orientation and her sex in relation to the sex of her spouse.

26

68. Even if the definitions of "spouse" and "surviving spouse" in 38 U.S.C.

27 § 101 (3) and (31) allowed for recognition of a veteran's spouse of the same sex,

28 DOMA prevents the VA from recognizing veterans in legal same-sex marriages.
17 COMPLAINT
CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 18 of 23 Page ID #:27

1 Accordingly, Maggie Cooper-Harris would continue to be denied the recognition as a

2 spouse by the VA and the benefits afforded to other similarly-situated spouses of

3 married veterans based solely on her sexual orientation and her sex in relation to the

4 sex of her spouse.

5

69. Because DOMA, as applied to plaintiffs, requires this disparity of

6 treatment with regard to their eligibility to receive spousal benefits from the VA, it

7 creates a classification that singles out one class of legal marriages-those of same-

8 sex couples-and subjects the persons in those marriages to differential treatment

9

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compared to similarly-situated married couples without justification in violation of the right to equal protection secured by the Fifth Amendment to the Constitution of the United States.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Tracey Cooper-Harris and Maggie Cooper-Harris pray for relief as follows:
a. A declaration that paragraphs (3) and (31) of38 U.S.C. § 101 violate, on their face, the right to equal protection secured by the Fifth Amendment to the Constitution of the United States.
b. A declaration that Section 3 ofDOMA, 1 U.S.C. § 7, as applied to the

19 plaintiffs, violates the right to equal protection secured by the Fifth Amendment to the

20 Constitution of the United States.

21

c. Enjoin the defendants from conti,nuing to discriminate against Tracey

22 Cooper-Harris by treating her differently from similarly-situated veterans in

23 heterosexual marriages and refusing to recognize Maggie Cooper-Harris as her

24 spouse.

25

d. Enjoin the defendants from continuingto discriminate against Maggie

26 Cooper-Harris by treating her differently from similarly-situated spouses of veterans

27 in heterosexual marriages and refusing to recognize Tracey Cooper-Harris as her

28 spouse.

18
COMPLAINT CASE NO. _ _ _ _ __

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 19 of 23 Page ID #:28

1

e. Award the plaintiffs costs and reasonable attorneys' fees and expenses

2 pursuant to 28 U.S.C. § 2412 or other applicable statute.

3

f. Such other relief as the Court deems just and appropriate.

4

5 DATED: February 1,2012 6

7

8

9

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Respectfully submitted, WILMER CUTLER PICKERING HALE AND DORRLLP
BY: ~ R. ~ M/)/r
RANDALL R. LEE 350 South Grand Avenue, Suite·2100 Los Angeles, CA 90071 (213) 443-5300 randall.lee@wilmerhale.com
On behalfofAttorneys for Plaintiffs . Tracey Cooper-Harris and Maggze CooperHarris

19

20

21

22

23

24

25

26

27

28
ACTIVEUS 92640704vl

19
COMPLAINT CASE NO. - - - - , - - -

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 20 of 23 Page ID #:29

~~~

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Wilmer Cutler Pickering Hale & Dorr LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 443-5300

~)~,,~v~

V~

Tracey cO.[)Der-H.81

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

and MaggIe Cooper-Harris,

CASE NUMBER

v. United States of America; Eric H. Hollier, Jr., in his
Glild
offici{tl capacity as Attorney General; Eric K. Shinseki, in his official capacity as Secretary ofVeterans ~~.a.u.",1
DEFENDANT(S).

12 o
SUMMONS

TO: DEFENDANT(S):

A lawsuit has been filed against you.

Within 60 days after service of this summons on you (not counting the day you received it), you

must serve on the plaintifI an answer to the attached ricomplaint D .

amended complaint '

o counterclaim Dcross-claim or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer

or motion. must be served on the plaintiffs attomey,

Randall R. Lee

350 South Grand Avenue, Suite 2100, Los Angeles, CA 90071

, whose address is .' Ifyou fail to do so,

judgmentby default will be' entered against you for the relief demanded in the complaint. Yon also must file

your answer or motion with the court.

Dated: FEB - 1 2012

Clerk, U.S. District Court' _ _ _ _ __ By:_-+---'o.~_-+

(Use 60.days ifthe defendant is the United States or a United States agency, or is an officer or employee afthe United States. Allowed
60 days by Rule 12(a)(3)].

CV-OIA(lO/II

SUMMONS

SUMMONS

-;
Case 2:12-cUvN-0IT0E8D87S-TCABTEMS-ADIJSWTRIDCTocCuOmUeRnTt. C1ENFTRileAdL 0D2IS/0T1R/I1C2T OPFaCgAeL2IF1OoRfN2I3A Page ID #:30
CIVIL CO'VERSHEET

I (II) PLA.INTIFFS (Cbeck box if you an' representing YOlU'Seif 0) Tracey Cooper-HaIl'is;
Maggie Cooper-Harris

DEFENDANTS United States ofAmerica;
Eric H. Holder, Jr., in his official capacity as AttOllley Oeueral; Eric K. Shinseki, in his official capacity as Secretary ofVetenuul AffiUrs

(b) Attorneys (Finn Name, Address Bnd Telephone Nwuber. Uyou are representiog yow-self. provide same.)
Randall R. Lee (SBN 152672), Wilnter CUtler Pickering Hale & DOlT LLP 350 South Grand Avenue, Suite 2100, Los Angeles, CA 90071 Telephone: (213) 443-5300

Attomeys (r:f Known)

D, BASIS OF JUlUSDlCTION (pillce an X in one box only.)

Df. CITIZENSHIP OF PRINCIPAL PARTlES - For Diversity Ca~es Only (Place an X Ul one box for plaintiffand one for defendant.)

o 1 U.S. Govenunent Plaintiff

o 3 Federol Question (U.S.
Government Not D PIU1y)

Citizen ofThis State

PTF DD

PTF DEF

CIt 01 Jnccnporated or Principal Plrlce 04 04

ofBusiness in this State

!!1'2 U.s. Government Defendant 0 4 Divelsity (Indicate Citizenship Citizell of Allotlrer State ofParties ill Item III)

02 02 Incorporaled lIJld Principal 'F'lace OS D5 ofBusiness ill Another StIItE'

Citizen or SUbjel:f ofa Foreign COWltry 0 3 0 3 Foreign Nation

06 06

IV. ORIGIN (place 8n X in one box only.)

rll Original.

0 2 ReJllOved from 0 3 Remanded ftom 04 Reinstated or 0 5 Transferred from another district (specify); 0 6 Multi- o 7 Appeal to District

Proceeding

State Court

Appellate Colut

Reopened

District

Judgeoom

Litigation Maglslmte Judge

IlNa V, REQUESTED IN COMPLAINT: JURy DEMAND; 0 Yes

(Check 'Yes' only ifdemanded in comphUnt.)

CLASS ACTION under F.R.C.P. 23: 0 Yes rlNo

0 MONEY DEl\~ED IN COMPLAINT: S N/A

VL CAUSE OF ACTION (Cite tlle U.S. Civil Statute under which you ate filing and write a brief statement ofcause. Do not cite jurisdictional statutes unless diversity.) Violation ofEgusJ Protection uudeJ' the Fifth AmendmeDt to the United States CoDSlittuioll
VII. NATURE OF SUIT (Place au X In one box only.)

Rates/etc. 0460 Deportation
o 470 Racketeer IntJuenl:ed
andComJpt
Orgmlizations
o 480 Consumer Credit
o 490 Cable/Sat TV
OSlO Selective Senoice
Cl SSO Securities/CommoditieS/ Exchange
o 87S CUstomer Cba1lenge 12
USC 3410
o 890 Other Statutory Al!Iions
o S91 Agric\l111U1ll Act o 892 Economic Stabilization
Act
o a93 Environmental Matters
o 894 Energy Allocation Act
o S95 Freedom ofInfo. Act o 900 Appeal ofFee Detemli-
nation Under Equal
Access 10 Justice
o 9S0 Coustitutionality of
State Slatutes

110 Insurance

120 Marine 130 Miller Act 140 Negotiable Instrument 1SO Recovery of
QVetpll)'lllent &
Enforeement of ludgment 151 Medicare Act 152 Recovery ofDefaulted Student Loan (EKe1. Veterans)
153 RecovelY of Overpayment of Veteran's Benefits
160 Stockholders' Suits 190 Other ConlIllct
195 ConlIllct Product

Airplane

AUplauc Product

Vacate Sentence

Liability Assaulr, u"bel & Sland=: Fed. Employen' Liability

Habeas C01PUS S30 General 535 Death Penalty 5, 40 OMtahnedramusl

340 Marioe 345 Marine PrOdUCl

5S0 Civil Rights

Lillbility

350 MororVebicle

3SS MororVehicle Product LiIlbiJity Other Per!ioulll lujwy Pereouallnjuty· Mcd Malpn1crico PenomU InjlllY-

k~ft~~~1~~~~1~lo

610 620

Agriculture other Food &

441 Voting

Drug

442 Employment

DmgRelated

443 Housing/Acco-

Seizure of

mmodations

Property21 USC

Product Liabilily 444 Welfure

881

Asbostos Pessonal 445 AmericlUl with 630 LiqUOI' Laws

Product

Disabilities •

640 R..R.. &. Truck

210 220 230

Laud Condemnation ForecloSUl\' Rent Lease &. Ejeclment

1~!~~~~~~;ir~~.!lo Ie

446

Employment American with Disabilities -

650 Airline Regs 660 Occupational
Safety /Health

240 TOlts to Land

Application

Other

690 other

245 Tort Product Linbility

Habe.s Corpus-

440 Other Civil

290 AU Other Real Property

Alien Detainee Other Immigration

Rights

AcIiOll8

Act 720 LabarlMgmt.
Relations 730 LaborlMgmt.
Reporting&. Di!;closure Act 740 Railway Labor Act 790 Otlber Labor Liligation 791 limp!. IWt. Illc.
861 HlA. (ll9Sit) 862 Slnck Llmg (923) 863 DlWCJDIWW
(4(15(8» 864 SS:(D Title XVI

·CU- 14 887 l;~ A FOR OFFICE USE ONLY; elISe Ntuuber: ________: _'_._"__'_ - __u__. _..;;;....;;._______
AFTER COMPLETING THE FRONT SIDE OF FORJ\il eV-7l, COMPLETE THE INFORMATION REQtlESTED BELOW.

CV·71 (OSI08)

ClVlL COVER SHEET

Page I on

Case 2:12-cUv-N0I0T8E8D7S-TCABTMES-ADJIWSTRIDCoTcCuOmUeRnTt,1CENFTilReAdL0D2I/S0T1R/1I2CT OPFagCeAL2I2FOofR2N3IA Page ID #:31
CIVIL COVER SHEET
VID(a)_ IDENTICAL CA_S_E_S:_H_a_s _th_is_ac_ti_on_b_e_en_p_l'e_v_io_us_ly_f_ile_d_in_t_hi_s _co_ur_t _an_d_d_ism_i_ss_ed_,_re_m_an_d_ed_o_r_cl_os_e_d?__I'_IN_o__a__Y_es_____________•___________
.U~,~tctienwn~):

VID(b). RELATED CASES: Have Rny cases been previously 1i1ed in this court that are related to the present case? tiNa DYes
Ifyes,tistcaseDluuber(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Civil cases are deemed related if a previously med case and tile present case: (Check 1111 boxes that apply) [] A. Arise from the same or closely related transactions, happenings, or events; or
[] B. Call for determination. oftile same or substantially relRted or similar questions of law and faet; or [] C. For other reasous would entail substantial duplication oflabor ifheanl by different judges; or [] D. Involve the same parent, tlademark or copyngbt;!!!! one ofthe factors identified above in a, bore "Iso is present.

IX. VENUE: (When completing d\e following infonnation, use an additioual slleet ifnecessary.)

Ca) List the Comty in ibis District; California COlU1ty outside oftltis- Dislrict; state ifother than California; 0" FOJ"eign CouuUy, in which EACH I\IlUIetI plaintiffresides.

"'"""'.....0;_- ""'-"""-. . . . """"""'« j D Cbeck heIeifthe government, its RRencies or employeesis a namedpJaintiff. Ifthis box is checked, go to item (b).

~_ of.... """"" __

....

F"';" """"""

Los Angeles County

.

.

(b) List tile County in this District; California CoUllty outside of this Dislriet; State ifother than California; or Foreign Country, in which EACH named defendallt resides.
Ifl Check here ifthe.l!Ovemmenl its aaencies or emplovees is a named defeneJant. Ifthis box is checked, l!O to item (c).

(c) List the County in this District; Califomia County oumde of this District; Stllte ifother thnn Californill; orForeign Country. iii which EACH cl!um arose.
- Note' In land condemnlllloD cases lise the location or tile trnrt of land InVOlved

CCI1I1I1Y in Ibis District:-

CalifomiA County olllside oftbis Disuict; SUIte. ifothef t1um California; Of F'oreisn Counuy

Los Angeles COMty

.. Los Angeles, Orang" Sail Bnllnrdlno, Riverside, Vema'ft, Santa Barbara., or SlIn Luis Obispo Counfles Note: ll1land condemnation cases, use the localiolt oCthe tract ofland involved
D8te _ _ _..;:J;..·._.I;;...-_I_~ _ _ _,_ _ _ __
Notice to CounsellPlu1ies: The CV-71 (JSM) Civil CoverSheet and the information contained herein neither replace norsupplement the filing IIIld service ofpleadings orotherpapers as requitedby law. 'Ibis fonn, approved by the Iudicial Conference ofthe United States in September 1974, is required pursulUlt to Local Rulc! 3-1 is not tiled but is used by tbe Clerk ofthe CourtfOl" the pwpose ofstatistics, venue and initiating the civil docket sheet. (For more detailed iustructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Secwity Cases: Nature of Stdt Code AbbrevinttoD Substanth"e Statement of Cause ofAction

861

~

All claims for health insurance benefits (Medicare) WIder TiUe 18, Part A, oftbe Sodal Security Ac~. 85 amended.

AIso, include claims by hospiTals, skilled nw"Sing facilities, etc., for certification as providers of services under the

pl"OgI'8W. (42 U.S.C. 1935FF(b»

862

BL

All claims for "Black Lungn bene1its under Title 4, Part B. ofthe Federal Coal Mine Healtb IIIld Saf,~.ty Act of 1969.

(30 U.S.C. 923)

863

DIWC

All cla.ims filed by insured workers for di5llbilily insurance benefits under Title 2 Qfthe Social Sec\~jly Act, as

amended; plus an claims tiled for child's in.surance benefit'i based on disability. (42 U.S.C. 405(g»

863

DlWW

All claims filed for widows or wido\vers insurance benefits based on disability under Title 2 of the Siocial Secwity

Act, as amended. (42 U.S.C. 40S(g)

864

ssm

All claims for supplemenTal security income paymeuts based upon disability tiled under Tille 16 ofthe Social Security

Act, as IIIllImded.

865

RBI

All claims for retirement (old Dge) and survivors bellefits imder Tifte 2 of the Social Security Act, as amended. (42

U.S.C. (g)

CV-71 (OSI08)

CIVIL COVER. SHEET

Page 20f1

Case 2:12-cv-00887-CBM-AJW Document 1 Filed 02/01/12 Page 23 of 23 Page ID #:32
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge Consuelo B. Marshall and the assigned discovery Magistrate Judge is Andrew J. Wistrich. The case number on all documents filed with the Court should read as follows:
CV12- 887 CBM (AJWx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on al/ defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).
Subsequent documents must be filed at the following location:

[X] Western Division
312 N. Spring St., Rm. G-8
Los Angeles, CA 90012

U Southern Division

U Eastern Division

411 West Fourth St., Rm. 1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

 
 1 JOSEPH J. LEVIN, JR. (Pro Hac Vice) joe.levin@splcenter.org

NOTE: CHANGES HAVE BEEN

2 CHRISTINE P. SUN (SBN 218701) christine.sun@splcenter.org

MADE TO THIS DOCUMENT

3 CAREN E. SHORT (Pro Hac Vice)

Page 4, paragraph 16, line 23 & 24

caren.short@splcenter.org

4 SOUTHERN POVERTY LAW CENTER

400 Washington Avenue

5 Montgomery, AL 36104

Telephone: (334) 956-8200

6 Facsimile: (334) 956-8481

7 (Caption Continued on Next Page)

8

NOTE: CHANGES MADE BY THE COURT

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

Western Division

12

TRACEY COOPER-HARRIS and

) Case No. CV12-887 CBM (AJWx)

13 MAGGIE COOPER-HARRIS,

)

)

14

Plaintiffs,

)

v.

) [PROPOSED] PROTECTIVE

15

) ORDER

UNITED STATES OF AMERICA;

)

16 ERIC H. HOLDER, JR., in his official )

capacity as Attorney General; and

) Hon. Consuelo B. Marshall

17 ERIC K. SHINSEKI, in his official capacity )

as Secretary of Veterans Affairs,

)

18

)

Defendants.

)

19

)

BIPARTISAN LEGAL ADVISORY

)

20 GROUP OF THE U.S. HOUSE

)

OF REPRESENTATIVES

)

21

)

Intervenor-Defendant.

)

22

)

23

24

25

26

27

28

1

ActiveUS 102272709v.1

1

RANDALL R. LEE (SBN 152672) randall.lee@wilmerhale.com

2

MATTHEW BENEDETTO (SBN 252379) matthew.benedetto@wilmerhale.com

3

WILMER CUTLER PICKERING HALE AND DORR LLP 350 South Grand Avenue, Suite 2100

4

Los Angeles, CA 90071 Telephone: (213) 443-5300

5 Facsimile: (213) 443-5400

6

ADAM P. ROMERO (Pro Hac Vice) adam.romero@wilmerhale.com

7

WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center

8

New York, NY 10007 Telephone: (212) 230-8800

9 Facsimile: (212) 230-8888

EUGENE MARDER (SBN 275762) 10 eugene.marder@wilmerhale.com

11

WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road

12

Palo Alto, CA 94304 Telephone: (650) 858-6000

Facsimile: (650) 858-6100 13

NOTE: CHANGES HAVE BEEN

14 Attorneys for Plaintiffs

MADE TO THIS DOCUMENT

15 STUART F. DELERY

NOTE: CHANGES MADE BY THE COURT

Acting Assistant Attorney General 16

17

ANDRE BIROTTE, JR. United States Attorney

18 ARTHUR R. GOLDBERG (DC Bar 180661)

Assistant Branch Director 19

20

JEAN LIN (NY Bar 4074530) jean.lin@usdoj.gov

Senior Trial Counsel 21 United States Department of Justice

Civil Division 22 Federal Programs Branch

23

20 Massachusetts Ave., N.W. Washington, DC 20530

(202) 514-3716 24 (202) 616-8470 (Fax)

25 Attorneys for Defendants

26

27

2 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1

2

Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com

3

H. Christopher Bartolomucci (DC Bar 453423) cbartolomucci@bancroftpllc.com

4

Nicholas J. Nelson (DC Bar 1001696) nnelson@bancroftpllc.com

5

Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com

6 BANCROFT PLLC

7

1919 M Street, N.W. Suite 470

8

Washington, D.C. 20036 202-234-0090 (telephone)

9 202-234-2806 (facsimile)

Of Counsel:

10 Kerry W. Kircher, General Counsel (DC Bar 386816)

11

Kerry.Kircher@mail.house.gov William Pittard, Deputy General Counsel (DC Bar 482949)

12

William.Pittard@mail.house.gov Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000)

Christine.Davenport@mail.house.gov

13 Todd B. Tatelman, Assistant Counsel (VA Bar 66008)

14

Todd.Tatelman@mail.house.gov Mary Beth Walker, Assistant Counsel (DC Bar 501033)

15 MaryBeth.Walker@mail.house.gov

OFFICE OF GENERAL COUNSEL,

16 U.S. HOUSE OF REPRESENTATIVES

17

219 Cannon House Office Building Washington, D.C. 20515

202-225-9700 (telephone)

18 202-226-1360 (facsimile)

19 Counsel for Intervenor-Defendant the Bipartisan 20 Legal Advisory Group of the U.S. House of Representatives

21

22

NOTE: CHANGES HAVE BEEN

23

MADE TO THIS DOCUMENT

24

NOTE: CHANGES MADE BY THE COURT

25

26

27

3 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1

The Court, having reviewed the Joint Stipulation Re Protective Order

2 (“Stipulation”), entered into on October 17, 2012 between Tracey Cooper-Harris and

3 Maggie Cooper-Harris (“Plaintiffs”); and The United States of America; Eric H.

4 Holder, Jr., in his official capacity as Attorney General; and Eric K. Shinseki, in his

5 official capacity as Secretary of Veterans Affairs (“Defendants”); and the Bipartisan

6 Legal Advisory Group of the U.S. House of Representatives (“Intervenor-Defendant”)

7 (collectively, the “parties”), and for good cause shown, and to facilitate discovery and

8 particularly to facilitate the exchange during discovery of documents, things,

9 information, testimony, and other evidence, hereby rules as follows:

10

IT IS HEREBY ORDERED that:

11

WHEREAS, this is an action that asserts violations of equal protection secured

12 by the Fifth Amendment to the United States Constitution;

13

WHEREAS, discovery in this action may require the disclosure by the parties

14 of nonpublic and sensitive personal information;

15

WHEREAS, Intervenor-Defendant seeks to discover information and records

16 from Defendant the Secretary of Veterans Affairs that are protected from disclosure

17 by the Privacy Act of 1974, 5 U.S.C. § 552a and 38 U.S.C. § 5701; and

18

WHEREAS, in order to allow the discovery of confidential personal

19 information by the parties and to permit Intervenor-Defendant to discover such

20 protected information without making this information public, the Court hereby enters

21 this Protective Order, pursuant to 5 U.S.C. § 552a(b)(11), 38 U.S.C. § 5701(b)(2) and

22 Rules 5.2 and 26(c) of the Federal Rules of Civil Procedure, for the purpose of

23 assuring the confidentiality of such information.

24

1. This Protective Order shall govern the production and use in the above-

25 captioned action of “Protected Materials,” produced or provided by any party in

26 response to a discovery request or as a required disclosure.

27

28

1

ActiveUS 102272709v.1

1

2. As used in this Order, the term “Protected Materials” means records,

2 documents, and/or information, including computerized or electronic information, that

3 are protected from disclosure under any applicable law or regulation, including the

4 Privacy Act and 38 U.S.C. § 5701, or the disclosure of which might otherwise intrude

5 upon the privacy interests of individuals to whom such records, documents, and/or

6 information pertain. Such Protected Materials may include, but are not limited to,

7 documents, records, tangible things, deposition testimony and exhibits, responses to

8 interrogatories, responses to requests for admission, responses to requests for

9 production of documents or inspection, and summaries or descriptions of such

10 documents and information. Any Protected Materials shall be marked according to

11 the terms of Paragraph 7 or designated according to the terms of Paragraph 8 in order

12 to qualify as Protected Materials.

13

3. As used in this Order, the term “record” as it relates to Privacy Act and

14 38 U.S.C. § 5701 protected materials shall have the same meaning as set forth in the

15 Privacy Act, 5 U.S.C. § 552a(a)(4).

16

4. Pursuant to 5 U.S.C. § 552a(b)(11), the Secretary of Veterans Affairs is

17 hereby authorized to release Protected Materials consistent with the terms of this

18 Order. Plaintiffs’ attorneys represent that they are authorized by Plaintiffs to receive

19 such records related to the Plaintiffs.

20

5. To the extent that Protected Materials contain Plaintiffs’ social security

21 numbers, the producing party shall redact such information.

22

6. To the extent that Protected Materials contain information that pertains to

23 anyone other than Plaintiffs, the producing party shall redact those individuals’ names,

24 social security numbers, street addresses, phone numbers, or similar information.

25

7. The producing party shall mark the Protected Materials in bold type-face:

26 CONFIDENTIAL: SUBJECT TO PROTECTIVE ORDER or a similar marking.

27

2 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1 For any records, such as electronic data, whose medium makes such stamping

2 impracticable, the compact disk, diskette, or tape case, and/or accompanying cover

3 letter shall be marked by the producing party in bold type-face: “CONFIDENTIAL:

4 SUBJECT TO PROTECTIVE ORDER” or a similar marking.

5

8. Documents, records, and/or information produced before the entry of this

6 Order may be designated Protected Materials by notifying each party in writing of the

7 documents, records, and/or information to be so designated within seven (7) calendar

8 days after notice of entry of this Order.

9

9. Deposition transcripts or portions of deposition transcripts may be

10 designated Protected Materials within fourteen (14) days of receipt of the transcript.

11 Any deposition transcript or portion of a deposition transcript not designated Protected

12 Materials at the time of the deposition shall be treated as such until fifteen (15) days

13 after its receipt by all parties, unless the parties agree otherwise.

14

10. Any discovery responses, including responses to interrogatories or

15 requests for admissions, and any pleadings, motions or other papers that incorporate,

16 discuss or otherwise disclose Protected Materials shall be similarly marked by the

17 party creating the document in bold type-face: CONFIDENTIAL: SUBJECT TO

18 PROTECTIVE ORDER or a similar marking.

19

11. The failure to designate any document, record, and/or information as

20 Protected Materials shall not constitute a waiver of any timely assertion that the

21 materials are covered by this Order.

22

12. No party shall be in violation of this Order for the disclosure of

23 documents, records, and/or information if such disclosure is made prior to the marking

24 of such materials as Protected Materials. If such disclosure is made, the parties and all

25 individuals to whom the disclosure was made shall treat the document, record, and/or

26

27

3 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1 information as subject to this Order from the date of its designation as Protected

2 Materials forward.

3

13. Protected Materials, and any copies thereof, and the information

4 contained therein, may be disclosed only to: (1) the parties’ attorneys of record and

5 persons regularly in their employ, excluding all non-Plaintiff experts and witnesses;

6 and (2) the Court and its personnel, including court reporters.

7

14. Protected Materials, any copies thereof, and any and all the information

8 contained therein, shall be distributed to, and used by, only those individuals listed in

9 paragraph 13 of this Order for the sole purpose of this litigation and shall not be

10 disclosed, in any manner whatsoever, to anyone for any other purpose, and shall not

11 be published or disseminated to the public in any form.

12

15. Any person listed in paragraph 13 (except the Court) who is to review

13 Protected Materials must first agree in writing to be bound by and abide by the terms

14 of this Order, either by signing this Stipulation and Order, or by signing a certification

15 in the form of Exhibit A attached hereto. Such signed and completed certification

16 shall be retained by the attorneys of record for the party receiving Protected Materials.

17 For the purposes of this paragraph, signature by any counsel of record for a party shall

18 constitute a signature of the Stipulation and Order by all counsel of record and persons

19 regularly in their employ.

20

16. Any Protected Materials, including, but not limited to, pleadings,

21 motions, discovery responses, deposition transcripts, or other papers where the

22 contents of Protected Materials are discussed, incorporated, or otherwise disclosed

23 shall be filed with the Court, if at all, under seal. shall be filed with the Court, if at

24 all, under seal with the Court's permission pursuant to Local Rule 79-5.1 If any

25 paper which incorporates any Protected Materials or reveals the contents thereof is

26 filed in this Court, those portions of the papers shall be delivered to the Court

27

4 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1 enclosed in a sealed envelope bearing the caption of this action, an indication of the

2 nature of the contents, and clearly marked UNDER SEAL. In addition to complying

3 with all applicable local rules regarding the filing of documents under seal, the parties

4 shall publicly file a redacted copy of such court submission via the Electronic Case

5 Filing System. The parties will also file an unredacted copy of the submission under

6 seal with the Clerk of this Court and serve other counsel of record with unredacted

7 courtesy copies of the submission.

8

17. It shall be the responsibility of the party who is claiming protected status

9 of any Protected Material to file the necessary application with the Court to request

10 sealing at the appropriate time. The procedure for this application shall be as follows:

11

a. The party seeking to file any Protected Materials (the “Filing

12

Party”) shall notify the other parties in the case seven (7) calendar days in

13

advance of any such filing.

14

b. Any party claiming protected status of the identified Protected

15

Materials shall within four (4) calendar days after receiving the notice from

16

Paragraph a., identify to the Filing Party the Protected Materials: (i) for which it

17

plans to seek a sealing Order; and (ii) for which it plans not to seek a sealing

18

Order.

19

c. Any documents for which sealing will be sought under Paragraph

20

b.i above will be filed under seal by the Filing Party.

21

d. Any documents for which sealing will not be sought under

22

Paragraph b.ii. above will be filed publicly by the Filing Party and the

23

“CONFIDENTIAL” designation will be removed.

24

e. On the same day that the Filing Party files the Protected Materials

25

identified by Paragraph b.i. above, the party or parties claiming protected status

26

will file a motion to seal consistent with the requirements of the Local Rules.

27

5 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1

f. In the event the Court denies the motion to seal documents

2

containing or referencing Protected Materials, the documents shall be filed with

3

the Court publicly (i.e., shall be unsealed).

4

18. The manner of using any Protected Materials at the trial of this litigation

5 shall, after consultation between counsel, be determined by the Court at or about the

6 time when the final pretrial order is submitted to the Court.

7

19. Within sixty (60) days after the termination of this litigation, including

8 any appeals, all recipients of Protected Materials shall return or destroy all such

9 materials, including all copies thereof, at the written request of the producing party or

10 plaintiffs if not the producing party. Notwithstanding this provision, counsel of record

11 in this action may retain an archival copy of all pleadings, motion papers, exhibits,

12 transcripts, expert reports, legal memoranda, correspondence, or attorney work

13 product, even if such materials contain Protected Materials. Any such archival copies

14 that contain or constitute Protected Materials remain subject to this Order.

15

20. The inadvertent disclosure or production of Protected Materials shall not

16 constitute waiver of the protected status. In the event that any Protected Materials is

17 inadvertently disclosed or produced to an individual or organization not authorized

18 under paragraph 13 of this Order to receive or view such materials, the receiving party

19 must immediately notify the producing party and immediately return or destroy the

20 Protected Materials and any copies thereof, as well as any work product derived

21 therefrom, and must not use or disclose the Protected Materials. In addition, the

22 producing party shall immediately notify Plaintiffs’ counsel and shall secure the return

23 or destruction of the inadvertently-produced Protected Materials and any copies

24 thereof, as well as any work product derived therefrom.

25

21. The inadvertent disclosure or production of privileged or attorney work

26 product material shall not constitute waiver of any applicable privileges or protections.

27

6 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1 In the event that privileged or attorney work product material is inadvertently

2 disclosed or produced, the receiving party must immediately notify the producing

3 party and immediately return or destroy the privileged or attorney work product

4 materials and any copies thereof, as well as any work product derived therefrom, and

5 must not use or disclose the material.

6

22. This Order shall not be deemed a waiver of any party’s right to: seek an

7 order compelling discovery with respect to any discovery request; object to any

8 discovery or the production of any document, record, and/or information; assert an

9 applicable protection or privilege; object to the admission of any evidence on any

10 grounds in any proceeding herein; or use its own documents produced in this litigation

11 with complete discretion.

12

23. This Order does not constitute a ruling on whether any particular material

13 is properly discoverable or admissible, and does not constitute a ruling on any

14 potential objection to the production or admissibility of any material.

15

24. The parties agree that the Joint Stipulation and Protective Order shall

16 govern any discovery between the parties prior to its being entered by the Court. In

17 the event the Court denies the parties’ motion for a Protective Order, the parties agree

18 that the terms of the Joint Stipulation and Protective Order, as submitted to the Court,

19 shall continue to govern any discovery between the parties and use of such discovery

20 in this action. The parties do not waive any rights other than as provided herein.

21

25. Nothing in this Order shall prevent disclosure as required by law or

22 compelled by order of any court.

23

26. Nothing in this Order shall be construed to confer rights on any third

24 party.

25

27. This Order may be modified by further order of the Court, or by

26 agreement of counsel for the parties subject to the approval of the Court, provided that

27

7 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1 any such agreement shall be in the form of a written stipulation filed with the clerk of

2 the Court and made a part of the record in this case.

3

28. This Order shall survive the termination of this litigation and the Court

4 shall retain continuing jurisdiction to enforce its terms.

5

6

IT IS SO ORDERED.

7 Dated: October 24, 2012

8

____________________________________

9

Hon. United

Consuelo B. Marshall States District Judge

10

NOTE: CHANGES HAVE BEEN

11

MADE TO THIS DOCUMENT

12

NOTE: CHANGES MADE BY THE COURT

13

Page 4, paragraph 16, line 23 & 24

14

15

16

17

18

19

20

21

22

23

24

25

26

27

8 [PROPOSED] PROTECTIVE ORDER

28

CASE NO. CV 12-887 CBM (AJWx)

ActiveUS 102272709v.1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ActiveUS 102272709v.1

9
[PROPOSED] PROTECTIVE ORDER CASE NO. CV 12-887 CBM (AJWx)

 
 Case 2:12-cv-00887-CBM-AJW Document 38 Filed 05/22/12 Page 1 of 2 Page ID #:306

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. CV 12-0887 CBM (AJWx)

Title

Cooper-Harris, et al. v. United States of America, et al.

Date May 22, 2012

Present: The Honorable

CONSUELO B. MARSHALL

Joseph M. Levario Deputy Clerk

Attorneys Present for Plaintiff:

N/A

N/A Court Reporter / Recorder Attorneys Present for Defendants:
N/A

Proceedings:

IN CHAMBERS/OFF THE RECORD ORDER GRANTING BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES’ LEAVE TO INTERVENE AND WAIVER OF LOCAL RULE 83-2.3 AS TO BANCROFT PLLC

The matters before the Court are Bipartisan Legal Advisory Group of the U.S.

House of Representatives’ (hereinafter, “BLAG”) Unopposed Motion for Leave to

Intervene [Docket No. 17] and Unopposed Motion for Cancellation of Pro Hac Vice

Notice or Waiver of Local Rule 83-2.3 [Docket No. 29]. BLAG’s Unopposed Motion for

Leave to Intervene and Unopposed Motion for Waiver of Local Rule 83-2.3 are hereby

GRANTED.

IT IS HEREBY ORDERED that BLAG is permitted to intervene to defend the

constitutionality of Section 3 of the Defense of Marriage Act (1 U.S.C. § 7) and 38

U.S.C. § 101(3), (13). The Court further waives the Pro Hac Vice application and filing

fee required under Local Rule 83-2.3 as to Paul D. Clement, Esq., H. Christopher

Bartolomucci, Esq., Conor B. Dugan Esq., and Nicholas J. Nelson, Esq. of the law firm

of Bancroft PLLC. [See Docket No. 18.]

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

Case 2:12-cv-00887-CBM-AJW Document 38 Filed 05/22/12 Page 2 of 2 Page ID #:307

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. CV 12-0887 CBM (AJWx)

Title

Cooper-Harris, et al. v. United States of America, et al.

Date May 22, 2012

IT IS SO ORDERED.

Initials of Preparer

00 : 00 JL

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2

 
 Case 2:12-cv-00887-CBM-AJW Document 50 Filed 08/03/12 Page 1 of 2 Page ID #:673

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. CV 12-0887 CBM (AJWx)

Date August 3, 2012

Title

Tracey Cooper-Harris and Maggie Cooper-Harris v. United States of America

Present: The Honorable

CONSUELO B. MARSHALL

Joseph M. Levario Deputy Clerk

Attorneys Present for Plaintiff:

N/A

N/A Court Reporter / Recorder Attorneys Present for Defendants:
N/A

Proceedings:

IN CHAMBERS/OFF THE RECORD

The matter before the Court is Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives’s (“Advisory Group”) Motion to Stay Proceedings. [Docket No. 39.] The Advisory Group seeks to stay all proceedings in this case pending the ruling of the United States Court of Appeals for the Ninth Circuit in Golinksi v. U.S. Office of Personnel Management, Nos. 12-15388 & 12-15079, including any ruling by that Court on any timely-filed petition for rehearing or petition for rehearing en banc.

“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Determining whether a stay is appropriate requires the “exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55. Three factors should be considered in granting a stay: 1) damage that could result from granting the stay; 2) hardship that may result if the stay is denied; and 3) following an “orderly course of justice” measured in the simplification or complication of “issues, proof, and questions of law” that may result from a stay being granted. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005). “[I]f there is even a fair possibility that the stay… will work damage to some one else” the moving party must make a “clear case of hardship or inequity.” Landis, 299 U.S. at 255. “A stay should not be granted unless it appears likely the other proceedings will be concluded within a reasonable time in relation to the urgency of the claims presented to the court.” Lockyer, 398 F.3d at 1110 (quoting Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979)).

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

Case 2:12-cv-00887-CBM-AJW Document 50 Filed 08/03/12 Page 2 of 2 Page ID #:674

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. CV 12-0887 CBM (AJWx)

Date August 3, 2012

Title

Tracey Cooper-Harris and Maggie Cooper-Harris v. United States of America

After weighing the Lockyer factors, the Court DENIES the Advisory Group’s Motion to Stay Proceedings.
IT IS SO ORDERED.

Initials of Preparer

00 : 00 JL

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2

 
 Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 1 of 11 Page ID #:1289

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11

)

TRACEY COOPER-HARRIS and ) No. 2:12-cv-00887-CBM (AJWx)

12 MAGGIE COOPER-HARRIS,

)

)

13

Plaintiffs,

)

) ORDER DENYING INTERVENOR-

14 15

v.

)

)

UNITED STATES OF AMERICA, et )

DEFENDANT’S MOTION TO EXCLUDE THE EXPERT

al.,

) TESTIMONY OF DR.

16

Defendants,

) )

LAWRENCE J. KORB AND

17

) MAJ. GEN. (RET.) DENNIS

18

BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF

) )

LAICH

REPRESENTATIVES,

)

19

)

Intervenor-Defendant )

20

)

)

21

22

23

The matter before the Court is Intervenor-Defendant Bipartisan Legal

24 Advisory Group of the U.S. House of Representatives’ (“BLAG”) Motion in

25 Limine to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj.

26 Gen. (Ret.) Dennis Laich (“Mot.”). [Docket No. 55.]

27

I. PROCEDURAL AND FACTUAL OVERVIEW

28

The following is an overview of facts as alleged in Plaintiff’s Complaint.

1

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 2 of 11 Page ID #:1290

1 Plaintiff Tracey Cooper-Harris (“Tracey”) and her same-sex spouse Maggie

2 Cooper-Harris (“Maggie”) (collectively, “Plaintiffs”) were married in November

3 2008 in California. (Compl. ¶ 3.) Their marriage is recognized by the State of

4 California, where they receive the same “status, responsibility, and protections as

5 other legally married couples under state law.” (Id.) Tracey had served in the

6 United States Army for twelve years prior, with nine in active duty, which

7 included missions in Iraq. (Id. at ¶ 2.) In 2003, Tracey completed her military

8 service and was honorably discharged. (Id.)

9

In 2010, Tracey was diagnosed with multiple sclerosis. (Id. at ¶ 4.) In

10 2011, a U.S. Department of Veteran Affairs (“VA”) hospital determined that

11 Tracey’s multiple sclerosis is service-connected. (Id. at ¶ 5.) This diagnosis

12 prompted Tracey to begin making end-of-life preparations, as there is no known

13 cure for the disease. (Id. at ¶ 4.) Additionally, Tracey suffers from post-traumatic

14 stress disorder (“PTSD”). (Id. at ¶ 5.)

15

Tracey and Maggie are currently barred from receiving VA benefits for

16 married veterans because the VA does not recognize their marriage. (Id. at ¶ 7.)

17 These benefits include additional monthly income, and joint burial and monthly

18 benefits to Maggie when Tracey dies. (Id. at ¶ 6.)

19

On April 19, 2011, Tracey filed a claim with the VA to have Maggie

20 recognized as her spouse in order to receive additional benefits. (Id. at ¶¶ 9, 40.)

21 This claim was denied by the VA Regional Office on May 2, 2011, because Title

22 38, the statute that governs veterans’ benefits, defines a spouse as “a person of the

23 opposite sex who is a wife or husband” and defines a “surviving spouse” similarly.

24 (Id. at ¶ 41); 38 U.S.C. §§ 101(3), 101(31). Tracey then filed a Notice of

25 Disagreement and requested a personal hearing. (Compl. ¶ 42.) After her hearing

26 on June 22, 2011, her claim was again denied on August 8, 2011. (Id. at ¶¶ 42,

27 43.) The letter denying her claim stated that the VA did not recognize her

28 marriage as it did not involve persons of the opposite sex. (Id. at ¶ 43.)

2

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 3 of 11 Page ID #:1291

1

Along with Title 38, the Defense of Marriage Act (“DOMA”) defines

2 marriage for federal statutes as “a legal union between one man and one woman as

3 husband and wife” and defines the word spouse as “a person of the opposite sex

4 who is a husband or a wife.” 1 U.S.C. § 7.

5

The present motion seeks to exclude all testimony from Dr. Korb and Gen.

6 Laich “from any dispositive motions and responses thereto, and/or at trial.”

7 (Memorandum of Points and Authorities in Support of Motion (“Memo”) at 1:7–

8 8.) [Docket No. 56.]

9

II. STANDARD OF LAW

10

A witness qualified as an expert may testify in the form of an opinion or

11 otherwise if the expert’s scientific, technical, or other specialized knowledge will

12 help the trier of fact to understand the evidence or determine a fact in issue, the

13 testimony is based on sufficient facts or data, the testimony is the product of

14 reliable principles and methods, and the expert reliably applies the principles and 15 methods to the facts of the case. FED. R. EVID. 702;1 Daubert v. Merrell Dow

16 Pharm., Inc., 509 U.S. 579, 591 (1993).

17

District courts have a gatekeeping role to conduct “a preliminary

18 assessment of whether the reasoning or methodology underlying the testimony is

19 . . . valid and of whether that reasoning or methodology properly can be applied to

20 the facts in issue.” United States v. Freeman, 498 F.3d 893, 901 (9th Cir. 2007)

21 (quoting Daubert, 509 U.S. at 592–93). A trial court “must assure that the expert

22 testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’”

23 Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert, 509 U.S.

24 at 597). The proponent of expert testimony bears the burden of establishing by a

25 1 Federal Rule of Evidence 702 states: “A witness who is qualified as an expert by knowledge, 26 skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a)
the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
27 understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient
facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the
28 expert has reliably applied the principles and methods to the facts of the case.”

3

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 4 of 11 Page ID #:1292

1 preponderance of the evidence that the testimony is admissible, but “[a] review of

2 the caselaw after Daubert shows that the rejection of expert testimony is the

3 exception rather than the rule.” FED. R. EVID. 702 (advisory committee notes,

4 2000 amendments). The admissibility of expert opinion testimony generally turns

5 on the following preliminary question-of-law determinations by the trial judge

6 under Federal Rule of Evidence 104(a):

7

 Whether the opinion is based on scientific, technical, or other specialized

8

knowledge;

9

 Whether the expert’s opinion would assist the trier of fact in

10

understanding the evidence or determining a fact in issue;

11

 Whether the expert has appropriate qualifications—i.e., some special

12

knowledge, skill, experience, training or education on that subject

13

matter;

14

 Whether the testimony is relevant and reliable;

15

 Whether the methodology or technique the expert uses “fits” the

16

conclusions; and

17

 Whether its probative value is substantially outweighed by the risk of

18

unfair prejudice, confusion of issues, or undue consumption of time.

19 United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000).

20

III. DISCUSSION

21 A. Qualifications of These Experts

22

1. Dr. Lawrence Korb

23

Dr. Korb is a Senior Fellow at the Center for American Progress, a senior

24 advisor to the Center for Defense Information, and an adjunct professor at 25 Georgetown University.2 (Plaintiffs’ Memorandum of Law in Opposition to

26 Intervenor-Defendant’s Motion to Exclude the Expert Testimony of Dr. Lawrence

27

28 2 The evidence does not state what Dr. Korb teaches at Georgetown University.

4

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 5 of 11 Page ID #:1293

1 J. Korb and Maj. Gen. (Ret.) Dennis Laich (“Opp.”), Ex. A.) [Docket No. 60.]

2 Dr. Korb served as Assistant Secretary of Defense for Manpower, Reserve Affairs,

3 Installations, and Logistics from 1981 through 1985. (Id.) There, he was

4 responsible for administering approximately 70 percent of the defense budget of

5 the United States, and was awarded the Department of Defense’s Medal for

6 Distinguished Public Service. (Id.) Dr. Korb has a Ph.D. in Political Science

7 from the State University of New York at Albany and has held full-time teaching

8 positions at multiple institutions. (Id. at 2.) Dr. Korb has authored, co-authored,

9 or contributed to more than twenty books and written more than 100 articles on

10 issues related to national defense and the treatment of military veterans. (Id.)

11

Dr. Korb qualified as an expert for the plaintiff in Log Cabin Republicans v.

12 United States, the recent Central District of California case challenging the “Don’t

13 Ask, Don’t Tell” policy. See 716 F. Supp. 2d 884, 916 (C.D. Cal. 2010), vacated

14 as moot after statute was repealed, 658 F.3d 1162 (9th Cir. 2011).

15

2. Major General (Ret.) Dennis Laich

16

General Laich served in the United States Army for thirty-five years,

17 retiring in 2006. (Rule 26(a)(2)(B) Expert Report of Major General (Ret.) Dennis

18 Laich, Ex. A. (“Laich Report”) ¶ 3 [Docket No. 56]; Ex. E [Docket No. 60].) As

19 Major General, he had 5,000 troops under his command. (Laich Report ¶ 3.)

20 General Laich served in a broad range of staff assignments primarily in

21 personnel/administration, logistics and as an inspector general. (Id.) General

22 Laich has experience shaping and implementing Department of Defense policies

23 designed to enhance recruiting, retention, and readiness. (Ex. F at 41:18–22

24 (excerpts from transcript of deposition of General Laich) (hereinafter, “Laich

25 Depo.”).) [Docket No. 60.]

26

General Laich is a graduate of the Army Command and General Staff

27 College, the National Security Management Program, and the Logistics Executive

28 Development Program. (Laich Report ¶ 4.) He is also a graduate of the Army

5

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 6 of 11 Page ID #:1294

1 War College. (Id.) The curricula of the Army War College addresses, among

2 other things, so-called “manning the force” and allocating resources to “man the

3 force” at the senior policy-making and execution level. (Laich Depo. at 105–06.)

4 He is also a graduate of the Program for Senior Executives in National and

5 International Security at the John F. Kennedy School of Government at Harvard

6 University. (Laich Report ¶ 4.) He holds two master’s degrees: a Master’s in

7 Business Administration from West Virginia University and a Master’s of Arts in

8 Labor Relations from St. Francis University. (Id.) General Laich earned an

9 undergraduate degree in political science from Lafayette College. (Id.)

10

Currently, General Laich serves as the director of the Patriots Program at

11 Ohio Dominican University—a program designed to encourage veterans to take

12 advantage of their G.I. Bill educational benefits, a role in which General Laich is

13 in regular contact with veterans concerning their benefits. (Id. ¶ 5; Laich Depo. at

14 31:12–25.) General Laich is currently writing a book entitled Skin in the Game,

15 which is about the all-volunteer military. (Laich Report ¶ 9.)

16

General Laich served as an expert in Witt v. U.S. Dept. of Air Force, in

17 which his testimony related to issues concerning policies that affected gay and

18 lesbian personnel in the military. (Id. ¶ 8; see generally 739 F. Supp. 2d 1308

19 (W.D. Wash. 2010) (holding that application of Don’t Ask, Don’t Tell policy to

20 plaintiff violated substantive due process rights).)

21 B. Proffers of These Experts

22

1. Dr. Lawrence Korb

23

Dr. Korb proffers the following expert opinions mostly verbatim:

24  The definition of “spouse” and “surviving spouse” in Title 38 as well as

25

DOMA are in direct conflict with the governmental purposes underpinning the

26

enactment of veterans’ benefit laws.

27  Each branch of government has recognized that benefits for service members’

28

family members are essential to a strong all-volunteer army. The armed forces

6

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 7 of 11 Page ID #:1295

1

leadership has decided that provision of these benefits to service members and

2

their families is necessary to ensure military readiness and encourage service

3

members to choose the military for a lifelong career. Congress has agreed and

4

established these benefits schemes.

5  Congress has long regarded the spousal benefits provided under Title 38 as

6

important incentives for service and reenlistment that recognize the sacrifices

7

that military families must make while improving morale and providing

8

reassurance to service members that their families will be supported and

9

compensated for their service.

10  In addition, service members’ performance is affected by their knowledge that

11

family members and spouses will be compensated and cared for should the

12

service member suffer a disabling injury. Strong benefits programs and family

13

support groups therefore ensure peace of mind and maintain military readiness.

14  Denying benefits to spouses of gay and lesbian veterans, and them alone,

15

frustrates the clear purpose of these Congressionally-created veterans’ benefits:

16

to compensate disabled veterans for their decreased ability to earn a living and

17

support their families.

18  Years of military experience have shown these benefits for service members

19

and families to be essential to the proper functioning of the armed forces by

20

ensuring that our men and women in uniform are capable of serving at their

21

maximum potential. Denying these benefits to some service members

22

diminishes military readiness and the effectiveness of the armed services by

23

compromising their ability to focus on the singular task before them.

24  Recruitment and retention of armed forces personnel, another major goal of

25

strong veterans’ benefits, is also harmed by continued denial of these benefits

26

to individuals on the basis of sexual orientation and gender. These important

27

benefits are crucial incentives for able service members to join and remain in

28

the military; their denial to some service members thereby deprives the armed

7

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 8 of 11 Page ID #:1296

1

services of an important tool.

2  Recruitment and retention is harmed because this practice signals to young

3

people considering enlisting that the military is an intolerant, archaic

4

institution. Title 38 and Section 3 of DOMA are contrary to the stated military

5

values of diversity, fairness, equality, and meritocracy.

6  Military cohesion also suffers due to the creation of a two-tiered structure that

7

requires the armed forces to treat service members differently, even though the

8

different treatment has no relation to their performance.

9 (Rule 26(a)(2)(B) Expert Report of Dr. Lawrence J. Korb, Ex. B. (“Korb Report”)

10 ¶¶ 12, 16, 18, 21, 25, 27–30.) [Docket No. 56.]

11

2. Major General (Ret.) Dennis Laich

12

General Laich proffers the following expert opinions verbatim:

13  Denying benefits to service members and their spouses who are in legal same-

14

sex marriages is detrimental to an already strained military by discriminating

15

against current and potential service members, thus discouraging the enlistment

16

of capable soldiers, sailors, airmen, Coast Guardsmen, and Marines.

17  Discriminating against service members and their spouses who are in legal

18

same-sex marriages harms military recruitment, retention, and readiness by

19

discouraging potential recruits; decreasing the likelihood that existing service

20

members will re-enlist; destroying the peace of mind service members require

21

to complete their mission; disturbing the cohesion of military units; weakening

22

the military’s credibility and integrity; and diminishing the positive impact of

23

the repeal of “Don’t Ask, Don’t Tell.”

24  Defining “spouse” and “surviving spouse” as “a person of the opposite sex who

25

is a wife or a husband” in Title 38 and restricting federal benefits dependent on

26

marriage to those “between one man and one woman as husband and wife”

27

pursuant to Section 3 of DOMA is harmful to the military and confers no

28

benefit to the military.

8

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 9 of 11 Page ID #:1297

1 (Laich Report ¶¶ 10–12.)

2 C. Whether the Proffered Opinions Will Assist the Trier of Fact

3

BLAG’s first basis for excluding these proposed experts’ testimony is that

4 their opinions will not assist the trier of fact because they are neither based on

5 specific facts nor the product of any discernible methodology. BLAG argues that

6 the witnesses’ general statements regarding employee incentives and motivation

7 are inadmissible, that their conclusions about the overall impact of DOMA and

8 Title 38 on military goals are inadmissible, and that their testimony cannot be

9 supported by vague assertions of experience.

10

1. The Witnesses’ General Statements Regarding Employee

11

Incentives and Motivation Are Admissible

12

“[E]xpert testimony is not ‘helpful’ to the trier of fact, and thus not relevant,

13 when it addresses an issue that is within ‘the common knowledge of the average

14 layman.’” Arjangrad v. JPMorgan Chase Bank, N.A., 3:10-CV-01157-PK, 2012

15 WL 1890372, at *7 (D. Or. May 23, 2012) (quoting United States v. Vallejo, 237

16 F.3d 1008, 1019 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001); see

17 also Vallejo, 237 F.3d at 1019 (“To be admissible, expert testimony must . . .

18 address an issue beyond the common knowledge of the average layman . . . .”).

19

Dr. Korb’s and General Laich’s proffered opinions are based on their

20 extensive experience with questions of military recruitment, retention, readiness,

21 and unit cohesion, and this experience exceeds the common knowledge of the

22 average layman. This circuit has repeatedly upheld the admissibility of expert

23 testimony premised on an expert’s non-scientific experience and knowledge. See,

24 e.g., Hankey, 203 F.3d at 1169 (upholding admission of testimony of police gang

25 expert, whose expertise was based on “years of experience and special

26 knowledge”); United States v. Plunk, 153 F.3d 1011, 1017 (9th Cir. 1998)

27 (upholding admission of expert testimony from law enforcement officer regarding

28 jargon of narcotics trade, on basis of expert’s training, experience, and personal

9

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 10 of 11 Page ID #:1298

1 knowledge), overruled on other grounds by Hankey, 203 F.3d at 1169 n.7;

2 Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1018 (9th Cir.

3 2004) (upholding admission of independent insurance consultant’s testimony,

4 based on his knowledge and experience, because “unlike scientific or technical

5 testimony, the reliability of [his] testimony was not contingent upon a particular

6 methodology or technical framework”).

7

2. The Witnesses’ Conclusions About the Overall Impact of DOMA

8

and Title 38 on Military Goals Are Admissible

9

BLAG argues that the witnesses’ testimony should be excluded as

10 unreliable because of an “inability to quantify his or her general impressions.”

11 (Memo at 11:13.) The Federal Rules of Evidence do not state such a rigid

12 requirement to quantify. As noted above, the Ninth Circuit has upheld the

13 admissibility of experts relying primarily on knowledge and experience rather than

14 a particular methodology or technical framework. See also United States v.

15 Brownlee, 454 F.3d 131, 144 (3d Cir. 2006) (psychologist’s testimony); United

16 States v. Dailide, 227 F.3d 385, 387 (6th Cir. 2000) (historian’s testimony); Scott

17 v. Ross, 140 F.3d 1275, 1286 (9th Cir. 1998) (sociologist’s testimony).

18

3. The Witnesses’ Testimony Can Be Supported by Assertions of

19

Experience

20

If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion

21

reached, why that experience is a sufficient basis for the opinion, and

22

how that experience is reliably applied to the facts. The trial court’s

gatekeeping function requires more than simply ‘taking the expert’s

23

word for it.’

24 FED. R. EVID. 702 (advisory committee notes, 2000 amendments); see also

25 Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)

26 (“We’ve been presented with only the experts’ qualifications, their conclusions

27 and their assurances of reliability. Under Daubert, that’s not enough.”).

28

10

Case 2:12-cv-00887-CBM-AJW Document 82 Filed 02/08/13 Page 11 of 11 Page ID #:1299

1

BLAG argues that these witnesses have failed to make this showing because

2 nothing in their experience involved recruiting or retention issues relating to gay

3 or lesbian servicemembers. To this point, Plaintiffs note that “the breadth and

4 depth of [the witnesses’] expertise on these issues as they pertain to all

5 servicemembers amply qualifies them to express their opinions on these issues as

6 they relate to a subset of service members.” (Opp. at 17:6–8.) In Scott v. Ross,

7 the Ninth Circuit upheld the testimony of a sociologist opining on a social group

8 he had not previously studied. 140 F.3d at 1286. Moreover, the witnesses

9 explained in their depositions how their experience and knowledge lead them to

10 their expert opinions.

11

The Court does not exclude the testimony on this ground, but does remind

12 all parties that all expert witnesses will be required to supply adequate foundation

13 for any expert opinion. These witnesses, for example, will be required to explain

14 how their unique experience and knowledge leads to any expert opinion offered.

15 D. BLAG’s Remaining Argument Lacks Merit

16

BLAG’s final argument is that “[n]either putative expert has an accurate

17 understanding of what DOMA and Title 38’s spousal definitions actually do, or

18 how the law of marital recognition in the military and veteran’s contexts would

19 change if these statutes were eliminated.” (Memo at 14:9–12.) The Court finds

20 that this argument lacks merit and that the issues raised by BLAG go to the weight

21 of the testimony rather than its admissibility.

22

IV. CONCLUSION

23

The Court DENIES the motion for the reasons stated above.

24 IT IS SO ORDERED. 25

26 DATED: February 8, 2013 27 28

By CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE

11

 
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 JOSEPH J. LEVIN, JR. (Pro Hac Vice) joe.levin@splcenter.org
2 CHRISTINE P. SUN (SBN 218701) christine.sun@splcenter.org
3 CAREN E. SHORT (Pro Hac Vice) caren.short@splcenter.org
4 SOUTHERN POVERTY LAW CENTER 400 Washington Avenue
5 Montgomery, AL 36104 Telephone: (334) 956-8200
6 Facsimile: (334) 956-8481

7 (Caption Continued on Next Page)

8

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9

WESTERN DIVISION

10 TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS
11 Plaintiffs,
12 vs.
13 UNITED STATES OF AMERICA;
14 ERIC H. HOLDER, JR., in his official capacity as Attorney General; and
15 ERIC K. SHINSEKI, in his official capacity as Secretary of Veterans
16 Affairs,

17

Defendants,

18 BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE
19 OF REPRESENTATIVES,

20

Intervenor-Defendant.

) No. 2:12-cv-887-CBM (AJWx) ) ) MEMORANDUM OF POINTS ) AND AUTHORITIES IN ) SUPPORT OF PLAINTIFFS’ ) MOTION FOR SUMMARY ) JUDGMENT ) ) Hearing: April 1, 2013 ) Time: 11:00 a.m. ) Hon. Consuelo B. Marshall ) ) ) ) ) ) ) ) ) )

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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 Randall R. Lee (SBN 152672) randall.lee@wilmerhale.com
2 Matthew D. Benedetto (SBN 252379) matthew.benedetto@wilmerhale.com
3 WILMER CUTLER PICKERING HALE AND DORR LLP 350 South Grand Avenue, Suite 2100
4 Los Angeles, CA 90071 Telephone: (213) 443-5300
5 Facsimile: (213) 443-5400

6 Adam P. Romero (Pro Hac Vice) adam.romero@wilmerhale.com
7 Rubina Ali (Pro Hac Vice) rubina.ali@wilmerhale.com
8 WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center
9 New York, NY 10007 Telephone: (212) 230-8800
10 Facsimile: (212) 230-8888

11 Eugene Marder (SBN 275762) eugene.marder@wilmerhale.com
12 WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road
13 Palo Alto, California 94304 Telephone: (650) 858-6000
14 Facsimile: (650) 858-6100

15 Attorneys for Plaintiffs

16

17

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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 2 3 I.
II.
4 5 6 7 8 9 10 11 III.
IV.
12 13 14 15 16 17 18 19 20 21 22 23 24 V. 25

TABLE OF CONTENTS
Page(s)
PRELIMINARY STATEMENT ...............................................................................................1 FACTUAL AND PROCEDURAL BACKGROUND...............................................................2 A. Tracey Cooper-Harris Served Our Country With Honor in Both the
Afghanistan and Iraq Wars ............................................................................................2 B. Tracey Returns To Civilian Life, Marries Maggie, And The Couple Copes
With Tracey’s Service-Connected Disabilities..............................................................3 C. Tracey and Maggie’s Valid Marriage is Not Recognized by the Federal
Government....................................................................................................................4 D. The Federal Government Provides Significant Benefits to Servicemembers,
Veterans, and Their Families To Promote Military Recruitment, Retention, and Readiness.................................................................................................................5 E. Title 38 Commands That The Federal Government Defer to State Determinations of Marriage Except For Same-Sex Marriages......................................6 F. The So-Called Defense of Marriage Act Represents a Radical Departure from the Federal Government’s Long-Standing Practice of Deferring to State Determinations of Marriage...........................................................................................7 STANDARD FOR SUMMARY JUDGMENT.........................................................................8 ARGUMENT .............................................................................................................................9 A. Sexual Orientation Discrimination Requires Heightened Scrutiny ...............................9 1. The Appropriate Level of Scrutiny for Sexual Orientation
Discrimination is Unsettled in the Ninth Circuit .............................................10 2. Lesbians and Gay Men Have Suffered a History of Discrimination ...............11 3. Sexual Orientation is Unrelated to Ability to Contribute to Society ...............12 4. Sexual Orientation is a Distinguishing Characteristic, a Core Part of
Individual Identity, and Immutable..................................................................12 5. Lesbian and Gay Men Lack Political Power....................................................14 B. Heightened Scrutiny Also Applies Because DOMA And Title 38 Discriminate On The Basis Of Sex....................................................................................................16 C. DOMA and Title 38 Cannot Survive Rational Basis Scrutiny, Much Less Heightened Scrutiny.....................................................................................................16 1. All of Congress’s Purported Justifications for DOMA Fail ............................17
a) Preserving “Traditional” Marriage Is Not a Legitimate Government Interest.............................................................................18
b) DOMA Does Not Promote Heterosexuality ........................................18 c) DOMA Does Not Advance Any Legitimate Interest in Child-
Rearing .................................................................................................19 d) DOMA Undermines Democratic Self-Governance .............................20 e) DOMA Does Not Conserve Resources................................................21 f) “Moral Disapproval” Is Not A Legitimate Government Interest.........21 2. No Other Rational Basis for DOMA Can Be Supported .................................22 3. There is No Rational Basis For Title 38’s Exclusion of Same-Sex Marriages .........................................................................................................24 CONCLUSION........................................................................................................................25

26

27

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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1

TABLE OF AUTHORITIES

2
FEDERAL CASES

Page(s)

3
Adarand Constructors, Inc. v. Peña,

4 515 U.S. 200 (1995)...........................................................................................................14, 16

5 Bd. of Trustees of the Univ. of Ala. v. Garrett,

6

531 U.S. 356 (2001) ...........................................................................................................17

7 Beard v. Banks,

8

548 U.S. 521 (2006) .............................................................................................................9

9 Bowen v. Gillard, 483 U.S. 587 (1987) ...........................................................................................................10

10

11

Bowers v. Hardwick, 478 U.S. 186 (1986) ...........................................................................................................10

12 Christian Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of the Law v.
13 Martinez 14 (“CLS”), 130 S. Ct. 2971 (2010) .......................................................................................9

15 City of Cleburne v. Cleburne Living Ctr.,

16

473 U.S. 432 (1985) ................................................................................................... passim

17 Clark v. Jeter, 486 U.S. 456 (1988) ...........................................................................................................16
18

19

Dragovich v. United States Dep’t of the Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011).........................................................8, 16, 18, 22

20

Frontiero v. Richardson,

21

411 U.S. 677 (1973) .................................................................................................7, 12, 15

22 Golinski v. U.S. Office of Personnel Management, 23 824 F. Supp. 2d 968 (N.D. Cal. 2011).....................................................................11, 12

24 Graham v. Richardson,

25

403 U.S. 365 (1971) ...........................................................................................................13

26 Hernandez-Montiel v. INS,

27

225 F.3d 1084 (9th Cir. 2000), overruled in part on other grounds, Thomas v. Gonzalez, 409 F.3d 1177 (9th Cir. 2005) .................................................................13

28

CASE NO. CV 12-887-CBM (AJWX)

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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 High Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563 (9th Cir. 1990)......................................................................................10, 11

2

In re Levenson,

3

560 F.3d 1145 (9th Cir. 2009) .........................................................................................16

4 In re Levenson,

5

587 F.3d......................................................................................................................... passim

6 Lawrence v. Texas, 7 539 U.S. 558 (2003) ...............................................................................................10, 12, 22

8 Log Cabin Republicans v. United States,

9

716 F. Supp. 2d 884 (C.D. Cal. 2010) ...........................................................................15

10 Loving v. Virginia,

11

388 U.S. 1 (1967)................................................................................................................16

12 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ...........................................................................................................10
13

14

Parham v. Hughes, 441 U.S. 347 (1979) ...........................................................................................................13

15 Pedersen v. Office of Pers. Mgmt.,
16 881 F.Supp.2d 294 (D. Conn. 2012) ........................................................................12, 16

17 Perry v. Proposition 8 Official Proponents, 18 587 F.3d 947 (9th Cir. 2009)......................................................................................12, 13

19 Plyler v. Doe,

20

457 U.S. 202 (1982) .....................................................................................................10, 14

21 Romer v. Evans,

22

517 U.S. 620 (1996) ................................................................................................... passim

23 Shapiro v. Thompson,

394 U.S. 618 (1969), overruled on other grounds by Edelman v. Jordan, 415

24

U.S. 651 (1974) ...................................................................................................................21

25 Sharif v. N.Y. State Educ. Dep’t, 26 709 F. Supp. 345 (S.D.N.Y. 1989) .................................................................................17

27

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ...........................................................................................................22

2

United States v. Virginia,

3

518 U.S. 515 (1996) ...........................................................................................................16

4 Williams v. Illinois,
5 399 U.S. 235 (1970) ...........................................................................................................18

6 Windsor v. United States, 7 699 F.3d 169 (2d Cir. 2012) ...........................................................................12, 13, 14, 15

8 Witt v. U.S. Dep’t of Air Force,

9

739 F. Supp. 2d 1308 (W.D. Wash. 2010) ...................................................................15

10 STATE CASES

11 Strauss v. Horton,
46 Cal. 4th 364, 93 Cal. Rptr. 3d 591, 207 P.3d 48 (2009) .......................................................8
12
FEDERAL STATUTES
13
14 38 U.S.C. §§ 101(3) & (31) (“Title 38”)...............................................................................1

15 38 U.S.C. § 103(c) ......................................................................................................................6

16 Pub. L. No. 104-199, 110 Stat. 2419 (1996) ........................................................................8

17 § 3 of 1 U.S.C. § 7 (“DOMA”)..................................................................................1, 7, 8, 25 18
RULES
19 Fed. R. Civ. P. 56(a)...................................................................................................................9
20

21

22

23

24

25

26

27

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 I. PRELIMINARY STATEMENT

2

Tracey Cooper-Harris is a decorated United States Army veteran who suffers

3 from multiple sclerosis and post-traumatic stress disorder (“PTSD”), conditions

4 connected to her military service. Tracey faces her disabilities bravely with the love

5 and assistance of her same-sex spouse, Maggie Cooper-Harris. When Tracey wakes

6 up terrorized by a PTSD-triggered nightmare, Maggie comforts her. Maggie

7 accompanies Tracey to her weekly medical appointments, helps Tracey manage her

8 medical conditions, and monitors Tracey’s health for symptoms that the multiple

9 sclerosis is progressing. As any loving spouse of a disabled veteran would do, Maggie

10 has committed to care for Tracey as the multiple sclerosis advances, knowing that the

11 disease will likely cause Tracey to lose vision and damage her neuromuscular function

12 to the point of requiring her to use a wheelchair. Tracey and Maggie rely on one

13 another, as spouses do, and their love is, in a word, unconditional.

14

Because Tracey’s disabilities are connected to her military service, she receives

15 disability compensation from the Veterans Administration (“VA”). Unlike similarly-

16 situated veterans and their opposite-sex spouses, however, Tracey and Maggie are

17 denied certain veterans benefits because they are both women. That is because 38

18 U.S.C. §§ 101(3) & (31) (“Title 38”) and Section 3 of 1 U.S.C. § 7 (“DOMA”)

19 separately proscribe the federal government from recognizing Tracey and Maggie’s

20 valid same-sex marriage, and therefore bar the VA from providing Tracey and Maggie

21 benefits that heterosexual married veterans and their spouses are entitled to receive.

22

This discrimination violates Tracey’s and Maggie’s right to equal protection of

23 the laws that is guaranteed by the Fifth Amendment to the United States Constitution.

24 The Department of Justice has declined to defend Title 38 and DOMA. At its core,

25 this case presents a straightforward question of constitutional law: Should the

26 government be permitted to treat Tracey and Maggie’s marriage differently simply

27 because, as lesbians, they married someone of the same sex, instead of someone of the

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 opposite sex? Under any standard of review, the answer to that question is no. Title 38

2 and DOMA are unconstitutional, and Tracey and Maggie are entitled to summary

3 judgment in their favor.

4 II. FACTUAL AND PROCEDURAL BACKGROUND

5 A. 6

Tracey Cooper-Harris Served Our Country With Honor in Both the Afghanistan and Iraq Wars Tracey Cooper-Harris served in the United States Army for twelve years, ten of

7 them in active service. (Declaration of Tracey Cooper-Harris in Support of Plaintiffs’

8 Motion for Summary Judgment ¶ 4 (Ex. C to the Declaration of Christine Sun (“Sun.

9 Decl.”).) Tracey enlisted in the Army in 1991, right after graduating high school. Id.

10 Over the next eight years, Tracey was stationed at Bitburg Air Base in Germany,

11 Brunswick Naval Air Station in Maine, and Yongsan Army Post in South Korea. Id.

12 After completing her active duty service, Tracey continued her military service in the

13 Army Reserves with the 109th Medical Detachment out of Stanton, California. Id. ¶ 5.

14

In October 2001, the United States began Operation Enduring Freedom in

15 Afghanistan. Id. ¶ 6. In July 2002, Tracey was called up to active duty. Id. One month

16 later, she reported to Camp Doha in Kuwait, where she was assigned to the 376th

17 Expeditionary Medical Group, 376th Air Expeditionary Wing of the U.S. Air Force in

18 Kyrgyzstan. Id. Around this time, Tracey was promoted to Sergeant. Id. While in

19 Kyrgyzstan, Tracey was responsible for the well-being of over fifty military working

20 dogs. Id. She provided medical care to Military Police dogs so they could safeguard

21 military bases and detect explosives to protect the lives of American troops. Id.

22

While Tracey was stationed in Kyrgyzstan, the United States commenced

23 Operation Iraqi Freedom. Id. ¶ 7. In February 2003, Tracey was transferred back to

24 Camp Doha and was sent on frequent missions into southern Iraq to assist military

25 veterinarians and maintain the well-being of military working dogs. Id. In June 2003,

26 after more than nine years of active duty and approximately three years of reserve

27 duty, Tracey was honorably discharged from the United States Army. Id. ¶ 8.

28

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1

During her military career, Tracey was awarded, among other honors, three

2 Army Commendation Medals; the Air Force Commendation Medal; five Army

3 Achievement Medals; the Armed Forces Reserve Medal with Mobilization Device;

4 two National Defense Service Medals; an Iraq Campaign Medal with two Bronze

5 Service Stars; and the Global War on Terrorism Expeditionary Medal. Id. ¶ 9.

6 B. 7

Tracey Returns To Civilian Life, Marries Maggie, And The Couple Copes With Tracey’s Service-Connected Disabilities Like many veterans returning from war, Tracey had an uneasy transition back to

8 civilian live. Id. ¶ 11. She was diagnosed by the VA with service-connected PTSD, an

9 anxiety disorder often triggered by a traumatic event that is common among veterans.

10 Id. Tracey’s symptoms included avoidance of social situations, trouble sleeping,

11 nightmares, and debilitating guilt for being discharged while her fellow soldiers

12 fought on. Id. ¶ 12. Tracey receives treatment for PTSD at VA hospitals, but continues

13 to suffer from its symptoms today. Id. ¶ 11.

14

One way Tracey was able to cope with the stress and pain of her PTSD was by

15 joining a local rugby group, where she met Maggie. Id. ¶13. Tracey and Maggie

16 started dating in the fall of 2005. Id. ¶ 14. In November 2008, Tracey and Maggie

17 married in front of their friends and family in a large ceremony in Van Nuys,

18 California. Id. ¶15. The State of California granted Tracey and Maggie a marriage

19 license, providing them with the same status, responsibilities, and protections as other

20 legally married couples under state law. Id. ¶ 3. Tracey and Maggie currently reside

21 together in Pasadena, California. Id.

22

It was evident early on that Tracey’s PTSD would affect both of their lives.

23 Maggie stayed by Tracey’s side during her nightmares, drove her to counseling and

24 other appointments, and dealt with her PTSD-induced conditions. Id. ¶ 17. Though

25 providing Tracey with the care that her PTSD requires means that Maggie has to

26 sacrifice her days off, her sleep, and her emotional energy, Maggie continues to

27 demonstrate the unconditional love that any committed and loving spouse would

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 show. Declaration of Maggie Cooper-Harris in Support of Plaintiffs’ Motion for

2 Summary Judgment ¶ 4 (Sun Decl., Ex. B).

3

Tracey began experiencing early symptoms of multiple sclerosis in December

4 2009. T. Cooper-Harris Decl. ¶ 18. In 2010, Tracey was diagnosed with multiple

5 sclerosis by a neurologist at her local VA hospital, and in 2011, the VA concluded that

6 Tracey’s multiple sclerosis stems from her military service. Id. Multiple sclerosis is an

7 autoimmune disease that affects the brain and central nervous system. Id.

8

Tracey’s current symptoms include impaired vision, loss of balance, sharp

9 electrical charges in different parts of her body, tingling in her extremities, and

10 chronic fatigue. Id. ¶19. During the pendency of this lawsuit, Tracey’s symptoms have

11 become more frequent, including increased fatigue and exhaustion, hand tremors, and

12 blurred vision. Id. ¶ 20. As her disease progresses, Tracey is likely to need a

13 wheelchair, suffer limited vision or loss of vision, lose control over her neuromuscular

14 function and coordination, experience difficulty communicating, and develop

15 problems with her memory and temper. Id. ¶ 21. There is no known cure for multiple

16 sclerosis. Id. ¶ 18.

17 C. 18

Tracey and Maggie’s Valid Marriage is Not Recognized by the Federal Government Tracey receives compensation from the VA because of her service-connected

19 disabilities. Id. ¶ 24. For disabled veterans married to persons of the opposite sex, the

20 VA provides a number of significant benefits, including additional disability benefits;

21 Dependency and Indemnity Compensation, which provides monthly benefits to a

22 surviving spouse after a veteran has died from a service-connected injury or disease;

23 and joint burial benefits for the veteran and his or her spouse at a veterans cemetery.

24 Id. ¶ 25; Expert Report of Major General (Ret.) Dennis Laich (“Laich Rep.”) ¶ 23(Sun

25 Decl., Ex. F). In August 2011, Tracey’s claim for additional dependency

26 compensation was denied on the grounds that “[t]he veteran’s marriage is not valid for

27 VA purposes.” T. Cooper-Harris Decl. ¶ 26 (Id., Ex. C).

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

D. The Federal Government Provides Significant Benefits to Servicemembers,

1

Veterans, and Their Families To Promote Military Recruitment, Retention,

and Readiness

2

The United States government provides a number of benefits to active duty

3

military service members, retired service members, and veterans to ease the burden

4

that military service imposes on a service member and the service member’s family,

5

as well as to honor the veteran’s service and the sacrifices made by the veteran’s

6

family. Expert Report of Dr. Lawrence J. Korb (“Korb Rep.”) ¶¶ 15-18 (Sun Decl.,

7

Ex. E). In addition, military and veterans benefits are an important way in which the

8

military facilitates recruitment and retention of service members, as well as helps to

9

ensure unit cohesion and military readiness. Korb Rep. ¶ 21 (Id., Ex. E); see Laich

10

Rep. ¶ 32 (Sun Decl., Ex. F). Military leadership has made the professional judgment

11

that provision of these benefits to service members and their families is necessary to

12

encourage people to choose military service as a lifelong career. Korb Rep. ¶ 16 (Sun

13

Decl., Ex. E). Congress has concurred in that judgment and has established

14

comprehensive benefits schemes for veterans and their families. Id.

15

One benefit that the VA provides to veterans and their families is compensation

16

for disabilities that the VA has determined are “service-connected.” See U.S. Dep’t of

17

Veterans Affairs, Federal Benefits for Veterans, Dependents and Survivors 28-29

18 (2012) (hereinafter “Federal Benefits for Veterans”).1 The VA determines monthly

19

compensation for veterans with service-connected disabilities based on a system of

20

percentages. For veterans rated as 30% disabled or higher, VA compensation

21

increases when the veteran is married and/or has dependents. See id. Based on her

22

service-connected multiple sclerosis, PTSD, and other conditions, Tracey is currently

23

rated as 80% disabled. T. Cooper-Harris Decl. ¶ 24 (Sun Decl., Ex. C).

24

The VA also provides Disability and Indemnity Compensation to surviving

25

spouses of (1) veterans whose death resulted from a service-connected injury or

26

disease, and (2) veterans whose death resulted from a non-service-connected injury or

27

28

1 Available at: http://www.va.gov/opa/publications/benefits_book/2012_Federal_benefits_ebook_final.pdf
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 disease and who were receiving, or entitled to receive, VA compensation for a

2 service-connected disability that was rated as totally disabling for a specified number

3 of years. See Federal Benefits for Veterans 101-03. Tracey and Maggie are not

4 eligible to receive this benefit because the VA does not recognize their marriage.

5

Another important benefit that the VA provides to veterans and their spouses is

6 burial benefits. Burial benefits include a gravesite at a veterans’ cemetery; a

7 government headstone or marker; and spousal burial with the veteran, even if the

8 spouse predeceases the veteran. See Federal Benefits for Veterans 71. The Northern

9 California Veteran’s Cemetery has informed Tracey that while she could be buried in

10 the cemetery, Maggie could not, because only opposite-sex spouses are eligible to be

11 buried with their veteran spouses. T. Cooper-Harris Decl. ¶ 27 (Sun Decl., Ex. C).

12 E. 13

Title 38 Commands That The Federal Government Defer to State Determinations of Marriage Except For Same-Sex Marriages Title 38 of the United States Code, which governs veterans benefits, recognizes

14 that the federal government should defer to the states when determining whether a

15 person is legally married: “In determining whether or not a person is or was the

16 spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws

17 administered by the Secretary according to the law of the place where the parties

18 resided at the time of the marriage or the law of the place where the parties resided

19 when the right to benefits accrued.” 38 U.S.C. § 103(c). This includes common law

20 marriages that are recognized in the jurisdiction where the veteran resides.

21

Another section of Title 38, however, defines the term “spouse” as “a person of

22 the opposite sex who is a wife or husband.” Id. § 101(31). Similarly, the term

23 “surviving spouse” is defined as “a person of the opposite sex who was the spouse of

24 a veteran at the time of the veteran’s death . . . .” Id. § 101(3).

25

The legislative history behind Title 38’s definition of “spouse” as “a person of

26 the opposite sex” does not reflect Congressional intent to preclude veterans in same-

27 sex marriages from obtaining spousal benefits. Rather, this language represents a

28
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WilmerHale
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1 legislative effort to create gender equality in the statute. In 1975, two years after the

2 Supreme Court ruled that the military could not distribute benefits differently based on

3 gender in Frontiero v. Richardson, 411 U.S. 677 (1973), Congress removed

4 references to exclusively male veterans and their “widows” from Title 38. The

5 legislative history contains no discussion of veterans who are in same-sex marriages.

6

Instead, the Senate Committee on Veterans Affairs explained that it “add[ed]

7 the term ‘spouse’ to mean wife or husband and the term ‘surviving spouse’ to mean

8 widow or widower” to the definition section of Title 38 and substituted these terms

9 throughout the title in order “to eliminate unnecessary gender references.” S. Rep. No.

10 94-532, at 19-20 (1975) (emphasis added), reprinted in 1975 U.S.C.C.A.N. 2078,

11 2088-89. Thus, the definition of “spouse” as a “person of the opposite sex” manifests

12 Congress’s commitment to equality—not its intent to deny spousal benefits to same-

13 sex spouses of veterans or to create a federal definition of marriage for the purpose of

14 excluding same-sex couples. Nevertheless, those definitions now bar Tracey and

15 Maggie from receiving additional benefits solely because of their sexual orientation

16 and because of their sex in relation to each other.

17 F. 18

The So-Called Defense of Marriage Act Represents a Radical Departure from the Federal Government’s Long-Standing Practice of Deferring to State Determinations of Marriage

19

Even if the definitions of “spouse” and “surviving spouse” in Title 38 included

20 same-sex spouses, Section 3 of the Defense of Marriage Act (“DOMA”) would

21 prohibit the VA from recognizing Tracey and Maggie’s marriage for purposes of

22 determining the couple’s eligibility to receive benefits. Section 3 of DOMA provides,

23 in pertinent part:

24

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus

25

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

26

word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

27

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified as amended at 1 U.S.C. § 7)

2

DOMA is a sweeping statute that rewrites over 1000 federal laws attached to

3 more than 1000 different protections or obligations tied to marriage. See Gen.

4 Accounting Office (GAO), GAO/OGC-97-16, Report on DOMA to the House 5 Judiciary Committee (Jan. 31, 1997).2 Significantly, DOMA also overturned the

6 federal government’s long-standing practice of deferring to state determinations of

7 marital status, despite significant variation in marriage laws from state to state. The

8 practice of deferring to the states changed in 1996, when, following a decision from

9 the Hawaii Supreme Court which Congress feared would lead to same-sex couples

10 having the opportunity to marry, the federal government enacted DOMA, thereby

11 preemptively refusing federal recognition of otherwise valid marriages under state law

12 of gay and lesbian couples. As various courts have concluded, DOMA was enacted

13 primarily based on “the animus toward, and moral rejection of, homosexuality and

14 same-sex relationships [which] are apparent in the Congressional record.” Dragovich

15 v. United States Dep’t of the Treasury, 764 F. Supp. 2d 1178, 1190 (N.D. Cal. 2011).

16

Since DOMA’s passage, ten states and the District of Columbia have allowed

17 same-sex couples to marry, and several other states recognize marriages of same-sex 18 couples performed elsewhere.3 Yet, the federal government continues to denigrate

19 state-sanctioned same-sex marriages through DOMA’s exclusion of these marriages

20 from all federal protections and obligations.

21 III. STANDARD FOR SUMMARY JUDGMENT

22

Summary judgment is appropriate when the pleadings, the discovery materials,

23 and any declarations show “that there is no genuine dispute as to any material fact and

24 that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

25 2 Available at http://gao.gov/assets/230/223674.pdf.

26

3 California married same-sex couples in 2008 but later that year the voters passed Proposition 8, which amended the state constitution to forbid the state from recognizing same-sex marriage. The same-sex marriages that occurred in 2008,

such as Tracey and Maggie’s, remain valid and are recognized by California. Strauss v. Horton, 46 Cal. 4th 364, 474, 93
27 Cal. Rptr. 3d 591, 207 P.3d 48 (2009) (“[W]e conclude that Proposition 8 cannot be interpreted to apply retroactively so

as to invalidate the marriages of same-sex couples that occurred prior to the adoption of Proposition 8. Those marriages

28 remain valid in all respects.”).

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1 also Beard v. Banks, 548 U.S. 521, 529, 534 (2006) (granting summary judgment in

2 constitutional challenge). Because it is undisputed that Tracey and Maggie have been

3 injured by virtue of being denied various benefits routinely provided to veterans with

4 opposite-sex spouses, the only issue in this case is whether their injury violates the

5 Constitution’s equal protection guarantee.

6 IV. ARGUMENT

7

DOMA and Title 38 classify legally married couples into two distinct groups—

8 married straight couples and married gay couples—and subjects the latter to disparate

9 treatment by, among other things, denying them over 1,000 federal protections and

10 obligations. As the Supreme Court has recognized, treating lesbians and gay men

11 differently than heterosexual people is sexual orientation discrimination. Christian

12 Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of the Law v. Martinez (“CLS”),

13 130 S. Ct. 2971, 2990 (2010). Because DOMA and Title 38 are discriminatory

14 federal legislation directed at an historically and politically marginalized class of

15 people based on an immutable characteristic irrelevant to their ability to contribute to

16 society, the Constitution requires that DOMA and Title 38 be subject to strict, or at the

17 least intermediate, scrutiny. Heightened scrutiny is also warranted because DOMA

18 and Title 38 classify on the basis of sex. As the Attorney General has already

19 concluded, DOMA and Title 38 cannot survive such searching review. Nor can

20 DOMA and Title 38 survive even rational basis review.

21 A. Sexual Orientation Discrimination Requires Heightened Scrutiny

22

The guarantee of equal protection “‘neither knows nor tolerates classes among

23 citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996). While most legislative

24 classifications come with a presumption of constitutionality, certain classifications

25 carry a particularly high risk of improper use in the legislative process and, therefore,

26 are treated as “suspect” or “quasi-suspect.” City of Cleburne v. Cleburne Living Ctr.,

27 473 U.S. 432, 440-47 (1985). The Supreme Court has considered the following

factors in determining whether a legislative classification should be treated with

28

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1 suspicion and subjected to heightened scrutiny: (1) the history of invidious

2 discrimination against the class; (2) whether the characteristics that distinguish the

3 class indicate a typical class member’s ability to contribute to society; (3) whether the

4 distinguishing characteristics are ‘immutable’ or beyond the class members’ control;

5 and (4) the political power of the subject class. Windsor v. U.S., 699 F.3d 169, 181

6 (citing Bowen v. Gillard, 483 U.S. 587, 602 (1987) and City of Cleburne, 473 U.S. at

7 440-41).

8

No single factor is dispositive, and immutability and lack of political power are

9 not strictly necessary factors to identify a suspect class. Mass. Bd. of Ret. v. Murgia,

10 427 U.S. 307, 321 (1976). Instead, the existence of any one of the factors can serve as

11 a warning sign that a particular classification is “more likely than others to reflect

12 deep-seated prejudice rather than legislative rationality in pursuit of some legitimate

13 objective.” Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).

14

1. The Appropriate Level of Scrutiny for Sexual Orientation Discrimination Is Unsettled in the Ninth Circuit

15

The appropriate level of scrutiny for sexual orientation classifications is

16 unsettled under Supreme Court and Ninth Circuit jurisprudence. Although in High

17 Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563, 571 (9th Cir.

18 1990), the Ninth Circuit held that lesbians and gay men are not a suspect or quasi-

19 suspect class entitled to greater than rational basis scrutiny, that decision is no longer

20 good law. In High Tech Gays, the Ninth Circuit relied on Bowers v. Hardwick, 478

21 U.S. 186, 194-96 (1986), which held that there is no fundamental right to engage in

22 same-sex intimacy. Id. at 571. The Ninth Circuit reasoned that, since same-sex

23 intimacy was not a fundamental right and could be criminalized, gay people could not

24 constitute a suspect or quasi-suspect class. Id. In 2003, the Supreme Court overturned

25 Bowers v. Hardwick and held that “Bowers was not correct when it was decided, and

26 it is not correct today.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). The Supreme

27 Court’s rejection of the legal foundations on which High Tech Gays rested renders

28
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1 that decision and its progeny no longer controlling. Golinski v. U.S. Office of

2 Personnel Management, 824 F. Supp. 2d 968, 983-85 (N.D. Cal. 2011).

3

2. Lesbians and Gay Men Have Suffered a History of Discrimination

4

The long history of purposeful discrimination that lesbians and gay men have

5 suffered by both governmental and private actors is painfully clear and undisputed in

6 this case. As set forth in the report of Professor George Chauncey, in early colonial

7 America, being identified as an individual who had same-sex sexual relations could

8 endanger one’s life. Expert Report of George Chauncey, Ph.D. (“Chauncey Rep.”) ¶

9 19. (Sun Decl., Ex. A). Well into the 20th century, the medical community

10 condemned homosexuality as a “mental defect” or “disease.” Id. ¶ 27. This ostensibly

11 scientific view (now rejected) helped legitimize much anti-gay bias. Id.¶ 28.

12

In the domain of federal service, the military systematically attempted to screen

13 out lesbians and gay men from the armed forces during World War II, and to

14 discharge and deny benefits to those soldiers who were “discovered” later. See id. ¶¶

15 39–41. Such discrimination was not limited to the military. All federal agencies were

16 prohibited from hiring lesbians and gay men after the war (a ban that lasted until

17 1975), and the federal government engaged in far-reaching surveillance and

18 investigation to purge supposed “homosexuals” from the civil service. See id. ¶¶ 42–

19 50. With such blatant official discrimination, it is no surprise that lesbians and gay

20 men were demonized by the media through the 1950s and 1960s. See id. ¶¶ 51–55.

21

Even the slightest advancement in civil rights for lesbians and gay men has

22 been met with vicious anti-gay backlash. See id. ¶¶ 66–68; Expert Report of Gary

23 Segura, Ph.D. (“Segura Rep.”) ¶¶ 35–44 (Sun Decl., Ex. I). Campaigns have spread

24 false stereotypes of lesbians and gay men as child molesters, unfit parents, and threats

25 to heterosexuals—stereotypes that linger to this day. See Chauncey Rep. ¶¶ 68–86

26 (Sun Decl., Ex. A). Unfortunately, discrimination against gay people is not a historical

27 relic. Until judicial intervention in 2003, states were able to “demean [lesbians’ and

28
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1 gay men’s] existence or control their destiny by making their private sexual conduct a

2 crime.” Lawrence, 539 U.S. at 578; accord Windsor v. United States, 699 F.3d 169,

3 182 (2d Cir. 2012) (“Perhaps the most telling proof of animus and discrimination

4 against homosexuals in this country is that, for many years and in many states,

5 homosexual conduct was criminal.”). To this day, gay people are subjected to

6 continued opprobrium from leading political and religious figures and the ever-present

7 threat of anti-gay violence. Chauncey Rep. ¶¶ 91–102 (Sun Decl., Ex. A).

8

Recognizing this painful history, numerous courts have found that “[i]t is easy

9 to conclude that homosexuals have suffered a history of discrimination” and that this

10 factor, therefore, strongly favors application of heightened scrutiny to classifications

11 based on sexual orientation. Windsor, 699 F.3d at 182; see also Perry v. Proposition 8

12 Official Proponents, 587 F.3d 947, 954 (9th Cir. 2009); Golinski, 824 F. Supp.2d at

13 990; Pedersen v. Office of Pers. Mgmt., 881 F.Supp.2d 294, 333 (D. Conn. 2012).

14

3. Sexual Orientation is Unrelated to Ability to Contribute to Society

15

Classifications based on a “characteristic” that “frequently bears no relation to

16 ability to perform or contribute to society” further reinforce the need for heightened

17 scrutiny because such classifications are rarely a legitimate basis for government

18 decision-making. Frontiero, 411 U.S. at 686. As Plaintiff’s uncontroverted expert

19 observes, a person’s sexual orientation is not correlated with any “‘impairment in

20 judgment, stability, reliability, or general social and vocational capabilities.’” Expert

21 Report of Letitia Anne Peplau, Ph.D (“Peplau Rep.”) ¶ 30 (Sun Decl., Ex. H). Indeed,

22 “[b]eing gay or lesbian has no inherent association with a person’s ability to

23 participate in or contribute to society.” Id. ¶ 29. In light of the undisputed record, it is

24 “easy to decide” that sexual orientation bears no relation to an individual’s ability to

25 perform or contribute to society. Windsor, 699 F.3d at 181. Sexual orientation thus

26 plainly satisfies the two essential heightened scrutiny factors.

4. Sexual Orientation is a Distinguishing Characteristic, a Core Part of

27

Individual Identity, and Immutable

28
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1

The alternative factor of whether there are “obvious, immutable, or

2 distinguishing characteristics that define . . . a discrete group” applies to sexual

3 orientation classifications. Windsor, 699 F.3d at 181. It is well-settled that legislation

4 should not burden individuals on the basis of a core trait they cannot change, another

5 reason for courts to look more closely at laws that do impose such burdens. Cf.

6 Parham v. Hughes, 441 U.S. 347, 353 (1979) (“Unlike the illegitimate child for whom

7 the status of illegitimacy is involuntary and immutable . . . .”).

8

When considering the factor of immutability, the Supreme Court has recognized

9 that a defining characteristic need not be absolutely unchangeable for it to form the

10 basis of a suspect classification. See, e.g., Graham v. Richardson, 403 U.S. 365, 375–

11 76 (1971) (classifications based on alienage subject to strict scrutiny); see also City of

12 Cleburne, 473 U.S. at 442–43 & n.10 (relevance of immutability). After all, few if any

13 of the suspect classifications identified by the Supreme Court are truly “immutable” in

14 the strictest sense of the word—people can convert religions, aliens can become

15 naturalized, individuals can change their sex, and some people can “pass” or even

16 modify outward signs of their race or national origin. Nonetheless, all of these

17 classifications have been deemed “immutable” in the heightened scrutiny analysis.

18 Rather, “what matters here is whether the characteristic invites discrimination when it

19 is manifest.” Windsor, 699 F.3d at 184. Sexual orientation is such a characteristic. Id.

20

Further, the Ninth Circuit has concluded that sexual orientation is “immutable”

21 and “so fundamental to one’s identity that a person should not be required to abandon

22 [it].” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000), overruled in

23 part on other grounds, Thomas v. Gonzalez, 409 F.3d 1177 (9th Cir. 2005); see also

24 Perry, 704 F. Supp. 2d 921, 966 (N.D. Cal. 2010) (“No credible evidence supports a

25 finding that an individual may, through conscious decision, therapeutic intervention or

26 any other method, change his or her sexual orientation.”). Because sexual orientation

27 is a distinguishing characteristic, a core part of a person’s identity, and immutable or

28
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1 highly resistant to change, this factor also favors heightened scrutiny.

2

5. Lesbians and Gay Men Lack Political Power

3

Finally, although political disadvantage is not necessarily required for a

4 classification to be treated as suspect,4 that factor further supports heightened scrutiny

5 for sexual orientation classifications because lesbians and gay men “are not in a

6 position to adequately protect themselves from the discriminatory wishes of the

7 majoritarian public.” Windsor, 699 F.3d at 185; accord Segura Rep. ¶¶ 10-85 (Sun

8 Decl., Ex. I). “There can be no serious dispute that ongoing political events evince “a

9 continuing antipathy or prejudice” towards lesbians and gay men “and a

10 corresponding need for more intrusive oversight by the judiciary.” City of Cleburne v.

11 Cleburne Living Ctr., 473 U.S. 432, 443 (1985); see also Plyler, 457 U.S. at 216 n.14.

12

For example, gay rights opponents have aggressively used state ballot initiatives

13 to pass discriminatory laws or repeal protective ones and even to amend state

14 constitutions to deny lesbians and gay men important protections. See, e.g., Romer v.

15 Evans, 517 U.S. 620 (1996); see also Segura Rep. ¶ 37 (citing repeals of legislatively

16 enacted anti-gay discrimination ordinances through popular vote mechanisms); id. ¶¶

17 38–39 (surveying anti-marriage initiatives) (Sun Decl., Ex. I). This kind of “direct

18 democracy” has been used against lesbians and gay men more than any other group.

19 Id. ¶ 43. The extraordinary use of majoritarian processes to disadvantage a gay

20 minority vividly illustrates the inability of that minority to protect itself politically.

21

That there have been political initiatives in recent years that have helped

22 mitigate discrimination against gay people does not alter this analysis. Windsor, 699

23 F.3d at 184 (“The question is not whether homosexuals have achieved political

24 successes over the years; they clearly have. The question is whether they have the

25 strength to politically protect themselves from wrongful discrimination.” (discussing

26

4 Though some Supreme Court precedents have considered political powerlessness as a factor in determining whether

27 heightened scrutiny applies, it is not a necessary factor, see, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 235

(1995) (holding that all racial classifications are subject to strict scrutiny, although many racial groups hold substantial

28 political power).

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1 Frontiero, 411 U.S. at 685)); Segura Rep. ¶¶ 16–18 (Sun Decl., Ex. I). Indeed, the

2 Supreme Court has applied heightened scrutiny to statutes that rely on racial or sex-

3 based classifications even after racial minorities and women had achieved far greater

4 political victories against discrimination than lesbians and gay men have today.

5 Segura Rep. ¶¶ 82–86 (Sun Decl., Ex. I).

6

By contrast, lesbians and gay men have virtually no political power when

7 measured by the same yardstick. There is no federal legislation prohibiting

8 discrimination on the basis of sexual orientation in employment, education, access to

9 public accommodations, or housing. Id. ¶ 30. Until 2009, when sexual orientation was

10 added to federal anti-hate crime legislation (over significant opposition), no federal

11 legislation had ever existed to protect individuals on the basis of sexual orientation. Id.

12 ¶ 32. Additional progress recently—including repeal of the military’s ban on lesbian

13 and gay service members following two judicial findings of unconstitutionality, see

14 Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010); Witt v.

15 U.S. Dep’t of Air Force, 739 F. Supp. 2d 1308 (W.D. Wash. 2010)—while important,

16 falls far short of demonstrating meaningful political capital. Segura Rep. ¶ 33 (Sun

17 Decl., Ex. I).

18

Because sexual orientation satisfies both of the two essential factors relevant to

19 determining if a classification is suspect, as well as the two additional criteria that

20 courts sometimes rely upon, DOMA’s and Title 38’s exclusion of married same-sex

21 couples from veterans benefits should be subject to strict or, at the very least,

22 intermediate scrutiny. Indeed, other courts have recently so held. See, e.g., Windsor,

23 699 F.3d at 185 (“Analysis of these four factors supports our conclusion that

24 homosexuals compose a class that is subject to heightened scrutiny . . . [w]e further

25 conclude that the class is quasi-suspect . . .”); Pedersen, 881 F. Supp. 2d at 333

26 (holding “homosexuals display all the traditional indicia of suspectness and therefore

27

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1 statutory classification based on sexual orientation are entitled to a heightened form of

2 judicial scrutiny.”).

3 B.

Heightened Scrutiny Also Applies Because DOMA And Title 38 Discriminate On The Basis Of Sex

4

DOMA and Title 38 are subject to heightened scrutiny not only because they

5 discriminate based on sexual orientation, but also because they discriminate based on

6 sex. If either Tracey or Maggie were male instead of female, the law would permit

7 them to receive the benefits they are being denied. See, e.g., Dragovich, 764 F.

8 Supp.2d at 1182; In re Levenson, 560 F.3d 1145, 1149 (9th Cir. 2009). Such sex-

9 based classifications are entitled to intermediate scrutiny. United States v. Virginia,

10 518 U.S. 515, 533 (1996). DOMA and Title 38’s sex-based distinctions are no less

11 invidious because they equally deny male and female veterans in same-sex marriages

12 eligibility for veterans’ benefits. Cf. Loving v. Virginia, 388 U.S. 1, 8 (1967).

13 C. DOMA and Title 38 Cannot Survive Rational Basis Scrutiny, Much Less

Heightened Scrutiny

14

The standard for justifying a discriminatory statute such as DOMA or Title 38

15

under heightened scrutiny is formidable. To survive strict scrutiny, BLAG must prove

16

that the classification at issue is “narrowly tailored” and furthers “compelling

17

governmental interests.” Adarand Constructors, 515 U.S. at 227. Under intermediate

18

scrutiny, BLAG must establish that the classification is “substantially related” to an

19

“important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under

20

both tests, a statute must be defended by reference to the “actual [governmental]

21

purpose” behind it, and not after-the-fact “rationalizations.” Virginia, 518 U.S. at 535-

22

36. Given these demanding standards, BLAG cannot possibly meet its burden to

23

demonstrate that DOMA’s and Title 38’s disparate treatment of married same-sex

24

couples serves any compelling or important state interest, much less one that is

25

narrowly tailored or substantially related to an important governmental objective.

26

To be sure, DOMA and Title 38 fail even the more lenient rational basis

27

standard. Under rational basis review, a statute will be upheld as constitutional “if the

28

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1 classification drawn by the statute is rationally related to a legitimate state interest.”

2 City of Cleburne, 473 U.S. at 440. Still, there must be a “link between classification

3 and objective,” Romer, 517 U.S. at 632, i.e., “some relation between the classification

4 and the purpose it serve[s].” Id. at 633. Importantly, it is the classification—the

5 challenged discrimination—and not the law as a whole that must rationally advance a

6 legitimate governmental interest. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531

7 U.S. 356, 366-67 (2001). “In a long line of cases, the Supreme Court has applied

8 rational basis scrutiny to strike down legislation where the permissible bounds of

9 rationality were exceeded.” Sharif v. N.Y. State Educ. Dep’t, 709 F. Supp. 345, 364

10 (S.D.N.Y. 1989) (citing cases).

11

A classification fails rational basis review if its connection to the asserted

12 purpose, while not totally lacking, is “so attenuated as to render the distinction

13 arbitrary or irrational.” City of Cleburne, 473 U.S. at 446. For example, in Romer,

14 Colorado defended its ban on antidiscrimination protection for gay people by asserting

15 that the ban rationally furthered two state interests: (1) respecting the religious

16 liberties of landlords and employers, and (2) conserving state resources to fight

17 discrimination against other groups. 517 U.S. at 635. Yet the Supreme Court held that

18 those interests, even if legitimate on their own, were “so far removed” from the ban’s

19 classification, which singled out gay people for its burden, that it was “impossible to

20 credit” that they were the reason for the law. Id. Here too, DOMA and Title 38 are so

21 far removed from any legitimate purpose that it is simply impossible to credit any

22 “relation between the classification and the purpose it served.” Id. at 633.

23

1. All of Congress’s Purported Justifications for DOMA Fail

24

According to the legislative history, DOMA’s exclusion in 1996 of all same-sex

25 couples who might one day get married from all federal marital protections and

26 obligations was intended to: (a) “defend[] and nurtur[e] the institution of traditional,

27 heterosexual marriage,” H.R. Rep. No. 104-664, at 12 (1996); (b) “promot[e]

28
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1 heterosexuality,” id. at 15 n.53; (c) “encourag[e] responsible procreation and

2 childrearing,” id. at 13; (d) “protect[] . . . democratic self-governance,” id. at 16; (e)

3 “preserve scarce government resources” by preventing marital benefits from “hav[ing]

4 to be made available to homosexual couples and surviving spouses of homosexual

5 marriages,” id. at 18; and (f) promote a “moral disapproval of homosexuality, and a

6 moral conviction that heterosexuality better comports with traditional (especially

7 Judeo-Christian) morality,” id. at 16.

8

a) Preserving “Traditional” Marriage Is Not a Legitimate Government Interest

9

It is well-settled that “tradition” alone cannot justify the government’s

10 discrimination against a class of individuals. Williams v. Illinois, 399 U.S. 235, 239 11 (1970) (noting in equal protection challenge that “neither the antiquity of a practice

12 nor the fact of steadfast legislative and judicial adherence to it through the centuries

13 insulates it from constitutional attack”). In other words, under the Constitution,

14 discriminatory classifications cannot merely perpetuate past stereotypes or enforce

15 prior discrimination. See Romer, 517 U.S. at 633. Thus, that lesbians and gay men

16 have historically been denied access to marriage cannot provide the necessary

17 independent basis for the federal government’s disregard of existing state-approved

18 marriages of same-sex couples and cannot provide a rational basis for DOMA’s

19 denigration of married same-sex couples. Gill, 699 F. Supp. 2d at 389-90; In re

20 Levenson, 587 F.3d at 932; Dragovich, 872 F. Supp.2d 944, 963 (N.D. Cal. 2012).

21

b) DOMA Does Not Promote Heterosexuality

22

Similarly, any suggestion that DOMA promotes and encourages heterosexuality

23 deserves short shrift. It is entirely unclear how, for example, denying a decorated

24 Army veteran additional disability benefits promotes heterosexuality, either with

25 respect to Tracey or anyone else. To the contrary, the undisputed scientific consensus

26 is that a person’s sexual orientation is enduring and stable, and not the result of

27 personal choice. Peplau Rep. ¶ 29 (Sun Decl., Ex. H). Nor could anyone rationally

28
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1 credit that denying the validity of state-approved marriages of same-sex couples

2 would have any impact on whether different-sex couples marry, divorce, or cohabit.

3 Nor does DOMA “encourage [gay men and lesbians] to enter into marriages with

4 members of the opposite sex.” In re Levenson, 587 F.3d at 932.

5

c) DOMA Does Not Advance Any Legitimate Interest in ChildRearing

6

Excluding married same-sex couples from all federal marital protections and

7 obligations is also thoroughly unrelated to any interest the federal government may

8 have in promoting “responsible procreation” or child-rearing. First, procreation and

9 child-rearing are not the sole or even the primary focus of marriage. “The ability to

10 procreate is not now, nor has it ever been, a precondition to marriage in any state in

11 the country.” Gill, 699 F. Supp. 2d at 389; see also Expert Report of Nancy Cott

12 (“Cott Rep.”) ¶ 19 (Sun Decl., Ex. D). Nor has the federal government ever treated

13 married heterosexual couples differently if they were infertile or otherwise unable or

14 unwilling to procreate. And the great majority of the federal protections and

15 obligations that come with marriage relate not to child-rearing or procreation but to

16 practical protections aimed at adults. On the other hand, DOMA excludes married

17 same-sex couples not just from federal recognition of their relationship in contexts

18 relating to children or procreation, but in every one of the federal statutes and

19 programs that relate to marriage in any way. DOMA’s sweeping breadth, and the

20 striking disconnect between the classification and the purported purpose, make it

21 “impossible to credit” that this law was crafted to promote child-rearing by

22 heterosexuals. Romer, 517 U.S. at 635.

23

Second, because it is “beyond scientific dispute” that a child’s adjustment is not

24 determined by his parents’ sexual orientation, see Expert Report of Michael Lamb,

25 Ph.D. (“Lamb Rep.”) ¶ 14 (Sun Decl., Ex. G), any suggestion by DOMA’s defenders

26 that it advances a legitimate interest in ensuring that children will be better adjusted

27 cannot provide a rational basis for DOMA’s discrimination. Gill, 699 F. Supp. 2d at

28
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1 388–89. There is clear expert consensus, based on decades of social science research,

2 that children raised by gay parents are just as well-adjusted as those of heterosexual

3 parents. See Lamb Rep. ¶¶ 29–38 (Sun Decl., Ex. G). The factors predicting the

4 healthy adjustment of children, including the quality of the parent-child relationship

5 and the availability of sufficient economic and social resources, are the same for

6 lesbian and gay parents as for heterosexual parents. See id. ¶¶ 19–21; Gill, 699 F.

7 Supp. 2d at 388 & n.106. The scientific evidence further demonstrates that male and

8 female parents can be equally competent, and that the absence of a male or female

9 parent does not affect child development. Lamb Rep. ¶¶ 24–28 (Sun Decl., Ex. G).

10

Third, and even more fundamentally, DOMA actually works directly contrary

11 to promoting child-rearing because it “prevent[s] children of same-sex couples from

12 enjoying the immeasurable advantages that flow from the assurance of a stable family

13 structure when afforded equal recognition under federal law.” Gill, 699 F. Supp. 2d at

14 389 (internal quotation marks omitted); Lamb Rep. ¶¶ 42–43 (Sun Decl., Ex. G). And

15 DOMA does nothing to alter the fact that same-sex couples may marry and raise

16 children together. In re Levenson, 587 F.3d at 934. As a result, it is simply impossible

17 to credit this so-called “interest” as a rational justification for DOMA’s exclusion of

18 same-sex couples from federal benefits.

19

d) DOMA Undermines Democratic Self-Governance

20

Despite Congress’s lip-service to the contrary in 1996, DOMA undermines

21 democratic self-governance because it undermines the ability of citizens of a state

22 (through their democratically elected leaders) to exercise their authority to regulate

23 marriage—or to “vote with their feet” by relocating to a state that recognizes marriage

24 between same sex couples. DOMA instead imposes on all states, and on United States

25 citizens from across the country, a mandatory, second-class category of marriage. Nor

26 can Congress’s “interest” in “protecting” democratic self-governance constitute a

27 compelling or important interest that justifies a discriminatory law. This circular

28
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1 reasoning would permit the federal government to discriminate simply because the

2 majority wants to discriminate. That, of course, is precisely what the Fifth

3 Amendment was designed to prevent.

4

e) DOMA Does Not Conserve Resources

5

Congress’s justification that federal non-recognition of legal same-sex

6 marriages conserves resources can be easily disposed of because it is demonstrably

7 false. According to the nonpartisan Congressional Budget Office, the recognition of

8 the marriages of same-sex couples would actually increase annual net federal revenue.

9 Cong. Budget Off., U.S. Cong., The Potential Budgetary Impact of Recognizing 10 Same- Sex Marriages 1 (June 21, 2004)5; see also Gill, 699 F. Supp. 2d at 390 n.116.

11

Not only is this purported rationale unsupported factually, a cost-cutting

12 rationale, standing alone, would fail because “[t]here is no rational relationship”

13 whatsoever between the sex of a person’s spouse and the federal government’s desire

14 to limit its outlays. In re Levenson, 587 F.3d at 933 (“[T]hat a government policy

15 incidentally saves the government an insignificant amount of money does not provide

16 a rational basis for that policy if the policy is, as a cost-saving measure, drastically

17 underinclusive, let alone founded upon a prohibited or arbitrary ground.”); accord

18 Gill, 699 F. Supp. 2d at 390. Nor does cost-cutting rise to the level of a compelling or

19 important government interest. Shapiro v. Thompson, 394 U.S. 618, 633 (1969) (“[A

20 State] must do more than show that denying welfare benefits to new residents saves

21 money.”), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974).

22

f) “Moral Disapproval” Is Not A Legitimate Government Interest

If there is one objective that DOMA was in fact intended to achieve, it is moral

23

condemnation of gay men and lesbians. The legislative history explicitly states that

24

DOMA was intended to express the “moral disapproval of homosexuality, and a moral

25

conviction that heterosexuality better comports with traditional (especially Judeo-

26

Christian) morality.” H.R. Rep. No. 104-664, at 15–16; see Dragovich, 764 F.Supp.2d

27

28

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1 at 1190 (“[A]nimus toward, and moral rejection of, homosexuality and same-sex

2 relationships are apparent on the congressional record.”); Gill, 699 F. Supp. 2d at 378-

3 79, nn. 23-24 (quoting legislative record).

4

But “the denial of federal benefits to same-sex spouses cannot be justified as an

5 expression of the government’s disapproval of homosexuality, preference for

6 heterosexuality, or desire to discourage gay marriage.” In re Levenson, 587 F.3d at

7 932. Animus against gay people, as a matter of law, is not a legitimate, much less an

8 important or compelling, government interest. Romer, 517 U.S. at 632. “[I]f the

9 constitutional conception of ‘equal protection of the laws’ means anything, it must at

10 the very least mean that a bare congressional desire to harm a politically unpopular

11 group cannot constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v.

12 Moreno, 413 U.S. 528, 534 (1973). Indeed, the Supreme Court has soundly rejected

13 moral disapproval as a justification for discrimination against gay people, holding that

14 “‘the fact that the governing majority in a State has traditionally viewed

15 [homosexuality] as immoral is not a sufficient reason for upholding a law prohibiting

16 the practice.’” Lawrence, 539 U.S. at 577. Here too, “mere negative attitudes, or fear,

17 unsubstantiated by factors which are properly cognizable . . . , are not permissible

18 bases” for governmental discrimination. City of Cleburne, 473 U.S. at 488.

19

2. No Other Rational Basis for DOMA Can Be Supported

20

None of the additional purported justifications asserted in previous litigation

21 regarding DOMA can overcome the patent lack of a rational basis for that statute’s or

22 Title 38’s discrimination.

23

DOMA does not avoid inconsistency. The claim that DOMA’s definition of

24 marriage avoids inconsistency across states, because same-sex couples cannot marry

25 in every jurisdiction, must fail “[e]ven under the more deferential rational basis review

26 . . . .” In re Levenson, 587 F.3d at 933. Varying state eligibility requirements for

27 marriage throughout our country’s history have meant that heterosexual couples who

28
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1 could validly marry in one state might not be able to in another. Gill, 699 F. Supp. 2d

2 at 391; Cott Rep. ¶¶ 26–66 (Sun Decl., Ex. D). “And yet the federal government has

3 fully embraced these variations and inconsistencies in state marriage laws by

4 recognizing as valid for federal purposes any heterosexual marriage which has been

5 declared valid pursuant to state law.” Gill, 699 F. Supp. 2d at 391.

6

Congress has never before cared about uniformity across state definitions of

7 marriage, even though, for example, only a minority of states recognize common law

8 marriages, Cott Rep. ¶¶ 37–40 (Sun Decl., Ex. D), so any assertion of such an interest

9 here simply cannot be credited. While the rational basis inquiry may not require a

10 perfect fit between a classification and its justification, “this deferential constitutional

11 test nonetheless demands some reasonable relation between the classification in

12 question and the purpose it purportedly serves.” Gill, 699 F. Supp. 2d at 396. The

13 government “may not rely on a classification whose relationship to an asserted goal is

14 so attenuated as to render the distinction arbitrary or irrational.” Id. at 388.

15

DOMA does not preserve the status quo. The argument that DOMA “preserves

16 the status quo,” in that no state allowed same-sex couples to marry when DOMA was

17 enacted in 1996, is also unavailing. As courts applying rational basis review have

18 noted, the “assertion that pursuit of this interest provides a justification for DOMA

19 rests on a conspicuous misconception of what the status quo was at the federal level in

20 1996.” Gill, 699 F. Supp. 2d at 393. At the time, the federal status quo “was to

21 recognize, for federal purposes, any marriage declared valid according to state law.”

22 Id. In other words, “DOMA did not preserve the status quo vis-à-vis the relationship

23 between federal and state definitions of marriage; to the contrary, it disrupted the

24 long-standing practice of the federal government deferring to each state’s decisions as

25 to the requirements for a valid marriage.” In re Levenson, 587 F.3d at 933.

26

As the Supreme Court has explained, “laws singling out a certain class of

27 citizens for disfavored legal status or general hardships are rare.” Romer, 517 U.S. at

28
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Case 2:12-cv-00887-CBM-AJW Document 84 Filed 02/20/13 Page 30 of 31 Page ID #:1337

WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 633. They are rare in part because such classifications generally lack any rational

2 connection to a legitimate government interest. The Supreme Court in Romer held that

3 the purported justifications for the Colorado amendment at issue failed to provide a

4 rational basis because “[the amendment’s] sheer breadth is so discontinuous with the

5 reasons offered for it that the amendment seem[ed] inexplicable by anything but

6 animus toward the class it affect[ed].” Id. at 632. DOMA’s sweeping breadth—

7 including denying legally married couples recognition of their marriage for purposes

8 of the marital exemption to the federal estate tax; denying married lesbian and gay

9 federal employees the ability to provide health insurance to their spouses; and

10 preventing married bi-national same-sex couples from remaining together in the

11 United States in the ways available to straight couples—makes it impossible to

12 explain the exclusion of married same-sex couples from those benefits and protections

13 by anything other than sheer animus. Because, under our constitutional framework,

14 the government needs more than animus to justify the harms that DOMA imposes on

15 married same-sex couples, the statutes fail even rational basis review.

16

3. There is No Rational Basis For Title 38’s Exclusion of Same-Sex Marriages

17

Similarly, no justification can be asserted for Title 38 that would establish a

18 rational basis for discriminating against veterans in legal same-sex marriages. Indeed,

19 Congress enacted Title 38 to remove “unnecessary gender references” from the

20 statute, S. Rep. No. 94-532, at 19-20 (1975) (emphasis added), not to preclude

21 veterans in same-sex marriages from obtaining spousal benefits. Nothing in Title 38’s

22 legislative history suggests that Congress intended to deny veterans benefits on the

23 basis of sexual orientation; on the contrary, Congressional intent was to promote

24 equality of the sexes and expand the availability of veterans’ benefits. The categorical

25 exclusion of same-sex marriages is wholly inconsistent with Congress’s stated

26 purpose in amending Title 38 because the statute in fact promotes gender inequality

27 by discriminating against Tracey and those similarly-situated to her solely because she

28
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WilmerHale
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

1 is a woman married to a woman.

2

Nor could it be argued that the discrimination created by Title 38 is rationally

3 related to any military purpose.6 As Plaintiffs’ expert Dr. Lawrence Korb explains,

4 “years of military experience have shown these benefits for service members and

5 families to be essential to the proper functioning of the armed forces by ensuring that

6 our men and women in uniform are capable of serving at their maximum potential.”

7 Korb Rep. ¶ 27 (Sun Decl., Ex. E). Far from advancing the interests of the military,

8 Title 38 undermines military recruiting, retention, readiness, and cohesion by

9 preventing gay and lesbian veterans from receiving the same benefits as their

10 heterosexual counterparts. See Laich Rep. ¶¶ 17-19 (recruiting), 21-27 (retention), 28-

11 33 (readiness and cohesion) (Sun Decl., Ex. F); Korb Rep. ¶¶ 27 (readiness); 28-29

12 (recruiting and retention); 30 (cohesion) (Id., Ex. E). Further, Title 38 is antithetical to

13 the military’s commitments to caring for and providing for the families of veterans—

14 particularly those veterans who are injured while serving. Korb Rep. ¶ 26 (Id., Ex. E).

15 V. CONCLUSION

16

For the foregoing reasons, the Court should grant summary judgment in the

Plaintiffs’ favor. 17

18 Dated: February 20, 2013

SOUTHERN POVERTY LAW CENTER

19

WILMER CUTLER PICKERING HALE AND DORR LLP

20

BY: /s/ Randall R. Lee

21

RANDALL R. LEE 350 South Grand Avenue, Suite

22

2100 Los Angeles, CA 90071

23

(213) 443-5300 randall.lee@wilmerhale.com

24

Attorneys for Plaintiffs

25

26 6 Indeed, Federal Defendants, including the Secretary of the VA, have indicated that Title 38 is unconstitutional and that

no rationale exists “for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married same-
27 sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any

justification for that distinction that could warrant treating [the Title 38 provisions] differently from Section 3 of DOMA.

28 (ECF No. 16-3 at 2.)

CASE NO. CV 12-887-CBM (AJWX)

25

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 Case 2:12-cv-00887-CBM-AJW Document 140 Filed 08/29/13 Page 1 of 4 Page ID #:3625

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 COOPER-HARRIS, ET AL.

13

Plaintiffs,

)

) )

CASE NO. 2:12-00887-CBM (AJWx)

)

14 15

vs. UNITED STATES OF AMERICA, ET AL.

) ) ) )

ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

16

)

Defendants.

)

17

18 The matter before the Court is Plaintiffs’ Motion for Summary Judgment
19 (“Motion”). [Dockets No. 96, 97.] Plaintiffs challenge the constitutionality of
20 Section 3 of the Defense of Marriage Act (“DOMA”) and Sections 101(3) and
21 101(31) of Title 38 (“Title 38”) on the basis that these provisions violate the equal
22 protection of the laws guaranteed by the Fifth Amendment of the U.S.
23 Constitution by discriminating on the basis of sexual orientation. (Motion at 1-2.)
24 I. PROCEDURAL HISTORY
25 Plaintiffs and Intervenor-Defendant Bipartisan Legal Advisory Group of the
26 United States House of Representatives (“BLAG”) filed cross-motions for
27 summary judgment. [Doc. No. 105.] The Federal Government filed a Response
28

1

Case 2:12-cv-00887-CBM-AJW Document 140 Filed 08/29/13 Page 2 of 4 Page ID #:3626

1 in support of Plaintiffs’ Motion. [Doc. No. 113.] Subsequent to the Supreme

2 Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808

3 (2013), BLAG withdrew as Intervenor-Defendant, its Cross-Motion for Summary

4 Judgment, and its Opposition to Plaintiffs’ Motion, on July 23, 2013. [See Doc.

5 No. 137.] What remains before the Court is Plaintiffs’ Motion as to DOMA and

6 Title 38. The Supreme Court held that DOMA is unconstitutional, and therefore

7 the Court GRANTS Plaintiffs’ Motion as to DOMA. Windsor, 133 S. Ct. at 2696.

8

II. STANDARD OF LAW

9

Summary judgment against a party is appropriate when “there is no genuine

10 dispute as to any material fact and the movant is entitled to judgment as a matter

11 of law.” Fed. R. Civ. P. 56(a). The moving party must support its assertion that

12 there is no genuine dispute by citing to “depositions, documents, electronically

13 stored information, affidavits or declarations, stipulations (including those made

14 for purposes of the motion only), admissions, interrogatory answers, or other

15 materials” in the record. Fed. R. Civ. P. 56(c)(1)(A). A party seeking summary

16 judgment bears the initial burden of informing the court of the basis for its motion

17 and of identifying those portions of the pleadings and discovery responses that

18 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

19 Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the

20 moving party meets its initial burden, the nonmoving party must then set forth, by

21 affidavit or as otherwise provided in Rule 56, “specific facts showing that there is

22 a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106

23 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

24

In judging evidence at the summary judgment stage, the court does not

25 make credibility determinations or weigh conflicting evidence and draws all

26 inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv.,

27 Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987). This

28 includes factual disputes. See Reeves v. Sanderson Plumbing Prods., Inc., 530

2

Case 2:12-cv-00887-CBM-AJW Document 140 Filed 08/29/13 Page 3 of 4 Page ID #:3627

1 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The evidence presented

2 by the parties must be admissible. Fed. R. Civ. P. 56(c)(2). Conclusory,

3 speculative testimony in affidavits and moving papers is insufficient to raise

4 genuine issues of fact and defeat summary judgment. See Thornhill Pub. Co. v.

5 GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

6

“Summary judgment is especially appropriate where there is no genuine

7 issue of material fact and the only dispute is as to pure legal questions.” Miller v.

8 Cnty. of Santa Cruz, 796 F. Supp. 1316, 1317-18 (N.D. Cal. 1992) aff'd, 39 F.3d

9 1030 (9th Cir. 1994).

10

III. DISCUSSION

11

Plaintiffs argue that (1) heightened scrutiny is the appropriate standard of

12 review for sexual orientation discrimination, (2) heightened scrutiny also applies

13 because DOMA and Title 38 discriminate on the basis of sex, (3) if the Court finds

14 that heightened scrutiny is not the appropriate standard of review, DOMA and

15 Title 38 do not survive rational basis scrutiny. (See Motion at 7.)

16 A. Title 38

17

Plaintiffs challenge Title 38. (Motion at 24-25.) BLAG’s withdrawal states

18 that “in light of the Supreme Court’s opinion in Windsor, that it no longer will

19 defend [Title 38].” [Doc. No. 136, at 2:7-10.] However, the Supreme Court does

20 not address Title 38’s constitutionality. See, e.g., Windsor, 133 S. Ct. at 2694.

21

Plaintiff argues that the appropriate standard of review is heightened

22 scrutiny. The current standard of review for sexual orientation classifications in

23 the Ninth Circuit remains unsettled. See In re Levenson, 587 F.3d 925, 931 (9th

24 Cir. 2009). Like the Diaz Court, “[w]e do not need to decide whether heightened

25 scrutiny might be required” because as discussed below Title 38 is

26 unconstitutional under rational basis scrutiny. See Diaz v. Brewer, 656 F.3d 1008,

27 1012, 1015 (9th Cir. 2011).

28

3

Case 2:12-cv-00887-CBM-AJW Document 140 Filed 08/29/13 Page 4 of 4 Page ID #:3628

1. Rational Basis 1
Under rational basis review, a statute will be upheld as constitutional “if the 2
classification drawn by the statute is rationally related to a legitimate state 3
interest.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 4
S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). 5
Plaintiffs state that Congress enacted Title 38 to remove “unnecessary 6
gender references,” and promote gender equality and expand the availability of 7
veterans’ benefits. (Motion at 24:7-13.) The Court finds that the exclusion of 8
spouses in same-sex marriages from veterans’ benefits is not rationally related to 9
the goal of gender equality. 10
Plaintiffs also argue that Title 38 is not rationally related to any military 11
purpose, and cite Expert Declarations. [Doc. No. 99, Exhibits A-I.] Plaintiffs’ 12
experts state that veterans’ benefits are essential to ensuring that servicemembers 13
perform to their “maximum potential,” and other purposes justifying veterans 14
benefits including readiness, recruiting, cohesion, and retention. [Doc. No. 99, 15
Exh. E ¶¶ 2, 4, 27, 28.] The denial of benefits to spouses in same-sex marriages is 16
not rationally related to any of these military purposes. 17
Additionally, Title 38 is not rationally related to the military’s commitment 18
to caring for and providing for veteran families. 19
IV. CONCLUSION 20
For the reasons stated above, the Court GRANTS Plaintiffs’ Motion for 21
Summary Judgment. The Court permanently enjoins Defendants from relying on 22
38 U.S.C. §§ 101(3), (31) or Section 3 of 1 U.S.C. § 7 to deny recognition of 23
Plaintiffs’ marriage recognized by the state of California. 24

25 IT IS SO ORDERED.
26 DATED: August 29, 2013
27

______________________________ CONSUELO B. MARSHALL

28

UNITED STATES DISTRICT JUDGE

4

 
 Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 1 of 17
(AJWx),CLOSED,DISCOVERY,PROTORD
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:12−cv−00887−CBM−AJW

Tracey Cooper−Harris et al v. United States of America et al Assigned to: Judge Consuelo B. Marshall Referred to: Magistrate Judge Andrew J. Wistrich Related Case: 8:12−cv−01137−CBM−AJW Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 02/01/2012 Date Terminated: 03/12/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Tracey Cooper−Harris

represented by Adam P Romero Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center New York, NY 10007 212−295−6422 Fax: 212−230−8888 Email: adam.romero@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Caren E Short Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: caren.short@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Christine P Sun ACLU of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 213−977−9500 Email: csun@aclu.org TERMINATED: 06/17/2013

Daniel S Noble Wilmer Cutler Pickering Hale & Dorr LLP 399 Park Avenue New York, NY 10022 212−230−8852 Fax: 212−230−8888 Email: daniel.noble@wilmerhale.com TERMINATED: 04/13/2012 PRO HAC VICE

Eugene Marder Wilmer Cutler Pickering Hale and Dorr LLP 950 Page Mill Road Palo Alto, CA 94304 650−858−6000 Fax: 650−858−6100 Email: eugene.marder@wilmerhale.com TERMINATED: 08/16/2013

Joseph J Levin , Jr

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 2 of 17

Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8480 Email: joe.levin@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew D Benedetto Wilmer Cutler Pickering Hale and Dorr LLP 350 South Grand Avenue Suite 2100 Los Angeles, CA 90071 213−443−5300 Fax: 213−443−5400 Email: matthew.benedetto@wilmerhale.com ATTORNEY TO BE NOTICED

Randall R Lee Wilmer Cutler Pickering Hale and Dorr LLP 350 South Grand Avenue Suite 2100 Los Angeles, CA 90071 213−443−5300 Fax: 213−443−5400 Email: randall.lee@wilmerhale.com ATTORNEY TO BE NOTICED

Rubina Ali Wilmer Cutler Pickering Hale and Dorr LLP 250 Greenwich Street New York, NY 10007 212−295−6325 Fax: 212−230−8888 Email: rubina.ali@wilmerhale.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Maggie Cooper−Harris

represented by Adam P Romero (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Caren E Short (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christine P Sun (See above for address) TERMINATED: 06/17/2013

Daniel S Noble (See above for address) TERMINATED: 04/13/2012 PRO HAC VICE

Eugene Marder (See above for address) TERMINATED: 08/16/2013

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 3 of 17
Joseph J Levin , Jr (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew D Benedetto (See above for address) ATTORNEY TO BE NOTICED
Randall R Lee (See above for address) ATTORNEY TO BE NOTICED
Rubina Ali (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant United States of America
Defendant Eric H Holder, Jr in his official capacity as Attorney General
Defendant Eric K Shinseki in his official capacity as Secretary of Veterans Affairs

represented by Jean Lin US Department of Justice Civil Division − Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202−514−3716 Fax: 202−616−8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jean Lin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Bipartisan Legal Advisory Group of the US House of Representatives TERMINATED: 07/23/2013

represented by Christine Davenport Office of the General Counsel US House of Representatives 219 Cannon House Office Building Washington, DC 20515 202−225−9700 Fax: 202−226−1360 Email: christine.davenport@mail.house.gov TERMINATED: 03/06/2014 PRO HAC VICE
Conor B Dugan Bancroft PLLC 1919 M Street NW Suite 470

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 4 of 17
Washignton, DC 20036 202−234−0090 TERMINATED: 03/06/2013 PRO HAC VICE
H Christopher Bartolomucci Bancroft PLLC 1919 M Street Suite 470 Washington, DC 20036 202−234−0090 Fax: 202−234−2806 Email: cbartolomucci@bancroftpllc.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kerry W Kircher Office of the General Counsel US House of Representatives 219 Cannon House Office Building Washington, DC 20515−6532 202−225−9700 Fax: 202−226−1360 Email: Kerry.Kircher@mail.house.gov TERMINATED: 03/06/2014 PRO HAC VICE
Kirsten W Konar Office of General Counsel US House of Representatives 219 Cannon House Office Building Washington, DC 20515 202−225−9700 TERMINATED: 03/06/2014 PRO HAC VICE
Mary Beth Walker Office of General Counsel US House of Representatives 219 Cannon House Office Building Washington, DC 20515 202−225−9700 Fax: 202−226−1360 TERMINATED: 03/06/2014 PRO HAC VICE
Michael H McGinley Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202−234−0090 Fax: 202−234−2806 Email: mmcginley@bancroftpllc.com ATTORNEY TO BE NOTICED
Nicholas J Nelson Bancroft PLLC 1919 M Street NW Suite 470 Washington, DC 20036 202−234−0090 TERMINATED: 07/24/2013 PRO HAC VICE
Paul D Clement Bancroft PLLC 1919 M Street Suite 470

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 5 of 17
Washington, DC 20036 202−234−0090 Fax: 202−234−2806 Email: pclement@bancroftpllc.com PRO HAC VICE ATTORNEY TO BE NOTICED
Todd B Tatelman Office of General Counsel US House of Representatives 219 Cannon House Office Building Washington, DC 20515 202−225−9700 Fax: 202−226−1360 Email: Todd.Tatelman@mail.house.gov TERMINATED: 03/06/2014
William B Pittard , IV Office of the General Counsel US House of Representatives 219 Cannon House Office Building Washington, DC 20515 202−225−9700 Fax: 202−226−1360 Email: william.pittard@mail.house.gov TERMINATED: 03/06/2014 PRO HAC VICE

Date Filed 02/01/2012
02/01/2012 02/01/2012 02/01/2012 02/02/2012
02/02/2012
02/02/2012

# Docket Text
1 COMPLAINT against defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. Case assigned to Judge Consuelo B. Marshall for all further proceedings. Discovery referred to Magistrate Judge Andrew J Wistrich.(Filing fee $ 350 PAID), filed by plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris.(esa) (mg). (Entered: 02/02/2012)
60 DAY Summons Issued re Complaint 1 as to defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (esa) (Entered: 02/02/2012)
2 CERTIFICATION AND NOTICE OF INTFERESTED PARTIES filed by plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (esa) (mg). (Entered: 02/02/2012)
6 STANDING ORDER by Judge Consuelo B. Marshall. (lom) (Entered: 02/03/2012)
3 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Joseph J. Levin, Jr. for Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Your Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of your application and the $325.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U. S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (esa) (Entered: 02/02/2012)
4 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Caren E. Short for Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Your Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a copy of the Notice of Electronic Filing of your application and the $325.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U. S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (esa) (Entered: 02/02/2012)
5 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Daniel S. Noble for Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Your Pro Hac Vice application has not been received by the court. Please return your completed Application of Non−Resident Attorney to Appear in a Specific Case, form G−64, or a

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 6 of 17

02/03/2012 02/03/2012 02/03/2012 02/03/2012 02/03/2012 02/03/2012 02/22/2012 02/23/2012
02/23/2012 02/24/2012 04/02/2012 04/02/2012 04/02/2012

copy of the Notice of Electronic Filing of your application and the $325.00 fee and this notice immediately. Out−of−state federal government attorneys who are not employed by the U. S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (esa) (Entered: 02/02/2012)
7 APPLICATION for attorney Joseph J. Levin, Jr. to Appear Pro Hac Vice. (PHV FEE PAID.) filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Lodged Application of Non Resident Attorney to Appear in a Specific Case. (lt) (Entered: 02/08/2012)
8 APPLICATION for attorney Caren E. Short to Appear Pro Hac Vice. (PHV FEE PAID.) filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Lodged Application of Non Resident Attorney to Appear in a Specific Case. (lt) (Entered: 02/08/2012)
9 APPLICATION for attorney Daniel S. Noble to Appear Pro Hac Vice. (PHV FEE PAID.) filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Lodged Application of Non Resident Attorney to Appear in a Specific Case. (lt) (Entered: 02/08/2012)
10 ORDER by Judge Consuelo B. Marshall: granting 9 Application to Appear Pro Hac Vice by Attorney Daniel S. Noble on behalf of Plaintiffs, designating Randall R. Lee as local counsel. (lt) (Entered: 02/08/2012)
11 ORDER by Judge Consuelo B. Marshall: granting 7 Application to Appear Pro Hac Vice by Attorney Joseph J. Levin, Jr. on behalf of Plaintiffs, designating Randall R. Lee as local counsel. (lt) (Entered: 02/08/2012)
12 ORDER by Judge Consuelo B. Marshall: granting 8 Application to Appear Pro Hac Vice by Attorney Caren E. Short on behalf of Plaintiffs, designating Randall R. Lee as local counsel. (lt) (Entered: 02/08/2012)
13 NOTICE of Appearance filed by attorney Jean Lin on behalf of Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America (Lin, Jean) (Entered: 02/22/2012)
14 PROOF OF SERVICE Executed by Plaintiff Maggie Cooper−Harris, Tracey Cooper−Harris, upon Defendant All Defendants. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Pat Myles. Executed upon the Attorney Generals Office of the United States by delivering a copy to Eric Holder. Executed upon the officer agency or corporation by delivering a copy to Emily Sase, Dept. of Justice. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons returned. (Lee, Randall) (Entered: 02/23/2012)
15 PROOF OF SERVICE filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris, REGARDING STANDING ORDER served on 02/03/2012. (Lee, Randall) (Entered: 02/23/2012)
16 NOTICE to the Court regarding decision not to defend filed by Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4)(Lin, Jean) (Entered: 02/24/2012)
17 NOTICE OF UNOPPOSED MOTION AND MOTION for Leave to Intervene filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. Motion set for hearing on 5/7/2012 at 10:00 AM before Judge Consuelo B. Marshall. (lom) (Entered: 04/04/2012)
19 MEMORANDUM OF POINTS AND AUTHORITIES in Support of UNOPPOSED MOTION to Intervene 17 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)
20 NOTICE of Appearance filed by attorney Kerry W Kircher on behalf of Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 7 of 17

04/02/2012 04/02/2012 04/02/2012 04/02/2012 04/04/2012 04/04/2012 04/04/2012
04/05/2012 04/05/2012
04/10/2012 04/13/2012

21 NOTICE of Appearance of Conor B Dugan at Bancroft PLLC filed by attorney Kerry W Kircher on behalf of Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)
22 NOTICE of Appearance of Nicholas J Nelson filed by attorney Kerry W Kircher on behalf of Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)
23 NOTICE of Appearance of Paul D Clement filed by attorney Kerry W Kircher on behalf of Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)
24 NOTICE of Appearance of H. Christopher Bartolomucci filed by attorney Kerry W Kircher on behalf of Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)
18 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to attorney Kerry W Kircher re P. Clement, H. Bartolomucci, C. Dugan, N. Nelson of Bancroft PLLC, for Movant Bipartisan Legal Advisory Group of the US House of Representatives. (lom) (Entered: 04/04/2012)
25 Joint STIPULATION to Reschedule Briefing Schedule filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Proposed Order)(Short, Caren) (Entered: 04/04/2012)
Notice of Electronic Filing re Memorandum in Support of Motion 19 , Notice of Appearance 23 , Notice of Appearance 21 , Notice of Appearance 22 , Notice of Appearance 24 , MOTION to Intervene 17 , Notice of Filing Fee Due (PHV) 18 , Stipulation to Reschedule 25 , Notice of Appearance 20 e−mailed to MaryBeth Walker bounced due to invalid e−mail address. Primary e−mail address corrected. Notice of Electronic Filing resent addressed to MaryBeth.Walker@mail.house.gov. Pursuant to the General Order and Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(jj) TEXT ONLY ENTRY (Entered: 04/04/2012)
26 NOTICE OF NON−OPPOSITION to MOTION to Intervene 17 Response filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit Exhibit 1 to Response, # 2 Exhibit Exhibit 2 to Response, # 3 Exhibit Exhibit 3 to Response)(Lee, Randall) (Entered: 04/05/2012)
27 ORDER by Judge Consuelo B. Marshall: Plaintiffs and Defendants will file their responses to the House's motion to intervene on or before Tuesday, April 10,2012; The House will file its reply to the Plaintiffs' and Defendants' responses to the House's motion to intervene on or before Tuesday, April 17, 2012; the House will file any motion to stay proceedings by the later of Monday, April 30, 2012, or seven (7) calendar days after the Court grants the House's motion to intervene; Plaintiffs will file their response to the House's motion to stay on or before twenty−one (21) calendar days after the date the House files its motion to stay;the House will file any reply to the Plaintiffs' response to the House's motion to stay on or before fourteen (14) calendar days after the date the Plaintiffs file their response; and, if the House's motion to stay is denied in whole or in part, then within fourteen (14) calendar days of the entry of the Court's order on the House's motion to stay, the parties will: (i) meet and confer, in accordance with Federal Rule of Civil Procedure 26, regarding a discovery and dispositive motion briefing schedule; and (ii) file a Rule 26(f)(2) report. If necessary, the parties jointly will seek a scheduling conference with the Court as soon as they can be heard. 25 (jl) Modified on 4/6/2012 (lt). (Entered: 04/05/2012)
28 NOTICE OF NON−OPPOSITION to MOTION to Intervene 17 filed by Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (Attachments: # 1 Proposed Order)(Lin, Jean) (Entered: 04/10/2012)
29 NOTICE OF MOTION AND MOTION for Order for Granting Motion for Cancellation of Pro Hac Vice Notice or Waiver of Local Rule 83−2.3 filed by Proposed Intervenor Bipartisan Legal Advisory Group of the US House of Representatives. Motion set for hearing on 5/14/2012 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit)(Kircher, Kerry) (Entered: 04/13/2012)

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 8 of 17

04/13/2012
04/17/2012 04/17/2012 04/17/2012 04/18/2012 05/07/2012 05/10/2012
05/21/2012 05/22/2012 05/29/2012
06/06/2012 06/13/2012 06/18/2012

30 NOTICE of Change of Attorney Information for attorney Matthew D Benedetto counsel for Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Daniel Scott Noble will no longer receive service of documents from the Clerks Office for the reason indicated in the G−06 Notice.Daniel Scott Noble is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by plaintiff Tracey Cooper−Harris and Maggie Cooper−Harris (Benedetto, Matthew) (Entered: 04/13/2012)
31 REPLY to Executive Branch Defendants in Support of MOTION to Intervene 17 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Kircher, Kerry) (Entered: 04/17/2012)
32 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall: MOTION to Intervene 17 is continued to May 14, 2012 at 10:00 a.m. (jl) (Entered: 04/17/2012)
33 REPLY MOTION to Intervene 17 Reply to Plaintiffs' Response filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kircher, Kerry) (Entered: 04/17/2012)
34 APPLICATION for attorney Adam Romero to Appear Pro Hac Vice. (PHV FEE PAID.) filed by plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Lodged Proposed Order. (ak) (Entered: 04/20/2012)
35 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall: MOTION for Order for Granting Motion for Cancellation of Pro Hac Vice Notice or Waiver of Local Rule 83−2.3 29 and MOTION to Intervene 17 are continued to May 15, 2012 at 10:00 a.m. before Judge Consuelo B. Marshall. (jl) (Entered: 05/07/2012)
36 Minute Order by Judge Consuelo B. Marshall: Unopposed Motion of The Bipartisan Legal Advisory Group of The U. S. House of Representatives for Leave to Intervene 17 and Motion of Bipartisan Legal Advisory Group of the U. S. House of Representatives for an Order Granting Cancellation of Pro Hac Vice Notice or Waiver of Local Rule 83−2.3 29 are submitted without oral argument. (jl) (Entered: 05/10/2012)
37 NOTICE of Supplemental Authorities filed by Proposed Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kircher, Kerry) (Entered: 05/21/2012)
38 MINUTES (IN CHAMBERS): ORDER by Judge Consuelo B. Marshall: GRANTING Unopposed Motion for Cancellation of Pro Hac Vice Notice or Waiver of Local Rule 83−2.3 29 GRANTING Unopposed Motion for Leave to Intervene 17 (jl) (Entered: 05/22/2012)
39 NOTICE OF MOTION AND MOTION to Stay Case pending ruling of United States Court of Appeals for the Ninth Circuit in Golinksi v. U.S. Office of Personnel Management, Case Nos. 12−15388 & 12−15079 filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. Motion set for hearing on 7/2/2012 at 11:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Memorandum in Support of Motion for Stay, # 2 Proposed Order)(Kircher, Kerry) (Entered: 05/29/2012)
40 ORDER by Judge Consuelo B. Marshall: granting 34 Application to Appear Pro Hac Vice by Attorney Adam P. Romero on behalf of Plaintiff, designating Randall R. Lee as local counsel. (lt) (Entered: 06/07/2012)
41 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall: MOTION to Stay Case is continued to July 23, 2012 at 10:00 A.M. Opposition Brief shall be filed on or before June 18, 2012, Reply Brief, if any, shall be filed on or before June 25, 2012. (jl) Modified on 6/13/2012 (lom). (Entered: 06/13/2012)
42 MEMORANDUM in Opposition to MOTION to Stay Case pending ruling of United States Court of Appeals for the Ninth Circuit in Golinksi v. U.S. Office of Personnel Management, Case Nos. 12−15388 & 12−15079 39 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Declaration of Tracey Cooper−Harris In Support of Plaintiffs' Opposition to Intervenor−Defendant's Motion to Stay, # 2 Declaration of Maggie Cooper−Harris In Support of Plaintiffs' Opposition to Intervenor−Defendant's Motion to Stay)(Lee, Randall) (Entered: 06/18/2012)

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 9 of 17

06/25/2012
07/06/2012 07/19/2012 07/20/2012 07/31/2012 08/01/2012 08/01/2012 08/03/2012 08/17/2012 10/02/2012 10/10/2012 10/10/2012 10/17/2012 10/24/2012
10/24/2012 11/06/2012

43 REPLY in Support of MOTION to Stay Case pending ruling of United States Court of Appeals for the Ninth Circuit in Golinksi v. U.S. Office of Personnel Management, Case Nos. 12−15388 & 12−15079 39 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit Exhibit A)(Kircher, Kerry) (Entered: 06/25/2012)
44 NOTICE of Supplemental Authority filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kircher, Kerry) (Entered: 07/06/2012)
45 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall: MOTION to Stay Case 39 is submitted without oral arguments as of July 23, 2012. (jl) (Entered: 07/19/2012)
46 NOTICE of Supplemental Authority filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A)(Kircher, Kerry) (Entered: 07/20/2012)
47 NOTICE of Supplemental Authority filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kircher, Kerry) (Entered: 07/31/2012)
48 NOTICE of Change of address by Adam P Romero attorney for Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Changing attorneys address to 7 World Trade Center, New York, NY 10007. Filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 08/01/2012)
49 NOTICE of Supplemental Authority filed by plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A)(Benedetto, Matthew) (Entered: 08/01/2012)
50 MINUTES (IN CHAMBERS): ORDER by Judge Consuelo B. Marshall: denying 39 Motion to Stay Case (jl) (Entered: 08/03/2012)
51 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 5, filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris.. (Romero, Adam) (Entered: 08/17/2012)
52 NOTICE of Change of Attorney Information for attorney H Christopher Bartolomucci counsel for Movant Bipartisan Legal Advisory Group of the US House of Representatives. Filed by movant Bipartisan Legal Advisory Group of the U.S. House of Representatives (Bartolomucci, H) (Entered: 10/02/2012)
57 APPLICATION for attorney Rubina Ali to Appear Pro Hac Vice. (PHV FEE PAID.) filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Lodged Application of Non Resident Attorney to Appear in a Specific Case. (lt) (Entered: 11/16/2012)
59 PROOF OF SERVICE filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris, re APPLICATION for attorney Rubina Ali to Appear Pro Hac Vice. (PHV FEE PAID.) 57 served on 10/10/12. (lt) (Entered: 11/17/2012)
53 Joint STIPULATION for Protective Order filed by plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Proposed Order)(Benedetto, Matthew) (Entered: 10/17/2012)
54 PROTECTIVE ORDER re Stipulation 53 by Judge Consuelo B. Marshall. This Protective Order shall govern the production and use in the abovecaptioned action of "Protected Materials," produced or provided by any party in response to a discovery request or as a required disclosure. (Refer to attached document for details.) (lom) (Entered: 10/25/2012)
58 ORDER by Judge Consuelo B. Marshall: granting 57 Application to Appear Pro Hac Vice by Attorney Rubina Ali on behalf of Plaintiffs, designating Randall R. Lee as local counsel. (lt) (Entered: 11/16/2012)
55 NOTICE OF MOTION AND MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. Motion set for hearing on 12/10/2012 at 10:00 AM before Judge

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 10 of 17

11/06/2012 11/19/2012
11/21/2012 11/26/2012 12/04/2012 12/07/2012
12/07/2012 12/10/2012 12/11/2012

Consuelo B. Marshall. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Entered: 11/06/2012)
56 MEMORANDUM in Support of MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich 55 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Kircher, Kerry) (Entered: 11/06/2012)
60 MEMORANDUM in Opposition to MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich 55 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A (Korb CV), # 2 Exhibit B (Korb Bibliography), # 3 Exhibit C (Korb Studies Cited), # 4 Exhibit D (Korb Deposition Excerpts), # 5 Exhibit E (Laich CV), # 6 Exhibit F (Laich Deposition Excerpts))(Romero, Adam) (Entered: 11/19/2012)
61 EXPARTE APPLICATION for Extension of Time to File Reply in Support of Its Motion to Exclude Expert Testimony of Dr. Lawrence J. Korb filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Proposed Order Proposed Order Extending Time)(Bartolomucci, H) (Entered: 11/21/2012)
62 REPLY in support of MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich MOTION IN LIMINE to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich 55 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Bartolomucci, H) (Entered: 11/26/2012)
63 EX PARTE APPLICATION for Leave to Appear by Telephone for December 10, 2012 Hearing on Motion to Exclude filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Entered: 12/04/2012)
64 IN CHAMBER MINUTE ORDER/OFF THE RECORD by Judge Consuelo B. Marshall. The previously scheduled Motion to Exclude the Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich (doc #55)scheduled for hearing on 12/10/2012 at 11:00 A.M. has been rescheduled. The Motion will now be set for hearing on December 14, 2012 at 9:00 a.m. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cs) TEXT ONLY ENTRY (Entered: 12/07/2012)
65 ORDER by Judge Consuelo B. Marshall: denying 63 Ex Parte Application of Intervenor−Defendant for Counsel to Appear by Telephone. (lom) Modified on 12/11/2012 (lom). (Vacating Order, see document no. 67 .) (Entered: 12/10/2012)
66 SCHEDULING NOTICE IN CHAMBER MINUTE ORDER/OFF THE RECORD. The Motion To Exclude Hearing scheduled to be heard on Friday, December 14, 2012 at 9:00 A.M. will be RELOCATED and heard in COURTROOM #4 (located next door to Judge Marshall's regular courtroom #2) at 9:00 a.m. by Judge Consuelo B. Marshall. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cs) TEXT ONLY ENTRY (Entered: 12/10/2012)
67 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall. The matter before the hearing on Intervener−Defendant Bipartisan Legal Advisory Group's ("BLAG") Motion to Exclude the Expert Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich currently scheduled for December 14, 2012 at 9:00 a.m. 55 , 64 , 66 . Multiple parties have requested either formally or informally to appear at this hearing telephonically. The Court formally denied BLAG's request to appear telephonically on December 7, 2012. The Court hereby ORDERS that any party in this case may make a telephonic appearance at this hearing on December 14, 2012 and need not appear in person. The Court VACATES its December 7, 2012 order denying BLAG's request to appear telephonically. Judge Marshall's temporary courtroom deputy clerk will arrange the call−in logistics with the parties prior to December 14, 2012. (lom) (Entered: 12/11/2012)

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 11 of 17

12/13/2012 12/13/2012 12/13/2012
12/14/2012 12/14/2012 01/07/2013 01/14/2013 01/17/2013 01/22/2013 01/25/2013 01/28/2013

68 NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. Motion set for hearing on 2/25/2013 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Memorandum Points and Authorities in Support of Motion to Dismiss for Lack of Jurisdiction)(Lin, Jean) (Entered: 12/13/2012)
69 NOTICE OF MOTION AND MOTION to Stay Case pending Ruling of the United States Supreme Court in United States v. Windsor, No. 12−307 filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. Motion set for hearing on 1/28/2013 at 10:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Kircher, Kerry) (Entered: 12/13/2012)
70 SCHEDULING NOTICE IN CHAMBER MINUTE ORDER/OFF THE RECORD by Judge Consuelo B. Marshall. Here is the "call−in" information the bridge line for the hearing Friday, December 14, 2012; Time: 9:00 a.m.− 11:00 a.m. PST (The lines will open 15 minutes before & 15 minutes after.) Number of lines: 30 Please dial the telephone number below during the reservation date and time. Call−in Number: 213−894−0800; Please follow the prompts and enter the codes: Meeting ID: 7002#; User Password: 6620#. If you have any problems connecting to this call, please contact our Space & Facilities Help Desk at 213.894.1400.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cs) TEXT ONLY ENTRY (Entered: 12/13/2012)
71 RESPONSE IN SUPPORT of MOTION to Stay Case pending Ruling of the United States Supreme Court in United States v. Windsor, No. 12−307 69 filed by Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (Lin, Jean) (Entered: 12/14/2012)
72 MINUTES of Motion to Exclude the Testimony of Dr. Lawrence J. Korb and Maj. Gen (ret.) Dennis Laich 55 Hearing held before Judge Consuelo B. Marshall. Court and counsel discuss the motion. The Court denies the motion. The Courts order will follow. The Court orders the parties to meet and confer. The parties remain on the line, the Court and staff leave to allow the parties to confer. Court Reporter: Anne Kielwasser. (lom) (Entered: 12/28/2012)
73 MEMORANDUM in Opposition to MOTION to Stay Case pending Ruling of the United States Supreme Court in United States v. Windsor, No. 12−307 69 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Declaration (Declaration of Tracey Cooper−Harris)(Romero, Adam) (Entered: 01/07/2013)
74 REPLY in Support of MOTION to Stay Case pending Ruling of the United States Supreme Court in United States v. Windsor, No. 12−307 69 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Kircher, Kerry) (Entered: 01/14/2013)
75 EX PARTE APPLICATION to Waive Oral Argument or, in the Alternative, EX PARTE APPLICATION for Order for Leave to Appear by Telephone at January 28, 2013 Hearing on Motion to Stay filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Entered: 01/17/2013)
76 RESPONSE IN SUPPORT of MOTION to Dismiss for Lack of Jurisdiction 68 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Kircher, Kerry) (Entered: 01/22/2013)
77 ORDER by Judge Consuelo B. Marshall: granting 75 Ex Parte Application to waive oral argument. Accordingly, this Motion of Intervenor−Defendant to Stay Proceedings 69 is taken UNDER SUBMISSION and the hearing is vacated. No appearances are necessary. (lom) (Entered: 01/25/2013)
78 NOTICE Of Supplemental Authority Relevant To Intervenor−Defendant's Motion To Stay (ECF 69) And Plaintiffs' Opposition Thereto (ECF 73) filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A)(Romero, Adam) (Entered: 01/28/2013)

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 12 of 17

01/28/2013 01/31/2013 02/08/2013 02/11/2013 02/15/2013 02/15/2013
02/20/2013 02/20/2013 02/20/2013 02/20/2013 02/20/2013 02/21/2013
02/22/2013 02/25/2013

79 MEMORANDUM in Opposition to MOTION to Dismiss for Lack of Jurisdiction 68 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 01/28/2013)
80 NOTICE Response to Plaintiffs' Notice of Supplemental Authority (ECF No. 78) filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Kircher, Kerry) (Entered: 01/31/2013)
82 ORDER by Judge Consuelo B. Marshall DENYING Intervenor−Defendant's Motion to Exclude the Expert Testimony of Dr. Lawrence J Korb and Maj Gen (Ret) Dennis Laich 55 . (lom) (Entered: 02/12/2013)
81 REPLY in support of MOTION to Dismiss for Lack of Jurisdiction 68 filed by Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (Lin, Jean) (Entered: 02/11/2013)
83 EX PARTE APPLICATION for Order for Leave to Appear by Telephone for February 25, 2013 Hearing on Motion to Dismiss filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Entered: 02/15/2013)
88 Notice of Electronic Filing re Declaration (Motion related), 87 , EX PARTE APPLICATION for Order for Leave to Appear by Telephone for February 25, 2013 Hearing on Motion to Dismiss 83 , Memorandum in Support of Motion 84 , Statement (Motion related) 86 , MOTION for Summary Judgment 85 e−mailed to cdugan@bancroftpllc.com bounced due to 5.1.0 − Unknown address error 550−'5.7.1 <cdugan@bancroftpllc.com>: Relay access denied.'. The primary e−mail address associated with the attorney record has been deleted. Pursuant to the General Order and Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(tyw) TEXT ONLY ENTRY (Entered: 02/20/2013)
84 MEMORANDUM in Support of Motion for Summary Judgment. filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Benedetto, Matthew) (Entered: 02/20/2013)
85 NOTICE OF MOTION AND MOTION for Summary Judgment filed by Plaintiff Maggie Cooper−Harris, Tracey Cooper−Harris. Motion set for hearing on 4/1/2013 at 11:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Proposed Order)(Benedetto, Matthew) (Entered: 02/20/2013)
86 STATEMENT of Uncontroverted Facts and Conclusions of Law in Support of MOTION for Summary Judgment 85 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Benedetto, Matthew) (Entered: 02/20/2013)
87 DECLARATION of Christine P. Sun in Support of MOTION for Summary Judgment 85 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (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)(Benedetto, Matthew) (Entered: 02/20/2013)
89 MINUTES (IN CHAMBERS) by Judge Consuelo B. Marshall: granting 83 Unopposed Ex Parte Application of Intervenor−Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives for permission of counsel to appear by telephone for hearing on the motions set on February 25, 2013. (lom) (Entered: 02/20/2013)
90 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall. On the Court's own motion, the following Motions are hereby set for oral argument on Monday, February 25, 2013 at 2:00 p.m.: (1) Motion of Federal Defendants to Dismiss for Lack of Subject Matter Jurisdiction 68 ; and (2) Motion of Intervenor−Defendant Bipartisan Legal Advisory Group of the House of Representatives to Stay Case Pending Ruling of the United States Supreme 69 . (lom) (Entered: 02/21/2013)
91 NOTICE of Supplemental Authority filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A)(Romero, Adam) (Entered: 02/22/2013)
92 MINUTES OF Motion of Federal Defendants to Dismiss 68 ; Motion of Intervenor−Defendant to Stay Case []69] held before Judge Consuelo B. Marshall. The

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 13 of 17

02/27/2013 02/27/2013 03/01/2013 03/04/2013 03/04/2013 03/04/2013 03/05/2013
03/05/2013
03/06/2013 03/12/2013 03/14/2013

Motion of the Federal Defendants to Dismiss is denied, formal order to follow. The Motion to Stay is denied. Court Reporter: Phyllis Preston. (lom) (Entered: 02/25/2013)
93 TRANSCRIPT ORDER as to Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives Court Reporter. Transcript portion requested: Other: February 25, 2013 Hearing on Motions. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Walker, Mary Beth) (Entered: 02/27/2013)
94 NOTICE OF MOTION AND MOTION of Conor B. Dugan to Withdraw as Attorney filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Proposed Order Proposed Order)(Dugan, Conor) (Entered: 02/27/2013)
95 Joint STIPULATION for Order Regarding Summary Judgment Briefing filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Proposed Order)(Kircher, Kerry) (Entered: 03/01/2013)
96 NOTICE OF MOTION AND MOTION for Summary Judgment filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Motion set for hearing on 5/6/2013 at 11:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Proposed Order)(Romero, Adam) (Entered: 03/04/2013)
97 MEMORANDUM in Support of MOTION for Summary Judgment 96 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 03/04/2013)
98 STATEMENT of of Uncontroverted Facts in Support of MOTION for Summary Judgment 96 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 03/04/2013)
99 DECLARATION of Christine P. Sun in Support of MOTION for Summary Judgment 96 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A − Chauncey Report, # 2 Exhibit B − Maggie Cooper−Harris Declaration, # 3 Exhibit C − Tracey Cooper−Harris Declaration, # 4 Exhibit D − Cott Report, # 5 Exhibit E − Korb Report, # 6 Exhibit F − Laich Report, # 7 Exhibit G − Lamb Report, # 8 Exhibit H − Peplau Report, # 9 Exhibit I − Segura Report)(Romero, Adam) (Entered: 03/05/2013)
100 ORDER REGARDING SUMMARY JUDGMENT BRIEFING by Judge Consuelo B. Marshall. The Court rules as follows: 1. Plaintiffs' Notice of Motion and Motion for Summary Judgment and related documents, 84 , 85 , 86 , 87 are deemed withdrawn. 2. On March 4, 2013, Plaintiffs filed with the Court a new summary judgment motion and supporting papers that address Intervenor−Defendant's objections 96 , 97 , 98 , 99 . However, Plaintiffs did not include purported conclusions of law within that statement, in violation of Local Rule 56−1. Plaintiffs are granted leave to amend this statement and can file the amended statement no later than March 12, 2013. 3. Not later than March 18, 2013, Intervenor−Defendant will file its opposition to Plaintiffs' new summary judgment motion and will file its cross−motion for summary judgment. Argument on Plaintiffs' new motion for summary judgment and Intervenor−Defendant's cross−motion for summary judgment will be set for May 6, 2013, at 11:00 am. (See attached document for other motion−related deadlines.) (lom) (Entered: 03/06/2013)
101 ORDER by Judge Consuelo B. Marshall: granting 94 Conor B. Dugan's motion to withdraw as an attorney in this case. (lom) (Entered: 03/06/2013)
102 STATEMENT of Uncontroverted Facts and Conclusions of Law in Support of MOTION for Summary Judgment 96 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 03/12/2013)
103 TRANSCRIPT for proceedings held on 2/25/13. Court Reporter: Phyllis Preston, email: stenojag@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 4/4/2013. Redacted

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 14 of 17

03/14/2013 03/18/2013 03/18/2013 03/18/2013 03/18/2013 04/02/2013 04/03/2013 04/04/2013
04/04/2013
04/08/2013

Transcript Deadline set for 4/14/2013. Release of Transcript Restriction set for 6/12/2013. (Preston, Phyllis) (Entered: 03/14/2013)
104 NOTICE OF FILING TRANSCRIPT filed for proceedings 2/25/13 re Transcript 103 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Preston, Phyllis) TEXT ONLY ENTRY (Entered: 03/14/2013)
105 NOTICE OF MOTION AND Cross MOTION for Summary Judgment filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. Motion set for hearing on 5/6/2013 at 11:00 AM before Judge Consuelo B. Marshall. (Attachments: # 1 Proposed Order, # 2 Memorandum)(Kircher, Kerry) (Entered: 03/18/2013)
106 STATEMENT of Uncontroverted Facts and Conclusions of Law Pursuant to Local Rule 56.1 Cross MOTION for Summary Judgment 105 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Kircher, Kerry) (Entered: 03/18/2013)
107 DECLARATION of Intervenor−Defendant In Support Of Cross MOTION for Summary Judgment 105 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E−1, # 6 Exhibit E−2, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Kircher, Kerry) (Entered: 03/18/2013)
108 Opposition re: MOTION for Summary Judgment 96 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Statement of Genuine Disputes of Material Fact Pursuant to Local Rule 56.2)(Kircher, Kerry) (Entered: 03/18/2013)
109 EX PARTE APPLICATION to Exceed Page Limitation Response to Plaintiffs' Motion for Summary Judgment and Intervenor−Defendant's Cross Motion for Summary Judgment filed by defendants Eric H Holder, Jr, Eric K Shinseki, United States of America.(Lin, Jean) (Entered: 04/02/2013)
110 RESPONSE filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives to EX PARTE APPLICATION to Exceed Page Limitation Response to Plaintiffs' Motion for Summary Judgment and Intervenor−Defendant's Cross Motion for Summary Judgment 109 (Kircher, Kerry) (Entered: 04/03/2013)
111 MINUTES (IN CHAMBERS) by Judge Consuelo B. Marshall: granting 109 Federal Defendants' Ex Parte Application for Leave to File Excess Pages. Defendants' Opposition to both Plaintiffs' motion for summary judgment and BLAG's cross−motion of summary judgment. The Opposition may be no more than thirty−five (35) pages in length. The Court further orders that only Plaintiffs' and BLAG's Response to Federal Defendants' Opposition are enlarged by five pages, and each response may be no more than fifteen pages (15) in length. All other responsive pleadings shall meet the page limitations consistent with the Local Rules and this Court's Standing Order. (lom) (Entered: 04/04/2013)
112 MINUTE ORDER IN CHAMBERS RE ORDER REQUIRING CONSOLIDATED STATEMENT by Judge Consuelo B. Marshall. To assist the Court, the Court Orders all parties to meet and confer and serve on the Court a consolidated and concise document: A. Listing all uncontroverted facts and supporting evidence as alleged by Plaintiffs and Intervenor−Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives ("BLAG") to which all parties agree, clearly labeling which party alleges that fact, and; B. Responding to each moving partys alleged uncontroverted fact for which there is a genuine dispute, with citations to supporting evidence. Each response should clearly label which party alleges that fact and which party disputes it, and; C. Listing all conclusions of law as alleged by Plaintiffs and BLAG to which all parties agree, and clearly labeling which party alleges that conclusion of law, and; D. Listing each alleged conclusion of law for which there is a dispute, and clearly labeling which party alleges that conclusion of law and which party disputes it. (lom) (Entered: 04/04/2013)
113 STATEMENT of Federal Defendants in Response to MOTION for Summary Judgment 96 , Cross MOTION for Summary Judgment 105 filed by Defendants Eric H

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 15 of 17

04/08/2013 04/08/2013 04/08/2013 04/11/2013 04/11/2013 04/12/2013 04/12/2013 04/17/2013 04/17/2013
04/18/2013 04/22/2013 04/22/2013 04/25/2013

Holder, Jr, Eric K Shinseki, United States of America. (Lin, Jean) (Entered: 04/08/2013)
114 REPLY in support of MOTION for Summary Judgment 96 and OPPOSITION to Cross MOTION for Summary Judgment 105 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 04/08/2013)
115 STATEMENT of Plaintiffs in Response to BLAG's Statement of Uncontroverted Facts and Conclusions of Law re: Cross MOTION for Summary Judgment 105 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 04/08/2013)
116 DECLARATION of Adam P. Romero in support of MOTION for Summary Judgment 96 and in Opposition to Cross MOTION for Summary Judgment 105 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Romero, Adam) (Entered: 04/08/2013)
117 EX PARTE APPLICATION for Order for Clarification of this Court's Minute Order of April 4, 2013 Regarding Consolidated Statement filed by Federal Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (Attachments: # 1 Proposed Order)(Lin, Jean) (Entered: 04/11/2013)
118 NOTICE filed by Federal Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. Notice of Errata and Corrected Version of Fed Defs' Brief Filed on April 8, 3013 (ECF No. 113) (Attachments: # 1 Corrected Version of Fed Defs' Brief Filed On April 8, 2013 (ECF No. 113))(Lin, Jean) (Entered: 04/11/2013)
119 JOINT STATEMENT of Uncontroverted and Disputed Facts and Disputed Conclusions of Law re: MOTION for Summary Judgment 96 , Cross MOTION for Summary Judgment 105 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives, Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Romero, Adam) (Entered: 04/12/2013)
120 ORDER by Judge Consuelo B. Marshall Clarifying that the Use of "Parties" in this Court's April 4, 2013 Order Refers to Plaintiffs, BLAG & Federal Defendants 112 (jl) (Entered: 04/12/2013)
121 NOTICE OF FILING SUPPLEMENTAL DECLARATION OF PLAINTIFF TRACEY COOPER−HARRIS re MOTION for Summary Judgment 96 filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A (Supplemental Declaration of Tracey Cooper−Harris))(Romero, Adam) (Entered: 04/17/2013)
122 EX PARTE APPLICATION for Leave to File Table Setting Forth Federal Defendants' Position With Respect to Plaintiffs' and BLAG's Joint Consolidated Statement of Uncontroverted and Disputed Facts and Disputed Conclusions of Law (ECF No. 119) filed by Federal Defendants Eric H Holder, Jr, Eric K Shinseki, United States of America. (Attachments: # 1 Federal Defendants' Table−Part 1, # 2 Federal Defendants' Table−Part 2, # 3 Proposed Order)(Lin, Jean) (Entered: 04/17/2013)
123 RESPONSE filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives to EX PARTE APPLICATION for Leave to File Table Setting Forth Federal Defendants' Position With Respect to Plaintiffs' and BLAG's Joint Consolidated Statement of Uncontroverted and Disputed Facts and Disputed Conclusions of Law (ECF No. 11 122 (Kircher, Kerry) (Entered: 04/18/2013)
124 REPLY in Support of Cross MOTION for Summary Judgment 105 filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Kircher, Kerry) (Entered: 04/22/2013)
125 REPLY Cross MOTION for Summary Judgment 105 to Federal Defendants' Response to Cross Motions filed by Movant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kircher, Kerry) (Entered: 04/22/2013)
126 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall: MOTION for Summary Judgment 96 , Cross MOTION for Summary Judgment 105 are continued to

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 16 of 17

04/30/2013
05/08/2013 05/14/2013 05/14/2013 05/17/2013 05/17/2013
06/14/2013 06/17/2013 07/08/2013 07/22/2013 07/23/2013
07/24/2013

May 13, 2013 at 2:30 P.M. for oral arguments. (jl) (Entered: 04/25/2013)
127 MINUTES (IN CHAMBERS): ORDER DENYING EX PARTE APPLICATION FOR LEAVE TO FILE TABLE 122 by Judge Consuelo B. Marshall. On April 4, 2013, the Court issued a Minute Order 112 , that required the filing of a consolidated statement regarding uncontroverted facts and conclusions of law and disputes thereto from all parties. In its April 12, 2013 Minute Order, 120 , the Court inadvertently defined "parties" to include Federal Defendants. Federal Defendants are not required to file a consolidated statement regarding their position as to each uncontroverted fact and conclusion of law since they are not a moving party. The Ex Parte Motion is DENIED. (lom) (Entered: 04/30/2013)
128 MINUTE ORDER IN CHAMBERS by Judge Consuelo B. Marshall: MOTION for Summary Judgment 96 and Cross MOTION for Summary Judgment 105 are continued to May 17, 2013 at 8:00 A.M. (jl) (Entered: 05/08/2013)
129 NOTICE OF MOTION AND MOTION of Christine P. Sun to Withdraw as Attorney filed by plaintiff Maggie Cooper−Harris, Tracey Cooper−Harris. (Short, Caren) (Entered: 05/14/2013)
130 NOTICE OF MOTION AND Corrected MOTION of Christine P. Sun to Withdraw as Attorney filed by plaintiff Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Proposed Order)(Short, Caren) (Entered: 05/14/2013)
131 MINUTES OF Plaintiff's Motion for Summary Judgment 96 ; Intervenor−Defendant's Cross Motion for Summary Judgment 105 hearing held before Judge Consuelo B. Marshall. Plaintiff's Motion for Summary Judgment and Intervenor−Defendant's Cross Motion for Summary Judgment are submitted without further oral arguments. Court Reporter: Anne Kielwasser. (lom) (Entered: 05/21/2013)
132 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION of Christine P. Sun to Withdraw as Attorney 129 , Corrected MOTION of Christine P. Sun to Withdraw as Attorney 130 . The following error(s) was found: Incorrect event selected. The correct event is: 130 − Amendment (Motion related). To find the correct event, see Civil Events; Motions and Related Filings; for Responses/Replies/Other Motion Related Documents; event: Amendment (Motion related). Also, hearing information is missing, incorrect, or not timely. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lom) (Entered: 05/28/2013)
133 NOTICE OF MOTION AND MOTION of Nicholas J. Nelson to Withdraw as Attorney filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Nelson, Nicholas) (Entered: 06/14/2013)
134 MINUTES (IN CHAMBERS) by Judge Consuelo B. Marshall: granting 129 Christine P. Sun's Motion to Withdraw as Counsel. (lom) (Entered: 06/17/2013)
135 NOTICE of Supplemental Authority re Cross Motions for Summary Judgment filed by Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Romero, Adam) (Entered: 07/08/2013)
136 EX PARTE APPLICATION to Withdraw as Intervenor−Defendant filed by Intervenor−Defendant Bipartisan Legal Advisory Group of the US House of Representatives. (Attachments: # 1 Declaration of Kerry W. Kircher, # 2 Proposed Order)(Kircher, Kerry) (Entered: 07/22/2013)
137 ORDER by Judge Consuelo B. Marshall: It is ORDERED that the Unopposed Ex Parte Application of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Withdraw as Intervenor−Defendant 136 is GRANTED. It is further ORDERED that Intervenor−Defendant's Cross−Motion for Summary Judgment 105 and its Opposition to Plaintiffs' Motion for Summary Judgment 108 are deemed withdrawn. (gk) (Entered: 07/24/2013)
138 MINUTES (IN CHAMBERS) ORDER AND NOTICE TO ALL PARTIES by Judge Consuelo B. Marshall: Before the Court is Plaintiff's corrected Motion for withdrawal of counsel Christine P. Sun 130 and Motion of Nicholas J. Nelson, counsel for

Case: 2:12-cv-00887-CBM-AJW As of: 10/25/2015 06:26 PM PDT 17 of 17

08/16/2013 08/29/2013 08/29/2013 03/05/2014 03/06/2014 03/12/2014
03/13/2014

Intervenor−Defendant, to withdraw as counsel 133 . The Court hereby GRANTS both of these motions. Court Reporter: N/A. (gk) (Entered: 07/24/2013)
139 Notice of Appearance or Withdrawal of Counsel: for attorney Matthew D Benedetto counsel for Plaintiffs Maggie Cooper−Harris, Tracey Cooper−Harris. Eugene Marder is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by plaintiff Tracey Cooper−Harris. (Attachments: # 1 Affidavit of Service)(Benedetto, Matthew) (Entered: 08/16/2013)
140 ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT by Judge Consuelo B. Marshall: The Court GRANTS Plaintiffs' Motion for Summary Judgment 96 . The Court permanently enjoins Defendants from relying on 38 U.S.C. Sections 101(3), (31) or Section 3 of 1 U.S.C. Section 7 to deny recognition of Plaintiffs' marriage recognized by the state of California. (gk) (Entered: 08/29/2013)
141 ORDER DENYING MOTION TO DISMISS by Judge Consuelo B. Marshall: The Court DENIES Defendant United States of America's Motion to Dismiss 68 pursuant to Fed. R. Civ. P. 12(b)(1). (gk) (Entered: 08/29/2013)
142 NOTICE OF LODGING filed by All Parties re Order on Motion for Summary Judgment, 140 , Order 141 (Attachments: # 1 Proposed Judgment)(Romero, Adam) (Entered: 03/05/2014)
143 Notice of Appearance or Withdrawal of Counsel: for attorney William B Pittard, IV counsel for Intervenor Defendant Bipartisan Legal Advisory Group of the US House of Representatives. Christine M. Davenport is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Intervenor−Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Pittard, William) (Entered: 03/06/2014)
144 JUDGMENT by Judge Consuelo B. Marshall: It is ORDERED AND ADJUDGED that: (1) Section 3 of DOMA, 1 U.S.C. Section 7, is unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment as applied to Plaintiffs; (2) Section 101(3) of Title 38 of the United States Code, 38 U.S.C. Section 101(3), is unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment to the extent that this provision requires a "surviving spouse" to be a person of the opposite sex; (3) Section 101(31) of Title 38 of the United States Code, 38 U.S.C. Section 101(31), is unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment to the extent that this provision requires a "spouse" to be a person of the opposite sex; (4) Defendants are permanently enjoined from applying Section 3 of DOMA to deny recognition of Plaintiffs' marriage recognized by the State of California; and (5) Defendants are permanently enjoined from applying section 101(3) of Title 38, or Section 101(31) of Title 38, to the extent that these provisions require a "spouse" or a "surviving spouse" to be a person of the opposite sex, to deny recognition of Plaintiffs' marriage recognized by the State of California. (MD JS−6, Case Terminated). (gk) (Entered: 03/12/2014)
145 Notice of Electronic Filing re Judgment 144 e−mailed to Attorney Christine P Sun bounced due to invalid email. Primary e−mail address corrected. Notice of Electronic Filing resent addressed to csun@aclu.org. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e−mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 03/13/2014)