Case 1:11-cv-11905-RGS Document 50 Filed 09/09/13 Page 1 of 9

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. See United 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 Windsor decision 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.); accord Cruz 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 under Windsor, 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

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

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 favor nunc 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. DELERY Assistant Attorney General CARMEN M. ORTIZ United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director /s/ Jean Lin JEAN LIN

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Senior Trial Counsel U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Phone: (202) 514-3716 Fax: (202) 616-8470 email: jean.lin@usdoj.gov

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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. IMcClatchey@Chadbourne.com CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 Abbe David Lowell, Esq. ADLowell@Chadbourne.com Christopher D. Man CMan@Chadbourne.com CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036 John M. Goodman, Esq. JGoodman@SLDN.org David McKean DMcKean@SLDN.org SERVICEMEMBERS 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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