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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

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 1 of 22 Page ID #:112

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PLAINTIFFSOPPOSITION TO MOTION TO S

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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. ))

Case 2:12-cv-00887-CBM-AJW Document 73-1 Filed 01/07/13 Page 1 of 6 Page ID#:1150

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DECLARATION OF TRACEY COOPER-HARCASE NO. CV 12-887 CBM (AJ

Wilm


LLP


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


LLP


LosAngeles,

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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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Wilm


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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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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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