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1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 10 202-234-0090 (telephone) 202-234-2806 (facsimile) 11 12 Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov 14 William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) 16 Christine.Davenport@mail.house.gov Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov 18 Mary Beth Walker, Assistant Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) 20 Eleni.Roumel@mail.house.gov 21 OFFICE OF GENERAL COUNSEL, 22 U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building 23 Washington, D.C. 20515 24 202-225-9700 (telephone) 202-226-1360 (facsimile) 25 26 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 27 28

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

4 TRACEY COOPER-HARRIS and 5 MAGGIE COOPER-HARRIS, 6 7 8 v. 9 UNITED STATES OF AMERICA, et al., 10 11 12 and 13 BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE 14 OF REPRESENTATIVES, 15 Intervenor-Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendants, Plaintiffs,

No. 2:12-cv-00887-CBM (AJWx)

REPLY IN SUPPORT OF MOTION OF INTERVENOR DEFENDANT TO STAY PROCEEDINGS

Hearing: Jan. 28, 2013 Time: 10:00 a.m. Hon. Consuelo B. Marshall

On December 13, 2012, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (House) moved to stay these proceedings pending resolution by the Supreme Court in United States v. Windsor, No. 12-307, of an issue central to this case the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA). See Notice of Mot. & Mot. of [House] to Stay Proceedings (Dec. 13, 2012) (ECF No. 69) (House Stay Motion); Mem. of P. & A. in Supp. of [Houses] Mot. . . . to Stay Proceedings at 1 (Dec. 13, 2012) (ECF No. 69-1) (House Stay Memorandum). The Executive Branch defendants support the proposed stay. See Fed. Defs. Resp. to [Houses] Mot. to Stay Proceedings (Dec. 14, 2012) (ECF No. 71).

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Plaintiffs oppose the proposed stay on two grounds: (1) The stay will injure

2 them, they say, because of their dire financial circumstances; and (2) The stay is 3 unnecessary, they say, because the Supreme Courts decision in Windsor may not 4 inform this Courts analysis of Plaintiffs claims. See Pls. Mem. of Law in Oppn 5 to Intervenor-Def.s Second Mot. to Stay (Jan. 7, 2013) (ECF No. 73) (Plaintiffs 6 Opposition). Plaintiffs are wrong: (1) The proposed stay will not impose any 7 injury because it will not delay Plaintiffs receipt of any financial compensation by 8 even a single day (for the fundamental reason that, even were Plaintiffs fully to 9 prevail in this case, they would not obtain any financial redress); and (2) The 10 Windsor decision in fact will affect, if not control, every aspect of this case. 11 12 I. 13 14 ARGUMENT Plaintiffs Claim of Potential Harms Due to a Stay Is a Red Herring: A Stay Will Not Delay Plaintiffs Receipt of Financial Compensation. As the House and the Executive Branch defendants repeatedly have noted,

15 this Court cannot award Plaintiffs veterans benefits or any other monetary relief. 16 See House Stay Mem. at 10-13; Joint Conference Report Pursuant to Fed. R. Civ. 17 P. 26(f) at 3-4 (Aug. 17, 2012) (ECF No. 51) (Rule 26(f) Report) (jurisdictional 18 defects noted by the House); Reply in Supp. of Mot. of [House] to Stay 19 Proceedings at 5-8 (June 25, 2012) (ECF No. 43) (discussion of Veterans Judicial 20 Review Act); see also Fed. Defs. Notice of Mot. & Mot. to Dismiss for Lack of 21 Subject Matter Jurisdiction (Dec. 13, 2012) (ECF No. 68) (Executive Branch 22 Defendants Motion to Dismiss); Fed. Defs. Mem. of P. & A. in Supp. of Their 23 Mot. to Dismiss for Lack of Subject Matter Jurisdiction at 8-25 (Dec. 13, 2012) 24 (ECF No. 68-1). Despite now detailing their financial and medical difficulties, 25 Plaintiffs appear to recognize that they cannot obtain relief from these difficulties 26 through this action, as they acknowledge that they merely seek a declaration that 27 DOMA is unconstitutional. See Pls. Oppn at 13 (Rather, they are seeking a 28 2

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1 declaration that Section 3 of DOMA and Title 38 are unconstitutional and that, 2 going forward, their marriage should be recognized by the federal government.). 3 As such, Plaintiffs cannot demonstrate any potential harm from any stay in this 4 action, much less a stay of fewer than six months, as proposed here, to allow the 5 Supreme Court to issue its opinion in United States v. Windsor (expected by June 6 2013). 7 Plaintiffs repeated assertions that they will be harmed by their continued 8 ineligibility for certain disability compensation (in the amount of $125 per month), 9 see Pls. Oppn at 3, 12-15, does not change the fact that this Court is not vested 10 with the jurisdiction to provide Plaintiffs any monetary remedy. The Veterans 11 Judicial Review Act, Pub. L. No. 100-687, div. A, 102 Stat. 4105 (1988) 12 (VJRA), deprives federal district courts of jurisdiction over any benefits decision 13 made by the Secretary, as the Ninth Circuit recently held. See 38 U.S.C. 511 14 (The Secretary shall decide all questions of law and fact necessary to a decision 15 . . . that affects the provision of benefits . . . to veterans . . . . (emphasis added)); 16 Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1025-26 (9th Cir. 2012) 17 (en banc) ([38 U.S.C.] 511 precludes jurisdiction over a claim if it requires the 18 district court to review VA decisions that relate to benefits decisions (internal 19 quotation marks omitted)), cert. denied, S. Ct. , 81 U.S.L.W. 3130, 2013 WL 20 57122 (Jan. 7, 2013). Rather, jurisdiction over such benefits decisions is vested 21 exclusively in the Court of Appeals for Veterans Claims, with an appellate right to 22 the United States Court of Appeals for the Federal Circuit. See Veterans for 23 Common Sense, 678 F.3d at 1032. 24 In light of this jurisdictional reality, Plaintiffs cannot establish that a fair 25 possibility of harm exists. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th 26 Cir. 2005) (quoting Landis v. N. Am. Co., 299 U.S. 248, 255, 57 S. Ct. 163, 81 L. 27 Ed. 153 (1936)); see also Pls. Oppn at 14. Plaintiffs may be in need of the 28 3

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1 benefits now, but until the Secretary as checked only by the other adjudicatory 2 bodies noted above determines that an award of such benefits is appropriate, 3 Plaintiffs will be unable to receive any additional disability compensation. Pls. 4 Oppn at 14; see also Veterans for Common Sense, 678 F.3d at 1025 ( 511 5 broadened scope of previous 211 to cover decisions by Secretary in making 6 benefits determinations). 7 The entirety of Plaintiffs response to the Houses above-described point 8 that Plaintiffs will not be financially harmed by any delay in this case because 9 ultimately they never can obtain financial redress via this action appears in a 10 single footnote in Plaintiffs opposition: 11 12 13 14 15 16 17 18 19 20 21 22 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. 691 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).

23 Pls. Oppn at 14 n.3. 24 First, under Ninth Circuit precedent, Plaintiffs failure substantively to
1 25 respond to the Houses arguments constitutes a waiver.

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See generally In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (an issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it (internal quotation marks omitted)); Luat v. Mabus, (Continued . . .)

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Second, and more to the point, Plaintiffs reference apparently is to the

2 Ninth Circuits reservation of the question, in Veterans for Common Sense, of the 3 question of whether an individual seeking benefits would be barred by 511 from
2 4 bringing a facial constitutional challenge in the district court, 678 F.3d at 1034.

5 That question, however, leaves open the possibility, at most, that Plaintiffs may 6 advance in this Court a facial challenge to a statute that affects veterans benefits; 7 it offers Plaintiffs no window to obtain financial compensation through such an 8 action, a remedy expressly precluded by the Veterans for Common Sense decision. 9 See 678 F.3d at 1032 (exclusive jurisdiction of benefits decisions by Secretary lies 10 with Court of Appeals for Veterans Claims and Federal Circuit). In other words, 11 even if this Court were to credit Plaintiffs characterization of this case as a facial 12 constitutional challenge, and even were such actions viable in this Circuit (an open 13 but dubious proposition after Veterans for Common Sense), Plaintiffs 14 characterization only would serve to buttress the Houses contention that any stay 15 in this action will not delay by a single day Plaintiffs receipt of any financial
3 16 compensation.

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No. 3:11-cv-0496, 2011 WL 6152285, at *4 (S.D. Cal. Dec. 12, 2011) (failure to oppose argument constitutes waiver); Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) ([I]n most circumstances, failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue. (quoting Sportscare of Am., P.C. v. Multiplan, Inc., No. 2:10-cv-4414, 2011 WL 589955, at *1 (D.N.J. Feb. 10, 2011))). Cf. Zuspann v. Brown, 60 F.3d 1156, 1159 (5th Cir. 1995) (facial constitutional challenge dismissed when disguised as an individualized challenge to the VAs decision to deny [petitioner] benefits); Hicks v. Veterans Admin., 961 F.2d 1367, 1369-70 (8th Cir. 1992) (VJRA provisions amply evidence Congresss intent to include all issues, even constitutional ones, necessary to a decision which affects benefits in an exclusive appellate review scheme (emphasis added)). That Plaintiffs claims of harm are a red herring is further exposed by the reality that Plaintiffs themselves have caused and contributed to delays far more substantial than any that the proposed stay will occasion: Plaintiffs initially sought spousal benefits on April 19, 2011, by filing VA Form 21-686c. See Compl. 40 (Feb 1, 2012) (ECF No. 1). After those benefits were denied by a (Continued . . .)
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II.

Because the Windsor Decision Will Affect, If Not Control, Every Aspect of This Case, Principles of Judicial Economy Favor a Stay. As established above, Plaintiffs cannot establish any potential harm from the

4 granting of a stay, leaving this Court only to evaluate the orderly course of justice 5 measured in terms of the simplifying or complicating of issues, proof, and 6 questions of law which could be expected to result from a stay. CMAX, Inc. v. 7 Hall, 300 F.2d 265, 268 (9th Cir. 1962). As of the filing of the House Stay Motion, 8 of the twelve active cases challenging the constitutionality of DOMA, only this 9 case and that of Aranas v. Napolitano, No. 8:12-cv-01137 (C.D. Cal.), had not
4 10 been stayed. Two cases McLaughlin v. Panetta and Cardona v. Shinseki are

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particular VA Regional Office letter on August 8, 2011, Plaintiffs delayed more than seven months i.e., longer than the proposed stay at issue here before appealing that decision to the Board of Veterans Appeals. See id. 43; Pls. Mem. of Law in Oppn to [Houses] Mot. to Stay at 8 n.2 (June 18, 2012) (ECF No. 42) (On March 19, 2012, Tracey filed VA Form 9, appealing the VA Regional Offices denial of her claim to the Board of Veterans Appeals . . . .). Furthermore, this case has been pending for nearly a year without a dispositive motion filed by Plaintiffs counsel. Even if Plaintiffs (as they suggest) intend to file a motion for summary judgment this month, given the current posture of the case, such a motion likely will not be fully briefed and decided until after the Executive Branch Defendants Motion to Dismiss is resolved. Thus, it would appear that Plaintiffs yet to be filed dispositive motion will not be fully briefed and argued until, at the very earliest, after the Supreme Court has heard oral argument in Windsor, and thus within only weeks before the Supreme Court is likely to render its decision. See Pls. Oppn at 5.
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Order at 2, Golinski v. United States, Nos. 12-15388 & 12-15409 (9th Cir. Dec. 11, 2012) (ECF No. 156) (case will continue to be held in abeyance pending the decision of the United States Supreme Court in United States v. Windsor, No. 12-307); Order, Pedersen v. OPM, Nos. 12-3273 & 12-3872 (2d Cir. Nov. 28, 2012) (ECF No. 108) (briefing schedule suspending pending consultation with staff attorneys to hold case in abeyance in light of the grant of certiorari in Windsor); Order, Dragovich v. U.S. Dept of the Treas., Nos. 12-16461 & 12-16628 (9th Cir. Sept. 21, 2012) (ECF No. 12) (stayed until February 26, 2013, and allowing for additional continuance of the stay); Massachusetts v. HHS, 682 F.3d 1, 17 (1st Cir. 2012) (mandate stayed pending action by the Supreme Court on DOMA); Order, Cardona v. Shinseki, No. 11-3083 (Vet. App. Dec. 18, 2012); Order, Cozen OConnor, P.C. v. Tobits, No. 2:11-cv00045 (E.D. Pa. Sept. 25, 2012) (ECF No. 137) (case moved to suspense docket pending outcome of relevant cases); Minutes Order, Blesch v. Holder, No. 1:12-cv-01578 (E.D.N.Y. July 25, 2012) (ECF No. 21) (case stayed pending the Second Circuits resolution of Windsor v. United States); Electronic Order, McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. June 6, (Continued . . .)

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1 specifically worth mentioning, as they raise exactly the same equal protection 2 challenges to provisions of Title 38 as the present case, and each has been stayed 3 by their respective Courts. See Electronic Order, McLaughlin v. Panetta, No. 1:114 cv-11905 (D. Mass. June 6, 2012) (stayed pending First Circuits mandate in 5 Massachusetts v. HHS); Order, Cardona v. Shinseki, No. 11-3083 (Vet. App. Dec. 6 18, 2012) (cased stayed pending Windsor [b]ecause the resolution in Windsor is 7 likely to impact the instant appeal); see also House Stay Mem. at 4. 8 9 10 A. The Supreme Courts Ruling in Windsor Necessarily Will Resolve Issues Central to Plaintiffs Complaint.

Plaintiffs contend that judicial economy will not be promoted by a short stay

11 because the question presented to the Supreme Court in Windsor does not concern 12 the provisions of Title 38 challenged here and, thus, may not resolve all of 13 Plaintiffs constitutional claims. See Pls. Oppn at 10-12. First, under at least one 14 scenario DOMA is upheld by the Supreme Court as constitutional a decision in 15 Windsor will resolve this case in its entirety because this Court will not need to 16 reach the Title 38 question. As the House previously has noted, Plaintiffs can 17 prevail only if both DOMA Section 3 and the Title 38 provisions they challenge 18 are held unconstitutional. See House Stay Mem. at 8. Thus, if the constitutionality 19 20 21 22 2012) (stayed pending First Circuits mandate in Massachusetts v. HHS); Order, Bishop v. 23 United States, No. 4:04-cv-00848 (N.D. Okla. Mar. 30, 2012) (ECF No. 240) (all deadlines,
pretrial, and trial dates . . . are suspended pending further Order of this Court).

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Since the House filed its Motion to Stay, it has become aware of two additional cases challenging the constitutionality of DOMA. See Compl., Umbarger v. USCIS, No. 2:12-cv15600 (E.D. Mich. Dec. 20, 2012) (ECF No. 1); Compl. for Declaratory & Injunctive Relief Partridge v. Napolitano, No. 4:12-cv-06373 (N.D. Cal. Dec. 14, 2012) (ECF No. 1). As of this writing, neither the House nor the Executive Branch defendants have filed any documents in either of these cases.

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1 of DOMA Section 3 is upheld by the Supreme Court, this Court will have no
5 2 occasion to reach Plaintiffs Title 38 claim, and Plaintiffs case will be over.

Second, any decision by the Supreme Court will almost certainly impact the

4 positions of both the House and the Executive Branch defendants, as well as 5 potentially guide this Courts reasoning on any dispositive motion. A decision by 6 the Supreme Court finding DOMA unconstitutional still will be instructive as to 7 Plaintiffs equal protection claims under Title 38. The Supreme Courts 8 determination of the appropriate level of scrutiny unquestionably will shape this 9 Courts future opinion. See Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 10 863-64 (9th Cir. 1979) (courts discretion to grant stay does not require that the 11 issues in such proceedings are necessarily controlling of the action before the 12 court). 13 And, lastly, even were the Supreme Court to reject all avenues to the merits 14 in Windsor, and to dispose of the case on jurisdictional grounds, even that decision 15 would impact this case to the extent it commented on the Houses role in defending 16 statutes abandoned by the Executive Branch, as here. 17 18 19 B. A Stay Is Appropriate Because the Supreme Courts Ruling in Windsor Will Occur within a Reasonable Time.

As the Supreme Court likely will resolve at least one issue central to

20 Plaintiffs complaint by June 2013, there is no uncertainty that those proceedings 21 will be concluded within a reasonable time. Id. at 864. There is no risk of an 22 indefinite delay, nor will duplication of briefing matters serve any purpose, but 23 to expend unnecessarily the resources of both this court and counsel for all parties. 24 ASUSTek Computer, Inc. v. Ricoh Co., Ltd., No. 3:07-cv-01942, 2007 WL 25 26 27 28 8
Similarly, as the House previously has noted, in the event that the Supreme Court upholds DOMA, this Court will not need to reach the question of whether it has jurisdiction to hear this case under 38 U.S.C. 511. See House Stay Mem. at 8 n.5.
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1 4190689, at *3 (N.D. Cal. Nov. 21, 2007). Because the Supreme Court already has 2 granted certiorari in Windsor and set that case for oral argument, thereby 3 alleviating the possibility that pending issues will not be clarified for years. 4 Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000); see id. at 1119-20 (stay further 5 denied on grounds that as habeas proceeding it was to be a swift and imperative 6 remedy (quotation marks omitted)); see also Dependable Highway Exp., Inc. v. 7 Navigators Ins. Co., 498 F.3d 1059, 1067 (9th Cir. 2007) (stay of over two years 8 unacceptable where no indication arbitration proceedings that court was awaiting 9 even had commenced). Furthermore, the only shadow under which Plaintiffs 10 find themselves is one of their own making i.e., their failure to move for 11 summary judgment at any point for nearly a year and, more fundamentally, their 12 failure to advance their Board of Veterans appeal from which they might actually 13 obtain the financial relief that they bemoan the absence of here and exists 14 whether or not the stay is granted. ASUSTek Computer, Inc., 2007 WL 4190689, at 15 *2. 16 17 18 C. Plaintiffs Suggestion That This Court Proceed with Briefing on the Motion to Dismiss for Lack of Subject Matter Jurisdiction Suffers from the Same Defects as the Opposition in General.

Finally, Plaintiffs suggest that, should this Court grant a stay pending a

19 ruling by the Supreme Court, briefing on the Executive Branch defendants motion 20 to dismiss for lack of subject matter jurisdiction (ECF No. 68) is ripe for 21 adjudication. Pls. Oppn at 14 n.3. This argument, however, makes little sense. 22 As it is now clear that the Supreme Court will issue a decision impacting all of 23 Plaintiffs claims, this Court should not be required to consider, and the parties 24 should not be required to brief, an issue that ultimately may prove moot as a result 25 of the Supreme Courts forthcoming decision. 26 27 28 9

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CONCLUSION For the foregoing reasons, the Houses Motion to Stay should be granted.

3 The House notes its agreement with this Courts suggestion during the December 4 14, 2012 hearing that this motion may be decided without a hearing, and 5 accordingly requests that its Motion to Stay be decided on the papers. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory H. Christopher Bartolomucci. The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3s constitutionality in this case.
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Respectfully submitted, By: /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci BANCROFT PLLC 6 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives 7 January 14, 2013

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CERTIFICATE OF SERVICE I certify that on January 14, 2013, I electronically filed the foregoing Reply

3 in Support of Motion of Intervenor-Defendant to Stay Proceedings with the Clerk 4 of Court by using the CM/ECF system, which provided an electronic notice and 5 electronic link of the same to the following attorneys of record through the Courts 6 CM/ECF system: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Adam P. Romero, Esquire Rubina Ali, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 7 World Trade Center New York City, New York 10007 adam.romero@wilmerhale.com rubina.ali@wilmerhale.com Eugene Marder, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 950 Page Mill Road Palo Alto, California 94304 eugene.marder@wilmerhale.com Caren E. Short, Esquire Christine P. Sun, Esquire Joseph J. Levin, Jr., Esquire SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 caren.short@splcenter.org christine.sun@splcenter.org joe.levin@splcenter.org

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Randall R. Lee, Esquire Matthew D. Benedetto, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 350 South Grand Avenue Suite 2100 Los Angeles, California 90071 randall.lee@wilmerhale.com matthew.benedetto@wilmerhale.com Jean Lin, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch 20 Massachusetts Avenue, Northwest Washington, District of Columbia 20530 jean.lin@usdoj.gov

/s/ Todd B. Tatelman Todd B. Tatelman