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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA COOPER-HARRIS, ET AL. Plaintiffs, vs. UNITED STATES OF AMERICA, ET AL. Defendants. ) ) CASE NO. 2:12-00887-CBM (AJWx) ) ) ) ORDER DENYING MOTION TO ) DISMISS ) ) ) )

The matter before the Court is Defendant United States of Americas Motion to Dismiss for Lack of Subject Matter Jurisdiction (Motion). [Docket No. 68.] Defendants argue that (1) the Veterans Judicial Review Act (VJRA) bars Plaintiffs equal protection challenge and (2) this Court has no jurisdiction to review Plaintiffs Facial Constitutional Challenge. [Docket No. 68.] Plaintiffs challenge the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) and Sections 101(3) and 101(31) of Title 38 (Title 38) on the basis that these provisions violate the equal protection of the laws guaranteed by the Fifth Amendment of the U.S. Constitution.

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I.

STANDARD OF LAW

Federal courts are courts of limited jurisdiction. Kokoonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). The Plaintiff bears the burden to establish that subject matter jurisdiction exists. Id. A court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction. U.S. v. BravoDiaz, 312 F.3d 995, 997 (9th Cir. 2002). Federal Rule of Civil Procedure 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) can be either a facial or factual attack. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In a facial attack on subject matter jurisdiction, the court is confined to the allegations in the complaint. In a factual attack, the court is permitted to look beyond the complaint and may consider extrinsic evidence. See id. (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1036 (9th Cir. 2004)), Savage v. Glendale Union High Sch., 434 F.3d 1036, 1040 n. 2 (9th Cir. 2003). Jurisdiction must generally be determined prior to a federal court considering a case on its merits. See United States v. Larson, 302 F.3d 1016, 1019 (9th Cir. 2002) (citing Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). II. DISCUSSION

VJRA Does Not Bar Plaintiffs Equal Protection Challenge Plaintiffs are asking the Court to find DOMA and Title 38 unconstitutional.

The Court finds that VJRA does not bar Plaintiffs equal protection challenge. Reviewing Plaintiffs complaint does not require us to review decisions affecting the provision of benefits to any individual claimants. Veterans for Common Sense v. Shinseki (VCS), 678 F.3d 1013, 1034 (9th Cir. 2012) (en banc) cert. denied, 133 S. Ct. 840, 184 L. Ed. 2d 653 (2013). VCS involved a facial constitutional challenge to the VJRA on the absence in the statute of certain procedures necessary to safeguard veterans rights. Id.
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at 1033. The Ninth Circuit queried whether Plaintiffs challenge to the VJRA is similar to its claims challenging the conduct of the [Veterans Health Administration] and the delays in adjudication of service-related disability claims, which [the Court] concluded would require review of the circumstances of individual requests for benefits by veterans. Id. at 1034. The Court reasoned that [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 different than a consideration of the decisions that emanate through the course of the presentation of those claims. Id. The Court determined that Plaintiffs do not seek to challenge decisions at all and that the procedures VCS requests is sufficiently independent of any VA decision as to an individual veterans claim for benefits that 511 does not bar our jurisdiction. Id. [T]he VJRA does not provide a mechanism by which the organizational plaintiffs here might challenge the absence of system-wide procedures, which they contend are necessary to afford due process. Id. at 1035. The Court concluded that it had jurisdiction over the facial constitutional challenge. Id. In Recinto v. U.S. Dep't of Veterans Affairs, the Ninth Circuit held that it had jurisdiction over an equal protection challenge to the Filipino Veterans Equity Compensation Fund (FVEC) on the basis that review of that challenge would not require consideration of decisions' affecting the provision of benefits to any individual claimant[ ]. 706 F.3d 1171, 1176 (9th Cir. 2013) (quoting VCS). The Court concluded that it had jurisdiction over the suit because [e]valuation of that claim only requires us to look at the text of the statute establishing the FVEC, nothing more. To assess this claim we need not assess whether individual claimants have a right to veterans benefits. Id. Plaintiffs do not ask for an award of any benefits, but declaratory relief, injunctive relief, and any relief the Court deems appropriate. Compl. They are only asking the Court to determine the constitutionality of DOMA and Title 38.
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The Court need not even look to their benefits applications, let alone assess whether individual claimants have a right to veterans benefits. 706 F.3d at 1176. To the extent the VA denied Plaintiffs applications solely on the basis of DOMA and Title 38, the Court has subject matter jurisdiction to adjudicate Plaintiffs case. The Court finds that the VJRA does not bar Plaintiffs equal protection challenge. B. The Court Has Jurisdiction to Review Plaintiffs Facial Constitutional Challenge A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987) Plaintiffs challenge a pair of federal statutes on the basis that the statutes both as-applied to them, as well as any other similarly situated couples, violate equal protection. The Supreme Court recently held that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. United States v. Windsor, 133 S. Ct. 2675, 2695, 186 L. Ed. 2d 808 (2013). After Windsor, there are indeed no set of circumstances under which [DOMA] would be valid. Salerno, 481 U.S. at 745. This applies equally to the challenge to the VA statute. Plaintiffs bring a facial challenge, over which the Court has jurisdiction as already discussed.1 1. Standing Plaintiffs have standing to sue for injunctive and declaratory relief regarding the constitutionality of DOMA and Title 38. See Massachusetts v. U.S. Dept of Health and Human Servs., 698 F. Supp. 2d 234, 245 (D. Mass. 2010), affd, 682 F.3d 1 (1st Cir. 2012) ([s]tanding is not contingent, as the government
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Defendants citation of Elgin v. Dept of the Treasury, 132 S. Ct. 2126 (2012) is inapposite. There, the statutory scheme was distinct from the VA scheme and is factually different because the remedy sought in that case involved backpay and reinstatement. The only relief sought in this lawsuit is declaratory and injunctive relief.

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suggests, on [a veterans same-sex spouse] being lowered into his grave at [a Veterans cemetery].) III. CONCLUSION For the reasons stated above, the Court DENIES Defendants Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1).

IT IS SO ORDERED. DATED: August 29, 2013 ______________________________ CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE