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JOSEPH J. LEVIN, JR. (Pro Hac Vice)[email protected]
CHRISTINE P. SUN (SBN 218701)[email protected] E. SHORT (Pro Hac Vice)[email protected]
SOUTHERN POVERTY LAW CENTER400 Washington AvenueMontgomery, AL 36104Telephone: (334) 956-8200Facsimile: (334) 956-8481
(Caption Continued on Next Page)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
TRACEY COOPER-HARRIS and )
MAGGIE COOPER-HARRIS, )
)
Plaintiffs, )
)
vs. )
)
UNITED STATES OF AMERICA; )
ERIC H. HOLDER, JR., in his official )
capacity as Attorney General; and )
ERIC K. SHINSEKI, in his official )
capacity as Secretary of Veterans )
Affairs, )
)
Defendants, )
)
BIPARTISAN LEGAL ADVISORY )
GROUP OF THE U.S. HOUSE )
OF REPRESENTATIVES, ))
Intervenor-Defendant. )
No. 2:12-CV-887-CBM-AJW
PLAINTIFFS MEMORANDUM
OF LAW IN OPPOSITION TO
FEDERAL DEFENDANTS
MOTION TO DISMISS
Hearing: February 25, 2013Time: 10:00 a.m.
Hon. Consuelo B. Marshall
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISSii
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Randall R. Lee (SBN 152672)[email protected] Benedetto (SBN 252379)[email protected] CUTLER PICKERING HALE AND DORR LLP
350 South Grand Avenue, Suite 2100Los Angeles, CA 90071Telephone: (213) 443-5300Facsimile: (213) 443-5400
Adam P. Romero (Pro Hac Vice)[email protected] Ali (Pro Hac Vice)[email protected] CUTLER PICKERING HALE AND DORR LLP7 World Trade CenterNew York, NY 10007Telephone: (212) 230-8800
Facsimile: (212) 230-8888
Eugene Marder (SBN 275762)[email protected] CUTLER PICKERING HALE AND DORR LLP950 Page Mill RoadPalo Alto, California 94304Telephone: (650) 858-6000Facsimile: (650) 858-6100
Attorneys for Plaintiffs
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TABLE OF CONTENTS
Page(s)
I. INTRODUCTION ................................................................................................ 1
II. BACKGROUND .................................................................................................. 3
III. ARGUMENT........................................................................................................ 5
A. This Court Has Subject Matter Jurisdiction ............................................... 5
1. The VJRA Does Not Divest This Court Of Jurisdiction Over
Constitutional Challenges to Acts of Congress ............................... 5
2. The VJRAs Legislative History Confirms That Facial
Constitutional Challenges to Statutes Concerning Veterans
Benefits Remain Within The Jurisdiction of This Court ................. 6
3. Consistent withRobison, Veterans for Common Sense
(VCS) Permits Facial Constitutional Challenges to Acts of
Congress or Claims Where the Court Is Not Asked to
Review Decisions of the VA ......................................................... 11
4. Courts Have Consistently Held That District Courts HaveJurisdiction Over Constitutional Challenges to Statutes
Affecting Veterans Benefits .......................................................... 15
B. Exercising Jurisdiction Over Plaintiffs Claims Will Not Affect
Veterans Benefits Administration ............................................................ 18
C. The Supreme Courts Decision inElgin Is Inapplicable to the
VJRA and the Claims in this Case ........................................................... 19
D. Plaintiffs Have Suffered a Particularized and Concrete Injury With
Respect to Burial And Spousal Death Benefits ....................................... 21
IV. CONCLUSION .................................................................................................. 23
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TABLE OF AUTHORITIES
Page(s)
Cases
Aetna Life Ins. Co. v. Haworth,
300 U.S. 227 (1937) .................................................................................................. 22
Ameron, Inc. v. U.S. Army Corps of Engrs,
787 F.2d 875 (3d Cir. 1986) ........................................................................................ 5
Beamon v. Brown,
125 F.3d 965 (6th Cir. 1997) ............................................................................... 15, 16
Broudy v. Mather,
460 F.3d. 106 (D.C. Cir. 2006) ................................................................... 1, 2, 15, 16
Brown v. Gardner,
513 U.S. 115 (1994) .................................................................................................. 11
Cardona v. Shinseki,
Vet. App. No. 11-3083 .............................................................................................. 18
Copeland v. Shinseki,No. 11-2408, 2012 WL 5939166 (Vet. App. Nov. 14, 2012) ................................... 17
Dacoron v. Brown,
4 Vet. App. 115 (1993) .................................................................................... 2, 15, 17
Disabled Am. Veterans v. Dept of Veterans Affairs,
962 F.2d 136 (2d Cir. 1992) .................................................................. 2, 5, 15, 16, 18
Elgin v. Dept of Treasury,
132 S. Ct. 2126 (2012) ................................................................ 2, 3, 5, 10, 19, 20, 21
Hall v. Dept of Veterans Affairs,
85 F.3d 532 (11th Cir. 1996) ..................................................................................... 10
Hicks v. Small,
69 F.3d 967 (9th Cir. 1995) ................................................................................. 14, 15
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Johnson v. Robison,
415 U.S. 361 (1974) ...........................................................................................passim
King v. St. Vincents Hospital,
502 U.S. 215 (1991) .................................................................................................. 11
Larrabee ex rel. Jones v. Derwinski,
968 F.2d 1497 (2d Cir. 1992) ................................................................................ 6, 16
Littlejohn v. United States,
321 F.3d 915 (9th Cir. 2003) ..................................................................................... 14
Massachusetts v. U.S. Dept of Health and Human Servs.,
698 F. Supp. 2d 234 (D. Mass. 2010) ....................................................................... 22
MedImmune, Inc. v. Genentech, Inc.,549 U.S. 118 (2007) .................................................................................................. 22
Mistretta v. United States,
488 U.S. 361 (1989) .................................................................................................... 5
Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) .................................................................................................... 5
Traynor v. Turnage,
485 U.S. 535 (1988) ............................................................................................ 7, 8, 9
United States v. Salerno,
481 U.S. 739 (1987) .................................................................................................. 11
Veterans for Common Sense v. Shinseki,
678 F.3d 1013 (9th Cir. 2012) (en banc) ............................................................passim
Vietnam Veterans of Am. v. C.I.A.,
No. C 09-0037CW,2012 WL 4715308 (N.D. Cal. Sept. 30, 2012) ................... 12, 20
Wayne State v. Cleland,590 F.2d 627 (6th Cir. 1978) ....................................................................................... 9
Zuspann v. Brown,
60 F.3d 1156 (5th Cir. 1995) ........................................................................... 2, 15, 16
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISSvi
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Statutes
Veterans Judicial Review Act (VJRA), 38 U.S.C. 511 ..................................passim
38 U.S.C. 211(a) ........................................................................................ 6, 7, 8, 9, 17
38 U.S.C. 2402 (a)(5). ................................................................................................ 22
38 U.S.C. 101(3) and (31) (Title 38) .............................................................passim
Section 3 of 1 U.S.C. 7 (Defense of Marriage Act or DOMA) ...................passim
Other Authorities
H.R. Rep. No. 100-963 (1988) ( House Report), reprinted in 1988 U.S.C.C.A.N.5782 ....................................................................................................................passim
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS1
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I. INTRODUCTION
The Federal Defendants motion to dismiss for lack of subject matter
jurisdiction (ECF No. 68) should be denied because in this case Plaintiffs challenge
acts of Congress, not a decision by the Veterans Administration (VA). Plaintiffs
constitutional claims are not precluded 511 of the Veterans Judicial Review Act
(VJRA), and are properly within this Courts jurisdiction under binding Supreme
Court precedent. See Johnson v. Robison, 415 U.S. 361, 366-74 (1974) (construing
predecessor to VJRA 511 and holding district court had jurisdiction over
constitutional challenge to statutory classifications related to veterans benefits); see
also Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1025 (9th Cir. 2012)(VCS) (holding where a challenge does not require [the court] to review decisions
affecting the provision of benefits to any individual claimant, jurisdiction is properly
before the district court), cert. denied, 81 U.S.L.W. 3130, 2013 WL 57122 (U.S. Jan.
7, 2013) (No. 12-296).
This Courts jurisdiction over Plaintiffs claims is confirmed by the legislative
history of the VJRA. Contrary to Federal Defendants assertion, the legislative
history states that the VJRA was not intended to foreclose judicial review of
constitutional challenges to statutes affecting veterans benefits. H.R. Rep. No. 100-
963, at 19 (1988) [hereinafter House Report], reprinted in 1988 U.S.C.C.A.N. 5782,
5801 (The Supreme Court properly decided [inRobison]that a decision not to
provide benefits to conscientious objectors was a decision of the Congress, not of the
[VA], and the Court [is] free to examine the constitutionality of Congress
decisions.).
Indeed, numerous federal appellate courts including the United States Court
of Appeals for Veterans Claims (Veterans Court) have concluded that the VJRA
does not bar district courts from adjudicating facial constitutional challenges to
statutes that affect veterans benefits. See, e.g.,Broudy v. Mather, 460 F.3d. 106, 112
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS2
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(D.C. Cir. 2006);Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995);Dacoron
v. Brown, 4 Vet. App. 115, 118 (1993);Disabled Am. Veterans v. Dept of Veterans
Affairs, 962 F.2d 136, 140 (2d Cir. 1992). In fact, no court has held that facial
constitutional challenges to acts of Congress that affect veterans benefits are barred by
the VJRA. See, e.g.,Broudy,460 F.3d at 112 (noting the VJRA does not give the
VA exclusivejurisdiction to construe laws affecting the provision of veterans benefits
or to consider all issues that might touch upon whether someone receives veterans
benefits) (emphasis in original); see also discussion infra Part III.A.4.
In an attempt to circumvent this well-established case law, Federal Defendants
erroneously characterize the Complaint as challenging the VAs decision to denyPlaintiff Tracey Cooper-Harris, a disabled Army veteran, additional dependency
compensation related to her same-sex spouse, Plaintiff Maggie Cooper-Harris
benefits routinely received by veterans with opposite-sex spouses. Plaintiffs
challenge, however, is notto any benefits decision of the VA; rather, Plaintiffs
challenge acts of Congress that discriminate against same-sex spouses. Specifically,
Plaintiffs challenge the constitutionality of38 U.S.C. 101(3) and (31) (Title 38),
which limit spouse and surviving spouse to persons of the opposite sex for
veterans benefits purposes, and Section 3 of 1 U.S.C. 7 (Defense of Marriage Act
or DOMA), which prohibits the federal government from recognizing valid same-
sex marriages, such as Tracey and Maggies marriage. Resolving the constitutionality
of these statutes does not require this Court to consider or review any decision of
the VA within the scope of 511s jurisdictional bar. Indeed, Plaintiffs are not
seeking damages, an injunction ordering the VA to award benefits, or even a decision
from this Court that Plaintiffs are entitled to benefits. Rather, Plaintiffs seek a
declaration that Title 38 and DOMA are unconstitutional and that, going forward, their
marriage should be recognized by the federal government.
Federal Defendants reliance onElgin v. Dept of Treasury, 132 S. Ct. 2126
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS3
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(2012), is misplaced because (1)Elgin concerned an administrative review scheme
wholly distinct from the VJRA, and (2) Plaintiffs unlike the petitioners inElgin
are not challenging an administrative decision and do not seek retroactive relief.
Finally, Federal Defendants argument that Plaintiffs do not have standing to
raise claims for benefits that would flow to Maggie as Traceys widow lacks merit.
Plaintiffs have already been denied the right to be buried together in a California
veterans cemetery due to Title 38 and DOMA, and in any event, the present and
undeniable uncertainty created by these statutes on Plaintiffs estate planning
constitutes a particularized and concrete injury sufficient to confer standing,
especially in light of Traceys service-connected multiple sclerosis and other medicalconditions for which she receives disability compensation from the VA.
Accordingly, the Court should deny Federal Defendants motion to dismiss.
II. BACKGROUND
On February 1, 2012, Plaintiffs filed their Complaint asserting that Title 38,
which limits the definitions of surviving spouse and spouse to persons of the
opposite sex, violates on its face the equal protection component of the Due Process
Clause of the Fifth Amendment to the United States Constitution. Compl. 62-65.
The Complaint further asserts that DOMA, which similarly limits the definition of
spouse for purposes of federal law to a person of the opposite sex, violates the right
to equal protection under the Fifth Amendment as applied to Plaintiffs. Id. 66-69.
Together, Title 38 and DOMA operate to deny Plaintiffs recognition of their legal
marriage so that Tracey is ineligible for all benefits provided to married veterans and
Maggie is ineligible for all benefits provided to spouses of veterans. By their
Complaint, Plaintiffs seek declaratory and injunctive relief against the federal
government holding that Title 38 and DOMA are unconstitutional. Id. at 18. The
Complaint does not ask for an award of benefits, either prospectively or retroactively.
Id.
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS4
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Before filing the Complaint, Tracey submitted an application to the VA seeking
to add Maggie as her spouse for purposes of receiving dependency compensation that
the federal government provides to married veterans. Compl. 40. That application
was denied. Id. 41. Tracey filed a Notice of Disagreement with the VA Regional
Office in Los Angeles (VARO), and the claim was again denied. Id. 42-43. The
VAROs denial letter stated in relevant part:
For VA purposes and under VA Law 38 CFR 3.50(a) a veteran may only
receive additional compensatory benefits for a spouse of the opposite sex.
Although you have a valid marriage to Mrs. Maggie Lorraine Cooper in
the state of California, this marriage is not valid under current Federal
Regulations. . . .You are a veteran and have served honorably, howeverwe must deny your claim for dependency at this time. Your VA
payments will remain as a single veteran.
Id. 43. The VARO neither considered nor decided the constitutionality of Title 38
or DOMA. Tracey has appealed the denial of her application for additional disability
compensation to the Board of Veterans Appeals (BVA) but requested a stay of that
proceeding pending the resolution of this challenge to Title 38 and DOMA.
On February 24, 2012, Federal Defendants notified this Court that they would
not defend the constitutionality of DOMA or Title 38 because they had concluded that
those provisions were unconstitutional. Defs. Notice to Ct., Feb. 24, 2012, ECF No.
16. Now, Federal Defendants move to dismiss the case on the ground that the VJRA
divests this Court of jurisdiction to determine whether the acts of Congress at issue in
this case, Title 38 and DOMA, are unconstitutional. Federal Defendants have also
moved to dismiss on the ground that Plaintiffs have not suffered an injury-in-fact with
respect to the denial of burial benefits afforded to veterans and their spouses and the
denial of Disability and Indemnity Compensation (DIC) afforded to surviving
spouses of veterans who die from service-connected conditions. Federal Defendants
do not challenge Plaintiffs standing with respect to additional disability benefits
being denied to Tracey and Maggie.
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS5
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III. ARGUMENT
A. This Court Has Subject Matter Jurisdiction
1. The VJRA Does Not Divest This Court Of Jurisdiction Over
Constitutional Challenges to Acts of Congress
Federal Defendants contend that the VJRA deprives this Court of subject matter
jurisdiction over Plaintiffs challenges to Title 38 and DOMA. Federal Defendants
argument mischaracterizes Plaintiffs claims, misreads the VJRAs legislative history,
fails to meaningfully distinguish a long-standing body of jurisprudence allowing
review of constitutional claims that do not challenge decisions of the VA, and
misapplies the Ninth Circuits most recent decision on point, Veterans for Common
Sense (VCS).
It is beyond dispute that Article III district courts have the power to rule on the
constitutionality of acts of Congress. Disabled Am. Veterans v. Dept of Veterans
Affairs, 962 F.2d 136, 140 (2d Cir. 1992) (citingAmeron, Inc. v. U.S. Army Corps of
Engrs, 787 F.2d 875, 890 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988)). In
considering whether a statute precludes district court review of constitutional claims, acourt inquires into whether Congress intent to preclude district court jurisdiction
was fairly discernible in the statutory scheme. Elgin, 132 S. Ct. at 2132 (quoting
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994)). Even where
Congressional intent is fairly discernible, questions concerning whether a statute
divests district courts of jurisdiction implicate the constitutional separation of powers
doctrine. Disabled Am. Veterans, 962 F.2d at 140. Accordingly, courts interpreting
such a statute must exercise vigilance to ensure that no provision of law threatens the
integrity of the judicial branch. Id. (citingMistretta v. United States, 488 U.S. 361,
382-83 (1989)).
As discussed below, the legislative history of the VJRA, as well as the case law
interpreting the VJRA, instruct that the VJRAs jurisdictional bar is triggered only
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS6
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when a veteran challenges a decision made by the VA, and confirm the common
sense proposition that a challenge to an act of Congress is not a challenge to a
decision by the VA. The Ninth Circuit affirmed this proposition in VCSwhen it
held that jurisdiction was proper in district court for a facial challenge to the
constitutionality of a federal statute concerning veterans benefits. VCS, 678 F.3d at
1033-34.
2. The VJRAs Legislative History Confirms That Facial
Constitutional Challenges to Statutes Concerning Veterans
Benefits Remain Within The Jurisdiction of This Court
With the enactment of the VJRA in 1988, Congress revised the manner by
which veterans could challenge the VAs decisions involving individual benefits.
Prior to the VJRA, Congress consistently precluded judicial review of veterans
benefits determinations. Larrabee ex rel. Jones v. Derwinski, 968 F.2d 1497, 1499
(2d Cir. 1992). In 1970, Congress reiterated its intent that decisions of the VA were
unreviewable by amending the statute to provide that:
[T]he decisions of the Administrator on any question of law or fact under
any law administered by the Veterans Administration providing benefits
for veterans and their dependents or survivors shall be final and
conclusive and no other official or any court of the United States shall
have power or jurisdiction to review any such decision by an action in the
nature of mandamus or otherwise.
38 U.S.C. 211(a) (1970).
Approximately four years after the passage of 211, the precursor to what is
now 511 of the VJRA, the Supreme Court considered whether Congress intended
211 to divest Article III district courts of jurisdiction over constitutional challenges
to statutes concerning veterans benefits. Robison, 415 U.S. 361. The plaintiff in that
case, Robison, received an exemption from military service as a conscientious
objector and, accordingly, completed the required alternate civilian service. Id. at
362-64. When the VA denied Robison educational benefits because he was not an
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS7
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eligible veteran under the Veterans Readjustment Benefits Act of 1966, Robison
brought an action asserting that the provisions of the Act violated the First and Fifth
Amendments of the Constitution. Id.
The government maintained that 211 deprived the court of jurisdiction to
review Robisons equal protection claims because he was a veteran and his claims
related to veterans benefits. Id. at 364-65. The Supreme Court disagreed and held
that 211 did not bar judicial consideration of Robisons constitutional claims. Id. at
367. The Court held that the prohibitions in 211 appear to be aimed at review only
of those decisions of law or fact that arise in the administration by the Veterans
Administration of a statute providing benefits for veterans. Id. (emphasis added).The Court reasoned, [a] decision of law or fact under a statute is made by the
Administrator in the interpretation or application of a particular provision of the
statute to a particular set of facts[.] Id. (emphasis added). In contrast, Robisons
constitutional challenge to the Veterans Readjustment Benefits Act was not to any
such decision of the Administrator, but rather to a decision of Congress to create a
statutory class entitled to benefits that does not include I-O conscientious objectors
who performed alternative civilian service. Id. (emphasis added) (internal citations
omitted). Importantly, the Court inRobison noted that accepting the governments
argument that 211 bars federal courts from deciding the constitutionality of statutes
affecting veterans benefits would raise serious questions concerning the
constitutionality of that provision. Id. at 366.
Fourteen years afterRobison, the Supreme Court revisited 211 in Traynor v.
Turnage, 485 U.S. 535 (1988). In Traynor, the Court significantly expanded its
holding inRobison and held that 211 did not bar federal courts from considering
whether a regulation issued by the VA and the VAs application of that regulation
conflicted with federal statutes. Id. at 545. In its decision, the Court invited the VA to
seek relief from Congress if it disagreed with its holding. Id. at 544-45.
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PLAINTIFFSOPPOSITION TO MOTION TO DISMISS8
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In response to Traynor, and to prevent courts from engaging in technical VA
decision-making, Congress enacted the VJRA, revising 211 (later codified as
511)1
to read in relevant part:
The secretary shall decide all questions of law and fact necessary to adecision 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.
38 U.S.C. 511.
Federal Defendants mistakenly assert that the VJRA was enacted in response tothe Supreme Courts decision inRobison. Mot. to Dismiss at 10; id. at 14 (Now that
Congress has gone to great length to eliminate the exception to the judicial preclusion
provision found byRobison, this Court has no jurisdiction to review Plaintiffs
constitutional claim.); id. at 21 (Notwithstanding Congress clear intent to close the
gap inRobison, two circuit courts of appeals have said that 511 does not preclude
facial constitutional challenges to acts of Congress affecting veterans benefits.); id.
(Yet, as noted before, 511 was enacted in tandem with the establishment of the
VJRA scheme in response toRobison.). Indeed, the entire premise of Federal
Defendants motion to dismiss is the erroneous assertion thatRobison is no longer
good law. Mot. to Dismiss at 14 (conceding that Plaintiffs claims are practically the
same as the one that the Court inRobison held was properly before the district court).
Federal Defendants are mistaken. The legislative history makes clear that the
VJRA was passed in response to the Supreme Courts decision in Traynor and other
cases interpretingRobison as permitting judicial review of VA regulations. House
Report at 21; see also VCS, 678 F.3d at 1021 (Congress responded almost
1 Section 211 was recodified as 511 by the Department of Veterans Affairs Codification Act, Pub.L. No. 102-83, 105 Stat. 378 (1991).
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immediately to the Courts invitation in Traynor.). The House Report states that
afterRobison, a number of courts, beginning with the Court of Appeals for the Sixth
Circuit in the case ofWayne State v. Cleland, 590 F.2d 627 (6th Cir. 1978), have held
that section 211(a) does not preclude judicial scrutiny of claims that the Administrator
exceeded his authority in issuing particular regulations. House Report at 19
(emphasis added). The House Report clarifies that Congress amended 211 to
address the Courts decision in Traynor, which the Committee believed would
inevitably lead to increased involvement of the judicial in technical VA decision-
making. Id. at 21 (emphasis added).
Far from indicating an intent to overturnRobison, as opposed to Traynor, thelegislative history of the VJRA conclusively states the Committees belief that the
Supreme Court in []Robison was correct in asserting judicial authority to decide
whether statutes meet constitutional muster . . . . House Report at 22. Indeed, the
VJRAs legislative history contains multiple statements by the Committee expressing
the belief that the Court inRobison correctly held that a constitutional challenge to an
act of Congress concerning veterans benefits was properly heard in district court. See,
e.g.,House Report at 19 (The Supreme Courtproperly decided that a decision not to
provide benefits to conscientious objectors was a decision of the Congress, not of the
Administrator, and the Court was free to examine the constitutionality of Congress
decisions.) (emphasis added).2
Indeed, the legislative history reflects that Congress
contemplated that Article III courts would continue to review statutes implicating
veterans benefits. Id. at 26 (To the extent that the committee bill allows Article III
courts to review VA policy[,] . . . such review will aid in the achievement of a more
2Seealso House Report at 19 ([T]he holding that section 211(a) was inapplicable to Robisonsaction seems clearly correct.); id. at 20 (The result inJohnson v. Robison is generally accepted asbeing in accord with a line of decisions stretching back toMarbury v. Madison which hold that thecourts have a constitutional responsibility to determine whether Congressional enactments meetconstitutional muster. But at least the Court inJohnson first decided that the words of 211(a) did notpreclude judicial consideration of Robisons claim, since the argument was not whether theAdministrator had made an unconstitutional decision, but whether Congress had done so.).
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accurate and fair system.).
Like the plaintiff inRobison, Plaintiffs here do not challenge any VA
interpretation or application of a particular provision of the statute to a particular set
of facts,Robison, 415 U.S. at 367, or a technical VA decision, House Report at 19.
Instead, also like the plaintiff inRobison, Plaintiffs challenge acts of Congress
affecting veterans benefits i.e.,statutory classifications drawn by Congress in Title
38 and DOMA. That the VA did not consider (let alone decide) the constitutionality
of Title 38 or DOMA when denying benefits to Tracey confirms that Plaintiffs are not
challenging a VA decision within the scope of 511s jurisdictional bar.
Federal Defendants reliance onHall v. Dept of Veterans Affairs, 85 F.3d 532(11th Cir. 1996), is misplaced. See Mot. to Dismiss at 21. That case is inapposite
because it involved a challenge to a VA regulation, not an act of Congress. Id. at 532-
33. Unlike the plaintiff inHall, Plaintiffs here do not challenge a VA regulation, the
VAs application of that regulation to the facts, or the decision to deny benefits based
on that straightforward application. Moreover, as the Eleventh Circuit noted, the VA
in that case had conceded that if Hall [the veteran plaintiff] sought to overturn the
statute, the district court would have jurisdiction. Id. at 533.
As Federal Defendants concede, Plaintiffs constitutional challenge is
practically the same as the one inRobison, both involving an equal protection
challenge to a statutory classification that by its express terms excludes the plaintiff(s)
from certain veterans benefits. Mot. to Dismiss at 14. This concession, in light of
the fact thatRobison remains binding authority on this Court, is fatal to Federal
Defendants position. Federal Defendants have failed to meet their burden of
demonstrating the requisite fairly discernible intent by Congress to divest federal
district courts of the power to consider the constitutionality of statutes concerning
veterans benefits. Elgin, 132 S. Ct. at 2132; see also Brown v. Gardner, 513 U.S. 115,
118 (1994) (where a veterans benefits statute is ambiguous, interpretive doubt is to
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be resolved in the veterans favor (citing King v. St. Vincents Hospital, 502 U.S.
215, 220-21 n.9 (1991)).
Lastly, Federal Defendants assertion that Plaintiffs challenge cannot
appropriately be characterized as a facial challenge, should be rejected. Mot. to
Dismiss at 17. This argument relies on the erroneous assumption that a plaintiffs
basis for standing is determinative of whether a challenge to a statute is characterized
as facial or as-applied. See id. at 17-18. On the contrary, the distinction between
a facial and an as-applied challenge to a statute turns on the whether the plaintiff
alleges that the statute is unconstitutional in all applications or just when applied to
the plaintiff. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (noting thatin facial challenge, the challenger must establish that no set of circumstances exists
under which the Act would be valid). Therefore, a holding that a statute is
unconstitutional on its face will result in the statute being declared unconstitutional
not only as applied to the plaintiff who brought the challenge, but also to all others
similarly situated; the nature of the plaintiffs injury is irrelevant. Plaintiffs here
allege that Title 38 is unconstitutional on its face. Compl. 65.
3. Consistent withRobison, Veterans for Common Sense (VCS)
Permits Facial Constitutional Challenges to Acts of Congress
or Claims Where the Court Is Not Asked to Review Decisions
of the VA
Notwithstanding Federal Defendants suggestion to the contrary, the Ninth
Circuits recent en banc decision in VCSdoes not compel this Court to conclude that
the VJRA precludes facial constitutional challenges to federal statutes. Rather, in
VCS, the Ninth Circuitupheld district court jurisdiction for a facial challenge to the
constitutionality of a federal statute that affects veterans benefits and confirmed that
district court jurisdiction is not barred by the VJRA where plaintiffs do not challenge
any decision of the VA and do not require the court to review any such decisions. 678
F.3d at 1034-35; see also Vietnam Veterans of Am. v. C.I.A., No. C 09-0037CW,2012
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WL 4715308, at *16 n.12 (N.D. Cal. Sept. 30, 2012).
In VCS, two veterans organizations brought an action against the VA seeking
declaratory and injunctive relief, alleging violations of statutory and constitutional
rights stemming from (1) delays in the provision of mental health care, (2) delays in
the adjudication of disability compensation claims by the VA, and (3) the lack of
adequate procedures during the claims. Id. at 1017-18. The Ninth Circuit discussed
in detail cases construing the jurisdictional limitations of 511 and concluded that
511 precludes jurisdiction over a claim if it requires the district court to review VA
decisions that relate to benefits decisions, including any decision made by the
Secretary in the course of making benefits determinations. Id. at 1025 (citationsomitted).
The Ninth Circuit first held that Plaintiffs challenges to the delays in the
provision of mental health care and adjudication of claims were barred because there
is no way for the district court to resolve whether the VA acted in a timely and
effective manner in regard to the provision of mental health care without evaluating
the circumstances of individual veterans and their requests for treatment, and
determining whether the VA handled those requests properly. Id. at 1028. Similarly,
with regard to adjudication delays, the court held that VCSs claim against the VA
plainly implicates questions of law and fact regarding the appropriate method of
providing benefits to individual veterans[, which t]he district court cannot decide . . .
without determining whether the VA acted properly in handling individual veterans
benefits requests at each point in the process. Id. at 1029. In holding that 511
precluded the district courts jurisdiction over these claims, the Ninth Circuit
emphasized that VCS seeks sweeping declaratory and injunctive relief including the
district courts writing of procedures for processing mental health claims and
continued court supervision. Id. at 1017, 1028. Plaintiffs here seek no such relief.
As to VCSs claim that the VJRA is unconstitutional because it lacks
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procedural safeguards for veterans filing claims for benefits, the Ninth Circuit held
that it had jurisdiction to consider the claim because VCS asserts a facial challenge
to the constitutionality of the VJRA based . . . on the absence in the statute of certain
procedures VCS claims are necessary to safeguard veterans rights. Id. at 1033.
Jurisdiction was not barred by 511, the court reasoned, because reviewing the VAs
procedures for filing and handling benefits claims at the Regional Offices does not
require [the court] to review decisions affecting the provision of benefits to any
individual claimants. Id. at 1034 (Indeed, VCS does not challenge decisions [of the
Secretary] at all. A consideration of the constitutionality of the procedures in place,
which frame the system by which a veteran presents his claims to the VA, is differentthan a consideration of the decisions that emanate through the course of the
presentation of those claims.).3
Under the reasoning ofVCS, it is evident that because Plaintiffs do not
challenge any decision of the VA and do not ask the Court to review any such
decision, the jurisdictional bar of 511 is not implicated. Unlike the plaintiffs in
VCS, Plaintiffs are not asking this Court to review the VAs administration of any
benefits, and certainly are not seeking a sweeping overhaul of VA procedures. Rather
the questions presented by the Complaint are whether Title 38 and DOMA violate the
constitutional guarantee of equal protection. The VA Secretary did not create the
classifications set forth in those statutes, and Plaintiffs here do not question whether
the VAs application of those classifications was appropriate. Because this Courts
3In VCS, the Ninth Circuit left open the question whether an individual seeking benefits would be
barred by 511 bringing a facial constitutional challenge in the district court. Id. This openquestion, however, does not apply to Plaintiffs claims here because Plaintiffs do not seek anybenefits in this action. In the event that the Court determines that this Complaint is seekingindividual benefits and thus falls within the question not answered by the Ninth Circuit, Plaintiffsrespectfully submit that the Supreme Courts decision inRobison mandates the conclusion that suchclaims are properly heard in this Court. Just like the plaintiff inRobison, Plaintiffs here arechallenging an act of Congress that effectively bar them from receiving benefits. Plaintiffs furthernote that on January 7, 2013, the Supreme Court denied certiorari in VCS. See 81 U.S.L.W. 3130,2013 WL 57122 (U.S. Jan. 7, 2013) (No. 12-296).
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analysis of the constitutionality of Title 38 and DOMA would not require the Court to
scrutinize any decision or action of the Secretary, jurisdiction in this Court is proper.
Id. at 1033-34.
Federal Defendants reliance on two other Ninth Circuit cases is misplaced. See
Mot. to Dismiss at 13 (citingLittlejohn v. United States, 321 F.3d 915, 921 (9th Cir.
2003) andHicks v. Small, 69 F.3d 967, 970 (9th Cir. 1995)). Littlejohn is inapposite
because the question before the Ninth Circuit was not whether a district court had
jurisdiction over a constitutional challenge to a federal statute, but instead whether the
plaintiff had satisfied the elements of claim preclusion in an action involving medical
malpractice against VA doctors. Littlejohn, 321 F.3d at 919. Littlejohn argued thatbecause the VA had previously determined that negligence of the VA doctors entitled
him to disability compensation, that VA decision had a preclusive effect, establishing
liability for negligence under his malpractice claim. Id. Littlejohns motions for
summary judgment and directed verdict on this ground were denied by the district
court, and Littlejohn appealed on the ground that the district courts refusal to apply
claim preclusion to his tort claim violated 511s bar to district court review of a VA
benefits decision. Id. The Ninth Circuit rejected Littlejohns argument that claim
preclusion applied notbecause 511 bars district courts from hearing a claim that
would have any effect on the benefits to be awarded by VA to the veteran, as
Federal Defendants suggest, but instead because there was no possibility that the
district court action would result in a diminution of benefits. Id. at 921.
Hicks is inapposite because that case, too, did not involve a facial challenge to
the constitutionality of a federal statute. InHicks, a veteran broughtBivens and state
tort claims against the VA, alleging that a VA doctor had reduced his disability
benefits in retaliation for complaints made by the veteran. Id. at 970. The Ninth
Circuit affirmed the district courts dismissal under the VJRA because adjudicating
the plaintiffs claims would have required the court to scrutinize whether the reduction
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in Hicks disability benefits was done in retaliation or for a proper purpose. Id.
(Hicks tort claims would necessitate a consider[ation of] issues of law and fact
involving the decision to reduce [Hicks] benefits, a review specifically precluded by
38 U.S.C. 511(a). (alteration in original) (quotingHicks v. Small, 842 F. Supp. 407,
413-14 (D. Nev. 1993)). Unlike the complaint inHicks, review of Plaintiffs claims in
this case would not require the Court to review any decision of the VA, but instead
whether Congress decision to treat legal same-sex marriages differently from legal
heterosexual marriages violates the constitutional guarantee of equal protection.
4. Courts Have Consistently Held That District Courts Have
Jurisdiction Over Constitutional Challenges to StatutesAffecting Veterans Benefits
Consistent with the principles articulated inRobison, federal courts have
continued to exercise jurisdiction over facial constitutional challenges to statutes
affecting veterans benefits after the passage of VJRA. Indeed, since the enactment of
the VJRA and the creation of the Veterans Court, numerous courts including the
Veterans Court itself have concluded that facial challenges to acts of Congress are
properly heard in district court. Federal Defendants ignore the majority of these cases
and fail to mention that no court has held that the VJRA bars a constitutional
challenge to a decision of Congress in district court.
The Courts of Appeals for the Second, Fifth, Sixth, and D.C. Circuits, as well as
the Veterans Court, have concluded that facial constitutional challenges to statutes
involving veterans benefits are properly within the jurisdiction of district courts.
Broudy, 460 F.3d at112 ;Beamon v. Brown, 125 F.3d 965, 972-73 (6th Cir. 1997);
Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995); Dacoron v. Brown, 4 Vet.
App. 115, 118-19 (1993);Disabled Am. Veterans v. Dept of Veterans Affairs, 962
F.2d 136, 140 (2d Cir. 1992).
The Second Circuits decision inDisabled American Veterans is instructive. In
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that case, plaintiffs brought an equal protection challenge to a federal statute that
eliminated the availability of veterans family benefits in certain circumstances.
Disabled Am. Veterans, 962 F.2d at 137-38. As here, the plaintiffs contended that the
statutory classification drawn by Congress was unconstitutional on its face. Id. at 138.
And, as here, the VA argued that the VJRA vested exclusive jurisdiction in the
Veterans Court over constitutional challenges to federal statutes affecting veterans
benefits. Id. at 140.
The Second Circuit rejected the VAs argument, and held that the district court
had properly construed the VJRA to exclude judicial review only of decision[s] by
the Secretary, and not of facial constitutional challenges. Id. at 141 (alteration inoriginal). Accordingly, the Court held that the district court had proper jurisdiction
over plaintiffs equal protection challengeto the federal statute at issue in that case,
because consideration of such a constitutional claim did not constitute a review of an
individual benefits determination. Id. at 140-41; see alsoLarabee ex rel. Jones, 968
F.2d at 1501 ([D]istrict courts continue to have jurisdiction to hearfacial challenges
of legislation affecting veterans benefits[.]). The Court reasoned that to hold
otherwise, and to accept the VAs interpretation of the VJRA, would have implicated
issues of constitutional separation of powers. Id. at 140.
Other federal appellate courts have consistently reached the same conclusion as
Disabled American Veterans. SeeBeamon v. Brown, 125 F.3d 965, 972-73 (6th Cir.
1997) ( [D]istrict court jurisdiction over facial challenges to acts of Congress
survived the statutory revisions that established the [Veterans Court].);Zuspann v.
Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995) (distinguishing between a challenge to
a denial of benefits and a facial challenge to an act of Congress, which the district
court had power to adjudicate); see also Broudy, 460 F.3d at 112 (Section 511(a)
does not gives the VA exclusive jurisdiction to construe laws affecting the provision
of veterans benefits or to consider all issues that might somehow touch upon whether
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someone receives veterans benefits.).
Indeed, the Veterans Court has also concluded that it does not have exclusive
jurisdiction over constitutional challenges to federal statutes affecting veterans
benefits. See Dacoron v. Brown, 4 Vet. App. 115 (1993). InDacoron,the court
stated, [n]othing in title 38 prohibits a constitutional challenge to any of the
provisions of that title from being litigated in U.S. district court. Dacoron, 4 Vet.
App. at 119.4
The court explained:
Although the enactment in 1988 of the [VJRA], which created this Court,
opened up to judicial review a great many claims as to which review had
previously been prohibited by 38 U.S.C. 211(a), nothing in the VJRA
or in the current provisions of 38 U.S.C. 511(a) changes the SupremeCourts above-quoted analysis inJohnson [v. Robison]as to whether a
constitutional challenge to a statute governing VA benefits is governed
by the provisions of old section 211(a) or current section 511(a), or
whether such a challenge may be brought in U.S. district court without
regard to those statutory provisions.
Id. at 118-19. Thus, [a] claim which alleges only the unconstitutionality of a statute
is not a claim under a law that affects the provision of benefits by the Secretary
under 511(a), but rather is a claim under the Constitution of the United States. As
such, it is beyond the purview of section 511(a). Id. at 119. Cf.Copeland v.
Shinseki, No. 11-2408, 2012 WL 5939166, at *5 n.4 (Vet. App. Nov. 14, 2012)
(holding that while nothing in Title 38 prohibits constitutional challenges from being
heard in district court, the Veterans Court also has the authority to declare a statute as
facially unconstitutional) (citingDacoron, 4 Vet. App. at 119).
Like the plaintiffs inDisabled American Veterans, Plaintiffs here do not
4 The Veterans Courts analysis inDacoron rejects Federal Defendants statement that the choice offorum here is not for Plaintiffs to make, Mot. to Dismiss at 2. TheDacoron court stated that while[n]othing in title 38 prohibits a constitutional challenge to any of the provisions of that title frombeing litigated in U.S. district court[,] . . . nothing in the above analysis implies that [the VeteransCourt] does not have power to review claims pertaining to the constitutionality of statutory andregulatory provisions. Dacoron, 4 Vet. App. at 119.
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challenge any VA decision within the scope of 511s jurisdictional bar, do not
seek monetary damages, and do notseek an injunction ordering a benefits award.
Plaintiffs seek a declaration by the Court that the statutory classifications drawn by
Congress in Title 38 and DOMA violate the equal protection guarantees of the
Constitution. The classifications drawn by Title 38 and DOMA are not decisions of
the VA, but instead are statutes affecting veterans benefits, the constitutionality of
which this Court has the power to adjudicate.
B. Exercising Jurisdiction Over Plaintiffs Claims Will Not Affect
Veterans Benefits Administration
Federal Defendants assert that Congress enacted the VJRA to achieve national
uniformity and consistency in veterans benefits decision-making, Mot. to Dismiss at
2, and cite to a portion of the legislative history of the VJRA that states that [t]he
committee believes that it is strongly desirable to avoid the possible disruption of VA
benefit administration which could arise from conflicting opinions on the same subject
due to the availability of review in the 12 Federal Circuits or the 94 Federal Districts.
House Report at 28. Based on this text, Federal Defendants contend that it would be
improper for this Court to hear Plaintiffs claims because the Veterans Court is
currently considering whether Title 38 and DOMA are constitutional as applied to the
plaintiff in Cardona v. Shinseki, Vet. App. No. 11-3083.
This argument is misleading because the language cited by Federal Defendants
relates to a section of the VJRA unrelated to the changes made to the jurisdictional bar
codified at 511. Rather, the language cited by Federal Defendants concerned an
amendment in the responsibilities of the VA Secretary with respect to agency
rulemaking under the Administrative Procedure Act (APA) and which provided that
decisions of the Secretary as to VA rules (such as the VA schedule for rating
disabilities) are only reviewable by the Federal Circuit. By vesting exclusive
jurisdiction to review challenges to the Secretarys rules brought under the APA in the
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Federal Circuit, Congress fulfilled its intent to avoid conflicting judicial opinions on
the specific subject of VA rule interpretation and application. The statement quoted
by Federal Defendants refers to this section of the VJRA only and does not support the
proposition that Congress intended to prevent conflicting opinions on the
constitutionality of statutes concerning veterans benefits. Indeed, the section of the
House Report that includes Federal Defendants quotation also specifically states that
constitutional challenges even as to the schedule itself remain available in
district court. House Report at 27-28 (Notwithstanding the deference which courts
tend to give to long-standing administrative constructions, especially one that has been
consistently followed by the agency, and that has been drafted by an agency withrecognized expertise in the subject matter, the committee has expressly precluded
review of the schedule in the bill (except for challenges to the constitutionality of the
schedule). (emphasis added) (internal citations omitted).
Thus, contrary to Federal Defendants argument, Congress has expressed its
intent to permit federal district courts to adjudicate constitutional challenges such as
Plaintiffs, even though conflicting rulings might result. That courts may reach
different conclusions on the same legal issues is undeniable and common in our
legal system; indeed, such splits can be important to percolation of an issue before
involvement by the Supreme Court or another branch of government.
C. The Supreme Courts Decision inElgin Is Inapplicable to the VJRA
and the Claims in this Case
Federal Defendants urge the Court to deny district court jurisdiction over
Plaintiffs claims in light of the Supreme Courts decision inElgin. Mot. to Dismiss
at 15-16. Notwithstanding the fact thatElgin involved a wholly different
administrative review scheme (the Civil Service Reform Act (CSRA)), and not the
VJRA, Federal Defendants argue that the reasoning ofElgin should control because
Congress has gone to great length to eliminate the exception to the jurisdictional
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preclusion provision found byRobison, Mot. to Dismiss at 14. Seesupra Part
III.A.2. As discussed below, both the VJRA and Plaintiffs claims here are
distinguishable from the CSRA and the claims at issue inElgin.
As an initial matter,Elgin is inapplicable because it involved a different
statutory scheme. See Vietnam Veterans of Am. v. C.I.A., No. C 09-0037CW,2012
WL 4715308, at *16 n.12 (N.D. Cal. Sept. 30, 2012) (rejecting governments
argument thatElgin compelled a finding that the VJRA precluded district court review
of challenges involving veterans benefits). Moreover, it cannot be said that upon
examining the text, structure, and purpose of the VJRA, it is fairly discernible that
Congress intended to preclude district court jurisdiction over constitutional claims likethose at issue inRobison and those at issue here. Indeed, as discussed above, the
legislative history of VJRA indicates the very opposite.
One recent courts decision is instructive. In Vietnam Veterans of America, a
district court in the Northern District of California certified a class of veterans and
veterans groups seeking declaratory relief for claims against the federal government,
alleging it had used volunteer service members as human test subjects for
experimental research of chemical and biological substances without first obtaining
informed consent. Id. at *1-5. Plaintiffs also made a procedural due process claim
challenging the VAs ability to be an objective evaluator in determining whether
veterans would be entitled to disability benefits based on participation in the
experimental research. See id. As here, the federal government argued that the
Supreme Courts decision inElgin compelled a finding that the district court lacked
jurisdiction over plaintiffs claims.
The court rejected the federal governments argument that 511 precluded its
jurisdiction over the claims. The court noted thatElgin was inapplicable to the claims
involved because (1)Elgins analysis focused exclusively on the CSRA and not the
VJRA, and (2) plaintiffs inElgin challenged specific, adverse employment decisions
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and sought reinstatement, back pay, and benefits, whereas plaintiffs in the case before
the court did not challenge any decision of the VA and sought only prospective relief.
Id. at *16 n.12. Like the plaintiffs in Vietnam Veterans of America, Plaintiffs here
neither challenge a specific decision of the Secretary nor seek retroactive relief such
as back benefits, as discussed above. The holding inElgin is not pertinent to this
Courts decision regarding the jurisdictional limitations of 511.
D. Plaintiffs Have Suffered a Particularized and Concrete Injury With
Respect to Burial And Spousal Death Benefits
Finally, Federal Defendants assert that Plaintiffs do not have standing to assert
claims to the extent they relate to Disability and Indemnity Compensation (DIC)
benefits and spousal burial rights in veterans cemeteries, because Tracey has not yet
died.5
Federal Defendants argue that Plaintiffs have suffered no injury-in-fact as to
these benefits because there is no eligible death and Plaintiffs have not yet satisfied
the statutory requirements for DIC benefits or burial. Mot. to Dismiss at 19-20.
The Court should reject Federal Defendants argument because the
classifications created by Congress under Title 38 and DOMA harm Plaintiffs now.
These statutes create uncertainty about one of the most important aspects of caring for
ones spouse: the planning of a spouses financial survival in the event of death,
particularly one that may be preceded by prolonged and expensive medical care. It is
undeniable that if Tracey were to die today from multiple sclerosis, Title 38 and
DOMA would operate as a barrier to Maggie receiving DIC benefits. It is also certain
that if Maggie died today, she would be denied burial in a veterans cemetery because
of Title 38 and DOMA. Indeed, Tracey and Maggie have already been deniedburial
5Federal Defendants do not challenge Plaintiffs standing with respect to the additional disability
compensation that they are being denied.
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benefits because of Title 38 and DOMA.6
Compl. 50.
Federal Defendants assertion that Plaintiffs may only bring their claims related
to DIC and burial benefits once there is an eligible death andthe surviving spouse
exhausts her administrative remedies, Mot. to Dismiss at 20, misunderstands the
requirements of standing. Courts are empowered to adjudicate declaratory relief
claims not only where a challenged event has in fact occurred but also where there is
the dispute between the parties that is definite and concrete, touching the legal
relations of parties having adverse legal interests. MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007) (quotingAetna Life Ins. Co. v. Haworth, 300 U.S. 227,
240-41 (1937)) (internal quotation marks omitted).The United States District Court for the District of Massachusetts recently
addressed this issue inMassachusetts v. U.S. Dept of Health and Human Servs., 698
F. Supp. 2d 234, 245 (D. Mass. 2010) (challenging DOMA as unconstitutional as
applied to Massachusetts), affd, 682 F.3d 1 (1st Cir. 2012). The government
maintained that the Commonwealth failed to establish an injury-in-fact in its claim
alleging unconstitutional treatment by the VA if the Commonwealth allows same-sex
spouses to be buried in Commonwealth veterans cemeteries. Id. at 244-45. The
6Federal Defendants incorrectly state the statutory requirements for spousal burial in veterans
cemeteries. The only requirements for burial of a veterans spouse are a lawful marriage and that thespouse and veteran lived together until the spouses death. There is no requirement, as FederalDefendants assert, that the surviving spouse must not have remarried. Mot. to Dismiss at 19. Evenif the surviving spouse remarries, he or she remains eligible for burial in a veterans cemetery (withor without the veteran). 38 U.S.C. 2402 (a)(5). Section 2402 states that [u]nder such regulationsas the Secretary may prescribe . . . the remains of the following persons may be buried in any opennational cemetery under the control of the National Cemetery Administration: . . . (5) The spouse[
or] surviving spouse (which for purposes of this chapter includes a surviving spouse who had asubsequent remarriage) . . . of any of the persons listed in paragraph[] (1) [listing a veteran] . . . .).The veterans cemetery to which Tracey sought a pre-determination of burial eligibility for her andMaggie, the Northern California Veterans Cemetery, has the same requirements. U.S. Dept ofVeterans Affairs, National Cemetery Administration, Interments in Dept of Veterans Affairs (VA)National Cemeteries 7, http://www.cem.va.gov/CEM/pdf/IS1_Jan_2011.pdf ((1) The spouse orsurviving spouse of an eligible Veteran is eligible for interment in a national cemetery even if thatVeteran is not buried or memorialized in a national cemetery. . . . (2) The surviving spouse of aneligible Veteran who had a subsequent remarriage to a non-Veteran and whose death occurred on orafter January 1, 2000, is eligible for burial in a national cemetery, based on his or her marriage to theeligible Veteran.).
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court disagreed and stated that [s]tanding is not contingent, as the government
suggests, on [a veterans same-sex spouse] being lowered into his grave at
Winchendon [veterans cemetery], or on the Commonwealths receipt of an invoice
for millions in federal state veterans cemetery grant funds. Id. at 245. The court
explained that, [i]ndeed, a plaintiff is not required to expose himself to liability
before bringing suit to challenge the basis for the threat, particularly where, as here, it
is the government that threatens to impose certain obligations. Id. at 245 (quoting
MedImmune, Inc., 549 U.S. at 128-29). The court held there was an injury-in-fact that
was neither speculative nor hypothetical. Id. at 240.
Because of Title 38 and DOMA, Plaintiffs are unable to plan for their futurebecause it is uncertain as to whether these statutes will prevent the recognition of their
marriage. This reality is neither speculative nor hypothetical. Tracey and Maggie
were explicitly denied joint burial rights, forcing the couple to make alternate burial
plans. Similarly, as long as Title 38 or DOMA are law, Maggie isper se ineligible to
receive monthly DIC if Tracey dies from multiple sclerosis; the couple must,
therefore, take measures now to ensure that when Tracey dies, Maggie will be able to
support herself without the DIC. Their injury related to DIC benefits and joint burial
benefits are real and concrete even more so by the progression of Traceys service-
connected medical conditions, including multiple sclerosis and thus are ripe for
this Courts adjudication.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court deny
Federal Defendants motion to dismiss.
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DATED: January 28, 2013
Respectfully Submitted,
SOUTHERN POVERTY LAW CENTER
BY: /s/ Christine P. SunCHRISTINE P. SUN400 Washington Ave.Montgomery, AL 36104
WILMER CUTLER PICKERING HALEAND DORR LLP
Attorneys for Plaintiffs Tracey Cooper-Harrisand Maggie Cooper-Harris
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Civil Division - Federal Programs Branch
20 Massachusetts Avenue, Northwest
Washington, District of Columbia 20530
/s/ Adam RomeroAdam Romero
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