United States District Court For The District of Massachusetts

Case 1:11-cv-11905-RGS Document 56 Filed 10/28/13 Page 1 of 4
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. Plaintiffs, v. CHUCK HAGEL, in his official capacity as Secretary of Defense; et al., Defendants. ________________________________________
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS Plaintiffs respectfully submit this Application for an award of attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of Civil Procedure 54(d). In support of their Application, Plaintiffs submit the enclosed
declarations and Memorandum, and also state the following: 1. Plaintiffs in this case are individuals, each of whom had a net worth of less than $2,000,000 at the time this civil action was filed. 2. None of the Plaintiffs was an owner of an unincorporated business at the time this civil action was filed. 3. 4. 5. Plaintiffs are the prevailing parties in this case. The government's position was not substantially justified. There are no special circumstances that would make an award of fees against the government unjust. 6. Chadbourne & Parke LLP spent 350.2 hours in 2011, 173.4 hours in 2012, and 212.2 hours in 2013, and a total of 45.8 hours of paralegal time in its representation of Plaintiffs in this dispute. 7. Outserve-SLDN spent 110.4 hours of attorney time in 2011, 20.9 hours in 2012, and 46.5 hours in 2013 in its representation of Plaintiffs in this dispute.
8.
Chadbourne & Parke LLP spent more than 170 hours drafting and filing an amicus curiae brief in United States v. Windsor, No. 12-307, then pending before the Supreme Court. Although Windsor addressed the same issues that were presented in this case, Plaintiffs do not seek an award of fees and costs in connection with the amicus curiae brief.
9.
Chadbourne & Parke LLP and Outserve-SLDN will agree to be compensated at a rate of $187.26 per hour for attorney work in 2011, $190.24 per hour for attorney work in 2012, and $192.24 per hour for attorney work in 2013, and $100 per hour for paralegals, even though these rates are significantly lower than the rates to which it would be entitled given the knowledge, skill and experience of the attorneys who litigated this case.
10.
To avoid any potential disputes over the reasonableness of the time spent by Plaintiffs' counsel and paralegals, Outserve-SLDN discounted its hour biled by attorneys by 5%. Based on the hours and rates noted above, Plaintiffs seek an award of attorneys fees in the amount of $32,819.10 for Outserve-SLDN 's work.
11.
To avoid any potential disputes over the reasonableness of the time spent by Plaintiffs' counsel and paralegals, Chadbourne & Parke LLP discounted its hour biled by attorneys and paralegals by 5%. Based on the hours and rates noted above, Plaintiffs seek an award of attorneys fees in the amount of $136,737.49 for Chadbourne & Parke LLP's work.
12.
Plaintiffs also seek $350 in costs for Chadbourne & Parke LLP for paying the filing fee of the Complaint.
13.
Plaintiffs have assigned any interest they may have in these fees and costs to their pro bono counsel and ask the Court order payment be made directly to Chadbourne & Parke LLP and Outserve-SLDN.
14.
Plaintiffs therefore request an award of $137,087.49 in fees and costs be paid to Chadbourne & Parke LLP and an award of $33,492.20 in fees be made to Outserve-SLDN..
WHEREFORE, Plaintiffs respectfully request that this Court: GRANT its request for fees and costs, and GRANT any other relief the Court finds just, necessary or appropriate.
LOCAL RULE 7.1(A)(2) CERTIFICATION In accordance with Local Rule 7.1(a)(2), Plaintiffs' counsel conferred with counsel for the Government. The Government indicated it would like more time to consider this application, and may seek an extension of time to respond to this application. If made, Plaintiffs will not object to a reasonable extension request.
Respectfully submitted, /s/ Ian McClatchey Ian McClatchey, BBO No. 676664 IMcClatchey@Chadbourne.com CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-5303 (phone) (646) 710-5303 (fax)
/s/ John M. Goodman John M. Goodman JGoodman@SLDN.org David McKean DMcKean@SLDN.org SERVICEMEMBERS LEGAL DEFENSE NETWORK Post Office Box 65301 Washington, DC 20035 (202) 621-5401 (phone) (202) 797-1635 (fax)
/s/ Abbe David Lowell Abbe David Lowell ADLowell@Chadbourne.com Christopher D. Man CMan@Chadbourne.com CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036 (202) 974-5600 (phone) (202) 974-5602 (fax) Counsel for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that, on October 28, 2013, the foregoing was filed with the Clerk of the Court using the Courts CM/ECF system, which will send electronic notice of such filing to all participants in the case. /s/ Christopher D. Man Christopher D. Man
Case 1:11-cv-11905-RGS Document 56-1 Filed 10/28/13 Page 1 of 18
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
MEMORANDUM IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS Introduction Having prevailed in this action, Plaintiffs now seek as award of attorneys' fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of Civil Procedure 54(d). Plaintiffs filed their Complaint seeking declaratory and injunctive relief on October 27, 2011 challenging the constitutionality of the definitions of "spouse" and "surviving spouse" as used in Titles 10, 32 and 38, both as defined in those titles and as modified by the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7, to the extent those definitions prevented the military from treating legally married same-sex spouses as "spouses" for purposes of providing family support and benefits. On October 2, 2013, this Court agreed with the Plaintiffs and entered a final judgment holding that the terms "spouse" and "surviving spouse" as defined in Titles 10, 32 and 38 are unconstitutional to the extent they exclude legally married same-sex spouses. (Dkt. 55.) Because the Plaintiffs have secured the very judgment they sought from the Court, they plainly are prevailing parties for purposes of the EAJA.
This case is unusual because the Government conceded at the outset of the case that its decision to deny the Plaintiffs rights and force them to litigate the constitutionality of these statutes was not substantially justified. Indeed, the Government repeatedly advised the Court that it agreed with the Plaintiffs on the merits that these statutes were unconstitutional. (Dkts. 28, 28-1, 28-2, 37, 47 & 50.) But rather than uphold the Constitution, the Government chose to continue to apply the very statutes it told this Court were unconstitutional to the Plaintiffs, and thereby knowingly and purposefully inflicted a constitutional injury upon them. As a political matter, it is clear the Administration wanted to adopt a position that would respect the constitutional rights of legally married same-sex couples, but it refused to do so without the political cover of the Judicial Branch agreeing with its conclusion that such a result was constitutionally required. The Plaintiffs, however, were entitled to have the Executive Branch respect their constitutional rights regardless of whether it was concerned that it might not be politically popular. Whatever its political reasons for doing so, as a legal matter, the Government cannot maintain it was "substantially justified" in forcing the Plaintiffs to litigate the very constitutional claims the Government was telling this Court were indefensible. The very purpose of the EAJA was to aid persons like the Plaintiffs in securing their constitutional rights through litigation when the Government refused to otherwise respect their constitutional rights. See, e.g., INS v. Jean, 496 U.S. 154, 163 (1990) ("[T]he specific purpose of the EAJA is to eliminate for the average person the financial disincentive to challenge unreasonable government actions."). Statutory Background The Government provides numerous benefits and family support programs to active duty members of the military, veterans and members of the National Guard, and to their spouses, but
the definitions of the term "spouse" and "surviving spouse" in Titles 10, 32 and 38, as modified by DOMA, prevented the Government from recognizing a same-sex spouse as a "spouse." Each Plaintiff was legally married to someone of the same sex, and sought to have that person recognized as a "spouse", which would have made them eligible for a variety of benefit and family support programs. In each case, the Government refused to recognize the lawful samesex spouse as a "spouse." Plaintiffs brought this Complaint alleging the Government's refusal to provide them the same benefits as married couples with opposite-sex spouses was unconstitutional. Titles 10 and 32 define "spouse" as "husband or wife, as the case may be," 10 U.S.C. 101(f)(5), 32 U.S.C. 101(18), and Title 38 defines "spouse" as "a person of the opposite sex who is a wife or husband" and "surviving spouse" as "a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death," 38 U.S.C. 101(31), 101(3). Each of these definitions was subsequently modified by DOMA, which provided: 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. 1 U.S.C. 7. The Government's Unusual Litigation Strategy At the outset of this case, the Government concluded DOMA was unconstitutional and that it would not defend DOMA in Court, but it took the rather bizarre position that it would continue to enforce this unconstitutional statute to purposefully violate the constitutional rights of persons, like the Plaintiffs, for the sole purpose of manufacturing a judicial case that it wanted to lose on the merits. In United States v. Windsor, the Supreme Court described this as an "unusual position" and one that would be problematic if generally followed. 133 S. Ct. 2675, 2687-89 (2013). This strategy of purposefully violating constitutional rights, but then refusing to 3
defend the unconstitutional actions was first set out in a February 23, 2011 letter from Attorney General Holder to Speaker of the House Boehner. (Dkt. 29-1.) In that letter, the Attorney General advised the Speaker that he and President Obama had concluded DOMA was unconstitutional and the Executive Branch would no longer defend DOMA in court because no "reasonable arguments" could be made in its defense. (Dkt. 29-1 at 5.) Yet the Attorney General added: "Notwithstanding this determination, the President has informed me that Section 3 [of DOMA] will continue to be enforced by the Executive Branch." (Id.) The Plaintiffs found it startling the Executive Branch would purposefully violate the constitutional rights of members of the military and veterans for the sole purpose or creating a judicial case it believed was indefensible. In the Complaint itself, the Plaintiffs made clear:
Plaintiffs also seek an award of attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412. The government cannot maintain that its position in denying the Plaintiffs' claims for spousal benefits is "substantially justified" when the President and the Attorney General have acknowledged that DOMA Section 3 is unconstitutional. Like members of the Federal Judicial Branch, Executive Branch officials take an oath to uphold the Constitution. While the courts may have the last word as to whether a legislative enactment is constitutional, the political branches have the first word. And where, as here, the President and the Attorney General acknowledge a law is unconstitutional, they should not enforce it. In this case, the Executive Branch has enforced DOMA and specifically denied each Plaintiff spousal benefits on the basis of that statute. (Dkt. 1 5.)
It should be beyond question that the Framers designed the Constitution to prevent any branch of Government from violating the rights of our citizens. The Constitution is meant to restrict the political branches from violating the rights of the American people in the first instance, and not merely to create a legal remedy when the Executive Branch chooses to disregard the constitutional rights of its people. Approximately one month after filing the Complaint, Plaintiffs moved for summary judgment. (Dkt. 13). Plaintiffs subsequently consented to multiple requests by the Executive Branch to extend deadlines or stay the case. (Dkts. 26, 27 & 31.) Given that the President 4
already had determined that Section 3 of DOMA was unconstitutional as applied to same-sex couples who are legally married under state law, Plaintiffs hoped the Executive Branch would not contest the case or oppose the requested relief. (Dkt. 1 at 17-19). On February 21, 2012, the Executive Branch wrote this Court to explain: [T]he Department of Justice will not defend the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7, and Sections 101(3) and 101(31) of Title 38 of the United States Code under the equal protection component of the Fifth Amendment. (Dkt. 28; see also Dkt. 28-1 ("[T]he Attorney General recently has also concluded that 38 U.S.C. 101(3), (31) similarly classify on the basis of sexual orientation, . . . and that, consistent with his prior determination regarding Section 3 of DOMA, the Department will cease its defense of these provisions of Title 38 against challenges under the equal protection component of the Fifth Amendment.").)1 Just prior to delivering this notice to the Court, the Attorney General provided notice to the Speaker of the House, in accordance with 28 U.S.C. 530D. (Dkt. 28-2). The Attorney General explained: "McLaughlin presents a challenge, among other things, to provisions of Title 38 that are the equivalent of DOMA," and concluded those provisions "violate the equal protection component of the Fifth Amendment." (Id. at 2; see also id. at 1 (the "language of the Title 38 provisions is identical in material respects to the language of Section 3 of DOMA").) Further undercutting any constitutional defense to Title 38, the Attorney General advised:
The Government did not address the constitutionality of the definitions in Titles 10 and 32, apparently because it viewed the constitutional flaw in them as caused by DOMA. Plaintiffs understand the Government's position to be that nothing in the language of Title 10 and 32 would preclude, independently of DOMA, the recognition of a same-sex spouse as a "spouse."
The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justification for that distinction that could warrant treating these provisions differently from Section 3 of DOMA. (Dkt. 28-2 at 2.) Notwithstanding this finding that Title 38 is unconstitutional, the Attorney General maintained he would continue to enforce the unconstitutional provisions of Title 38 unless and until Congress repeals those provisions or the judicial branch renders a definitive verdict against their constitutionality. (Id.) At that point, the Government then the Legislative Branch initiated further litigation, forcing Plaintiffs to expend resources to defend their rights. On May 1, 2012, the Bipartisan Legal Advisory Group of the U.S. House of Representatives ("BLAG") moved to intervene in the case to defend Section 3 of DOMA and 38 U.S.C. 101(3) & (31) as a valid acts of Congress. (Dkts. 32 & 33.) Based on a concern that BLAG would seek burdensome discovery, as it had in other cases, on May 9, 2012, Plaintiffs filed an opposition to BLAGs motion.2
The EAJA authorizes an award of fees when the "position of the United States" is unjustified. 28 U.S.C. 2412(d). As BLAG is part of the United States Government, the Government should not be allowed to disclaim responsibility for attorneys' fees generated by BLAG's presence in this case. Although the case did not advance to discovery, BLAG's involvement necessitated litigation over its right to intervene. This was a substantial issue Plaintiffs reasonably litigated in good faith. In Windsor, the Supreme Court sua sponte ordered the parties to brief BLAG's standing and appointed counsel to argue against BLAG's standing. Windsor, 133 S. Ct. at 2684. Although the Windsor majority declined to decide the standing question, id. at 2688, Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, emphatically rejected any basis for BLAG's standing (or even standing by Congress as a whole). Id. at 2704-05 (Scalia, J., dissenting). Justice Alito noted he believed BLAG did have standing, but acknowledged the Supreme Court's decision that same day in Hollingsworth v. Perry, 133 S. Ct. 1521 (2013), rejected the standing of an intervenor that had a stronger claim to standing than BLAG. Windsor, 133 S. Ct. at 2712 & n.1 (Alito, J., dissenting). Given that BLAG's standing was a substantial issue and one where Plaintiffs' opposition to BLAG's intervention appears vindicated by Windsor and Hollingsworth the Government cannot maintain the fees associated with this issue are unreasonable. See also Jean, 496 U.S. a 161-162 (once a prevailing party qualifies for an EAJA award, the "fee award presumptively encompasses all aspects of the civil action," even where "the parties' postures on individual matters may be more or less justified").
Plaintiffs had no objection to BLAG participating as an amicus curiae and thereby advocating the constitutionality of DOMA and Title 38. In response to BLAGs motion to intervene, the Executive Branch agreed BLAG should be permitted to intervene, albeit for the limited purpose of briefing the equal protection claim. (Dkt. 37.) In the brief, the Executive Branch again noted for the Court that it would continue to violate what it believed were the Plaintiffs' constitutional rights, just so it could keep a live case or controversy alive: "[T]he Executive departments and agencies will continue to comply with Section 3 of DOMA and 38 U.S.C. 103(3), (31), pursuant to the Presidents direction, unless and until Section 3 of DOMA and 38 U.S.C. 103(3), (31) are repealed by Congress or there is a definitive ruling by the Judicial Branch that they are unconstitutional. Accordingly, there remains a live case or controversy between
Plaintiffs and Defendants." (Dkt. 37 at 2.) This Court granted BLAG's motion to intervene on May 16, 2012. The following month, on June 5, the Defendants requested yet another stay in this case. (Dkt. 40.) Plaintiffs opposed the Defendants' request as it pertained to their Fifth Amendment claims, which they believed should proceed without additional delay due to the First Circuit's decision invalidating Section 3 of DOMA on equal protection and other grounds. (Dkt. 41; see also Massachusetts v. United
States Dep't of HHS, 682 F.3d 1 (1st Cir. 2012).) The Court granted the Defendants' motion.
On June 26, 2013, the Supreme Court decided United States v. Windsor, holding "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment of the Constitution." 133 S. Ct. 2675, 2680 (2013). After the Supreme Court's decision, this Court asked the parties to submit any reasons why judgment should not enter for Plaintiffs in this case. (Dkt. 44). On July 17, 2013, Plaintiffs responded by asking the Court to enter judgment on their Fifth Amendment claims in light of Windsor. (Dkt. 45.) On July 18, 2013, BLAG filed a motion to withdraw as an intervenor in the case. (Dkt. 46.) In its motion, BLAG stated: "The Windsor decision necessarily resolves the issue of DOMA Section 3's constitutionality in this case. While the question of whether 38 U.S.C. 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court's opinion 7
in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant." (Id. at 1.) The Court granted that motion on July 19, 2013. (Dkt. 48.) That same day, July 18, the Defendants filed a response in which it stated: "In light of the Supreme Courts decision in Windsor, striking down Section 3 of DOMA, the Department of Defense will now construe the definitional provisions of spouse in Titles 10 and 32 to include same-sex spouses. . . . The Department of Defense intends to expeditiously make available benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers." (Dkt. 47 at 2.) The Executive Branch suggested the Court retain jurisdiction during the pendency of the Department of Defense's implementation of its plan, and offered to provide a status report on or before September 9, 2013 to advise the Court as to its progress. (Dkt. 47 at 3.) Nevertheless, the Executive Branch stated that, despite Windsor's holding and BLAG's refusal to continue its defense of Title 38, it would continue to enforce Title 38 which it conceded was unconstitutional. (Id. at 3-4.) On July 19, 2013, this Court stated that it would stay this case while the Department of Defense expeditiously make[s] available benefits provided under Titles 10 and 32 to the same-sex spouses of service members and that it expected a status report from the Executive Branch by September 9, 2013. (Dkt. 49.) On September 9, 2013, the Government filed its status report, explaining that not only is the Department of Defense proceeding to recognize benefits for same-sex spouses under Titles 10 and 32, but the Government had reversed course and would now voluntarily begin extending benefits to same-sex spouses under Title 38 based on the Executive Branchs conclusion that Title 38 is unconstitutional. (Dkt. 50.) The Governments status report also raised a host of issues as to why Plaintiffs were not entitled to judgment, including mootness, objections to jurisdiction and a lack of specificity in the Complaint. (Id.) The next day, Plaintiffs filed a response to each of those objections and requested the Court grant its motion for summary judgment. (Dkt. 51.) On September 12, the Court issued an order finding "that a declaratory judgment is appropriate in this case" and directed the parties to collaborate on such a judgment. (Dkt. 52.) The parties then filed a jointly 8
proposed judgment on September 30, 2013 (Dkt. 53), and the Court entered that judgment on October 2, 2013. (Dkt. 55). ARGUMENT Plaintiffs are entitled to an award of attorney fees and costs under the EAJA if (1) they are a "prevailing party" and (2) the position of the Government "was not substantially justified." 28 U.S.C. 2412(d)(1)(B). As explained in further detail below, Plaintiffs are a prevailing party because they obtained the very declaratory judgment they sought in the Complaint. Moreover, the Government cannot pretend its decision to force the Plaintiffs to litigate was "substantially justified" because the Government conceded at the outset that the Governments position was indefensible. The Government was knowingly and purposefully violating the Plaintiffs
constitutional rights, just so it could manufacture a case or controversy that would provide it with political cover once this Court agreed with that conclusion. Furthermore, there are no special circumstances that would make an award of fees against the government unjust. I. PLAINTIFFS ARE A PREVAILING PARTY There can be no question that Plaintiffs are a prevailing party. "To be considered a prevailing party, a party must be 'awarded some relief by the court.' The party must also show (1) a 'material alteration of the legal relationship of the parties' and (2) a 'judicial imprimatur of the change.'" Castaneda-Castillo v. Holder, 723 F.3d 48 (1st Cir. 2013) (first quoting
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S 598, 602 (2001), and subsequently quoting Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir. 2009)). This Courts October 2, 2013 Judgment certainly was a material alteration of the legal relationship between the parties. The Court declared, as a matter of law, that the Government had violated the Plaintiffs' constitutional rights and may no longer discriminate against them due to the gender of their spouses. The "judicial imprimatur requirement" is satisfied "where the party has 'received a judgment on the merits,'" as was the case with this Court's judgment. Castaneda-Castillo, 723 F.3d at 57 (quoting Buckhannon, 532 U.S. at 605).
II.
THE GOVERNMENTS POSITION WAS NOT SUBSTANTIALLY JUSTIFIED The First Circuit recently observed: "It is well-settled that the government bears the
burden of establishing that its position was substantially justified." Castaneda-Castillo, 723 F.3d at 57 (citing Pierce v. Underwood, 487 U.S. 552, 565, (1988)). This is a heavy burden. "Indeed, in the usual case, a constitutional violation will preclude a finding that the government's conduct was substantially justified." Morgan v. Perry, 142 F.3d 670, 690 (3d Cir. 1998). The
Government "must justify the positions it took both during the litigation and the agency proceedings that preceded that litigation. These positions must have a reasonable basis in both law and fact." Castaneda-Castillo, 723 F.3d at 73. "To be 'substantially justified' means, of course, more than merely undeserving of sanctions for frivolousness." Jean, 496 U.S. at 158 n.6. In evaluating whether the Governments litigating position was "substantially justified," "[t]here must be an examination of the actual merits of the government's litigation position as to both the facts and the law." Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001). The focus of the inquiry is "not what the law is now, but what the Government was substantially justified in believing it to have been." Pierce, 487 U.S. at 561. Because the first step in an EAJA
application requires the attorneys' fee petitioner to have prevailed on the merits, the "substantial justification" question asks "whether urging the opposite merits determination was substantially justified." Id. at 560; see Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 n.7 (3d Cir. 1993) (question is "whether the Government was substantially justified in believing the law to support the legal position it asserted in the merits stage of the proceedings"). Even the
Government acknowledges this requires it to prove "its litigating position must have had 'some substance and a fair possibility of success.'" Pierce, 487 U.S. at 564 (quoting the Government's brief in that case). A. The Government Cannot Be Substantially Justified In Litigating A Case Where It Conceded It Had No Legal Defense On The Merits
There never was a genuine disagreement in this case between the Government and the Plaintiffs over the fact that DOMA and the language in Titles 10, 32 and 38 were
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unconstitutional to the extent they prevented the Government from recognizing legally married same-sex spouses as "spouses" for purposes of providing family support and benefits. The Executive Branch took the position DOMA was unconstitutional on February 23, 2011 (Dkt. 291), several months before the Plaintiffs attempted to register for spousal benefits under Titles 10, 32 and 38 in September and October of 2011. And at the outset of this litigation, and throughout the litigation, the Government consistently took the position these laws violate the equal protection component of the Fifth Amendment. (Dkts. 28, 28-1, 28-2, 37, 47 & 50.)
Consequently, the Government never even made "the opposite merits determination" in this case, never believed a constitutional defense of these laws had merit, and did not even seek to succeed on the merits. The Government believed it was acting unconstitutionally in refusing to register the military Plaintiffs' spouses as "spouses," and conceded during the litigation that this conduct was unconstitutional. The First Circuit has found that when Executive Branch officials
subjectively believed their actions were unlawful, the Executive Branch's decision to take those actions is not substantially justified. Sierra Club v. Sec'y of the Army, 820 F.3d 513, 519-20 (1st Cir. 1987) (finding internal agency conclusions the proposed conduct was illegal was "generous reason" to find that conduct was not "substantially justified"). The Government knowingly and purposefully violated the Plaintiffs' constitutional rights by refusing to allow them to register their spouses or seek benefits, and forced them to litigate their rights before this Court because the Government was unwilling to afford them the rights it knew they were due. The Government did not take this position because it hoped to secure a judgment in its favor to the contrary, the Government agreed that Plaintiffs' legal position was corect on the merits. The Government litigated the case for the purpose of losing because it wanted a judgment from the Court to give it political cover to do the right thing, and respect Plaintiffs' constitutional rights going forward. On October 27, 2011, having been wrongfully denied military spousal benefits, Plaintiffs initiated this lawsuit. At the time Plaintiffs filed their Complaint, the Defendants knew DOMA was unconstitutional. Moreover, several courts, including courts within this Circuit, had held 11
DOMA unconstitutional. See, e.g., Massachusetts v. United States Dep't of HHS, 698 F. Supp. 2d
234 (D. Mass. 2010) (Tauro, J.) (same); Gill v. Office of Pers. Mgmt, 699 F. Supp. 2d 374 (D. Mass. 2010) (Tauro, J.) (same); In re Balas, 449 B.R. 567 (C.D. Cal. 2011) (same); see also In re Golinski, 587 F.3d 901 (9th Cir. 1999) (Kozinski, C.J.) (construing DOMA to avoid constitutional question); In re Levinson, 587 F.3d 925 (9th Cir. 2009) (Reinhardt, J.) (DOMA unconstitutional); In re Levinson, 560 F.3d 1145 (9th Cir. 2009) (Reinhardt, J.) (same). During the pendency of the
lawsuit, additional courts, including the First Circuit Court of Appeals, held DOMA unconstitutional. See, e.g., Windsor v. United States, 699 F.3d 169 (2d Cir. 2012); Massachusetts
v. United States Dep't of HHS, 682 F.3d 1 (1st Cir. 2012); Golinski v. Office of Pers. Mgmt., 824
F. Supp. 2d 968 (N.D. Cal. 2012). Yet the Executive Branch continued to contravene its duty to disregard unconstitutional laws by refusing to provide family support and benefits to the Plaintiffs for a reason it knew to be unconstitutional and continued to litigate this case. B. The Constitution Requires The President To Refuse To Enforce Unconstitutional Laws
The President took the position in this case that he would enforce DOMA and the definitions in Title 38 even though he believed they were unconstitutional and no reasonable arguments could be made in their defense. (Dkt. 29-1 at 5.) The Constitution did not permit him to do so. First, an unconstitutional law is null and void; that is, it is not a law at all. No text in the Constitution the President swore to uphold grants him the authority to enforce an unconstitutional law. See The Att'y Gen.'s Duty to Defend and Enforce Const. Objectionable Legis., 43 Op. Att'y Gen. 405 (1980) ("[E]verything in our constitutional jurisprudence inescapably establishes that neither [the President] nor any other executive officer can be given authority to enforce [an unconstitutional] law."). Second, it is the President's duty to "preserve, protect and defend the Constitution." U.S. Const. art. II, 1 ("Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"). The President
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avoided this duty and that portion of his Oath of Office when he enforced DOMA and Title 38. Third, the President must "take Care that the Laws be faithfully executed." U.S. Const. art. II, 3. "Laws" includes the Constitution, which is "the supreme Law of the Land." U.S. Const. art. VI. The President therefore is obliged to execute the Constitution above any unconstitutional law. Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) ("[B]ecause an unconstitutional legislative enactment is 'void,' [an] official who enforces that law 'comes into conflict with the superior authority of [the] Constitution. . . .'") (quoting Ex parte Young, 209 U.S. 123, 159-60 (1908)). The President's duty to disregard statutes he has determined to be unconstitutional is robust even where the Supreme Court has not yet decided the constitutionality of the statute. Indeed, as the Executive Branch has acknowledged to Congress: The President has the responsibility and duty also to faithfully execute the laws of the United States. U.S. Const., art. II. 3. But these duties are not in conflict: the law the President must execute includes the Constitution the supreme law of the land. Because the Constitution is supreme over all other law, the President must resolve any conflict between statutory law and the Constitution in favor of the Constitution, just as courts must. A President that places the statutory law over the constitutional law . . . would fail in his duty faithfully to execute the laws. The principle is equally sound where the Supreme Court has yet to rule on an issue, but the President has determined that a statutory law violates the Constitution. To say that the principle is not equally sound in this context is to deny the President's independent responsibility to interpret and uphold the Constitution. It is to leave the defense of the Constitution only to two, not three, of the branches of our government. Oversight Hearing: Presidential Signing Statements under the Bush Administration: A Threat to Checks and Balances and the Rule of Law? Before the H. Comm. on the Judiciary, 110th Cong. 5 (2007) (statement of John P. Elwood, Deputy Assistant Attorney General of the United States) (emphasis added). U.S. Attorneys General have advised Presidents they have no obligation to provide such provisional enforcement of unconstitutional laws. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 204 (1994) ("[T]he President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them
13
provisionally, against the day they are declared unconstitutional by the courts.") (quoting The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980)). And "every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions." Id. at 202. That includes President Obama, who has refused to enforce statutes he believed were unconstitutional without waiting for a court to tell him so. See, e.g., Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23, 2011) (President Obama) (refusing to enforce parts of the Act because they are unconstitutional); Statement on Signing the National Defense Authorization Act for Fiscal Year 2012 (Dec. 30, 2011) (President Obama) (same); INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (citing a memorandum from President Franklin Roosevelt to Attorney General Jackson in which the President indicated his intention not to implement an unconstitutional provision in a statute he had just signed); Myers v. United States, 272 U.S. 52 (1926) (noting President Wilson had defied a statute that prohibited him from removing postmasters without Senate approval). Similarly, in a comment on the Sedition Act of 1798, President Thomas Jefferson stated his "oath to protect the constitution required him to arrest [the] execution" of the Act at "every stage." Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in 1 The Adams-Jefferson Letters 274, 275-76 (Lester J. Cappon ed. 1959). President Obama, like President Jefferson before him, is required to disregard unconstitutional laws such as Section 3 of DOMA and the definitions in Title 38. Indeed, President Obama came around to that position at the very end of this case in deciding to no longer enforce Title 38, even in the absence of a Supreme Court decision specifically addressing that statute. In Windsor, the Supreme Court expressed its disfavor for the "unusual position" taken by the Government, 133 S. Ct. at 2687, and the Windsor dissent more strongly criticized the
14
position as a "contrivance" that stripped the Court of an actual case and controversy, id. at 2700 (Scalia, J., dissenting). But while the majority and the dissent disagreed as to whether the Government's position left a genuine Article III controversy intact, no member of the Court took issue with the dissent's conclusion that nothing compelled the Executive Branch to violate the rights of people like the Plaintiffs and force them to litigate: It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional in which event Windsor would not have been injured, the District Court would not have refereed this friendly scrimmage, and the Executive's determination of unconstitutionality would have escaped this Court's desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and Congress. . . . Windsor, 133 S. Ct. at 2702 (Scalia, J., dissenting). III. There are No Special Circumstances That Would Make An Award Of Fees Unjust The Government bears the burden of showing that special circumstances make an award of fees unjust, and there are none. Castaneda-Castillo, 723 F.3d at 74 (noting the Government failed to establish that special circumstances weighed against an award of fees). The case law does not support the notion that it ever is appropriate for the Government to knowingly and purposefully violate the constitutional rights of its citizens. Indeed, the expectation of those who enacted the EAJA was that the Executive Branch should respect the constitutional rights of the American people. As the First Circuit recently explained: "The EAJA aims to 'ensure that certain individuals . . . will not be deterred from seeking review of, or defending against,
15
unjustified governmental action because of the expense involved." Id. at 56 (quoting Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir. 2009). That is precisely what Plaintiffs have done here. IV. Plaintiffs Requested Fee Award Is Reasonable Plaintiffs' requested fee award is reasonable. The EAJA directs that fees should be set at "prevailing market rates," but then caps the hourly rate at $125 per hour, subject to a cost-ofliving adjustment. 28 U.S.C. 2412(d). Applying the Annual Consumer Price Index for all Urban Consumers ("CPI-U") for Boston, the First Circuit recently held the attorneys' fee cap was an hourly rate of $187.26 for 2011 and $190.21 for 2012. Castaneda-Castillo, 723 F.3d at 77. Applying that same formula for attorney fees for 2013 would lead to an attorney fee of $192.24 per hour. The First Circuit also agreed a $100 hourly rate for paralegals in Boston is reasonable. Id. at 77-78. Those are the hourly rates Plaintiffs seek here and they are just a small fraction of the standard market rate of the lead Chadbourne attorneys on this case (Mr. Lowell's hourly rate is $995, and Mr. Man's hourly rate is $695).3 Plaintiffs' counsel have taken various steps to avoid any potential disputes over the reasonableness of the time expended on various tasks. Cf. Hensley v. Eckerhardt, 461 U.S. 424, 437 (1983) ("A request for attorney's fees should not result in a second major litigation."); Freeman v. Mukasey, 2008 WL 1960838, at *2 (9th Cir. Feb. 26, 2008) ("Because an attorneys' fees request should not result in a second major litigation, some informality of proof is appropriate."). Counsel have gone through their draft bill to eliminate any inefficiency, just as
Counsel also note they provided pro bono service on behalf of the Plaintiffs by addressing the legal issues raised in McLaughlin concerning DOMA's impact on benefits for members of the military and veterans in an amicus curiae brief filed with the Supreme Court in Windsor. The Windsor majority pointed to these issues in describing the impact of DOMA. Windsor, 133 S. Ct at 2694 (noting DOMA impacted "veterans' benefits" and prohibits same-sex married couples from "being buried together in veterans cemeteries"). Although that substantial work was reasonable and in connection with advancing Plaintiffs' legal claims, Plaintiffs counsel are not seeking an award of attorneys' fees for that work.
16
they would do for any paying client. Counsel also have voluntarily discounted their hours and the hours of their paralegals by 5%. Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009) (upholding reasonableness of ACLU attorney rates where it voluntarily discounted them by 5%). In addition, the only cost the Plaintiffs seek reimbursement for is the filing fee for the Complaint -- $350. CONCLUSION Plaintiffs request for fees and costs should be granted.
Respectfully submitted, /s/ Ian McClatchey Ian McClatchey, BBO No. 676664 IMcClatchey@Chadbourne.com CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-5303 (phone) (646) 710-5303 (fax)
/s/ John M. Goodman John M. Goodman JGoodman@SLDN.org David McKean DMcKean@SLDN.org SERVICEMEMBERS LEGAL DEFENSE NETWORK Post Office Box 65301 Washington, DC 20035 (202) 621-5401 (phone) (202) 797-1635 (fax)
/s/ Abbe David Lowell Abbe David Lowell ADLowell@Chadbourne.com Christopher D. Man CMan@Chadbourne.com CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036 (202) 974-5600 (phone) (202) 974-5602 (fax) Counsel for Plaintiffs
17
CERTIFICATE OF SERVICE I hereby certify that, on October 28, 2013, the foregoing was filed with the Clerk of the Court using the Courts CM/ECF system, which will send electronic notice of such filing to all participants in the case.
/s/ Christopher D. Man Christopher D. Man
18
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. Plaintiffs, v. CHUCK HAGEL, in his official capacity as Secretary of Defense; et al., Defendants. ________________________________________ [Proposed] ORDER For the reasons set forth in Plaintiffs Application for an Award of Attorneys Fees & Costs and supporting Memorandum, it is hereby ORDERED that Plaintiffs motion is GRANTED, and the Court AWARDS attorneys fees in the amount of $137,087.49, made payable directly to Chadbourne & Parke LLP, and AWARDS attorneys fees in the amount of $33,492.20, made payable directly to OutServe-SLDN; for a total award of $170,579.69.
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
SO ORDERED.
Date:
________________________ Hon. Richard G. Stearns United States District Judge
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF ABBE DAVID LOWELL IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS I, Abbe David Lowell, declare pursuant to 28 U.S.C. 1746 as follows: 1. Along with others at the law firm, I represent the Plaintiffs in this action and submit this declaration in support of Plaintiffs' application for attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of Civil Procedure 54(d). 2. I am a Partner at Chadbourne & Parke LLP, an international law firm, where I am the head of the Litigation Department and Chair of the White Collar Defense, Regulatory Investigations and Litigation Group. 3. I graduated from Columbia Law School in 1977, and have been practicing law continuously since then. 4. I have been involved in handling numerous complex civil and criminal cases over those years, including cases involving civil rights. 5. I have successfully tried numerous complex civil and criminal cases throughout the United States, and have briefed and argued dozens of appeals before federal and state appellate courts, including the First Circuit Court of Appeals and the Supreme Court of the United States.
6.
I have been counsel to the U.S. House of Representatives twice, most recently as Chief Minority Counsel during impeachment proceedings against President Clinton and before that as special ethics counsel to the House Committee of Standards of Official Conduct (Ethics Committee).
7.
From 1994 to 1996, I was appointed as Special Counselor to the United Nations High Commissioner for Human Rights in the investigation and prosecution of human rights violations, war crimes and other human rights projects in Rwanda and the former Yugoslavia.
8.
I also served at the U.S. Department of Justice from 1977 to 1981 as a Special Assistant U.S. Attorney, Special Assistant to the Deputy Attorney General and Special Assistant to the Attorney General.
9.
I have been recognized in lists naming the top trial lawyers in the country by legal publications that publish such lists, and was ranked as one of the most influential lawyers in America by the National Law Journal for 2013.
10. 11.
My current hourly rate is $995. Along with Christopher Man, I supervised the litigation team representing Plaintiffs in this case. a. b. c. d. Christopher Man served as the lead Counsel on the case. Michael Pusateri served as the lead Associate on the case. Ian McClatchey, another Associate, also worked on the case. Noelle Francis served as the lead Associate in preparing the application for attorneys' fees and costs. e. Michelle Chasse and Jamie Moses were the paralegals on the case.
12.
In support of this application, I submit the following Exhibits: Exhibit A: Exhibit B: Judgment entered October 2, 2013 in favor of Plaintiffs (Dkt. 55). Time records for Chadbourne & Parke LLP documenting that our
trial team expended the following hours in the litigation of this case: Mr. Lowell, 2
1.6 hours in 2013, 4.8 hours in 2012, and 10.6 hours in 2011; Mr. Man, 143.7 hours in 2013, 153.5 hours in 2012, and 127.0 hours in 2011; Mr. Pusateri, 0.8 hours in 2013, 3.5 hours in 2012, and 194.0 hours in 2011; Mr. McClatchey, 0.8 hours in 2013, 11.6 hours in 2012, and 18.6 hours in 2011; Ms. Francis, 64.4 hours in 2013; Ms. Chasse, 33.4 hours; and Ms. Moses, 12.4 hours. Exhibit C: Declarations from each of the Plaintiffs attesting that they meet the
statutory criteria for obtaining attorneys' fees under the EAJA, and assigning any interest they have in obtaining an award of fees and costs to their attorneys. 13. Several Chadbourne & Parke LLP attorneys and other professionals in addition to those identified in the time records submitted in Exhibit B contributed to our success in this case but, in the interest of controlling costs, the Plaintiffs are not seeking reimbursement for any Chadbourne & Parke LLP time that is not listed in Exhibit B. In addition, the actual time of those attorneys and paralegals listed in Exhibit B has been reduced, as a courtesy to the Government. 14. Cumulatively, the Chadbourne & Parke LLP attorneys listed in Exhibit B billed 350.2 hours in 2011, 173.4 hours in 2012, and 212.2 hours in 2013. To eliminate any dispute as to the reasonableness of the time those attorneys expended, Plaintiffs agree to reduce those hours by 5%. Consequently, Plaintiffs seek
attorneys' fees for 332.69 hours in 2011, 164.73 hours in 2012, and 201.59 hours in 2013 for Chadbourne & Parke LLP attorneys' fees. 15. Cumulatively, the Chadbourne & Parke LLP paralegals listed in Exhibit B billed 45.8 hours. To eliminate any dispute as to the reasonableness of the time those paralegals expended, Plaintiffs agree to reduce those hours by 5%. Consequently, Plaintiffs seek paralegal fees for 43.51 hours for Chadbourne & Parke LLP paralegals' fees. 16. Applying the Annual Consumer Price Index for all Urban Consumers ("CPI-U") for Boston, the First Circuit recently held the attorneys' fee cap under the EAJA, 3
when adjusted for the cost of living increase, was an hourly rate of $187.26 for 2011 and $190.21 for 2012. Castaneda-Castillo v. Holder, 723 F.3d 48, 77 (1st Cir. 2013). Based on the CPI-U for the first half of 2013, the 2013 EAJA hourly rate cap would be $192.24. The First Circuit also agreed a $100 hourly rate for paralegals in Boston is reasonable. Id. at 77-78. Chadbourne & Parke LLP requests the Court to compensate the firm for the time its attorneys and paralegals spent working on this case at these hourly rates rates that are substantially below the firm's standard rates. 17. Applying those hourly rates to the discounted rates Plaintiffs seek for Chadbourne & Parke LLP are as follows: 332.69 attorney hours times $187.26 for 2011 equals $62,299.53 164.73 attorney hours times $190.21 for 2012 equals $31,333.30 201.59 attorney hours times $192.24 for 2013 equals $38,753.66 43.51 paralegal hours times $100.00 equals TOTAL: 18. $4,351.00 $136,737.49
Chadbourne incurred costs of $350 by paying the filing fee for submitting the Complaint.
19.
Based on Chadbourne & Parke LLP's costs, and fees for attorneys and paralegals, Plaintiffs seek an award of $137,087.49
20.
As the Plaintiffs in this matter have assigned any interest they have in an award of fees and costs to their attorneys (Ex. C), and those services were provided to them pro bono by Chadbourne & Parke LLP, Plaintiffs request that payment be made directly to Chadbourne & Parke LLP and sent to the attention of Christopher D. Man, Esq., Chadbourne & Parke LLP, 1200 New Hampshire Avenue, N.W., Washington, D.C. 20036.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October 28, 2013. /s/ Abbe David Lowell
Exhibit A
Case Case 1:11-cv-11905-RGS 1:11-cv-11905-RGS Document Document 56-3 55 Filed Filed 10/02/13 10/28/13 Page Page 1 7 of of 4 80
Case Case 1:11-cv-11905-RGS 1:11-cv-11905-RGSDocument Document 56-3 55 Filed Filed 10/28/13 10/02/13 Page Page 10 4 of of480
Exhibit B
Exhibit C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. ) ) Plaintiffs, ) ) v. ) No. 1:11-cv-11905-RGS ) LEON E. PANETTA, in his official capacity as ) Secretary of Defense; et al., ) ) Defendants. ) ________________________________________ ) DECLARATION OF STEPHEN MCNABB IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Stephen McNabb, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Colonel Stewart Bornhoft is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
costs of this litigation themselves, and ask that the Court make any award of attorneys fees and costs payable directly to them. I declare under penalty of perjury that the foregoing is true and correct.
Executed on __September 29th____, 2013.
_____________________ Stephen McNabb
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. ) ) Plaintiffs, ) ) v. ) No. 1:11-cv-11905-RGS ) LEON E. PANETTA, in his official capacity as ) Secretary of Defense; et al., ) ) Defendants. ) ________________________________________ ) DECLARATION OF AIRMAN FIRST CLASS DANIEL HENDERSON IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Airman First Class Daniel Henderson, declare pursuant to 28 U.S.C. 1746 as follows: 1. 2. I am one of 16 Plaintiffs in this action. Plaintiff Jerret Henderson is my spouse. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the costs of this litigation themselves, and ask that the Court make any award of
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. Plaintiffs, v. LEON E. PANETTA, in his official capacity as Secretary of Defense; et al., Defendants. ________________________________________
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF JERRET HENDERSON IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Jerret Henderson, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Airman First Class Daniel Henderson is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF DAN ROSS IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Dan Ross, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Lieutenant Gary C. Ross is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
October 1 2013. Executed on ____________,
_____________________ Dan Ross
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF LIEUTENANT GARY C. ROSS IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Lieutenant Gary C. Ross, declare pursuant to 28 U.S.C. 1746 as follows: 1. 2. I am one of 16 Plaintiffs in this action. Plaintiff Dan Ross is my spouse. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
October 1 2013. Executed on ____________,
_____________________ Lieutenant Gary C. Ross
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF CAPTAIN JOAN DARRAH IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Captain Joan Darrah, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Jacqueline Kennedy is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF JACQUELINE KENNEDY IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Jacqueline Kennedy, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Captain Joan Darrah is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF LIEUTENANT COLONEL VICTORIA A. HUDSON IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Lieutenant Colonel Victoria A. Hudson, declare pursuant to 28 U.S.C. 1746 as follows: 1. 2. I am one of 16 Plaintiffs in this action. Plaintiff Monika Poxon is my spouse. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF MONIKA POXON IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Monika Poxon, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Lieutenant Colonel Victoria A. Hudson is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF JOSHUA SNYDER-HILL IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Joshua Snyder-Hill, declare pursuant to 28 U.S.C. 1746 as follows: 1. I am one of 16 Plaintiffs in this action. Plaintiff Major Steve M. Snyder-Hill is my spouse. 2. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
Executed on September 27, 2013.
_____________________ Joshua Snyder-Hill
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF MAJOR STEVE M. SNYDER-HILL IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS I, Major Steve M. Snyder-Hill, declare pursuant to 28 U.S.C. 1746 as follows: 1. 2. I am one of 16 Plaintiffs in this action. Plaintiff Joshua Snyder-Hill is my spouse. I commenced the above captioned action in the United States District Court for the District of Massachusetts on October 27, 2011. 3. At the time this action was filed, neither I nor my spouse had a net worth that exceeded $2,000,000 and at no time during the course of this action did either of us have a net worth that exceeded $2,000,000. 4. At the time this action was filed, neither I nor my spouse owned an unincorporated business that had a net worth exceeding $7,000,000 or that had more than 500 employees, and at no time during the course of this action did either of us own such an unincorporated business. 5. Plaintiffs are the prevailing parties in this action and, as such, seek an award of attorney fees and costs under the Equal Access to Justice Act and Federal Rule of Civil Procedure 54(d). 6. I have assigned any interest I would have in an award of attorneys fees and costs to my attorneys, who represented me pro bono in this matter and absorbed the
Executed on September 27th, 2013.
_______________________ Major Steve M. Snyder-Hill
*UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. Plaintiffs, v. CHUCK HAGEL, in his official capacity as Secretary of Defense; et al., Defendants. ________________________________________
) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF CHRISTPHER D. MAN IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS I, Christopher D. Man, declare pursuant to 28 U.S.C. 1746 as follows: 1. Along with others at the law firm, I represent the Plaintiffs in this action and submit this declaration in support of Plaintiffs' application for attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of Civil Procedure 54(d). 2. I am a Counsel at Chadbourne & Parke LLP, an international law firm, where I am a member of the Litigation Department and the White Collar Defense, Regulatory Investigations and Litigation Group. 3. I graduated from the Washington University School of Law in St. Louis in 1995, obtained an LL.M from the George Washington University Law School in 1997, and have been practicing law for 18 years. 4. I have been involved in handling numerous complex civil and criminal cases over those years, including cases involving civil rights. 5. I have first chair experience trying high profile cases, including the successful representation of former New York Governor George Pataki in a civil rights trial this past summer in the United States Disctrict Court for the Southern District of
New York. Bailey v. Pataki, No. 08-Civ.-8563 (S.D.N.Y. 2013) (Rakoff, J.). I have participated in numerous other trials. 6. I have briefed numerous appeals before the federal Courts of Appeals and the Supreme Court of the United States, and most recently prevailed in two appeals before the United States Court of Appeals for the First Circuit: United States v. Bravo-Fernandez, 772 F.3d 1 (1st Cir. 2013) (reversing a criminal conviction), and Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) (affirming a civil rights award by Judge Woodlock in favor of a trasgender inmate). 7. Prior to this case, I worked with our co-counsel at the Servicemembers Legal Defense Network (now OutServe-SLDN) on several legal matters concerning the rights of LGBT veterans and active duty members of the military. 8. 9. My current hourly rate is $695. Along with Abbe David Lowell, I supervised the litigation team representing Plaintiffs in this case. a. b. c. d. Abbe David Lowell was the Partner in charge of the case. Michael Pusateri served as the lead Associate on the case. Ian McClatchey, another Associate, also worked on the case. Noelle Francis served as the lead Associate in preparing the application for attorneys' fees and costs. e. 10. Michelle Chasse and Jamie Moses were the paralegals on the case.
In support of this application, I note the following Exhibits that were submitted with Mr. Lowell's Declaration: Exhibit A: Exhibit B: Judgment entered October 2, 2013 in favor of Plaintiffs (Dkt. 55). Time records for Chadbourne & Parke LLP documenting that our
trial team expended the following hours in the litigation of this case: Mr. Lowell, 1.6 hours in 2013, 4.8 hours in 2012, and 10.6 hours in 2011; Mr. Man, 143.7 hours in 2013, 153.5 hours in 2012, and 127.0 hours in 2011; Mr. Pusateri, 0.8 2
hours in 2013, 3.5 hours in 2012, and 194.0 hours in 2011; Mr. McClatchey, 0.8 hours in 2013, 11.6 hours in 2012, and 18.6 hours in 2011; Ms. Francis, 64.4 hours in 2013; Ms. Chasse, 33.4 hours; and Ms. Moses, 12.4 hours. Exhibit C: Declarations from each of the Plaintiffs attesting that they meet the
statutory criteria for obtaining attorneys' fees under the EAJA, and assigning any interest they have in obtaining an award of fees and costs to their attorneys. 11. Several Chadbourne & Parke LLP attorneys and other professionals in addition to those identified in the time records submitted in Exhibit B contributed to our success in this case but, in the interest of controlling costs, the Plaintiffs are not seeking reimbursement for any Chadbourne & Parke LLP time that is not listed in Exhibit B. In addition, the actual time of those attorneys and paralegals listed in Exhibit B has been reduced, as a courtesy to the Government. 12. Cumulatively, the Chadbourne & Parke LLP attorneys listed in Exhibit B billed 350.2 hours in 2011, 173.4 hours in 2012, and 212.2 hours in 2013. To eliminate any dispute as to the reasonableness of the time those attorneys expended, Plaintiffs agree to reduce those hours by 5%. Consequently, Plaintiffs seek
attorneys' fees for 332.69 hours in 2011, 164.73 hours in 2012, and 201.59 hours in 2013 for Chadbourne & Parke LLP attorneys' fees. 13. Cumulatively, the Chadbourne & Parke LLP paralegals listed in Exhibit B billed 45.8 hours. To eliminate any dispute as to the reasonableness of the time those paralegals expended, Plaintiffs agree to reduce those hours by 5%. Consequently, Plaintiffs seek paralegal fees for 43.51 hours for Chadbourne & Parke LLP paralegals' fees. 14. Applying the Annual Consumer Price Index for all Urban Consumers ("CPI-U") for Boston, the First Circuit recently held the attorneys' fee cap under the EAJA, when adjusted for the cost of living increase, was an hourly rate of $187.26 for 2011 and $190.21 for 2012. Castaneda-Castillo v. Holder, 723 F.3d 48, 77 (1st 3
Cir. 2013). Based on the CPI-U for the first half of 2013, the 2013 EAJA hourly rate cap would be $192.24. The First Circuit also agreed a $100 hourly rate for paralegals in Boston is reasonable. Id. at 77-78. Chadbourne & Parke LLP requests the Court to compensate the firm for the time its attorneys and paralegals spent working on this case at these hourly rates rates that are substantially below the firm's standard rates. 15. Applying those hourly rates to the discounted rates Plaintiffs seek for Chadbourne & Parke LLP are as follows: 332.69 attorney hours times $187.26 for 2011 equals $62,299.53 164.73 attorney hours times $190.21 for 2012 equals $31,333.30 201.59 attorney hours times $192.24 for 2013 equals $38,753.66 43.51 paralegal hours times $100.00 equals TOTAL: 16. $4,351.00 $136,737.49
Chadbourne incurred costs of $350 by paying the filing fee for submitting the Complaint.
17.
Based on Chadbourne & Parke LLP's costs, and fees for attorneys and paralegals, Plaintiffs seek an award of $137,087.49
18.
As the Plaintiffs in this matter have assigned any interest they have in an award of fees and costs to their attorneys (Ex. C), and those services were provided to them pro bono by Chadbourne & Parke LLP, Plaintiffs request that payment be made directly to Chadbourne & Parke LLP and sent to the attention of Christopher D. Man, Esq., Chadbourne & Parke LLP, 1200 New Hampshire Avenue, N.W., Washington, D.C. 20036.
I declare under penalty of perjury that the foregoing is true and correct. Executed on October 28, 2013. /s/ Christopher D. Man
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. Plaintiffs, v. CHUCK HAGEL, in his official capacity as Secretary of Defense; et al., Defendants. ________________________________________ ) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF JOHN M. GOODMAN IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS I, John M. Goodman, declare pursuant to 28 U.S.C. 1746 as follows: 1. I represent the Plaintiffs in this action and submit this declaration in support of Plaintiffs' application for attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of Civil Procedure 54(d). 2. I have been Of Counsel to OutServe-SLDN (formerly the Servicemembers Legal Defense Network) from May 2009 through the present. My work there has focused on impact litigation and legislative issues. 3. Servicemembers Legal Defense Network was established in 1993 in response to the adoption of the "Don't Ask, Don't Tell" policy regarding gay men and lesbians in the U.S. armed services. It has provided pro bono legal services to more than 12,000 individual service members and veterans, represented clients in impact litigation and advocated for LGBT military equality. 4. I graduated from Princeton University in 1969 and Harvard Law School in 1973, and have been practicing law for almost 40 years.
5.
I was a Litigation Associate at Dewey Ballantine in New York City from 1973 to 1983, where I represented clients in state and federal court proceedings, including trials and appeals.
6.
In 1983, I joined the Verizon Communications (formerly Bell Atlantic Corporation) legal department in Washington, D.C., where I handled federal court and regulatory litigation and appeals and advised on legislative, regulatory and antitrust issues. I retired from Verizon in November 2003.
7.
Since retiring from the compensated practice of law, I have provided legal services, including on litigation matters, on a pro bono basis.
8.
Along with David McKean, Esq. of OutServe-SLDN, I represent the Plaintiffs in this action, together with our co-counsel from Chadbourne & Parke LLP.
9.
In support of this application, I attach as Exhibit A records I kept documenting the work I performed on behalf of the Plaintiffs in this case: These records show 32.8 hours in 2013, 11.7 hours in 2012, and 69.8 hours in 2011. Because OutServeSLDN provides its services at no charge, it does not have any standard billing rates for its attorneys.
10.
Other OutServe-SLDN attorneys and professionals in addition to Mr. McKean and me contributed to our success in this case but the Plaintiffs are not seeking reimbursement for any OutServe-SLDN time other than that spent by the two of us. To eliminate any dispute as to the reasonableness of the time I expended, Plaintiffs agree to reduce my hours by 5%. Consequently, Plaintiffs seek
attorneys fees for 31.1 hours in 2013, 11.1 hours in 2012, and 66.3 hours in 2011 of work I performed on their behalf in this case. 11. Applying the Annual Consumer Price Index for all Urban Consumers (CPI-U) for Boston, the First Circuit recently held the attorneys' fee cap under the EAJA, when adjusted for the cost of living increase, was an hourly rate of $187.26 for 2011 and $190.21 for 2012. Castaneda-Castillo v. Holder, 723 F.3d 48, 77 (1st 2
Cir. 2013). Based on the CPI-U for the first half of 2013, the 2013 EAJA hourly rate cap would be $192.24. Plaintiffs request the Court to compensate OutServeSLDN for the time its attorneys spent working on this case at these hourly rates. 12. Applying those hourly rates to my discounted time, Plaintiffs seek for OutServeSLDN: 66.3 attorney hours times $187.26 for 2011 equals $12,415.34 11.1 attorney hours times $190.21 for 2012 equals $2,111.33 32.8 attorney hours times $192.24 for 2013 equals $6,305.47 TOTAL: 13. $20,832.14
Therefore, Plaintiffs seek an award of $20,832.14 for my time. Together with the $12,659.80 Plaintiffs seek for Mr. McKeans time (see McKean Decl. 11-12), Plaintiffs seek a total award of $33,492.20 for OutServe-SLDN.
14.
In support of this application, I also note the following Exhibits that were submitted with Mr. Lowell's Declaration: Exhibit A: Exhibit C: Judgment entered October 2, 2013 in favor of Plaintiffs (Dkt. 55). Declarations from each of the Plaintiffs attesting that they meet the
statutory criteria for obtaining attorneys' fees under the EAJA, and assigning any interest they have in obtaining an award of fees and costs to their attorneys. 15. As the Plaintiffs in this matter have assigned any interest they have in an award of fees and costs to their attorneys (Ex. C to Lowell Decl.), and those services were provided to them pro bono by OutServe-SLDN, Plaintiffs request that payment be made directly to OutServe-SLDN and sent to the attention of John M. Goodman, Esq., Post Office Box 65301, Washington, DC 20035.
Executed on October 28, 2013. /s/ John M. Goodman

GOODMAN DECL. EXHIBIT A - TIME RECORDS Date Time Activity 6/8/2011 1.3 telephone conference Chadbourne & Parke 6/28/2011 1.4 telephone conference McLaughlin, conference Sarvis/McKean 7/13/2011 1.1 telephone conference prospective plaintiffs, conference Sarvis/McKean 8/8/2011 1.5 telephone conference prospective plaintiffs, conference Sarvis/McKean 8/15/2011 1.4 telephone conference prospective plaintiffs, conference Sarvis/McKean 8/16/2011 1.2 telephone conference Bornhoft, conference Sarvis/McKean 8/17/2011 2.1 conference Sarvis/McKean, Chadbourne & Parke 8/18/2011 2.7 telephone conference Hudson; telephone conference prospective plaintiffs, conference Sarvis/McKean 8/25/2011 1.0 telephone conference McLaughlin, conference Sarvis/McKean 8/26/2011 0.8 telephone conference Snyder, conference Sarvis/McKean 9/15/2011 0.6 telephone conference Hill, telephone conference Chadbourne & Parke 9/22/2011 1.7 telephone conference Hudson, conference Sarvis/McKean 9/29/2011 2.3 telephone conference Hudson, telephone conference Chadbourne & Parke 9/30/2011 0.7 telephone conference Rossr, conference Sarvis/McKean 10/13/2011 1.3 revise complaint 10/14/2011 1.0 telephone conference Man, email correspondence 10/15/2011 2.5 revise summary judgment brief; investigation of law re legislative history of "spouse" 10/17/2011 2.1 revise motion papers; email correspondence 10/18/2011 1.9 telephone conference Ladner; revise summary judgment brief 10/20/2011 0.8 conference Sarvis/McKean 10/21/2011 1.3 investigation of law re legislative history of "spouse"; revise summary judgment brief 10/22/2011 2.0 telephone conference plaintiffs; email correspondence 10/23/2011 1.0 revise summary judgment brief, email correspondence 10/24/2011 2.5 revise complaint, email correspondence 10/25/2011 7.0 revise complaint, email correspondence 10/26/2011 6.1 revise complaint, email correspondence, conference Sarvis/McKean 10/27/2011 5.0 revise complaint, email correspondence, conference Sarvis/McKean 10/29/2011 0.7 review GLAD brief 11/1/2011 0.9 telephone conference, email correspondence, memo 11/2/2011 1.4 telephone conference, conference Sarvis/McKean 11/3/2011 0.3 email correspondence 11/4/2011 0.7 investigation of law, email correspondence 11/8/2011 1.0 revise summary judgment 11/9/2011 1.1 revise summary judgment

11/14/2011 11/15/2011 11/16/2011 11/17/2011 11/18/2011 TOTAL 2011 2/10/2012 3/6/2012 3/19/2012 4/3/2012 4/4/2012 4/5/2012 4/11/2012 4/17/2012 4/18/2012 5/1/2012 5/2/2012 5/3/2012 5/8/2012 5/15/2012 5/31/2012 6/4/2012 6/6/2012 TOTAL 2012 6/24/2013 6/26/2013 6/27/2013 6/24/2013 6/26/2013 6/27/2013 7/12/2013 7/15/2013 7/18/2013 7/19/2013 7/20/2013 7/21/2013 2.4 3.0 0.8 2.4 0.8 69.8 0.5 0.4 0.7 1.3 1.2 0.4 0.8 0.4 0.4 1.4 1.2 0.6 0.3 1.0 0.5 0.3 0.3 11.7 0.9 2.1 1.4 0.9 2.1 1.4 0.3 1.1 2.1 2.3 0.7 0.8 revise summary judgment revise summary judgment, conference Sarvis/McKean telephone conference, email correspondence telephone conferences, revise summary judgment telephone conferences, revise summary judgment telephone conference Man et al. telephone conference Man et al. telephone conference Man et al., email correspondence, conference Sarvis/McKean telephone conference Man et al., email correspondence telephone conference Lin, Man et al., email correspondence, stipulation conference Sarvis/McKean, email correspondence telephone conference Lin, Man et al., revise motion to set deadline email correspondence email correspondence telephone conference Lin, Man et al.; review BLAG motion to intervene revise intervention opposition revise intervention opposition telephone conference Man et al. telephone conference Lin et al., conference Sarvis/McKean review Gill decision telephone conference Man et al review DOJ motion to stay; revise response telephone conference plaintiffs, McKean telephone conference plaintiffs, review Supreme Court opinions email correspondence, review Supreme Court ops telephone conference plaintiffs, McKean telephone conference plaintiffs, review Supreme Court opinions email correspondence email correspondence conference Sarvis/McKean, email correspondence, revise show cause filing review show cause filings; email correspondence telephone conference plaintiffs, McKean; rev papers; email correspondence email correspondence, benefits lost DoD conference call re Windsor implementation, email correspondence

8/5/2013 8/6/2013 8/8/2013 8/9/2013 8/15/2013 8/16/2013 8/20/2013 8/21/2013 8/23/2013 8/30/2013 9/2/2013 9/9/2013 9/10/2013 9/12/2013 9/18/2013 9/19/2013 9/20/2013 9/23/2013 9/25/2013 10/8/2013 10/11/2013 10/12/2013 10/14/2013 10/18/2013 10/25/2013 TOTAL 2013 GRAND TOTAL 0.2 1.4 0.3 0.2 0.5 0.5 1.4 0.3 0.3 1.2 0.5 0.9 1.2 0.3 0.8 0.9 1.2 0.8 0.7 0.3 1.2 0.4 0.3 0.6 0.3 32.8 114.3 email correspondence factual investigation re lost benefits, email correspondence email correspondence email correspondence email correspondence email correspondence email correspondence, telephone conference McLaughlin, factual investigation re lost benefits email correspondence email correspondence review Cooper-Harris decision, email correspondence, factual investigation re lost benefits factual investigation re lost benefits, email correspondence review DoJ status report; revise response revise response to DoJ; email correspondence review order, email correspondence revise proposed judgment, email correspondence revise proposed judgment, email correspondence revise proposed judgment, email correspondence revise proposed judgment, email correspondence, telephone conference Man email correspondence email correspondence revise fee dec, email correspondence revise fee brief, email correspondence email correspondence revise fee dec, email correspondence revise fee brief, email correspondence
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. Plaintiffs, v. CHUCK HAGEL, in his official capacity as Secretary of Defense; et al., Defendants. ________________________________________ ) ) ) ) ) No. 1:11-cv-11905-RGS ) ) ) ) ) )
DECLARATION OF DAVID MCKEAN IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS I, David McKean, declare pursuant to 28 U.S.C. 1746 as follows: 1. I represent the Plaintiffs in this action and submit this declaration in support of Plaintiffs' application for attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of Civil Procedure 54(d). 2. I was an attorney at OutServe-SLDN (formerly the Servicemembers Legal Defense Network) from November 2009 through July 2013. My work there focused on direct legal services, impact litigation and legislative issues. 3. Servicemembers Legal Defense Network was established in 1993 in response to the adoption of the Dont Ask, Dont Tell policy regarding gay men and lesbians in the U.S. armed services. It has provided pro bono legal services to more than 12,000 individual service members and veterans, represented clients in impact litigation, and advocated for LGBT military equality. 4. I graduated from the University of California, Berkeley in 2004 and American University, Washington College of Law in 2008, and have been practicing law for 5 years.
5.
After law school and prior to joining OutServe-SLDN, I was a law clerk for the Honorable Steven G. Salant of the Circuit Court for Montgomery County, Maryland.
6.
Along with John M. Goodman, Esq., Of Counsel to OutServe-SLDN, I represented the Plaintiffs in this action, together with our co-counsel from Chadbourne & Parke LLP.
7.
In support of this application, I attach as Exhibit A records documenting the work I performed on behalf of the Plaintiffs in this case: These records show 10.2 hours in 2013, 10.3 hours in 2012, and 46.4 hours in 2011.
8.
Other OutServe-SLDN attorneys and professionals contributed to our success in this case but, in the interest of controlling costs, the Plaintiffs are not seeking reimbursement for any OutServe-SLDN time other than that spent by Mr. Goodman and me.
9.
To eliminate any dispute as to the reasonableness of the time I expended, Plaintiffs agree to reduce my hours by 5%. Consequently, Plaintiffs seek
attorneys fees for 13.7 hours in 2013, 9.8 hours in 2012, and 44.1 hours in 2011 of work I performed on their behalf in this case. 10. Applying the Annual Consumer Price Index for all Urban Consumers (CPI-U) for Boston, the First Circuit recently held the attorneys fee cap under the EAJA, when adjusted for the cost of living increase, was an hourly rate of $187.26 for 2011 and $190.21 for 2012. Castaneda-Castillo v. Holder, 723 F.3d 48, 77 (1st Cir. 2013). Based on the CPI-U for the first half of 2013, the 2013 EAJA hourly rate cap would be $192.24. Plaintiffs request the Court to compensate OutServeSLDN for the time its attorneys spent working on this case at these hourly rates. 11. Applying those hourly rates to my discounted time, Plaintiffs seek for OutServeSLDN: 44.1 attorney hours times $187.26 for 2011 equals $8,258.17. 2
9.8 attorney hours times $190.21 for 2012 equals
$1,864.06.
13.2 attorney hours times $192.24 for 2013 equals $2,537.57. TOTAL: 12. $12,659.80
Therefore, Plaintiffs seek an award of $12,659.80 for my time. Together with the $20,832.14 Plaintiffs seek for Mr. Goodmans time (see Goodman Decl. 1213), Plaintiffs seek a total award of $33,492.20 for OutServe-SLDN.
13.
In support of this application, I also note the following Exhibits that were submitted with Mr. Lowell's Declaration: Exhibit A: Exhibit C: Judgment entered October 2, 2013 in favor of Plaintiffs (Dkt. 55). Declarations from each of the Plaintiffs attesting that they meet the
statutory criteria for obtaining attorneys' fees under the EAJA, and assigning any interest they have in obtaining an award of fees and costs to their attorneys. 14. As the Plaintiffs in this matter have assigned any interest they have in an award of fees and costs to their attorneys (Ex. C to Lowell Decl.), and those services were provided to them pro bono by OutServe-SLDN, Plaintiffs request that payment be made directly to OutServe-SLDN and sent to the attention of John M. Goodman, Esq., Post Office Box 65301, Washington, DC 20035.
Executed on October 28, 2013. /s/ David McKean

MCKEAN DECL. EXHIBIT A - TIME RECORDS Date Time Activity 6/8/2011 1.3 telephone conference Chadbourne & Parke 6/28/2011 1.4 telephone conference McLaughlin, conference Sarvis/Goodman 7/13/2011 1.1 telephone conference prospective plaintiffs, conference Sarvis/Goodman 8/8/2011 1.5 telephone conference prospective plaintiffs, conference Sarvis/Goodman 8/15/2011 1.4 telephone conference prospective plaintiffs, conference Sarvis/Goodman 8/16/2011 1.2 telephone conference Bornhoft, conference Sarvis/Goodman 8/17/2011 2.1 conference Sarvis/Goodman, Chadbourne & Parke 8/18/2011 2.7 telephone conference Hudson; telephone conference prospective plaintiffs, conference Sarvis/Goodman 8/25/2011 1.0 telephone conference McLaughlin, conference Sarvis/Goodman 8/26/2011 0.8 telephone conference Snyder, conference Sarvis/Goodman 9/15/2011 0.6 telephone conference Hill, telephone conference Chadbourne & Parke 9/22/2011 1.7 telephone conference Hudson, conference Sarvis/Goodman 9/23/2011 0.2 Correspondences w/ Shannon 9/29/2011 2.3 telephone conference Hudson, telephone conference Chadbourne & Parke 9/30/2011 0.7 telephone conference Rossr, conference Sarvis/Goodman 10/11/2011 0.2 Correspondences w/ Mike Pusateri 10/14/2011 1.0 telephone conference Man, email correspondence 10/17/2011 0.5 Correspondences w/ Mike Pusateri 10/20/2011 1.3 conference Sarvis/Goodman, correspondences 10/22/2011 2.0 telephone conference plaintiffs; email correspondence 10/25/2011 1.0 Securing client representation aggreements 10/26/2011 6.1 revise complaint, email correspondence, conference Sarvis/Goodman 10/27/2011 5.0 revise complaint, email correspondence, conference Sarvis/Goodman 11/1/2011 0.9 telephone conference, email correspondence, memo 11/2/2011 1.4 telephone conference, conference Sarvis/Goodman 11/15/2011 3.0 revise summary judgment, conference Sarvis/Goodman 11/16/2011 0.8 telephone conference, email correspondence 11/17/2011 2.4 telephone conferences, revise summary judgment 11/18/2011 0.8 telephone conferences, revise summary judgment TOTAL 2011 46.4 1/13/2012 0.5 correspondences 2/10/2012 0.5 telephone conference Man et al. 3/6/2012 0.4 telephone conference Man et al. 3/19/2012 0.7 telephone conference Man et al., email correspondence, conference Sarvis/Goodman

4/3/2012 4/4/2012 4/5/2012 4/9/2012 4/11/2012 5/1/2012 5/8/2012 5/15/2012 6/4/2012 TOTAL 2012 6/24/2013 6/26/2013 6/24/2013 6/26/2013 7/15/2013 7/19/2013 7/21/2013 10/22/2013 10/23/2013 TOTAL 2013 GRAND TOTAL 1.3 1.2 0.4 1.5 0.8 1.4 0.3 1.0 0.3 10.3 0.9 2.1 0.9 2.1 1.1 2.3 0.8 1.8 2.2 14.2 70.9 telephone conference Man et al., email correspondence telephone conference Lin, Man et al., email correspondence, stipulation conference Sarvis/Goodman, email correspondence DEERS research for Jean at DOJ telephone conference Lin, Man et al., revise motion to set deadline, correspondences with plaintiffs telephone conference Lin, Man et al.; review BLAG motion to intervene telephone conference Man et al. telephone conference Lin et al., conference Sarvis/Goodman telephone conference Man et al telephone conference plaintiffs, Goodman telephone conference plaintiffs, review Supreme Court opinions telephone conference plaintiffs, Goodman telephone conference plaintiffs, review Supreme Court opinions conference Sarvis/Goodman, email correspondence, revise show cause filing telephone conference plaintiffs, Goodman; email correspondence DoD conference call re Windsor implementation, email correspondence Review time records; prepare declaration in support of application for attorneys' fees Review time records; prepare declaration in support of application for attorneys' fees

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/s/ Christopher D. Man Christopher D. Man

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________________________ Hon. Richard G. Stearns United States District Judge

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Executed on October 28, 2013. /s/ Abbe David Lowell

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Executed on September 29th__, 2013.