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Secretary Shinseki requests rescheduling oral argument in DOMA challenge Cardona v. Shinseki

DOMA trials

By Scottie Thomaston

Cardona v. Shinseki, a challenge to Section 3 of the Defense of Marriage Act, is on appeal in the federal Court of Appeals for Veterans’ Claims. The case has been ongoing for over two years now, and the Justice Department, along with the Department of Veterans’ affairs, are no longer defending Section 3 of DOMA against challenges brought by military servicemembers seeking their spousal benefits.

The case is on an expedited track at the appeals court as per an August 13 order by the court and oral argument is currently set for November 15.

Now, Secretary Shinseki is asking the court to reschedule its oral argument. The request was made because “the lead and only attorney assigned to this case to represent the Secretary, will be out of the country and therefore unavailable to appear before this Court during the week of November 12 to November 16, 2012.”

According to the filing, the attorney “is cognizant that any delay or postponement of oral argument in this matter due to his prior and personal commitments impacts all parties involved. In that regard, he has communicated with counsel for Appellant and counsel for Intervenor. Counsel for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) has indicated that he does not oppose this motion. Counsel for Appellant has not yet advised the undersigned of his position.”

The appellant seeking spousal benefits, Carmen Cardona, filed a brief opposing the request to the extent that the argument might be rescheduled to a later date, but agreeing to not oppose it if argument is set earlier than November 15. She cites three reasons the court should not reschedule the case for a later date: (1) the fact that the case is expedited (2) the fact that other lawyers at the Department could participate in oral argument (3) “even with expedited treatment at both the BVA and this Court, it has been nearly two-and-a-half years since Ms. Cardona was married under the laws of Connecticut and applied for additional dependency benefits for her spouse. Deprivation of these benefits works an economic hardship on Ms. Cardona and her family.”

UPDATE: Oral argument has been rescheduled for November 29.

h/t Kathleen for these filings

Secretary Shinseki’s request to reschedule:11-3083 #166

Appellants’ response:11-3083 #168

Order rescheduling oral argument:11-3083 #171


  • 1. echamberlain  |  October 17, 2012 at 2:20 pm

    Do I understand correctly that VA's position is that an attorney's vacation should take priority over the fundamental rights of a veteran?

    If only one attorney is available, why did three of them sign the motion?

  • 2. lisa  |  October 17, 2012 at 2:44 pm

    How is it that BLAG can spend taxpayer dollars to pay legal fees in pursuit of a legal action that clearly discriminates against a group of taxpayer, specifically the LGBT community?

  • 3. devon  |  October 18, 2012 at 4:57 am

    Seems to me like BLAG and others defending DOMA are using delaying tactics in anticipation of a Romney election next month.
    Romney would order DOJ to begin defending DOMA again on immediately after taking office.
    That would likely delay consideration of DOMA lawsuits until at least 2014.

  • 4. Mike Ho.  |  October 18, 2012 at 12:46 pm

    <img src=""/>I'm not sure however if the legal fee is from the taxpayer dollars.. <img src=""/&gt;

  • 5. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 3:32 pm

    […] Shinseki then requested rescheduling oral argument to November 29, facing objections from Cardona, the plaintiff. Despite the fact that the case is on […]

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