Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 1 of 22 Page ID #:1128

1 JOSEPH J. LEVIN, JR. (Pro Hac Vice) joe.levin@splcenter.org 2 CHRISTINE P. SUN (SBN 218701) christine.sun@splcenter.org 3 CAREN E. SHORT (Pro Hac Vice) caren.short@splcenter.org 4 SOUTHERN POVERTY LAW CENTER 400 Washington Avenue 5 Montgomery, AL 36104 Telephone: (334) 956-8200 6 Facsimile: (334) 956-8481 7 (Caption Continued on Next Page) 8 9 10
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:12-CV-887-CBM-AJW

11 TRACEY COOPER-HARRIS and 12 MAGGIE COOPER-HARRIS, 13 14 15 16 UNITED STATES OF AMERICA; ERIC H. HOLDER, JR., in his official 17 capacity as Attorney General; and 18 ERIC K. SHINSEKI, in his official capacity as Secretary of Veterans 19 Affairs, 20 21 22 BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE 23 OF REPRESENTATIVES, 24 Intervenor-Defendant. 25 26 27 28 Defendants, vs. Plaintiffs,

WilmerHale

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO INTERVENOR-DEFENDANT’S SECOND MOTION TO STAY Hearing: January 28, 2013 Time: 10:00 a.m. Hon. Consuelo B. Marshall

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 2 of 22 Page ID #:1129

1 Randall R. Lee (SBN 152672) randall.lee@wilmerhale.com 2 Matthew Benedetto (SBN 252379) matthew.benedetto@wilmerhale.com 3 WILMER CUTLER PICKERING HALE AND DORR LLP 350 South Grand Avenue, Suite 2100 4 Los Angeles, CA 90071 Telephone: (213) 443-5300 5 Facsimile: (213) 443-5400 6 Adam P. Romero (Pro Hac Vice) adam.romero@wilmerhale.com 7 Rubina Ali (Pro Hac Vice) rubina.ali@wilmerhale.com 8 WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 9 New York, NY 10007 Telephone: (212) 230-8800 10 Facsimile: (212) 230-8888
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

11 Eugene Marder (SBN 275762) eugene.marder@wilmerhale.com 12 WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road 13 Palo Alto, California 94304 Telephone: (650) 858-6000 14 Facsimile: (650) 858-6100 15 Attorneys for Plaintiffs 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
ii

WilmerHale

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 3 of 22 Page ID #:1130

1 2 3 4 I. 5 II. 6 7 8 9 10 11
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

TABLE OF CONTENTS Page(s)

INTRODUCTION ................................................................................................ 1 BACKGROUND .................................................................................................. 2 A. B. C. Factual History ........................................................................................... 2 Procedural History ..................................................................................... 4 Plaintiffs’ Current Financial Status and Tracey’s Medical Condition .................................................................................................... 5 1. 2. Plaintiffs' Financial Status Tracey's Medical Condition

12 13 III. 14 15 16 17 18 19 20 21 22 23 IV. 24 25 26 27 28

ARGUMENT........................................................................................................ 8 A. B. Legal Standard ........................................................................................... 8 BLAG And Federal Defendants Have Failed To Identify A Single Hardship or Inequity In Being Required To Go Forward, Whereas The Potential Harm Of A Stay To Plaintiffs Is Significant ....................... 9 1. 2. 3. BLAG And Federal Defendants Have Failed To Identify A Single Hardship Or Inequity In Being Required To Go Forward Windsor Does Not Concern Title 38 And May Not Resolve Plaintiffs’ DOMA Claim The Potential Harm To Tracey And Maggie Cooper-Harris From A Stay Outweighs Any Burden To BLAG or Federal Defendants

WilmerHale

CONCLUSION .................................................................................................. 16

PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
iii

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 4 of 22 Page ID #:1131

1 2 3 Cases

TABLE OF AUTHORITIES Page(s)

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

4 Abassi v. BAE Systems Information, No. 10-CV-1745, 2010 WL 4443340 (S.D. Cal. Nov. 1, 2010) ............................................................................................................. 14 5 6 ASUSTek Computer Inc. v. Ricoh Co., No. C 07-01942, 2007 WL 4190689 (N.D. Cal. Nov. 21, 2007) ....................................................................................................... 8, 14 7 CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962) ......................................................... 8 8 9 Commonwealth of Massachusetts v. U.S. Dep’t of Health & Human Serv’s & Gill v. Office of Pers. Mgmt., 682 F.3d 1 (1st Cir. 2012)..................................................... 12 10 Dairy Am., Inc. v. New York Marine & Gen. Ins. Co., No. 07-CV-0537, 2009 WL 11 5218037 (E.D. Cal. Dec. 29, 2009) ........................................................................... 14 12 Dependable Highway Exp. Inc. v. Navigators Ins. Co., 498 F.3d 1069 (9th Cir. 2007) 13 ............................................................................................................................... 9, 10 14 Dragovich v. U.S. Dep’t of the Treasury, 872 F. Supp. 2d 944 (N.D. Cal. 2012) ....... 12 15 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. July 8, 2012) ............... 12 16 Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ........... 12 17 18 Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-16461 & 12-16628 (9th Cir.) ..... 1, 4, 5 19 Hollingsworth v. Perry, No. 12-144 (S. Ct.) ............................................................... 11 20 Hospital of Barstow, Inc. v. Sebelius, No. CV 11-10638, 2012 WL 893784 (C.D. Cal. Mar. 13, 2012) ........................................................................................................... 15 21 22 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)...................................................... 12 23 Landis v. North American Co., 299 U.S. 248 (1936) ............................................ passim 24 Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857 (9th Cir. 1979) ............... 8 25 Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ..................................... 8, 9, 10 26 Lopez v. Am. Express Bank, FSB, No. 09-cv-07335, 2010 WL 3637755 (C.D. Cal. 27 Sept. 17, 2010)........................................................................................................... 15 28 PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
iv

WilmerHale

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 5 of 22 Page ID #:1132

1 Murphy v. Target Corp., No. 09-CV-1436, 2010 WL 5101075 (S.D. Cal. Dec. 9, 2010) .......................................................................................................................... 14 2 Pedersen v. Office of Pers. Mgmt., No. 10-cv-1750, — F. Supp. 2d —, 2012 WL 3 3113883 (D. Conn. July 31, 2012) ............................................................................ 12 4 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)............................................................ 12 5 United States v. Windsor, No. 12-63 (S. Ct.)......................................................... passim 6 7 United States v. Windsor, 699 F.3d 169 (2d Cir. 2012) ............................................... 12 8 Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012) (en banc) .... 14 9 Veterans for Common Sense v. Shinseki, No. 12-196 (S. Ct.) ...................................... 14 10 Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983)........ 8, 13 11 Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) ................................ 12 12 Yong v. INS, 208 F.3d 1116, 1117-19 (9th Cir. 2000) .................................................... 9 13 14 Statutes 15 1 U.S.C. § 7 ("Defense of Marriage Act" or "DOMA") ........................................ passim 16 38 U.S.C. §§ 101(3) & (31) ("Title 38")................................................................ passim 17 18 19 20 Supreme Court Order List Dated Dec. 7, 2012 ............................................................ 11 21 Supreme Court Order List Dated Dec. 11, 2012 .......................................................... 11 22 Supreme Court Order List Dated Jan 7, 2013 .............................................................. 14 23 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
v

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

WilmerHale

Other Authorities Linda Greenhouse, “Standing and Delivering,” N.Y. Times (Dec. 12, 2012) .............. 11

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 6 of 22 Page ID #:1133

1 I. 2

INTRODUCTION This action seeks to vindicate the constitutional rights of a decorated Army

3 veteran, Tracey Cooper- Harris, and her same-sex spouse, Maggie Cooper-Harris. 4 Tracey served in the Army for twelve years and is currently suffering from multiple 5 sclerosis, which the Department of Veterans Affairs has determined is connected to 6 her military service. Because Tracey and Maggie’s lawful marriage is not recognized 7 by the federal government pursuant to two statutes, 38 U.S.C. §§ 101(3) & (31) 8 (“Title 38”) and Section 3 of 1 U.S.C. § 7 (“Defense of Marriage Act” or “DOMA”), 9 Tracey and Maggie are being denied dependency and other benefits routinely received 10 by similarly-situated veterans with opposite-sex spouses. The complaint was filed 11 nearly a year ago, on February 1, 2012, and Intervenor-Defendant Bipartisan Legal
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 Advisory Group of the U.S. House of Representatives (“BLAG”) has not yet answered 13 or moved to dismiss it. 14 Instead, on May 29, 2012, BLAG moved to stay the case pending resolution by

WilmerHale

15 the United States Court of Appeals for the Ninth Circuit of expedited appeals in 16 Golinski v. U.S. Office of Personnel Management, which concerns the 17 constitutionality of Section 3 of DOMA and which BLAG argued would likely control 18 this Court’s analysis of Plaintiffs’ constitutional claims. Plaintiffs opposed the motion 19 because BLAG could not identify any harm it might face in moving forward. By 20 contrast, the on-going denial of benefits is a significant hardship for Tracey and 21 Maggie because their monthly income barely covers their monthly expenses, which in 22 turn may adversely affect Tracey’s medical conditions, including her service23 connected multiple sclerosis. The Court denied the motion to stay on August 3, 2012. 24 (ECF No. 50.) 25 A mere four months later, BLAG filed a second motion to stay that rests on

26 essentially the same grounds as its first motion — that a higher court may issue a 27 decision that impacts this Court’s analysis of Plaintiffs’ claims. (ECF No. 69.) 28 Specifically, BLAG (joined by Federal Defendants) argues that a stay is warranted PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
1

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 7 of 22 Page ID #:1134

1 because the United States Supreme Court granted certiorari in United States v. 2 Windsor, which presents the question of the constitutionality of Section 3 of DOMA. 3 BLAG’s second motion to stay should be denied for the same reasons as the

4 first. Neither BLAG nor Federal Defendants have identified any harm to them in 5 moving forward, except the regular burdens of defending a lawsuit (which alone are a 6 legally insufficient basis for a stay). In sharp contrast, requiring Tracey and Maggie to 7 endure further delay would only serve to inflict greater injury and hardship on them, 8 with potentially adverse consequences for Tracey’s health. In fact, in the short time 9 since BLAG’s first motion to stay, Tracey’s multiple sclerosis has demonstrably 10 progressed, meaning any stay — even a relatively short one — may exact serious and 11 irreversible injury on Plaintiffs. Furthermore, there is no assurance that the Supreme
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 Court will ultimately rule on the constitutionality of Section 3 of DOMA in Windsor; 13 indeed, when the Supreme Court granted certiorari, the Court sua sponte asked for 14 briefing on standing and jurisdictional issues concerning the effect of the Federal 15 Defendants’ refusal to defend the statute, raising the distinct possibility that the case 16 may be resolved on grounds other than on the constitutionality of DOMA. In these 17 circumstances, Plaintiffs respectfully urge the Court to deny the motion to stay. 18 II. 19 20 BACKGROUND A. Factual History

WilmerHale

Tracey Cooper-Harris served honorably in the United States Army for

21 approximately twelve years, nine in active duty, reaching the rank of Sergeant. 22 (Compl. ¶¶ 2, 20-29, ECF No. 1; Declaration of Tracey Cooper-Harris in Support of 23 Plaintiffs’ Opposition to Intervenor-Defendant’s First Motion to Stay ¶ 4, ECF No. 24 42-1 (hereinafter “Tracey Cooper-Harris June Decl.”).) She served both in Operation 25 Enduring Freedom, where she was stationed in Kyrgyzstan, and Operation Iraqi 26 Freedom, where she was stationed in Kuwait and sent on frequent missions into Iraq. 27 (Compl. ¶¶ 2, 24-27; Tracey Cooper-Harris June Decl. ¶ 4.) For Tracey’s 28 distinguished service to the military and our nation, the United States government PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
2

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 8 of 22 Page ID #:1135

1 awarded her with over two dozen medals and commendations. (Compl. ¶¶ 2, 26, 28; 2 Tracey Cooper-Harris June Decl. ¶ 5.) She was honorably discharged in 2003. 3 (Compl. ¶¶ 2, 29; Tracey Cooper-Harris June Decl. ¶ 6.) 4 Tracey suffers from a number of conditions, including post-traumatic stress

5 disorder (“PTSD”) and multiple sclerosis. (Compl. ¶¶ 4-5; Tracey Cooper-Harris June 6 Decl. ¶¶ 7-8, 13-18.) The VA has determined that those conditions are “service7 connected” under 38 U.S.C. §101(16), and accordingly, Tracey receives monthly 8 disability compensation. (Compl. ¶¶ 4-5, 30, 39; Tracey Cooper-Harris June Decl. ¶¶ 9 7, 13.) 10 Tracey and Maggie married on November 1, 2008, pursuant to a duly issued

11 marriage license from the State of California. (Compl. ¶¶ 3, 37; Tracey Cooper-Harris
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 June Decl. ¶¶ 3, 9-12; Declaration of Maggie Cooper-Harris in Support of Plaintiffs’ 13 Opposition to Intervenor-Defendant’s First Motion to Stay ¶ 3, ECF No. 42-2 14 (hereinafter “Maggie Cooper-Harris June Decl.”).) In April 2011, Tracey attempted to 15 add Maggie as her spouse for purposes of receiving additional dependency 16 compensation and other benefits that the VA provides to married disabled veterans. 17 (Compl. ¶ 40; Tracey Cooper-Harris June Decl. ¶ 34.) The VA has thus far denied 18 Tracey’s claim to add Maggie as her dependent spouse on the ground that pursuant to 19 Title 38, “a veteran may only receive additional compensatory benefits for a spouse of 20 the opposite sex.” (Compl. ¶¶ 41-43; Tracey Cooper-Harris June Decl. ¶ 34.) 21 The federal government’s ongoing failure to recognize Maggie as Tracey’s

WilmerHale

22 spouse renders Tracey ineligible for additional disability compensation of 23 approximately $125 per month. Title 38 and Section 3 of DOMA also prevent 24 Maggie from being eligible to receive Disability and Indemnity Compensation 25 (“DIC”) — a monthly allowance currently provided to surviving spouses of deceased 26 disabled veterans at $1195 per month — should Tracey die from a service-connected 27 condition, as well as preclude Maggie from eligibility to be buried with Tracey in a 28 veterans’ cemetery. (Compl. ¶¶ 49-50.) PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
3

Case 2:12-cv-00887-CBM-AJW Document 73

Filed 01/07/13 Page 9 of 22 Page ID #:1136

1 2

B.

Procedural History

On February 1, 2012, Tracey and Maggie filed a complaint in this Court

3 alleging that Title 38 (which for the purposes of determining VA benefits eligibility 4 limits definitions of “surviving spouse” and “spouse” to persons of the opposite sex) 5 facially violates the equal protection component of the Due Process Clause of the 6 Fifth Amendment to the United States Constitution. (Id. ¶¶ 62-65.) The Complaint 7 further asserts that Section 3 of DOMA, which similarly limits the definition of 8 “spouse” for purposes of federal law to a person of the opposite sex, also violates the 9 right to equal protection under the Fifth Amendment as applied to Tracey and Maggie. 10 (Id. ¶¶ 66-69.) 11
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

On February 24, 2012, the United States, Attorney General Eric Holder, and

12 Secretary of Veterans Affairs Eric Shinseki (hereinafter “Federal Defendants”) 13 notified the Court that the Department of Justice would not defend the 14 constitutionality of Title 38 or Section 3 of DOMA because they had concluded that 15 the provisions were unconstitutional. (Defs.’ Notice to Ct., Feb. 24, 2012, ECF No. 16 16.) The Attorney General informed Members of Congress of its decision so that 17 Members who wished to defend DOMA and Title 38 could do so. (Id.) On April 2, 18 2012, BLAG filed a unopposed motion to intervene in the case. (ECF No. 17.) The 19 Court granted BLAG’s motion on May 22, 2012. (ECF No. 38.) 20 On May 29, 2012, BLAG filed a motion to stay “all proceedings in this case

WilmerHale

21 pending the ruling of the United States Court of Appeals for the Ninth Circuit in 22 Golinski v. U.S. Office of Personnel Management, Nos. 12-15388 & 12-15409, 23 including any ruling by that Court on any timely-filed petition for rehearing or petition 24 for rehearing en banc.” (ECF No. 39 at 1.) In support of its motion, BLAG argued 25 that “a ruling by the Ninth Circuit in Golinski on the merits of [DOMA] Section 3’s 26 constitutionality will significantly inform this Court’s determination of the merits of 27 plaintiffs’ claims.” (Id. at 3.) Plaintiffs opposed the motion because a stay could only 28 serve to harm them, and moving forward would not harm BLAG or Federal PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
4

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 10 of 22 Page ID #:1137

1 Defendants even if the Ninth Circuit ultimately decided the constitutionality of 2 DOMA in Golinski . (ECF No. 42.) On August 3, 2012, this Court denied the 3 motion. (ECF No. 50.) 4 On August 17, 2012, the parties filed a Joint Conference Report Pursuant to

5 Federal Rule of Civil Procedure 26(f). (ECF No. 51.) Thereafter, the parties 6 conducted discovery under a stipulated protective order entered by the Court. (ECF 7 Nos. 53-54.) Plaintiffs served initial disclosures, responded to discovery requests 8 from BLAG, and served seven expert reports. Neither BLAG nor Federal Defendants 9 served any expert reports. BLAG deposed two of Plaintiffs’ experts and, thereafter, 10 moved to exclude the reports of these two experts. (ECF No. 55.) The Court orally 11 denied BLAG’s motion to exclude at a hearing held on December 14, 2012. (ECF No.
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 72.) 13 On December 13, 2012, Federal Defendants filed a motion to dismiss the

14 complaint, challenging the Court’s subject matter jurisdiction. (ECF No. 68.) 15 Plaintiffs’ opposition is due January 22, 2013, and the motion is scheduled to be heard 16 on February 25, 2013. Plaintiffs are also preparing their motion for summary 17 judgment, which they anticipate filing in January 2013. 18 19 20 C. Plaintiffs’ Current Financial Status and Tracey’s Medical Condition 1. Plaintiffs’ Financial Status

WilmerHale

As described below, Tracey and Maggie’s financial situation is more difficult

21 and more uncertain now than at the time of their opposition to BLAG’s first motion to 22 stay. (Declaration of Tracey Cooper-Harris in Support of Plaintiffs’ Opposition to 23 Intervenor-Defendant’s Second Motion to Stay ¶ 5, filed Jan. 7, 2013 (“hereinafter 24 Tracey Cooper-Harris January Decl.”).) For years, the couple has struggled to make 25 ends meet. (Tracey Cooper-Harris June Decl. ¶ 30; Maggie Cooper-Harris June Decl. 26 ¶ 9.) After returning from her deployment in the Middle East, Tracey — like many 27 veterans — struggled to find gainful employment until very recently. (Tracey 28 Cooper-Harris June Decl. ¶¶ 7, 19.) In March 2012, Tracey was able to find a job at PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
5

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 11 of 22 Page ID #:1138

1 her local VA hospital helping veterans gain competitive employment; her salary is 2 approximately $2020 per month after taxes. (Id. ¶ 19.) Tracey also receives $1503 3 per month in disability compensation from the VA. (Tracey Cooper-Harris January 4 Decl. ¶ 14.) 5 In late July 2012, Maggie injured her knee and has been unable to continue her

6 work as a transportation electrician’s apprentice with the International Brotherhood of 7 Electrical Workers (“IBEW”). (Id. ¶¶ 7-8.) Maggie receives workers’ compensation, 8 but she will lose her healthcare coverage through the IBEW in April 2013. (Id. ¶¶ 99 10.) At that time, she will be eligible for Consolidated Omnibus Budget 10 Reconciliation Act (“COBRA)” coverage, which would cost between $50-99 dollars 11 for each of the first three months that it is in place. (Id. ¶ 11.) After that, COBRA
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 coverage for Maggie alone would cost between $1122-1172 per month. (Id. ¶ 12.) 13 Because of this additional expense, Maggie will likely go without healthcare coverage 14 beginning in July. (Id. ¶ 13.) 15 Tracey and Maggie’s combined income, which remains unstable given

WilmerHale

16 Maggie’s injury as well as the nature of Maggie’s work as a union apprentice, barely 17 covers their monthly expenses and soon may not be enough. (Id. ¶ 5.) These 18 expenses presently include rent, utilities, food, gasoline, and student loan debt 19 payments. (Id. ¶ 6; Tracey Cooper-Harris June Decl. ¶¶ 23-27, 30; Maggie Cooper20 Harris June Decl. ¶¶ 8-9; see also Compl. ¶ 32.) Consequently, the additional benefits 21 to which Tracey and Maggie are entitled but for Title 38 and DOMA would have a 22 substantial and definite positive effect on Tracey and Maggie’s lives. (Tracey 23 Cooper-Harris June Decl. ¶¶ 30-33; Maggie Cooper-Harris June Decl. ¶ 9.) For 24 example, Tracey and Maggie are currently unable to afford the diet that Tracey’s 25 doctor recommends to manage her service-connected multiple sclerosis. (Tracey 26 Cooper-Harris June Decl. ¶ 31.) Tracey and Maggie are also unable to save for 27 inevitable healthcare expenses related to Tracey’s progressing ailment, such as an in28 home healthcare worker. (Id. ¶ 32.) The additional income that would result from the PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
6

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 12 of 22 Page ID #:1139

1 federal government recognizing Maggie as Tracey’s spouse would be used toward 2 these health-related expenses. (Id. ¶ 33.) 3 4 2. Tracey’s Medical Condition

As Plaintiffs explained in their opposition to BLAG’s first motion to stay,

5 Tracey first began noticing symptoms of multiple sclerosis in December 2009. (Id. 6 ¶ 13.) She was officially diagnosed in July 2010, and the VA determined her multiple 7 sclerosis to be service-connected in 2011. (Compl. ¶¶ 4-5; Tracey Cooper-Harris June 8 Decl. ¶ 13.) Multiple sclerosis is a chronic, often disabling disease that attacks a 9 person’s brain and central nervous system, and for which there is no known cure. 10 (Compl. ¶ 4.) 11
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

As a result of her multiple sclerosis, Tracey currently experiences blurry vision,

12 sharp electrical charges in different parts of her body, tingling in her extremities, loss 13 of balance, and fatigue. (Tracey Cooper-Harris June Decl. ¶ 14.) Tracey is in the 14 early stages of the disease and is taking medication to slow its progression; however, 15 multiple sclerosis eventually can affect Tracey’s balance such that she would require a 16 wheelchair to move around, and potential loss of vision in one or both eyes. (Id. 17 ¶ 15.) As the disease progresses, Tracey may lose involuntary reflexes, 18 neuromuscular function, and coordination, which will make it difficult for her to care 19 for herself. (Tracey Cooper-Harris June Decl. ¶ 15.) Tracey currently is doing her 20 best, with her wife Maggie’s help and support, to stay as healthy as possible and 21 maintain a positive attitude about her disease. (Id. ¶¶ 16-18; Maggie Cooper-Harris 22 June Decl. ¶¶ 10-11.) 23 In the past several months, certain symptoms of Tracey’s multiple sclerosis

WilmerHale

24 have become more frequent. (Tracey Cooper-Harris January Decl. ¶ 16.) She has 25 experienced increased fatigue and exhaustion, increased occurrences of hand tremors, 26 and increased occurrences of blurred vision. (Id.) Tracey’s neurologist at the VA has 27 confirmed that the symptoms are related to the progression of her multiple sclerosis. 28 (Id.) PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
7

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 13 of 22 Page ID #:1140

1 III. 2 3

ARGUMENT A. Legal Standard

Courts have inherent power to stay proceedings where the moving party

4 establishes that a stay would promote the interests of the court or parties. See Landis 5 v. North American Co., 299 U.S. 248, 254-55 (1936). “The party seeking a stay must 6 justify it by clear and convincing circumstances outweighing potential harm to the 7 party against whom it is operative.” Williford v. Armstrong World Indus., Inc., 715 8 F.2d 124, 127 (4th Cir. 1983) (emphasis added). In determining whether to stay 9 proceedings at the request of one party, a court must weigh competing interests, 10 including “the possible damage which may result from the granting of a stay, the 11 hardship or inequity which a party may suffer in being required to go forward, and the
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 orderly course of justice measured in terms of the simplifying or complicating of 13 issues, proof, and questions of law which could be expected to result from a stay.” 14 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at 25415 55). BLAG bears the heavy burden to justify a stay here, for “[o]nly in rare 16 circumstances will a litigant in one cause be compelled to stand aside while a litigant 17 in another settles the rule of law that will define the rights of both.’” Lockyer v. 18 Mirant Corp., 398 F.3d 1098, 1109-10 (9th Cir. 2005) (quoting Landis, 299 U.S. at 19 255). 20 Furthermore, as the Ninth Circuit has cautioned, staying an action pending

WilmerHale

21 resolution of independent proceedings that bear upon the case “should not be granted 22 unless it appears likely the other proceedings will be concluded within a reasonable 23 time in relation to the urgency of the claims presented to the court.” Leyva v. 24 Certified Grocers of California, Ltd., 593 F.2d 857, 864 (9th Cir. 1979) (emphasis 25 added). The Ninth Circuit has also “acknowledged that a stay pending appeal is of 26 dubious character and may result in indefinite delay.” ASUSTek Computer Inc. v. 27 Ricoh Co., No. C 07-01942, 2007 WL 4190689, at *3 (N.D. Cal. Nov. 21, 2007) 28 (citing Yong v. INS, 208 F.3d 1116, 1117-19 (9th Cir. 2000); Dependable Highway PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
8

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 14 of 22 Page ID #:1141

1 Exp. Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007); Lockyer, 398 2 F.3d at 1105)). B. BLAG And Federal Defendants Have Failed To Identify A Single 3 Hardship or Inequity In Being Required To Go Forward, Whereas The Potential Harm To Plaintiffs Of A Stay Is Significant 4 5 BLAG and Federal Defendants seek to stay all proceedings in this case pending

6 a ruling by the Supreme Court in United States v. Windsor, which they argue will 7 likely inform if not control this Court’s determination of the merits of Plaintiffs’ 8 claims. A stay pending resolution of Windsor is not warranted for at least three 9 reasons. First, neither BLAG nor Federal Defendants have identified any hardship to 10 them in moving forward, nor could they. Second, Windsor does not concern Title 38, 11 a statute that preceded the passage of DOMA, and furthermore there is no assurance
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 that the Supreme Court will even reach the constitutionality of Section 3 of DOMA. 13 Third, a stay will harm Tracey and Maggie, who are having difficulty making ends 14 meet without the additional benefits they are being denied, and may be detrimental to 15 Tracey’s health. Under these circumstances, a stay is decidedly not appropriate. 16 17 18 1. BLAG And Federal Defendants Have Failed To Identify A Single Hardship Or Inequity In Being Required To Go Forward

WilmerHale

As the Supreme Court made clear in Landis, in order succeed on its motion to

19 stay proceedings, the moving party “‘must make out a clear case of hardship or 20 inequity in being required to go forward, if there is even a fair possibility that the stay 21 for which he prays will work damage to someone else.’” Lockyer, 398 F.3d at 1109 22 (quoting Landis, 299 U.S. at 255). As was the case when this Court denied BLAG’s 23 first motion to stay, neither BLAG nor Federal Defendants have made any showing — 24 let alone a “clear case” — that it will face any hardship or inequity by moving forward 25 in this action. At most, BLAG and Federal Defendants argue that they will be required to 26 27 expend resources if this action is not stayed. But the law is clear that “being required 28 to defend a suit, without more, does not constitute a ‘clear case of hardship or PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
9

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 15 of 22 Page ID #:1142

1 inequity’ within the meaning of Landis.” Lockyer, 398 F.3d at 1112. What is more, 2 the resources BLAG and Federal Defendants would have to expend are minimal, 3 because discovery is complete and BLAG’s single motion to exclude has been 4 decided. Only briefing on the parties’ dispositive motions remains, and this briefing 5 will be substantially similar, if not nearly identical, to briefs filed in other DOMA 6 actions in which BLAG and defendants represented by DOJ are parties. There is no 7 hardship to BLAG or Federal Defendants in proceeding with this action. 8 9 10 2. Windsor Does Not Concern Title 38 And May Not Resolve Plaintiffs’ DOMA Claim

BLAG’s and Federal Defendants’ sole new argument in support of a stay is that

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

11 the Supreme Court may issue a decision in Windsor that will inform this Court’s 12 analysis of Plaintiffs’ claims. But this justification alone is entirely insufficient under 13 controlling case law. See Dependable Highway Exp. Inc. v. Navigators Ins. Co., 498 14 F.3d 1059, 1066 (9th Cir. 2007) (holding Landis stay was inappropriate and 15 explaining that “case management standing alone is not necessarily a sufficient 16 ground to stay proceedings”); Lockyer, 398 F.3d at 1112 (holding Landis stay was 17 inappropriate where grounds other than judicial economy were offered and found to 18 lack merit). 19 The petition for certiorari in Windsor, as BLAG and Federal Defendants note, 20 presents the question of the constitutionality of Section 3 of DOMA, stemming from 21 decisions invalidating the statute by the United States Court of Appeals for the Second 22 Circuit and the District Court for the Southern District of New York. BLAG and 23 Federal Defendants, however, overstate the potential effect that a decision in Windsor 24 will have on Tracey and Maggie’s claims. Even assuming the Supreme Court decides 25 the constitutionality of Section 3 of DOMA, that decision would not be dispositive of 26 Plaintiffs’ challenge to Title 38. Title 38 will remain intact and will continue to deny 27 Tracey and Maggie recognition of their marriage until their claims can be addressed in 28 this Court. The definitions of “spouse” and “surviving spouse” in Title 38, which PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
10

WilmerHale

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 16 of 22 Page ID #:1143

1 specifically concern the benefits provided to veterans, will not necessarily be affected 2 by a decision on the constitutionality of DOMA because BLAG could assert 3 justifications or rationales for Title 38 distinct from those asserted in support of 4 DOMA. 5 Furthermore, there is no assurance that the Supreme Court will even reach the

6 issue of DOMA’s constitutionality in Windsor. Indeed, when the Supreme Court 7 granted certiorari, the Court sua sponte raised questions about its own jurisdiction and 8 BLAG’s standing: 9 10 11
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 13

In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

WilmerHale

14 Supreme Court Order List Dated Dec. 7, 2012, available at 15 http://www.supremecourt.gov/orders/courtorders/120712zr_3f14.pdf. Recognizing 16 the importance of these questions, the Court appointed Harvard law professor Vicki 17 Jackson to brief and argue them as amicus curiae. See Supreme Court Order List 18 Dated Dec. 11, 2012, available at http://www.supremecourt.gov/orders/courtorders/ 19 121112zr_m648.pdf; see also Linda Greenhouse, “Standing and Delivering,” N.Y. 20 Times (Dec. 12, 2012), at http://opinionator.blogs.nytimes.com/2012/12/12/standing21 and-delivering/ (last accessed Jan. 5, 2013) (describing the context in which the Court
1 22 added the jurisdictional questions to Windsor). Thus, the very premise of BLAG’s 23 and the Federal Defendants’ motion for a stay — that the Supreme Court will decide

24 the constitutionality of DOMA — is entirely uncertain. 25 26 27 28
In support of its motion to stay, BLAG also cites the Supreme Court’s grant of certiorari in Hollingsworth v. Perry, No. 12-144, which presents the constitutionality of Proposition 8, a ballot initiative that amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” (ECF No. 69-1at 5-7.) However, similar to Windsor, the Court sua sponte ordered the parties to brief and argue the issue of the petitioners’ standing; therefore, there is no assurance that the Court will rule on the validity of Proposition 8 in Perry. See Supreme Court Order List Dated Dec. 7, 2012, available at http://www.supremecourt.gov/orders/courtorders/ 120712zr_3f14.pdf.
1

PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
11

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 17 of 22 Page ID #:1144

1

Finally, even if the Supreme Court does ultimately decide the constitutionality

2 of Section 3 of DOMA in Windsor, there is no reason to assume that the Court will 3 uphold the statute. All recent federal court decisions considering the issue, including 4 decisions by the First and Second Circuits, have invalidated the statute. See United 5 States v. Windsor, 699 F.3d 169 (2d Cir. 2012); Commonwealth of Massachusetts v. 6 U.S. Dep’t of Health & Human Serv’s & Gill v. Office of Pers. Mgmt., 682 F.3d 1 (1st 7 Cir. 2012); Pedersen v. Office of Pers. Mgmt., No. 10-cv-1750, — F. Supp. 2d —, 8 2012 WL 3113883 (D. Conn. July 31, 2012); Windsor v. United States, 833 F. Supp. 9 2d 394 (S.D.N.Y. 2012); Dragovich v. U.S. Dep’t of the Treasury, 872 F. Supp. 2d 10 944 (N.D. Cal. 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. 11 Cal. 2012); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. July 8, 2012);
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011); see also Perry v. Brown, 671 F.3d 13 1052 (9th Cir. 2012) (holding California’s Proposition 8 unconstitutional under the 14 Equal Protection Clause of the Fourteenth Amendment). There is no reason to 15 assume that the Supreme Court will not arrive at the same result — that Section 3 of 16 DOMA is unconstitutional. Accordingly, a stay of Tracey and Maggie’s claims will 17 only serve to delay justice and vindication of their constitutional rights. 18 19 20 3. The Potential Harm To Tracey And Maggie Cooper-Harris From A Stay Outweighs Any Burden To BLAG or Federal Defendants

WilmerHale

While BLAG and Federal Defendants will not be harmed by proceeding in this

21 case, the potential harm of a stay to Tracey and Maggie would be substantial. This 22 case has been pending for nearly a year, and further delay will result in financial harm 23 to Tracey and Maggie. Even more importantly, the financial hardship caused by Title 24 38 and DOMA, exacerbated by any stay, could result in physical harm to Tracey. 25 Tracey has been living with multiple sclerosis since 2009. From the moment she 26 discovered she had multiple sclerosis, Tracey resolved to ensure that Maggie is 27 provided for when the disease makes it impossible for Tracey to care for herself, and, 28 ultimately, when it takes her life. To that end, on April 19, 2011, Tracey sought to PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
12

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 18 of 22 Page ID #:1145

1 have her marriage recognized by the federal government so that the couple may 2 receive the benefits other married veterans receive. 3 Each month that passes represents a month that Tracey is not receiving

4 additional disability compensation as a disabled veteran who is legally married, and 5 such past deprivations cannot be remedied by this Court because Tracey and Maggie 6 are not seeking damages here.2 Rather, they are seeking a declaration that section 3 of 7 DOMA and Title 38 are unconstitutional and that, going forward, their marriage 8 should be recognized by the federal government. Until this case is resolved, Tracey is 9 treated by the VA as a single veteran in every respect, including for the purpose of 10 determining disability compensation. 11
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

The uncertainty of Tracey’s future health also weighs against granting a stay.

12 As the Fourth Circuit has explained, “of particular significance in balancing the 13 competing interests of the parties . . . are the human aspects of the needs of a plaintiff 14 in declining health as opposed to the practical problems imposed by the proceedings . . 15 . which very well could be pending for a long period of time.” Williford v. Armstrong 16 World Indus., Inc., 715 F.2d 124, 127-28 (4th Cir. 1983) (denying a stay in an 17 asbestos injury suit pending defendants’ related bankruptcy proceeding). 18 It is difficult to predict precisely how multiple sclerosis will affect Tracey in the

WilmerHale

19 months and years to come, but the disease is debilitating and often leads to loss of 20 vision and the ability to walk. In just the past few months, Tracey has suffered from 21 increased fatigue, hand tremors, and blurred vision — all symptoms of her multiple 22 sclerosis. Tracey and Maggie currently earn just enough income to cover their 23 monthly expenses and soon will incur additional expenses that will exhaust all of their 24 monthly income. Tracey’s receipt of additional monthly disability compensation 25 would allow her to allocate this income toward doctor-recommended healthcare and 26 27 28
By contrast to the on-going denial of benefits to Tracey and Maggie, the plaintiffs in Golinski — stayed by the Ninth Circuit pending Windsor — are currently receiving the benefits sought and won at the district court. See BLAG Omnibus Brief, Golinski v. Office of Pers. Mgmt., et al., No. 12-15388 (9th Cir. Mar. 26, 2012, ECF No. 21 at 16) (“ . . . Ms. Golinski’s [same-sex] spouse has been permitted to enroll in the Federal Employee Health Benefit Program.”).
2

PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
13

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 19 of 22 Page ID #:1146

1 dietary expenses and saving for the inevitable healthcare costs for her future care. 2 Staying this case and requiring Tracey and Maggie to wait half a year if not longer for 3 this Court to hear their constitutional claims, including those that are entirely separate 4 from the claims in Windsor, is not reasonable in light of the urgency of their claims 5 and Tracey’s illness. 6 BLAG suggests that Plaintiffs will not be harmed by a stay because “any

7 eventual award of compensation will date back to” April 19, 2011 — when Tracey 8 first applied to the VA for the benefits. (ECF No. 69-1 at 12.3) This argument is 9 entirely beside the point. Tracey and Maggie are in need of the benefits now, for any 10 future award cannot turn back the clock to undo any irreversible progression in 11 Tracey’s multiple sclerosis that could have been mitigated had they timely received
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12 benefits. 13 California district courts have acknowledged a “fair possibility” of harm

14 sufficient to deny stays under much less compelling circumstances. See, e.g., Murphy 15 v. Target Corp., No. 09-CV-1436, 2010 WL 5101075, at *2 (S.D. Cal. Dec. 9, 2010) 16 (finding that a potential increase in difficulty contacting class members over time 17 constitutes a sufficient “possibility of damage”); Abassi v. BAE Systems Information, 18 No. 10-CV-1745, 2010 WL 4443340, at *1 (S.D. Cal. Nov. 1, 2010) (“Significant 19 delay in initiating discovery may result in faded memories and lost documents.”); 20 Dairy Am., Inc. v. New York Marine & Gen. Ins. Co., No. 07-CV-0537, 2009 WL 21 5218037, at *8 (E.D. Cal. Dec. 29, 2009) (finding that significant delay is a 22 “substantial harm to defendants”); ASUSTek Computer Inc. v. Ricoh Co., No. C 0723 01942, 2007 WL 4190689, at *2 (N.D. Cal. Nov. 21, 2007) (finding that “living in the 24 25 26 27 28
In this connection, Plaintiffs note that on January 7, 2013, the Supreme Court denied certiorari in Veterans for Common Sense v. Shinseki, No. 12-296 (S. Ct.). See Supreme Court Order List Dated Jan. 7, 2013, available at http://www.supremecourt.gov/orders/ courtorders/010713zor_5426.pdf. In Veterans for Common Sense — cited by BLAG in its second motion to stay (ECF No. 69-1 at 10-11 & n.9) — the Ninth Circuit explicitly did not answer the jurisdictional question presented by Federal Defendants’ motion to dismiss Plaintiffs’ case before this Court (ECF No. 68). See Veterans 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 Court not stay the subject matter jurisdiction issue presented by Federal Defendants’ motion to dismiss (ECF No. 68). Windsor has no bearing on that issue and it is ripe for adjudication.
3

WilmerHale

PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
14

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 20 of 22 Page ID #:1147

1 shadow of . . . threatened patent litigation” is prejudice and inefficiency enough to 2 “greatly outweigh any gains” from granting a stay). 3 BLAG’s reliance on Hospital of Barstow, Inc. v. Sebelius, No. CV 11-10638,

4 2012 WL 893784 (C.D. Cal. Mar. 13, 2012), is misplaced. As the court emphasized, 5 the reduced Medicaid reimbursement schedule challenged by plaintiffs had already 6 expired, and “the only prejudice to plaintiffs due to a stay [was] a short delay in the 7 potential recovery of damages.” Id. at *3. Thus, unlike Tracey and Maggie, the 8 plaintiffs were not suffering an on-going injury and, significantly, were corporations 9 with evidently sufficient resources to continue operating during the stay. Here, the 10 on-going denial of benefits to Tracey and Maggie exacts an immediate harm on 11 human beings with potential adverse health consequences.
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

12

BLAG’s reliance on Lopez v. Am. Express Bank, FSB, No. 09-cv-07335, 2010

13 WL 3637755, at *4 (C.D. Cal. Sept. 17, 2010), is also misplaced. In that case, the 14 court explicitly determined that the defendants “will suffer substantial hardship if this 15 action is permitted to go forward,” including substantial fact and expert discovery, that 16 outweighed potential harm to the plaintiffs, who were alleging causes of action related 17 to terms and conditions of credit cards. Id. at *4. Not only is there no comparable 18 harm to BLAG or Federal Defendants in moving forward here, the plaintiffs’ claims in 19 Lopez do not appear to have presented the same urgency as Tracey and Maggie’s 20 claims given their financial uncertainty and Tracey’s medical condition. 21 In sum, BLAG and Federal Defendants have asserted no justification — nor

WilmerHale

22 could they — that would outweigh the couple’s interest in Tracey’s health and well23 being and their financial stability. BLAG and Federal Defendants have failed to 24 establish “a clear case of hardship or inequity in being required to go forward,” 25 necessary to overcome what is certainly more than a “fair possibility that the stay . . . 26 will work damage” to Tracey and Maggie. Landis, 299 U.S. at 255. Accordingly, 27 Tracey and Maggie should not be denied resolution of their case pending resolution of 28 Windsor. PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
15

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 21 of 22 Page ID #:1148

1 IV. 2 3

CONCLUSION For the foregoing reasons, the motion to stay should be denied.

4 DATE: January 7, 2013 5 6 7 8 9 10 11
350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071

Respectfully Submitted, SOUTHERN POVERTY LAW CENTER WILMER CUTLER PICKERING HALE AND DORR LLP BY: /s/ Randall R. Lee RANDALL R. LEE 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 (213) 443-5300 randall.lee@wilmerhale.com

Attorneys for Plaintiffs

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO MOTION TO STAY
16

WilmerHale

Case 2:12-cv-00887-CBM-AJW Document 73 Filed 01/07/13 Page 22 of 22 Page ID #:1149

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

CERTIFICATE OF SERVICE I certify that on January 7, 2013, I electronically filed the foregoing Plaintiffs’ Memorandum Of Law In Opposition To Intervenor-Defendant’s 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 record through the Court’s CM/ECF system: Paul D. Clement, pclement@bancroftpllc.com H. Christopher Bartolomucci, cbartolomucci@bancroftpllc.com Nicholas J. Nelson, nnelson@bancroftpllc.com Michael H. McGinley, mmcginley@bancroftpllc.com BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 Kerry W. Kircher, Kerry.Kircher@mail.house.gov William Pittard, William.Pittard@mail.house.gov Christine Davenport, Christine.Davenport@mail.house.gov Todd B. Tatelman, Todd.Tatelman@mail.house.gov Mary Beth Walker, MaryBeth.Walker@mail.house.gov Eleni M. Roumel, Eleni.Roumel@mail.house.gov OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Jean Lin, jean.lin@usdoj.gov U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch 20 Massachusetts Avenue, Northwest Washington, District of Columbia 20530

/s/ Adam P. Romero Adam P. Romero

PLAINTIFF’S OPPOSITION TO MOTION TO STAY

Case 2:12-cv-00887-CBM-AJW Document 73-1 #:1150

Filed 01/07/13 Page 1 of 6 Page ID

1 2 3 4 5 6 7 8 9
Wilmer Cutler Pickering Hale and Dorr LLP

JOSEPH J. LEVIN, JR. (Pro Hac Vice) joe.levin@splcenter.org CHRISTINE P. SUN (SBN 218701) christine.sun@splcenter.org CAREN E. SHORT (Pro Hac Vice) caren.short@splcenter.org SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 Telephone: (334) 956-8200 Facsimile: (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, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV12-887 CBM (AJWx) DECLARATION OF TRACEY COOPER-HARRIS IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO INTERVENOR DEFENDANT’S MOTION TO STAY

10
350 South Grand Avenue, Suite 2100 Los Angeles, California 90071

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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.

DECLARATION OF TRACEY COOPER-HARRIS CASE NO. CV 12-887 CBM (AJWx)

Case 2:12-cv-00887-CBM-AJW Document 73-1 #:1151

Filed 01/07/13 Page 2 of 6 Page ID

1 2 3 4 5 6 7 8 9
Wilmer Cutler Pickering Hale and Dorr LLP

RANDALL R. LEE (SBN 152672) randall.lee@wilmerhale.com MATTHEW BENEDETTO (SBN 252379) matthew.benedetto@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 443-5300 Facsimile: (213) 443-5400 ADAM P. ROMERO (Pro Hac Vice) adam.romero@wilmerhale.com RUBINA ALI (Pro Hac Vice) rubina.ali@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 399 Park Avenue New York, NY 10022 Telephone: (212) 230-8800 Facsimile: (212) 230-8888 EUGENE MARDER (SBN 275762) eugene.marder@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 Attorneys for Plaintiffs TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS

10
350 South Grand Avenue, Suite 2100 Los Angeles, California 90071

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION OF TRACEY COOPER-HARRIS CASE NO. CV 12-887 CBM (AJWx)

Case 2:12-cv-00887-CBM-AJW Document 73-1 #:1152

Filed 01/07/13 Page 3 of 6 Page ID

1 2 3 4 5 6 7 8 9
Wilmer Cutler Pickering Hale and Dorr LLP

I, Tracey Cooper-Harris, declare: 1. I am a plaintiff in the above-captioned action seeking recognition by the United States 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 stated herein and am competent to testify as to the matters set forth in this declaration. 3. I submit this declaration in support of Plaintiffs’ opposition to IntervenorDefendant BLAG’s second motion to stay this case. 4. All of the statements in my declaration in support of Plaintiffs’ opposition to Intervenor-Defendant’s first motion to stay, filed on June 18, 2012, remain true except as updated below. (ECF No. 42-1.) Maggie’s and My Financial Status 5. As described below, Maggie’s and my financial situation has become more difficult and more uncertain since the time of my first declaration. Our monthly income still barely covers our monthly expenses and, for the reasons provided below, our monthly expenses may soon exceed our incomes. 6. On January 15, 2013, our roommate will be moving out of the apartment that we rent. Our roommate presently pays $600 per month toward the rent of the entire apartment. For the month of January, Maggie and I will be incurring half
1 DECLARATION OF TRACEY COOPER-HARRIS CASE NO. CV 12-887 CBM (AJWx)

10
350 South Grand Avenue, Suite 2100 Los Angeles, California 90071

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 2:12-cv-00887-CBM-AJW Document 73-1 #:1153

Filed 01/07/13 Page 4 of 6 Page ID

1 2 3 4 5 6 7 8 9
Wilmer Cutler Pickering Hale and Dorr LLP

of our roommate’s monthly share of the rent (i.e., $300). Starting February 1, 2013 and for the foreseeable future, we will be incurring our roommate’s full $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 she sustained to her knee while on the job on July 25, 2012. She is receiving workers’ compensation and has been seeing a doctor and completing physical therapy. 8. After her injury, Maggie was approved for “light duty.” However, such jobs are extremely rare for someone in Maggie’s position at the International Brotherhood of Electrical Workers (“IBEW”). In fact, since Maggie’s injury, no “light duty” jobs have been available to her. 9. Maggie currently has health insurance through the IBEW. Her health insurance with 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, if Maggie works at least 100 hours in January, she will have health insurance for the month of May. Hours worked beyond 100 hours in a month can be banked for health insurance purposes, up to 600 hours.

10
350 South Grand Avenue, Suite 2100 Los Angeles, California 90071

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2 DECLARATION OF TRACEY COOPER-HARRIS CASE NO. CV 12-887 CBM (AJWx)

Case 2:12-cv-00887-CBM-AJW Document 73-1 #:1154

Filed 01/07/13 Page 5 of 6 Page ID

1 2 3 4 5 6 7 8 9
Wilmer Cutler Pickering Hale and Dorr LLP

10.

Because Maggie has not worked since the end of July, she has been using her banked hours to maintain her health insurance through the IBEW. Maggie has 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 to accumulate more hours toward coverage in April.

11.

Maggie has been informed that she is eligible for continuation of health coverage 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 that includes only medical and prescription coverage (“CORE”) for only Maggie (that is, not including coverage for me) would cost $50 per month. Coverage that includes vision and dental coverage in addition to medical and prescription coverage (“CORE Plus”) for only Maggie would cost $99 per month.

10
350 South Grand Avenue, Suite 2100 Los Angeles, California 90071

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. 12.

However, beginning in July 2013, health care coverage through COBRA would increase exponentially. CORE coverage for only Maggie would cost $1122 per month and CORE Plus coverage for only Maggie would cost $1172 per month. Because of the additional cost of healthcare coverage under COBRA and our current financial situation, we may not be able to afford healthcare coverage for 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
3 DECLARATION OF TRACEY COOPER-HARRIS CASE NO. CV 12-887 CBM (AJWx)

Case 2:12-cv-00887-CBM-AJW Document 73-1 #:1155

Filed 01/07/13 Page 6 of 6 Page ID