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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

FEDERAL DEFENDANTS

MOTION TO DISMISS

Hearing: February 25, 2013Time: 10:00 a.m.

Hon. Consuelo B. Marshall

Case 2:12-cv-00887-CBM-AJW Document 79 Filed 01/28/13 Page 1 of 32 Page ID #:1240

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PLAINTIFFSOPPOSITION TO MOTION TO DISMISSii

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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

Page(s)

I. INTRODUCTION ................................................................................................ 1

II. BACKGROUND .................................................................................................. 3

III. ARGUMENT........................................................................................................ 5

A. This Court Has Subject Matter Jurisdiction ............................................... 5

1. The VJRA Does Not Divest This Court Of Jurisdiction Over

Constitutional Challenges to Acts of Congress ............................... 5

2. The VJRAs Legislative History Confirms That Facial

Constitutional Challenges to Statutes Concerning Veterans

Benefits Remain Within The Jurisdiction of This Court ................. 6

3. Consistent withRobison, Veterans for Common Sense

(VCS) Permits Facial Constitutional Challenges to Acts of

Congress or Claims Where the Court Is Not Asked to

Review Decisions of the VA ......................................................... 11

4. Courts Have Consistently Held That District Courts HaveJurisdiction Over Constitutional Challenges to Statutes

Affecting Veterans Benefits .......................................................... 15

B. Exercising Jurisdiction Over Plaintiffs Claims Will Not Affect

Veterans Benefits Administration ............................................................ 18

C. The Supreme Courts Decision inElgin Is Inapplicable to the

VJRA and the Claims in this Case ........................................................... 19

D. Plaintiffs Have Suffered a Particularized and Concrete Injury With

Respect to Burial And Spousal Death Benefits ....................................... 21

IV. CONCLUSION .................................................................................................. 23


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TABLE OF AUTHORITIES

Page(s)

Cases

Aetna Life Ins. Co. v. Haworth,

300 U.S. 227 (1937) .................................................................................................. 22

Ameron, Inc. v. U.S. Army Corps of Engrs,

787 F.2d 875 (3d Cir. 1986) ........................................................................................ 5

Beamon v. Brown,

125 F.3d 965 (6th Cir. 1997) ............................................................................... 15, 16

Broudy v. Mather,

460 F.3d. 106 (D.C. Cir. 2006) ................................................................... 1, 2, 15, 16

Brown v. Gardner,

513 U.S. 115 (1994) .................................................................................................. 11

Cardona v. Shinseki,

Vet. App. No. 11-3083 .............................................................................................. 18

Copeland v. Shinseki,No. 11-2408, 2012 WL 5939166 (Vet. App. Nov. 14, 2012) ................................... 17

Dacoron v. Brown,

4 Vet. App. 115 (1993) .................................................................................... 2, 15, 17

Disabled Am. Veterans v. Dept of Veterans Affairs,

962 F.2d 136 (2d Cir. 1992) .................................................................. 2, 5, 15, 16, 18

Elgin v. Dept of Treasury,

132 S. Ct. 2126 (2012) ................................................................ 2, 3, 5, 10, 19, 20, 21

Hall v. Dept of Veterans Affairs,

85 F.3d 532 (11th Cir. 1996) ..................................................................................... 10

Hicks v. Small,

69 F.3d 967 (9th Cir. 1995) ................................................................................. 14, 15


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Johnson v. Robison,

415 U.S. 361 (1974) ...........................................................................................passim

King v. St. Vincents Hospital,

502 U.S. 215 (1991) .................................................................................................. 11

Larrabee ex rel. Jones v. Derwinski,

968 F.2d 1497 (2d Cir. 1992) ................................................................................ 6, 16

Littlejohn v. United States,

321 F.3d 915 (9th Cir. 2003) ..................................................................................... 14

Massachusetts v. U.S. Dept of Health and Human Servs.,

698 F. Supp. 2d 234 (D. Mass. 2010) ....................................................................... 22

MedImmune, Inc. v. Genentech, Inc.,549 U.S. 118 (2007) .................................................................................................. 22

Mistretta v. United States,

488 U.S. 361 (1989) .................................................................................................... 5

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) .................................................................................................... 5

Traynor v. Turnage,

485 U.S. 535 (1988) ............................................................................................ 7, 8, 9

United States v. Salerno,

481 U.S. 739 (1987) .................................................................................................. 11

Veterans for Common Sense v. Shinseki,

678 F.3d 1013 (9th Cir. 2012) (en banc) ............................................................passim

Vietnam Veterans of Am. v. C.I.A.,

No. C 09-0037CW,2012 WL 4715308 (N.D. Cal. Sept. 30, 2012) ................... 12, 20

Wayne State v. Cleland,590 F.2d 627 (6th Cir. 1978) ....................................................................................... 9

Zuspann v. Brown,

60 F.3d 1156 (5th Cir. 1995) ........................................................................... 2, 15, 16


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Statutes

Veterans Judicial Review Act (VJRA), 38 U.S.C. 511 ..................................passim

38 U.S.C. 211(a) ........................................................................................ 6, 7, 8, 9, 17

38 U.S.C. 2402 (a)(5). ................................................................................................ 22

38 U.S.C. 101(3) and (31) (Title 38) .............................................................passim

Section 3 of 1 U.S.C. 7 (Defense of Marriage Act or DOMA) ...................passim

Other Authorities

H.R. Rep. No. 100-963 (1988) ( House Report), reprinted in 1988 U.S.C.C.A.N.5782 ....................................................................................................................passim


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I. INTRODUCTION

The Federal Defendants motion to dismiss for lack of subject matter

jurisdiction (ECF No. 68) should be denied because in this case Plaintiffs challenge

acts of Congress, not a decision by the Veterans Administration (VA). Plaintiffs

constitutional claims are not precluded 511 of the Veterans Judicial Review Act

(VJRA), and are properly within this Courts jurisdiction under binding Supreme

Court precedent. See Johnson v. Robison, 415 U.S. 361, 366-74 (1974) (construing

predecessor to VJRA 511 and holding district court had jurisdiction over

constitutional challenge to statutory classifications related to veterans benefits); see

also Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1025 (9th Cir. 2012)(VCS) (holding where a challenge does not require [the court] to review decisions

affecting the provision of benefits to any individual claimant, jurisdiction is properly

before the district court), cert. denied, 81 U.S.L.W. 3130, 2013 WL 57122 (U.S. Jan.

7, 2013) (No. 12-296).

This Courts jurisdiction over Plaintiffs claims is confirmed by the legislative

history of the VJRA. Contrary to Federal Defendants assertion, the legislative

history states that the VJRA was not intended to foreclose judicial review of

constitutional challenges to statutes affecting veterans benefits. H.R. Rep. No. 100-

963, at 19 (1988) [hereinafter House Report], reprinted in 1988 U.S.C.C.A.N. 5782,

5801 (The Supreme Court properly decided [inRobison]that a decision not to

provide benefits to conscientious objectors was a decision of the Congress, not of the

[VA], and the Court [is] free to examine the constitutionality of Congress

decisions.).

Indeed, numerous federal appellate courts including the United States Court

of Appeals for Veterans Claims (Veterans Court) have concluded that the VJRA

does not bar district courts from adjudicating facial constitutional challenges to

statutes that affect veterans benefits. See, e.g.,Broudy v. Mather, 460 F.3d. 106, 112


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(D.C. Cir. 2006);Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995);Dacoron

v. Brown, 4 Vet. App. 115, 118 (1993);Disabled Am. Veterans v. Dept of Veterans

Affairs, 962 F.2d 136, 140 (2d Cir. 1992). In fact, no court has held that facial

constitutional challenges to acts of Congress that affect veterans benefits are barred by

the VJRA. See, e.g.,Broudy,460 F.3d at 112 (noting the VJRA does not give the

VA exclusivejurisdiction to construe laws affecting the provision of veterans benefits

or to consider all issues that might touch upon whether someone receives veterans

benefits) (emphasis in original); see also discussion infra Part III.A.4.

In an attempt to circumvent this well-established case law, Federal Defendants

erroneously characterize the Complaint as challenging the VAs decision to denyPlaintiff Tracey Cooper-Harris, a disabled Army veteran, additional dependency

compensation related to her same-sex spouse, Plaintiff Maggie Cooper-Harris

benefits routinely received by veterans with opposite-sex spouses. Plaintiffs

challenge, however, is notto any benefits decision of the VA; rather, Plaintiffs

challenge acts of Congress that discriminate against same-sex spouses. Specifically,

Plaintiffs challenge the constitutionality of38 U.S.C. 101(3) and (31) (Title 38),

which limit spouse and surviving spouse to persons of the opposite sex for

veterans benefits purposes, and Section 3 of 1 U.S.C. 7 (Defense of Marriage Act

or DOMA), which prohibits the federal government from recognizing valid same-

sex marriages, such as Tracey and Maggies marriage. Resolving the constitutionality

of these statutes does not require this Court to consider or review any decision of

the VA within the scope of 511s jurisdictional bar. Indeed, Plaintiffs are not

seeking damages, an injunction ordering the VA to award benefits, or even a decision

from this Court that Plaintiffs are entitled to benefits. Rather, Plaintiffs seek a

declaration that Title 38 and DOMA are unconstitutional and that, going forward, their

marriage should be recognized by the federal government.

Federal Defendants reliance onElgin v. Dept of Treasury, 132 S. Ct. 2126


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(2012), is misplaced because (1)Elgin concerned an administrative review scheme

wholly distinct from the VJRA, and (2) Plaintiffs unlike the petitioners inElgin

are not challenging an administrative decision and do not seek retroactive relief.

Finally, Federal Defendants argument that Plaintiffs do not have standing to

raise claims for benefits that would flow to Maggie as Traceys widow lacks merit.

Plaintiffs have already been denied the right to be buried together in a California

veterans cemetery due to Title 38 and DOMA, and in any event, the present and

undeniable uncertainty created by these statutes on Plaintiffs estate planning

constitutes a particularized and concrete injury sufficient to confer standing,

especially in light of Traceys service-connected multiple sclerosis and other medicalconditions for which she receives disability compensation from the VA.

Accordingly, the Court should deny Federal Defendants motion to dismiss.

II. BACKGROUND

On February 1, 2012, Plaintiffs filed their Complaint asserting that Title 38,

which limits the definitions of surviving spouse and spouse to persons of the

opposite sex, violates on its face the equal protection component of the Due Process

Clause of the Fifth Amendment to the United States Constitution. Compl. 62-65.

The Complaint further asserts that DOMA, which similarly limits the definition of

spouse for purposes of federal law to a person of the opposite sex, violates the right

to equal protection under the Fifth Amendment as applied to Plaintiffs. Id. 66-69.

Together, Title 38 and DOMA operate to deny Plaintiffs recognition of their legal

marriage so that Tracey is ineligible for all benefits provided to married veterans and

Maggie is ineligible for all benefits provided to spouses of veterans. By their

Complaint, Plaintiffs seek declaratory and injunctive relief against the federal

government holding that Title 38 and DOMA are unconstitutional. Id. at 18. The

Complaint does not ask for an award of benefits, either prospectively or retroactively.

Id.


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Before filing the Complaint, Tracey submitted an application to the VA seeking

to add Maggie as her spouse for purposes of receiving dependency compensation that

the federal government provides to married veterans. Compl. 40. That application

was denied. Id. 41. Tracey filed a Notice of Disagreement with the VA Regional

Office in Los Angeles (VARO), and the claim was again denied. Id. 42-43. The

VAROs denial letter stated in relevant part:

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 California, this marriage is not valid under current Federal

Regulations. . . .You are a veteran and have served honorably, howeverwe must deny your claim for dependency at this time. Your VA

payments will remain as a single veteran.

Id. 43. The VARO neither considered nor decided the constitutionality of Title 38

or DOMA. Tracey has appealed the denial of her application for additional disability

compensation to the Board of Veterans Appeals (BVA) but requested a stay of that

proceeding pending the resolution of this challenge to Title 38 and DOMA.

On February 24, 2012, Federal Defendants notified this Court that they would

not defend the constitutionality of DOMA or Title 38 because they had concluded that

those provisions were unconstitutional. Defs. Notice to Ct., Feb. 24, 2012, ECF No.

16. Now, Federal Defendants move to dismiss the case on the ground that the VJRA

divests this Court of jurisdiction to determine whether the acts of Congress at issue in

this case, Title 38 and DOMA, are unconstitutional. Federal Defendants have also

moved to dismiss on the ground that Plaintiffs have not suffered an injury-in-fact with

respect to the denial of burial benefits afforded to veterans and their spouses and the

denial of Disability and Indemnity Compensation (DIC) afforded to surviving

spouses of veterans who die from service-connected conditions. Federal Defendants

do not challenge Plaintiffs standing with respect to additional disability benefits

being denied to Tracey and Maggie.

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III. ARGUMENT

A. This Court Has Subject Matter Jurisdiction

1. The VJRA Does Not Divest This Court Of Jurisdiction Over

Constitutional Challenges to Acts of Congress

Federal Defendants contend that the VJRA deprives this Court of subject matter

jurisdiction over Plaintiffs challenges to Title 38 and DOMA. Federal Defendants

argument mischaracterizes Plaintiffs claims, misreads the VJRAs legislative history,

fails to meaningfully distinguish a long-standing body of jurisprudence allowing

review of constitutional claims that do not challenge decisions of the VA, and

misapplies the Ninth Circuits most recent decision on point, Veterans for Common

Sense (VCS).

It is beyond dispute that Article III district courts have the power to rule on the

constitutionality of acts of Congress. Disabled Am. Veterans v. Dept of Veterans

Affairs, 962 F.2d 136, 140 (2d Cir. 1992) (citingAmeron, Inc. v. U.S. Army Corps of

Engrs, 787 F.2d 875, 890 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988)). In

considering whether a statute precludes district court review of constitutional claims, acourt inquires into whether Congress intent to preclude district court jurisdiction

was fairly discernible in the statutory scheme. Elgin, 132 S. Ct. at 2132 (quoting

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994)). Even where

Congressional intent is fairly discernible, questions concerning whether a statute

divests district courts of jurisdiction implicate the constitutional separation of powers

doctrine. Disabled Am. Veterans, 962 F.2d at 140. Accordingly, courts interpreting

such a statute must exercise vigilance to ensure that no provision of law threatens the

integrity of the judicial branch. Id. (citingMistretta v. United States, 488 U.S. 361,

382-83 (1989)).

As discussed below, the legislative history of the VJRA, as well as the case law

interpreting the VJRA, instruct that the VJRAs jurisdictional bar is triggered only


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when a veteran challenges a decision made by the VA, and confirm the common

sense proposition that a challenge to an act of Congress is not a challenge to a

decision by the VA. The Ninth Circuit affirmed this proposition in VCSwhen it

held that jurisdiction was proper in district court for a facial challenge to the

constitutionality of a federal statute concerning veterans benefits. VCS, 678 F.3d at

1033-34.

2. The VJRAs Legislative History Confirms That Facial

Constitutional Challenges to Statutes Concerning Veterans

Benefits Remain Within The Jurisdiction of This Court

With the enactment of the VJRA in 1988, Congress revised the manner by

which veterans could challenge the VAs decisions involving individual benefits.

Prior to the VJRA, Congress consistently precluded judicial review of veterans

benefits determinations. Larrabee ex rel. Jones v. Derwinski, 968 F.2d 1497, 1499

(2d Cir. 1992). In 1970, Congress reiterated its intent that decisions of the VA were

unreviewable by amending the statute to provide that:

[T]he decisions of the Administrator on any question of law or fact under

any law administered by the Veterans Administration providing benefits

for veterans and their dependents or survivors shall be final and

conclusive and no other official or any court of the United States shall

have power or jurisdiction to review any such decision by an action in the

nature of mandamus or otherwise.

38 U.S.C. 211(a) (1970).

Approximately four years after the passage of 211, the precursor to what is

now 511 of the VJRA, the Supreme Court considered whether Congress intended

211 to divest Article III district courts of jurisdiction over constitutional challenges

to statutes concerning veterans benefits. Robison, 415 U.S. 361. The plaintiff in that

case, Robison, received an exemption from military service as a conscientious

objector and, accordingly, completed the required alternate civilian service. Id. at

362-64. When the VA denied Robison educational benefits because he was not an


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eligible veteran under the Veterans Readjustment Benefits Act of 1966, Robison

brought an action asserting that the provisions of the Act violated the First and Fifth

Amendments of the Constitution. Id.

The government maintained that 211 deprived the court of jurisdiction to

review Robisons equal protection claims because he was a veteran and his claims

related to veterans benefits. Id. at 364-65. The Supreme Court disagreed and held

that 211 did not bar judicial consideration of Robisons constitutional claims. Id. at

367. The Court held that the prohibitions in 211 appear to be aimed at review only

of those decisions of law or fact that arise in the administration by the Veterans

Administration of a statute providing benefits for veterans. Id. (emphasis added).The Court reasoned, [a] decision of law or fact under a statute is made by the

Administrator in the interpretation or application of a particular provision of the

statute to a particular set of facts[.] Id. (emphasis added). In contrast, Robisons

constitutional challenge to the Veterans Readjustment Benefits Act was not to any

such decision of the Administrator, but rather to a decision of Congress to create a

statutory class entitled to benefits that does not include I-O conscientious objectors

who performed alternative civilian service. Id. (emphasis added) (internal citations

omitted). Importantly, the Court inRobison noted that accepting the governments

argument that 211 bars federal courts from deciding the constitutionality of statutes

affecting veterans benefits would raise serious questions concerning the

constitutionality of that provision. Id. at 366.

Fourteen years afterRobison, the Supreme Court revisited 211 in Traynor v.

Turnage, 485 U.S. 535 (1988). In Traynor, the Court significantly expanded its

holding inRobison and held that 211 did not bar federal courts from considering

whether a regulation issued by the VA and the VAs application of that regulation

conflicted with federal statutes. Id. at 545. In its decision, the Court invited the VA to

seek relief from Congress if it disagreed with its holding. Id. at 544-45.


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In response to Traynor, and to prevent courts from engaging in technical VA

decision-making, Congress enacted the VJRA, revising 211 (later codified as

511)1

to read in relevant part:

The secretary shall decide all questions of law and fact necessary to adecision by the Secretary under a law that affects the provision of

benefits by the Secretary to veterans or the dependents or survivors of

veterans. Subject to subsection (b), the decision of the Secretary as to

any such question shall be final and conclusive and may not be reviewed

by any other official or by any court, whether by an action in the nature

of mandamus or otherwise.

38 U.S.C. 511.

Federal Defendants mistakenly assert that the VJRA was enacted in response tothe Supreme Courts decision inRobison. Mot. to Dismiss at 10; id. at 14 (Now that

Congress has gone to great length to eliminate the exception to the judicial preclusion

provision found byRobison, this Court has no jurisdiction to review Plaintiffs

constitutional claim.); id. at 21 (Notwithstanding Congress clear intent to close the

gap inRobison, two circuit courts of appeals have said that 511 does not preclude

facial constitutional challenges to acts of Congress affecting veterans benefits.); id.

(Yet, as noted before, 511 was enacted in tandem with the establishment of the

VJRA scheme in response toRobison.). Indeed, the entire premise of Federal

Defendants motion to dismiss is the erroneous assertion thatRobison is no longer

good law. Mot. to Dismiss at 14 (conceding that Plaintiffs claims are practically the

same as the one that the Court inRobison held was properly before the district court).

Federal Defendants are mistaken. The legislative history makes clear that the

VJRA was passed in response to the Supreme Courts decision in Traynor and other

cases interpretingRobison as permitting judicial review of VA regulations. House

Report at 21; see also VCS, 678 F.3d at 1021 (Congress responded almost

1 Section 211 was recodified as 511 by the Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, 105 Stat. 378 (1991).


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immediately to the Courts invitation in Traynor.). The House Report states that

afterRobison, a number of courts, beginning with the Court of Appeals for the Sixth

Circuit in the case ofWayne State v. Cleland, 590 F.2d 627 (6th Cir. 1978), have held

that section 211(a) does not preclude judicial scrutiny of claims that the Administrator

exceeded his authority in issuing particular regulations. House Report at 19

(emphasis added). The House Report clarifies that Congress amended 211 to

address the Courts decision in Traynor, which the Committee believed would

inevitably lead to increased involvement of the judicial in technical VA decision-

making. Id. at 21 (emphasis added).

Far from indicating an intent to overturnRobison, as opposed to Traynor, thelegislative history of the VJRA conclusively states the Committees belief that the

Supreme Court in []Robison was correct in asserting judicial authority to decide

whether statutes meet constitutional muster . . . . House Report at 22. Indeed, the

VJRAs legislative history contains multiple statements by the Committee expressing

the belief that the Court inRobison correctly held that a constitutional challenge to an

act of Congress concerning veterans benefits was properly heard in district court. See,

e.g.,House Report at 19 (The Supreme Courtproperly decided that a decision not to

provide benefits to conscientious objectors was a decision of the Congress, not of the

Administrator, and the Court was free to examine the constitutionality of Congress

decisions.) (emphasis added).2

Indeed, the legislative history reflects that Congress

contemplated that Article III courts would continue to review statutes implicating

veterans benefits. Id. at 26 (To the extent that the committee bill allows Article III

courts to review VA policy[,] . . . such review will aid in the achievement of a more

2Seealso House Report at 19 ([T]he holding that section 211(a) was inapplicable to Robisonsaction seems clearly correct.); id. at 20 (The result inJohnson v. Robison is generally accepted asbeing in accord with a line of decisions stretching back toMarbury v. Madison which hold that thecourts have a constitutional responsibility to determine whether Congressional enactments meetconstitutional muster. But at least the Court inJohnson first decided that the words of 211(a) did notpreclude judicial consideration of Robisons claim, since the argument was not whether theAdministrator had made an unconstitutional decision, but whether Congress had done so.).


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accurate and fair system.).

Like the plaintiff inRobison, Plaintiffs here do not challenge any VA

interpretation or application of a particular provision of the statute to a particular set

of facts,Robison, 415 U.S. at 367, or a technical VA decision, House Report at 19.

Instead, also like the plaintiff inRobison, Plaintiffs challenge acts of Congress

affecting veterans benefits i.e.,statutory classifications drawn by Congress in Title

38 and DOMA. That the VA did not consider (let alone decide) the constitutionality

of Title 38 or DOMA when denying benefits to Tracey confirms that Plaintiffs are not

challenging a VA decision within the scope of 511s jurisdictional bar.

Federal Defendants reliance onHall v. Dept of Veterans Affairs, 85 F.3d 532(11th Cir. 1996), is misplaced. See Mot. to Dismiss at 21. That case is inapposite

because it involved a challenge to a VA regulation, not an act of Congress. Id. at 532-

33. Unlike the plaintiff inHall, Plaintiffs here do not challenge a VA regulation, the

VAs application of that regulation to the facts, or the decision to deny benefits based

on that straightforward application. Moreover, as the Eleventh Circuit noted, the VA

in that case had conceded that if Hall [the veteran plaintiff] sought to overturn the

statute, the district court would have jurisdiction. Id. at 533.

As Federal Defendants concede, Plaintiffs constitutional challenge is

practically the same as the one inRobison, both involving an equal protection

challenge to a statutory classification that by its express terms excludes the plaintiff(s)

from certain veterans benefits. Mot. to Dismiss at 14. This concession, in light of

the fact thatRobison remains binding authority on this Court, is fatal to Federal

Defendants position. Federal Defendants have failed to meet their burden of

demonstrating the requisite fairly discernible intent by Congress to divest federal

district courts of the power to consider the constitutionality of statutes concerning

veterans benefits. Elgin, 132 S. Ct. at 2132; see also Brown v. Gardner, 513 U.S. 115,

118 (1994) (where a veterans benefits statute is ambiguous, interpretive doubt is to


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be resolved in the veterans favor (citing King v. St. Vincents Hospital, 502 U.S.

215, 220-21 n.9 (1991)).

Lastly, Federal Defendants assertion that Plaintiffs challenge cannot

appropriately be characterized as a facial challenge, should be rejected. Mot. to

Dismiss at 17. This argument relies on the erroneous assumption that a plaintiffs

basis for standing is determinative of whether a challenge to a statute is characterized

as facial or as-applied. See id. at 17-18. On the contrary, the distinction between

a facial and an as-applied challenge to a statute turns on the whether the plaintiff

alleges that the statute is unconstitutional in all applications or just when applied to

the plaintiff. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (noting thatin facial challenge, the challenger must establish that no set of circumstances exists

under which the Act would be valid). Therefore, a holding that a statute is

unconstitutional on its face will result in the statute being declared unconstitutional

not only as applied to the plaintiff who brought the challenge, but also to all others

similarly situated; the nature of the plaintiffs injury is irrelevant. Plaintiffs here

allege that Title 38 is unconstitutional on its face. Compl. 65.

3. Consistent withRobison, Veterans for Common Sense (VCS)

Permits Facial Constitutional Challenges to Acts of Congress

or Claims Where the Court Is Not Asked to Review Decisions

of the VA

Notwithstanding Federal Defendants suggestion to the contrary, the Ninth

Circuits recent en banc decision in VCSdoes not compel this Court to conclude that

the VJRA precludes facial constitutional challenges to federal statutes. Rather, in

VCS, the Ninth Circuitupheld district court jurisdiction for a facial challenge to the

constitutionality of a federal statute that affects veterans benefits and confirmed that

district court jurisdiction is not barred by the VJRA where plaintiffs do not challenge

any decision of the VA and do not require the court to review any such decisions. 678

F.3d at 1034-35; see also Vietnam Veterans of Am. v. C.I.A., No. C 09-0037CW,2012


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WL 4715308, at *16 n.12 (N.D. Cal. Sept. 30, 2012).

In VCS, two veterans organizations brought an action against the VA seeking

declaratory and injunctive relief, alleging violations of statutory and constitutional

rights stemming from (1) delays in the provision of mental health care, (2) delays in

the adjudication of disability compensation claims by the VA, and (3) the lack of

adequate procedures during the claims. Id. at 1017-18. The Ninth Circuit discussed

in detail cases construing the jurisdictional limitations of 511 and concluded that

511 precludes jurisdiction over a claim if it requires the district court to review VA

decisions that relate to benefits decisions, including any decision made by the

Secretary in the course of making benefits determinations. Id. at 1025 (citationsomitted).

The Ninth Circuit first held that Plaintiffs challenges to the delays in the

provision of mental health care and adjudication of claims were barred because there

is no way for the district court to resolve whether the VA acted in a timely and

effective manner in regard to the provision of mental health care without evaluating

the circumstances of individual veterans and their requests for treatment, and

determining whether the VA handled those requests properly. Id. at 1028. Similarly,

with regard to adjudication delays, the court held that VCSs claim against the VA

plainly implicates questions of law and fact regarding the appropriate method of

providing benefits to individual veterans[, which t]he district court cannot decide . . .

without determining whether the VA acted properly in handling individual veterans

benefits requests at each point in the process. Id. at 1029. In holding that 511

precluded the district courts jurisdiction over these claims, the Ninth Circuit

emphasized that VCS seeks sweeping declaratory and injunctive relief including the

district courts writing of procedures for processing mental health claims and

continued court supervision. Id. at 1017, 1028. Plaintiffs here seek no such relief.

As to VCSs claim that the VJRA is unconstitutional because it lacks


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procedural safeguards for veterans filing claims for benefits, the Ninth Circuit held

that it had jurisdiction to consider the claim because VCS asserts a facial challenge

to the constitutionality of the VJRA based . . . on the absence in the statute of certain

procedures VCS claims are necessary to safeguard veterans rights. Id. at 1033.

Jurisdiction was not barred by 511, the court reasoned, because reviewing the VAs

procedures for filing and handling benefits claims at the Regional Offices does not

require [the court] to review decisions affecting the provision of benefits to any

individual claimants. Id. at 1034 (Indeed, VCS does not challenge decisions [of the

Secretary] at all. A consideration of the constitutionality of the procedures in place,

which frame the system by which a veteran presents his claims to the VA, is differentthan a consideration of the decisions that emanate through the course of the

presentation of those claims.).3

Under the reasoning ofVCS, it is evident that because Plaintiffs do not

challenge any decision of the VA and do not ask the Court to review any such

decision, the jurisdictional bar of 511 is not implicated. Unlike the plaintiffs in

VCS, Plaintiffs are not asking this Court to review the VAs administration of any

benefits, and certainly are not seeking a sweeping overhaul of VA procedures. Rather

the questions presented by the Complaint are whether Title 38 and DOMA violate the

constitutional guarantee of equal protection. The VA Secretary did not create the

classifications set forth in those statutes, and Plaintiffs here do not question whether

the VAs application of those classifications was appropriate. Because this Courts

3In VCS, the Ninth Circuit left open the question whether an individual seeking benefits would be

barred by 511 bringing a facial constitutional challenge in the district court. Id. This openquestion, however, does not apply to Plaintiffs claims here because Plaintiffs do not seek anybenefits in this action. In the event that the Court determines that this Complaint is seekingindividual benefits and thus falls within the question not answered by the Ninth Circuit, Plaintiffsrespectfully submit that the Supreme Courts decision inRobison mandates the conclusion that suchclaims are properly heard in this Court. Just like the plaintiff inRobison, Plaintiffs here arechallenging an act of Congress that effectively bar them from receiving benefits. Plaintiffs furthernote that on January 7, 2013, the Supreme Court denied certiorari in VCS. See 81 U.S.L.W. 3130,2013 WL 57122 (U.S. Jan. 7, 2013) (No. 12-296).


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analysis of the constitutionality of Title 38 and DOMA would not require the Court to

scrutinize any decision or action of the Secretary, jurisdiction in this Court is proper.

Id. at 1033-34.

Federal Defendants reliance on two other Ninth Circuit cases is misplaced. See

Mot. to Dismiss at 13 (citingLittlejohn v. United States, 321 F.3d 915, 921 (9th Cir.

2003) andHicks v. Small, 69 F.3d 967, 970 (9th Cir. 1995)). Littlejohn is inapposite

because the question before the Ninth Circuit was not whether a district court had

jurisdiction over a constitutional challenge to a federal statute, but instead whether the

plaintiff had satisfied the elements of claim preclusion in an action involving medical

malpractice against VA doctors. Littlejohn, 321 F.3d at 919. Littlejohn argued thatbecause the VA had previously determined that negligence of the VA doctors entitled

him to disability compensation, that VA decision had a preclusive effect, establishing

liability for negligence under his malpractice claim. Id. Littlejohns motions for

summary judgment and directed verdict on this ground were denied by the district

court, and Littlejohn appealed on the ground that the district courts refusal to apply

claim preclusion to his tort claim violated 511s bar to district court review of a VA

benefits decision. Id. The Ninth Circuit rejected Littlejohns argument that claim

preclusion applied notbecause 511 bars district courts from hearing a claim that

would have any effect on the benefits to be awarded by VA to the veteran, as

Federal Defendants suggest, but instead because there was no possibility that the

district court action would result in a diminution of benefits. Id. at 921.

Hicks is inapposite because that case, too, did not involve a facial challenge to

the constitutionality of a federal statute. InHicks, a veteran broughtBivens and state

tort claims against the VA, alleging that a VA doctor had reduced his disability

benefits in retaliation for complaints made by the veteran. Id. at 970. The Ninth

Circuit affirmed the district courts dismissal under the VJRA because adjudicating

the plaintiffs claims would have required the court to scrutinize whether the reduction


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in Hicks disability benefits was done in retaliation or for a proper purpose. Id.

(Hicks tort claims would necessitate a consider[ation of] issues of law and fact

involving the decision to reduce [Hicks] benefits, a review specifically precluded by

38 U.S.C. 511(a). (alteration in original) (quotingHicks v. Small, 842 F. Supp. 407,

413-14 (D. Nev. 1993)). Unlike the complaint inHicks, review of Plaintiffs claims in

this case would not require the Court to review any decision of the VA, but instead

whether Congress decision to treat legal same-sex marriages differently from legal

heterosexual marriages violates the constitutional guarantee of equal protection.

4. Courts Have Consistently Held That District Courts Have

Jurisdiction Over Constitutional Challenges to StatutesAffecting Veterans Benefits

Consistent with the principles articulated inRobison, federal courts have

continued to exercise jurisdiction over facial constitutional challenges to statutes

affecting veterans benefits after the passage of VJRA. Indeed, since the enactment of

the VJRA and the creation of the Veterans Court, numerous courts including the

Veterans Court itself have concluded that facial challenges to acts of Congress are

properly heard in district court. Federal Defendants ignore the majority of these cases

and fail to mention that no court has held that the VJRA bars a constitutional

challenge to a decision of Congress in district court.

The Courts of Appeals for the Second, Fifth, Sixth, and D.C. Circuits, as well as

the Veterans Court, have concluded that facial constitutional challenges to statutes

involving veterans benefits are properly within the jurisdiction of district courts.

Broudy, 460 F.3d at112 ;Beamon v. Brown, 125 F.3d 965, 972-73 (6th Cir. 1997);

Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995); Dacoron v. Brown, 4 Vet.

App. 115, 118-19 (1993);Disabled Am. Veterans v. Dept of Veterans Affairs, 962

F.2d 136, 140 (2d Cir. 1992).

The Second Circuits decision inDisabled American Veterans is instructive. In


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that case, plaintiffs brought an equal protection challenge to a federal statute that

eliminated the availability of veterans family benefits in certain circumstances.

Disabled Am. Veterans, 962 F.2d at 137-38. As here, the plaintiffs contended that the

statutory classification drawn by Congress was unconstitutional on its face. Id. at 138.

And, as here, the VA argued that the VJRA vested exclusive jurisdiction in the

Veterans Court over constitutional challenges to federal statutes affecting veterans

benefits. Id. at 140.

The Second Circuit rejected the VAs argument, and held that the district court

had properly construed the VJRA to exclude judicial review only of decision[s] by

the Secretary, and not of facial constitutional challenges. Id. at 141 (alteration inoriginal). Accordingly, the Court held that the district court had proper jurisdiction

over plaintiffs equal protection challengeto the federal statute at issue in that case,

because consideration of such a constitutional claim did not constitute a review of an

individual benefits determination. Id. at 140-41; see alsoLarabee ex rel. Jones, 968

F.2d at 1501 ([D]istrict courts continue to have jurisdiction to hearfacial challenges

of legislation affecting veterans benefits[.]). The Court reasoned that to hold

otherwise, and to accept the VAs interpretation of the VJRA, would have implicated

issues of constitutional separation of powers. Id. at 140.

Other federal appellate courts have consistently reached the same conclusion as

Disabled American Veterans. SeeBeamon v. Brown, 125 F.3d 965, 972-73 (6th Cir.

1997) ( [D]istrict court jurisdiction over facial challenges to acts of Congress

survived the statutory revisions that established the [Veterans Court].);Zuspann v.

Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995) (distinguishing between a challenge to

a denial of benefits and a facial challenge to an act of Congress, which the district

court had power to adjudicate); see also Broudy, 460 F.3d at 112 (Section 511(a)

does not gives the VA exclusive jurisdiction to construe laws affecting the provision

of veterans benefits or to consider all issues that might somehow touch upon whether


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someone receives veterans benefits.).

Indeed, the Veterans Court has also concluded that it does not have exclusive

jurisdiction over constitutional challenges to federal statutes affecting veterans

benefits. See Dacoron v. Brown, 4 Vet. App. 115 (1993). InDacoron,the court

stated, [n]othing in title 38 prohibits a constitutional challenge to any of the

provisions of that title from being litigated in U.S. district court. Dacoron, 4 Vet.

App. at 119.4

The court explained:

Although the enactment in 1988 of the [VJRA], which created this Court,

opened up to judicial review a great many claims as to which review had

previously been prohibited by 38 U.S.C. 211(a), nothing in the VJRA

or in the current provisions of 38 U.S.C. 511(a) changes the SupremeCourts above-quoted analysis inJohnson [v. Robison]as to whether a

constitutional challenge to a statute governing VA benefits is governed

by the provisions of old section 211(a) or current section 511(a), or

whether such a challenge may be brought in U.S. district court without

regard to those statutory provisions.

Id. at 118-19. Thus, [a] claim which alleges only the unconstitutionality of a statute

is not a claim under a law that affects the provision of benefits by the Secretary

under 511(a), but rather is a claim under the Constitution of the United States. As

such, it is beyond the purview of section 511(a). Id. at 119. Cf.Copeland v.

Shinseki, No. 11-2408, 2012 WL 5939166, at *5 n.4 (Vet. App. Nov. 14, 2012)

(holding that while nothing in Title 38 prohibits constitutional challenges from being

heard in district court, the Veterans Court also has the authority to declare a statute as

facially unconstitutional) (citingDacoron, 4 Vet. App. at 119).

Like the plaintiffs inDisabled American Veterans, Plaintiffs here do not

4 The Veterans Courts analysis inDacoron rejects Federal Defendants statement that the choice offorum here is not for Plaintiffs to make, Mot. to Dismiss at 2. TheDacoron court stated that while[n]othing in title 38 prohibits a constitutional challenge to any of the provisions of that title frombeing litigated in U.S. district court[,] . . . nothing in the above analysis implies that [the VeteransCourt] does not have power to review claims pertaining to the constitutionality of statutory andregulatory provisions. Dacoron, 4 Vet. App. at 119.


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challenge any VA decision within the scope of 511s jurisdictional bar, do not

seek monetary damages, and do notseek an injunction ordering a benefits award.

Plaintiffs seek a declaration by the Court that the statutory classifications drawn by

Congress in Title 38 and DOMA violate the equal protection guarantees of the

Constitution. The classifications drawn by Title 38 and DOMA are not decisions of

the VA, but instead are statutes affecting veterans benefits, the constitutionality of

which this Court has the power to adjudicate.

B. Exercising Jurisdiction Over Plaintiffs Claims Will Not Affect

Veterans Benefits Administration

Federal Defendants assert that Congress enacted the VJRA to achieve national

uniformity and consistency in veterans benefits decision-making, Mot. to Dismiss at

2, and cite to a portion of the legislative history of the VJRA that states that [t]he

committee believes that it is strongly desirable to avoid the possible disruption of VA

benefit administration which could arise from conflicting opinions on the same subject

due to the availability of review in the 12 Federal Circuits or the 94 Federal Districts.

House Report at 28. Based on this text, Federal Defendants contend that it would be

improper for this Court to hear Plaintiffs claims because the Veterans Court is

currently considering whether Title 38 and DOMA are constitutional as applied to the

plaintiff in Cardona v. Shinseki, Vet. App. No. 11-3083.

This argument is misleading because the language cited by Federal Defendants

relates to a section of the VJRA unrelated to the changes made to the jurisdictional bar

codified at 511. Rather, the language cited by Federal Defendants concerned an

amendment in the responsibilities of the VA Secretary with respect to agency

rulemaking under the Administrative Procedure Act (APA) and which provided that

decisions of the Secretary as to VA rules (such as the VA schedule for rating

disabilities) are only reviewable by the Federal Circuit. By vesting exclusive

jurisdiction to review challenges to the Secretarys rules brought under the APA in the


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Federal Circuit, Congress fulfilled its intent to avoid conflicting judicial opinions on

the specific subject of VA rule interpretation and application. The statement quoted

by Federal Defendants refers to this section of the VJRA only and does not support the

proposition that Congress intended to prevent conflicting opinions on the

constitutionality of statutes concerning veterans benefits. Indeed, the section of the

House Report that includes Federal Defendants quotation also specifically states that

constitutional challenges even as to the schedule itself remain available in

district court. House Report at 27-28 (Notwithstanding the deference which courts

tend to give to long-standing administrative constructions, especially one that has been

consistently followed by the agency, and that has been drafted by an agency withrecognized expertise in the subject matter, the committee has expressly precluded

review of the schedule in the bill (except for challenges to the constitutionality of the

schedule). (emphasis added) (internal citations omitted).

Thus, contrary to Federal Defendants argument, Congress has expressed its

intent to permit federal district courts to adjudicate constitutional challenges such as

Plaintiffs, even though conflicting rulings might result. That courts may reach

different conclusions on the same legal issues is undeniable and common in our

legal system; indeed, such splits can be important to percolation of an issue before

involvement by the Supreme Court or another branch of government.

C. The Supreme Courts Decision inElgin Is Inapplicable to the VJRA

and the Claims in this Case

Federal Defendants urge the Court to deny district court jurisdiction over

Plaintiffs claims in light of the Supreme Courts decision inElgin. Mot. to Dismiss

at 15-16. Notwithstanding the fact thatElgin involved a wholly different

administrative review scheme (the Civil Service Reform Act (CSRA)), and not the

VJRA, Federal Defendants argue that the reasoning ofElgin should control because

Congress has gone to great length to eliminate the exception to the jurisdictional


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preclusion provision found byRobison, Mot. to Dismiss at 14. Seesupra Part

III.A.2. As discussed below, both the VJRA and Plaintiffs claims here are

distinguishable from the CSRA and the claims at issue inElgin.

As an initial matter,Elgin is inapplicable because it involved a different

statutory scheme. See Vietnam Veterans of Am. v. C.I.A., No. C 09-0037CW,2012

WL 4715308, at *16 n.12 (N.D. Cal. Sept. 30, 2012) (rejecting governments

argument thatElgin compelled a finding that the VJRA precluded district court review

of challenges involving veterans benefits). Moreover, it cannot be said that upon

examining the text, structure, and purpose of the VJRA, it is fairly discernible that

Congress intended to preclude district court jurisdiction over constitutional claims likethose at issue inRobison and those at issue here. Indeed, as discussed above, the

legislative history of VJRA indicates the very opposite.

One recent courts decision is instructive. In Vietnam Veterans of America, a

district court in the Northern District of California certified a class of veterans and

veterans groups seeking declaratory relief for claims against the federal government,

alleging it had used volunteer service members as human test subjects for

experimental research of chemical and biological substances without first obtaining

informed consent. Id. at *1-5. Plaintiffs also made a procedural due process claim

challenging the VAs ability to be an objective evaluator in determining whether

veterans would be entitled to disability benefits based on participation in the

experimental research. See id. As here, the federal government argued that the

Supreme Courts decision inElgin compelled a finding that the district court lacked

jurisdiction over plaintiffs claims.

The court rejected the federal governments argument that 511 precluded its

jurisdiction over the claims. The court noted thatElgin was inapplicable to the claims

involved because (1)Elgins analysis focused exclusively on the CSRA and not the

VJRA, and (2) plaintiffs inElgin challenged specific, adverse employment decisions


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and sought reinstatement, back pay, and benefits, whereas plaintiffs in the case before

the court did not challenge any decision of the VA and sought only prospective relief.

Id. at *16 n.12. Like the plaintiffs in Vietnam Veterans of America, Plaintiffs here

neither challenge a specific decision of the Secretary nor seek retroactive relief such

as back benefits, as discussed above. The holding inElgin is not pertinent to this

Courts decision regarding the jurisdictional limitations of 511.

D. Plaintiffs Have Suffered a Particularized and Concrete Injury With

Respect to Burial And Spousal Death Benefits

Finally, Federal Defendants assert that Plaintiffs do not have standing to assert

claims to the extent they relate to Disability and Indemnity Compensation (DIC)

benefits and spousal burial rights in veterans cemeteries, because Tracey has not yet

died.5

Federal Defendants argue that Plaintiffs have suffered no injury-in-fact as to

these benefits because there is no eligible death and Plaintiffs have not yet satisfied

the statutory requirements for DIC benefits or burial. Mot. to Dismiss at 19-20.

The Court should reject Federal Defendants argument because the

classifications created by Congress under Title 38 and DOMA harm Plaintiffs now.

These statutes create uncertainty about one of the most important aspects of caring for

ones spouse: the planning of a spouses financial survival in the event of death,

particularly one that may be preceded by prolonged and expensive medical care. It is

undeniable that if Tracey were to die today from multiple sclerosis, Title 38 and

DOMA would operate as a barrier to Maggie receiving DIC benefits. It is also certain

that if Maggie died today, she would be denied burial in a veterans cemetery because

of Title 38 and DOMA. Indeed, Tracey and Maggie have already been deniedburial

5Federal Defendants do not challenge Plaintiffs standing with respect to the additional disability

compensation that they are being denied.


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benefits because of Title 38 and DOMA.6

Compl. 50.

Federal Defendants assertion that Plaintiffs may only bring their claims related

to DIC and burial benefits once there is an eligible death andthe surviving spouse

exhausts her administrative remedies, Mot. to Dismiss at 20, misunderstands the

requirements of standing. Courts are empowered to adjudicate declaratory relief

claims not only where a challenged event has in fact occurred but also where there is

the dispute between the parties that is definite and concrete, touching the legal

relations of parties having adverse legal interests. MedImmune, Inc. v. Genentech,

Inc., 549 U.S. 118, 127 (2007) (quotingAetna Life Ins. Co. v. Haworth, 300 U.S. 227,

240-41 (1937)) (internal quotation marks omitted).The United States District Court for the District of Massachusetts recently

addressed this issue inMassachusetts v. U.S. Dept of Health and Human Servs., 698

F. Supp. 2d 234, 245 (D. Mass. 2010) (challenging DOMA as unconstitutional as

applied to Massachusetts), affd, 682 F.3d 1 (1st Cir. 2012). The government

maintained that the Commonwealth failed to establish an injury-in-fact in its claim

alleging unconstitutional treatment by the VA if the Commonwealth allows same-sex

spouses to be buried in Commonwealth veterans cemeteries. Id. at 244-45. The

6Federal Defendants incorrectly state the statutory requirements for spousal burial in veterans

cemeteries. The only requirements for burial of a veterans spouse are a lawful marriage and that thespouse and veteran lived together until the spouses death. There is no requirement, as FederalDefendants assert, that the surviving spouse must not have remarried. Mot. to Dismiss at 19. Evenif the surviving spouse remarries, he or she remains eligible for burial in a veterans cemetery (withor without the veteran). 38 U.S.C. 2402 (a)(5). Section 2402 states that [u]nder such regulationsas the Secretary may prescribe . . . the remains of the following persons may be buried in any opennational cemetery under the control of the National Cemetery Administration: . . . (5) The spouse[

or] surviving spouse (which for purposes of this chapter includes a surviving spouse who had asubsequent remarriage) . . . of any of the persons listed in paragraph[] (1) [listing a veteran] . . . .).The veterans cemetery to which Tracey sought a pre-determination of burial eligibility for her andMaggie, the Northern California Veterans Cemetery, has the same requirements. U.S. Dept ofVeterans Affairs, National Cemetery Administration, Interments in Dept of Veterans Affairs (VA)National Cemeteries 7, http://www.cem.va.gov/CEM/pdf/IS1_Jan_2011.pdf ((1) The spouse orsurviving spouse of an eligible Veteran is eligible for interment in a national cemetery even if thatVeteran is not buried or memorialized in a national cemetery. . . . (2) The surviving spouse of aneligible Veteran who had a subsequent remarriage to a non-Veteran and whose death occurred on orafter January 1, 2000, is eligible for burial in a national cemetery, based on his or her marriage to theeligible Veteran.).


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court disagreed and stated that [s]tanding is not contingent, as the government

suggests, on [a veterans same-sex spouse] being lowered into his grave at

Winchendon [veterans cemetery], or on the Commonwealths receipt of an invoice

for millions in federal state veterans cemetery grant funds. Id. at 245. The court

explained that, [i]ndeed, a plaintiff is not required to expose himself to liability

before bringing suit to challenge the basis for the threat, particularly where, as here, it

is the government that threatens to impose certain obligations. Id. at 245 (quoting

MedImmune, Inc., 549 U.S. at 128-29). The court held there was an injury-in-fact that

was neither speculative nor hypothetical. Id. at 240.

Because of Title 38 and DOMA, Plaintiffs are unable to plan for their futurebecause it is uncertain as to whether these statutes will prevent the recognition of their

marriage. This reality is neither speculative nor hypothetical. Tracey and Maggie

were explicitly denied joint burial rights, forcing the couple to make alternate burial

plans. Similarly, as long as Title 38 or DOMA are law, Maggie isper se ineligible to

receive monthly DIC if Tracey dies from multiple sclerosis; the couple must,

therefore, take measures now to ensure that when Tracey dies, Maggie will be able to

support herself without the DIC. Their injury related to DIC benefits and joint burial

benefits are real and concrete even more so by the progression of Traceys service-

connected medical conditions, including multiple sclerosis and thus are ripe for

this Courts adjudication.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court deny

Federal Defendants motion to dismiss.


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DATED: January 28, 2013

Respectfully Submitted,

SOUTHERN POVERTY LAW CENTER

BY: /s/ Christine P. SunCHRISTINE P. SUN400 Washington Ave.Montgomery, AL 36104

[email protected]

WILMER CUTLER PICKERING HALEAND DORR LLP

Attorneys for Plaintiffs Tracey Cooper-Harrisand Maggie Cooper-Harris


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Civil Division - Federal Programs Branch

20 Massachusetts Avenue, Northwest

Washington, District of Columbia 20530

/s/ Adam RomeroAdam Romero


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