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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

____________________________________)

SHANNON L. MCLAUGHLIN, et al., )

)Plaintiffs, )

)

v. ) Civil Action No. 1:11-cv-11905-RGS

)CHUCK HAGEL, et al., )

)

Defendants. )____________________________________)

DEFENDANTS STATUS REPORT

Pursuant to this Courts minute order of July 19, 2013 (ECF No. 49), Defendants

Secretary of Defense Chuck Hagel, Attorney General Eric Holder Jr., Secretary of Veterans

Affairs Eric Shinseki, and the United States of America, respectfully submit this status report

regarding the Executive Branchs implementation of the Supreme Courts decision in United

States v. Windsor, 133 S. Ct. 2675 (2013), regarding military and veterans benefits.

Since this action was commenced, the Supreme Court has held that Section 3 of the

Defense of Marriage Act (DOMA) is unconstitutional and the President has directed the

Executive Branch to cease enforcement of the provisions of Title 38 that limit the definition of

spouse to a member of the opposite sex. SeeUnited States v. Windsor, 133 S. Ct. 2675 (2013);

Letter of the Attorney General to The Honorable Speaker of the U.S. House of Representatives

John Boehner, dated September 4, 2013, attached as Exhibit A. Not only is the Executive

Branch no longer applying Section 3 of DOMA and the similar definitional provisions of Title

38 of the U.S. Code, but it is working expeditiously to implement the Windsordecision and the

Presidents determination regarding Title 38 across the federal government.

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As a result, the Defendants are already providing the relief sought by Plaintiffs in this

action. The Department of Defense (DoD) has stated that it intends to provide benefits to all

eligible same-sex spouses of service members, and in fact, has already begun to do so. Similarly,

the Department of Veterans Affairs is working to implement the Presidents recent directive that

the Executive Branch cease enforcement of the definitional provisions of Title 38 to the extent

they limit veterans benefits to opposite-sex couples. Therefore, Plaintiffs have no live claims,

and the Court should dismiss this action as moot.

BACKGROUND

Plaintiffs are veterans and members of the U.S. armed forces, and their same-sex spouses.

They brought this suit seeking declarations that Titles 10 (Armed Forces), 32 (National Guard)

and 38 (Veterans Benefits) of the U.S. Code cannot be constitutionally applied to deny benefits

to same-sex married couples, including Plaintiffs. Compl. at 32. Plaintiffs also seek to

enjoin[] Defendants from continuing to discriminate against them because they have lawfully

married someone of the same gender. Id. Specifically, Plaintiffs ask the Court to issue an

injunction requiring Defendants to consider Plaintiffs claims for benefits without regard to the

gender of their spouses. Id.

On July 18, 2013, in response to this Courts order to show cause why judgment should

not be entered for Plaintiffs in this case following Windsor, Defendants argued that Plaintiffs

claims for declaratory and injunctive relief under Titles 10 and 32 are moot because the DoD

intended to construe the term spouse in Titles 10 and 32 to include same-sex spouses.

Defendants also informed this Court that DoD was working expeditiously to make available

benefits provided under Titles 10 and 32 to the same-sex spouses of service members.

Defendants suggested that the Court might retain jurisdiction pending DoDs implementation of

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Windsor. On July 19, 2013, this Court continued the stay of this case and ordered that DoD

submit a status report by September 9, 2013.

DISCUSSION

I. PLAINTIFFS CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF

UNDER TITLES 10 AND 32 ARE MOOT

Consistent with Defendants prior representation, DoD has begun to extend benefits to

same-sex spouses of uniformed service members and DoD civilian employees. See DoD News

Release, No. 583-13,DOD Announces Same-Sex Spouse Benefits, Aug. 14, 2013 (available at

http://www.defense.gov/releases/release.aspx?releaseid=16203). As the Secretary of Defense

Chuck Hagel indicated in a memorandum dated August 13, 2013, DoD now construes the words

spouse and marriage to include same-sex spouses and marriages, and will recognize all

marriages that are valid in the place of celebration. Extending Benefits to the Same-Sex Spouses

of Military Members, Memorandum for Secretaries of the Military Departments and Under

Secretary of Defense for Personnel and Readiness at 1, dated Aug. 13, 2013, a copy is attached

as Exhibit B [Hagel Memo.]. Secretary Hagels memorandum further indicated that DoD

intended to make available all spousal and family benefits, including identification cards, to

same-sex spouses by September 3, 2013. Id. Indeed, DoD has begun issuing military benefits

governed by Titles 10 and 32 to same-sex spouses of service members. In addition, the Acting

Under Secretary of Defense for Personnel and Readiness explained in a separate memorandum

that entitlementssuch as health care benefits under TRICARE, basic allowances for housing,

and family separation allowancesare retroactive to June 26, 2013, the date of the Supreme

Courts decision in Windsor. See Further Guidance on Extending Benefits to Same-Sex Spouses

of Military Members, Memorandum for Secretaries of the Military Departments, Chiefs of the

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Military Services, dated Aug. 13, 2013, a copy is attached as Exhibit C; see also DoD News

Release, No. 583-13.

Given that it is now [DoDs] policy to treat all married military personnel equally, and

that DoD intends to provide the same benefits to all military spouses, regardless of whether they

are in same-sex or opposite-sex marriages, Hagel Memo. at 1, Plaintiffs claims for declaratory

and injunctive relief to the same effect regarding benefits governed by Titles 10 and 32 are now

moot.1 Powell v. McCormack, 395 U.S. 486, 496 (1969) ([A] case is moot when the issues

presented are no longer live.); accordCruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001);

see also Brown v. Colegio de Abogados de Puerto Rico , 613 F.3d 44, 48 (1st Cir. 2010)

([B]ehavior certain not to recur ought not be enjoined.). The doctrine of mootness enforces

the mandate that an actual controversy must be extant at all stages of the review, not merely at

the time the complaint is filed. ACLU v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 52

(1st Cir. 2013). If events have transpired to render a court opinion merely advisory, id.

(citations omitted), or when the issues presented are no longer live, a case or controversy

ceases to exist and dismissal of the action is compulsory under Article III. Maher v. Hyde, 272

F.3d 83, 86 (1st Cir. 2001) (quoting Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001)).

Another way of putting this is that a case is moot when the court cannot give any effectual

relief to the potentially prevailing party. Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d

48, 53 (1st Cir.2004) (citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 12

(1992)). Because underWindsor, DoD will now do what Plaintiffs have requested in the

Complaint, which is to consider Plaintiffs claims for benefits without regard to the gender of

1 As Defendants previously informed this Court, because the Supreme Court has already struck down Section 3 of

Defense of Marriage Act, 1 U.S.C. 7, in Windsor, there is also no need for this Court to grant any declaratory relief

with respect to Section 3 of DOMA.

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their spouses, Compl. at 32, this Court cannot give any effectual relief to Plaintiffs.2

In sum,

this Court lack[s] constitutional authority to address Plaintiffs claims for declaratory and

injunctive relief under Titles 10 and 32. Redfern, No. 11-1805, 2013 WL 3470495 at *5.3

II. PLAINTIFFS CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF

UNDER TITLE 38 REGARDING VETERANS BENEFITS ARE MOOT

The Courts Minute Order of July 19, 2013 also required a status report regarding

veterans benefits for eligible same-sex spouses. ECF No. 49. Veterans benefits generally are

administered by the Department of Veterans Affairs under Title 38 of the U.S. Code. Sections

101(3) and (31) of Title 38 define the terms spouse and surviving spouse as, inter alia,

members of the opposite sex.

On September 4, 2013, the Attorney General informed the Speaker of the U.S. House of

Representative that the President has directed the Executive Branch to cease enforcement of

Sections 101(3) and 101(31) of Title 38, which the Executive previously concluded are

unconstitutional. See Exhibit A. The Department of Veterans Affairs is currently working to

implement this decision, so as to provide benefits to eligible married veterans and their spouses

without regard to whether they are in a same-sex or opposite-sex marriage. Any claims by

2 Moreover, this case does not fall within the exception to mootness for disputes that are capable of repetition, yet

evading review. S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). Although this exception is well

established, it is construed narrowly. Redfern v. Napolitano, No. 11-1805, 2013 WL 3470495 at *5 (1st Cir. July

11, 2013). It applies only when two conditions are met: (1) the challenged action is in its duration too short to be

fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining

party [will] be subject to the same action again. United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011)

(citations and quoting marks omitted, alterations in original). Neither condition exists.3 Although the Complaint itself seeks only declaratory and injunctive relief, see Compl. at 32, Plaintiffs asserted for

the first time in their response to this Courts June 26, 2013 Order to Show Cause that they are seeking entry of a

judgment in their favornunc pro tunc as of the day each service member or veteran Plaintiff sought to register his

or her spouse in the Defense Enrollment Eligibility Reporting System (DEERS) (DEERS is a computerized

database of military sponsors, families and others who are entitled to various military benefits.). Pls Request for the

Court to Enter Judgment on Their Fifth Amendment Claims, ECF No. 45, filed July 17, 2013, at 2; see also id.

(requesting the Court to provide the equitable remedy of a judgment nunc pro tunc). To the extent that the

Court might consider this new request for additional relief without requiring Plaintiffs to amend their Complaint,

Defendants request an opportunity to respond.

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Plaintiffs for declaratory and injunctive relief regarding these provisions of Title 38 are now

moot.

Furthermore, as Defendants previously stated in their response to this Courts June 26,

2013 Order to Show Cause why judgment should not be entered in favor of Plaintiffs in light of

Windsor, no plaintiff has sufficiently alleged in the Complaint that he or she has applied for and

been denied any veterans benefits that he or she actually would be eligible to receive but for his

or her same-sex marriage. With the exception of Colonel Stewart Bornhoft (Ret.) and his spouse

Mr. Stephen McNabbeach of whom is enrolled in DEERS on the basis of his own military

service, see Compl. 38, 41each plaintiff couple has alleged only that they were unable to

register the same-sex spouse in DEERS. But DEERS is not administered by the Department of

Veterans Affairs, nor is registration with DEERS equivalent to filing an application for veterans

benefits governed by Title 38.

Although not alleged in the Complaint, Defendants understand that since the filing of the

Complaint, Plaintiff Chief Warrant Officer Charlie Morgan has died of breast cancer, see ECF

No. 42 (Feb. 12, 2013); ECF No. 22 (Dec. 21, 2011), and that her spouse, Ms. Karen Morgan,

has filed a claim for dependency and indemnity compensation (DIC). Pursuant to a directive

from the President, the Executive Branch is no longer enforcing the provisions of Title 38 that

limit the definition of spouse and surviving spouse to opposite sex couples. Therefore, the

VA will evaluate Ms. Morgans claim for compensation without regard to these provisions, and

she will be awarded benefits if she is determined to be eligible, under statutes applicable to all

surviving spouses of veterans. See 38 U.S.C 1310, 1311, 5110. Moreover, as Defendants

previously noted in their response to this Courts Order to Show Cause, the Veterans Judicial

Review Act (VJRA), Pub. L. No. 100-687, 102 Stat. 4105, provides an exclusive and adequate

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process for veterans to pursue benefits claims, and this Court has no jurisdiction to hear such

claims. See 38 U.S.C. 511(a) (divesting all other federal courts of jurisdiction to review 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.).

Under the VJRA scheme, a veteran may seek administrative review of the denial of veterans

benefits before the Board of Veterans Appeals and subsequent judicial review by the Court of

Appeals for Veterans Claims, with the right to appeal that courts decision as to legal issues to

the U.S. Court of Appeals for the Federal Circuit and ultimately to the Supreme Court. See 38

U.S.C. 7104(a); 7261(a)(1); 7292(a), (d)(1). In other words, even if the Complaint is

amended to establish Ms. Morgans standing to sue regarding this application for benefits, this

Court would still lack jurisdiction to resolve this new claim for veterans benefits. Furthermore,

action by this Court would be unnecessary to facilitate this application for benefits, as the VA

will proceed to evaluate Ms. Morgans claim in the same manner it evaluates the claims of a

veterans opposite-sex spouse.

CONCLUSION

For the foregoing reasons, Defendants respectfully submit that judgment should not be

entered for Plaintiffs, and instead the Court should dismiss this action.

Dated: September 9, 2013 Respectfully Submitted,

STUART F. DELERYAssistant Attorney General

CARMEN M. ORTIZUnited States Attorney

ARTHUR R. GOLDBERG

Assistant Branch Director

/s/ Jean Lin

JEAN LIN

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Senior Trial CounselU.S. Department of Justice

Civil Division

Federal Programs Branch20 Massachusetts Avenue, NWWashington, DC 20530

Phone: (202) 514-3716

Fax: (202) 616-8470

email: [email protected]

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CERTIFICATE OF SERVICE

I certify that on September 9, 2013, a true copy of the foregoing Defendants Status

Report was served upon following attorney of record for each other party through the Courts

Electronic Case Filing system:

Ian McClatchey, Esq.

[email protected] & PARKE LLP

30 Rockefeller Plaza

New York, NY 10112

Abbe David Lowell, Esq.

[email protected]

Christopher D. [email protected]

CHADBOURNE & PARKE LLP

1200 New Hampshire Ave., NWWashington, DC 20036

John M. Goodman, [email protected]

David McKean

[email protected] LEGAL DEFENSE NETWORK

Post Office Box 65301

Washington, DC 20035

/s/ Jean Lin

JEAN LIN

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EXHIBIT A

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EXHIBIT B


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EXHIBIT C


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