IN THE UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

_________________________________
)
CARMEN CARDONA )
) Vet. App. No. 11-3083
Appellant, )
)
v. )
) Date: October 30, 2013
ERIC K. SHINSEKI, )
)
Appellee. )
)




APPELLANTS MEMORANDUM OF LAW IN OPPOSITION TO APPELLEES
MOTION TO REMAND TO THE BOARD OF VETERANS APPEALS




Kendall Hoechst, Law Student Intern
J ennifer McTiernan, Law Student Intern
V. Prentice, Law Student Intern
Michael Wishnie, Supervising Attorney
Veterans Legal Service Clinic
J erome N. Frank Legal Services Organization
Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
(203) 432-4800

Case No. 11-3083 EQCF Dkt #209 Filed 10/30/2013
1
On October 4, 2013, the Secretary of Veterans Affairs moved to remand Ms.
Cardonas case to the Board of Veterans Appeals (BVA or Board). See Appellees Mot.
to Vacate the Board of Veterans Appeals Decision and Remand to Apply the
Presidents Directive (Oct. 4, 2013). Since she filed her notice of appeal to this Court
more than two years ago, Ms. Cardona has sought an adjudication of her constitutional
challenge to 38 U.S.C. 101(31) that would bind this and future Secretaries to ensure
that she and other disabled veterans receive the spousal benefits their service has earned.
Because a remand offers only further uncertainty, and the prospect that a future Secretary
might elect to enforce against Ms. Cardona the statute disavowed today by the current
Secretary, Ms. Cardona objects to this motion. She respectfully requests that this Court
adjudicate her appeal.
I. Congress Established This Court to Ensure That Veterans Receive the
Benefits to Which They Are Lawfully Entitled.

The foundational purpose of this Court is to provide a forum for veterans to appeal
decisions made by the Department of Veterans Affairs (VA). According to its
jurisdictional statute, [t]he Court of Appeals for Veterans Claims shall have exclusive
jurisdiction to review decisions of the Board of Veterans Appeals . . . [and t]he Secretary
may not seek review of any such decision. 38 U.S.C. 7252 (emphasis added). This
Court outlined the legislative history of the Veterans J udicial Reform Act at length in
American Legion v. Nicholson, to highlight the importance of a body that gives veterans
affected by VA actions access to [a] court to challenge these actions [and a]
guaranteed . . . opportunity to be heard by an entity outside of the VA and, in certain
2
cases, to obtain urgent and timely relief. 21 Vet. App. 1, 5 (2007).
This Court will grant a motion to remand by the Secretary only where the veteran
will receive a complete remedy in the remanded proceedings. See, e.g., Exhibit A, Britton
v. Principi, 17 Vet. App. 507 (2001) (granting Secretarys motion to remand where more
favorable law had been passed by Congress but not applied during original Board
proceedings). In any other case, granting a Secretarys motion to remand would be
antithetical to this Courts purpose to ensure fairness to individual claimants before the
VA. 133 Cong. Rec. S. 223 (daily ed. J an. 6, 1987).
In the case of Ms. Cardonas appeal, the Board lacks jurisdiction to adjudicate
constitutional claims and therefore cannot provide full redress by issuing a definitive
ruling capable of binding a future Secretary. Ms. Cardona, therefore, sought and received
expedited treatment of her appeal to this Court from the BVA. See Appellants Summary
of Issues (Mar. 6, 2012) at 2; see also Record Before the Agency (RBA) 26-33, Motion
for Advancement of the Docket to Determine the Appeal of Carmen Cardona (Apr. 25,
2011). The BVA granted the request, noting that the Board has no jurisdiction to remedy
a constitutional challenge of a law that is binding on the board and further that [s]uch
challenge is more appropriate for the this Court, which is empowered by statute to
make determinations regarding constitutional claims. See RBA 4, BVA Decision in the
Appeal of Carmen J . Cardona (Aug. 30, 2011), at 8-9. Ms. Cardona then duly filed notice
of her appeal to this Court on October 13, 2011. After years of litigation, a remand order
would not address the claims on appeal.
3
II. This Court Should Decide the Important Constitutional Questions Raised and
Not Leave Their Adjudication to U.S District Courts.

The Presidents recent decision to direct the Secretary of Veterans Affairs to stop
enforcing the statutory definition of spouse in 38 U.S.C. 101(31) and 101(3) does
not moot this appeal, nor would a remand to the BVA provide Ms. Cardona or other
disabled veterans like her with a binding ruling on the legal issue in this case. Rather, as
outlined in Appellants Supplemental Memorandum of Law also filed today, a BVA
decision would be temporary, subject to the views of future Secretaries. A decision by the
Board has no power to bind the Department of Veterans Affairs in the future, and as the
BVA explained previously in this very case, the Board lacks jurisdiction to adjudicate Ms.
Cardonas constitutional claims. The governments voluntary cessation of enforcement of
this law may readily be reversed at a later date. See Appellants Supp. Mem. of Law (Oct.
30, 2013), at 5-8. Instead of providing a definitive ruling, a remand order would open up
the possibility that Ms. Cardona would have to restart her litigation against the VA in the
event that a later administration decides to once again enforce the statute.
Moreover, because the court would have to dispose of the questions of whether the
Boards application of 38 U.S.C. 101(31) violated the Tenth Amendment and
unconstitutionally failed to provide Ms. Cardona equal protection under the law, a
remand order might dispose[] of an important legal issue that would be effectively
unreviewable at a later stage of litigation. Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir.
1997). To obtain the legal ruling and the certainty that she seeks for herself and other
disabled veterans married to a same-sex spouse, Ms. Cardona would have no choice but
4
to appeal a remand order issued by this Court to the U.S. Court of Appeals for the Federal
Circuit, which has excepted such remand orders from the ordinary finality requirement.
See Dambach v. Gober, 223 F.3d 1376, 1379 (Fed. Cir. 2000).
Section 101(31) of Title 38 deprives Ms. Cardona of the opportunity to enjoy the
same benefits that disabled veterans married to opposite-sex partners receive. So long as
this statute stands, the BVA has no authority to ensure that Ms. Cardona receives equal
treatment under VA benefits law in the event that a future Secretary or Attorney General
reaches a different conclusion regarding the constitutionality of 101(31) or the propriety
of its non-enforcement by the executive branch. This Court, and only this Court, can hear
and adjudicate the merits of the governments deprivation of benefits to Ms. Cardona on
the basis of this current law. Cf. Exhibit B, J udgment 10, ECF No. 55, McLaughlin v.
Hagel, No. 1:11-cv-11905-RGS (D. Mass Oct. 2, 2013) (holding 101(31)
unconstitutional as applied to plaintiffs in action); Exhibit C, Cooper-Harris v. United
States, 2013 WL 4607436, No. 2:12-00887-CBM (AJ Wx), at *2 (C.D. Cal. Aug. 29,
2013) (same). After years of litigation, a remand order would create an uncertainty about
whether Ms. Cardona might once again be denied the full benefits she is entitled as a
veteran of the United States Navy.
In summary, Congress established this Court to hear veterans appeals, not to
adjudicate appeals from the Department of Veterans Affairs. A Board decision cannot
require the Secretary, currently or under a future administration, to refrain from enforcing
the statute that has deprived Ms. Cardona of benefits she has earned. Such a remand
would dispose of Ms. Cardonas constitutional claims in a way that would likely make
5
the matters unreviewable, leaving Ms. Cardona no choice but to appeal to the Federal
Circuit in order to secure the definitive judicial ruling on the constitutionality of 38 U.S.C.
101(31) that she has sought for more than three years. Ms. Cardona therefore opposes
the Secretarys motion to remand and respectfully requests that this Court to reach the
merits of her appeal.

Respectfully submitted,

/s/ Michael J . Wishnie
Kendall Hoechst, Law Student Intern
J ennifer McTiernan, Law Student Intern
V. Prentice, Law Student Intern
Michael Wishnie, Supervising Attorney
Veterans Legal Service Clinic
J erome N. Frank Legal Services Organization
Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
(203) 432-4800



6
CERTIFICATE OF SERVICE
I hereby certify that, on October 30, 2013, a copy of the foregoing Memorandum
of Law in Opposition to Appellees Motion to Remand to the Board of Veterans Appeals
was filed electronically and served by mail on anyone unable to accept electronic filing.
Notice of this filing will be sent by e-mail to all parties by operation of the courts
electronic filing system or by mail to anyone unable to accept electronic filings as
indicated on the Notice of Electronic Filing. Parties may access this filing through the
courts CM/EFC system.
The following parties were served by electronic means:
Ronen Morris
Appellate Attorney
Office of the General Counsel (027D)
U.S. Department of Veterans Affairs
810 Vermont Avenue, N.W.
Washington, D.C. 20420
(202) 443-5059/5000
ronen.morris@va.gov




/s/ Michael J . Wishnie
Veterans Legal Service Clinic
J erome N. Frank Legal Services Organization
Yale Law School
(203) 432-4800
michael.wishnie@yale.edu



Exhibit A
Britton v. Principi, 17 Vet.App. 507 (2001)
2013 Thomson Reuters. No claim to original U.S. Government Works. 1
Unpublished Disposition
17 Vet.App. 507
(The decision of the Court is referenced in the Veterans Appeals Reporter in a Table of Unpublished Decisions.)
United States Court of Appeals, for Veterans Claims.
Lloyd C. BRITTON, Appellant,
v.
Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.
No. 00952. | Feb. 15, 2001.
Opinion
ORDER
HOLDAWAY.
*1 The appellant appeals from the January 24, 2000, decision of the Board of Veterans' Appeals (Board) that denied entitlement
to service connection for prostate cancer and lung cancer due to occupational exposure to ionizing and non-ionizing radiation
as not well grounded.
After filing the record on appeal, the Secretary, on November 20, 2000, filed a motion to vacate the Board decision and remand
the matter for readjudication in light of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106475, 114 Stat.2096
(Nov. 9, 2000). The motion relies upon the Court's opinion in Karnas v. Derwinski, 1 Vet.App. 308, 31213 (1991), holding
that unless Congress provided otherwise, where a statute or regulation changes during the appellate process, the version most
favorable to the claimant shall apply. On December 29, 2000, the Secretary filed a motion to stay proceedings pending the
Court's decision on the motion for remand.
On January 12, 2001, the appellant, thorough counsel, filed a response and a brief. The appellant asserts that he does not oppose
the Secretary's motion insofar as it seeks remand of the claim for service connection on the basis of exposure to non-ionizing
radiation. As to the claim for service connection for lung and prostate cancer as the result of ionizing radiation, the appellant
asserts that (1) the Board erred because it failed to obtain a dose estimate as required under 38 C.F.R. 3.311(a) and (2) the
duty to obtain a dose estimate under 38 C.F.R. 3.311(a) is independent of the duty to assist created under 38 U.S.C. 5107,
and the duty attaches, whether or not the claimant has filed a well-grounded claim. See Hilkert v. West, 12 Vet.App. 145, 147
148 (1999).
The Court will grant the Secretary's motion since the appellant's response does not assert any argument or identify any error
that would entitle him to a remedy greater than that proposed by the Secretary.
Upon consideration of the foregoing, it is
ORDERED that the Secretary's motion for remand is granted. Accordingly, the January 24, 2000, decision of the Board is
VACATED and the matter REMANDED for readjudication.
Britton v. Principi, 17 Vet.App. 507 (2001)
2013 Thomson Reuters. No claim to original U.S. Government Works. 2
Parallel Citations
2001 WL 173858 (Vet.App.)
End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works.
Exhibit B
Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 1 of 4
Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 2 of 4
Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 3 of 4
Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 4 of 4
Exhibit C
Cooper-Harris v. U.S., --- F.Supp.2d ---- (2013)
2013 Thomson Reuters. No claim to original U.S. Government Works. 1
zo1 W q6o;q6
OnIy LIe WesLIuw cILuLIon Is currenLIy uvuIIubIe.
UnILed SLuLes DIsLrIcL CourL,
C.D. CuIIIornIu.
COOPER-HARRS, eL uI., PIuInLIIIs,
v.
UNTED STATES oI AmerIcu, eL uI., DeIendunLs.
No. z:1z-oo88;-CBM (AJWx). ] Aug. zq, zo1.
Synopsis
Background: Plaintiffs brought action challenging the constitutionality of the Defense of Marriage Act (DOMA) and provisions
of veterans' benefits law defining surviving spouse and spouse to only include persons of the opposite sex. Plaintiffs moved
for summary judgment.
[Holding:] The District Court, Consuelo B. Marshall, J., held that provisions of veterans' benefits law defining surviving
spouse and spouse to only include persons of the opposite sex were unconstitutional.
Motion granted.
West Codenotes
Held Unconstitutional
38 U.S.C.A. 101(3, 31)
Recognized as Unconstitutional
1 U.S.C.A. 7
Attorneys and Law Firms
Adam P. Romero, Rubina Ali, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Caren E. Short, Joseph J. Levin,
Jr., Montgomery, AL, Eugene Marder, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, CA, Matthew D. Benedetto,
Randall R. Lee, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, CA, for Plaintiffs.
Jean Lin, U.S. Department of Justice, Washington, DC, for Defendants.
Opinion
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
CONSUELO B. MARSHALL, District Judge.
*1 The matter before the Court is Plaintiffs' Motion for Summary Judgment (Motion). [Dockets No. 96, 97.] Plaintiffs
challenge the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) and Sections 101(3) and 101(31) of Title
Cooper-Harris v. U.S., --- F.Supp.2d ---- (2013)
2013 Thomson Reuters. No claim to original U.S. Government Works. 2
38 (Title 38) on the basis that these provisions violate the e ual protection of the laws guaranteed by the ifth Amendment
of the U.S. Constitution by discriminating on the basis of sexual orientation. (Motion at 1 .)
I. PROCEDURAL HISTORY
Plaintiffs and ntervenor Defendant Bipartisan Legal Advisory roup of the United States House of Representatives (BLA )
filed cross motions for summary judgment. [Doc. No. 10 .] The ederal overnment filed a Response in support of Plaintiffs'
Motion. [Doc. No. 113.] Subse uent to the Supreme Court's decision in United States v. Windsor, U.S. , 133 S.Ct.
67 , 186 L.Ed. d 808 ( 013), BLA withdrew as ntervenor Defendant, its Cross Motion for Summary Judgment, and its
Opposition to Plaintiffs' Motion, on July 3, 013. [See Doc. No. 137.] What remains before the Court is Plaintiffs' Motion as
to DOMA and Title 38. The Supreme Court held that DOMA is unconstitutional, and therefore the Court RANTS Plaintiffs'
Motion as to DOMA. Windsor, 133 S.Ct. at 696.
II. STANDARD OF LAW
Summary judgment against a party is appropriate when there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. ed.R.Civ.P. 6(a). The moving party must support its assertion that there is no
genuine dispute by citing to depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or other materials in the record.
ed.R.Civ.P. 6(c)(1)(A). A party seeking summary judgment bears the initial burden of informing the court of the basis for its
motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 77 U.S. 317, 3 3, 106 S.Ct. 8, 91 L.Ed. d 6 (1986). f the moving party
meets its initial burden, the nonmoving party must then set forth, by affidavit or as otherwise provided in Rule 6, specific
facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 77 U.S. , 0, 106 S.Ct. 0 , 91
L.Ed. d 0 (1986).
n judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting
evidence and draws all inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 . d 6 6, 630 31 (9th Cir.1987). This includes factual disputes. See Reeves v. Sanderson Plumbing
Prods., Inc., 30 U.S. 133, 1 0, 1 0 S.Ct. 097, 1 7 L.Ed. d 10 ( 000). The evidence presented by the parties must be
admissible. ed.R.Civ.P. 6(c)( ). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise
genuine issues of fact and defeat summary judgment. See Thornhill Pub. Co. v. GTE Corp., 9 . d 730, 738 (9th Cir.1979).
*2 Summary judgment is especially appropriate where there is no genuine issue of material fact and the only dispute is as
to pure legal uestions. Miller v. Cnty. of Santa Cruz, 796 .Supp. 1316, 1317 18 (N.D.Cal.199 ) aff'd, 39 .3d 1030 (9th
Cir.199 ).
III. DISCUSSION
Plaintiffs argue that (1) heightened scrutiny is the appropriate standard of review for sexual orientation discrimination, ( )
heightened scrutiny also applies because DOMA and Title 38 discriminate on the basis of sex, (3) if the Court finds that
heightened scrutiny is not the appropriate standard of review, DOMA and Title 38 do not survive rational basis scrutiny. (See
Motion at 7.)
Cooper-Harris v. U.S., --- F.Supp.2d ---- (2013)
2013 Thomson Reuters. No claim to original U.S. Government Works. 3
A. Title 38
Plaintiffs challenge Title 38. (Motion at .) BLA 's withdrawal states that in light of the Supreme Court's opinion in
Windsor, that it no longer will defend [Title 38]. [Doc. No. 136, at 7 10.] However, the Supreme Court does not address
Title 38's constitutionality. See, e.g., Windsor, 133 S.Ct. at 69 .
Plaintiff argues that the appropriate standard of review is heightened scrutiny. The current standard of review for sexual
orientation classifications in the Ninth Circuit remains unsettled. See In re Levenson, 87 .3d 9 , 931 (9th Cir. 009). Like
the Diaz Court, [w]e do not need to decide whether heightened scrutiny might be re uired because as discussed below Title
38 is unconstitutional under rational basis scrutiny. See Diaz v. Brewer, 6 6 .3d 1008, 101 , 101 (9t h Cir. 011).
1. Rational Basis
[1] Under rational basis review, a statute will be upheld as constitutional if the classification drawn by the statute is rationally
related to a legitimate state interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 73 U.S. 3 , 0, 10 S.Ct. 3 9, 3 ,
87 L.Ed. d 313 (198 ).
[2] Plaintiffs state that Congress enacted Title 38 to remove unnecessary gender references, and promote gender e uality
and expand the availability of veterans' benefits. (Motion at 7 13.) The Court finds that the exclusion of spouses in same
sex marriages from veterans' benefits is not rationally related to the goal of gender e uality.
Plaintiffs also argue that Title 38 is not rationally related to any military purpose, and cite Expert Declarations. [Doc. No. 99,
Exhibits A .] Plaintiffs' experts state that veterans' benefits are essential to ensuring that servicemembers perform to their
maximum potential, and other purposes justifying veterans benefits including readiness, recruiting, cohesion, and retention.
[Doc. No. 99, Exh. E , , 7, 8.] The denial of benefits to spouses in same sex marriages is not rationally related to any
of these military purposes.
Additionally, Title 38 is not rationally related to the military's commitment to caring for and providing for veteran families.
IV. CONCLUSION
or the reasons stated above, the Court GRANTS Plaintiffs' Motion for Summary Judgment. The Court permanently enjoins
Defendants from relying on 38 U.S.C. 101(3), (31) or Section 3 of 1 U.S.C. 7 to deny recognition of Plaintiffs' marriage
recogni ed by the state of California.
*3 IT IS SO ORDERED.
End of Document 013 Thomson Reuters. No claim to original U.S. overnment Works.