Case 1:09-cv-11156-JLT

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, in his official capacity as the Secretary of the United States Department of Veterans Affairs; and the UNITED STATES OF AMERICA, Defendants. COMMONWEALTHS MOTION FOR SUMMARY JUDGMENT The Commonwealth respectfully moves, pursuant to Fed. R. Civ. P. 56(a), for summary judgment in its favor as to all of the counts asserted in its Complaint. In support of this motion for summary judgment, the Commonwealth relies upon the following documents, which are being filed simultaneously with this Motion: 1) Commonwealths Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 in Support of Commonwealths Motion for Summary Judgment; Memorandum of Law in Opposition to Defendants Motion to Dismiss and in Support of Commonwealths Motion for Summary Judgment; Affidavit of Robin Callahan; Affidavit of William Walls; Affidavit of Kevin McHugh; Affidavit of Dolores Mitchell; Civil Action No. 1:09-cv-11156-JLT

2)

3) 4) 5) 6)

Case 1:09-cv-11156-JLT

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7) 8) 9) 10) 11) 12) 13)

Affidavit of Stanley E. Nyberg; Affidavit of Michael Lamb, Ph.D.; Affidavit of Gary M. Segura, Ph.D.; Affidavit of Gregory M. Herek, Ph.D.; Affidavit of George Chauncey, Ph.D.; Affidavit of Nancy F. Cott, Ph.D.; and Affidavit of Jonathan B. Miller

The reasons for granting the Commonwealths motion are fully set forth in the Commonwealths Memorandum of Law identified above. REQUEST FOR ORAL ARGUMENT The Commonwealth believes that oral argument will assist the Court in resolving the significant constitutional issues presented by this motion. Therefore, the Commonwealth requests oral argument. Dated: February 18, 2010 Boston, Massachusetts Respectfully submitted: COMMONWEALTH OF MASSACHUSETTS MARTHA COAKLEY ATTORNEY GENERAL

/s/ Maura T. Healey Maura T. Healey, BBO No. 640856 Jonathan B. Miller, BBO No. 663012 Christopher K. Barry-Smith, BBO No. 565698 Assistant Attorneys General One Ashburton Place Boston, MA 02108 Tel: (617) 727-2200 Fax: (617) 727-5762 Maura.Healey@state.ma.us Jonathan.Miller@state.ma.us CBarry-Smith@state.ma.us

Case 1:09-cv-11156-JLT

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CERTIFICATION UNDER LOCAL RULE 7.1(A)(2) I, Maura T. Healey, hereby certify that I have conferred with counsel for the Defendants, Steven Bressler, with respect to this motion and have attempted in good faith attempt to resolve or narrow the issues raised by this motion. /s/ Maura T. Healey Maura T. Healey Assistant Attorney General

CERTIFICATE OF SERVICE I, Maura T. Healey, hereby certify that this document filed through the ECF system shall be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies shall be sent by first-class mail postage prepaid to: Mark A. Thomas 482 Beacon Street Boston, MA 02115 Proposed Intervenor

/s/ Maura T. Healey Maura T. Healey Assistant Attorney General