2:12-cv-00887 #56

Case 2:12-cv-00887-CBM-AJW Document 56
Filed 11/06/12 Page 1 of 26 Page ID #:735
1 Paul D. Clement (DC Bar 433215) pclement@bancroftpllc.com 2 H. Christopher Bartolomucci (DC Bar 453423) 3 cbartolomucci@bancroftpllc.com Nicholas J. Nelson (DC Bar 1001696) 4 nnelson@bancroftpllc.com 5 Michael H. McGinley (DC Bar 1006943) mmcginley@bancroftpllc.com 6 7 BANCROFT PLLC 1919 M Street, N.W. 8 Suite 470 9 Washington, D.C. 20036 10 202-234-0090 (telephone) 202-234-2806 (facsimile) 11 12 Of Counsel: Kerry W. Kircher, General Counsel (DC Bar 386816) 13 Kerry.Kircher@mail.house.gov 14 William Pittard, Deputy General Counsel (DC Bar 482949) William.Pittard@mail.house.gov 15 Christine Davenport, Senior Assistant Counsel (NJ Bar 043682000) 16 Christine.Davenport@mail.house.gov Todd B. Tatelman, Assistant Counsel (VA Bar 66008) 17 Todd.Tatelman@mail.house.gov 18 Mary Beth Walker, Assistant Counsel (DC Bar 501033) MaryBeth.Walker@mail.house.gov 19 Eleni M. Roumel, Assistant Counsel (SC Bar 75763) 20 Eleni.Roumel@mail.house.gov 21 OFFICE OF GENERAL COUNSEL, 22 U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building 23 Washington, D.C. 20515 24 202-225-9700 (telephone) 202-226-1360 (facsimile) 25 26 Counsel for Intervenor-Defendant Bipartisan Legal Advisory Group of the U.S. House of Representatives 27 28
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
4 TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS, 5 Plaintiffs, 6 7 8 9 10 v. UNITED STATES OF AMERICA, et al., Defendants,
No. 2:12-cv-00887-CBM (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDE THE EXPERT TESTIMONY OF DR. LAWRENCE J. KORB AND MAJ. GEN. (RET.) DENNIS LAICH
11 BIPARTISAN LEGAL ADVISORY 12 GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, 13 Intervenor-Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Hearing: December 10, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall
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TABLE OF CONTENTS I. BACKGROUND ................................................................................................... 2 II. ARGUMENT ........................................................................................................ 5 A. Legal Standard under Federal Rule of Evidence 702 ................................. 5 B. The Proffered Opinions Will Not Assist the Trier of Fact Because They Are Neither Based on Specific Facts nor the Product of Any Discernible Methodology ........................................................................... 7 1. The Witnesses General Statements Regarding Employee Incentives and Motivation Are Inadmissible. .................................. 8 2. The Witnesses Conclusions About the Overall Impact of DOMA and Title 38 on Military Goals Also Are Inadmissible. ................. 11 3. The Testimony Cannot Be Supported by Vague Assertions of Experience .................................................................................. 12 C. Because They Are Based on Fundamental Misunderstandings of the Effects of DOMA Section 3 and the Title 38 Spousal Definitions, the Opinions Are Neither Reliable nor Relevant. .......................................... 14 1. The Opinions Are Predicated on an Incorrect Legal Understanding Regarding Uniform Treatment of Same-Sex Marriages in the Absence of DOMA Section 3 and Title 38s Spousal Definitions. ....................................................................... 14 2. Opinions Regarding Family Readiness Groups Reflect an Incorrect Application of DOMA Section 3 .................................... 16 III. CONCLUSION .................................................................................................. 18 CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
2 Statutes and Federal Rules 3 1 U.S.C. 7 ................................................................................................................ 1 4 10 U.S.C. 101 ........................................................................................................ 15 5 38 U.S.C. 101 ...................................................................................................... 1-2 6 38 U.S.C. 103 ........................................................................................................ 15 7 8 Fed. R. Evid. 702 .................................................................................................5, 14 9 10 Cases 11 Arjangrad v. JPMorgan Chase Bank, NA, No. 3:10-cv-01157, 2012 WL 1890372 (D. Or. May 23, 2012) .............10, 11 12 13 Beech Aircraft Corp. v. United States, 51 F.3d 834 (9th Cir.1995) ............................................................................ 10 14 15 Clark v. Takata Corp., 192 F.3d 750 (7th Cir. 1999) ........................................................................... 7 16 17 Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311 (9th Cir. 1995) ......................................................................... 13 18 Daubert v. Merrell Dow Pharm., Inc., 19 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) ....................5, 6, 16 20 Gen. Elec. Co. v. Joiner, 21 522 U.S. 136, 118 S.Ct. 512, 139 L. Ed. 2d 508 (1997) ............................... 13 22 Guidroz-Brault v. Mo. Pac. R. Co., 254 F.3d 825 (9th Cir. 2001) ........................................................................... 5 23 24 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) .............................. 6 25 26 Lewis v. CITGO Petroleum Corp., 561 F.3d 698 (7th Cir. 2009) ........................................................................... 7 27 28 ii
1 McCollen v. UPS Ground Freight Inc., No. 11-cv-0961, 2012 WL 3758837 (D. Ariz. Aug. 30, 2012) ..................... 10 2 Mueller v. Auker, 3 No. 04-civ-399, 2010 WL 2265867 (D. Idaho June 4, 2010) ....................... 10 4 Primiano v. Cook, 5 598 F.3d 558 (9th Cir. 2010) ........................................................................... 6 6 Rondor Music Intl Inc. v. TVT Records LLC, No. 05-cv-2909, 2012 WL 5105272 (C.D. Cal. Aug. 21, 2006) ................... 11 7 8 Swendsen v. Corey, No. 4:09-cv-00229, 2012 WL 465722 (D. Idaho Feb. 13, 2012).................. 10 9 10 United States v. Arenal, 768 F.2d 263 (8th Cir. 1985) ........................................................................... 8 11 12 United States v. Frantz, No. 02-cr-01276, 2004 WL 5642909 (C.D. Cal. Apr. 23, 2004) .................. 13 13 United States v. Freeman, 14 498 F.3d 893 (9th Cir. 2007) ........................................................................... 6 15 United States v. Hankey, 16 203 F.3d 1160 (9th Cir. 2000) ......................................................................... 7 17 United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002) ....................................................................... 10 18 19 United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002) ...................................................................7, 13 20 21 United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) ......................................................................... 8 22 23 United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001) ......................................................................... 8 24 White v. Ford Motor Co., 25 312 F.3d 998 (9th Cir. 2002) ......................................................................... 10 26 27 28 iii
1 Other Authorities 2 Fed. R. Evid. 702 advisory committees note ................................................8, 12, 13 3 Defense of Marriage Statutes and Constitutional Provisions (Statutes), Thompson Reuters (Aug. 2012) .................................................................... 15 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv
Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S.
2 House of Representatives (House) respectfully brings this motion seeking an 3 entry of an order by this Court excluding from the record the reports and testimony 4 of two individuals, Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich, who 5 Plaintiffs Tracey Cooper-Harris and Maggie Cooper-Harris (Plaintiffs) have 6 offered as experts. Because neither Dr. Korb nor Gen. Laich offers opinions that 7 will reliably assist the trier of fact, their testimony must be excluded from any 8 dispositive motions and responses thereto, and/or at trial. 9 Plaintiffs, a same-sex couple married under California law, challenge on 10 equal protection grounds the constitutionality of (i) Section 3 of the Defense of 11 Marriage Act (DOMA), 1 U.S.C. 7, and (ii) 38 U.S.C. 101(3) & (31), in the 12 context of claims for veterans benefits. See Compl. for Declaratory, Injunctive, 13 and Other Relief 3, 6-11, 65, 69, Prayer for Relief (Feb. 1, 2012) (ECF No. 1) 14 (Compl.). 15 16 17 18 19 20 21 22 DOMA Section 3 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.
23 1 U.S.C. 7. Sections 101(3) and (31) of Title 38 are similar (albeit limited in 24 their reach to one title of the U.S. Code); those sections provide, respectively, that: 25 26 27 28 1 (3) The term surviving spouse means . . . a person of the opposite sex who was the spouse of a veteran at the time of the veterans death, and who lived with the
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veteran continuously from the date of marriage to the date of the veterans death . . . . (31) The term spouse means a person of the opposite sex who is a wife or husband. Attempting to support their claims, Plaintiffs have submitted the reports of
6 six proposed expert witnesses, including two relevant to this motion.1 Dr. Korb 7 and Gen. Laich both purport to opine on the impact on the military of DOMA 8 Section 3 and the Title 38 spousal definitions. However, neither of these putative 9 experts opinions is based on sufficient facts or data, neither is the product of any 10 discernible methodology, and both are based on fundamental misunderstandings of 11 the legal effects of DOMA and Title 38. Accordingly, their proposed expert 12 testimony must be stricken because it is unreliable and irrelevant, and as such it 13 will not assist the trier of fact. 14 I. 15 BACKGROUND Gen. Laich and Dr. Korb propose to offer very similar (indeed, repetitive)
16 opinions. They both assert that DOMA and the Title 38 spousal definitions are 17 unfairly discriminatory, and as a result, the class of gays and lesbians against 18 whom these provisions discriminate will tend to be less likely in some 19 unquantified way to enlist in the military, or to re-enlist if they are or were 20 already in service. Rule 26(a)(2)(B) Expert Rep. of Maj. Gen. (Ret.) Dennis Laich 21 18, 21, 26 (Laich Report), attached as Ex. A (without exhibits); Rule 22 26(a)(2)(B) Expert Rep. of Dr. Lawrence J. Korb 19, 28-29 (Korb Report), 23 attached as Ex. B (without exhibits). And both claim that servicemembers with 24 state-law same-sex spouses are distracted from their military missions and military 25 unit cohesion is harmed again, in an unquantified way because their state-law 26 27 28 2
The four other experts identified by Plaintiffs have also submitted reports in other DOMA cases. The House does not contest those reports in this motion.
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1 spouses are not eligible for spousal benefits. Laich Rep. 28-33; Korb Rep. 2 21, 24, 27, 30. 3 When questioned as to how they reached these conclusions, neither Gen.
4 Laich nor Dr. Korb claimed to have conducted any tests or reviewed any literature 5 regarding DOMA or the Title 38 spousal definitions. And neither invoked any 6 facts, data, or methodology to support his conclusions, other than the simple 7 assertions that 8 9 10 11 12 13 14 15 16 17 (2) (1) The spousal benefits offered to married opposite-sex military couples are intended to incentivize military service, see Dep. of Dr. Lawrence J. Korb at 44:25-45:16, 51:9-17, 57:1-21 (Oct. 16, 2012) (Korb Deposition), excerpts attached as Ex. C; Dep. of Maj. Gen. (Ret.) Dennis Laich at 42:20-43:13, 59:22-60:5 (Oct. 12, 2012) (Laich Deposition), excerpts attached as Ex. D; and Servicemembers and potential recruits will be unhappy and less receptive to the military and its mission if they feel it is treating them, or would treat them, unfairly. Laich Rep. 18; Korb Dep. 49:15-50:17, 57:159:10, 60:18, 64:17-66:9.
18 Neither witness made any serious effort to document these observations in the 19 military context or support them with actual military data. Instead, both Gen. 20 Laich and Dr. Korb claimed to have derived these insights, and their application to 21 the military context, from their experience in the military. Laich Dep. 17:2322 18:25, 67:18-68:25, 76:11-22; Korb Dep. 54:22-56:22. 23 Moreover, Dr. Korb and Gen. Laich both candidly admitted the absence of
24 any verifiable and reliable data that would support their opinions, either regarding 25 the attitudes of individual servicemembers and recruits or regarding the aggregate 26 effects of those attitudes on the military as a whole. Neither witness claimed to be 27 aware of any empirical data regarding a whole host of relevant topics, including: 28 3
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The number of same-sex couples with marriage certificates in the military, or the ranks or skills of such servicemembers, Korb Dep. 53:11-18; Laich Dep. 52:23-53:5, 59:12-17, 86:25-87:2 (only a smattering of anecdotals on this topic); Such servicemembers awareness of the spousal-benefits eligibility rules or the intensity of their feelings about them, Korb. Dep. 47:14-19; The actual quantifiable aggregate impact of DOMA and Title 38 on recruiting, retention, or troop readiness. Korb Dep. 54:3-19; Laich Dep. 40:16-41:10, 44:5-8 (no statistical analyses support Gen. Laichs opinion), 59:12-60:9 (no studies or reports quantifying effects on enlistment, but I have anecdotals), 61:17-20 (same, for re-enlistment), 68:21-25, 73:20-25, 75:4-11 (not aware of any studies on the impact of spousal benefits on recruits enlistment decisions), 76:11-22 (no way to quantify DOMAs or Title 38s effects on recruiting); or Any quantifiable cost-benefit analysis of the impact of the spousal definitions, Laich Dep. 66:17-22.
17 Indeed, despite his opinions regarding recruitment, Dr. Korb admitted that we 18 dont know whether DOMA or Title 38s spousal definitions have caused anyone 19 at all to decide not to join the military; he merely opined that some people may 20 not enlist because of these provisions.2 Korb Dep. 58:12-20; see also Laich Dep. 21 40:6-10 (Gen. Laich conducted no statistical analysis for purposes of his report), 22 104:6-19 (I did not review any specific studies to generate this report.). 23 24 25 26 27 28 4
Moreover, Dr. Korbs own understanding is that the military reflects the overall U.S. population in terms of the percentage of gay and lesbian servicemembers. Korb Dep. 102:15-22; 102:25-103:5. Dr. Korb does not explain how his understanding of a proportional representation of gay and lesbian servicemembers squares with his opinion that DOMA and the Title 38 spousal definitions discourage enlistment. The House submits that as a practical matter, it cannot.
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1 II. 2 3 4 5 6 7 8 9 10 11 12 13 14
ARGUMENT A. Legal Standard under Federal Rule of Evidence 702. Pursuant to Federal Rule of Evidence 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) (c) the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
15 Fed. R. Evid. 702. The Supreme Court has made clear that the word knowledge 16 connotes more than subjective belief or unsupported speculation. Daubert v. 17 Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 125 L. Ed. 2d 469 18 (1993); see Guidroz-Brault v. Mo. Pac. R. Co., 254 F.3d 825, 829 (9th Cir. 2001). 19 It also: 20 21 22 23 24 25 26 27 28 5 has established that Federal Rule of Evidence 702 charges trial judges with the task of ensuring that any and all scientific testimony or evidence admitted is not only relevant, but reliable. The gatekeeping role exercised by district courts entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is . . . valid and of whether that
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reasoning or methodology properly can be applied to the facts in issue.
3 United States v. Freeman, 498 F.3d 893, 901 (9th Cir. 2007) (ellipsis in original) 4 (quoting Daubert, 509 U.S. at 589, 592-93). This role applies to all expert 5 testimony, not only to scientific expert testimony. Id. (citing Kumho Tire Co., 6 Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)). 7 Accordingly, when a party proffers expert-type testimony, the trial court must 8 assure that the expert testimony both rests on a reliable foundation and is relevant 9 to the task at hand. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) 10 (quoting Daubert, 509 U.S. at 597). 11 In the Ninth Circuit, the admissibility of expert opinion testimony generally Whether the opinion is based on scientific, technical, or other specialized knowledge; Whether the experts opinion would assist the trier of fact in understanding the evidence or determining a fact in issue; Whether the expert has appropriate qualifications i.e., some special knowledge, skill, experience, training or education on that subject matter. Whether the testimony is relevant and reliable. Whether the methodology or technique the expert uses fits the conclusions . . . . Whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, or undue consumption of time.
12 turns on the following determinations by the trial judge: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
1 United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (internal citations 2 omitted). 3 4 5 6 B. The Proffered Opinions Will Not Assist the Trier of Fact Because They Are Neither Based on Specific Facts nor the Product of Any Discernible Methodology.
The reports and proposed testimony of Gen. Laich and Dr. Korb are not
7 reliable, relevant, or helpful to the trier of fact. To be sure, both men appear to 8 have experience regarding military affairs generally. But bare qualifications 9 alone cannot establish the admissibility of scientific expert testimony. United 10 States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002). Even [a] supremely 11 qualified expert cannot waltz into the courtroom and render opinions unless those 12 opinions are based upon some recognized scientific method and are reliable and 13 relevant under the test set forth by the Supreme Court in Daubert. Lewis v. 14 CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009) (quoting Clark v. 15 Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999)). But that is precisely what 16 Gen. Laich and Dr. Korb seek to do here. Their opinions are based on essentially 17 no facts or data; have not resulted from the application of any discernible 18 methodology, let alone one that could be or has been proven reliable; and are so 19 generalized and unquantified that they simply do not qualify as expert knowledge. 20 The proposed testimony can essentially be divided into two components. 21 First, the witnesses explain in general terms that availability of spousal benefits for 22 military servicemembers is an incentive for servicemembers to enlist and remain in 23 the armed forces; that their unavailability would tend to be a relative disincentive; 24 that people tend to be less likely in some unquantified way to work for an 25 employer who they feel does or would treat them unfairly; and that people who are 26 distracted by concerns about providing for their loved ones may sometimes be less 27 effective employees or servicemembers, again in some unquantified way. See 28 supra pp. 2-4. Second, from these generalized observations, both witnesses make 7
1 the unexplained analytical leap to the conclusion that the current definitions of 2 spouse used in federal law cause harm again unquantified to the militarys 3 goals. See id. Neither of these conclusions is properly supported expert evidence. 4 5 6 1. The Witnesses General Statements Regarding Employee Incentives and Motivation Are Inadmissible.
There is no more certain test for determining when experts may be used
7 than the common sense inquiry whether the untrained layman would be qualified 8 to determine . . . the particular issue without enlightenment from those having a 9 specialized understanding of the subject involved in the dispute. Fed. R. Evid. 10 702 advisory committees note. Accordingly, expert testimony is not helpful to 11 the trier of fact, and thus not relevant, when it addresses an issue that is within the 12 common knowledge of the average layman. United States v. Morales, 108 F.3d 13 1031, 1039 (9th Cir. 1997); see also United States v. Vallejo, 237 F.3d 1008, 1019 14 (9th Cir. 2001) (To be admissible, expert testimony must . . . address an issue 15 beyond the common knowledge of the average layman . . . .); United States v. 16 Arenal, 768 F.2d 263, 269 (8th Cir. 1985) (proffered expert evidence is subject to 17 exclusion if the subject matter is within the knowledge or experience of the jury, 18 because the testimony does not then meet the helpfulness criterion of Rule 702). 19 Here, the sweeping generalities invoked by the proposed witnesses,
20 regarding the relationship between employees benefits and their incentives and 21 performance, are no different from what any layperson could opine might be the 22 case regarding any employment situation. The Court plainly requires no expert 23 testimony to conclude that, other things being equal, increasing employee benefits 24 (including spousal benefits) will in the abstract tend to yield more, better-qualified, 25 and better-performing employees and that people who believe they are or would 26 be treated unfairly will, in the abstract, tend to be less likely to enter or continue 27 employment, or to perform well therein. But neither proposed witness has 28 8
1 identified any reliable explanation of whether or how these sweeping, too-vague2 to-be-helpful generalities might actually apply to the specific context of this case. 3 To be sure, it is possible to imagine extensive, detailed and methodologically 4 rigorous evidence of how these principles operate in the unique circumstances of 5 the military statistical recruiting and retention analyses, psychological studies of 6 servicemembers, surveys of troop attitudes, reports on military demography, or 7 other materials that might properly be put before the Court by expert testimony. 8 But neither proposed witness purports to discuss anything like this. Instead: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Neither witness has more than anecdotal experience with gay or lesbian servicemembers, such as Gen. Laichs decidedly non-representative sampling of conversations with servicemembers and veterans with whom he had contact in connection with his activities with the Servicemembers Legal Defense Network, Laich Dep. 51:15-52:19; 60:6-9, 86:22-87:2, 102:8-103:8, or Dr. Korbs familiarity with unnamed servicemembers, Korb Dep. 11:1512:18; 30:14-31:6. Neither purports to have any knowledge of whether demographic differences between opposite-sex and same-sex couples might create differences in precisely how the availability of spousal benefits might affect their enlistment decisions. Both admit that their generalized assertions regarding incentives and distractions have never been measured in any way with the result that neither witness can engage in a specific discussion of their effects on the average servicemember beyond general truisms discernible to the unassisted layman. Where such truisms have not even been connected to the facts of this case,
26 there is a serious question whether they are relevant at all. But in any event, there 27 is no need for expert testimony to present them: Courts have not hesitated to 28 9
1 exclude proposed expert evidence which, like this proposed testimony, consists of 2 generalized observations based on nothing more than . . . common sense, such 3 that the trier of fact can accomplish the same analysis without an expert, and 4 accept or reject the observations as applicable to the case without the assistance of 5 any specialized knowledge. Arjangrad v. JPMorgan Chase Bank, NA, No. 3:106 cv-01157, 2012 WL 1890372, at *7 (D. Or. May 23, 2012) (excluding testimony 7 regarding human resources practices); see White v. Ford Motor Co., 312 F.3d 998, 8 1008-09 (9th Cir. 2002) (testimony was admissible, if at all, only as lay opinion, 9 where the witness reached a particular conclusion without rely[ing] on his 10 metallurgy expertise at all. He just relied on simple logic.); United States v. 11 Hanna, 293 F.3d 1080, 1086 (9th Cir. 2002) (expert testimony not helpful in 12 determining how a reasonable person would foresee that his communications 13 would be perceived); Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th 14 Cir. 1995) (audibility of audio tapes well within ability of trier of fact to discern 15 without expert opinion); McCollen v. UPS Ground Freight Inc., No. 11-cv-0961, 16 2012 WL 3758837, at *2 (D. Ariz. Aug. 30, 2012) (Because fatigue based on lack 17 of sleep is not an issue beyond the common knowledge of the average layperson, 18 the Court cannot conclude that expert testimony is required. (quotation marks 19 omitted)); Swendsen v. Corey, No. 4:09-cv-00229, 2012 WL 465722, at *4-5 (D. 20 Idaho Feb. 13, 2012) (expert testimony excluded for failure to provide any 21 methodology or principles or apply any theory or techniques); Mueller v. Auker, 22 No. 04-civ-399, 2010 WL 2265867, at *4 (D. Idaho June 4, 2010) (testimony 23 excluded where witness fail[ed] to explain how he brought his experience to bear 24 in assessing the credibility of the parties, or why his expertise gives him insight 25 . . . that the jury would lack). 26 27 28 10
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2.
The Witnesses Conclusions About the Overall Impact of DOMA and Title 38 on Military Goals Also Are Inadmissible.
In the absence of any hard information about how the spousal definitions in
4 DOMA and Title 38 affect even individual servicemembers, it obviously is 5 impossible for Gen. Laich or Dr. Korb to predict with any reliability what (if any) 6 aggregate effect the spousal definitions might have on the militarys overall goals. 7 But even if reliable information regarding the impact of the spousal definitions on 8 individual servicemembers were available, there are further deficiencies in the 9 foundations for the witnesses opinions that would preclude any reliable testimony 10 on these bigger-picture issues. Reliance on incomplete facts and data may make 11 an expert opinion unreliable because an expert must know of facts which enable 12 him to express a reasonably accurate conclusion. Arjangrad, 2012 WL 1890372, 13 at *6 (brackets omitted). A proposed experts inability to quantify his or her 14 general impressions is grounds for exclusion. See Rondor Music Intl Inc. v. TVT 15 Records LLC, No. 05-cv-2909, 2012 WL 5105272, at *3 (C.D. Cal. Aug. 21, 16 2006). 17 Such is the case here. For instance, neither Dr. Korb nor Gen. Laich claims to
18 have an understanding even of how many servicemembers have obtained same-sex 19 marriage certificates from their respective states, let alone how many of that group 20 are aware of how the militarys definitions of spouse and marriage work. 21 Neither of them has identified any methodology or set of reasoning by which the 22 recruiting and psychological effects of the spousal definitions on servicemembers 23 have been quantified and aggregated in order to assess their impact on the military 24 as a whole nor could they, as they are not aware even of the number of 25 servicemembers who are affected by them. And neither of their reports or 26 deposition testimony reflects even a meaningful discussion or consideration of any 27 possible benefits to military recruitment, retention and readiness of maintaining the 28 11
1 traditional definition of marriage let alone any attempt to net out any such 2 benefits from the unquantified costs that the witnesses have claimed to identify. 3 4 5 3. The Testimony Cannot Be Supported by Vague Assertions of Experience.
Both Gen. Laich and Dr. Korb appear to suggest that their personal
6 experience should make up for the lack of any hard foundation for their 7 opinions. Laich Dep. 17:23-18:25, 67:18-68:20, 76:11-22; Korb Dep. 54:20-56:8. 8 But a witness who reli[es] solely or primarily on experience . . . must explain how 9 that experience leads to the conclusion reached, why that experience is a sufficient 10 basis for the opinion, and how that experience is reliably applied to the facts. The 11 trial courts gatekeeping function requires more than simply taking the experts 12 word for it. Fed. R. Evid. 702 advisory committees note (citations omitted). 13 Here, neither Dr. Korb nor Gen. Laich has made any of these showings in a way 14 that would render their reports useful to the trier of fact. 15 Neither Dr. Korbs nor Gen. Laichs military experience involved recruiting
16 or retention issues relating to gay or lesbian servicemembers. Korb Dep. 31:3-6; 17 Laich Dep. 19:18-20:12, 25:11-29:4. Gen. Laich admitted that he never discussed 18 Title 38s marital definitions during his entire military career, Laich Dep. 19:1819 20:12, 22:13-16, 29:11-30:2, 117:8-19:2. His only experience with DOMA and 20 Title 38 came in the form of a few dozen conversations he had after his 21 retirement with servicemembers and veterans who sought the assistance of a gay22 and lesbian-rights legal-aid group. Laich Dep. 52:13-22, 102:12-104:19. Neither 23 witness has published or spoken publicly on DOMA or Title 38 before. Korb Dep. 24 40:14-41:8, Laich Dep. 33:9-35:22. Thus, neither proposed witness has the 25 experience necessary to opine on the issues they purport to address. 26 Instead, both witnesses seek to use assertions of their experience in military
27 matters generally to paper over the large logical leap between their unquantified, 28 12
1 generally-applicable observations regarding employee incentives and their 2 unexplained, unquantified assertions regarding the militarys mission. This cannot 3 be done. As the Ninth Circuit has recognized, a proposed witnesss extensive 4 experience and knowledge are insufficient to support the witnesss testimony if 5 the witness fail[s] to explain in any detail the knowledge, investigatory facts and 6 evidence he was drawing from in applying his experience to the case at hand. 7 Hermanek, 289 F.3d at 1093. This is particularly true when, as here, the proposed 8 expert is required to consider a new problem that may be somewhat similar to, but 9 not the same as, those he dealt with previously. See id. at 1094; United States v. 10 Frantz, No. 02-cr-01276, 2004 WL 5642909, at *20 (C.D. Cal. Apr. 23, 2004). In 11 the absence of a stronger link between [a proposed experts] knowledge or 12 experience and the particular matter he interpreted, there is simply too great an 13 analytical gap between the data and the opinion proffered, and the testimony 14 must be excluded. Hermanek, 289 F.3d at 1095 (quoting Gen. Elec. Co. v. Joiner, 15 522 U.S. 136, 146, 118 S.Ct. 512, 139 L. Ed. 2d 508 (1997)). That is the case here. 16 In short, far from offering any explanation that would permit the Court to
17 determine how th[eir] experience is reliably applied to the facts of the case, Gen. 18 Laich and Dr. Korb are satisfied to recite their experience, pronounce 30,000-foot 19 principles regarding recruitment and troop readiness, declare with no supporting 20 facts or methodology that the spousal definitions of DOMA and Title 38 are 21 detrimental under those principles, and request that the Court take [their] word for 22 it. Fed. R. Evid. 702 advisory committees note. As was the case in the Ninth 23 Circuits consideration of Daubert on remand, Plaintiffs experts neither explain 24 the methodology [they] followed to reach their conclusions nor point to any 25 external source to validate that methodology, instead presenting only [their] 26 qualifications, their conclusions and their assurances of reliability. Under Daubert, 27 thats not enough. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1319 (9th 28 13
1 Cir. 1995). Dr. Korbs and Gen. Laichs opinions may be legitimate policy 2 judgments that are entitled to a respectful hearing in the political and legislative 3 spheres. But that is all they are and it does not make them expert testimony that 4 is cognizable in judicial proceedings. 5 6 7 8 C. Because They Are Based on Fundamental Misunderstandings of the Effects of DOMA Section 3 and the Title 38 Spousal Definitions, the Opinions Are Neither Reliable nor Relevant.
In addition to the flaws discussed above, the proffered testimony of Gen.
9 Laich and Dr. Korb also suffers from an independent fatal defect: Neither putative 10 expert has an accurate understanding of what DOMA and Title 38s spousal 11 definitions actually do, or of how the law of marital recognition in the military and 12 veterans contexts would change if these statutes were eliminated. As a result, to 13 the extent their opinions are based on any facts and data at all, see Fed. R. Evid. 14 702(b), they are based on incorrect legal assumptions and inaccurate facts and data, 15 and are irrelevant and inadmissible for that reason. 16 17 18 19 1. The Opinions Are Predicated on an Incorrect Legal Understanding Regarding Uniform Treatment of Same-Sex Marriages in the Absence of DOMA Section 3 and Title 38s Spousal Definitions.
Both Gen. Laich and Dr. Korb predicated their opinions on their assumption
20 that, in the absence of DOMA and the spousal definitions in Title 38, a same-sex 21 couple from anywhere in the country could obtain a marriage certificate from a 22 state that issues them to same-sex couples and become eligible for spousal military 23 or veterans benefits. Korb Dep. 44:2-22; Laich Dep. 54:8-59:11, 100:10-102:7. 24 Both men stress the importance of uniform and consistent provision of benefits 25 across the entire military, and they obviously assumed that eliminating the statutes 26 to which they object would accomplish that purpose. But that assumption is 27 incorrect as a matter of law: If DOMA and Title 38s spousal definitions were 28 14
1 repealed, same-sex couples still would have to establish residence in a state that 2 recognizes same-sex marriage certificates before becoming eligible for veterans 3 benefits. For purposes of the veterans benefits that Plaintiffs are seeking: 4 5 6 7 8 9 10 [i]n determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.
11 38 U.S.C. 103(c).3 The large majority of states, of course, do not recognize 12 same-sex marriage certificates, regardless of whether they were valid in the place 13 where they were issued. See Defense of Marriage Statutes and Constitutional 14 Provisions (Statutes), Thompson Reuters (Aug. 2012), available on Westlaw at 15 0080 SURVEYS 21 (download .pdf). Thus, far from ensuring consistent 16 treatment of all servicemembers as Gen. Laich and Dr. Korb assume, as a matter of 17 law the repeal or invalidation of DOMA and Title 38 instead would mean that 18 same-sex military couples who have not resided in a state that recognizes same-sex 19 marriage certificates likely the majority of same-sex couples would be 20 excluded from the spousal benefits that the remainder of same-sex military couples 21 with marriage certificates could receive. Because Gen. Laich and Dr. Korb were 22 not aware that their position would cause this even greater discrepancy, their 23 24 25 26 27 28 15
The legal rules for military recognition of the marriages of active-duty servicemembers are less clear. See 10 U.S.C. 101(f)(5) (spouse means husband or wife, as the case may be). But in light of the potentially chaotic and arbitrary effect of having a legal relationship cease to be (or become) a marriage for military purposes when one of the partners leaves active service, it seems highly unlikely that the active-duty recognition rule would be materially different from the rule applicable to veterans benefits. In any event, Plaintiffs here do not challenge any statute related to active-duty benefits, and have no standing to do so.
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1 opinions do not account for it or reflect it. Indeed, Gen. Laich agreed that uniform 2 treatment of servicemembers is desirable, Laich Dep. 67:12-17, and Dr. Korb 3 admitted that providing spousal benefits to some same-sex couples with marriage 4 certificates but not others the precise legal effect that eliminating DOMA and 5 Title 38s spousal definitions would have could itself be detrimental to the 6 military. Korb Dep. 65:11-17. 7 In essence, then, the putative experts are leveling their opinions not against
8 DOMA and Title 38s spousal definitions, but against the broader statutory 9 scheme. But Plaintiffs are not challenging the broader scheme in this litigation. 10 Accordingly, these putative experts opinions condemn a statutory scheme that is 11 not at issue in this case. And [e]xpert testimony which does not relate to any 12 issue in the case is not relevant and, ergo, non-helpful. Daubert, 509 U.S. at 591 13 (quotation marks omitted). 14 15 16 2. Opinions Regarding Family Readiness Groups Reflect an Incorrect Application of DOMA Section 3.
Additionally, Both Dr. Korb and Gen. Laich appear to have made a critical
17 legal error regarding one of their main contentions: That state-law same-sex 18 spouse cannot participate in the military Family Readiness Groups (FRGs), 19 which harms military readiness. See Laich. Rep. 2931; Korb Rep. 24. Both 20 Dr. Korb and Gen. Laich repeatedly cite to FRGs as a critical component for which 21 access is according to them lacking for same-sex married couples with one 22 spouse on active duty. See Laich Rep. 29-31; Korb Rep. 24; Laich Dep. 62:223 18, 79:17-22, 88:4-89:15; Korb Dep. 72:13-73:2. This conclusion appears to have 24 no basis in law or regulation. 25 Gen Laich cites Army Regulation 608-1 as preventing such state-law
26 spouses from participating in the groups, pursuant to DOMA and Title 38s spousal 27 28 16
1 definitions.4 See Laich Rep. 31. But Regulation 608-1 says nothing whatsoever 2 about limiting participation to spouses or persons in a marriage, as defined by 3 federal lawwhich would be the only way to trigger DOMAs definitions of 4 spouse or marriage. Instead, Regulation 608-1 defines a Family Readiness 5 Group as including family members (both immediate and extended such as 6 fathers, mothers, aunts, uncles and so forth), volunteers and Soldiers belonging to a 7 unit. Army Reg. 608-1 Glossary (2006) (Ex. C to Laich Rep.), excerpts attached 8 as Ex. E; see also id. Appendix J-1(b), (f). Indeed, the current version of the 9 Family Readiness Group Leaders Handbook defines the Families who are 10 permitted to participate as both immediate and extended Family members of 11 Soldiers as well as other individuals identified by Soldiers. U.S. Army FRG 12 Leaders Handbook 4 (4th Ed. 2010) (Ex. 3 to Korb Dep.), excerpts attached as 13 Ex. F; see also id. at 9 (Today, there is greater recognition of the many different 14 people involved in a Soldiers life who represent the Soldiers support network. . . . 15 As a result, the FRG must now provide information to a large network of 16 individuals to include parents, grandparents, aunts, uncles or other important 17 individuals. . . .); id at 53 (Encourage Soldiers and Families to provide contact 18 information for all desired loved ones. . . .; Make sure Soldiers are told 19 specifically to add any person (such as fiances, significant others, parents, etc.) 20 on their information sheet that they would like the FRG to contact.) (emphasis 21 added). 22 Thus, neither Gen. Laich nor Dr. Korb has identified any statute or
23 regulation and the House has found none that would limit participation in 24 FRGs to spouses, thus triggering the effects of DOMA Section 3. Indeed, the 25 most recent version of the FRG handbook makes it clear that participation is open 26 27 28 17
Title 38s definitions only apply in the veterans benefits context. They have no bearing on active-duty benefits or programs. Thus, even if DOMA Section 3 applied to FRGs, Title 38s definitions would not.
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1 to any individuals identified by Soldiers. Id. at 4. There thus appears to be no 2 legal reason why DOMA Section 3 would prevent a soldiers state-law same-sex 3 spouse from participation in an FRG. This fundamental misunderstanding of the 4 effect (or in reality, the lack thereof) of DOMA Section 3 on Family Readiness 5 Groups further renders Gen. Laichs and Dr. Korbs testimony unreliable. At a 6 minimum, their contentions regarding FRGs must be disregarded. 7 III. 8 CONCLUSION For the foregoing reasons, the Court should grant the Houses motion to
9 exclude the reports and testimony of Dr. Korb and Gen. Laich from the record, and 10 enter an order prohibiting their use or citation in this case. 11 12 13 14 15 16 17 18 19 20 November 6, 2012 21 22 23 24 25 26 27 28 18
Kerry W. Kircher, as ECF filer of this document, attests that concurrence in the filing of the document has been obtained from signatory H. Christopher Bartolomucci.
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Respectfully submitted, By: /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci5 BANCROFT PLLC Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives
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CERTIFICATE OF SERVICE I hereby certify that on November 6, 2012, I electronically filed the
3 foregoing Memorandum of Points and Authorities in Support of Motion to Exclude 4 the Testimony of Dr. Lawrence J. Korb and Maj. Gen. (Ret.) Dennis Laich with the 5 Clerk of Court by using the CM/ECF system, which provided an electronic notice 6 and electronic link of the same to the following attorneys of record through the 7 Courts CM/ECF system: 8 Caren E. Short, Esquire 9 Christine P. Sun, Esquire Joseph J. Levin, Jr., Esquire 10 SOUTHERN POVERTY LAW CENTER 11 400 Washington Avenue Montgomery, Alabama 36104 12 caren.short@splcenter.org 13 christine.sun@splcenter.org joe.levin@splcenter.org 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eugene Marder, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 950 Page Mill Road Palo Alto, California 94304 eugene.marder@wilmerhale.com Daniel S. Noble, Esquire Adam P. Romero, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 399 Park Avenue New York City, New York 10022 daniel.noble@wilmerhale.com adam.romero@wilmerhale.com
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Randall R. Lee, Esquire Matthew D. Benedetto, Esquire WILMER CUTLER PICKERING HALE & DORR LLP 350 South Grand Avenue Suite 2100 Los Angeles, California 90071 randall.lee@wilmerhale.com matthew.benedetto@wilmerhale.com Jean Lin, Trial Attorney U.S. DEPARTMENT OF JUSTICE Civil Division - Federal Programs Branch 20 Massachusetts Avenue, Northwest Washington, District of Columbia 20530 jean.lin@usdoj.gov
/s/ Mary Beth Walker Mary Beth Walker
Case 2:12-cv-00887-CBM-AJW Document 56-1 #:761
Filed 11/06/12 Page 1 of 13 Page ID
EXHIBIT A
EXHIBIT B
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Wilmer Cutler Pickering Hale and Dorr LLP
JOSEPH J. LEVIN, JR. (Pro Hac Vice) joe.levin@splcenter.org CHRISTINE P. SUN (SBN 218701) christine.sun@splcenter.org CAREN E. SHORT (Pro Hac Vice) caren.short@splcenter.org SOUTHERN POVERTY LAW CENTER 400 Washington Avenue Montgomery, AL 36104 Telephone: (334) 956-8200 Facsimile: (334) 956-8481 (Caption Continued on Next Page)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) 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. ) ) ) TRACEY COOPER-HARRIS and MAGGIE COOPER-HARRIS, Case No. CV12-887 CBM (AJWx) RULE 26(a)(2)(B) EXPERT REPORT OF DR. LAWRENCE J. KORB
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350 South Grand Avenue, Suite 2100 Los Angeles, California 90071
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RULE 26(a)(2)B) EXPERT REPORT OF DR. LAWRENCE J. KORB CASE NO. CV 12-887 CBM (AJWx)
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RANDALL R. LEE (SBN 152672) randall.lee@wilmerhale.com MATTHEW BENEDETTO (SBN 252379) matthew.benedetto@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 Telephone: (213) 443-5300 Facsimile: (213) 443-5400 ADAM P. ROMERO (admitted pro hac vice) adam.romero@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center New York, NY 10007 Telephone: (212) 230-8800 Facsimile: (212) 230-8888 EUGENE MARDER (SBN 275762) eugene.marder@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 Attorneys for Plaintiffs
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RULE 26(a)(2)(B) EXPERT REPORT OF DR. LAWRENCE KORB CASE NO. CV 12-887 CBM (AJWx)
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I, Dr. Lawrence J. Korb, submit this Federal Rule of Civil Procedure 26(a)(2)(B) report in the above captioned case. 1. I have personal knowledge of the facts stated herein and am competent to testify as to the matters set forth in this report. If asked at hearings or trial, I am prepared to testify regarding the matters I discuss in this report. 2. I have been retained by the Plaintiffs in this matter to provide a report and testimony regarding the history of military and veterans benefits and the impact of the definition of spouse and surviving spouse in 38 U.S.C. 101(3) and (31) on military recruitment, retention, and readiness. I am being compensated for this effort at a rate of $150 per hour and $1000 per day of full deposition or testimony, and I will be reimbursed for expenses in the event that I have to travel in connection with my services. I. 3. BACKGROUND & QUALIFICATIONS I am currently a Senior Fellow at the Center for American Progress, a senior advisor to the Center for Defense Information, and an adjunct professor at Georgetown University. 4. I received my Ph.D. in Political Science from the State University of New York at Albany and have held teaching positions at the University of Dayton, the Coast Guard Academy, and the Naval War College. 5. I have also held positions as Vice President, Director of Studies, and Maurice Greenberg Chair of the Council on Foreign Relations. Before that, I was Director of the Center for Public Policy Education, Dean of the Graduate School of Public and International Affairs at the University of Pittsburg, Vice President of Corporate Operations at the Raytheon Company, and Director of Defense Studies at the American Enterprise Institute. 6. In addition, I served as Assistant Secretary of Defense for Manpower, Reserve Affairs, Installations, and Logistics from 1981 through 1985. In this
1 RULE 26(a)(2)B) EXPERT REPORT OF DR. LAWRENCE J. KORB CASE NO. CV 12-887 CBM (AJWx)
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position, I was responsible for administering approximately 70 percent of the defense budget of the United States. I was awarded the Department of Defenses Medal for Distinguished Public Service for my performance. 7. I am also a military veteran, having served on active duty for four years as Naval Flight Officer. I retired from the Naval Reserve with the rank of captain. 8. II. 9. My current CV is attached as Exhibit A. PREVIOUS EXPERT TESTIMONY & PUBLICATIONS In the past four years, I testified as an expert and was deposed as an expert in Log Cabin Republicans v. United States, 716 F. Supp. 2d. 884 (C.D. Cal. 2010). 10. I have authored, co-authored, edited, or contributed to more than 20 books and written more than 100 articles on issues related to national defense and the treatment of Americas military veterans. My books include The Fall and Rise of the Pentagon; American National Security: Policy and Process, Future Visions for U.S. Defense Policy; Reshaping Americas Military; A New National Security Strategy in an Age of Terrorists, Tyrants, and Weapons of Mass Destruction; Serving Americas Veterans; and Military Reform. A complete list of my publications is attached hereto as Exhibit B. III. 11. SUMMARY OF EXPERT OPINION Providing comprehensive benefits to families of service members and veteransregardless of gender and sexual orientationis a crucial component of our national security policy. 12. Accordingly, I believe that the definition of spouse and surviving spouse in 38 U.S.C. 101(31) & 101(3) (Title 38), which governs benefits for veterans and their families, and Section 3 of the Defense of Marriage Act
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(DOMA), 1 U.S.C. 7, are in direct conflict with the governmental purposes underpinning the enactment of veterans benefit laws. 13. The denial of benefits to the same-sex spouses of men and women who are serving or have served in the armed forces undermines the professionalism and effectiveness of the United States military. Denial of these benefits jeopardizes the armed services ability to recruit able service members; harms the maintenance of a qualified all-volunteer force by denying service members benefits that would allow or encourage them to re-enlist; threatens military readiness by undermining the armed services ability to ensure that all service members are able to focus on their mission, knowing that the federal government will attend to the needs of their loved ones; erodes military cohesion by forcing the armed forces to treat some service members differently than others; and decreases the militarys credibility with service members and veterans by forcing it to take actions that contradict its own message of nondiscrimination. 14. IV. 15. I have attached a bibliography of publications cited herein as Exhibit C. PURPOSE OF VETERANS BENEFITS Our nations commitment to providing continued care and services to injured veterans began in pre-Revolutionary times. Since then, the country has passed more than eighty laws intended to improve the quality of life for all veterans injured in the line of duty, as well as for their families. In 1958, Congress enacted a comprehensive program to compensate service-disabled veterans and their families for the impact of their disability on their earning capacity and quality of life. Congress regarded this as a paramount component of veterans services. 16. Each branch of government has recognized that benefits for service members family members are essential to a strong all-volunteer army. The
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armed forces leadership has decided that provision of these benefits to service members and their families is necessary to ensure military readiness and encourage service members to choose the military for a lifelong career. Congress has agreed and established these benefits schemes. 17. Benefits for veterans spouses are intended to defray the costs of supporting dependents when a service-connected disability is hindering a veterans wage-earning abilities. Service-injured veterans have an obvious need for compensation for the financial harm to their family unit that follows when an injury, illness, or condition related to the veterans service renders a onceable-bodied, working member of the family unable to contribute to the family as he or she could prior to serving. 18. Congress has long regarded the spousal benefits provided under Title 38 as important incentives for service and reenlistment that recognize the sacrifices that military families must make while improving morale and providing reassurance to service members that their families will be supported and compensated for their service. 19. Recruitment and retention of service members relies on the governments ability to preserve the dignity and integrity of military service by ensuring that those who have been disabled in defense of our nation can re-establish themselves in civilian society and provide for their families. 20. The Armed Services, as well as Congress, recognize the importance of military families, as opposed to individual service members, to the health of the military as a whole. As studies have shown, family well-being and security is a significant factor in each service members decision whether to reenlist. Spousal benefits for service-related injuries are certainly a large portion of that calculus. See Joyce Wessel Raezer, Transforming Support to Military Families and Communities, in Filling the Ranks: Transforming the
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U.S. Military Personnel System 213, 218-220 (Cindy Williams ed., 2004) (Because the career servicemembers who make up a higher proportion of the All-Volunteer force are more likely to be married, family well-being became more important in a servicemembers decision to remain in the military.); Bernard D. Rastker & Curtis L. Gilroy, The Transition to an AllVolunteer Force: The U.S. Experience, in Service to Country: Personnel Policy and the Transformation of Western Militaries 233, 256 (Curtis L. Gilroy & Cindy Williams eds., 2006) (Although the military recruits individuals, it retains families: family considerations are important to the individuals reenlistment decision.). 21. In addition, service members performance is affected by their knowledge that family members and spouses will be compensated and cared for should the service member suffer a disabling injury. Strong benefits programs and family support groups therefore ensure peace of mind and maintain military readiness. V. EFFECTS OF THE BAN ON SPOUSAL BENEFITS FOR CERTAIN VETERANS 22. It is my understanding that the definition of spouse and surviving spouse in Title 38 and Section 3 of DOMA prevent veterans in same-sex marriages and their spouses from receiving dozens of benefits which are not only freely available to veteran families with opposite-sex spouses, but were created and, indeed, are advertised, as critical features of veterans compensation. 23. Services and benefits denied only to same-sex veteran spouses include death pension benefits, health care reimbursement, assistance for continuing education, and even job search assistance. Veterans cannot share or assign any of these benefits to their same-sex spouses.
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24.
Even Family Readiness Groups, affiliations of military families that prepare individuals for deployment and support them during that time, are not allowed to include same-sex spouse members. This continues to divide service members into distinct categories rather than fostering military readiness and cohesion.
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I believe that denying benefits to spouses of gay and lesbian veterans, and them alone, frustrates the clear purpose of these Congressionally-created veterans benefits: to compensate disabled veterans for their decreased ability to earn a living and support their families.
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26.
Both Congress and the military have stated their commitment to caring and providing for the families of veteransparticularly those who have been injured in the course of service. This commitment has been part of the U.S. military ethos since its very inception. Denying gay and lesbian service members these benefits is antithetical to that goal.
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In addition, years of military experience have shown these benefits for service members and families to be essential to the proper functioning of the armed forces by ensuring that our men and women in uniform are capable of serving at their maximum potential. Denying these benefits to some service members diminishes military readiness and the effectiveness of the armed services by compromising their ability to focus on the singular task before them. See Michael J. Jackonis, et al., War, Its Aftermath, and U.S. Health Policy: Toward a Comprehensive Health Program for Americas Military Personnel, Veterans, and Their Families, 36 J.L. Med. & Ethics 677 (2008) (stating that benefits for the families of veterans are a national security issue).
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Recruitment and retention of armed forces personnel, another major goal of strong veterans benefits, is also harmed by continued denial of these benefits
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to individuals on the basis of sexual orientation and gender. These important benefits are crucial incentives for able service members to join and remain in the military; their denial to some service members thereby deprives the armed services of an important tool. See Maj. Jonathan T. Petty, School of Advanced Military Studies, United States Army command and General Staff College, Facing the Long War: Factors that Lead Soldiers to Stay in the Army Despite Persistent Conflict 2 (2011) (stating that family support is one of the eight primary factors that positively affect soldier retention). 29. In addition, recruitment and retention is harmed because this practice signals to young people considering enlisting that the military is an intolerant, archaic institution. Title 38 and Section 3 of DOMA are contrary to the stated military values of diversity, fairness, equality, and meritocracy. 30. Military cohesion also suffers due to the creation of a two-tiered structure that requires the armed forces to treat service members differently, even though the different treatment has no relation to their performance. 31. Indeed, Title 38 and Section 3 of DOMA are direct obstacles to Congresss goal of a fully integrated army, as signaled by the repeal of Dont Ask, Dont Tell (DADT). As long as Title 38 and Section 3 of DOMA stand as concrete manifestations of discriminatory treatment, military officers cannot credibly communicate their commitment to nondiscrimination or fully integrate gay and lesbian service members into their companies, as Congresss repeal of DADT has directed them to do. ***
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I declare under penalty of perjury that the foregoing is true and correct and was executed on September 14, 2012, in Washington, D.C.
By: /s/_Dr. Lawrence J. Korb, Ph.D.__ Dr. Lawrence J. Korb
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EXHIBIT C

[Page 1]
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division --------------------------------X TRACEY COOPER-HARRIS and ) MAGGIE COOPER-HARRIS Plaintiffs, v. 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, ) ) ) Case No. ) CV12-887 CBM (AJWx) ) ) ) ) ) ) ) BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, Intervenor) ) ) ) Pgs. 1 - 107
Defendant. ) --------------------------------X DEPOSITION OF LAWRENCE JOSEPH KORB, SR., PH.D. Washington, D.C. Tuesday, October 16, 2012 Reported by: Cindy L. Sebo, RMR, CRR, RPR, CSR, CCR, CLR, RSA
877-479-2484
U.S. LEGAL SUPPORT
www.uslegalsupport.com

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October 16, 2012 9:32 a.m.
Deposition of LAWRENCE JOSEPH KORB, SR., PH.D. held at the law offices of:
Bancroft PLLC 1919 M Street, Northwest Suite 470 Washington, D.C. 20036
Pursuant to notice, before Cindy L. Sebo, Registered Merit Reporter, Certified Real-Time Reporter, Registered Professional Reporter, Certified Shorthand Reporter, Certified Court Reporter, Certified LiveNote Reporter, Real-Time Systems Administrator and a Notary Public in and for the District of Columbia.
U.S. LEGAL SUPPORT www.uslegalsupport.com
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A P P E A R A N C E S: For the Plaintiffs: ADAM P. ROMERO, ESQUIRE WilmerHale 7 World Trade Center 250 Greenwich Street New York, New York 10007 212.295.6422 adam.romero@wilmerhale.com -andCHRISTINE P. SUN, ESQUIRE CAREN E. SHORT, ESQUIRE Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 334.956.8450 christine.sun@splcenter.org caren.short@splcenter.org
U.S. LEGAL SUPPORT

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A P P E A R A N C E S (Continued): For the Defendants: JEAN LIN, ESQUIRE United States Department of Justice 20 Massachusetts Avenue, Northwest Washington, DC 20530 202.514.3716 jean.lin@doj.gov
For the Intervenor-Defendant: MARY BETH WALKER, ESQUIRE Office of General Counsel 219 Cannon Building Washington, D.C. 20515 202.225.9700 marybeth.walker@mail.house.gov -andMICHAEL H. MCGINLEY, ESQUIRE Bancroft PLLC 1919 M Street, Northwest, Suite 470 Washington, D.C. 20036 202.234.0090 mmcginley@bancroftpllc.com ALSO PRESENT: THOMAS M. SUNDLOF, U.S. House of

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I N D E X WITNESS LAWRENCE JOSEPH KORB, SR., PH.D. By Ms. Walker BY Mr. Romero 7, 102 94 PAGE
E X H I B I T S KORB DEPOSITION EXHIBIT NUMBER DESCRIPTION PAGE -
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Exhibit A to the 26(a)(2)(B)
Expert Report of Dr. Lawrence

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J. Korb
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26(a)(2)(B) Expert Report of Dr. Lawrence J. Korb 41
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U.S. Army FRG Leader's Handbook 77
Facing the Long War: Factors That Lead Soldiers to Stay in the Army During Persistent Conflict 87
*(Exhibits Attached to Original Transcript.)


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P R O C E E D I N G S
Washington, D.C. Tuesday, October 16, 2012; 9:32 a.m.
- - LAWRENCE JOSEPH KORB, SR., PH.D. after having been first duly sworn, was examined and testified as follows: - - EXAMINATION BY COUNSEL FOR INTERVENOR-DEFENDANT - - BY MS. WALKER: Q. Good morning, Dr. Korb. Can you state your full name for the record? A. Q. My name is Lawrence Joseph Korb, Sr. And I know you've been deposed
before, but I'd like to go through some basic ground rules before the beginning of every deposition. I will ask you to answer questions, and those answers will be recorded by the court
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Q.
Did your testimony in the Log Cabin
Republicans case concern Title 38 or DOMA at all? A. Q. Not that I recall. And have you offered expert testimony
relating to DOMA or Title 38 in any case? A. Q. A. Q. No. You're not a lawyer; is that correct? That's correct. Did you do any special preparation
for today's deposition? A. Well, obviously, I went over my
testimony again and I spoke to two of the attorneys here (indicating) about how depositions work and -- and what the ground rules are. Q. Other than speaking with the
attorneys, did you speak with anyone else? A. Well, I did speak to some military
people who are on active duty right now. Q. A. Q. generally? A. Well, I basically asked them if they And when did you speak with them? Well, the last one was yesterday. And what did you talk about,
thought that DOMA and Title 38 were undermining military readiness and unit cohesion.
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Q. yesterday? A. identified. Q.
And who is the person you spoke with
I -- he did not want to be It was an active duty officer. And how did you get in touch with
this active duty officer? A. Well, I will deal with active duty
military people all of the time in my job, and -so . . . Q. So this is someone you had a
connection with before; is that correct? A. Q. Someone I had known before, yes. Okay. And in addition to the person
you spoke with yesterday, approximately how many people did you speak with in preparing for this deposition? A. Q. No one else. Okay. Did you review any documents in preparation of -- for this deposition? A. Well, I went over the documents that
I cite in my testimony. Q. A. Q. Any other documents? Not specifically, no. What do you mean by "not

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A.
Well, we knew.
And, in fact, if you
know the history, we've always had gay people in the -- in the service. Up until 1980, people -- it was really up to the commanders to decide whether or not that -- that person was undermining readiness or unit cohesion. And so people who were there,
as long as they did not cause problems -- in other words, we had standards of behavior for everybody. And so, yes, we did have -- have them there, people knew about it, and we didn't care. What you care about is can that man or woman do his or her job. Q. What was your personal involvement
with these issues when you were on active duty? A. involvement"? Q. members. A. Q. Um-hum. What do you mean? Did you, You said you knew about gay military What do you mean "personal
personally, know someone who was gay who was serving in the military? A. Q. Yes. And you knew that because you had

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spoken with them? A. Q. They talked about it, yeah. Did you ever specifically address
retention issues with respect to gay military members when you were on active duty? A. Q. Not that I can recall. I understand that you were also
Assistant Secretary of Defense; is that correct? A. Q. Defense? A. Q. Yes, I was. And can you tell me a little bit Pardon me? You were Assistant Secretary of
about what you did as Assistant Secretary of Defense? A. Well, when President Reagan appointed
me to the job, my responsibilities included manpower, which was to make sure that we got and kept high-quality people and that the force was ready to carry out its -- its duties. I also was responsible for installations, which is the base. In fact, I
worked with Senator Goldwater to set up what we now know as BRAC, because we had too many -- too many bases.
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Academy, is to look at issues that come before the country that impact national scrutiny and apply my research skills to -- to them. Q. The Center for American Progress
recently published a blog entry about Title 38 and DOMA, Section 3. Were you involved in writing that entry? A. Q. A. I was not. Why not? Because the blog is a separate thing
from our national security division. Q. I see. And have you written any articles about the spousal definitions in Title 38 or about DOMA? A. Q. No. Have you ever made any speeches or
offered any testimony in connection -- sorry. Have you made any speeches in connection with Title 38 or DOMA, Section 3? A. Q. No. Have you offered any
Congressional testimony in connection with the spousal definitions in Title 38 or in connection

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with DOMA, Section 3? A. As I mentioned before, my testimony
has always been to make sure that people in the military are treated fairly. Q. But none of that testimony
specifically referenced spousal definitions in Title 38 or DOMA, Section 3; is that correct? A. Q. A. Q. That's correct. Dr. Korb, are you doing okay? I'm doing fine. Okay. - - (Whereupon, 26(a)(2)(B) Expert Report of Dr. Lawrence J. Korb was marked, for identification purposes, as Korb Deposition Exhibit Number 2.) - - BY MS. WALKER: Q. Dr. Korb, you've been handed what has
been marked as Exhibit 2, and this is your expert report. Can you review and confirm that this is your expert report? A. Q. Yes, it is. I want to ask you some questions to

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BY MS. WALKER: Q. Dr. Korb, you testified a minute ago
that you understood same-sex spouse to mean someone who was married in a state that allows same-sex marriage; is that correct? A. Q. That is my understanding. And is your understanding of that
definition the same regardless of which state in which those spouses live? MR. ROMERO: Same objection; also calls for speculation; lack of foundation. THE WITNESS: Well, my understanding basically is that if you're legally married in one state, that -- just like if you're divorced in a state, even if you're not, then other states recognize it, yes. But that's -- that's my understanding. BY MS. WALKER: Q. That's your understanding. Okay.
And that's the understanding that you based your report on; is that correct? A. Q. A. Q. That's correct. Turning to Paragraph 12 -Okay. -- you state that, I believe that the

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definition of spouse and surviving spouse in Title 38 and Section DOMA 3 of the Defense of Marriage Act are in direct conflict with the governmental purposes underpinning the enactment of Veterans' benefit laws. What's the basis for your belief in Paragraph 12? A. I think, as I point out in Number 15,
that Congress regarded this as a paramount component of Veteran's services. Q. They regarded -- I'm sorry --
Congress regarded what as a paramount component? A. That -- to compensate
service-disabled Veterans and their families for the impact of their disability on their earning capacity and quality of life. Q. Do you think that any inconsistencies
in laws mean that the law is necessarily bad? A. I think that any inconsistency in the
laws as they apply to people in the service are going to undermine morale, cohesion and military readiness eventually. Q. Eventually. And what do you mean by "eventually"? A. Well, as soon as people become aware

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the definition of it, when you get the tax exemption. But when -- that's the job of people to explain to them. And that -- usually,
people who feel that they're not getting what they deserve, they're the ones that will -- will -- will find out about it. And I think when people hear, for example, that if a woman in the military is raped and the Government won't pay for her abortion because the Congress won't even take a vote on it, they're appalled. BY MS. WALKER: Q. Do you have any information about how
many people in the military are aware of the spousal definitions provided in Title 38? A. I don't have specific numbers, but I
do know that a lot more people are becoming aware of it. Q. people"? A. Because it's become an issue. After What do you mean by "a lot more
you repealed the -- the Don't Ask, Don't Tell, then people became aware of it. And, for example, last Friday, the

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Joint Chiefs of Staff took up this issue. Are you aware of that? Q. And do you have any information
regarding the number of people who are aware of the effect of DOMA within the military? A. I think the fact that the Joint
Chiefs of Staff were very busy, put this on their agenda last Friday, is an indication that they're becoming more and more aware of it. Q. correct? A. Q. A. It's becoming an issue. Okay. But it's not an issue yet? Becoming more aware of it; is that
I think it is an issue. MR. ROMERO: Objection; misstates
the testimony. BY MS. WALKER: Q. You mentioned a minute ago that --
you were talking about effects on cohesion. Can you explain how unit cohesion can be measured? A. "Unit cohesion" is a term that
military sociologists apply to whether, in fact, the people in the unit all feel bound together to work for a common purpose. And, basically, what
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it means is they all feel that they're part of a team; and the -- that they'll all take care of each other; and that they're all going to be treated the same regardless of whatever characteristic, whether it's race, religion, gender; and that they will all get the same -- the same benefits if something, heaven forbid, should happen to them. Q. And I understand that's the
definition of cohesion -- of unit cohesion. Can you explain how that's measured? A. Well -- I think it's measured when
you measure readiness. Q. A. And what do you mean by that? Well, the military has readiness -Unfortunately, the And
they have a readiness system.
metrics are classified, but they measure.
there is a report that this unit is anywhere from C1 to C4 and -- and they do it. And part of the readiness is people's retention, people's performance. And there is --
these figures are highly -- you know, highly classified, but every now and then, people will talk about them in the press, you know, the units. And I do know for a fact that when I

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came into Government, military readiness, unit cohesion were in terrible shape because military people realized that their pay was not going up to the extent that they had been promised because of the high inflation and we weren't doing it. And once we raised it -- in the first year of the Reagan Administration, we had two pay increases, one an 11 and 14.3, because that was the standard. Once that happened, it was amazing
how readiness began to improve, because people felt that they were being treated fairly. Q. So you would say that pay has a
significant impact on -A. I would say pay and benefits.
Because, remember, military pay, basic pay, is only 40 percent of -- of your whole total compensation. Q. surveys? A. Q. I am. And would you say that that's a way Are you familiar with command climate
to measure unit cohesion? A. Q. That's one way, yes. Okay. And how is that different from
what you just described with respect to readiness?

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A. Q.
That feeds into the readiness system. Okay. And are you aware of any
command climate surveys that have been conducted with the respect -- with respect to the effect of Title 38 on unit cohesion? A. I am not aware, but my -- my guess is
that it's going to be part of it as this becomes more and more known. Q. You didn't rely on any command
climate surveys for your -A. No. My testimony is based upon my
experience having worked primarily in the Reagan Administration and been on active duty and being involved with the National Military Family Association and the literature, you know, that talks about how we recruit individuals, retain families -- retain families and those indications. Q. And just for clarity's sake, you're
not aware of any command climate surveys that address DOMA; is that correct? A. I'm not aware of any. MR. ROMERO: Counsel, would this be a good spot for a break? MS. WALKER: Sure, that's fine. Yeah.

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had the draft and we would bring people in who may or may not have wanted to -- to be there, may not have been as motivated, these are people who want to make the military a career. And they're professionals in the sense that this is their calling, and they perform this according to accepted -- they perform their duties according to accepted standards. And if
they violate those standards, they're not going to be allowed to stay. Q. Do you have any information regarding
the number of gay or lesbian members of the military who are married to their same-sex spouse? A. information. Q. Are you aware of any surveys or other I don't have any specific
studies that have established that number? A. Q. I am not aware of that. Paragraph 13 also refers to
effectiveness. How do you measure effectiveness? A. Again, you measure effectiveness as I
told you, by you have a readiness system that takes into account many, many different things. And then, of course, you see if, in fact, when
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they're assigned a mission, they carry it out as well as could be expected. Q. And the way that you measure
effectiveness is through this readiness system, this classified readiness system; is that correct? A. Q. That's correct. Are you aware of any empirical
studies or statistical research tying the effectives of DOMA, Section 3 to decreased effectiveness? A. Q. I am not aware of any. Are you aware of any empirical
studies or statistical research tying the effects of the spousal definitions in Title 38 to decreased effectiveness? A. Well, as I mentioned before, the
studies talk about the perception of people being treated equally regardless. And those are the --
you know, that's what I base my opinion on. Q. So you based your opinion on studies
that relate to treating people -A. I base my opinion, as I mentioned
before, my own experience, having dealt with this, as well as the -- the -- the studies that have looked -- looked at this.
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And everything that I have seen and I've experienced, particularly in my five years in the Reagan Administration, leads me to the opinion that once there is a feeling that people are not being treated equitably because of something that has nothing to do with their military profile, that this causes problems. Q. Are the studies that you're referring
to -- are those the five documents that are cited -A. Those plus -- as I keep mentioning
this to you, I've lived this, okay, all my life. Okay? So it's not just these studies, which, of I've
course, I do, but I've lived this. experienced it day to day.
When I was at Brookings and at the Council on Foreign Relations, we had military fellows there that I worked -- that I worked with. I get called to the Pentagon all of the time. I
was asked several times to go over and meet with people about Don't Ask, Don't Tell and the impact that that was having. So that's what I'm basing my opinion on. Q. Okay. My question, though, was the

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studies that you just referred to, are those the documents that are cited in your expert report? A. Those are some -- those documents --
yes, those are things. Q. What other studies did you rely on
for your expert report? A. You -- I did not rely on other --
other studies; I relied on my experience. Q. Okay. Thank you.
And you're not aware of any studies that specifically tie the spousal definitions in Title 38 to decreased effectiveness; is that correct? A. I am not aware because you couldn't
have any studies. Here's the point: this. You keep asking
You can't study something until it has And we didn't drop the ban on gays and
happened.
lesbians until very recently. Q. Okay. You're not aware of any
studies; is that correct? A. Q. I am not aware of any. So how do you measure the decreased
effectiveness, for example, that you're discussing in Paragraph 13?

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A.
What I am saying is that based upon
my experience and having lived this and having been part of the Inter-University on Armed Forces and Society, okay, having talked to one of the authors of this, Bernie Rostker, who ran Selective Service and was Undersecretary for Personnel and looking at this, we know that when you deny benefits for no good reason, it has a negative impact. Q. Gays and lesbians enlisted under
Don't Ask, Don't Tell; isn't that correct? A. Q. Some did, yes. And presumably, if they're willing to
enlist under Don't Ask, Don't Tell, they might be willing to enlist regardless of whether DOMA, Section 3 or Title 38 is ineffective? A. What we know -- and this was
studied -- it's not in here -- that 4,000 people each year in the military who were gay left because they did not want to continue living a lie or being treated unfairly. That we do know.
And we also know that because of Don't Ask, Don't Tell, we could not recruit people at some of our most prestigious schools in the country because they wouldn't allow ROTC there.
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And we also know that in order to meet our requirements, from 2003 to 2007, we gave 80,000 moral waivers, taking in people up to and including felony convictions, which is part of the reason we've had so many difficulties in places like Afghanistan and Iraq where people behave inappropriately. That's what we do know.
And we do know that if you exclude a certain portion of the population, whether it's gays, lesbians, women, African-Americans, you lower the quality of the people that you get. Q. DOMA, Section 3 and the spousal
definition in Title 38 don't exclude anyone from the military, do they? A. don't know. They couldn't exclude -- well, we Because if I am thinking of joining
and I'm aware of this, I may not -- you may not know this -- you might have someone who finds out about it when they're in there. They would not
re-enlist even though you would want them to be. And so what you have to do is take in a lesser-qualified person. All of the money that
you've spent training that man or woman, if they realize this -- and we have -- in the past, we've seen that -- then we all lose. The military
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effectiveness goes down as well as the money that the taxpayers have to pay to retrain that person. Q. correct? A. know. Q. There are many factors that go into When you say "might," I -- I don't But they might also decide to stay,
the decision either to join the military or to re-enlist, aren't there? A. Q. Yes. And it's reasonable that a gay or
lesbian servicemember who is married to his or her same-sex spouse may weigh all the factors and ultimately decide that there's a benefit to -- to him or her enlisting or re-enlisting in the military; isn't that correct? MR. ROMERO: Objection; lack of foundation; calls for speculation as to what a -- what is reasonable. THE WITNESS: I'll be speculating. We found out after Don't Ask, Don't Tell how many problems we were having, that the 4,000 people who ordinarily would have enlisted didn't. And we also realized
that when we couldn't recruit on a lot of


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the campuses of the best schools in the country the impact that that had. BY MS. WALKER: Q. So, Dr. Korb, you just stated a
minute ago that you couldn't answer my question regarding whether someone may or may not enlist because it was speculation; is that correct? A. I am saying -MR. ROMERO: Objection; misstates the testimony. BY MS. WALKER: Q. Doctor, what did you -- what was your
testimony a minute ago with respect to my question regarding whether someone who is a same -- who has a same-sex spouse may do when they -- when they weigh all of the factors that go into the decision to either join or re-enlist in the military? A. My testimony was anytime there's a
perceived unfairness, that is going to make it less likely that that person will stay in. Q. But your specific answer to my
question was that it calls for speculation, wasn't it? MR. ROMERO: Objection; misstates the testimony.

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A.
I think there are many factors.
This
is one of them. Q. And presumably, soldiers are trained
to focus on the mission at hand regardless of those external factors; isn't that correct? A. Q. A. No, it's not correct. And why not? They're trained to carry out their
responsibilities, but if there's something else they're thinking about, even though they've had the training, they may not be as effective. Q. And are you aware of any way to
measure what's going on in a soldier's head as to how that impacts effectiveness? A. Well, I think what -- you have the
readiness system, and that's how you look at it. Q. Okay. You mentioned also in that same paragraph that Title 38 and DOMA, Section 3 erode military cohesion by forcing the Armed Services to treat some servicemembers differently than others. If Title 38 and DOMA, Section 3 have the effect of treating all same-sex married couples in the same way, isn't there an argument to be made that they support uniform treatment
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and, therefore, cohesion? A. No, there's not, because what we're
talking about is your spouse, regardless of whether they're the same gender. The real issue is are they treating spouses the way that all spouses are treated. Q. A. And why is that the real issue? Because it doesn't matter to the man
or woman in the service the gender of their -- of their spouse. Q. But if there was a system in place
where some same-sex married couples qualified for benefits and other same-sex married couples did not qualify for benefits, couldn't that undermine unit cohesion? A. Anytime that you have a system where
people are treated unfairly, it could. Q. Okay. And you also state that
Title 38 and DOMA decrease the military's credibility. What do you mean by "military's credibility"? A. The military says that regardless of
your race, religion, gender, sexual orientation, you're all going to get the same -- the same
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benefits to which you're entitled.
And if one
group is not getting them, then you undermine their credibility. Q. And what's the impact of undermining
the military's credibility? A. When you undermine the credibility,
people may not perform as well, they may not stay in when they feel that they're not being treated -- treated equally. Q. But they might perform just as well;
isn't it true? A. That calls for speculation. All I can tell you is based on my experience, that when people have this concern, they don't perform as well. When the military felt, when I came in in the Reagan Administration, that they were not being compensated, our readiness was horrible. Q. Do you have any information regarding
the overall public opinion of the military? A. that? Do you mean -- what do you mean by
I'm not sure what -Q. I just mean generally. Is -- do -- does public opinion
reflect a positive view of the military or a

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compensated. BY MS. WALKER: Q. But the Veteran could be compensated
too; isn't that correct? A. Q. That's correct. When do you understand the
definitions of spouse and surviving spouse in Title 38 to apply? A. My understanding, basically, is if
you're legally married, it should apply. Q. I'm sorry. In what context? How
does it apply in the military context, generally? A. Well, basically, if you're legally
married, you get a higher housing allowance, for example. When you deploy, you have, you know, groups which we call family readiness groups that, you know, brief people before they go to explain -- to explain things to them and how they -- things that they can deal with that -that -- that will come -- that would come up. Q. You understand Title 38 to apply to
family readiness groups; is that correct? A. My understanding is they're not
allowed to include same-sex spouse members.

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Q. A. Q.
And that's because of Title 38? That's my understanding. And you also testified that you
understand that Title 38 relates to housing allowances as well; is that correct? A. Q. That's correct, yes. In Paragraph 20, you're referring to
studies, you say, in Sentence 2, As studies have shown. I just want to make sure I understand. Are those the studies that you cite in your report or are there other studies? A. Well, those are the ones that I used There are hundreds of
in preparing this report.
studies that we could go into it. Q. But the studies that you use in
preparing this report are the five studies or articles that are cited? A. That's because they make the points And that's why I have
that I'm trying to make.
the quotes in there from them. Q. Okay. But there aren't any others?
I just want to make sure there aren't any others. A. Oh, there are lots of them.

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I say this as a country -- couldn't do that, we were lowering our standards, which caused a lot of -- a lot of problems. And if you take a look at it now, the fact that women are 15 percent of the military, as opposed to 2 percent, which was the limit till 1967, basically, I think you have a higher quality -- quality force. BY MR. ROMERO: Q. And are these issues that you focused
on while you were Assistant Secretary of Defense? A. Yes, I was -- the big issue primarily
was women, because the military incorrectly perceived that President Reagan, because he had opened the equal rights amendment, would not keep opening up opportunities for women. And so they tried to roll back some of the gains that they had made. And we were not
only able to stop that, but the number of women in the military expanded more than any other president. Q. A. And what did you do specifically? Basically, we opened up opportunities
for women in terms of the jobs that they could have and the -- the opportunities that they could
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- - EXAMINATION (CONTINUED) BY COUNSEL FOR INTERVENOR-DEFENDANT - - BY MS. WALKER: Q. questions. You testified a minute ago that women make up 15 percent of the military; is that correct? A. Q. That's correct. And do you know what percentage of Dr. Korb, I just have a couple of
the military has identified as either gay or lesbian? A. We estimated when the discussion was
coming up about dropping the ban, Don't Ask, Don't Tell, the estimates were maybe as high as 10 percent, but there were very -- the data wasn't as -- it was based upon the percentage of the population and things like that. But there were
some studies that estimated as high as 10 -10 percent. I think we will have much better data now that people are allowed to be open about it. Q. And do you know what percentage of

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the American population has identified as gay or lesbian? MR. ROMERO: Objection; relevance. THE WITNESS: I have my -- I'm estimating 10 percent, but I am not sure. MS. WALKER: Thank you. further questions. MR. ROMERO: No further questions. MS. LIN: No questions from me. I have no
(Witness excused.) -
(Deposition concluded at 11:52 a.m.)
U.S. LEGAL SUPPORT
EXHIBIT D
IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TRACEY COOPER-HARRIS, et al., Plaintiffs, vs. UNITED STATES OF AMERICA, et al., Defendants. ) ) ) ) ) ) Case No.2:12cv0087 ) ) ) ) )
- - - - THE DEPOSITION OF MAJOR GENERAL (RET.) DENNIS LAICH FRIDAY, OCTOBER 12, 2012 - - - - The deposition of MAJOR GENERAL (RET.) DENNIS LAICH, called by the Defendants for examination pursuant to the Federal Rules of Civil Procedure, taken before me, the undersigned, Michelle M. Lewis, a Registered Professional Reporter and Notary Public within and for the State of Ohio, taken at the offices of Baker & Hostetler, 3200 PNC Center, 1900 East 9th Street, Cleveland, Ohio, commencing at 9:05 a.m., the day and date above set forth.
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APPEARANCES: On behalf of the Plaintiff: Randall R. Lee, Esq. WilmerHale 350 South Grand Avenue Suite 2100 Los Angeles, California 90071 213.443.5301 randall.lee@wilmerhale.com and Adam P. Romero, Esq. Rubina Ali, Esq. (Via Phone) WilmerHale 7 World Trade Center 250 Greenwich Street New York, New York 10007 212.230.8800 adam.romero@wilmerhale.com rubina.ali@wilmerhale.com and Caren E. Short, Esq. Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 334.956.8450 caren.short@splcenter.org On behalf of the Defendants: Jean Lin, Esq. United States Department of Justice 20 Massachusetts Avenue, Northwest Washington, D.C. 20530 202.514.3716 jean.lin@doj.gov On behalf of Intervenor - Defendant: Mary Beth Walker, Esq. U.S. House of Representatives Office of the General Counsel 219 Cannon Building Washington, D.C. 20515 202.225.9700 marybeth.walker@mail.house.gov

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and
Nicholas J. Nelson, Esq.

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Bancroft, PLLC 1919 M Street, NW
Suite 470 Washington, D.C. 20036
202.234.0090 nnelson@bancroftpllc.com
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877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com

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MAJOR GENERAL (RET.) DENNIS LAICH DEPOSITION INDEX
EXAMINATION BY: Ms. Walker Mr. Lee
PAGE NO. 5, 116 105, 119
EXHIBIT NO. Exhibit 1 Exhibit 2
PAGE NO. 13 36
U.S. LEGAL SUPPORT

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during Witt, but I'm going to just read you one sentence to see if this clarifies that. You testified, as a result of my graduate studies and my work with the Lean Six Sigma, I'm painfully aware of the rigor of statistical requirements and peer review. that something that makes sense to you? A Q Yes. Okay. Thank you. And would you say that you are aware of the rigors of statistical requirements and peer review? A Q Yes. And would you say that in preparing your report for this case that you undertook any activities or efforts that would rise to the level of something that could be peer reviewed, for example? A I think that my report could be subject to peer review. Q A Q Has it been? Not to my knowledge. And did you conduct any studies or interviews, for example, in connection with preparation of your report?
Is

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My study or interview or preparation from the report -- for the report encompasses 35 years of experience and interface with soldiers, sailors, airmen, and marines, and their families, and also a wealth of experience in dealing with policy creation and execution, and it also encompasses during those 35 years a study of these issues at a host of military institutions to include the Command and General Staff College and the Army War College, where especially at the Army War College we study manning the force and fighting and winning the nation's wars at a strategic level. During those 35 years I had innumerable interfaces with soldiers, sailors, airmen, and marines, and their families on issues that involved their benefits, well-being, and decisions to become part of the military, to remain part of the military, and to continue to be ready to fight and win the nation's wars. That 35
years of experience is a wealth of experience and data point by point developed over a long period.

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In the 35 years of experience that you just testified about, did you ever discuss with service members Title 38? clarify that question. Did you ever discuss with service members the definitions provided in Title 38 for spouse? I'm sorry, let me
A Q A
Yes. Can you recall specific examples? Yes. I had several discussions with a number
of service members, especially during my tenure as the chair of the Military Advisory Committee to the Servicemembers Legal Defense Committee. Q And, General, can you just clarify, what's the timeframe that we're talking about right now? A 2006 to 2000 -- well, 2007 to 2011. And
prior to that -- I'm sorry, I misstated. It's the Servicemembers Legal Defense Network, SLDN. Prior to that, there were no specific -- there was no specific dialogue that I can recall related directly to Title 38.

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And you just testified that the timeframe that we are talking about was 2006 to 2011; is that correct?
A Q
Yes. So that would have been after you retired; is that correct?
A Q
Yes. While you were in the military, did you ever have conversations with service members about the definitions of spouse in Title 38 as they relate to same sex marriages?
A Q
No. And in the timeframe from 2006 to 2011 you mentioned discussing the definitions of spouse with service members. Did those
discussions relate particularly to same sex spouse marriages? A Well, it -- if you're talking about Title 38, yes, predominantly to same sex marriages. Q And how many conversations would you say that you had? A Q Oh, I would think dozens. Dozens, but you wouldn't say -- you would say less than a hundred? A Yes, less than a hundred.
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Sure.
Do you have notes from any of those
conversations? A Q A Q No. No notes from any of those conversations? Not that I can recall. Thank you. And other than those 50 conversations that we've just discussed, have you -- strike that. I'd like to ask the same questions with respect to DOMA. We just talked about
the Title 38 provisions, and now I'd like to move on to DOMA. Have you had -- while you
were in your military service, did you ever discuss DOMA with service members? A Q A No. Why not? First of all, it really wasn't an issue because Don't Ask, Don't Tell was still in force, and I think that that would cause discussion about DOMA to be less likely inside the active service. Q I understand. And before you testified that you had 35 years of experience that you believed was

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Do you have any notes from any of those conversations?
A Q
No. I'm going to back up here for a minute. apologize. I
I'm sort of going a bit out of
order, but I just wanted to talk generally about your military career. Can you just
give me a brief overview of the different roles you played while you were in the military? A Yes. I was commissioned through Army ROTC in Served on active
1971 at Lafayette College. duty in 1971 and 1972. the Army Reserve.
In '72 transferred to
Spent most of my career in
the Army Reserve in primarily military police and transportation assignments. I was also
the Inspector General of the 99th ARCOM at that time in Pittsburgh, Pennsylvania. I
held a host of command and staff assignments. And my military awards include the Defense Distinguished Service Award, the Legion of Merit, the Joint Meritorious Service Award, and a Meritorious Service Award. The last 14 consecutive years of my active service I was in command positions at

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the Colonel, Brigadier General, and Major General level, culminating in my assignment as the commanding general of the 94th Regional Readiness Command at Fort Devens, Massachusetts, where I had approximately 5,000 soldiers in my command encompassing all of the Army Reserve soldiers in the six New England states. So I had responsibility for
those soldiers and their families in terms of logistics, training, pay, administration, facilities management, personnel actions, discipline, and legal affairs. Q Were there any roles where you served primarily or significantly in the recruitment process? A The fact of the matter is today that everyone who is in the Army Reserve and the National Guard in particular in a leadership role is involved in recruiting. I did not have a
specific recruiting assignment, although I should point out that I had recruiters working for me in my role as commander. had oversight responsibility for the operation of recruiting efforts in my area of operation and supporting those operations and
So I

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ensuring their smooth functioning. Q I understand. And would it be fair to say that you were not interfacing directly with new recruits as a formal role; is that correct? A I -- no, I don't think that's correct. was -Q Let me clarify my question. that -A Q I'm still recruiting for the military. I understand. You mention that you were -- you had recruiters working for you? A Q Yes. And their role was on a day-to-day basis to enlist -A Q Right. -- new members of the military; is that correct? A Q A That's correct. That was not your role, correct? That was not my primary function, that's correct. Q Well, you just testified that you didn't have a formal role in recruitment; is that
You mentioned

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correct? A Well, I also testified that I had a broad range of responsibilities for finance, administration, training, and recruiting and retention were inherent in manning the force. Q I understand. And that was in an oversight
role; is that correct? A Q Yes. So on a day-to-day basis you were not speaking with people who were considering joining the military or had just joined; is that correct? A No. I, on a routine basis, did speak to
young people who were considering joining, and particularly young soldiers who had recently joined in order to integrate them into units, and I continue to encourage and work with young people to join the military. Q There are many people that will go into a recruiting office who will decide not to join the military; is that correct? A Q Yes. And your primary role would not have been to interface with those people; is that correct? A My primary -- that's correct.
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And that would have been the role of the recruiters that you mentioned before; is that right?
A Q
Yes. Thank you. You mentioned that sometimes you would speak with potential recruits or new recruits as they were first entering the military; is that correct?
A Q
Yes. In those conversations did anyone ever express concern over DOMA or the Title 38 provisions regarding spouse?
A Q
Yes. You testified earlier that you had, during your military career, that you had had no conversations with any service members regarding DOMA or Title 38; is that correct?
I had that conversation after I left active service.
I understand. So while you were in active service, did you have any experiences talking with potential recruits or newly enlisted or commissioned military members regarding

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with the Catholic church? A Q No. General, you mentioned in your report a few publications that you've written. I also
understand that you've written and spoke in the past about Don't Ask, Don't Tell and its repeal; is that correct? A Q That's correct. Have you written any articles specifically about DOMA? A Q No. Have you written any articles about Title 38's spousal definitions as they relate to same sex married couples? A Q No. With respect to either Title 38 or DOMA, have you given any speeches with respect to those laws? A Q No. Did you give speeches with respect to Don't Ask, Don't Tell? A Q Yes. Before your involvement in this case, had you undertaken any research regarding DOMA? A Yes.
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Q A
What was that research? The research is centered around efforts that the Servicemembers Legal Defense Network was involved in, and I participated in reviewing some of the issues and some of the discussions around DOMA and the effect that the repeal of Don't Ask, Don't Tell might have on DOMA and vice versa, how they were related.
And what do you mean the effect of Don't Ask, Don't tell, what effect Don't Ask, Don't Tell might have on DOMA?
Or what effect the repeal would have or DOMA would have on repeal. And that was involved
with or addressed the issues of whether the fact that gay and lesbian soldiers, service members could serve openly would create an opportunity for a ongoing issue with DOMA in relation to spousal benefits. Q A And when was this research? It stretched over several years and was intermittent. Probably went from the
2007 timeframe to 2010 or something like that, somewhere in that timeframe. Q And is it correct that you did not publish
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any articles or author anything with respect to that research? A Q A That's correct. Why not? I did not take the lead. I was involved in
some of those discussions and some of the research. research. I did not take the lead in the It was under the auspices of the
Servicemembers Legal Defense Network. Q And did that same research discuss the Title 38 spousal provisions at all? A I don't recall that it specifically did, but I -- I don't recall that it specifically did. Q Did you review any of that research in preparation of your report? A Q A No. Why not? I felt that I had a pretty good recollection of what the research led to, and I didn't feel the need to go back and review it. Q Are you doing okay? break? A Q Yeah, let's take five minutes. Sure. (Recess from 9:48 a.m. to 9:54 a.m. )
Do you want to take a

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concept that I did with regard to that specific example in the 2005 recruiting numbers. Q A Q That was in Paragraph 15? Right. General Laich, in acquiring the personal knowledge that you claim to have with respect to the facts in the report, did you conduct any statistical analysis? A Q A Q No. Did you review any statistical reports? With regard to what? Any of the facts in your report. MR. LEE: Vague. Q Ambiguous. Objection.
Did you -- did you review any statistical reports in preparing your -- in preparing your report for this case? MR. LEE: Objection.
Vague and ambiguous as to the term statistical. Q A You can answer. Well, what do you mean by a statistical report? Q Did you review lists of -- reports of
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recruiting numbers, for example? MR. LEE: Vague as to time. Q General Laich, just one point, when your counsel makes an objection, unless he directs you not to answer the question, you're still required to answer the question. A Okay. Specifically in preparing the report Objection.
there is no report that I drew on to bear on my report. Q I'd like to direct your attention for one minute -A Well, let me just clarify that a little bit. In clarifying my answer, I would point out that much of what I talk about in my report reflects policies and programs put together by the Department of Defense and funded by Congress to enhance recruiting, retention, and readiness that cut across all of the services. I have been involved in the
creation and execution of a number of those policies, and those policies are intended to materially enhance our manning the force and our fighting and winning the nation's wars. Q General Laich, I'm going to stop you for a
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minute. MR. LEE: Wait. I would
ask that the witness be allowed to finish his answer. MS. WALKER: But the The
witness isn't answering the question. question was -MR. LEE:
That doesn't
mean you interrupt him in the middle of his answer. MS. WALKER: MR. LEE: It does. You can
follow-up afterward or redirect him or ask for a more specific answer, but I would ask that you don't interrupt in the middle of his answer. Q A Q A You may finish. No, I'm not finished. I said you may finish. Oh. So given the fact that these programs
and policies are in place and funded in order to achieve these objectives of manning the force and fighting and winning the nation's wars, the reciprocal of this by denying these benefits to a cohort of the force adversely

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impacts readiness, retention, and recruiting of the force as a whole. There are
significant body of knowledge out there that says that the programs that are in place that are available to the spouses of same sex couples are viable in enhancing our efforts to man the force and to fight and win the nation's wars are working. There could be a
reasonable argument in my professional judgment that the exclusion of same sex spouses adversely impacts these same initiatives by their -- by virtue of their exclusion. Q General, you just testified to there could be a reasonable argument made for the position that you espouse. When I hear that language,
it suggests that a reasonable argument could be made on the other side. disagree? A I would not disagree, but in my professional judgment, my strong view based upon my 35 years of service and the work that I've done since leaving active service is that the discrimination that is inherent in the current application of Title 38 and DOMA
Would you

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adversely affects the U.S. military's ability to man the force at the maximum quality levels that we need, and to fight and win the nation's wars. Q Can you point to any reports that rely on statistical information that support that opinion? A Q No. General, I'd like to turn your attention to Paragraph 44 of your report for a minute. Paragraph 44 states a number, 66,000 gay lesbian service members. number come from? A That number can be found in the research and projections made by the Servicemembers Legal Defense Network. Q And did you review that research in preparing your report? A Q A Q Did I review the research? Yes, sir. No. How did you come up with the 66,000? a very specific number. A Yeah. That was a number that was offered and That's Where did that
put together and published by the


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questions and we can take a break for a few minutes. Were you surprised by the
definition that I provided to you about Title 38? A Q No. Your understanding when you prepared your report is that the Title 38 provisions of spousal -- of spouse applied only to veterans; is that correct? A That's correct. MS. WALKER: take a break. (Recess from 10:18 a.m. to 10:26 a.m. ) BY MS. WALKER: Q General Laich, I want to ask you a couple questions about some testimony you offered earlier about the 50 or so conversations that you had with -- I believe that your testimony was -- members of the military, but that may be not correct about Title 38. Can you tell Okay. We can
me, were those conversations with active duty members, reservists, or veterans, or was it a mixture of the three? A Q Clearly a mixture of the three. And what percentage would you say were
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veterans? A Q A Probably half veterans. And -Veterans or retirees, which is those no longer serving actively. Q I understand, sir. And with respect to the conversations you had with veterans or retirees, were any of those in the context of reenlisting? A Q A Q Yes. How many? Several. No more than three to five.
So based on what you've just explained, would you -- would it be fair to say that the 50 conversations that we talked about before, 30 or so were with respect to either active duty military members or with veterans or retirees who were considering reenlisting?
A Q
That's a ballpark approximation. But it wouldn't have been all 50; is that correct?
A Q
That's correct. I'd like to go through some specific paragraphs in your report, and you're welcome to refer to Exhibit 2 as we do that.

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Paragraph 10 of your report references service members in legal same sex marriages. Do you have any data related to the number of service members in legal same sex marriages? A Q No. How would you define a legal same sex marriage? A A same sex marriage that occurs in a -- one of the states that recognizes marriage as a institution. I believe there are 10 states I'm not sure of that.
now that do so. Q
But you know it's not all of them; is that correct?
A Q
Yes, that's correct. So if someone lived in a state, let's take Virginia for example, that didn't recognize same sex marriage, but they were married in Canada, would you consider that a legal same sex marriage for the purposes of your report?
A Q
For the purposes of my report, no. For the purposes of any opinions that you express in the report?
No.
My report was framed by U.S. law and
U.S. citizens. Q So would you admit that if DOMA and Title 38

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didn't exist, that it's very possible that married, same sex couples would be treated differently based on their state of residence? MR. LEE: Lack of foundation. A Q I don't know. Well, you just testified that someone living in Virginia who was a same sex couple living in Virginia who had been married in Canada, so it was a valid marriage, we can presume it was a valid marriage, living in Virginia that that's not the same as a legal -- you would not consider that a legal same sex marriage for the purposes of your report; is that correct? A For the purposes of the report I did not encompass marriages in other countries. Q A Okay. I restricted my -- the scope of my report to the United States, the 50 jurisdictions that can grant marriages and those that do or don't. Q I'll restate by question. Assume for the Objection.
Calls for speculation.
purposes of my question that a couple is


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living in Virginia, they're domiciled in Virginia, and they were married in New York. They're a same sex couple. Would you
consider that a legal same sex marriage for the purposes of your report? A Is New York one of the states that sanctions same sex marriage? Q A Q It is. Yes. You would consider that a legal same sex marriage? A Q Yes. And do you know whether that understanding is supported by U.S. law? A Q No. And do you believe that states have the ability to define marriage? A Q I believe that that is the law. Okay. Did you consider issues regarding
disparity treatment among states with respect to same sex marriages in drafting your report? MR. LEE: Relevance. Q You can answer.
Objection.
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No, I didn't think it was in the scope of the report and the charter that I had as an expert witness in this case.
One of the principles that you discuss in your report is cohesion; is that correct?
A Q
Yes. And is it fair to say that uniform treatment can foster cohesion?
A Q
Yes. And in reaching that conclusion, did you consider the fact that not all 50 states treat same sex marriages equally?
No.
I thought that it was outside of the
scope of my expert testimony in this case. But I can tell you that I have spent 35 years looking at military organizations where I do have protection -- professional expertise assessing cohesion and the impacts that discrimination and disparate treatment among members of military organizations has on cohesion. Q So if the effect of disparate treatment among states for same sex marriages had the effect of allowing certain same sex spouses the availability of benefits absent Title 38 and

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DOMA, but other same sex spouses would not be entitled to those benefits, would you consider that uniform treatment? A I'm sorry, that's a complex question. you restate it? Q Yeah. Sure. So let's assume that the Could
variety of laws with respect to same sex marriages in different states creates a situation where -- strike that. Let me just confirm, you didn't consider the impact, the potential impact of the varying laws among states with respect to same sex marriage in your report; is that correct? A Q That's correct. And you didn't consider that in your assessment of cohesion? A The assessment of cohesion that I made in my report was limited to cohesion within the military and in military formations. Q But in the treatment of same sex marriages, one question would be whether all same sex marriages are treated equally; isn't that correct? A I think that's a social, a public issue
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that's outside of my professional expertise, and I would not venture into that speculation or hypothetical in the context of this expert testimony. The context and the framework and
the parameters of my expert testimony here with regard to cohesion and equality is with regard to the military, military formations, and our ability to man the force and fight and win the nation's wars, and cohesion has, and equality and discrimination have an impact on all of those objectives. Q If certain same sex spouses, certain same sex couples were -- sorry, certain same sex married couples were allowed benefits and others were not, would that have a detrimental effect on cohesion? A Were they the same sex couples legally married, recognized in one of the states that has the authority to recognize marriages? Q Well, that's my -- take all of the same sex married couples in the country, and assume -A Q Legally married? Yes, legally married, in a state -- they were legally married in a state that allows same sex marriage. They may not live in a state

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that recognizes same sex marriage. legally married.
They were
If some of these couples
were entitled to benefits, military benefits or veterans benefits, and some of them were not, could that have a detrimental effect on cohesion? A Yes. Any discrimination, any unequal
availability or application of benefits within a values-based organization like the United States military adversely impacts morale, cohesion, and discipline. Q Referring back to Paragraph 10, you said that -- I believe that you said you didn't have any data related to the number of service members in legal same sex marriages; is that correct? A Q That's correct. Are you aware of any studies or reports that quantify the fact that denying benefits to service members who are in legal same sex marriages discourages enlistment? A I am aware of the reciprocal, which is that the United States Government and the Department of Defense has gone to great lengths to make various benefits and policies

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supporting spouses available to heterosexual spouses, and most of that is done in order to recruit and retain service members in our military. And I think that that is the
resource that applies here. Q But are you aware of any studies or reports that quantifies the discouragement that you testified to in Paragraph 10? A Q No reports, but I have anecdotals. Okay. And do you have any empirical data
that support your position in Paragraph 10? A Q A No. Other than the reciprocal.
What do you mean when you say that? When I say the reciprocal, again, the Department of Defense and Congress has gone to great lengths to create programs, benefits, and policies to support spouses and families in an effort to man the force and fight and win the nation's wars. When the
policies and benefits that are put into place are there, the purpose is to advance these issues. The exclusion and discrimination of
some service members and/or their families from receiving these benefits flies in the face of the logic of having the benefits for

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the bulk of the force. Q Did you rely on any empirical, any empirical data or any studies or reports that reported empirical data for your opinion in Paragraph 10? A Q No. Moving on to Paragraph 11. question: Again, the same
Did you rely on any empirical
studies or reports to form the basis of your opinion in Paragraph 11? A Q Again -The question -- the question is whether you relied on any empirical reports or studies to form the basis of your opinion for Paragraph 11? A Q No. And are you aware of any empirical studies or reports that quantify the decreased likelihood that existing service members will reenlist in light of DOMA or Title 38? A Q No. In Paragraph 11, it actually goes on to Page 3, one of your statements is that Title 38 and DOMA destroy the peace of mind service members require to complete their

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mission. A
What do you mean by this?
The military has a program called family support groups that support families of deploying soldiers prior to deployment, while deployed, and the post deployment phase. DOMA and Title 38 -- DOMA precludes these same sex spouses from participating in these programs. And there is Army policy that says
in justification for the Army family -- for the family support groups, AR 608-1, that says that soldiers in theater are more effective when they can focus on their job and not be concerned with issues at home with their families or spouses. And I have been
deeply involved prior to my retirement with these family support groups, and they are incredibly effective in doing exactly what they are intended to do. Q In the sentence I just read you used the word destroy, do you mean completely remove? A Destroy, diminish. diminish, decrease. I don't -- it could be We're into nuance and
semantics, perhaps, but decrease or diminish would be a word, an alternative word with which I could -- with which I could agree.

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Title 38 is harmful to the military. the basis for that opinion? A It adversely impacts morale, cohesion,
What's
discipline, retention, our ability to man the force with the highest quality soldiers, sailors, airmen, and marines that we can, and adversely impacts our ability to fight and win the nation's wars. I can not in my
professional experience or my study of those issues over the past 40 years identify a single benefit that accrues to the military in our effort to man the force and fight and win the nation's wars, a single benefit that accrues to the military by the application of Title 38 and DOMA as they currently exist. Not a single one. Q Do you disagree that cost savings can be a benefit generally? A I think that -- are there any empirical -- I don't know of any empirical studies that does a cost benefit related to the application of Title 38 and DOMA. Q Well, you already testified that your report is not based on empirical studies; is that correct?

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A Q
You've made point of that. And it wasn't my -- my question was, can cost savings be a benefit?
To -- cost savings, represented by what? denying? By what? What type of savings?
By
My question is generally speaking, can cost savings be a benefit? That's my question.
I think it's almost a rhetorical question. By definition cost savings can be a benefit. It's a vague question that by definition the answer is generally yes.
And if something were to promote uniform treatment, can that also be viewed as a benefit?
If something promoted uniform treatment, it's a vague question, but I'll answer generally yes.
I'd like to turn to Paragraph 16.
In
Paragraph 16 you state, Title 38 and Section 3 of DOMA by denying federal spousal benefits to same sex spouses of service members and veterans makes the military's task of manning the force and fighting and winning the nation's wars even more difficult. you measure this difficulty?
How do

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My own experience in 35 years of looking at the effects of discrimination in organizations that espouse to be values based and paragons of equality who, as a result of policies like Title 38 and DOMA, in fact are executers of discrimination and other policies that adversely effect, again, this morale, cohesion, discipline, and credibility that are endemic to a military organization. Many people who have never served in a military organization don't understand the sacrifices that are made, not only by the service members but also by the families. And the sacrifices on the part of both parties have been acknowledged not only by the nation but also by the Department of Defense, and that's why a number of programs have been put together that are denied to spouses of same sex service members, same sex marriage spouses of service members.
And you don't have any studies or reports that support your opinion in Paragraph 16, do you, as they specifically relate to Title 38 and DOMA?
I'm not aware of any studies.

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example, one of the big selling points for military recruitment today is military educational benefits. If military
educational benefits were to be dramatically decreased, it would have an impact on the propensity to enlist. These are veterans
benefits, just as the benefits we're talking about in terms of spousal support are benefits that influence the decision to enlist and to be retained in the military. Q A And -We sell as part of the recruiting process, we sell veterans benefits. of the package. Q A Q But it's a part of a package, correct? It is. And there are many factors that go into the decision? A Q There is. There are. They're a big piece
And do you have any information or studies that relate to, for example, the effective impact of educational benefits versus spousal benefits?
I'm not aware of any studies that have been done.


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Afghanistan at the height of both of those wars. So it's a complex formula. There's
not a straightforward answer. Q Do you have any information about the comparative effect of the rising -- the fatality rate on recruitment versus the effect of Title 38 and DOMA, Section 3? A I have seen data on the effect of fatality rates in Iraq and Afghan -- and it's effect on recruiting. I have not seen any studies
done that reflect the impact of Title 38. Q And do you recall in your review of those studies regarding the impact of the fatality rate, was there a percentage assigned or how was that measured? A It reflected the propensity to enlist at certain benefit rates. And what we did in
2005 to 2007 was dramatically increased the recruiting and retention bonus budgets that were paid primarily in the Army and the Marine Corps. As a matter of fact, I believe
in 2005 70 percent of those enlistees coming into the Army received enlistment bonuses that averaged more than $18,000. So this is
the way the military has dealt with this.


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And most people who have not served in the military or are not familiar with these kinds of issues are not sensitive to and don't realize the impact that they have on young people's decision making process. $18,000 to
a young unemployed person here in center city Cleveland means altogether a different thing than someone in Brookline in Boston, Massachusetts. Unfortunately, most of
America doesn't give much thought to that. Q You, in Paragraph 19, you say that Title 38 and DOMA are detrimental to military recruitment, but you don't have any way quantifiably to measure DOMA's or Title 38's affect on military recruitment, do you? A Other than my experience in 35 years in the military and my subsequent involvement after my retirement that leads me to a strong professional opinion that it adversely affects military recruitment. Q A Q And that's your opinion; is that correct? That's my strong professional opinion. Could reasonable people disagree about that opinion? MR. LEE:
U.S. LEGAL SUPPORT
Well,

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In this case, though, based on my expert opinion and my 35 years of service in the military, I can make that assessment. Q So I was asking you about quantitative studies and your response was in part to talk about the congressional determination of these programs, and that that determination, in your opinion, must have provided a benefit. testimony? A Q Yes. Why is it that you link Congress' action in this circumstance to a determination that the programs must provide a benefit? Do you have Is that a fair assessment of your
quantitative information that supports that opinion? A It is, I've read a number -- as a matter of fact, it's referenced in the amicus brief, I don't think I referenced it in mine, that the family support groups, for instance, the Department of the Army has said that they make a positive impact on readiness. There
are a host of documents that are available publicly from the recruiting command that identify the benefits, the merits, and laud

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[Page 86]
a heterosexual spouse would get, I disadvantage myself and my family situation. Q To Title 38 wouldn't have any impact on the immediate availability or not of spousal benefits? A No. It's a future security. It's a bet
you're making, just as we do with Social Security or retirement benefits or anything else. If I sit there and I know that as an
actively serving member my -- if I become a veteran, my spouse, my same sex spouse is going to be denied those benefits that may be available to him or her if I choose to seek other employment for which I am qualified, I am disadvantaging myself and my spouse and my family's security by remaining in the military. And in many cases, these may be
highly qualified, highly valuable, hard to replace, expensive to train service members. And again, going back to cost, there's a cost associated with that. Q Are you aware of any studies that quantify the number of, for example, highly qualified gay and lesbian service members? A I am not aware of any studies.
U.S. LEGAL SUPPORT
I have a
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smattering of anecdotals, but no studies of which I am aware. Q A Okay. But I go back -MR. LEE: question on the table. Q In Title 38 you -- or sorry, excuse me, in Paragraph 28 you say, in my experience service members, particularly those deployed in combat zones, are more likely to perform well if they know that their families are being taken care of. There's nothing in DOMA There's no
or Title 38 that would preclude a family from being taken care of, for example, they may have other resources; isn't that correct? A They have a unique set of challenges that they're presented with that 99.5 percent of America doesn't even know about in terms of sacrifice and uncertainty. So, yes, are How
there other resources available to them? comfortable do we feel as Americans having
the spouses of deployed soldiers going to a food bank or whatever? Is there -- are there Yes. I
other resources available, yes.
think, though, that we as a country and we as


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a military have an obligation, just as we espouse, to take care -- to take care of soldiers and their families. Q But my question was that Title 38 and DOMA, I guess particularly Title 38 which doesn't even apply in the active duty context, they don't preclude that a service member's family might be well taken care of? A DOMA does or Title 38 does in the context that active component service member's same sex spouses cannot participate in family support groups. Q A Well, Title 38 doesn't preclude that. Title 38 operates under AR 600 -- 608 -well, Title 38 doesn't. AR 608-1 does
operate under DOMA, though. Q A same sex spouse of a service member may have his or her own job; isn't that correct? A Q Oh, that's true, and often does. So they very well could be well taken care of; isn't that correct? A We're not only talking about the financial situation, we're talking about emotional care, we're talking about psychological care, we're talking about support networks that are

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[Page 89]
not available to most citizens, because most people don't realize that most Army spouses do not live where they grew up. The Army or
the Navy or the Air Force or the Marines have moved them around all over the country. the concept of American gothic where the family, the extended family is available, doesn't exist necessarily in the military other than the structures that are put together. So there are resources available, So
but many of the resources that are available and structured under military policy are not available, specifically the family support groups, to same sex spouses of deployed service members. Q Okay. In Paragraph 30 you cite the U.S. Army
FRG Leader Handbook, you cite the 2010 edition. The 2002 edition was attached to Can you tell me which one you
your report.
relied on in preparing your report? A Q I believe 2010. Okay. And do you have any idea why the
2002 version was attached to your report? A Q No, I don't. And are you aware of any differences between
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one of your positions.
So are the -- the
conclusions of your report based on your understanding that if Title 38 and DOMA were repealed, same sex couples across America would be able to go to a state that permits same sex marriages, get married in that state, and then be able to receive marital benefits as service members or veterans regardless of their state of residence? A That's an awfully long question. Could
you -- as I understand your question, you're saying that if Title 38 and DOMA were repealed, and you had a same sex couple that was legally married in a state, would they then have -- would the spouse, the same sex spouse of the service member or veteran have the same rights as heterosexual spouses? Q That's right. And the only caveat is all of
that was correct, but the final part of that is regardless of their place of residence? A My understanding of the law with regard to same sex marriage would have me believe that that is the case, although you're -- I believe you're asking that also in a broader civil situation, not just the military, or

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just the military. Q I'm asking if the conclusions in your report, so as they relate to the military. asking that question. A Yes. As I understand your question, and I I'm
relayed it as I understood it, and my understanding of the marriage laws in the various states, the answer is yes. Q So if someone lived in Virginia, which does not recognize same sex marriage, but they had been married in New York, your understanding -A Q Wait. They're living in -- who are they?
A same sex married couple who was married in New York, a state that recognizes same sex marriage, but they are living in Virginia, is it your understanding that the couple living in Virginia, should Title 38 and DOMA be repealed, that they would be entitled to receive marital benefits as service members and veterans while living in Virginia?
Yes, because the benefits that are currently denied them are under federal law, so my understanding is yes, that that same sex couple that is a -- includes a veteran, if

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DOMA and Title 38 were not applicable, were not on the books, would be eligible for veterans benefits, the spouse would be, the same sex spouse. Q And you relied on that understanding in preparing your report; is that correct? A Q Yes. You briefly mentioned that Servicemembers Legal Defense Network; is that correct? A Q A (Nods head.) Can you tell me about that organization? The Servicemembers Legal Defense Network is about a 10-year-old organization headquartered in Washington, D.C. The
executive director is Aubrey Sarvis, and the organization is -- was established to, first of all, give legal counsel pro bono to service members who were under investigation and -- or subject to discharge under Don't Ask, Don't Tell, and also to advocate for the repeal of Don't Ask, Don't Tell. It's a
nonprofit organization, and that's the description of it. Q And so the people that SLDN serves are primarily gay and lesbian; is that correct?

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A Q
Yes. And we talked at the beginning of today about the 50 or so conversations with either, I think, military members or veterans, and you had mentioned that those were in connection with your activities with SLDN; is that correct?
A Q
Yes. And would you say that most or all of the service members and veterans that you've come in contact with through SLDN have been gay or lesbian?
A Q
The majority have been, yes. And how many service members have you interacted with in connection with SLDN?
Oh, when you say interact, can you be more specific?
Q A
Had one-on-one conversations with? Oh, 100, 200, one-on-one conversations, many over four or five years.
Q A Q A
More than 50? Absolutely. A lot more than 50? Oh, let's say between 50 and 150. I know,
when you say one-on-one conversations, then


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you go to another level in describing the question, was it a three-minute conversation in an elevator or two hours in a coffee shop. I -- 150, 250, meaningful one-on-one conversations. Q Okay. And I know I've asked this question a
number of times in a number of different ways, but I just want to make sure the record is clear. In preparing your report for this
case, you did not review any statistical studies that support your opinions with respect to Title 38 and DOMA; is that correct? A I did not review any specific studies specifically to generate this report. Q Okay. And did you review any empirical
studies or other type of studies with respect to Title 38 and DOMA? A No. MS. WALKER: further questions. MR. LEE: short break? MS. WALKER: Sure. Can we take a I have no
(Recess from 11:59 a.m. to 12:15 p.m. )


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Title 38 or with DOMA? A Q No. And then you also mentioned, I believe it's the Army Staff College; is that correct? A Q Command and General Staff College. Command and General Staff College. you. And did your education at the Command and General Staff College deal at all with the definitions of spouse in Title 38 or with DOMA? A Q No. Did your education at the Kennedy School of Government deal at all with the definition of spouse in Title 38 or with DOMA? A Q No. You also mentioned that you, from 2002 to 2006 in particular, you -- part of your responsibilities involved reviewing a number of reports; is that correct? A Q Yes. Did any of those reports reflect information about the sexual orientation of any of the 5,000 soldiers who were under your command? A No.
Thank
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EXHIBIT E
Army Regulation 608-1

21 July 2006 Effective date: 21 August 2006 UNCLASSIFIED Personal Affairs
Army Community Service Center SUMMARY of CHANGE

AR 608-1 Army Community Service Center
Thus rapid action revision, dated 21 July 2006-* Requires Army Community Service Centers to establish an effective unit services strategy as part of its active partnership with unit commanders (para 1-9). * Authorizes QACS management decision package resources for the Army Community Service Center mobilization and deployment support program (para 3-1). * Expands the Army Community Service Center supplemental mission nonappropriated funds account to include establishment and management of a separate supplemental mission account for family readiness groups (para 3-2). * Clarifies that the purpose of Army Community Service Center participation in Soldier readiness processing is to identify and subsequently contact families that are geographically separated or may have special deployment related needs (para 4-3). * Directs Army Community Service Center to offer family readiness groups assistance and support in the following areas: expertise and support, training, family readiness groups leader forum, family readiness groups orientation program, resource materials, meeting facility, homecoming and reunion activities and information and referral (para 47). * Establishes the family readiness group as an official Army program, established in accordance with AR 600-20, to provide activities and support that encourages self sufficiency among its members by providing information, referral assistance and mutual support (para 4-7). * Establishes Army family readiness group operations as official regulatory guidance and policy on family readiness group management (appendix J). This administrative revision, dated 22 December 2004-* Makes changes in accordance with Department of the Army General Orders 2002-3 and 2002-4 (throughout). * Reflects establishment of the seven regional directorates of the Installation Management Agency (IMA) (paras 2-3, 2-7, 2-8, 3-1, 4-10, and 5-20). * Updates DA Form 7419-R, October 2004. This revision, dated 28 July 2004-* Updates policy for reimbursement of incidental expenses (para 5-10). * Adds parking fees to reimbursable expenses (para 5-10).

b. Completion of DA regulation.
Form 7419-R as outlined in para 2-12 of this
I-3. Management control evaluation process See para 2-12 of this regulation for a description of the management control evaluation process.
Appendix J Army Family Readiness Group Operations

J-1. Concept and purpose a. The FRG is a unit commander's program formed in accordance with AR 600-20 . Normally FRGs will be established at the company level, with battalion and brigade levels playing an important advisory role. FRGs are not a morale, welfare, and recreation program; a NAFI: a private organization; or a nonprofit organization. b. An FRG is a command-sponsored organization of Soldiers, civilian employees, family members (immediate and extended) and volunteers belonging to a unit. FRGs will provide mutual support and assistance, and a network of communications among the family members, the chain of command, and community resources. FRGs will assist unit commanders in meeting military and personal deployment preparedness and enhance the family readiness of the unit's Soldiers and families. They will also provide feedback to the command on the state of the unit "family." c. Family readiness is the mutual reinforcement and support provided by the unit to Soldiers, civilian employees, and family members, both immediate and extended. d. The rear detachment commander is the unit commander's representative at home station while the unit is deployed and is the FRG link to the deployed unit. All logistic support for FRGs (for example, meeting rooms, nontactical vehicle use, office equipment and computers, newsletters, telephones, and volunteer support) is authorized by the rear detachment commander during deployment. e. The garrison ACS Center and RC Family Programs Office will assist unit commanders in establishing successful FRGs by providing expertise, classes, training, and support to FRGs and the FRG leadership, as outlined in AR
608-1 .
f. Unit commanders will ensure that their FRGs appeal to all service members, civilians, and family members regardless of rank structure or family size, composition, language spoken, and other characteristics. Commanders will seek FRG leaders who are particularly adept at energizing both officer and enlisted corps' families. FRGs that do not reflect their unit's demographics or have a high level of family participation will be reevaluated to address impediments that exist toward creating a balanced and representational FRG. Typical issues could be FRG meeting times, unmet child care needs, FRG activities that do not match FRG member needs, FRGs that do not provide training programs relevant to FRG family needs, and other family support issues. J-2. Family readiness group roles and functions a. The FRG mission is to (1) Act as an extension of the unit in providing official, accurate command information. (2) Provide mutual support between the command and the FRG membership. (3) Advocate more efficient use of available community resources. (4) Help families solve problems at the lowest level. b. The type and scope of FRG mission activities will depend on a number of factors such as
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100 and AR 1-101

J-10. Unsolicited donations to a Reserve Component The procedures for accepting donations or gifts for an RC may differ, depending upon location and activation status. For RC units attached to an Army garrison or installation, see instructions above regarding the acceptance authority for accepting unsolicited donations intended for FRG support. For guidance regarding gifts intended for an RC not attached to a garrison or installation, see AR 1-100 and AR 1-101. Commanders are also encouraged to seek guidance from their ethics counselors. For specifics, refer to Reserve Command regulations. J-11. Private organizations Private organizations (POs) have substantially more authority than FRGs to conduct fundraising and to engage in social activities in accordance with AR
210-22 , AR
600-29 , and DOD 5500.7-R . Individuals may establish POs that share the
same family readiness goals and objectives as FRGs. To prevent potential conflicts of interest, if such POs are established, managers or board members of the PO will not also be placed in FRG leadership positions. It is essential that commanders and Government personnel treat such POs in the same manner as all similarly situated POs. Commanders may not direct the establishment or the activities of a PO and must treat POs according to the requirements of AR 210-22, AR 600-29, and DOD 5500.7-R, as applicable. Commanders will seek guidance from their servicing Judge Advocate's office and ethics counselor regarding private organization issues. J-12. Commercial sponsorship FRGs may not enter into commercial sponsorship agreements. Commercial sponsorship is an agreed upon arrangement under which a business provides assistance, funding, goods, equipment, or services in exchange for public recognition or other promotional opportunities on the installation. In accordance with AR
215-1
and DODI 1015.10 , commercial sponsorship is generally only authorized for official MWR programs and events. J-13. Official information Official FRG information relates to command and mission-essential information that the commander believes families need to be better informed. Official information relates to unit mission and readiness. It includes training schedule information, upcoming deployments, unit points of contact, and the chain of concern. Official information is subject to all applicable regulations governing its use and to guidance in AR and 5 USC 552(b).
25-55
Glossary
Section I Abbreviations
ACS - Army Community Service ACSIM - Assistant Chief of Staff for Installation Management ADP - automated data processing AFTB - Army Family Team Building APF - appropriated fund AR - Army regulation AVCC - Army volunteer corps coordinator
Case 2:12-cv-00887-CBM-AJW Document 56-5 AVCC - Army volunteer corps coordinator

CG - commanding general COE - Chief of Engineers CTA - common table of allowances DA - Department of the Army
DMWR - director, Morale, Welfare, and Recreation DOD - Department of Defense DODD - Department of Defense Directive DODI - Department of Defense Instruction DSN - Defense Service Network EEO - equal employment opportunity FAC - family assistance center FRG - family readiness group FSSA - family subsistance supplemental assistance HQ - headquarters ID - identification IMA - Installation Management Agency ISR - installation status report IVC - installation volunteer coordinator MACOM - Major Army Command MDEP - management decision package MOU - Memorandum of Understanding MWR - Morale, Welfare and Recreation NAF - nonappropriated fund NAFI - nonappropriated fund instrumentality NEO - noncombatant evacuation operation OSD - Office of the Secretary of Defense Pam - pamphlet PCS - permanent change of station PO - private organization POC - Point of contact RC - Reserve Component SITES - standard installation topic exchange service SOP - standard operating procedure SSOs - Stability and Support Operations USACFSC - U.S. Army Community and Family Support Center USC - United States Code VAC - Volunteer Advisory Council
Section II Terms
accepting official A military member or government employee, or NAF employee who accepts the
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services of volunteers. dependent-abuse offense A dependent-abuse offense is conduct by an individual while a member of the Armed Forces on active duty for a period of more than 30 days that involves abuse of the spouse or dependent child of the member that is defined as a criminal offense in accordance with Sections 801-940 (reference b), title 10, United States Code or other criminal code applicable to the jurisdiction where the act of abuse is committed. Examples of dependent-abuse offenses are sexual assault, rape, assault, battery, murder and manslaughter. (This is not an exhaustive or exclusive listing of dependentabuse offenses but is provided for illustrative purposes only.)
dependent child An unmarried child, including an adopted child or a stepchild, who was residing with the member at the time of the dependent-abuse offense, and who is: a. Under 18 years of age; b. Eighteen years of age or older and is incapable of self-support because of mental or physical incapacity that existed before the age of 18 and who is or was at the time of the punitive or adverse action dependent on the member for over one-half of the child's support; or c. Eighteen years of age or older, but less than 23 years of age, and is enrolled in a fulltime course of study in an institution of higher learning approved by the Secretary of Defense and who is or was when the punitive or adverse action occurred dependent on the member for over one-half of the child's support. exceptional family member A family member with any physical, emotional, developmental or intellectual disorder that limits the individual's capability to engage in pursuit with peers and requires special treatment, therapy, education, training or counseling. family member The following comprise definitions of a family member: a. The spouse of a sponsor b. Unremarried widow or widower of a member or former member of a uniformed service. c. Unmarried child of a sponsor, including an adopted child, stepchild, foster child, or ward, who either d. Has not passed his or her 21st birthday; e. Is incapable of self-support because of a mental or physical incapacity that existed before that birthday and is (or was at the time of the member's or former member's death) in fact dependent on the sponsor for over one-half of his/her support; or f. Has not passed his or her 23rd birthday, is enrolled in a full-time course of study in an institution of higher learning approved by a Secretary of an executive department specified in Section 1073, Title 10, United States Code, and is (or was at the time of the member's or former member's death) in fact dependent on the sponsor for over one-half of his/her support. g. A parent or parent-in-law of a sponsor who is (or was at the time of the member's or former member's death) in fact dependent on the sponsor for one-half of his or her support and residing in the sponsor's household. family readiness group An organization of family members (both immediate and extended such as fathers, mothers, aunts, uncles and so forth), volunteers and Soldiers belonging to a unit, that
Case 2:12-cv-00887-CBM-AJW Document 56-5 Filed 11/06/12 Page 7 Page mothers, aunts, uncles and so forth), volunteers and Soldiers belonging toof a7 unit, that ID #:880
together provide an avenue of mutual support and assistance, and a network of communication among family members, the chain of command and community resources. lending closet service The temporary loan of household items to assist Soldiers and their families. nonappropriated fund instrumentality A U.S. Government organization and fiscal entity that performs essential Government functions. It is not a Federal Agency. It acts in its own name to provide, or assist other DOD organizations in providing MWR and other programs for military personnel, their families, and authorized civilians. It is established and maintained individually or jointly by two or more DOD components. As a fiscal entity, it maintains custody of and control over its NAFs, equipment, facilities, land, and other assets. It is responsible for the prudent administration, safeguarding, preservation, and maintenance of those APF resources made available to carry out its function. With its NAFs, it contributes to the MWR programs of other authorized organizational entities, when so authorized. It is not incorporated under the laws of any State or the District of Columbia and enjoys the legal status of an instrumentality of the United States. NAFIs are not "persons' subject to federal trade and antitrust laws, and they are not subject to State regulation or control in the absence of specific authorization in a Federal statute." sponsor A person on active duty or who is retired from military duty, a member of the Army National Guard or U.S. Army Reserve when on active military duty, or a person employed by the Army as an APF employee. unit services strategy A service delivery approach to support Soldiers and families through their units. Goals include connecting each military unit with ACS services; providing a visible ACS staff member for unit chain of command on ACS services; identifying and addressing Soldier and family needs effectively and quickly; and enhancing unit skills on how to support Soldiers and families.
Section III Special Terms

This section contains no entries.
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Western Division ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

11 BIPARTISAN LEGAL ADVISORY 12 GROUP OF THE U.S. HOUSE OF REPRESENTATIVES, 13 Intervenor-Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S.

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reasoning or methodology properly can be applied to the facts in issue.

12 turns on the following determinations by the trial judge: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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Case 2:12-cv-00887-CBM-AJW Document 56

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Case 2:12-cv-00887-CBM-AJW Document 56

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Case 2:12-cv-00887-CBM-AJW Document 56

Filed 11/06/12 Page 24 of 26 Page ID #:758

Case 2:12-cv-00887-CBM-AJW Document 56

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Case 2:12-cv-00887-CBM-AJW Document 56

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/s/ Mary Beth Walker Mary Beth Walker

Case 2:12-cv-00887-CBM-AJW Document 56-1 #:761

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Case 2:12-cv-00887-CBM-AJW Document 56-1 #:762

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Case 2:12-cv-00887-CBM-AJW Document 56-1 #:763