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Cooper-Harris v. USA: House Republicans request a stay, Justice Department files motion to dismiss, in DOMA case

DOMA trials

By Scottie Thomaston

The Justice Department and the Bipartisan Legal Advisory Group (BLAG), who is defending Section 3 of the Defense of Marriage Act on behalf of House Republicans, have filed new motions in Cooper-Harris v. USA, in apparent attempts to end the case at its current stage. There has been continuous legal wrangling in this case all along. It involves a military servicemember who was diagnosed with multiple sclerosis. The VA ruled that the disease was a result of her service. She is seeking spousal benefits for her wife but is denied them under Section 3 of DOMA and another provision that’s similar to Section 3, defining ‘spouse’ for purposes of military benefits: “The term “spouse” means a person of the opposite sex who is a wife or husband.”

Since its inception the case has faced roadblocks and attempts to stall it. However, the administration had stopped defending the military law soon after it had stopped defending Section 3 of DOMA, and House Republicans were in charge of defending the law against the servicemember. They tried to put the case on hold back on but the request was rejected. Now, though, the Supreme Court is taking up a challenge to Section 3 of DOMA – United States v. Windsor – and BLAG now argues that the outcome in that decision would “directly… control” this case (though they later admit it may not be “dispositive” here.)

And regarding the other provision of the US Code at issue here (but not in Windsor), they write, “[m]oreover, because the definitional language in 38 U.S.C. § 101(3) & (31) differs so little from the language of DOMA Section 3, the ruling in
Windsor likely will shed considerable light on the question of the constitutionality of 38 U.S.C. § 101(3) & (31).” The Ninth Circuit has held two cases – Golinski and Dragovich – for the outcome in Windsor and BLAG wants this court to follow along.

BLAG also suggests the Prop 8 would shed additional light in this case, writing “this Term in Perry, the Supreme Court also is scheduled to hear and consider the question of whether a state constitutionally can define marriage as a union between a man and a woman, the answer to which undoubtedly will inform, and possibly could control, the outcome of the Title 38 question in this case[.]”

BLAG writes that the court likely does not have jurisdiction to award benefits to the plaintiff anyway, as the legislative branch has moved jurisdiction over those claims to a different board: “Because the VJRA [Veterans' Judicial Review Act] confers exclusive jurisdiction on the Secretary over benefits claims, this Court has no jurisdiction to order an award of benefits by the VA to Plaintiff Tracey Cooper-Harris nor to order that the VA be bound by its determination of Plaintiffs’ constitutional claims.”

A filing by the Justice Department mirrors this last claim. The DOJ filing, however, isn’t a request to stall the proceedings but rather to dismiss the case in light of the fact that the VJRA should have jurisdiction over the claims presented here. They argue that no relief can be obtained in federal district court since the VJRA does not require the VA Secretary to be bound by its determinations. And they note that the plaintiff here has initiated proceedings before that Board already (though they are stalled right now.) Congress intended for these claims to be reviewed under that process, the DOJ says, so the district court case should not continue.

It is unclear why this motion was filed now and not sooner. As discussed above, there has been a longstanding fight over attempts to have this case stalled or dismissed. It’s also unclear how much a decision on the merits in Windsor would inform this case if it’s supposed to be reviewed by a specialized board anyway and the board wouldn’t be bound by these determinations.

h/t Kathleen as always for these filings

BLAG request for stay:2:12-cv-00887 #69

DOJ motion to dismiss based on lack of subject matter jurisdiction:2:12-cv-00887 #68


  • 1. John  |  December 14, 2012 at 10:43 am

  • 2. Prop 8 Trial Tracker &raq&hellip  |  December 17, 2012 at 12:03 pm

    [...] Cooper-Harris v. USA: House Republicans request a stay, Justice Department files motion to dismiss, … [...]

  • 3. Equality On Trial »&hellip  |  February 25, 2013 at 4:36 pm

    [...] will continue. The Bipartisan Legal Advisory Group (BLAG, representing House Republicans) had filed a motion to stay proceedings after the Supreme Court took up United States v. Windsor, a case that raises the same issue of the [...]

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