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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

____________________________________)

SHANNON L. MCLAUGHLIN, et al., )

)Plaintiffs, ))

v. ) Civil Action No. 1:11-cv-11905-RGS)

CHUCK HAGEL,et al., ))

Defendants. )____________________________________)

DEFENDANTS OPPOSITION TO PLAINTIFFS APPLICATION

FOR AN AWARD OF ATTORNEYS FEES AND COSTS

Case 1:11-cv-11905-RGS Document 59 Filed 12/11/13 Page 1 of 23

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INTRODUCTION

Defendants oppose Plaintiffs fee application [Dkt. 56] under the Equal Access to Justice

Act (EAJA), 28 U.S.C. 2412, because the governments position in this civil action was

substantially justified. Section 3 of the Defense of Marriage Act (hereinafter Section 3) is a

statute that affects the rights and privileges of tens of thousands of legally married same-sex

couples in this country. Upon making a principled determination that the statute was

unconstitutional, the President directed the Executive Branch to cease defending equal protection

challenges to its constitutionality while continuing to enforce it, consistent with the Executives

obligation to take care that the laws be faithfully executed, unless and until Congress repealed

Section 3 or there was a definitive ruling by the judicial branch against the laws

constitutionality. Five members of the U.S. Supreme Court agreed that the Presidents approach

appropriately respected the roles of both the judicial and legislative branches of the government.

Additionally, the action of the agencies upon which this civil action is based, that is, to continue

enforcing Section3, had a reasonable basis in law and fact, including as reflected by the views of

four dissenting members of the Supreme Court who would have upheld Section 3. It is

indisputable that a reasonable person could think that the governments position as defined by

EAJA that is, the position taken during litigation and the action of the agency upon which the

civil action is based was proper. Accordingly, no fee award is appropriate under EAJA.

Even if this Court were to award fees, it should reduce Plaintiffs claim by at least 75%.

Plaintiffs make an exorbitant fee request of $170,229.69 in a case that was stayed from the outset

and remained so until the Supreme Courts ruling in United States v. Windsor, 133 S. Ct. 2675

(2013), which held Section 3 unconstitutional. This Court never ruled on Plaintiffs dispositive

motion seeking judgment on four different claims. Instead, this Court granted Plaintiffs

declaratory relief on their equal protection claim based on the binding precedent established in

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Windsor. Moreover, Plaintiffs have overstaffed the case, which led to excessive conferencing

and consultation, as well as duplicative and unproductive work. A significant portion of the

billing records also contains block-billing and vague entries, making it impossible to verify the

reasonableness of the claimed fees. Accordingly, a substantial reduction is appropriate.

BACKGROUND

Plaintiffs are veterans and members of the U.S. armed forces, and their same-sex spouses.

They brought this suit on October 27, 2011, challenging Section 3 of DOMA and provisions

defining spouse and surviving spouse in Titles 10, 32, and 38, which govern military and

veterans benefits. The Complaint raised equal protection, Tenth Amendment, substantive due

process, and Bill of Attainder claims, and sought declaratory relief and as well as an injunction

requiring Defendants to consider Plaintiffs claims for benefits without regard to the gender of

their spouses. Compl. at 32.

Eight months before Plaintiffs suit, the President had determined in connection with two

district court cases in the Second Circuit Windsor v. United States, No. l:10-cv-8435

(S.D.N.Y.), and Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.) that classifications based on

sexual orientation should be subject to a heightened standard of scrutiny, and that Section 3 of

DOMA, as applied to legally married same-sex couples, fail[ed] to meet that standard and [was]

therefore unconstitutional. AG Letter dated 2/23/11 [Dkt. 29-1] at 5. Based on this

determination, the Department of Justice ceased defending equal protection challenges to Section

3, and the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives

intervened in Windsor and Pedersento defend the constitutionality of the statute. The President

had also instructed Executive agencies to continue to enforce Section 3, consistent with the

Executives obligation to take care that the laws be faithfully executed, unless and until Congress

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repeals Section 3 or the judicial branch renders a definitive verdict against the laws

constitutionality. Id.

On November 21, 2011, before the governments answer was due in this case, Plaintiffs

moved for summary judgment [Dkt. 13]. On December 6, 2011, this Court granted the

governments consent motion for extension of time [Dkt. 26]. Thereafter, the parties also jointly

moved to stay the case because two other cases challenging Section 3 Massachusetts v. HHS

and Gill v. OPM were then pending before the First Circuit and the parties agreed that

resolution of those appeals would significantly affect the resolution of this case. [Dkt. 27].

On February 17, 2012, the Attorney General informed Congress that, as with Section 3,

the Department of Justice would not defend equal protection challenges to 38 U.S.C. 101(3)

and (31), which are identical in material respects to the language of Section 3. See AGs Letter,

dated 2/17/12 [Dkt. 28-2]. The Department of Justice similarly notified this Court of that

decision. SeeNotice to the Court [Dkt. 28-1]. In response, Plaintiffs moved to set a deadline for

BLAGs intervention [Dkt. 30], which this Court denied because it saw no reason to set such a

deadline given the posture of the case. See Minute Order dated 4/12/12. Thereafter, the

government again moved to continue the stay becauseMassachusetts andGill were still pending

in the First Circuit [Dkt. 31]. BLAG then intervened in the case, despite Plaintiffs opposition.

See Minute Order dated 5/15/13. On May 31, 2012, the First Circuit decidedMassachusettsand

Gill, holding Section 3 unconstitutional, but staying the issuance of its mandate because Supreme

Court review was highly likely. Massachusettsv. HHS,682 F.3d 1, 17 (1st Cir. 2012). In light

of the First Circuits stay, the government again moved to continue the stay in this case [Dkt.

40]. Plaintiffs unsuccessfully opposed the motion [Dkt. 41]. See Minute Order date 6/6/2012.

On June 26, 2013, the Supreme Court decided Windsor, 133 S. Ct. 2675. This Court

promptly ordered the parties to show cause why judgment should not be entered in favor of

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Plaintiffs. Minute Order 6/27/13. The government argued that Plaintiffs claims for declaratory

and injunctive relief under Titles 10 and 32 were moot because the Department of Defense

(DoD) intended to construe the term spouse in those titles to include same-sex spouses and

was working expeditiously to make available Titles 10 and 32 benefits to the same-sex spouses

of service members. See Response to Order to Show Cause [Dkt. 47] at 2-3. With respect to

Plaintiffs request that the Department of Veterans Affairs process their benefits claims under

Title 38, the government argued that no plaintiff had sufficiently alleged that he or she had

applied for or would be entitled to veterans benefits. Id. at 3-4. The government also noted that

in any event, the Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105, had

divested this Court of jurisdiction to hear any claims of denial of veterans benefits. Id. at 4-5.

On September 9, 2013, the government further informed this Court that, in light of

Windsor, DoD had begun to extend benefits to the same-sex spouses of uniformed service

members and DoD civilian employees, and that with respect to veterans benefits, the President

had directed the Executive Branch to cease enforcing the provisions of Title 38 that limited the

definition of spouse and surviving spouse to opposite-sex married couples. [Dkt. 50]. The

next day, Plaintiffs requested that this Court grant their motion for summary judgment. [Dkt.

51]. On September 12, 2013, this Court ordered the parties to propose a declaratory judgment

[Dkt. 52]. The parties jointly filed a proposed judgment, which was entered on October 2, 2013.

[Dkts. 53-55]. The judgment addressed only Plaintiffs equal protection claim. [Dkt. 55].

ARGUMENT

I. THIS COURT SHOULD DENY PLAINTIFFS FEE APPLICATION

A. The United States Position Was Substantially Justified.

Under EAJA, the United States is not liable for attorneys fees if its position was

substantially justified. 28 U.S.C. 2412(d)(1)(A). The Supreme Court has explained that

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substantially justified is not justified to a high degree, but rather justified in substance or in

the mainthat is, justified to a degree that could satisfy a reasonable person. Pierce v.

Underwood, 487 U.S. 552, 565 (1988). [I]f a reasonable person could think it correct, that is, if

it has a reasonable basis in law and fact, no award of fees under EAJA is proper. Id. at 566 n.2.

Moreover, as Congress has made clear, the government need not show that it had a substantial

probability of prevailing in order to demonstrate that its position was substantially justified.

H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. at 11 (1980). The government must, however,

justify the position it took both during the litigation and the agency proceedings that preceded

that litigation, Castaneda-Castillo v. Holder, 723 F.3d 48, 73 (1st Cir. 2013); see also 28 U.S.C.

2412(d)(2)(D), and only one substantial justification finding for the entire civil action is to be

made. INS v. Jean, 496 U.S. 154, 159 (1990). Further, the government must demonstrate that

its position was substantially justified by a preponderance of the evidence. De Allende v. Baker,

891 F.2d 7, 12 (1st Cir. 1989).

The governments position was substantially justified in this case. This case was filed

eight months after the Presidents determination that Section 3 was unconstitutional under the

equal protection component of the Fifth Amendment. The President had directed the Department

of Justice to cease defending equal protection challenges to Section 3, while providing Congress

a full and fair opportunity to present arguments in defense of Section 3. See AG Letter dated

2/23/11 at 5. The President also had directed the Executive agencies to continue to enforce

Section 3 unless and until Congress repealed the law or the judicial branch rendered a definitive

verdict against the laws constitutionality. See id. The President considered that course of action

to be the most appropriate way to fulfill his obligation to take Care that the Laws be faithfully

executed, U.S. Const. Art. II, 3. See AG Letter dated 2/23/11 at 5. As the Attorney General

explained, this approach respect[ed] the actions of the prior Congress that enacted DOMA and

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recognize[d] the judiciary as the final arbiter of the constitutional claims raised. Id. Thus,

when Plaintiffs filed this case challenging the definitions of spouse and surviving spouse in

Title 38, which are in all material respects identical to Section 3, the Attorney General similarly

notified Congress pursuant to 28 U.S.C. 530D, that the Executive Branch would pursue the

same approach. See AG Letter dated 2/17/12 [Dkt. 28-2] at 2. As this Court is aware, the

Supreme Court ultimately struck down Section 3s constitutionality in Windsor. The Executive

Branch accordingly construed Titles 10 and 32, both of which define spouse to mean husband

or wife, as the case may be, 10 U.S.C. 101(f)(5); 32 U.S.C. 101(18), to include same-sex

spouses. And the President directed the Executive Branch to cease enforcing the provisions of

Title 38 that limited the definitions of spouse and surviving spouse to opposite-sex married

couples.

Plaintiffs argument that the governments position lacked substantial justification hinges

entirely upon the proposition that once the President determines a law to be unconstitutional, he

must direct the Executive Branch to stop enforcing the law immediately. See Pls. Mem. at 2.

According to Plaintiffs, the Presidents oath to uphold the Constitution necessarily encompasses

a duty to disregard unconstitutional laws such as Section 3 of DOMA and the definitions in

Title 38 even before any judicial determination of their constitutionality. Id.at 14. Thus,

Plaintiffs argument for purposes of substantial justification is that no reasonable person could

think that the governments continued enforcement of Section 3 had any basis in law and fact.

The President, however, is under no constitutional compulsion to follow the course

Plaintiffs suggest. Although the President may decide in certain circumstances not to enforce a

statute he has determined to be unconstitutional, he may also properly determine, as he did in the

DOMA litigation, that the proper course is to continue to enforce the duly enacted statute to

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maintain an Article III case or controversy and obtain a definitive resolution of the

constitutionality of the statute by the Judiciary.

Accordingly, a reasonable person could conclude that the Presidents position was

proper. Indeed, five members of the United States Supreme Court did just that, in holding that

Windsorwas justiciable despite the fact that the President agreed with the plaintiff that Section 3

was unconstitutional. The Supreme Court recognized that the Presidents approach properly

respected the role of the judiciary:

if the Executive's agreement with a plaintiff that a law is unconstitutional isenough to preclude judicial review, then the Supreme Court's primary role in

determining the constitutionality of a law that has inflicted real injury on aplaintiff who has brought a justiciable legal claim would become only secondaryto the Presidents. This would undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with theConstitution, [i]t is emphatically the province and duty of the judicial departmentto say what the law is. Zivotofsky v. Clinton, 566 U.S. , , 132 S.Ct.1421, 14271428, 182 L.Ed.2d 423 (2012) (quotingMarbury v. Madison, 1Cranch 137, 177, 2 L.Ed. 60 (1803)).

Windsor, 133 S. Ct. at 2688-89. The Court further recognized that significant separation-of-

powers concerns would have arisen if the President had simply declared Section 3

unconstitutional and ceased to enforce it prior to Supreme Court review:

Similarly, with respect to the legislative power, when Congress has passed astatute and a President has signed it, it poses grave challenges to the separation ofpowers for the Executive at a particular moment to be able to nullify Congressenactment solely on its own initiative and without any determination from theCourt.

Id. At the same time, the Court acknowledged the difficult choice the President faced upon

making a principled determination that a statute is unconstitutional. Id. at 2689. The President

could have decided to no longer enforce Section 3, but he was not required to do so. On this

latter point, the dissenting opinion cited by Plaintiffs (Pls. Memo. at 15) agreed: This suit saw

the light of day only because the President enforced the Act . . . even though he believed it

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unconstitutional. He could have equally chosen (more appropriately, some would say) neither to

enforce nor to defend the statute he believed to be unconstitutional. Id.at 2702 (Scalia, J.,

dissenting).

Aside from the significant separation-of-powers concerns that would arise from the non-

enforcement approach that Plaintiffs incorrectly claim was constitutionally compelled, the

Supreme Court also noted that the Presidents decision not to defend Section 3 was based on a

constitutional theory not yet established in judicial decisions. Id.at 2688; see also id. at 2583-

84 (This case is unusual . . . because the 530D letter was not preceded by an adverse

judgment but instead reflected the Executives own conclusion, relying on a definition still

being debated and considered in the courts, that heightened equal protection scrutiny should

apply to laws that classify on the basis of sexual orientation.). Indeed, at the time of the

Windsor district court litigation, no court had held that classification based on sexual orientation

should be subject to a heightened form of scrutiny, and every court that had considered the issue

had ruled otherwise. See AG Letter dated 2/23/11 at 3. Although the Supreme Court has set

forth certain criteria for determining whether heightened scrutiny applies to a particular

classification, it had not yet determined whether that standard applied to classifications based on

sexual orientation. The Presidents decision to continue to enforce Section 3 while awaiting a

definitive judicial determination of its constitutionality was thus the more prudent course.

The reasonableness of the governments enforce-but-not-defend posture is further

supported by the breadth of Section 3s mandate and the magnitude of its impact. As the

Windsor majority recognized, Section 3 was of immediate importance to the Federal

Government and to hundreds of thousands of persons. 133 S. Ct. at 2689. The statute governed

over 1,000 federal statutes and affected the rights and privileged of the tens of thousands of

legally married same-sex couples in this country. Thus, whereas the integrity of the political

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process would be at risk if difficult constitutional issues were simply referred to the Court as a

routine exercise, the majority found that Windsor was not routine. Id. In sum, by virtue of

the difficulty the Executive face[d], id., and the unusual nature of the Section 3 litigation, the

governments chosen approach was a reasonable one.

In any event, both aspects of the government position as defined by EAJA that is,

the position taken during litigation and the action of the agency upon which the civil action is

based, see 28 U.S.C. 2412(d)(2)(D) were substantially justified.1 Plaintiffs complained that

they were forced to litigate their rights before this Court. Pls. Mem. at 11. But the agencies

underlying action to continue to enforce the challenged statutes had a reasonable basis in law and

fact. The Supreme Court has explained that a position can be justified even though it is not

correct. Pierce, 487 U.S. at 566 n.2. The test is whether a reasonable person could think the

agency position is correct. Aronov v. Napolitano, 562 F.3d 84, 94 (1st Cir. 2009) (en banc).

Four Supreme Court justices would have upheld the constitutionality of Section 3 (as would one

member of the Second Circuit panel in Windsor, 699 F.3d at 188). The 5-4 decision highlights

the fact that Section 3 presented a significant constitutional issue. Cf. De Allende, 891 F.2d at 13

(reversing district courts fee award where governments position was supported by decision in

parallel cases and by three members of the Supreme Court).

Moreover, the challenged statutes were duly enacted by Congress, and the Court of

Appeals has held that the substantial justification requirement in the EAJA means that the

1 Plaintiffs fee request encompasses litigation activities incurred as a result of BLAGs intervention. Under EAJA,the United States is defined to mean any agency and any official of the United States acting in his or her officialcapacity, 28 U.S.C. 2412(d)(2)(C), and the term must be strictly construed because EAJA is a partial waiver ofsovereign immunity, Castaneda-Castillo, 723 F.3d at 57. This Court, however, need not decide whether BLAG isdistinguishable from the United States because BLAGs position and the governments continued enforcementof the challenged statutes was also substantially justified. Indeed, as a general rule, the governments defense ofa congressional statute will usually be substantially justified. League of Women Voters v. FCC, 798 F.2d 1255,1259 (9th Cir. 1986); see also Grace v. Burger, 763 F.2d 457, 458 n.5 (D.C. Cir. 1985) (situations in which thegovernments defense of the constitutionality of a federal statute fails the substantial justified test should beexceptional).

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government, when adhering to the dictates of Congress, can be found to lack substantial

justification only if, at the time the government acted, the statutes invalidity was clearly

established. United States v. One Parcel of Real Property, 960 F.2d 200, 211 (1st Cir. 1992).

When this instant case was filed, the government was awaiting the judiciarys definitive

determination on the constitutionality of Section 3 that would have a binding effect on all federal

courts. The First Circuit itself stayed the issuance of its mandate which in turn maintained the

district courts stay of its injunctive judgment when it struck down Section 3 inMassachusetts

and Gill, because the Court anticipated that certiorari would be sought and that Supreme Court

review of Section 3 was highly likely. The governments cautious approach to continue

enforcement of Section 3 and the other challenged statutes until the Supreme Court decided

Windsor thus was reasonable and warranted.

B. Special Circumstances Warrant Denial of An Award of Attorneys Fees.

Under EAJA, the United States is also not liable for attorneys fees if special

circumstances make an award unjust. 28 U.S.C. 2412(d)(1)(A). The special circumstances

exception is a safety valve that gives the court discretion to deny awards where equitable

considerations dictate an award should not be made. H.R. Rep. No. 96-1418, at 11 (1980); see

also Scarborough v. Principi, 541 U.S. 401, 422-23 (2004). Here, special circumstances warrant

denial of Plaintiffs fee award. The above discussion already makes clear the unusual, non-

routine nature of the governments position in this and other litigation challenging Section 3. See

Windsor, 133 S. Ct. at 2683, 2687.

Moreover, the result Plaintiffs received was attributable to Windsor. By the time

Plaintiffs counsel were conferring with prospective plaintiffs, see Ex. A to McKean Decl. [Dkt.

56-6] (June to Aug. 2011), the President already had directed the Department of Justice to cease

defense of equal protection challenges to Section 3. In this Circuit, two other DOMA cases were

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already pending in the Court of Appeals. This Court stayed the case from the outset and never

ruled on Plaintiffs dispositive motion. Ultimately, the government provided the central relief

requested in the Complaint, i.e., processing of Plaintiffs claims for military and veterans

benefits without regard to the gender of their spouses, Compl. at 32, entirely due to its

implementation of Windsorand a Presidential directive. Specifically, in implementing Windsor,

DoD began to construe the term spouse in Titles 10 and 32 to include same-sex spouses. As

for veterans benefits, after Windsor,the President directed the Executive Branch to cease

enforcement of 38 U.S.C. 101(3), (31) to the extent the provisions limit veterans benefits to

opposite-sex couples. As the Attorney General explained, that decision was due to three

considerations: (1) Windsor reinforced the Executives determination that the Title 38

definitional provisions were unconstitutional under the Fifth Amendment; (2) BLAG had

withdrawn from pending litigation challenging the constitutionality of the Title 38 provisions,

and thus there was no need to continue enforcement to allow members of Congress to present a

defense of those provisions; and (3) an Article III court had held the provisions unconstitutional

on Fifth Amendment grounds in Cooper-Harris v. United States, No. 2:12-00887-CBM (C.D.

Cal. Aug. 29, 2013). See AG Letter, dated 9/4/13 [Dkt. 50-1].

Given the unique circumstances of this case, and particularly where Plaintiffs made no

significant substantive contribution to the ultimate resolution of the constitutional questions at

issue, this Court should exercise its discretion to deny a fee award against the United States. Cf.

S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Commn, 672 F.2d 426,

429 (5th Cir. 1982) (declining to award fees where agency did not file a brief or participate in

oral argument);League of Women Voters v. FCC, 568 F. Supp. 295, 300 (C.D. Cal. 1983)

(declining to award fees where the government did not initiate this litigation, . . . did not oppose

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plaintiffs motion for summary judgment, . . . [and] took no position on appeal), affd on other

grounds, 798 F.2d 1255 (9th Cir. 1986).

II. THIS COURT SHOULD REDUCE THE AMOUNT OF FEES REQUESTED

A. The Hours Billed Are Excessive and Unreasonable.

Even if this Court determines that Plaintiffs are entitled to attorneys fees, the fee request

is unreasonable and should be reduced. EAJA entitles a prevailing party only to reasonable

attorneys fees and expenses. 28 U.S.C. 2412(d);Jean, 496 U.S. at 160-61. A fee applicant

must make a good faith effort to exclude from a fee request hours that are excessive, redundant,

or otherwise unnecessary,Hensley v. Eckerhart, 461 U.S. 424, 434 (1983),

2

and bears the

burden of demonstrating the reasonableness of each element of its fee request. New Jersey v.

EPA, 703 F.3d 110, 113 (D.C. Cir. 2012). Where the applicant fails to carry this burden, the

court makes adjustments, reducing the award as appropriate. See Pennsylvania v. Del. Valley

Citizens Council for Clean Air, 478 U.S. 546, 554 n.2, 566-67 (1986) (expressing no

disagreement with general fee reductions of 48% and 33-1/3% for unnecessary, unreasonable or

unproductive work). [I]t is the courts prerogative (indeed, its duty) to winnow out excessive

hours, time spent tilting at windmills and the like. Officer Action League v. Puerto Rico, 247

F.3d 288, 295-96 (1st Cir. 2001).

Here, Plaintiffs make a fee request of $170,229.69 for the work of six attorneys (913.6

hours) and two paralegals (45.8 hours) in a case that was stayed from the outset and remained so

until the Supreme Courts ruling in Windsor. There were no court appearances and only minimal

litigation activities occurred both before and following Windsor.3 Although Plaintiffs indicate

2Hensley did not involve EAJA but its analysis applies to EAJA cases. See Jean, 496 U.S. at 161.3Defendants do not dispute Plaintiffs use of the rates of $187.26 per hour for 2011, $190.21 for 2012, and $192.24for 2013 for attorneys, and $100 per hour for paralegals. See Castaneda-Castillo, 723 F.3d at 77.

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that their requested amount already contained a 5% reduction, Pls Mem. at 16, that reduction is

grossly insufficient due to numerous deficiencies in their billing records.

1. The degree of success does not warrant the requested amount.

The Supreme Court has held that the extent of a plaintiffs success is a crucial factor in

determining the proper amount of an award of attorneys fees. Hensley, 461 U.S. at 440;

Farrar v. Hobby, 506 U.S. 103, 114 (1992) (Indeed, the most critical factor in determining the

reasonableness of a fee award is the degree of success obtained.) (quotingHensley, 461 U.S.

436). [W]here the plaintiff achieved only limited success, the district court should award only

that amount of fees that is reasonable in relation to the results obtained. Hensley, 461 U.S. at

440; see also McDonald v. HHS, 884 F.2d 1468, 1479 (1st Cir. 1989) (holding that the district

court abused its discretion in not discounting the fee award to reflect plaintiffs limited success).

Plaintiffs brought this suit to compel the Executive agencies to process their claims for

benefits without regard to the fact that their spouses are of the same sex. As discussed before,

the Executive agencies are now doing so, but not because of Plaintiffs litigation efforts; rather,

they are doing so because of the Supreme Courts ruling in Windsor. See Minute Order dated

6/27/13 (ordering parties to submit reasons why judgment should not enter for plaintiffs in light

of Windsor). Indeed, this Court did not grant Plaintiffs any injunctive relief. Although this

Court did grant declaratory relief, presumably to address Plaintiffs concern that future

administrations could change course and interpret Titles 10, 32 and 38 differently from the

Supreme Courts mandate in Windsor, see Pls Response to Status Report [Dkt. 51], that success

is about a future contingency and only a small part of this litigation. There is no doubt that

Plaintiffs brought suit primarily to have their benefits claims processed. And on that central

relief, Plaintiffs cannot attribute any success to their own litigation efforts.

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Significantly, this Court did not rule on the only dispositive motion Plaintiffs filed. In

fact, the summary judgment motion raised claims on which Plaintiffs certainly did not prevail,

namely the Tenth Amendment, substantive due process, and Bill of Attainder claims. In general,

work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the

ultimate result achieved . . . therefore no fee may be awarded. Hensley, 461 U.S. at 437

(internal quotation omitted). Even though the substantive due process claim may be interrelated

with the equal protection claim, the same cannot be said about the Tenth Amendment and Bill of

Attainder claims.

To be sure, the Supreme Court has said that in cases where the plaintiffs claims for relief

involve a common core of facts, it may be difficult to divide the hours expended on a claim-by-

claim basis and thus, the district court should focus on the significance of the overall relief

obtained by the plaintiff in relation to the hours reasonably expended on the litigation. Id.at

434-5. At the same time, Plaintiffs should exercise billing judgment with respect to hours

worked. Id. at 437. Here, Plaintiffs took only a 5% reduction, which is far from reasonable in

light of the very large fee request as compared to the overall success they obtained in this case.

Indeed, in addition to the fact that this Court never ruled on Plaintiffs dispositive motion,

Plaintiffs were unsuccessful in all three of their non-dispositive motions/oppositions: a motion

to set a briefing schedule for BLAGs intervention, an opposition to oppose BLAGs

intervention, and a partial opposition to the governments motion for a stay pending the First

Circuits issuance of mandate inMassachusetts and Gill. Following the Supreme Courts

decision in Windsor, Plaintiffs filed only two documents: a response to this Courts order to

show cause (2 pages) [Dkt. 45] and a response to Defendants status report (10 pages) [Dkt. 51].

They also worked with defendants to fashion a proposed judgment. Under these circumstances,

the amount of fees requested for the minimal litigation activities that occurred in this case to

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achieve a limited result is excessive. See United States v. Metro. Dist. Commn, 847 F.2d 12, 16

(1st Cir. 1988) (district court needs to retain a sense of overall proportion in analyzing fee

request). Accordingly, a significant global reduction of Plaintiffs fee request is appropriate.

2. Plaintiffs have overstaffed this case.

The Supreme Court has cautioned that hours are not reasonably expended when a case

is overstaffed or when the hours are duplicative. Hensley, 461 U.S. at 434. The First Circuit has

similarly observed that a partys claim that several lawyers were required to perform a single set

of tasks [is treated with] healthy skepticism. Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir.

1992); see also Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986). To this end, the First Circuit

has held that a court should not hesitate to discount hours if it sees signs that a prevailing party

has overstaffed a case. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297 (1st Cir.

2001). Such is the case here. The time records Plaintiffs submitted contain numerous instances

of excessive and duplicative work, and excessive conferencing and conferring, all of which are

unreasonable especially in light of the limited number of filings and lack of court appearances.

A list of the overstaffing entries, which also contained entries of excessive conferencing, is

attached as Exhibit A General Overstaffing.

Specifically, a substantial portion of the work performed by the six attorneys was

duplicative. The time entries contain numerous instances of multiple attorneys reviewing the

same documents, performing or reviewing the same research and editing the same documents.

For example, on October 25, 2011, three attorneys billed approximately 8 hours for editing and

revising the complaint. The next day, six attorneys billed approximately another 25.1 hours for

doing the same. On October 27, those same six attorneys billed approximately another 26.1

hours for more edits and review of the complaint. Such practices are excessive and redundant

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(even if some of those hours are block-billed entries, in that multiple tasks are accounted for in

a single time entry, rather than itemized for the time expended on specific tasks).

The work done by Plaintiffs counsel was also inefficient. For example, between August

25 and November 21, 2011 (and to the extent Defendants are able to determine from the

descriptions in the billing records), Plaintiffs counsel spent approximately 285.10 hours drafting

the complaint and motion for summary judgment. At a rate of $187.26 an hour, this amounts to

$53,387.83. Such a fee is excessive and should be reduced, not to mention the fact that time

spent for the unsuccessful claims should be deducted as discussed before. SeeWalsh v. Boston

Univ., 661 F. Supp. 2d 91, 107-08 (D. Mass. 2009) (finding an estimated 195 hours to oppose

and argue a motion for summary judgment excessive). Indeed, drafting the complaint and the

summary judgment motion should have been a straightforward task given the number of similar

cases challenging Section 3 that were already pending at the time, and the fact that briefing on

the Windsor dispositive motions in the district court was already complete a month before the

Complaint was filed in this case and two months before Plaintiffs filed their summary judgment

motion.

Plaintiffs claimed hours spent consulting and conferring among the attorneys is also

excessive. SeeConservation Law Found. v. Patrick, 767 F. Supp. 2d 244, 254 (D. Mass. 2011)

(applying a flat rate reduction in fees for excessive conferencing); see also E.E.O.C. v. AutoZone,

Inc., 934 F. Supp. 2d 342, 351 (D. Mass. 2013) (the time spent on conferencing must be within

reason, and excessive conferencing is to be disallowed). Here, about 450 hours were spent in

conferences, discussions, meetings, or telephone calls. Specifically, the attorneys at OutServe-

SLDN billed approximately 155 hours on telephone conferences and email correspondence, and

the Chadbourne attorneys billed approximately 295 hours for discussion, e-mailing, or

conferencing among co-counsel. These numbers do not even include block-billed entries in

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which time spent on conferencing was accounted for in a single time entry with other tasks. This

amount of conferencing is not reasonable; therefore, the amount of the award should be reduced.

In sum, Plaintiffs billing records reflect significant amount of duplicative, excessive and

unproductive charges, and thus, an across-the-board reduction is appropriate.

3. Time spent on media-related matters and matters not directlyrelated to litigation is not recoverable.

Plaintiffs cannot recover attorneys fees for time spent on media-related matters.

McLaughlin v. Bos. Sch. Comm., 976 F. Supp. 53, 72 (D. Mass 1997) (courts are unanimous in

denying awards of attorneys fees for media-related time); accord AutoZone, 934 F. Supp.2d at

351; Parker v. Town of Swansea, 310 F. Supp. 2d 376, 393 (D. Mass. 2004). This is so because

attorneys fees are permitted only for hours expended on the litigation. Hensley, 461 U.S. at

433. Thus, the approximately 29.8 media-related hours, outlined in Exhibit B Media-Related

Matters, spent tracking news stories, watching clients on the television showHardballand

reviewing press about the case is not recoverable and should be deducted as unnecessary.

Additionally, the 31.4 hours that counsel billed for talking to prospective plaintiffs and

looking for local counsel is excessive. SeeCushing v. McKee, 853 F. Supp. 2d 163, 174 (D. Me.

2012) (holding that nearly 10 hours spent looking for potential plaintiffs and local counsel was

excessive and deducting 8.8 hours). Similarly, there is no basis for charging the United States

time spent on complying with the Chadbourne firms internal administrative requirements, and

yet the billing records contain entries relating to preparing documents for DOMA pro bono

representation and engagement letters and perform[ing] conflicts check. See,e.g.,8/18/11,

10/13/11 and 10/21/11 entries [Dkt. 56-3] at 14, 18, 20. Compensation for other tasks, such as

reviewing background of new judge and discussing possibility of amicus brief with Senate

staff and Arnold Porter is also unnecessary to the legal issues of the case and should be

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excluded. A full breakdown of the unnecessary, unreasonable and unproductive tasks is detailed

in Exhibit C Unnecessary, Unreasonable and/or Unproductive Entries.

B. The Billing Records Are Not Sufficiently Clear or Detailed to Assess

Reasonableness.

The Court of Appeals has instructed that the absence of detailed contemporaneous time

records, except in extraordinary circumstances, will call for a substantial reduction in any award

or, in egregious cases, disallowance. Lipsett, 975 F.2d at 938 (internal quotation omitted). The

itemized statement must be a full and specific accounting of the tasks performed, including

among other things, the number of hours spent on each task as well as a description of the

nature of the tasks. Castaneda-Castillo, 723 F.3d at 79 (quotation marks and citation omitted).

In this case, the billing records are replete with block-billing and vague entries, both of which

are established bases for a fee reduction.

At least fifty percent of Plaintiffs billing records, which accounts for roughly $125,000,

includes block-billed entries in that multiple tasks are accounted for in a single time entry, rather

than itemized for the time expended on specific tasks. A list of block-billed entries is attached as

Exhibit D. Block-billing makes it difficult to determine whether time spent on any specific

task was reasonable and thus requires deciphering on the part of the courts. Conservation Law

Found., 767 F. Supp. 2d at 253 (D. Mass. 2011). In this case, for each of plaintiffs block-billed

entries, it is impossible to evaluate the reasonableness of the time allotted to each discreet

activity. For example, an October 24, 2011 entry indicates that associate Pusateri spent seven

hours on the following seven tasks: Conduct interview of J. Darrah and compose declaration;

revise complaint; revise category sheet and cover pages; compose pro hac vice motion and

declaration for D. McKean; review local rules regarding filing fees; organize and collect

supporting documentation; conference call with J. Henderson regarding declaration and

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questions. [Dkt. 56-3] at 20. In this example, there is no way to ascertain how long the

attorney spent for each task, including organizing and collecting supporting documentation,

which arguably may be excluded from the fee award as administrative or secretarial work. See

Conservation Law Found., 767 F. Supp. 2d at 254 (Whether performed by attorneys or legal

assistants, purely administrative work ought to be either eliminated or paid at lower rates.).

Rather than deciphering the bill, the Court should make an across-the-board reduction to account

for Plaintiffs pervasive use of block-billing. SeeTorres-Rivera v. Espada-Cruz, 524 F.3d 331,

399-40 (1st Cir. 2008) (holding that the district court reasonably reduced the fee request by

50%); Conservation Law Found., 767 F. Supp. 2d at 253 (applying a 20% global reduction

because of block-billing);AutoZone, Inc., 934 F. Supp. 2d at 355 (applying a 20% reduction for

the imprecise construction of many of the time entries and their frequent lack of task

differentiation).

In addition, Plaintiffs bills are replete with overly vague entries that make it impossible

to verify the reasonableness of the billing, either as to the necessity of that particular service or

the amount of time expended on a given legal task. Many entries simply say email

correspondence, memo, or telephone conference, without any sufficient elaboration. A

detailed list of entries that do not adequately explain the task for which fees are being sought is

attached as Exhibit E Vague Billing Entires. Consequently, the time claimed in Exhibit E

should be deducted as unreasonably vague. SeeTorres-Rivera, 524 F.3d at 336; see,e.g.,Stokes

v. Saga Intl Holidays, Ltd., 376 F. Supp. 2d 86, 94 (D. Mass. 2005) (party requesting attorneys

fees has the duty to provide adequate records to the court, and a record of telephone call without

describing the reason for the call is insufficient).

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C. Defendants Proposed Calculation.

The above discussion illustrates that Plaintiffs attorneys fees request of $170,229.69

should be reduced to account for: (1) the degree of Plaintiffs success and extremely limited

amount of litigation activity in this case; (2) overstaffing, duplicative and inefficient work, and

excessive conferencing and consultation; (3) improper inclusion of non-compensable activities

such as time spent on locating plaintiffs, media-related matters, performing conflicts checks and

preparing engagements letters for pro bono representation; and (4) the pervasive use of block-

billing and vague entries. Given the numerous deficiencies in the billing records, Defendants

respectfully submit that this Court should apply at least a 75% reduction to Plaintiffs fee

request. See Lewis v. Kendrick, 944 F.2d 949, 957-58 (1st Cir. 1991) (denying fee award where

the application reflected (1) no good faith effort to exclude excessive, redundant, or otherwise

unnecessary hours, (2) no reduction for time spent on unsuccessful claims, and (3) no allowance

for the limited degree of success achieved by the plaintiff); Torres-Rivera , 524 F.3d at 339-40

(district courts decision to make a 50% percent global reduction plainly falls within the range

of reasonableness);Role Models Am., Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004)

(applying a 50% reduction because of large number of deficiencies). Thus, even if this Court

determines that the governments position was not substantially justified, it should award no

more than $42,557.42 in fees, as well as $350 in costs.

CONCLUSION

For the foregoing reasons, this Court should deny Plaintiffs application for an award of

attorneys fees and costs.

Dated: December 11, 2013 Respectfully Submitted,

STUART F. DELERYAssistant Attorney General

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CARMEN M. ORTIZUnited States Attorney

ARTHUR R. GOLDBERGAssistant Branch Director

/s/ Jean Lin

JEAN LINSenior Trial CounselU.S. Department of JusticeCivil DivisionFederal Programs Branch20 Massachusetts Avenue, NWWashington, DC 20530Phone: (202) 514-3716

Fax: (202) 616-8470email: [email protected]

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CERTIFICATE OF SERVICE

I certify that on December 11, 2013, a true copy of the foregoing Defendants Opposition

to Plaintiffs Application for an Award of Attorneys Fees and Costs was served upon following

attorney of record for each other party through the Courts Electronic Case Filing system:

Ian McClatchey, [email protected] & PARKE LLP30 Rockefeller PlazaNew York, NY 10112

Abbe David Lowell, [email protected]

Christopher D. [email protected] & PARKE LLP1200 New Hampshire Ave., NWWashington, DC 20036

John M. Goodman, [email protected] [email protected] LEGAL DEFENSE NETWORKPost Office Box 65301Washington, DC 20035

/s/ Jean Lin

JEAN LIN

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EXHIBIT AGeneral Overstaffing

Case 1:11-cv-11905-RGS Document 59-1 Filed 12/11/13 Page 1 of 34

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Date Attorney Description of Task Hours

06/28/2011 DM telephone conference Mclaughlin, conference Sarvis/Goodman 1.40

06/28/2011 JG telephone conference Mclaughlin, conference Sarvis/McKean 1.40

07/13/2011 DMtelephone conference prospective plaintiffs, conference

Sarvis/Goodman1.10

07/13/2011 JG

telephone conference prospective plaintiffs , conference

Sarvis/McKean 1.10

08/06/2011 DM telephone conference Chadbourne & Parke 1.30

08/06/2011 JG telephone conference Chadbourne & Parke 1.30


Sarvis/Goodman1.50

08/08/2011 JGtelephone conference prospective plaintiffs , conference

Sarvis/McKean1.50


Sarvis/Goodman1.40

08/15/2011 JGtelephone conference prospective plaintiffs, conference

Sarvis/McKean1.40

08/16/2011 DM telephone conference Bornhoft, conference Sarvis/Goodman 1.20

08/16/2011 JG telephone conference Bomhoft, conference Sarvis/McKean 1.20

08/17/2011 DM conference Sarvis/Goodman, Chadbourne & Parke 2.10

08/17/2011 JG conference Sarvis/McKean, Chadbourne & Parke 2.10

08/18/2011 CM Discuss DOMA issues with team. 0.20

08/18/2011 MPMeet with C . Man and representatives from SLDN regarding DOMA

pro bona engagement.1.50

08/18/2011 DMtelephone conference Hudson; telephone conference prospective

plaintiffs, conference Sarvis/Goodman2.70

08/18/2011 JGtelephone conference Hudson; telephone conference prospectiveplaintiffs, conference Sarvis/McKean

2.70



08/26/2011 DM telephone conference Snyder, conference Sarvis/Goodman 0.80

08/26/2011 JG telephone conference Snyder, conference Sarvis/McKean 0.80

09/14/2011 CMDiscuss Complaint and strategy with SLDN; discuss attorneys' fees,

exhaustion and attainder issues with M. Pusateri.1.30

General Overstaffing

Yellow Highlighting= Block-Billed Time; Blue Highlighting= Vague time entries;Green Highlighting=

Overstaffing; Red Highlighting= Media-Related Matters; Orange Highlighting= Unnecessary, Unreasonable or

Unproductive Work; The attorneys on this case are Noelle Francis (NF), John Goodman (JG) Abbe David Lowell

(ADL), Christopher Man (CM), Ian McClatchey (IM), David McKean (DM) Michael Pusateri (MP) and the paralegals

on this case are Michelle Chasse (MC) and Jamie Moses (JM)

Legend:

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Legend:

09/15/2011 CMTelephone call with SLDN regarding litigation strategy; discuss strategy

with M. Pusateri; review draft Complaint.2.00

09/15/2011 MP

Participate in conference call with SLDN regarding upcoming filings;

revise brief; review bills of attainder articles and filings; draft motion

based upon bills of attainder; review Gills docket and discuss same with

C. Man.

6.50

09/15/2011 DMtelephone conference Hill, telephone conference Chadbourne &

Parke0.60

09/15/2011 JGtelephone conference Hill, telephone conference Chadbourne &

Parke0.60

09/22/2011 DM telephone conference Hudson, conference Sarvis/Goodman 1.70

09/22/2011 JG telephone conference Hudson, conference Sarvis/McKean 1.70

09/29/2011 CMTelephone call with SLDN regarding strategy; discuss briefs and

Complaint with M. Pusateri; review Log Cabin ruling .1.00

09/29/2011 MP

Participate in conference call with C. Man and SLDN to discuss

administrative procedures; review statutory bases for benefits; revise

Complaint.

1.50

09/29/2011 DMtelephone conference Hudson, telephone conference Chadbourne &

Parke

2.30

09/29/2011 JGtelephone conference Hudson, telephone conference Chadbourne &

Parke2.30

09/30/2011 DM telephone conference Rossr, conference Sarvis/Goodman 0.70

09/30/2011 JG telephone conference Rossr, conference Sarvis/McKean 0.70

10/14/2011 DM telephone conference Man, email correspondence 1.00

10/14/2011 JG telephone conference Man, email correspondence 1.00

10/22/2011 DM telephone conference plaintiffs; email correspondence 2.00

10/22/2011 JG telephone conference plaintiffs; email correspondence 2.00

10/24/2011 CM

Discuss the Complaint with SLDN and team; make edits;edit Motion

for Summary Judgment; incorporate SLDN edits; discuss plaintiff

issues with M. Pusateri.

4.20

10/24/2011 JG revise complaint, email correspondence 2.50

10/25/2011 CM Discuss Complaint with SLDN and team. 2.50

10/25/2011 ADL Review and revise complaint . 0.50

10/25/2011 MPIncorporate and synthesize edits into Complaint; discuss title 32 and

title 38 with D. McKean; discuss edits with C. Man.5.00

10/26/2011 ADL Review and revise Complaint. 0.60

10/26/2011 MPRevise Complaint; incorporate and review edits of J. Goodman; review

pro hac paperwork .4.30

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Legend:

10/26/2011 CM Edit and discuss Complaint wi th SLDN and team. 5.50

10/26/2011 IMReview and comment on draft Complaint and pro hac vice motions and

related materials.2.50

10/26/2011 DM revise complaint, email correspondence, conference Sarvis/Goodman 6.10

10/26/2011 JG revise complaint, email correspondence, conference Sarvis/McKean 6.10

10/27/2011 IM

Final comments to draft Complaint; file Complaint, pro hac motions and

related paperwork; multiple meetings C . Man and M. Pusateri

regarding same.

4.20

10/27/2011 CMFinalize and file Complaint; meet with plaintiffs and SLDN; discuss

potential new plaintiffs; discuss case with DOJ and re-cap with SLDN.6.90

10/27/2011 MP

Finalize Complaint; file Complaint; research service of process rules;

communicate with E. Sussman regarding Department of Justice

contacts; revise and disseminate amended declaration for C. Morgan.

4.00

10/27/2011 ADL Review Complaint, motions. 1.00



11/01/2011 JG telephone conference, email correspondence, memo 0.90

11/01/2011 DM telephone conference, email correspondence, memo 0.90

11/02/2011 DM telephone conference, conference Sarvis/Goodman 1.40

11/02/2011 JG telephone conference, conference Sarvis/McKean 1.40

11/02/2011 CM Team call regarding strategy. 1.00

11/02/2011 MPParticipate in conference call about litigation strategy with C. Man and

representatives from SLDN.0.70

11/15/2011 DM revise summary judgment,conference Sarvis/Goodman 3.0011/15/2011 JG revise summary judgment, conference Sarvis/McKean 3.00

11/16/2011 CMTelephone call with SLDN regarding brief and strategy;discuss issues

raised by other LGBT groups; discuss with DOJ.1.50

11/16/2011 DM telephone conference, email correspondence 0.80

11/16/2011 JG telephone conference, email correspondence 0.80

11/17/2011 CM Telephone call with SLDN regarding brief and strategy. 1.80

11/17/2011 DM telephone conferences,revise summary judgment 2.40

11/17/2011 JG telephone conferences,revise summary judgment 2.40

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Legend:

11/18/2011 DM telephone conferences,revise summary judgment 0.80

11/18/2011 JG telephone conferences, revise summary judgment 0.80

01/05/2012 DMtelephone conference Lin, Man et al.; review BLAG motion to

intervene1.40

01/05/2012 JGtelephone conference Lin, Man et al.;review BLAG motion to

intervene1.40

02/23/2012 CMReview California opinion finding DOMA unconstitutional; discuss

same with team1.00

02/23/2012 MP Review California District Court' s decision in Golinski case 0.30

03/04/2012 DM telephone conference Man et al., email correspondence 1.30

03/04/2012 JG telephone conference Man et al., email correspondence 1.30

03/19/2012 DMtelephone conference Man et al., email correspondence, conference

Sarvis/Goodman0.70

03/19/2012 JGtelephone conference Man et al., email correspondence, conference

Sarvis/McKean0.70

04/04/2012 DMtelephone conference Lin, Man et al., email correspondence,

stipulation1.20

04/04/2012 JGtelephone conference Lin, Man et al., email correspondence,

stipulation

1.20

04/06/2012 DM telephone conference Man et al 0.30

04/06/2012 JG telephone conference Man et al 0.30

05/04/2012 DM conference Sarvis/Goodman, email correspondence 0.40

05/04/2012 JG conference Sarvis/McKean, email correspondence 0.40

05/15/2012 DM telephone conference Lin et al., conference Sarvis/Goodman 1.00

05/15/2012 JG telephone conference Lin et al., conference Sarvis/McKean 1.00

05/31/2012 CMReview First Circuit DOMA decision; discuss same with DOJ and

SLDN.2.50

05/31/2012 IM Review 1st circuit decision. 0.3006/03/2012 DM telephone conference Man et al. 0.40

06/03/2012 JG telephone conference Man et al. 0.40

06/04/2012 ADL Review Court Opinion;meeting with C. Man regarding strategy. 0.90

06/04/2012 CM Discuss litigation strategy with SLDN, OOJ and A . Lowell. 1.20

08/05/2012 DM telephone conference Man et al. 0.30

08/05/2012 JG telephone conference Man et al. 0.30

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Legend:

11/04/2012 DMtelephone conference Lin, Man et al., revise motion to set deadline,

correspondences with plaintiffs0.80

11/04/2012 JG telephone conference Lin, Man et al.,revise motion to set deadline 0.80

11/28/2012 CM Review DOMA issues headed to Supreme Court. 1.50

06/24/2013 DM telephone conference plaintiffs, Goodman 0.90

06/24/2013 DM telephone conference plaintiffs, Goodman 0.90

06/24/2013 JG telephone conference plaintiffs, McKean 0.90

06/24/2013 JG telephone conference plaintiffs, McKean 0.90

06/25/2013 CM Discuss response to anticipated DOMA decision with D. McKean. 0.30

06/26/2013 CM

Review Supreme Court decision on DOMA and Prop 8 regarding

standing; discuss implications and next steps with clients and co-

counsel; call DOJ regarding same; review implementation directives

from DOD and President.

4.20

06/26/2013 ADL Review U.S. Supreme Court opinions. 0.50

06/26/2013 DM telephone conference plaintiffs, review Supreme Court opinions 2.10

06/26/2013 DM telephone conference plaintiffs, review Supreme Court opinions 2.10

06/26/2013 JG telephone conference plaintiffs, review Supreme Court opinions 2.10

06/26/2013 JG telephone conference plaintiffs, review Supreme Court opinions 2.10

06/27/2013 JG email correspondence, review Supreme Court ops 1.40

07/15/2013 DMconference Sarvis/Goodman, email correspondence, revise show

cause filing1.10

07/15/2013 JGconference Sarvis/McKean, email correspondence, revise show cause

filing1.10

07/19/2013 DM telephone conference plaintiffs, Goodman; email correspondence 2.30

07/19/2013 JGtelephone conference plaintiffs, McKean; rev papers; email

correspondence2.30

09/09/2013 CMReview DOJ status report, draft and circulate response and discuss same

with team.3.70

09/09/2013 JG review DoJ status report; revise response 0.90

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Legend:

09/10/2013 NF Review and revise Plaintiffs' response to Defendants' status report. 1.30

09/10/2013 ADLReview and revise status report; meeting with C. Man regarding status

report.0.80

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EXHIBIT B

Media-Related Matters


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10/21/2011 CM

Edit Complaint and Motion for Summary Judgment; discuss same with P.

Smith; coordinate plaintiff issues and media issues with M. Pusateri

and SLDN.

4.30

10/24/2011 ADL Review and revise Complaint, press releases, motion. 0.70

10/28/2011 ADL Review media reports; meeting with C. Man regarding tasks 0.50

10/28/2011 MPTrack news stories about SLDN lawsuit announcement; review

appellate brief in Gill/Massachusetts consolidated appeal.1.50

10/28/2011 CMMonitor press and discus same with SLDN;discuss additionalplaintiffs with Southern Poverty Law Center; review Gill brief in First

Circuit.

5.00

10/31/2011 CM

Review SLDN pressand First Circuit briefs; discuss additional

plaintiffs with the Southern Poverty Law Center; research standing

issues for BLAG.

3.70

11/01/2011 CMResearch BLAG standing issues, prior congressional intervention;

research equal protection issues; review press.3.30

11/03/2011 CMDiscuss potential Senate brief with A.Franze;review press; review

new First Circuit briefs; telephone call with J. Lin at DOJ .4.30

12/08/2011 CM Review press on case. 0.20

12/14/2011 CM Discuss SLDN litigation and expenses with A. Giaccia and SLDN;reviewpress on case.

0.40

12/15/2011 CM

Send Motion for Summary Judgment to P . Smith and send same to M.

Nemetz; discuss amicus issues with M. Nemetz; watch clients on

Hardball; discuss same with clients.

0.50

12/20/2011 CM Review press. 0.20

12/27/2011 CM Review article on case in Huffington Post. 0.10

12/30/2011 CM Review NY Times article on case. 0.10

05/02/2012 CMDiscuss opposition to BLAG' s motion to intervene with SLDN; review

press on BLAG intervention.0.30

10/09/2012 CM Review press regarding plaintiffs. 0.20

10/17/2012 CM Review press regarding BLAG spending. 0.2011/22/2012 CM Review Washington Post article regarding C. Morgan. 0.20

11/26/2012 CM Circulate recent press regarding DOMA suit. 0.20

06/23/2013 CM Review SLDN press. 0.40

08/16/2013 CMDiscuss case status and remaining issues with clients, press and co-

counsel;research jurisdictional issues.2.00

10/02/2013 CM Discuss SLDN suit with media and LGBT groups. 1.50Total Hours: 29.80

Media-Related Matters

Legend:Yellow Highlighting= Block-Billed Time; Blue Highlighting = Vague time entries; Green Highlighting= Overstaffing;

Red Highlighting= Media-Related Matters; Orange Highlighting= Unnecessary, Unreasonable or Unproductive Work;

The attorneys on this case are Noelle Francis (NF), John Goodman (JG) Abbe David Lowell (ADL), Christopher Man

(CM), Ian McClatchey (IM), David McKean (DM) Michael Pusateri (MP) and the paralegals on this case are Michelle

Chasse (MC) and Jamie Moses (JM)

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EXHIBIT CUnnecessary, Unreasonable and/or

Unproductive Entries


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07/13/2011 DM telephone conference prospective plaintiffs, conference Sarvis/Goodman 1.10

07/13/2011 JG telephone conference prospective plaintiffs , conference Sarvis/McKean 1.10


08/08/2011 JG telephone conference prospective plaintiffs , conference Sarvis/McKean 1.50


08/15/2011 JG telephone conference prospective plaintiffs, conference Sarvis/McKean 1.40

08/18/2011 DMtelephone conference Hudson;telephone conference prospective


08/18/2011 JGtelephone conference Hudson; telephone conference prospective

plaintiffs, conference Sarvis/McKean2.70

08/18/2011 MPMeet with C. Man and representatives from SLDN regarding pro bono

engagement.1.50

09/20/2011 CM

Line up local counsel; discuss plaintiffs with SLDN; research and draft

Complaint and Motion for Summary Judgment; discuss same with M.Pusateri.

5.20

10/13/2011 MP

Edit and finalize Complaint and Motion for Summary Judgment drafts for

dissemination to SLDN for DOMA representation; perform conflicts

check; finalize and disseminate skeleton declaration and declaration of S.

Hill; research court of veterans claims docket.

6.70

10/21/2011 MP

Organize supporting documents for DOMA pro bono representation

including declarations and engagement letters;conduct conference calls

with SLDN, J. Darrah, S. Bornhoft, J. Snyder, and others regarding

documents; disseminate documents

8.70

10/27/2011 CMFinalize and file Complaint; meet with plaintiffs and SLDN; discuss

potential new plaintiffs; discuss case with DOJ and re-cap with SLDN.

6.90

10/28/2011 CM

Monitor press and discuss same with SLDN; discuss additional

plaintiffs with Southern Poverty Law Center; review Gill brief in First

Circuit.

5.00

10/31/2011 CM

Review SLDN press and First Circuit briefs; discuss additional plaintiffs

with the Southern Poverty Law Center; research standing issues for

BLAG.

3.70

11/03/2011 CMDiscuss potential Senate brief with A.Franze;review press; review new

First Circuit briefs; telephone call with J. Lin at DOJ .4.30

Unnecessary, Unreasonable and/or Unproductive



The attorneys on this case are Noelle Francis (NF), John Goodman (JG) Abbe David Lowell (ADL), Christopher Man (CM),

Ian McClatchey (IM), David McKean (DM) Michael Pusateri (MP) and the paralegals on this case are Michelle Chasse (MC)

and Jamie Moses (JM)

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Date Attorney Description of Task HoursUnnecessary, Unreasonable and/or Unproductive



The attorneys on this case are Noelle Francis (NF), John Goodman (JG) Abbe David Lowell (ADL), Christopher Man (CM),

Ian McClatchey (IM), David McKean (DM) Michael Pusateri (MP) and the paralegals on this case are Michelle Chasse (MC)

and Jamie Moses (JM)

11/04/2011 CM

Edit and circulate Motion for Summary Judgment; telephone call with

General Counsel of House regarding his question about a stay; discuss

possibility of amicus brief with Senate staff and Arnold & Porter ;

review new First Circuit briefs.

3.70

11/09/2011 MP

Communicate with I. McClatchey and C. Man about transfer of case to new

judge; research Judge Stearns' civil rights jurisprudence;begin cite

checking and revising Motion for Summary Judgment.

2.30

11/09/2011 CM

Edit Motion for Summary Judgment and send to A. Lowell; review

background of new judge and discuss reassignment with team; discuss

litigation with J. Lin at DOJ; discuss potential amicus with Senate

staffers.

3.50

11/10/2011 CMDiscuss timing for filing Motion for summary Judgment and potential new

plaintiffs with team.2.70

11/11/2011 CM

Edit and discuss Motion for Summary Judgment with M. Pusateri; discuss

timing for filing Motion for Summary Judgment and potential new

plaintiffs with team .

2.70

11/15/2011 IM

Multiple e-mails M . Flaherty in response to administrative requests for

information; telephone call and e-mail M . Pusateri and P. Creason

regarding same; review and comment on draft memorandum of law in

support of Motion for Summary Judgment.

1.80

11/15/2011 CM Discuss Motion for Summary Judgment with ACLU and LBGT groups. 1.70

11/16/2011 CMTelephone call with SLDN regarding brief and strategy;discuss issues

raised by other LGBT groups; discuss with DOJ.1.50

11/16/2011 MP

Proof-read DOMA Motion for Summary Judgment; disseminate changes;

review and organize all supporting documentation for summary judgment

motion;participate in conference call with C. Man and SLDN team; review

documentation with J. Moses; review comments from GLAD ACLU and

others.

1.90

11/18/2011 CM Telephone call with LGBT group regarding DOMA; edit brief anddiscuss same with SLDN; review BLAG brief; discuss same with DOJ and

team.

4.10

11/19/2011 CM Discuss brief with ACLU. 0.40

07/22/2013 CMTelephone call with LGBT groups regarding Post -Windsor

implementation.0.30

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EXHIBIT D

Block-Billed Entries


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Sarvis/Goodman1.10



Sarvis/Goodman1.50


08/09/2011 CM Discuss DOMA litigation with SLDN and review background materials. 1.00


Sarvis/Goodman1.40


08/16/2011 DM telephone conference Bornhoft, conference Sarvis/Goodman 1.20

08/16/2011 JG telephone conference Bomhoft, conference Sarvis/McKean 1.20

08/17/2011 CM

Review DOMA background materials and meet with SLDN regarding

lawsuit; update A. Lowell regarding same. 2.20

08/18/2011 DMtelephone conference Hudson;telephone conference prospective


08/18/2011 JGtelephone conference Hudson; telephone conference prospective

plaintiffs, conference Sarvis/McKean2.70

08/22/2011 CMDiscuss DOMA research with M. Pusateri and review background

materials.0.50

08/24/2011 CMReview exhaustion materials sent by SLDN and discuss same with M.

Pusateri.0.60

08/25/2011 MP

Read DOMA briefs in Golinski case; begin drafting brief; summarize

findings concerning exhaustion of remedies; research presidential authority

to uphold constitution.

5.00

08/26/2011 DM telephone conference Snyder, conference Sarvis/Goodman 0.80

08/26/2011 JG telephone conference Snyder, conference Sarvis/McKean 0.80

08/29/2011 MPRead brief of Department of Justice in Golinski case; continue drafting

complaint and brief for DOMA representation.6.00

08/30/2011 MPReview case law and continue drafting brief for DOMA pro bono

representation.6.50

08/30/2011 CM Review Tribe article on DOMA and discuss Complaint with M. Pusateri. 0.30


Legend:

Yellow Highlighting= Block-Billed Time; Blue Highlighting= Vague time entries;Green Highlighting= Overstaffing; Red

Highlighting= Media-Related Matters; Orange Highlighting= Unnecessary, Unreasonable or Unproductive Work; The

attorneys on this case are Noelle Francis (NF), John Goodman (JG) Abbe David Lowell (ADL), Christopher Man (CM), Ian

McClatchey (IM), David McKean (DM) Michael Pusateri (MP) and the paralegals on this case are Michelle Chasse (MC) and

Jamie Moses (JM)

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Legend:





Jamie Moses (JM)

08/31/2011 MPRead DOMA legislative history; review legislative history of military

benefits programs, continue drafting brief for DOMA bono representation.5.50

09/06/2011 MP

Edit brief for DOMA pro bona representation; review statutory history of

Don't Ask Don 't Tell; review senate reports and law review articles about

Don't Ask Don't Tell.

4.00

09/07/2011 MPReview legislative history and house comments on DOMA for pro bona

engagement; continue drafting and editing brief.3.00

09/08/2011 MP Review DOMA roundtable materials for pro bono representation; continueediting brief.

8.00

09/12/2011 MPResearch law review articles on rational basis review; continue editing and

drafting brief for DOMA pro bono representation.7.50

09/13/2011 MP

Begin drafting Complaint in DOMA pro bono representation; correspond

with J. Goodman regarding same; review biographies of putative plaintiffs;

discuss strategy with C. Man .

6.20

09/14/2011 CMDiscuss Complaint and strategy with SLDN; discuss attorneys ' fees,

exhaustion and attainder issues with M. Pusateri.1.30

09/15/2011 CMTelephone call with SLDN regarding litigation strategy; discuss strategy

with M. Pusateri; review draft Complaint.2.00

09/15/2011 MP

Participate in conference call wi th SLDN regarding upcoming filings;

revise brief; review bills of attainder articles and filings; draft motion based

upon bills of attainder; review Gills docket and discuss same with C.Man.

6.50

09/15/2011 DM telephone conference Hill, telephone conference Chadbourne & Parke 0.60

09/15/2011 JG telephone conference Hill, telephone conference Chadbourne & Parke 0.60

09/16/2011 CMDiscuss SLDN matter with A. Giaccia, A. Lowell and discuss litigation

issues with M. Pusateri and SLDN; review DADT guidance materials.1.20

09/19/2011 MP Research standing and declaratory judgment rules for DOMA pro bonorepresentation; review local rules for filing.

2.50

09/19/2011 CMDiscuss litigation issues with SLDN; review briefs in other LGBT cases and

revise case law; discuss Motion for Summary Judgment with M. Pusateri.6.30

09/20/2011 CM

Line up local counsel; discuss plaintiffs with SLDN; research and draft

Complaint and Motion for Summary Judgment; discuss same with M.

Pusateri.

5.20

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Legend:





Jamie Moses (JM)

10/14/2011 CMWork with M. Pusateri on Complaint and Motion for Summary Judgment

and in lining up plaintiffs; discuss filings with J. Goodman .2.30

10/14/2011 MP

Revise DOMA Complaint ; review materials from J. Goodman; interview J.

Snyder about declaration of S. Hill; interview G. Ross for declaration;

review tenth amendment case law.

8.70

10/14/2011 DM telephone conference Man, email correspondence 1.00

10/14/2011 JG telephone conference Man, email correspondence 1.00

10/15/2011 JGrevise summary judgment brief; investigation of law re legislative history of

"spouse"

2.50

10/17/2011 JG revise motion papers; email correspondence 2.10

10/18/2011 JG telephone conference Ladner; revise summary judgment brief 1.90

10/20/2011 MP

Conduct interviews of D. Henderson and C. Morgan; organize supporting

materials; revise and prepare and disseminate declarations; follow up

regarding declarations of S. Bornhoft and G. Ross.

6.10

10/20/2011 IMReview MA Local Rules regarding filing of Complaint; correspondence C.

Man and M. Pusateri regarding same.0.60

10/20/2011 DM conference Sarvis/Goodman, correspondences 1.30

10/21/2011 CM

Edit Complaint and Motion for Summary Judgment; discuss same with P.

Smith; coordinate plaintiff issues and media issues with M. Pusateri and

SLDN.

4.30

10/21/2011 MP

Organize supporting documents for DOMA pro bono representation

including declarations and engagement letters; conduct conference calls

with SLDN, J. Darrah, S. Bornhoft, J. Snyder and others regarding

documents; disseminate documents.

8.70

10/21/2011 JGinvestigation of law re legislative history of "spouse"; revise summary

judgment brief1.30

10/22/2011 MP

Participate in conference call with SLDN and plaintiffs; address concerns

and questions of plaintiffs in follow-up conversations; discuss plans for

conference call with D. McKean; follow up with D. McKean after call;

revise declarations; collect and organize documentation; correspond with C.

Man about day 's activities and Complaint.

7.00

10/22/2011 DM telephone conference plaintiffs; email correspondence 2.00

10/22/2011 JG telephone conference plaintiffs; email correspondence 2.00

10/23/2011 CM Discuss Complaint and Motion for Summary Judgment with M. Pusateri. 0.30

10/23/2011 JG revise summary judgment brief, email correspondence 1.00

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Legend:





Jamie Moses (JM)

10/24/2011 MP

Conduct interview of J . Darrah and compose declaration; revise complaint;

revise category sheet and cover pages; compose pro hac vice motion and

declaration for D. McKean; review local rules regarding filing fees;

organize and collect supporting documentation; conference call with J.

Henderson regarding declaration and questions.

7.00

10/24/2011 CM

Discuss the Complaint with SLDN and team; make edits; edit Motion for

Summary Judgment; incorporate SLDN edits; discuss plaintiff issues with

M. Pusateri.

4.20

10/24/2011 IM

Prepare civil cover sheet and category sheet; telephone call and e-mail M.

Pusateri regarding same; review MA local rules in anticipation of filing of

Complaint and motions for admission.

1.40


10/25/2011 MPIncorporate and synthesize edits into Complaint; discuss title 32 and title 38

with D. McKean; discuss edits with C. Man.5.00


10/26/2011 MPRevise Complaint; incorporate and review edits of J. Goodman; review pro

hac paperwork .4.30



10/27/2011 IM

Final comments to draft Complaint; file Complaint, pro hac motions and

related paperwork; multiple meetings C. Man and M. Pusateri regarding

same.

4.20

10/27/2011 CMFinalize and file Complaint; meet with plaintiffs and SLDN ; discuss

potential new plaintiffs;discuss case with DOJ and re-cap with SLDN .6.90

10/27/2011 MP

Finalize Complaint; file Complaint; research service of process rules;

communicate with E. Sussman regarding Department of Justice contacts;

revise and disseminate amended declaration for C. Morgan.

4.00



10/28/2011 ADL Review media reports; meeting with C. Man regarding tasks 0.50

10/28/2011 MPTrack news stories about SLDN lawsuit announcement; review appellate

brief in Gill/Massachusetts consolidated appeal.1.50

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Legend:





Jamie Moses (JM)

10/28/2011 CMMonitor press and discus same with SLDN;discuss additional plaintiffs

with Southern Poverty Law Center;review Gill brief in First Circuit.5.00

10/31/2011 CM

Review SLDN pressand First Circuit briefs; discuss additional plaintiffs

with the Southern Poverty Law Center; research standing issues for

BLAG.

3.70

10/31/2011 MP

Review Affidavits of Service; review federal rules governing service;

review motion to intervene of BLAG; prepare summary of motion to

intervene for C. Man.

1.90

11/01/2011 JG telephone conference, email correspondence, memo 0.90

11/01/2011 DM telephone conference, email correspondence, memo 0.90

11/01/2011 MPResearch and obtain Golinski filings regarding standing; read filings; share

findings with C. Man.

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