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JOSEPH J. LEVIN, JR. (Pro Hac Vice)[email protected]
CHRISTINE P. SUN (SBN 218701)[email protected] E. SHORT (Pro Hac Vice)[email protected]
SOUTHERN POVERTY LAW CENTER400 Washington AvenueMontgomery, AL 36104Telephone: (334) 956-8200Facsimile: (334) 956-8481
(Caption Continued on Next Page)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
TRACEY COOPER-HARRIS and )MAGGIE COOPER-HARRIS, )
)Plaintiffs, )
)vs. )
)UNITED STATES OF AMERICA; )ERIC H. HOLDER, JR., in his official )capacity as Attorney General; and )ERIC K. SHINSEKI, in his official )capacity as Secretary of Veterans )Affairs, )
)Defendants, )
)BIPARTISAN LEGAL ADVISORY )GROUP OF THE U.S. HOUSE )
OF REPRESENTATIVES, ))
Intervenor-Defendant. )
No. 2:12-CV-887-CBM-AJW
PLAINTIFFS MEMORANDUM
OF LAW IN OPPOSITION TO
INTERVENOR-DEFENDANTS
SECOND MOTION TO STAY
Hearing: January 28, 2013Time: 10:00 a.m.Hon. Consuelo B. Marshall
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Randall R. Lee (SBN 152672)[email protected] Benedetto (SBN 252379)[email protected] CUTLER PICKERING HALE AND DORR LLP
350 South Grand Avenue, Suite 2100Los Angeles, CA 90071Telephone: (213) 443-5300Facsimile: (213) 443-5400
Adam P. Romero (Pro Hac Vice)[email protected] Ali (Pro Hac Vice)[email protected] CUTLER PICKERING HALE AND DORR LLP7 World Trade CenterNew York, NY 10007Telephone: (212) 230-8800
Facsimile: (212) 230-8888
Eugene Marder (SBN 275762)[email protected] CUTLER PICKERING HALE AND DORR LLP950 Page Mill RoadPalo Alto, California 94304Telephone: (650) 858-6000Facsimile: (650) 858-6100
Attorneys for Plaintiffs
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TABLE OF CONTENTS
Pag
I. INTRODUCTION ............................................................................................
II. BACKGROUND ..............................................................................................
A. Factual History .......................................................................................
B. Procedural History .................................................................................
C. Plaintiffs Current Financial Status and Traceys MedicalCondition ................................................................................................
1. Plaintiffs' Financial Status
2. Tracey's Medical Condition
III. ARGUMENT....................................................................................................
A. Legal Standard .......................................................................................
B. BLAG And Federal Defendants Have Failed To Identify A SingleHardship or Inequity In Being Required To Go Forward, Whereas
The Potential Harm Of A Stay To Plaintiffs Is Significant ...................
1. BLAG And Federal Defendants Have Failed To Identify A SingHardship Or Inequity In Being Required To Go Forward
2. WindsorDoes Not Concern Title 38 And May Not ResolvePlaintiffs DOMA Claim
3. The Potential Harm To Tracey And Maggie Cooper-Harris FromStay Outweighs Any Burden To BLAG or Federal Defendants
IV. CONCLUSION ................................................................................................
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TABLE OF AUTHORITIES
Pag
Cases
Abassi v. BAE Systems Information, No. 10-CV-1745, 2010 WL 4443340 (S.D. CaNov. 1, 2010) ...........................................................................................................
ASUSTek Computer Inc. v. Ricoh Co., No. C 07-01942, 2007 WL 4190689 (N.D. CNov. 21, 2007) ....................................................................................................... 8
CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962) .....................................................
Commonwealth of Massachusetts v. U.S. Dept of Health & Human Servs & Gill vOffice of Pers. Mgmt., 682 F.3d 1 (1st Cir. 2012)...................................................
Dairy Am., Inc. v. New York Marine & Gen. Ins. Co., No. 07-CV-0537, 2009 WL5218037 (E.D. Cal. Dec. 29, 2009) .........................................................................
Dependable Highway Exp. Inc. v. Navigators Ins. Co., 498 F.3d 1069 (9th Cir. 200............................................................................................................................... 9
Dragovich v. U.S. Dept of the Treasury, 872 F. Supp. 2d 944 (N.D. Cal. 2012) .....
Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. July 8, 2012) .............
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .........
Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-16461 & 12-16628 (9th Cir.) ..... 1,
Hollingsworth v. Perry, No. 12-144 (S. Ct.) .............................................................
Hospital of Barstow, Inc. v. Sebelius, No. CV 11-10638, 2012 WL 893784 (C.D. CMar. 13, 2012) .........................................................................................................
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)....................................................
Landis v. North American Co., 299 U.S. 248 (1936) ............................................pas
Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857 (9th Cir. 1979) ...........
Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ..................................... 8, 9
Lopez v. Am. Express Bank, FSB, No. 09-cv-07335, 2010 WL 3637755 (C.D. Cal.Sept. 17, 2010) .........................................................................................................
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Murphy v. Target Corp., No. 09-CV-1436, 2010 WL 5101075 (S.D. Cal. Dec. 9,2010) ........................................................................................................................
Pedersen v. Office of Pers. Mgmt., No. 10-cv-1750, F. Supp. 2d , 2012 WL3113883 (D. Conn. July 31, 2012) ..........................................................................
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ..........................................................
United States v. Windsor, No. 12-63 (S. Ct.) .........................................................pas
United States v. Windsor, 699 F.3d 169 (2d Cir. 2012) .............................................
Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc) ..
Veterans for Common Sense v. Shinseki, No. 12-196 (S. Ct.) ....................................
Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983)........ 8
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) ..............................
Yong v. INS, 208 F.3d 1116, 1117-19 (9th Cir. 2000) ................................................
Statutes
1 U.S.C. 7 ("Defense of Marriage Act" or "DOMA") ........................................pas
38 U.S.C. 101(3) & (31) ("Title 38") ................................................................pas
Other Authorities
Linda Greenhouse, Standing and Delivering,N.Y. Times (Dec. 12, 2012) ............
Supreme Court Order List Dated Dec. 7, 2012 ..........................................................
Supreme Court Order List Dated Dec. 11, 2012 ........................................................
Supreme Court Order List Dated Jan 7, 2013 ............................................................
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I. INTRODUCTIONThis action seeks to vindicate the constitutional rights of a decorated Army
veteran, Tracey Cooper- Harris, and her same-sex spouse, Maggie Cooper-Harris.
Tracey served in the Army for twelve years and is currently suffering from multipl
sclerosis, which the Department of Veterans Affairs has determined is connected to
her military service. Because Tracey and Maggies lawful marriage is not recogniz
by the federal government pursuant to two statutes, 38 U.S.C. 101(3) & (31)
(Title 38) and Section 3 of 1 U.S.C. 7 (Defense of Marriage Act or DOMA
Tracey and Maggie are being denied dependency and other benefits routinely recei
by similarly-situated veterans with opposite-sex spouses. The complaint was filednearly a year ago, on February 1, 2012, and Intervenor-Defendant Bipartisan Legal
Advisory Group of the U.S. House of Representatives (BLAG) has not yet answe
or moved to dismiss it.
Instead, on May 29, 2012, BLAG moved to stay the case pending resolution
the United States Court of Appeals for the Ninth Circuit of expedited appeals in
Golinski v. U.S. Office of Personnel Management, which concerns the
constitutionality of Section 3 of DOMA and which BLAG argued would likely con
this Courts analysis of Plaintiffs constitutional claims. Plaintiffs opposed the mo
because BLAG could not identify any harm it might face in moving forward. By
contrast, the on-going denial of benefits is a significant hardship for Tracey and
Maggie because their monthly income barely covers their monthly expenses, which
turn may adversely affect Traceys medical conditions, including her service-
connected multiple sclerosis. The Court denied the motion to stay on August 3, 20
(ECF No. 50.)
A mere four months later, BLAG filed a second motion to stay that rests on
essentially the same grounds as its first motion that a higher court may issue a
decision that impacts this Courts analysis of Plaintiffs claims. (ECF No. 69.)
Specifically, BLAG (joined by Federal Defendants) argues that a stay is warranted
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because the United States Supreme Court granted certiorari in United States v.
Windsor, which presents the question of the constitutionality of Section 3 of DOMA
BLAGs second motion to stay should be denied for the same reasons as the
first. Neither BLAG nor Federal Defendants have identified any harm to them in
moving forward, except the regular burdens of defending a lawsuit (which alone ar
legally insufficient basis for a stay). In sharp contrast, requiring Tracey and Maggi
endure further delay would only serve to inflict greater injury and hardship on them
with potentially adverse consequences for Traceys health. In fact, in the short tim
since BLAGs first motion to stay, Traceys multiple sclerosis has demonstrably
progressed, meaning any stay even a relatively short one may exact serious airreversible injury on Plaintiffs. Furthermore, there is no assurance that the Suprem
Court will ultimately rule on the constitutionality of Section 3 of DOMA in Windso
indeed, when the Supreme Court granted certiorari, the Court sua sponte asked for
briefing on standing and jurisdictional issues concerning the effect of the Federal
Defendants refusal to defend the statute, raising the distinct possibility that the cas
may be resolved on grounds other than on the constitutionality of DOMA. In these
circumstances, Plaintiffs respectfully urge the Court to deny the motion to stay.
II. BACKGROUNDA. Factual History
Tracey Cooper-Harris served honorably in the United States Army for
approximately twelve years, nine in active duty, reaching the rank of Sergeant.
(Compl. 2, 20-29, ECF No. 1; Declaration of Tracey Cooper-Harris in Support o
Plaintiffs Opposition to Intervenor-Defendants First Motion to Stay 4, ECF No.
42-1 (hereinafter Tracey Cooper-Harris June Decl.).) She served both in Operati
Enduring Freedom, where she was stationed in Kyrgyzstan, and Operation Iraqi
Freedom, where she was stationed in Kuwait and sent on frequent missions into Ira
(Compl. 2, 24-27; Tracey Cooper-Harris June Decl. 4.) For Traceys
distinguished service to the military and our nation, the United States government
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awarded her with over two dozen medals and commendations. (Compl. 2, 26, 2
Tracey Cooper-Harris June Decl. 5.) She was honorably discharged in 2003.
(Compl. 2, 29; Tracey Cooper-Harris June Decl. 6.)
Tracey suffers from a number of conditions, including post-traumatic stress
disorder (PTSD) and multiple sclerosis. (Compl. 4-5; Tracey Cooper-Harris J
Decl. 7-8, 13-18.) The VA has determined that those conditions are service-
connected under 38 U.S.C. 101(16), and accordingly, Tracey receives monthly
disability compensation. (Compl. 4-5, 30, 39; Tracey Cooper-Harris June Decl.
7, 13.)
Tracey and Maggie married on November 1, 2008, pursuant to a duly issuedmarriage license from the State of California. (Compl. 3, 37; Tracey Cooper-Ha
June Decl. 3, 9-12; Declaration of Maggie Cooper-Harris in Support of Plaintiff
Opposition to Intervenor-Defendants First Motion to Stay 3, ECF No. 42-2
(hereinafter Maggie Cooper-Harris June Decl.).) In April 2011, Tracey attempte
add Maggie as her spouse for purposes of receiving additional dependency
compensation and other benefits that the VA provides to married disabled veterans
(Compl. 40; Tracey Cooper-Harris June Decl. 34.) The VA has thus far denied
Traceys claim to add Maggie as her dependent spouse on the ground that pursuant
Title 38, a veteran may only receive additional compensatory benefits for a spouse
the opposite sex. (Compl. 41-43; Tracey Cooper-Harris June Decl. 34.)
The federal governments ongoing failure to recognize Maggie as Traceys
spouse renders Tracey ineligible for additional disability compensation of
approximately $125 per month. Title 38 and Section 3 of DOMA also prevent
Maggie from being eligible to receive Disability and Indemnity Compensation
(DIC) a monthly allowance currently provided to surviving spouses of deceas
disabled veterans at $1195 per month should Tracey die from a service-connect
condition, as well as preclude Maggie from eligibility to be buried with Tracey in a
veterans cemetery. (Compl. 49-50.)
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B. Procedural History
On February 1, 2012, Tracey and Maggie filed a complaint in this Court
alleging that Title 38 (which for the purposes of determining VA benefits eligibilit
limits definitions of surviving spouse and spouse to persons of the opposite sex
facially violates the equal protection component of the Due Process Clause of the
Fifth Amendment to the United States Constitution. (Id. 62-65.) The Complain
further asserts that Section 3 of DOMA, which similarly limits the definition of
spouse for purposes of federal law to a person of the opposite sex, also violates t
right to equal protection under the Fifth Amendment as applied to Tracey and Mag
(Id. 66-69.)On February 24, 2012, the United States, Attorney General Eric Holder, and
Secretary of Veterans Affairs Eric Shinseki (hereinafter Federal Defendants)
notified the Court that the Department of Justice would not defend the
constitutionality of Title 38 or Section 3 of DOMA because they had concluded tha
the provisions were unconstitutional. (Defs. Notice to Ct., Feb. 24, 2012, ECF No
16.) The Attorney General informed Members of Congress of its decision so that
Members who wished to defend DOMA and Title 38 could do so. (Id.) On April 2
2012, BLAG filed a unopposed motion to intervene in the case. (ECF No. 17.) Th
Court granted BLAGs motion on May 22, 2012. (ECF No. 38.)
On May 29, 2012, BLAG filed a motion to stay all proceedings in this case
pending the ruling of the United States Court of Appeals for the Ninth Circuit in
Golinski v. U.S. Office of Personnel Management, Nos. 12-15388 & 12-15409,
including any ruling by that Court on any timely-filed petition for rehearing or peti
for rehearing en banc. (ECF No. 39 at 1.) In support of its motion, BLAG argued
that a ruling by the Ninth Circuit in Golinski on the merits of [DOMA] Section 3
constitutionality will significantly inform this Courts determination of the merits o
plaintiffs claims. (Id. at 3.) Plaintiffs opposed the motion because a stay could o
serve to harm them, and moving forward would not harm BLAG or Federal
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Defendants even if the Ninth Circuit ultimately decided the constitutionality of
DOMA in Golinski . (ECF No. 42.) On August 3, 2012, this Court denied the
motion. (ECF No. 50.)
On August 17, 2012, the parties filed a Joint Conference Report Pursuant to
Federal Rule of Civil Procedure 26(f). (ECF No. 51.) Thereafter, the parties
conducted discovery under a stipulated protective order entered by the Court. (EC
Nos. 53-54.) Plaintiffs served initial disclosures, responded to discovery requests
from BLAG, and served seven expert reports. Neither BLAG nor Federal Defenda
served any expert reports. BLAG deposed two of Plaintiffs experts and, thereafte
moved to exclude the reports of these two experts. (ECF No. 55.) The Court oralldenied BLAGs motion to exclude at a hearing held on December 14, 2012. (ECF
72.)
On December 13, 2012, Federal Defendants filed a motion to dismiss the
complaint, challenging the Courts subject matter jurisdiction. (ECF No. 68.)
Plaintiffs opposition is due January 22, 2013, and the motion is scheduled to be he
on February 25, 2013. Plaintiffs are also preparing their motion for summary
judgment, which they anticipate filing in January 2013.
C. Plaintiffs Current Financial Status and Traceys Medical Condit
1. Plaintiffs Financial Status
As described below, Tracey and Maggies financial situation is more difficul
and more uncertain now than at the time of their opposition to BLAGs first motion
stay. (Declaration of Tracey Cooper-Harris in Support of Plaintiffs Opposition to
Intervenor-Defendants Second Motion to Stay 5, filed Jan. 7, 2013 (hereinafter
Tracey Cooper-Harris January Decl.).) For years, the couple has struggled to mak
ends meet. (Tracey Cooper-Harris June Decl. 30; Maggie Cooper-Harris June D
9.) After returning from her deployment in the Middle East, Tracey like many
veterans struggled to find gainful employment until very recently. (Tracey
Cooper-Harris June Decl. 7, 19.) In March 2012, Tracey was able to find a job
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her local VA hospital helping veterans gain competitive employment; her salary is
approximately $2020 per month after taxes. (Id. 19.) Tracey also receives $1503
per month in disability compensation from the VA. (Tracey Cooper-Harris Januar
Decl. 14.)
In late July 2012, Maggie injured her knee and has been unable to continue h
work as a transportation electricians apprentice with the International Brotherhood
Electrical Workers (IBEW). (Id. 7-8.) Maggie receives workers compensati
but she will lose her healthcare coverage through the IBEW in April 2013. (Id.
10.) At that time, she will be eligible for Consolidated Omnibus Budget
Reconciliation Act (COBRA) coverage, which would cost between $50-99 dollafor each of the first three months that it is in place. (Id. 11.) After that, COBRA
coverage for Maggie alone would cost between $1122-1172 per month. (Id. 12.)
Because of this additional expense, Maggie will likely go without healthcare cover
beginning in July. (Id. 13.)
Tracey and Maggies combined income, which remains unstable given
Maggies injury as well as the nature of Maggies work as a union apprentice, bare
covers their monthly expenses and soon may not be enough. (Id. 5.) These
expenses presently include rent, utilities, food, gasoline, and student loan debt
payments. (Id. 6; Tracey Cooper-Harris June Decl. 23-27, 30; Maggie Cooper
Harris June Decl. 8-9; see also Compl. 32.) Consequently, the additional bene
to which Tracey and Maggie are entitled but for Title 38 and DOMA would have a
substantial and definite positive effect on Tracey and Maggies lives. (Tracey
Cooper-Harris June Decl. 30-33; Maggie Cooper-Harris June Decl. 9.) For
example, Tracey and Maggie are currently unable to afford the diet that Traceys
doctor recommends to manage her service-connected multiple sclerosis. (Tracey
Cooper-Harris June Decl. 31.) Tracey and Maggie are also unable to save for
inevitable healthcare expenses related to Traceys progressing ailment, such as an i
home healthcare worker. (Id. 32.) The additional income that would result from
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federal government recognizing Maggie as Traceys spouse would be used toward
these health-related expenses. (Id. 33.)
2. Traceys Medical Condition
As Plaintiffs explained in their opposition to BLAGs first motion to stay,
Tracey first began noticing symptoms of multiple sclerosis in December 2009. (Id
13.) She was officially diagnosed in July 2010, and the VA determined her multi
sclerosis to be service-connected in 2011. (Compl. 4-5; Tracey Cooper-Harris J
Decl. 13.) Multiple sclerosis is a chronic, often disabling disease that attacks a
persons brain and central nervous system, and for which there is no known cure.
(Compl. 4.)As a result of her multiple sclerosis, Tracey currently experiences blurry visi
sharp electrical charges in different parts of her body, tingling in her extremities, lo
of balance, and fatigue. (Tracey Cooper-Harris June Decl. 14.) Tracey is in the
early stages of the disease and is taking medication to slow its progression; howeve
multiple sclerosis eventually can affect Traceys balance such that she would requi
wheelchair to move around, and potential loss of vision in one or both eyes. (Id.
15.) As the disease progresses, Tracey may lose involuntary reflexes,
neuromuscular function, and coordination, which will make it difficult for her to ca
for herself. (Tracey Cooper-Harris June Decl. 15.) Tracey currently is doing her
best, with her wife Maggies help and support, to stay as healthy as possible and
maintain a positive attitude about her disease. (Id. 16-18; Maggie Cooper-Harri
June Decl. 10-11.)
In the past several months, certain symptoms of Traceys multiple sclerosis
have become more frequent. (Tracey Cooper-Harris January Decl. 16.) She has
experienced increased fatigue and exhaustion, increased occurrences of hand tremo
and increased occurrences of blurred vision. (Id.) Traceys neurologist at the VA
confirmed that the symptoms are related to the progression of her multiple sclerosi
(Id.)
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III. ARGUMENTA. Legal Standard
Courts have inherent power to stay proceedings where the moving party
establishes that a stay would promote the interests of the court or parties. See Land
v. North American Co., 299 U.S. 248, 254-55 (1936). The party seeking a stay m
justify it by clear and convincing circumstances outweighingpotential harm to the
party against whom it is operative. Williford v. Armstrong World Indus., Inc., 715
F.2d 124, 127 (4th Cir. 1983) (emphasis added). In determining whether to stay
proceedings at the request of one party, a court must weigh competing interests,
including the possible damage which may result from the granting of a stay, thehardship or inequity which a party may suffer in being required to go forward, and
orderly course of justice measured in terms of the simplifying or complicating of
issues, proof, and questions of law which could be expected to result from a stay.
CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citingLandis, 299 U.S. at 2
55). BLAG bears the heavy burden to justify a stay here, for [o]nly in rare
circumstances will a litigant in one cause be compelled to stand aside while a litiga
in another settles the rule of law that will define the rights of both. Lockyer v.
Mirant Corp., 398 F.3d 1098, 1109-10 (9th Cir. 2005) (quotingLandis, 299 U.S. a
255).
Furthermore, as the Ninth Circuit has cautioned, staying an action pending
resolution of independent proceedings that bear upon the case should not be grant
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. Leyva v.
Certified Grocers of California, Ltd., 593 F.2d 857, 864 (9th Cir. 1979) (emphasis
added). The Ninth Circuit has also acknowledged that a stay pending appeal is of
dubious character and may result in indefinite delay. ASUSTek Computer Inc. v.
Ricoh Co., No. C 07-01942, 2007 WL 4190689, at *3 (N.D. Cal. Nov. 21, 2007)
(citing Yong v. INS, 208 F.3d 1116, 1117-19 (9th Cir. 2000); Dependable Highway
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Exp. Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007);Lockyer, 398
F.3d at 1105)).
B. BLAG And Federal Defendants Have Failed To Identify A SingleHardship or Inequity In Being Required To Go Forward, WhereaThe Potential Harm To Plaintiffs Of A Stay Is Significant
BLAG and Federal Defendants seek to stay all proceedings in this case pend
a ruling by the Supreme Court in United States v. Windsor, which they argue will
likely inform if not control this Courts determination of the merits of Plaintiffs
claims. A stay pending resolution ofWindsoris not warranted for at least three
reasons. First, neither BLAG nor Federal Defendants have identified any hardship
them in moving forward, nor could they. Second, Windsordoes not concern Title 3a statute that preceded the passage of DOMA, and furthermore there is no assuranc
that the Supreme Court will even reach the constitutionality of Section 3 of DOMA
Third, a stay will harm Tracey and Maggie, who are having difficulty making ends
meet without the additional benefits they are being denied, and may be detrimental
Traceys health. Under these circumstances, a stay is decidedly not appropriate.
1. BLAG And Federal Defendants Have Failed To Identify ASingle Hardship Or Inequity In Being Required To Go Forwa
As the Supreme Court made clear inLandis, in order succeed on its motion t
stay proceedings, the moving party must make out a clear case of hardship or
inequity in being required to go forward, if there is even a fair possibility that the s
for which he prays will work damage to someone else. Lockyer, 398 F.3d at 110
(quotingLandis, 299 U.S. at 255). As was the case when this Court denied BLAG
first motion to stay, neither BLAG nor Federal Defendants have made any showinglet alone a clear case that it will face any hardship or inequity by moving forw
in this action.
At most, BLAG and Federal Defendants argue that they will be required to
expend resources if this action is not stayed. But the law is clear that being requir
to defend a suit, without more, does not constitute a clear case of hardship or
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inequity within the meaning ofLandis. Lockyer, 398 F.3d at 1112. What is mor
the resources BLAG and Federal Defendants would have to expend are minimal,
because discovery is complete and BLAGs single motion to exclude has been
decided. Only briefing on the parties dispositive motions remains, and this briefin
will be substantially similar, if not nearly identical, to briefs filed in other DOMA
actions in which BLAG and defendants represented by DOJ are parties. There is n
hardship to BLAG or Federal Defendants in proceeding with this action.
2. Windsor Does Not Concern Title 38 And May Not ResolvePlaintiffs DOMA Claim
BLAGs and Federal Defendants sole new argument in support of a stay is t
the Supreme Court may issue a decision in Windsorthat will inform this Courts
analysis of Plaintiffs claims. But this justification alone is entirely insufficient un
controlling case law. See Dependable Highway Exp. Inc. v. Navigators Ins. Co., 4
F.3d 1059, 1066 (9th Cir. 2007) (holdingLandis stay was inappropriate and
explaining that case management standing alone is not necessarily a sufficient
ground to stay proceedings);Lockyer, 398 F.3d at 1112 (holding Landis stay was
inappropriate where grounds other than judicial economy were offered and found t
lack merit).
The petition for certiorari in Windsor, as BLAG and Federal Defendants note
presents the question of the constitutionality of Section 3 of DOMA, stemming from
decisions invalidating the statute by the United States Court of Appeals for the Sec
Circuit and the District Court for the Southern District of New York. BLAG and
Federal Defendants, however, overstate the potential effect that a decision in Windwill have on Tracey and Maggies claims. Even assuming the Supreme Court deci
the constitutionality of Section 3 of DOMA, that decision would not be dispositive
Plaintiffs challenge to Title 38. Title 38 will remain intact and will continue to de
Tracey and Maggie recognition of their marriage until their claims can be addresse
this Court. The definitions of spouse and surviving spouse in Title 38, which
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specifically concern the benefits provided to veterans, will not necessarily be affec
by a decision on the constitutionality of DOMA because BLAG could assert
justifications or rationales for Title 38 distinct from those asserted in support of
DOMA.
Furthermore, there is no assurance that the Supreme Court will even reach th
issue of DOMAs constitutionality in Windsor. Indeed, when the Supreme Court
granted certiorari, the Court sua sponte raised questions about its own jurisdiction
BLAGs standing:
In addition to the question presented by the petition, theparties are directed to brief and argue the following
questions: Whether the Executive Branchs agreementwith the court below that DOMA is unconstitutionaldeprives this Court of jurisdiction to decide this case; andwhether the Bipartisan Legal Advisory Group of theUnited States House of Representatives has Article IIIstanding in this case.
Supreme Court Order List Dated Dec. 7, 2012, available at
http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf. Recognizing
the importance of these questions, the Court appointed Harvard law professor Vick
Jackson to brief and argue them as amicus curiae. See Supreme Court Order List
Dated Dec. 11, 2012, available athttp://www.supremecourt.gov/orders/courtorder
121112zr_m648.pdf; see also Linda Greenhouse, Standing and Delivering,N.Y.
Times (Dec. 12, 2012), athttp://opinionator.blogs.nytimes.com/2012/12/12/standin
and-delivering/ (last accessed Jan. 5, 2013) (describing the context in which the Co
added the jurisdictional questions to Windsor).1 Thus, the very premise of BLAG
and the Federal Defendants motion for a stay that the Supreme Court will decidthe constitutionality of DOMA is entirely uncertain.
1 In support of its motion to stay, BLAG also cites the Supreme Courts grant of certiorari inHollingsworthPerry, No. 12-144, which presents the constitutionality of Proposition 8, a ballot initiative that amended the CalifornConstitution to provide that [o]nly marriage between a man and a woman is valid or recognized in California. (ECNo. 69-1at 5-7.) However, similar to Windsor, the Court sua sponte ordered the parties to brief and argue the issue petitioners standing; therefore, there is no assurance that the Court will rule on the validity of Proposition 8 in PerrSee Supreme Court Order List Dated Dec. 7, 2012, available athttp://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf.
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Finally, even if the Supreme Court does ultimately decide the constitutionali
of Section 3 of DOMA in Windsor, there is no reason to assume that the Court will
uphold the statute. All recent federal court decisions considering the issue, includi
decisions by the First and Second Circuits, have invalidated the statute. See United
States v. Windsor, 699 F.3d 169 (2d Cir. 2012); Commonwealth of Massachusetts v
U.S. Dept of Health & Human Servs & Gill v. Office of Pers. Mgmt., 682 F.3d 1 (
Cir. 2012); Pedersen v. Office of Pers. Mgmt., No. 10-cv-1750, F. Supp. 2d ,
2012 WL 3113883 (D. Conn. July 31, 2012); Windsor v. United States, 833 F. Sup
2d 394 (S.D.N.Y. 2012);Dragovich v. U.S. Dept of the Treasury, 872 F. Supp. 2d
944 (N.D. Cal. 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.DCal. 2012); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. July 8, 20
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011); see alsoPerry v. Brown, 671 F
1052 (9th Cir. 2012) (holding Californias Proposition 8 unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment). There is no reason to
assume that the Supreme Court will not arrive at the same result that Section 3 o
DOMA is unconstitutional. Accordingly, a stay of Tracey and Maggies claims w
only serve to delay justice and vindication of their constitutional rights.
3. The Potential Harm To Tracey And Maggie Cooper-Harris FrA Stay Outweighs Any Burden To BLAG or Federal Defendan
While BLAG and Federal Defendants will not be harmed by proceeding in th
case, the potential harm of a stay to Tracey and Maggie would be substantial. This
case has been pending for nearly a year, and further delay will result in financial ha
to Tracey and Maggie. Even more importantly, the financial hardship caused by T38 and DOMA, exacerbated by any stay, could result in physical harm to Tracey.
Tracey has been living with multiple sclerosis since 2009. From the moment she
discovered she had multiple sclerosis, Tracey resolved to ensure that Maggie is
provided for when the disease makes it impossible for Tracey to care for herself, an
ultimately, when it takes her life. To that end, on April 19, 2011, Tracey sought to
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have her marriage recognized by the federal government so that the couple may
receive the benefits other married veterans receive.
Each month that passes represents a month that Tracey is not receiving
additional disability compensation as a disabled veteran who is legally married, an
such past deprivations cannot be remedied by this Court because Tracey and Magg
are not seeking damages here.2 Rather, they are seeking a declaration that section 3
DOMA and Title 38 are unconstitutional and that, going forward, their marriage
should be recognized by the federal government. Until this case is resolved, Trace
treated by the VA as a single veteran in every respect, including for the purpose of
determining disability compensation.The uncertainty of Traceys future health also weighs against granting a stay
As the Fourth Circuit has explained, of particular significance in balancing the
competing interests of the parties . . . are the human aspects of the needs of a plaint
in declining health as opposed to the practical problems imposed by the proceeding
. which very well could be pending for a long period of time. Williford v. Armstro
World Indus., Inc., 715 F.2d 124, 127-28 (4th Cir. 1983) (denying a stay in an
asbestos injury suit pending defendants related bankruptcy proceeding).
It is difficult to predict precisely how multiple sclerosis will affect Tracey in
months and years to come, but the disease is debilitating and often leads to loss of
vision and the ability to walk. In just the past few months, Tracey has suffered fro
increased fatigue, hand tremors, and blurred vision all symptoms of her multiple
sclerosis. Tracey and Maggie currently earn just enough income to cover their
monthly expenses and soon will incur additional expenses that will exhaust all of th
monthly income. Traceys receipt of additional monthly disability compensation
would allow her to allocate this income toward doctor-recommended healthcare an
2 By contrast to the on-going denial of benefits to Tracey and Maggie, the plaintiffs in Golinski stayed bNinth Circuit pending Windsor are currently receiving the benefits sought and won at the district court. See BLAOmnibus Brief, Golinski v. Office of Pers. Mgmt., et al., No. 12-15388 (9th Cir. Mar. 26, 2012, ECF No. 21 at 16) (Ms. Golinskis [same-sex] spouse has been permitted to enroll in the Federal Employee Health Benefit Program.).
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dietary expenses and saving for the inevitable healthcare costs for her future care.
Staying this case and requiring Tracey and Maggie to wait half a year if not longer
this Court to hear their constitutional claims, including those that are entirely separ
from the claims in Windsor, is not reasonable in light of the urgency of their claims
and Traceys illness.
BLAG suggests that Plaintiffs will not be harmed by a stay because any
eventual award of compensation will date back to April 19, 2011 when Tracey
first applied to the VA for the benefits. (ECF No. 69-1 at 12.3) This argument is
entirely beside the point. Tracey and Maggie are in need of the benefits now, for a
future award cannot turn back the clock to undo any irreversible progression inTraceys multiple sclerosis that could have been mitigated had they timely received
benefits.
California district courts have acknowledged a fair possibility of harm
sufficient to deny stays under much less compelling circumstances. See, e.g.,Murp
v. Target Corp., No. 09-CV-1436, 2010 WL 5101075, at *2 (S.D. Cal. Dec. 9, 201
(finding that a potential increase in difficulty contacting class members over time
constitutes a sufficient possibility of damage);Abassi v. BAE Systems Informatio
No. 10-CV-1745, 2010 WL 4443340, at *1 (S.D. Cal. Nov. 1, 2010) (Significant
delay in initiating discovery may result in faded memories and lost documents.);
Dairy Am., Inc. v. New York Marine & Gen. Ins. Co., No. 07-CV-0537, 2009 WL
5218037, at *8 (E.D. Cal. Dec. 29, 2009) (finding that significant delay is a
substantial harm to defendants);ASUSTek Computer Inc. v. Ricoh Co., No. C 07
01942, 2007 WL 4190689, at *2 (N.D. Cal. Nov. 21, 2007) (finding that living in
3In this connection, Plaintiffs note that on January 7, 2013, the Supreme Court denied certiorari in VeteransCommon Sense v. Shinseki, No. 12-296 (S. Ct.). See Supreme Court Order List Dated Jan. 7, 2013, available athttp://www.supremecourt.gov/orders/ courtorders/010713zor_5426.pdf. In Veterans for Common Sense cited byBLAG in its second motion to stay (ECF No. 69-1 at 10-11 & n.9) the Ninth Circuit explicitly did not answer thejurisdictional question presented by Federal Defendants motion to dismiss Plaintiffs case before this Court (ECF N68). SeeVeterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc).
In the event the Court decides to stay this case pending Windsor, Plaintiffs respectfully request that the Counotstay the subject matter jurisdiction issue presented by Federal Defendants motion to dismiss (ECF No. 68). Wihas no bearing on that issue and it is ripe for adjudication.
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shadow of . . . threatened patent litigation is prejudice and inefficiency enough to
greatly outweigh any gains from granting a stay).
BLAGs reliance onHospital of Barstow, Inc. v. Sebelius, No. CV 11-10638
2012 WL 893784 (C.D. Cal. Mar. 13, 2012), is misplaced. As the court emphasize
the reduced Medicaid reimbursement schedule challenged by plaintiffs had already
expired, and the only prejudice to plaintiffs due to a stay [was] a short delay in the
potential recovery of damages. Id. at *3. Thus, unlike Tracey and Maggie, the
plaintiffs were not suffering an on-going injury and, significantly, were corporation
with evidently sufficient resources to continue operating during the stay. Here, the
on-going denial of benefits to Tracey and Maggie exacts an immediate harm onhuman beings with potential adverse health consequences.
BLAGs reliance onLopez v. Am. Express Bank, FSB, No. 09-cv-07335, 201
WL 3637755, at *4 (C.D. Cal. Sept. 17, 2010), is also misplaced. In that case, the
court explicitly determined that the defendants will suffer substantial hardship if t
action is permitted to go forward, including substantial fact and expert discovery,
outweighed potential harm to the plaintiffs, who were alleging causes of action rela
to terms and conditions of credit cards. Id. at *4. Not only is there no comparable
harm to BLAG or Federal Defendants in moving forward here, the plaintiffs claim
Lopez do not appear to have presented the same urgency as Tracey and Maggies
claims given their financial uncertainty and Traceys medical condition.
In sum, BLAG and Federal Defendants have asserted no justification nor
could they that would outweigh the couples interest in Traceys health and wel
being and their financial stability. BLAG and Federal Defendants have failed to
establish a clear case of hardship or inequity in being required to go forward,
necessary to overcome what is certainly more than a fair possibility that the stay .
will work damage to Tracey and Maggie. Landis, 299 U.S. at 255. Accordingly,
Tracey and Maggie should not be denied resolution of their case pending resolution
Windsor.
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IV. CONCLUSIONFor the foregoing reasons, the motion to stay should be denied.
DATE: January 7, 2013 Respectfully Submitted,
SOUTHERN POVERTY LAW CENTER
WILMER CUTLER PICKERING HALEAND DORR LLP
BY: /s/ Randall R. LeeRANDALL R. LEE350 South Grand Avenue, Suite 2100Los Angeles, CA 90071(213) [email protected]
Attorneys for Plaintiffs
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PLAINTIFFS OPPOSITION TO MOTION TO S
CERTIFICATE OF SERVICE
I certify that on January 7, 2013, I electronically filed the foregoing Plaintiff
Memorandum Of Law In Opposition To Intervenor-Defendants Second Motion to
Stay with the Clerk of Court by using the CM/ECF system, which provided an
electronic notice and electronic link of the same to the following attorneys of recor
through the Courts CM/ECF system:
Paul D. Clement, [email protected]. Christopher Bartolomucci, [email protected] J. Nelson, [email protected] H. McGinley, [email protected]
BANCROFT PLLC1919 M Street, N.W., Suite 470Washington, D.C. 20036
Kerry W. Kircher, [email protected] Pittard, [email protected] Davenport, [email protected] B. Tatelman, [email protected] Beth Walker, [email protected] M. Roumel, [email protected]
OFFICE OF GENERAL COUNSEL,U.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515
Jean Lin, [email protected]. DEPARTMENT OF JUSTICECivil Division - Federal Programs Branch20 Massachusetts Avenue, Northwest
Washington, District of Columbia 20530
/s/Adam P. RomeroAdam P. Romero
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DECLARATION OF TRACEY COOPER-HARCASE NO. CV 12-887 CBM (AJ
Wilm
erCutlerPickeringHaleandDorr
LLP
350SouthGrandAvenue,Suite2100
LosAngeles,
California90071
JOSEPH J. LEVIN, JR. (Pro Hac Vice)[email protected] P. SUN (SBN 218701)[email protected] E. SHORT (Pro Hac Vice)[email protected]
SOUTHERN POVERTY LAW CENTER400 Washington AvenueMontgomery, AL 36104Telephone: (334) 956-8200Facsimile: (334) 956-8481
(Caption Continued on Next Page)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Western Division
TRACEY COOPER-HARRIS and ) Case No. CV12-887 CBM (AJWx)MAGGIE COOPER-HARRIS, )
)) DECLARATION OF TRACEY
Plaintiffs, ) COOPER-HARRIS IN SUPPORT) OF PLAINTIFFS OPPOSITION) TO INTERVENOR DEFENDAN) MOTION TOSTAY
vs. ))
UNITED STATES OF AMERICA; )ERIC H. HOLDER, JR., in his official )capacity as Attorney General; and )ERIC K. SHINSEKI, in his official )Capacity as Secretary of Veterans Affairs, )
))
Defendants, )))
BIPARTISAN LEGAL ADVISORY )
GROUP OF THE U.S. HOUSE OF )REPRESENTATIVES, )))
Intervenor-Defendant. ))
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DECLARATION OF TRACEY COOPER-HARCASE NO. CV 12-887 CBM (AJ
Wilm
erCutlerPickeringHaleandDorr
LLP
350SouthGrandAvenue,Suite2100
LosAngeles,
California90071
RANDALL R. LEE (SBN 152672)[email protected] BENEDETTO (SBN 252379)[email protected] CUTLER PICKERING HALE AND DORR LLP350 South Grand Avenue, Suite 2100
Los Angeles, CA 90071Telephone: (213) 443-5300Facsimile: (213) 443-5400
ADAM P. ROMERO (Pro Hac Vice)[email protected] ALI (Pro Hac Vice)[email protected] CUTLER PICKERING HALE AND DORR LLP399 Park AvenueNew York, NY 10022Telephone: (212) 230-8800Facsimile: (212) 230-8888
EUGENE MARDER (SBN 275762)[email protected] CUTLER PICKERING HALE AND DORR LLP950 Page Mill RoadPalo Alto, California 94304Telephone: (650) 858-6000Facsimile: (650) 858-6100
Attorneys for PlaintiffsTRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS
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1DECLARATION OF TRACEY COOPER-HAR
CASE NO. CV 12-887 CBM (AJ
Wilm
erCutlerPickeringHaleandDorr
LLP
350SouthGrandAvenue,Suite2100
LosAngeles,
California90071
I, Tracey Cooper-Harris, declare:
1. I am a plaintiff in the above-captioned action seeking recognition by the UniStates government and the Department of Veterans Affairs (VA) of my
lawful marriage to Maggie Cooper-Harris so that we may receive the same
benefits afforded to other married veterans and their spouses.
2. I am over the age of eighteen. I have personal knowledge of the facts statedherein and am competent to testify as to the matters set forth in this declarati
3. I submit this declaration in support of Plaintiffs opposition to Intervenor-Defendant BLAGs second motion to stay this case.
4. All of the statements in my declaration in support of Plaintiffs opposition toIntervenor-Defendants first motion to stay, filed on June 18, 2012, remain tr
except as updated below. (ECF No. 42-1.)
Maggies and My Financial Status
5. As described below, Maggies and my financial situation has become moredifficult and more uncertain since the time of my first declaration. Our mon
income still barely covers our monthly expenses and, for the reasons provide
below, our monthly expenses may soon exceed our incomes.
6. On January 15, 2013, our roommate will be moving out of the apartment thawe rent. Our roommate presently pays $600 per month toward the rent of th
entire apartment. For the month of January, Maggie and I will be incurring h
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2DECLARATION OF TRACEY COOPER-HAR
CASE NO. CV 12-887 CBM (AJ
Wilm
erCutlerPickeringHaleandDorr
LLP
350SouthGrandAvenue,Suite2100
LosAngeles,
California90071
of our roommates monthly share of the rent (i.e., $300). Starting February
2013 and for the foreseeable future, we will be incurring our roommates ful
$600 share. We have tried unsuccessfully to find another person to rent the
extra room in our apartment, and are continuing to look for a roommate.
7. Since July 27, 2012, Maggie has not been working because of an injury shesustained to her knee while on the job on July 25, 2012. She is receiving
workers compensation and has been seeing a doctor and completing physica
therapy.
8. After her injury, Maggie was approved for light duty. However, such jobare extremely rare for someone in Maggies position at the International
Brotherhood of Electrical Workers (IBEW). In fact, since Maggies injury
no light duty jobs have been available to her.
9. Maggie currently has health insurance through the IBEW. Her health insurawith the IBEW is based on working a certain number of hours per month. If
she works a minimum of 100 hours in a certain month, she will have health
insurance coverage for a full month, starting four months later. For example
Maggie works at least 100 hours in January, she will have health insurance f
the month of May. Hours worked beyond 100 hours in a month can be bank
for health insurance purposes, up to 600 hours.
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3DECLARATION OF TRACEY COOPER-HAR
CASE NO. CV 12-887 CBM (AJ
Wilm
erCutlerPickeringHaleandDorr
LLP
350SouthGrandAvenue,Suite2100
LosAngeles,
California90071
10. Because Maggie has not worked since the end of July, she has been using hebanked hours to maintain her health insurance through the IBEW. Maggie h
been informed that her health insurance coverage will lapse in April 2013
because her banked hours will have run out, and she have not been working
accumulate more hours toward coverage in April.
11. Maggie has been informed that she is eligible for continuation of healthcoverage through the Consolidated Omnibus Budget Reconciliation Act
(COBRA). For the first three months after coverage lapses, Maggie can
obtain COBRA coverage at a discounted rate. Basic healthcare coverage tha
includes only medical and prescription coverage (CORE) for only Maggie
(that is, not including coverage for me) would cost $50 per month. Coverag
that includes vision and dental coverage in addition to medical and prescript
coverage (CORE Plus) for only Maggie would cost $99 per month.
12. However, beginning in July 2013, health care coverage through COBRA woincrease exponentially. CORE coverage for only Maggie would cost $1122
month and CORE Plus coverage for only Maggie would cost $1172 per mon
13. Because of the additional cost of healthcare coverage under COBRA and ourcurrent financial situation, we may not be able to afford healthcare coverage
Maggie beginning in July 2013. Although she is recovering from her knee
injury, the soonest she could start working on regular duty with the IBEW is
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