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1 Paul D. Clement (DC Bar 433215) 2 H. Christopher Bartolomucci (DC Bar 453423) 3 Conor B. Dugan (DC Bar 1006458) 4 5 Nicholas J. Nelson (DC Bar 1001696) 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 14 William Pittard, Deputy General Counsel (DC Bar 482949) 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) 16 Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 18 Mary Beth Walker, Assistant Counsel (DC Bar 501033) 19 20 OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 21 219 Cannon House Office Building 22 Washington, D.C. 20515 202-225-9700 (telephone) 23 202-226-1360 (facsimile) 24 Counsel for Intervenor-Defendant the Bipartisan 25 Legal Advisory Group of the U.S. House of Representatives 26 27 28

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1 2 3

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 2:12-cv-00887-CBM (AJWx) REPLY IN SUPPORT OF MOTION OF INTERVENOR DEFENDANT TO STAY PROCEEDINGS Hearing: July 23, 2012 Time: 11:00 am Hon. Consuelo B. Marshall


On May 29, 2012, Intervenor-Defendant the Bipartisan Legal Advisory

17 Group of the U.S. House of Representatives (“House”) moved for entry of an order 18 staying all proceedings in this case pending the ruling of the Ninth Circuit in 19 Golinksi v. OPM, Nos. 12-15388 & 12-15079. See Mot. to Stay Proceedings (May 20 29, 2012) (ECF No. 31). The House now replies to Plaintiffs’ Memorandum of 21 Law in Opposition to . . . Motion to Stay (June 18, 2012) (ECF No. 42) (“Pls.’ 22 Opp’n”). 23 There is no room for serious dispute that the Ninth Circuit’s decision in

24 Golinski, will heavily impact, and likely will control, the outcome in this case. 25 Moreover, rushing this case to judgment ahead of Golinski will not ameliorate any 26 injury Plaintiffs claim to be suffering from lack of funds because any monetary 27 benefits award – as distinct from possible declaratory relief – cannot come from 28

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1 this Court; it would have to come from the Department of Veterans Affairs 2 (“VA”). Thus, for the same reasons this Court granted a stay in Hospital of 3 Barstow, Inc. v. Sebelius, No. 11-cv-10638, 2012 WL 893784, at *2-3 (C.D. Cal. 4 Mar. 13, 2012), it should do so here. 5 6 I. 7 ARGUMENT Judicial Economy Clearly Counsels In Favor of a Stay. The similarities between Golinski and this case, and the unquestionable

8 impact of Golinski on this case, are too obvious to dispute: both involve equal 9 protection challenges to Section 3 of the Defense of Marriage Act (“DOMA”) 10 which defines marriage, for purposes of federal law, as “a legal union between one 11 man and one woman as husband and wife.” 1 U.S.C. § 7. 12 Plaintiffs argue that judicial economy will not be promoted by a stay 13 because (i) this case involves, in addition to a challenge to DOMA Section 3, a 14 challenge to DOMA-like definitional provisions in Title 38, and (ii) Golinski does 15 not concern Title 38. See Pls.’ Opp’n at 15-17. This argument – because it 16 blithely assumes that there is only one possible outcome in Golinski, namely, that 17 the Ninth Circuit will affirm the district court and hold DOMA Section 3 18 unconstitutional, id. at 17 – is wrong. 19 DOMA Section 3 and Title 38 each independently bar Plaintiffs’ entitlement 20 to certain veterans’ benefits. Plaintiffs cannot prevail in this case unless both 21 statutes are deemed unconstitutional. Put another way, Plaintiffs cannot prevail in 22 this case if DOMA is constitutional. Accordingly, if the Ninth Circuit reverses in 23 Golinski and finds DOMA Section 3 constitutional – and plainly that is one 24 possible outcome of Golinski, see Br. of [House] at 20-57, Golinski v. OPM, Nos. 25 12-15388 & 12-15409 (9th Cir. June 4, 2012) (ECF No. 36) – that ruling would be 26 wholly dispositive here, and this Court would have no need or reason to consider 27 the constitutionality of the Title 38 provisions that Plaintiffs challenge. 28

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If the Ninth Circuit were to conclude in Golinski – as the Plaintiffs assume

2 that it will – that DOMA Section 3 is unconstitutional, that ruling presumably 3 would be dispositive of Plaintiffs’ Section 3 challenge in this case. And while that 4 ruling would not necessarily be dispositive of Plaintiffs’ Title 38 challenge, the 5 Ninth Circuit’s equal protection reasoning necessarily will impact this case 6 because the standard of review articulated in Golinski will dictate how the parties 7 brief and how this Court disposes of Plaintiffs’ Title 38 claim. Regardless of 8 whether the Ninth Circuit applies a traditional “rational basis” analysis; an 9 “intensified” form of rational basis review, as the First Circuit recently did in 10 Massachusetts v. U.S. Department of Health and Human Services, Nos. 10-2204, 11 10-2207 & 10-2214, 2012 WL 1948017, – F.3d – (1st Cir. May 31, 2012) (ECF 12 No. 5645268); or some sort of “heightened scrutiny” as advocated by the 13 Department of Justice, the Ninth Circuit’s reasoning in Golinski necessarily will 14 affect how the parties frame their Title 38 arguments in this case. 15 Proceeding with this case in light of the expedited Golinski appeal invites 16 waste: of the Court’s time and resources, and of the parties’ time and resources. 17 Every aspect of this case – from a motion to dismiss by the House, to discovery (if 18 dismissal were denied), to motions for summary judgment – stands to be impacted 19 by the Ninth Circuit’s decision in Golinski, and every aspect might well be 20 rendered instantly obsolete and have to be redone in light of such a decision. Not 21 only would this waste the Court’s and the parties’ time and resources, it is unlikely
1 22 to result in the speedy judgment that Plaintiffs want.

23 24

Additionally, after the House filed its Motion to Stay in this case, the U.S.

25 duplicative briefing that will occur if a stay is denied here. See Pls.’ Opp’n at 13-14. In the 26 constitutionally anomalous situation that is present here, with two branches of the federal 27 28

Plaintiffs dismiss out of hand the injury that would result from the almost-certain

government on opposite sides of the constitutional divide, the cost to the federal taxpayer of both branches briefing issues that necessarily will be impacted by the Golinski decision cannot so easily be discounted.

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1 Court of Appeals for the First Circuit ruled in another case that DOMA Section 3 2 violates the equal protection component of the Fifth Amendment’s Due Process 3 Clause. See Massachusetts, 2012 WL 1948017, slip. op. at 28. The House intends 4 to file with the Supreme Court a petition for certiorari in the Massachusetts case by 5 the end of this week. As the First Circuit recognized: “Supreme Court review of
2 6 DOMA is highly likely.” Id. at 32. If the Supreme Court grants review of the

7 First Circuit’s decision, the case likely will be docketed for briefing, argument, and 8 decision during the October 2012 term. 9 When the First Circuit issued its opinion in Massachusetts on May 31, 2012 10 – and simultaneously stayed its mandate pending the likelihood of Supreme Court 11 review in that case, see Judgment, Massachusetts v. U.S. Dep’t of Health & Human 12 Servs., Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. May 31, 2012) (ECF No. 13 5645272) – the U.S. District Court for the District of Massachusetts, in a case very 14 similar to this one which challenges both DOMA Section 3 and the Title 38 15 provisions, stayed that case until 30 days after First Circuit issues its mandate in 16 Massachusetts. See Electronic Order, McLaughlin v. Panetta, No. 1:11-cv-11905
3 17 (June 6, 2012 D. Mass.) (attached as Exhibit A). This Court should do the same

18 here. 19 20 21 22 23 24
3 2

The Supreme Court itself has identified a lower court’s invalidation of an Act of Congress as a justification for granting certiorari. See, e.g., United States v. Morrison, 529 U.S. 598, 605, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) (“Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari.”); see also Eugene Gressman, et al., Supreme Court Practice 264 (9th ed. 2007) (“Where the decision below holds a federal statute unconstitutional . . . , certiorari is usually granted because of the obvious importance of the case.”). Plaintiffs inexplicably cite to an earlier joint 60-day stay in the McLaughlin case which

25 they characterize as “stipulated.” Pls.’ Opp’n at 21, n.5 (citing Joint Mot. to Stay, McLaughlin 26 (Feb. 14, 2012) (ECF. No. 27)). However, not only was the McLaughlin Court’s June 6 Stay 27 28

Order on the docket when Plaintiffs filed their Opposition (a fact Plaintiffs neglected to mention), the June 6 stay order was entered over the objections of the plaintiffs in that case. See Exhibit A, Electronic Order, McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. June 6, 2012); Pls.’ Resp. (Continued . . .) 4

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Both because Golinski is pending before the Ninth Circuit, and because the

2 Supreme Court may well review DOMA Section 3’s constitutionality in the 3 upcoming term, the House’s requested stay unquestionably will promote judicial 4 economy. For this reason alone, the Court should follow its recent decision in 5 Hospital of Barstow, 2012 WL 893784, at *2-3 (granting HHS Secretary’s motion 6 for stay where issues in case were before Ninth Circuit in another case; holding on
4 7 ground that stay would promote judicial economy), and grant the House’s motion.

8 II. 9 10

This Court Cannot Award Plaintiffs Benefits, Regardless of Whether a Stay Is Entered. In opposing the House’s stay motion, Plaintiffs rely principally on the

11 argument that they will suffer injury if a stay is entered because (i) they will be 12 forced to forego additional disability compensation of approximately $125 per 13 month during the pendency of the stay, and (ii) they will be unable to recover these 14 benefits retroactively in the future. Pls.’ Opp’n at 20. Plaintiffs are wrong on both 15 counts. 16 17 A. Only the Secretary Can Award the Benefits that Plaintiffs Seek. Plaintiffs do not seek an award of benefits in this case, and with good

18 reason. The Veterans’ Judicial Review Act, Pub. L. No. 100-687, div. A., 102 19 Stat. 4105 (1988) (“VJRA”), codified at various sections in Title 38, confers 20 exclusive jurisdiction on the Secretary of Veterans Affairs ( “Secretary”) to 21 “decide all questions of law and fact necessary to a decision by the Secretary under 22 a law that affects the provision of benefits by the Secretary to veterans or the 23 24 25 opposition to stay motion). 26 4 27 28
5 to Govn’t Mot. to Stay, No. 1:11-cv-11905 (D. Mass. June 6, 2012) (ECF No. 41) (plaintiffs’

Plaintiffs’ argument that Hospital of Barstow is distinguishable from this case because it involved a claim for accrued benefits, Pls.’ Opp’n at 12, is incorrect for the reasons discussed in section II.B. See infra p.7.

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5 1 dependents or survivors of veterans.” 38 U.S.C. § 511; see also Veterans for

2 Common Sense v. Shinseki, 678 F.3d 1013, 1025 (9th Cir. May 7, 2012) (en banc) 3 (“§ 511 precludes jurisdiction over a claim if it requires the district court to review 4 VA decisions that relate to benefits decisions, including any decision made by the 5 Secretary in the course of making benefits determinations.”) (internal quotations 6 and citations omitted). Because the VJRA confers exclusive jurisdiction on the 7 Secretary over benefits claims, this Court has no jurisdiction to order an award of 8 benefits by the VA to Tracey nor to order that the VA be bound by its 9 determination of Plaintiffs’ constitutional claims. See 38 U.S.C. § 511 (explicitly 10 prohibiting review by way of writ of mandamus); Beamon v. Brown, 125 F.3d 965, 11 971 (6th Cir. 1997) (“[T]he VJRA explicitly granted comprehensive and exclusive 12 jurisdiction to the CVA and the Federal Circuit over claims seeking review of VA 13 decisions that relate to benefits decisions under § 511(a). This jurisdiction includes 14 constitutional issues . . . .”). In other words, regardless of the outcome of this case, 15 Tracey must seek a determination of her right to receive additional dependent 16 benefits through the administrative review process of the VA. Indeed, Plaintiffs 17 admit this procedural reality. See Pls.’ Opp’n at 20 (noting that “Tracey is treated 18 by the VA as a single veteran” until her marriage to Maggie is recognized). 19 The injunctive relief that Plaintiffs seek here in the form of an order that 20 their “marriage . . . be recognized by the federal government,” which they suggest 21 will have the effect of conferring benefits, id., plainly is barred by the VJRA. See 22 23 24 25 26

38 U.S.C. § 511 states, in pertinent part:

(a) The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise . . .

27 (emphases added). 28

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1 38 U.S.C. § 511. Thus, the very most that Plaintiffs can obtain in this case is 2 declaratory relief which will not result in an award of additional benefits, the 3 absence of which is the basis of Plaintiffs’ injury claim. 4 5 6 B. Any Eventual Award of Compensation Will Date Back to the Filing Date of VA Form 21-686c.

Plaintiffs obviously are aware that benefits only can be awarded by the VA.

7 Indeed, they candidly acknowledge that Tracey already has a concurrent 8 administrative claim on file. See Pls.’ Opp’n at 8 n.2. 9 The VA’s regulations provide that an award of disability compensation dates

10 from the date of receipt of the claim. See 38 C.F.R. § 3.400 (“Except as otherwise 11 provided, the effective date of an evaluation and award of . . . compensation . . . 12 based on . . . a claim for increase will be the date of receipt of the claim or the date 13 entitlement arose, whichever is the later.”).6 Accordingly, if the VA ultimately 14 awards Tracey dependent benefit compensation based on her marriage to Maggie, 15 Tracey will be entitled to those benefits from the filing date of VA Form 21-686c. 16 See 38 C.F.R. § 3.400. 17 In short, Plaintiffs’ insistence that they necessarily will lose benefits during

18 the pendency of a stay, see Pls.’ Opp’n at 20, plainly is false. Rather, if Tracey 19 ultimately is awarded these benefits through the VA administrative process, the 20 benefits will be awarded from April 19, 2011 onward. See Compl. at ¶ 40; see also 21 38 C.F.R. § 3.400. 22 23 24 25 26 27 28
7 In fact, an exception would have applied here to allow Tracey to claim benefits from an even earlier date – the date of her marriage – had she filed her claim within a year of her marriage. See 38 C.F.R. § 3.401(b)(1)(i). Instead she waited until two and a half years after her marriage to file VA Form 21-686c claiming Maggie as her spouse. Compl. ¶¶ 37, 40.


Plaintiffs’ Election of this Forum Over the VA Administrative Process Belies Their Claim of Injury.

Because the VA has exclusive jurisdiction to award benefits, Plaintiffs’ road

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1 to any potential benefits award necessarily runs through that venue. But the marked 2 lack of dispatch with which Plaintiffs have prosecuted their VA claim belies their 3 professed urgent need for the benefits they claim they will lose during the pendency 4 of a stay. Tracey filed VA Form 21-686c on April 19, 2011. Compl. at ¶ 40. 5 Plaintiffs delayed for six months after they received their second VA Regional 6 Office letter on August 8, 2011, to file their Complaint in this case. Compl. at ¶ 43. 7 They also waited seven months to appeal that same decision to the Board of 8 Veterans Appeals. See id.; Pls.’ Opp’n at 8 n.2 (“On March 19, 2012, Tracey filed 9 VA Form 9, appealing the VA Regional Office’s denial of her claim to the Board of 10 Veterans’ Appeals . . . .”). Finally, Tracey apparently sought a stay of her VA claim 11 pending resolution of this case, id., which has resulted in further delay. 12 In other words, Plaintiffs, for reasons best known to themselves, made a series 13 of decisions that resulted in their benefits adjudication being delayed before the VA. 14 Their protracted procedural maneuverings included a decision to “not seek[] 15 damages here,” Pls.’ Opp’n at 20, in an apparent effort to preserve this Court’s 16 jurisdiction. After this lengthy, ongoing, and entirely self-inflicted delay, Plaintiffs 17 are hardly in a position to complain that they will be injured if this Court chooses to 18 await the Ninth Circuit’s judgment on DOMA Section 3’s constitutionality before
7 19 proceeding on Plaintiffs’ challenge to that very same statute.



21 likely,” but point to no evidence to support that speculation. See Pls.’ Opp’n at 18. Given that the Ninth Circuit will uphold at 17, it is worth 22 Plaintiffs presume thatdid not seek en banc review of the district court’s decision, id.First Circuit when noting that the House the Massachusetts case in the 23 the panel decision was adverse to the House. And, neither the Department nor the Golinski plaintiff 24 25 26 27 28
would have standing to seek such review if the Golinski court were to uphold the lower court’s decision. Plaintiffs’ comments are equally speculative in the event the Golinski panel decision upholds the constitutionality of DOMA Section 3. The House has no information, nor do the Plaintiffs cite any source, that confirms that the Golinski plaintiff and/or the Department would seek rehearing or en banc review in that case.

Plaintiffs speculate that a request for rehearing or en banc review in Golinski is “highly

Plaintiffs also speculate, without reference to any facts of which we are aware, that the Ninth Circuit may never reach the constitutional issue in Golinski because, for example, the (Continued . . .) 8

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1 III. 2 3

The Jurisdictional Issue Raised by Veterans for Common Sense Also Counsels in Favor of a Stay. In light of the recent Veterans for Common Sense decision, the House now

4 has serious concerns that the VJRA may divest this Court of jurisdiction over this 5 case. One possible way forward would be for this Court to stay its consideration of 6 the merits of this case but direct the parties to brief the issue of the Court’s subject 7 matter jurisdiction. 8 However, given the procedural posture of Veterans for Common Sense, a 9 complete stay at this time seems more advisable. The Ninth Circuit issued its en 10 banc decision in that case on May 7, 2012. Thus, the Veterans for Common Sense 11 plaintiffs’ time to petition for certiorari has not yet run. Sup. Ct. R. 13.1. If the 12 plaintiffs in that case seek Supreme Court review, it is quite possible that the 13 Supreme Court will take the case because, as the Ninth Circuit itself noted, there is 14 a split of authority in the circuits on the issue of whether the VJRA bars facial 15 constitutional challenges to statues that impact VA benefits.8 Veterans for 16 Common Sense, 678 F.3d at 1033-34, comparing, e.g., Zuspann v. Brown, 60 F.3d 17 1156, 1159 (5th Cir. 1995) (noting if plaintiff had made “a facial challenge to a 18 statute, then the district court [would have had] jurisdiction to hear his case,” but 19 ultimately dismissing because although plaintiff “attempt[ed] to fashion his 20 21 plaintiff may moot her own case by ending her federal employment. Pls.’ Opp’n at 16. Such to advance the analysis here and, 22 fervidaspeculation does littleGolinski appeal then become mootin any event, should this Court enter stay, and should the at some point in the future, this 23 Court can revisit the stay issue at that time. 24 25 26 27 28
9 The Ninth Circuit specifically carved out the question of whether “an individual seeking benefits would be barred by § 511 from bringing a facial challenge in the district court,” i.e., the situation presented in this case. See Veterans for Common Sense, 678 F.3d at 1034. Because the Supreme Court may ultimately resolve the overarching question by finding that all facial challenges are barred by § 511, it is possible that this question will be answered even though it was not reached by the Ninth Circuit based on the particular facts before it in Veterans for Common Sense.

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1 complaint in constitutional terms, his complaint [was] an individualized challenge 2 to the VA’s decision to deny him benefits”); Larrabee ex rel. Jones v. Derwinski, 3 968 F.2d 1497, 1501 (2d Cir. 1992) (“Although district courts continue to have 4 jurisdiction to hear facial challenges of legislation affecting veterans’ benefits, 5 other constitutional and statutory claims must be pursued within the appellate mill 6 Congress established in the VJRA.”) (internal quotation omitted); Dacoron v. 7 Brown, 4 Vet. App. 115, 119 (Ct. Vet. App. 1993) (concluding that § 511 does not 8 bar facial constitutional challenges to a statute), with Hicks v. Veterans Admin., 9 961 F.2d 1367, 1369-70 (8th Cir. 1992) (concluding that provisions of the VJRA 10 “amply evince Congress’s intent to include all issues, even constitutional ones, 11 necessary to a decision which affects benefits in [an] exclusive appellate review 12 scheme”). 13 If this Court enters a stay in this case, and if (i) the plaintiffs in Veterans for 14 Common Sense do not petition for certiorari, or (ii) the Supreme Court denies 15 certiorari in that case, the House likely will request relief from any stay entered in 16 this case to litigate the jurisdictional question (if the Department does not do so). 17 The subject matter jurisdiction issue might well be dispositive of this case and 18 could appropriately be litigated while a stay on the merits of Plaintiffs’ 19 constitutional questions remained in place. 20 21 22 should be granted. 23 24 25 26 27 28

CONCLUSION For all the foregoing reasons, the House’s Motion to Stay Proceedings

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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 June 25, 2012

Respectfully submitted, By: /s/ Paul D. Clement Paul D. Clement BANCROFT PLLC9 Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives

Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory Paul D. Clement.


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1 2

CERTIFICATE OF SERVICE I certify that on June 25, 2012, I electronically filed the foregoing Reply in

3 Support of Motion of Intervenor-Defendant to Stay Proceedings with the Clerk of 4 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 Court’s 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 Caren E. Short, Esquire Christine P. Sun, Esquire Joseph J. Levin, Jr., Esquire SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, Alabama 36104 Daniel S. Noble, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 399 Park Avenue New York City, New York 10022 Eugene Marder, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 950 Page Mill Road Palo Alto, California 94304

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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

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

/s/ Mary Beth Walker Mary Beth Walker

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Exhibit A

CM/ECF - USDC Massachusetts - Version 5.1.1 as of 12/5/2011

Case 2:12-cv-00887-CBM-AJW Document 43-1

Filed 06/25/12 Page 2 of 3 Page ID #:379 STAYED

United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:11-cv-11905-RGS

McLaughlin, et al. v Panetta, et al Assigned to: Judge Richard G. Stearns Cause: 28:1331 Federal Question: Other Civil Rights Plaintiff MAJ Shannon L. McLaughlin

Date Filed: 10/27/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

represented by Abbe David Lowell Chadbourne & Parke LLP 1200 New Hampshire Avenue, NW Washington, DC 20036 202-974-5605 Fax: 202-974-6705 Email: LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Christopher Man Chadbourne & Parke LLP 1200 New Hampshire Ave, N.W. Washington, DC 20036 202-974-5600 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED David McKean Servicemembers Legal Defense Network P.O. Box 65301 Washington, DC 20035 202-621-5401 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Ian M. McClatchey Chadbourne & Parke 30 Rockefeller Plaza New York, NY 10112

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CM/ECF - USDC Massachusetts - Version 5.1.1 as of 12/5/2011

Case 2:12-cv-00887-CBM-AJW Document 43-1 05/15/2012

Filed 06/25/12 Page 3 of 3 Page ID #:380

39 MEMORANDUM in Support re 38 MOTION for Leave to File Consolidated Reply Memorandum in Support of Motion to Intervene filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Bartolomucci, H.) (Entered: 05/15/2012) Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 32 Motion to Intervene "ALLOWED, every court of appeals that has addressed the issue has found standing. "Finding as Moot 38 Motion for Leave to File Document. (Flaherty, Elaine) Modified text on 5/17/2012 (Seelye, Terri). (Entered: 05/16/2012) 40 MOTION to Stay or, in the Alternative, for An Extension of Time, (with partial consent) by Eric H. Holder, Jr., Leon E. Panetta, Eric K. Shinseki, United States of America.(Lin, Jean) (Entered: 06/05/2012) 41 RESPONSE to Motion re 40 MOTION to Stay or, in the Alternative, for An Extension of Time, (with partial consent) filed by Shannon L. McLaughlin. (McClatchey, Ian) (Entered: 06/06/2012) Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 40 Motion to Stay. This case will be stayed until thirty (30) days after the First Circuit issues its mandate in Massachusetts v. U.S. Dept. of Health and Human Services, 2012 WL 1948017 (1st Cir. 2012). (RGS, law3) (Entered: 06/06/2012)





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