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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

CASIE JO MCGEE and SARAH ELIZABETHADKINS; JUSTIN MURDOCK and WILLIAMGLAVARIS; and NANCY ELIZABETHMICHAEL and JANE LOUISE FENTON,individually and as next friends of A.S.M., a minorchild;

Plaintiffs,

v.

KAREN S. COLE, in her official capacity asCABEL COUNTY CLERK; and VERA J.MCCORMICK, in her official capacity asKANAWHA COUNTY CLERK;

Defendants,

and

STATE of WEST VIRGINIA,

Intervenor-Defendant.

No. 3:13-cv-24068

Hon. Robert Chambers

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR ATTORNEYS’

FEES, EXPENSES AND COSTS

Plaintiffs respectfully submit this reply memorandum in support of their Motion for

Attorneys’ Fees, Expenses, and Costs (“Motion for Fees”), see Doc. 146, pursuant to 42 U.S.C.

§ 1988 and Fed. R. Civ. P. 54(d). Defendant-Intervenor West Virginia (“State”) filed its

opposition on January 16, 2015, see Doc. 155, and Defendants Karen S. Cole and Vera J.

McCormick (together, “Clerks”) filed a separate opposition that same day, see Doc. 153.

Plaintiffs first address the arguments made by the State and Clerks (together, “Defendants”) that

Case 3:13-cv-24068 Document 156 Filed 01/26/15 Page 1 of 22 PageID #: 6142

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the Motion for Fees should be denied in its entirety, then address Defendants’ arguments that

Plaintiffs’ request is unreasonable.

I. FEES ARE RECOVERABLE FROM ALL DEFENDANTS.

Both the State and the Clerks raise several arguments for why the Motion for Fees should

be denied in its entirety. First, the State argues that it is immune from any award because of the

Eleventh Amendment. Second, the State argues that even if it does not have immunity, the Court

cannot impose fees because no ruling was entered against the State. Third, Defendants argue

that no award should be imposed because they were acting in good faith or following their

duties. Fourth, the Clerks argue that it was unnecessary for Plaintiffs to bring this case. For the

reasons below, all of these arguments should be rejected.

A. The State Is Not Immune from an Award of Fees.

In its opposition to the Motion for Fees, the State insists that the Eleventh Amendment

forbids the imposition of attorney’s fees pursuant to 42 U.S.C. § 1988 because Congress did not

clearly waive states’ immunity for such fees. Doc. 155 at 8-19. The Supreme Court has

repeatedly rejected that argument, and this Court should do the same.

In Hutto v. Finney, 437 U.S. 678 (1978), which the State’s opposition does not address,

the Supreme Court held that attorney’s fees were awardable under § 1988 directly against a state.

Hutto noted that § 1988 “imposes attorney’s fees ‘as part of the costs,’” and “[c]osts have

traditionally been awarded without regard for the States’ Eleventh Amendment immunity.”

Hutto, 437 U.S. at 695. Hutto noted that the “ practice of awarding costs against the States goes

back to 1849 in this Court,” and “[t]he Court has never viewed the Eleventh Amendment as

barring such awards, even in suits between States and individual litigants.” Id. (emphasis

added). In other words, because costs (such as attorney’s fees under § 1988) can be imposed


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directly against a state, it is irrelevant whether a particular state official is a defendant. A

“federal court may treat a State like any other litigant when it assesses costs,” id. at 696, and

“[w]hen a State defends a suit for prospective relief, it is not exempt from the ordinary discipline

of the courtroom,” id. at 695 n.24.

Hutto rejected the claim that § 1988 did not clearly waive states’ sovereign immunity for

attorney’s fees. The Court held that Congress need not “expressly stat[e] that it intends to

abrogate the States’ Eleventh Amendment immunity” in such a situation, id. at 696, because of

the history of allowing such fees and also because “it would be absurd to r equire an express

reference to state litigants whenever a filing fee, or a new item, such as an expert witness’ fee, is

added to the category of taxable costs,” id. at 696-97. Thus, to the extent that any kind of waiver

was even necessary in the context of fees, the Court concluded that “we have no doubt that [§

1988] is clear enough to authorize the award of attorney’s fees payable by the State.” Id. at 698

n.31.

In Missouri v. Jenkins, 491 U.S. 274 (1989), the Supreme Court strongly reaffirmed

Hutto and held that “it must be accepted as settled that an award of attorney’s fees ancillary to

prospective relief is not subject to the strictures of the Eleventh Amendment.” Id. at 279; see id.

at 282-84.

Given Hutto and Jenkins, there are two obvious flaws in the State’s arguments here.

First , the State assumes that damages and attorney’s fees are treated similarly for purposes of

Eleventh Amendment immunity. However, Hutto and Jenkins rejected that argument because

attorney’s fees are considered “court costs,” not damages. See Hutto, 437 U.S. at 695 n.24;

Jenkins, 491 U.S. at 280. This is why attorney’s fees may be awarded without regard for the


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B. Prospective Relief Was Entered Against the State, Justifying an Award of Fees.

The State argues that even if it is not immune under the Eleventh Amendment, this Court

should not order fees against the State because this Court’s order “includes no finding of liability

or injunction against the State,” and thus the State is “not liable under the judgment.” Doc. 155

at 19. Again, this argument should be rejected.

To the extent the State claims that attorney’s fees cannot be awarded unless retrospective

damages were awarded under § 1983, that argument should be rejected pursuant to Hutto and

Jenkins. See Hutto, 437 U.S. at 695 & n.24; Jenkins, 491 U.S. at 280.4 More importantly, the

State is incorrect to suggest that this Court did not order prospective relief against the State. This

Court’s order ruled that “the State chose to intervene in this action specifically to defend the

constitutionality of West Virginia's marriage ban” and by “intervening to protect this interest, the

State is subject to any declaration by this Court that the ban is unconstitutional .” McGee v. Cole,

___ F. Supp. 3d ___, 2014 WL 5802665, at *4 (S.D. W. Va. Nov. 7, 2014). The order also ruled

that “the State would be precluded from defending the constitutionality of the marriage ban in

the future.” Id. at *5. This clearly shows that the Court entered “prospective relief” against the

State, which is a sufficient ground upon which to authorize attorney’s fees pursuant to Hutto and

Jenkins. See Jenkins, 491 U.S. at 280 (“The holding of Hutto, therefore, was … that the

Eleventh Amendment did not apply to an award of attorney’s fees ancillary to a grant of

prospective relief.” (emphasis added)).

4 In fact, Justice Powell’s dissent in Hutto made the same argument that § 1983 does notauthorize awards against a state, and therefore § 1988 canno t authorize attorney’s fees against astate, either. See 437 U.S. at 704-05 (Powell, J., dissenting). Clearly, that view did not carry amajority of the Court.


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C. It Is Irrelevant Whether Defendants Were Acting in Good Faith.

The State and the Clerks argue that no fees should be awarded because they were merely

“acting in good faith” or just “discharg[ing] their duties” in defending the marriage ban. Doc.

155 at 20; Doc. 153 at 9-10, 13; see also Doc. 154 at 9 (amicus arguing that the Clerks were put

“between the figurative rock and a hard place”). These arguments must be rejected. As the

Fourth Circuit has held, “we, and our sister circuits, have repeatedly rejected good faith as a

special circumstance justifying the denial of Section 1988 attorneys’ fees— and for good reason:

[Section 1988] is not meant as a ‘punishment’ for ‘bad’ defendants who resist plaintiffs’ claims

in bad faith. Rather, it is meant to compensate civil rights attorneys who bring civil rights cases

and win them.” Lefemine v. Wideman, 758 F.3d 551, 557 (4th Cir. 2014) (quotation marks

omitted); see also Turner v. D.C. Bd. of Elections & Ethics, 354 F.3d 890, 897 (D.C. Cir. 2004).

In fact, the Supreme Court has held that mere “enforcers” of unconstitutional laws can be held

liable for attorney’s fees under § 1988, even when their involvement in the litigation was minor

and even when they conceded their actions were improper and lobbied for the underlying law to

be changed. See Supreme Court of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 738-39

(1980). The actions of Defendants here certainly do not rise to that level — which was still found

to be insufficient to avoid an award of attorney’s fees. Id.

Accordingly, the “fact that it was not the ‘fault’” of Defendants that the West Virginia

Legislature enacted the marriage ban “is not a ‘special circumstance’ warranting denial of a fully

compensatory fee” against Defendants. Turner , 354 F.3d at 897.

D. It Was Necessary to Bring This Case.

Finally, the Clerks argue that no fees should be awarded here because this lawsuit was

completely “unnecessary” given that a similar case was on-going in Virginia, and that case


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would eventually go to the Fourth Circuit, whose decision would be “binding precedent on this

Court.” See Doc. 153 at 10-11. This argument is meritless. It is undisputed that Plaintiffs

sought marriage licenses, and Defendants refused to provide them. The only way to make

Defendants provide the licenses — and end the ongoing harm inflicted on Plaintiffs — was to bring

suit. Even after Plaintiffs sued, Defendants refused to provide licenses. And even after the

Supreme Court denied certiorari in Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), Defendants

still refused to admit that this Court could strike down the marriage ban. See Docs. 134, 135,

136, 137. This clearly rebuts the argument that a decision in Bostic would completely resolve

Plaintiffs’ claims.

It was necessary to bring this suit because all parties needed an order from this Court to

force Defendants’ compliance with the Constitution, to formally strike down the marriage ban,

and to provide Plaintiffs — and all other same-sex couples across West Virginia — with

prospective relief.5

For the reasons discussed above, this Court should reject the arguments presented by the

State and the Clerks for why Plaintiffs should be awarded no fees at all.6

5 This Court should also reject the Clerks’ suggestion that Plaintiffs are not entitled tofees because their attorneys “arguably” committed “an ethical violation” by soliciting interested plaintiffs and then later seeking fees. See Doc. 153 at 12. The Supreme Court has held thatsolicitation of prospective litigants by a non-profit litigation organization is protected by the First

Amendment, even when the organization later requests an award of counsel fees. See In re Primus, 436 U.S. 412, 429, 437-38 (1978). Further, as the Fourth Circuit had held, an important purpose of awarding attorney’s fees under § 1988 is to “compensate civil rights attorneys who bring civil rights cases and win them.” Lefemine, 758 F.3d 551, 557.

6 The Clerks’ sole remaining argument for why no fees should be awarded (because theamount sought allegedly “shock[s] the conscience of the court,” Doc. 153 at 5-9), is addressed below in Part II, where Plaintiffs show that the amount sought is reasonable.


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II. THE FEES SOUGHT BY PLAINTIFFS ARE REASONABLE.

Both the State and the Clerks raise several arguments for why the fees requested by

Plaintiffs are unreasonable. See Doc. 155 at 21-30; Doc. 153 at 5-9, 14-23. Plaintiffs address

these arguments below.

A. Plaintiffs in Other Marriage Cases Have Requested Similar Amounts.

Contrary to the Clerks’ argument that the fees requested are “so outrageously excessive

as to shock the conscience of the court,” Doc. 153 at 5 (quotations omitted), the fees sought here

are actually quite reasonable, as verified by the attorney’s fees sought by plaintiffs in other

marriage cases across the country:

7

CAPTION HOURSAVG

RATETOT REQ WORK

Hamby v. Parnell (3:14-cv-89, D. Alaska) 788.60 $327.08 $257,938.40 District & Appellate

Wright v. Arkansas (60cv-13-2662, Ark. Cir. Ct.) 1428.60 $246.27 $351,822.76 State Court

Burns v. Hickenlooper (1:14-cv-1817, D. Colo.) 351.45 $382.97 $134,595.43 District & Appellate

Latta v. Orr (1:13-cv-482, D. Idaho) 1261.00 $363.44 $458,293.08 District

Love v. Beshear (3:13-cv-750, W.D. Ky.) 275.54 $242.03 $66,688.00 District

Obegerfell v. Wymyslo (1:13-cv-501, S.D. Ohio) 718.45 $293.59 $210,929.04 District

Bishop v. Smith (4:04-cv-848, N.D. Okla.) 1015.90 $364.97 $370,769.87 Appellate

Geiger v. Kitzhaber (6:13-cv-1834, D. Or.) 523.30 $353.64 $185,057.50 District

Condon v. Haley (2:14-cv-4010, D.S.C.) 446.05 $342.36 $152,709.98 District & Appellate

Evans v. Utah (2:14-cv-55, D. Utah) 534.00 $308.88 $164,943.14 District

McGee v. Cole (3:13-cv-24068, S.D.W. Va.) 1033.25 $338.98 $350,256.19 District

Walker v. Wolf (3:14-cv-64, W.D. Wis.) 2393.09 $519.75 $1,243,804.83 District & Appellate

As seen in the chart, the attorney hours, hourly rate, and total fee requested by the

plaintiffs in this case are actually quite reasonable. Several other cases required more hours and

7 These figures differ slightly from those presented by the State but are substantially thesame. See Doc. 155-8. For example, plaintiffs in Latta v. Orr filed a revised request for fees thatwas slightly lower than their prior request, which was used by the State. The State is alsoincorrect about the Bishop v. Smith case, where the fee requested reflected only appellate work,not “trial court briefing.” Compare Doc. 155-5 at 2, with Doc. 155-11 at 16 (noting that therequest did not include hundreds of hours spent in district court obtaining injunction), 68, 77, 91.


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total fees than Plaintiffs’ attorneys accrued here. For example, in the Idaho case Latta v. Orr ,

plaintiffs requested over $450,000 for over 1200 hours of work — which represents almost

exclusively the attorneys’ time spent in district court8 — and the court awarded over $400,000.

See Exhibit 1, attached. Critically, the average hourly rate (i.e., total requested fee, divided by

total hours) for the present case (about $338/hour) is less than the median of the cases above

(about $342/hour). Further, as the Walker v. Wolf case shows, fees in these kinds of cases can

easily top $1 million. See Exhibit 2, attached.

The Clerks argue that Plaintiffs’ request is unreasonable because in a Virginia marriage

case, there was a settlement of only $60,000 between certain plaintiffs who intervened on appeal

and the defendants in that case. See Doc. 153 at 21. The Clerks fail to acknowledge that the

plaintiffs’ attorneys in that case had accrued “approximately $1,000,000” in fees, which shows

how reasonable Plaintiffs’ request is here. See Doc. 155-15 at 12. The Clerks also fail to

acknowledge that the settlement in the Virginia case reflected the parties’ “uncertainty” as to

whether those particular plaintiffs would be considered a “prevailing party” under § 1988, given

their status as interveners, see id. — an issue that is certainly not relevant in the present case.

The chart above shows that the rates and hours spent by Plaintiffs’ counsel were

necessarily reasonable for litigating this kind of case in a quickly changing legal landscape. This

alone could justify awarding Plaintiffs their requested fees. However, Plaintiffs next address

many of the specific arguments raised by Defendants in opposition to the Motion for Fees.

8 The latest time entries submitted in the Latta case are for May 23, 2014, which is justnine days after the notice of appeal to the Ninth Circuit was filed. See Doc. 155-8 at 66, 77, 90,96, 102, 106, 109, 112, 114, 116, 130.


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B. Plaintiffs’ Attorneys’ Hours Are Reasonable.

Defendants make several specific arguments for why the hours spent by Plaintiffs’

attorneys in this case were unreasonably high. These arguments are addressed in turn.

1. This Case Was Not Overstaffed.

Defendants claim that this case was overstaffed because eleven different attorneys billed

time at one point or another. See Doc. 155 at 22-24; Doc. 153 at 16-17. This is a red herring

because four of those attorneys did not bill a significant amount of time: Paul M. Smith billed

22.5 hours, James K. Tinney billed 25.6 hours, Heather Foster Kittredge billed 52 hours, and

John K. Cecil billed only 0.4 hours. See Doc. 146 at 8.

Further, the involvement of Jenner & Block and Lambda Legal was reasonable here. See

Doc. 155 at 22-23. First , given the knowledge of rapidly-evolving LGBT law required for a case

like this, as well as the significant time commitment required to respond to Defendants’ vigor ous

defense of the marriage ban, the Tinney Law Firm could not have reasonably handled this case

on its own. Second , as Plaintiffs argued in the Motion for Fees, see Doc. 146 at 7; Doc. 146-1,

¶¶ 4-8, the work throughout this case was divided among Plaintiffs’ counsel to ensure that each

task was performed by the attorney(s) with the most expertise and lowest rate for such a task.

The preliminary work in this case, including meeting with potential plaintiffs and drafting the

complaint, was performed by Lambda Legal, which has considerable expertise in that area. See

Doc. 146-3, ¶¶ 2-3 & n.1. Jenner & Block, which specializes in complex litigation, then handled

researching and drafting significant portions of the subsequent briefing in this case, with most of

that work being performed by junior associates Nicholas Tarasen and Trent McCotter. See Doc.


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146-1, ¶ 5.9 As shown by their time records, see Doc. 146-1 at 10-12, 14-15, 10, highly

experienced partners Paul M. Smith and Lindsay C. Harrison primarily supervised the drafting of

briefs and engaged in high-level strategic decisions. Naturally, the motion for summary

judgment was an exception to these rules. The motion for summary judgment and its

accompanying reply brief — which totaled over ninety pages combined — were the briefs upon

which this entire case would be decided. Accordingly, many members of the team reviewed the

draft and offered input, and there is no reason a paying client would expect anything less of their

attorneys on such a critical filing. Further, given that this area of law was rapidly changing, it

was necessary for the attorneys on this case to stay in constant communication with one another

and ensure that Plaintiffs’ briefs referred to any new developments outside of this jurisdiction.

Defendants never explain why the hours were supposedly inflated just because Jenner &

Block did the work that the Tinney Law Firm or Lambda Legal allegedly could have done. For

example, the Clerks claim that Plaintiffs’ counsel spent 14.5 hours on drafting a single-page

notice, see Doc. 153, Ex. E, but a closer examination of those entries reveals that the time in

question was spent on a combination of tasks, not just drafting the one-page notice. Also,

contrary to Defendants’ claims, see Doc. 153 at 16; Doc. 155 at 24-25, Plaintiffs often eliminated

or reduced entries to reflect time spent on travel and other tasks not properly billed to a paying

client. See Doc. 146-1, ¶ 8; Doc. 146-2, ¶ 4; Doc. 146-3, ¶ 7; Doc. 146-4, ¶ 7; Doc. 146-5, ¶ 4;

Doc. 146-1 at 10, 11, 13, 14, 15, 16, 17, 18 (reflecting numerous entries where the time

requested is eliminated or reduced from the actual time spent). As the Ninth Circuit has noted,

“[b]y and large, the court should defer to the winning lawyer’s professional judgment as to how

9 The Clerks seem to realize that this case not overstaffed, because they later say that“only four (4) of Jenner & Block’s hundreds of attorneys worked on this case.” Doc. 153 at 18.


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much time he was required to spend on the case; after all, he won, and might not have, had he

been more of a slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). A

final piece of evidence showing the reasonableness of Plaintiffs’ request is the fact that their

counsel is not seeking any fee enhancement above the lodestar method, despite their considerable

expertise and experience in this area.10

2. Defendants Raised Numerous Obscure and Complicated Defenses.

Contrary to the Clerks’ assertion, it was Defendants, not Plaintiffs, who “took a ‘see what

sticks’ approach” in this case. Doc. 153 at 9. Defendants raised a constant stream of defenses

throughout this litigation, many of which were arcane procedural claims that required Plaintiffs’

counsel to expend significant time researching and drafting oppositions and replies. Defendants’

briefs were also extensive and well-researched, which only increased the time required by

Plaintiffs’ attorneys to respond. For example, the State’s cross-motion for summary judgment

was sixty-four pages long and included over forty exhibits. See Docs. 66-80. Having forced

Plaintiffs’ counsel to research and respond to these filings, Defendants cannot now claim that it

was unreasonable for Plaintiffs’ attorneys to have actually done so. “The government cannot

litigate tenaciously and then be heard to complain about the time necessarily spent by the

plaintiff in response.” City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986) (quotation

marks omitted).

10 The Court should reject the State’s claim that some of Plaintiffs’ attorneys’ billingentries are too vague. See Doc. 155 at 26-27. The Clerks themselves noted that “Plaintiffs’counsel provided time sheets itemizing and describing the hours spent in litigating this suit.”Doc. 153 at 15. In any event, the handful of examples cited by the State, see Doc. 155 at 27, arenot vague because they specifically describe the action taken (sending emails) and the goal or project of that action (regarding the complaint, or regarding possible settlement options).


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Here are a few of the filings and defenses raised by Defendants that required extensive

researching and briefing by Plaintiffs’ counsel:

Plaintiffs’ claims were barred by Burford abstention, see Docs. 27, 32;

the Court lacked jurisdiction to enjoin parts of the marriage ban, see Doc. 67, 68;

declaratory relief in Plaintiffs’ favor would violate the Eleventh Amendment, see Doc. 86;

Plaintiffs did not have Article III standing, see Doc. 86;

Defendants were required to enforce the marriage ban at all cost, see Docs. 32, 136,137;

ruling in Plaintiffs’ favor would disrupt the balance between state and federal power, see Doc. 63;

Plaintiffs did not sue the proper defendants, see Docs. 67, 68, 86, 134, 135 — anargument that the State continues to raise even now, see Doc. 155 at 17;

Plaintiffs’ claims were barred by Baker v. Nelson, 409 U.S. 810 (1972), see Docs. 63,67, 68; and

rational basis applied to the marriage ban, see Docs. 63, 67, 68.

Having forced Plaintiffs to respond to these defenses (every single one of which was

decided in Plaintiffs’ favor ), Defendants cannot now claim that Plaintiffs’ counsel was

unnecessarily racking up hours on this case.

3. The Outcome in This Case Was Not a Foregone Conclusion.

Defendants also argue that it was unreasonable to accrue so many hours here because this

case was not novel, see Doc. 155 at 25; Doc. 153 at 17, and a favorable decision for Plaintiffs

was a foregone conclusion, see Doc. 153 at 20 (“Plaintiffs had an incredibly high chance of

success given that states’ same-sex marriage bans were overturned in droves following the

United States Supreme Court’s decision in United States v. Windsor , 133 S. Ct. 2675 (2013).”).

These claims are meritless.

First , as the Clerks’ own amicus points out, this case was indeed novel: “at the time

Plaintiffs sought a marriage license, the Fourth Circuit had never overturned a same-sex marriage


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ban.” Doc. 154 at 10; see id. (the argument that it was “‘obvious’ … that state marriage laws

w[ould] eventually be overturned … fails for numerous reasons”). In fact, at that time, only

three federal courts had ever refused to enforce a marriage ban, and all were under circumstances

different than this case: two addressed only the unique facts of California’s Proposition 8, and

the other case dealt solely with the preliminary relief of recognizing one out-of-state marriage

license.11

Second , Defendants never acted like the outcome here was a foregone conclusion. If

Defendants felt that way, then why did they not immediately waive any challenge to Plaintiffs’

suit and permit this Court to strike down the marriage ban? That would have saved all the parties

extensive time and resources. At the very least, Defendants could have conceded at some point

during litigation that the outcome here was inevitable, and thereby mitigated the amount of time

expended by all parties to this case. Across the country, many other states chose these options.12

But instead, Defendants fought this case for over a year, raising numerous defenses showing that

they never viewed the outcome in this case as a foregone conclusion. Amazingly, even after the

Supreme Court denied certiorari in Bostic, 135 S. Ct. 286, Defendants continued to defend this

case and insist that the complaint must be dismissed. See Docs. 134, 135, 136, 137. Clearly, at

no point in this litigation did Defendants view this case as a foregone conclusion; they viewed it

11 See Perry v. Schwarzenegger , 704 F. Supp. 2d 921 (N.D. Cal. 2010), aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997(S.D. Ohio 2013).

12 See, e.g., Attorney General Kane Will Not Defend DOMA, http://tinyurl.com/nuzv62o(Pennsylvania refuses to defend marriage ban in July 2013); Virginia’s Position in the Bostic v. Rainey Case, http://tinyurl.com/kh3q37q (Virginia abandons defense in January 2014); Nevada Attorney General’s Statement on Same-Sex Marriage Case, http://tinyurl.com/mc7kgru (Nevadaabandons defense in February 2014); Statement of Oregon Attorney General Ellen Rosenblum onthe Subject of Pending Litigation Challenging Same-Sex Marriage Ban,http://tinyurl.com/ls856fj (Oregon refuses to defend marriage ban in February 2014).


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for their actions, and thus increase the chances that they would agree to favorably resolve this

case. Accordingly, Rum Creek does not prohibit the award of fees for time spent on this work.13

5. Time Spent on Non-Recognition Issue Is Not Recoverable.

Plaintiffs acknowledge that their request should be reduced to reflect hours spent on the

unsuccessful challenge to West Virginia’s non-recognition statute, which were inadvertently

included in the totals. See Doc. 153 at 22-23; Doc. 155 at 29 & Ex. 4. The State argues that

$21,222.68 in fees and costs should be deducted, see Doc. 155-4 at 2-3, a total with which the

Clerks substantially agree, see Doc. 153 at 23. However, Plaintiffs believe the deducted amount

should — at most — be 30.9 hours and $10,907.25, as reflected by Exhibit 3 attached to this reply,

which lists the entries actually spent primarily on the non-recognition issue. The State’s

calculation of such time, see Doc. 155-4 at 2-3, improperly includes numerous entries that were

spent on Plaintiffs’ motion for summary judgment (which was filed on the same day as the

op position to the State’s motion to dismiss and required similar work, see Docs. 39-40) and their

opposition to the Clerks’ motion to dismiss (which was filed one week earlier, see Doc. 37). The

State also miscalculated the total for the entries it properly lists (e.g., it shows Karen Loewy with

1.0 hours billed on January 9, 2014, see Doc. 155-4 at 3, when she actually billed only 0.4 hours,

13 If the Court disagrees, Plaintiffs still dispute the State’s calculation of time spent on public outreach and research. See Doc. 155, Ex. 16. Even giving the State considerable benefitof the doubt regarding its list of such entries, see id., the following time entries should not beexcluded: James K. Tinney (10/2/2013, 2.7 hours, $648; 10/10/2013, 1.8 hours, $432); HeatherFoster Kittredge (10/4/2013, 1.2 hours, $270); Nodgie P. Kennedy (10/22/2013, 2.1 hours, $210;10/23/2013, 0.9 hours, $90). These entries total 8.7 hours and $1,650. The billing descriptionsfor those entries show that the time spent on public outreach and news coverage was clearlyminimal compared to the other tasks performed by the attorney or paralegal that day.


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see Doc. 146-4 at 10). When the State’s entries are corrected, the amount to be deducted for the

non-recognition issue is, at most, 30.9 hours and $10,907.25.14

C. Plaintiffs’ Attorneys’ Rates Are Reasonable.

Plaintiffs’ attorneys’ hourly rates are also reasonable. As discussed above in Part II.B, it

was reasonable for Plaintiffs to retain attorneys from Jenner & Block and Lambda Legal because

they are highly experienced in the specialized nature of this case, where the law was changing

literally on a day-to-day basis. See Doc. 153 at 18-19; Doc. 155 at 27-28. Because “it [was]

reasonable to retain attorneys from other communities, ... the rates in those communities may

also be considered,” and this Court should do so. Rum Creek , 31 F.3d at 175.

Defendants complain that the Jenner & Block attorneys relied on the Laffey Matrix to

show that their rates are reasonable. See Doc. 153 at 18-19; Doc. 155 at 28. However, those

rates are actually lower than the Jenner attorneys’ normal rates, see Doc. 146 at 10, and in any

event, those rates are considered de facto reasonable for Washington attorneys, as determined by

the federal courts in Washington. See Harvey v. Mohammed , 951 F. Supp. 2d 47, 54 (D.D.C.

2013) (“To determine reasonable hourly rates, it is customary in this District to apply the Laffey

Matrix ....”); McDowell v. D.C., Civ. A. No. 00-594 (RCL), 2001 U.S. Dist. LEXIS 8114

(D.D.C. June 4, 2001); Salazar v. D.C., 123 F. Supp. 2d 8 (D.D.C. 2000). Those fees are also

accepted by the federal government without any further showing when it is responding to fee

petitions. See Doc. 146 at 10. Thus, if anything, the Laffey Matrix is far superior evidence of

the reasonableness of Washington attorneys’ rates than would be an ad hoc affidavit from a lone

attorney. Further, Defendants strenuously object to the rates of Paul M. Smith ($771-$789) and

14 This deduction does not reflect the additional time that Plaintiffs’ counsel has spent preparing this reply to Defendants’ oppositions. Plaintiffs are forgoing those fees even thoughthey would be entitled to them. See Ganey v. Garrison, 813 F.2d 650, 652 (4th Cir. 1987).


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Lindsay C. Harrison ($567-$655), see Doc. 153 at 18; Doc. 155 at 28, but those attorneys did not

bill a significant amount of time to the case. Mr. Smith billed only 22.5 hours, and Ms. Harrison

billed 91.25 hours. See Doc. 146 at 8. Those attorneys primarily used their considerable

expertise to supervise the work of others — which is both why their rates are higher and why they

billed fewer hours. This is borne out by the important fact, discussed above, that the average

hourly rate for this case is lower than in many similar marriage cases brought across the country.

Defendants’ f ocus on just one or two high rates is thus a red herring.

The Clerks appear to argue that even the Tinney Law Firm’s and Lambda Legal’s rates of

$300-$350 per hour are unreasonable. See Doc. 153 at 19; Doc. 153-9. However, even the State

concedes $350 would not be unreasonable for a local attorney, see Doc. 155 at 28, and similar

amounts have been approved for local attorneys even when working on “routine” matters, see,

e.g., Stiltner v. Cabell County Comm’n, No. 3:13-cv-07513, 2014 WL 1330206, at *1 (S.D. W.

Va. Apr. 1, 2014) (awarding $325 per hour “for preparing and prosecuting routine discovery

motions”).

III.

DEFENDANTS SHOULD BE HELD JOINTLY AND SEVERALLY

LIABLE FOR PLAINTIFFS’ FEES.

As expected, the State and the Clerks point fingers at each other regarding who should be

responsible for paying Plaintiffs’ fees in this case. See Doc. 153 at 23-24 (asserting that the State

should pay fees); Doc. 155 at 15-19 (asserting that the Clerks must solely bear any award). To

ensure Plaintiffs are fully compensated, this Court should hold Defendants jointly and severally

liable for any fee award granted.

“To ensure that a private attorney general is fully compensated, it is frequently

appropriate to hold all defendants jointly and severally liable for attorneys’ fees in cases in which

two or more defendants actively participated in a constitutional violation.” Turner , 354 F.3d at


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19

897; see also Herbst v. Ryan, 90 F.3d 1300, 1305 (7th Cir. 1996). As this Court has already

noted, “Plaintiffs’ injury here is directly traceable to the defendants” because Defendants’

actions are intertwined. See McGee, 2014 WL 5802665, at *4; see also id. at *4 n.1 (“Defendant

Clerks are the officials directly responsible for effectuating the marriage ban and causing

Plaintiffs’ alleged injury. Accordingly, this action may be a proper Ex parte Young suit, by

which Plaintiffs can obtain prospective, equitable relief against the State.”); id. at *4 (“[T]he

State chose to intervene in this action specifically to defend the constitutionality of West

Virginia’s marriage ban” and by “intervening to protect this interest, the State is subject to any

declaration by this Court that the ban is unconstitutional.”).

Further, given Defendants’ oblique suggestions that an award here might be too large for

any particular defendant to bear, see Doc. 153 at 13; Doc. 155 at 20 (“In a time of declining

government revenues … it would be unfair and unjust to require payment of fees ….”), this

Court should also keep in mind that, “in order to serve the remedial purposes of the Civil Rights

Act, a number of courts have upheld the imposition of joint and several liability for a fee award

where there existed a question as to whether the fee would be collectible from one of the

defendants.” Turner , 354 F.3d at 897-98; see also Herbst , 90 F.3d at 1306 n.13.

Accordingly, to ensure that Defendants’ in-fighting about fees does not deprive Plaintiffs

of full compensation, Plaintiffs request that the Court hold Defendants jointly and severally

liable for any award.

CONCLUSION

Accordingly, for the reasons set forth above and in the Motion for Fees, this Court should

award Plaintiffs the attorneys’ fees, litigation expenses, and costs as requested.


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20

Dated: January 26, 2015 Respectfully submitted,

CASIE JO MCGEE and SARAH ELIZABETHADKINS, et al.

By Counsel:

/s/ John H. Tinney, Jr.

THE TINNEY LAW FIRM, PLLC

THE TINNEY LAW FIRM, PLLCJohn H. Tinney, Jr. (WVSB #6970)Heather Foster Kittredge (WVSB #8543)PO Box 3752Charleston, West Virginia 25337-3752Phone: (304) 720-3310Fax: (304) [email protected] [email protected]

Camilla B. Taylor ( pro hac vice)105 West Adams, 26th FloorChicago, Illinois 60603-6208Phone: (312) 663-4413Fax: (312) [email protected]

Elizabeth L. Littrell ( pro hac vice)730 Peachtree Street, NESuite 1070Atlanta, Georgia 30308-1210Phone: (404) 897-1880Fax: (404) 897-1884 [email protected]

Karen L. Loewy ( pro hac vice)120 Wall Street, 19th Floor New York, New York 10005-3904Phone: (212) 809-8585Fax: (212) 809-0055


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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21

[email protected]

JENNER & BLOCK LLPPaul M. Smith ( pro hac vice)Lindsay C. Harrison ( pro hac vice)

Luke C. Platzer ( pro hac vice)R. Trent McCotter ( pro hac vice)1099 New York Avenue, NWSuite 900Washington, DC 20001-4412Phone: (202) 639-6000Fax: (202) 639-6006 [email protected] [email protected] [email protected] [email protected]

Counsel for Plaintiffs


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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22

CERTIFICATE OF SERVICE

I hereby certify that on the 26th day of January 2015, I electronically filed the foregoing

memorandum with the Clerk of the Court using the CM/ECF system, which will sendnotification of such filing to the following CM/ECF participants:

Elbert Lin, EsquireJulie Ann Warren, EsquireJulie Marie Blake, EsquireOffice of the Attorney GeneralState Capitol Building 1, Room E-26Charleston, WV 25305Counsel for Defendant-Intervenor State of West Virginia

Charles R. Bailey, EsquireMichael W. Taylor, EsquireBailey & Wyant, PLLC500 Virginia Street, East, Suite 600Post Office Box 3710Charleston, WV 25337-3710Counsel for Defendant Vera J McCormick

Lee Murray Hall, EsquireSarah A. Walling, EsquireJenkins Fenstermaker, PLLC

325 Eight StreetHuntington, WV 25701-2225Counsel for Defendant Karen S. Cole

/s/ John H. Tinney, Jr.John H. Tinney, Jr.Counsel for Plaintiffs


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EXHIBIT 1

Case 3:13-cv-24068 Document 156-1 Filed 01/26/15 Page 1 of 25 PageID #: 6164

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS,LORI WATSEN and SHARENEWATSEN, SHELIA ROBERTSON andANDREA ALTMAYER, AMBERBEIERLE and RACHAEL ROBERTSON,

Plaintiffs,

v.

C.L. “BUTCH” OTTER, as Governor of theState of Idaho, in his official capacity, andCHRISTOPHER RICH, as Recorder of AdaCounty, Idaho, in his official capacity,

Defendants,and

STATE OF IDAHO,

Defendant-Intervenor.

Case No. 1:13-cv-00482-CWD

MEMORANDUM DECISION ANDORDER

Before the Court is Plaintiffs’ Motion for Reasonable Attorneys’ Fees and

Expenses Through May 23, 2014 (Dkt. 113). Plaintiffs request $463,480.00 in attorney

fees and $4,363.08 in litigation expenses. Defendant Christopher Rich and Defendant-

Intervenor State of Idaho, joined by Defendant Governor Otter (Dkt. 120), oppose

Plaintiffs’ request in part, arguing for a reduced award of $203,435.00 in fees and

$614.36 in expenses (Dkt. 119, as amended by 121). For reasons explained below, the

MEMORANDUM DECISION AND ORDER - 1

Case 1:13-cv-00482-CWD Document 139 Filed 12/19/14 Page 1 of 24Case 3:13-cv-24068 Document 156-1 Filed 01/26/15 Page 2 of 25 PageID #: 6165

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Court will order Defendants to pay to Plaintiffs $397,300.00 in attorney fees and

$4,363.08 in expenses.

BACKGROUND

Filed under 42 U.S.C. § 1983, this action involved a facial constitutional challenge

to Idaho laws that defined marriage as the legal union between a man and a woman and

prohibited the recognition of out-of-state marriages between two persons of the same sex.

The Plaintiffs—two same-sex couples desiring to marry in Idaho, and two same-sex

couples desiring to have their existing marriages recognized in Idaho—filed their

Complaint for Declaratory and Injunctive Relief on November 8, 2013. The Complaint

named as Defendants the Governor of Idaho, C.L. “Butch” Otter, and the Ada County

Recorder, Christopher Rich. On December 11, 2013, the State of Idaho moved to

intervene in the case. After considering the parties’ briefs and oral argument on the

matter, the Court allowed the State to intervene on January 21, 2014.

The case proceeded quickly on a legal track. All parties filed dispositive motions,

which were fully briefed by April 4, 2014. One month later, on May 5, 2014, the Court

heard oral argument on the dispositive motions. On May 13, 2014, the Court issued a

Memorandum Decision and Order granting summary judgment in favor of the Plaintiffs.

Governor Otter immediately moved for a stay of the Court’s Order pending appeal. On

May 14, 2014, the Court denied that motion and entered a Judgment for Plaintiffs,

declaring that the challenged laws violate the Fourteenth Amendment to the Constitution

of the United States and permanently enjoining their enforcement. The Defendants

immediately appealed and sought a stay of the Court’s Judgment from the United States



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grievances, Congress determined that it would be necessary to compensate lawyers for all

time reasonably expended on a case.” Id . at 578.

Here, Plaintiffs prevailed on the dispositive issues presented and obtained all the

relief requested. There is no dispute that Plaintiffs are the prevailing parties and are

therefore entitled to an award of reasonable attorney fees and litigation expenses.

However, the Defendants dispute whether the amount of requested attorney fees and

expenses is reasonable.

1. Reasonable Attorney Fees

“The most useful starting point for determining the amount of a reasonable fee is

the number of hours reasonably expended on the litigation multiplied by a reasonable

hourly rate.” Hensley v. Eckerhart , 461 U.S. 424, 433 (1983). “The product of this

computation—the ‘lodestar figure’—is a ‘presumptively reasonable’ fee under 42 U.S.C.

§ 1988.” Gonzalez v. City of Maywood , 729 F.3d 1196, 1202 (9th Cir. 2013). The Court

may adjust the loadstar figure upward or downward based on factors set forth in Kerr v.

Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975),2 that are not subsumed in the

loadstar calculation.3

2 Kerr lists the following factors: (1) the time and labor required; (2) the complexity of thecase; (3) the skill requisite to perform the legal service properly; (4) the preclusion of otheremployment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether thefee is fixed or contingent; (7) time limitations imposed by the client or other circumstances; (8)the amount involved and the results obtained; (9) the experience, reputation, and ability of theattorneys; (10) the undesirability of the case; (11) the nature and length of the professionalrelationship with the client; and (12) awards in similar cases. 526 F.2d at 70.

3 “Among the subsumed factors presumably taken into account in either the reasonablehours component or the reasonable rate component of the lodestar calculation are: (1) the noveltyand complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of



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But the critical factor in determining the reasonableness of the fee is “the degree of

success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (citing Hensley, 461 U.S.

at 436). The lodestar figure may be “an excessive amount” for parties who achieve only

limited success. Id . On the other hand, a party who achieves “excellent results” is entitled

to “a fully compensatory fee.” Hensley, 461 U.S. at 435.

The prevailing party has the burden of submitting evidence showing the claimed

rates and hours expended on the litigation are reasonable. Blum v. Stenson, 465 U.S. 886,

897 (1984), accord Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992). “The

party opposing the fee application has a burden of rebuttal that requires submission of

evidence to the district court challenging the accuracy and reasonableness of the hours

charged or the facts asserted by the prevailing party in its submitted affidavits.” Gates,

987 F.2d at 1397–98. With these principles in mind, the Court considers Plaintiffs’ fee

request.

A. Reasonable Hourly Rates

An hourly rate is reasonable if it is “in line with those prevailing in the community

for similar services by lawyers of reasonably comparable skill, experience, and

reputation.” Blum, 465 U.S. at 896 n.11; Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946

(9th Cir. 2007). “[N]ormally the relevant legal community for determining the prevailing

market rates for attorneys’ fees is the community in which the forum is situated.” Gates,

987 F.2d at 1405. Although the Court may look to prevailing rates outside the forum in

representation, . . . (4) the results obtained, and (5) the contingent nature of the fee agreement.” Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir.1996) (internal quotations andcitations omitted).



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certain circumstances, id., Plaintiffs here request rates arguably consistent with those in

the Boise, Idaho market.

Plaintiffs request fees for the work of six attorneys: Deborah Ferguson, Shannon

Minter, Craig Durham, Christopher Stoll, Amy Whelan, and Jaime Huling Delaye. Each

attorney agreed to represent Plaintiffs at no charge, and, in turn, Plaintiffs agreed that any

awarded attorney fees would be paid to their counsel. In support of their request,

Plaintiffs submitted the Declarations of Ferguson, Minter, Durham, attorney Lauren

Scholnick, and attorney Debora Kristensen (Dkt. 113-3; 113-7; 113-12; 113-14; 113-15).

Each declarant opines that the hourly rates requested for Plaintiffs’ attorneys are

reasonable for similar work performed by attorneys of comparable skill and experience in

the Boise market. Defendants object to the hourly rates requested for all of Plaintiffs’

attorneys, except Huling Delaye. They argue—but present no evidence to show—the

remaining five attorneys’ rates are inflated relative to Boise market rates for similarly

experienced attorneys.

(1) Deborah Ferguson

Deborah Ferguson was Plaintiffs’ lead counsel in this matter. She coordinated

Plaintiffs’ legal team; communicated extensively with Plaintiffs; contributed to pleadings,

briefs, and supporting factual materials; and presented all oral arguments on Plaintiffs’

behalf. Ferguson has 28 years of civil litigation experience, ranging from constitutional

torts to environmental matters and medical malpractice defense. She has practiced law in

Illinois and Idaho as both a private attorney and as a civil litigator for the United States

Department of Justice. In addition to several other leadership positions in the Idaho legal



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community, Ferguson is a former President and Commissioner of the Idaho State Bar.

Although her hourly rate is $250 to $300 in non-contingency cases, Plaintiffs seek $400

per hour for Ferguson’s work in this contingent fee case. Noting the fast pace of this

litigation and the consequent need to turn away other fee paying matters, Ferguson opines

that the higher “rate is reasonable given the exceptionally rare congruence of complexity,

risk, and time demands of the case, as well as the degree of success achieved.” (Dkt. 113-

3 at 9.)

Defendants argue the “only justification for [Ferguson’s requested $400 per hour

rate] is that she worked on a contingent basis.” (Dkt. 121 at 13.) Defendants quote the

Ninth Circuit’s decision in Welch for the proposition that “contingency cannot be used to

justify a fee enhancement . . . or an inflated hourly rate.” 480 F.3d at 947. But Plaintiffs

expressly state that they “do not seek” an enhancement for Ferguson’s or any other

attorney’s services. (Dkt. 113-1 at 11.) Rather, Plaintiffs’ evidence demonstrates that they

seek “fees that private attorneys of an ability and reputation comparable to that of

prevailing counsel charge their paying clients for legal work of similar complexity.”

Davis v. City & County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992), vacated

in part on other grounds, 984 F.2d 345 (9th Cir. 1993).

Debora Kristensen, a Boise attorney with 24 years of experience, notes “there is

little encouragement for the private bar to prosecute these complex and demanding

constitutional claims.” (Dkt. 113-14 at 4.) According to Kristensen, “$400 per hour is

similar to what attorneys in Boise doing similar specialized litigation charge and is

reasonable for prosecuting an action of this complexity and difficulty, dealing with civil



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rights claims under the United States Constitution and the Idaho State Constitution.” ( Id .

at 3–4.) In fact, earlier this year, the Court approved a $400 hourly rate for Boise-based

lead counsel in a complex case involving claims under the Fair Housing Act and the

Idaho and United States Constitutions. Community House, Inc. v. City of Boise, No. 1:05-

cv-283-CWD, 2014 WL 1247758, at *6 (D. Idaho Mar. 25, 2014).

Additional factors support Ferguson’s requested rate. Welch recognizes that “delay

in payment” is “properly considered in arriving at a reasonable hourly rate.” 480 F.3d at

947. In cases like this, prevailing counsel are not paid as legal services are performed, yet

“their expenses of doing business continue and must be met.” Missouri v. Jenkins by

Agyei, 491 U.S. 274, 283 (1989). Due to the demands of this case, Ferguson attests that

she turned away other fee-paying matters and had less time available to develop her

practice. (Dkt. 113-3 at 7.) These opportunity costs, coupled with the reality of delayed

payment, underscore the undesirability of cases like this one—particularly for a small

firm like Ferguson’s.

Defendants do not address any of these considerations. Rather, they simply

presume Ferguson’s usual hourly rate should apply to the unique circumstances of this

case. The Court disagrees. While Ferguson’s requested rate is at the high end of the range

for experienced complex litigation attorneys in the Boise market, the factors discussed

above establish that $400 per hour is a reasonable hourly rate for her time in this matter.

(2) Shannon Minter

San Francisco-based attorney Shannon Minter served as co-counsel, assisting with

Plaintiffs’ overall case strategy as well as drafting pleadings and briefs. Minter has



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worked at the National Center for Lesbian Rights (NCLR) for 21 years, serving as

NCLR’s Legal Director since 2000. He has litigated high-profile LGBT rights cases

across the country, authored treatises and publications on legal issues related to the

LGBT community, and received a long list of honors for his efforts. Plaintiffs request

$400 per hour for Minter’s services, “consistent with [rates] in the Boise legal market,” as

opposed to the considerably higher rates that may prevail in markets such as San

Francisco or Washington D.C.

Defendants argue Minter should be compensated at $300 per hour because he has

slightly less experience than Ferguson. This argument ignores the nature of Minter’s legal

experience, which includes two decades of impressive accomplishments in a contentious

area of civil rights litigation. This specialized experience more than compensates for

Minter’s somewhat shorter career. The same factors that support Ferguson’s rate—the

complexity of the case, its undesirability relative to more typical legal work, the delay in

payment, and rates allowed in similar cases—lead the Court to find that a rate of $400 per

hour is reasonable for Minter.

(3) Craig Durham

Boise attorney Craig Durham also served as co-counsel. Over the course of his 17-

year legal career, Durham has specialized in appellate criminal defense and prisoner

litigation under 42 U.S.C. § 1983, with a particular focus on death penalty cases. In May

of 2013, Durham opened a solo practice in Boise after nearly 10 years of service as a staff

attorney in the Prisoner Litigation Unit of this Court. Durham’s solo practice concentrates

on civil rights, discrimination, and criminal defense.



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Durham was asked to join Plaintiffs’ litigation team in part because of his

knowledge of civil rights law and federal practice. In this case, Durham drafted portions

of Plaintiffs’ briefs, was involved with strategy and decisionmaking, and assisted

Ferguson in her preparation for oral argument. Similar to Ferguson, Durham turned away

other fee-paying matters because of the need to focus on this fast-moving case. Plaintiffs

request $325 per hour for his services.

Defendants assert Durham’s rate should be no higher than $250 per hour to

account for his “relative experience” in light of Ferguson’s and Kristensen’s usual hourly

rates. This argument again conflates the prevailing rates for hourly legal work with the

reasonable rate for a complex case of this nature. Moreover, Defendants present no

evidence to suggest Durham’s requested rate is unreasonable. Consequently, the Court

has no reason to doubt attorney Lauren Scholnick’s declaration that all of Plaintiffs’

requested hourly rates “are within the range of market rates charged by attorneys of

equivalent experience, skill, and expertise for comparable work in this community.” (Dkt.

113-15 at 4.)

The Court also is mindful that it recently approved a $325 hourly rate for attorney

Vaughn Fisher, who served as second-chair counsel in a similarly complex civil rights

case. Community House, 2014 WL 1247758, at *6. Like Fisher, Durham has 17 years of

legal experience and particular expertise in civil rights litigation. See id . Defendants do

not mention, let alone attempt to distinguish, Community House. Considering Durham’s

specialized experience and the demands of this case, the Court finds the requested $325

hourly rate for his work reasonable.



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(4) Christopher Stoll

Plaintiffs also seek $325 per hour for the services of senior NCLR staff attorney

Christopher Stoll. In 1994, Stoll graduated magna cum laude from Harvard Law School,

where he served as Supreme Court Editor for the Harvard Law Review. Over his 19-year

legal career, Stoll has served as a law clerk in the Ninth Circuit, has worked in the

litigation department of international law firm Heller Ehrman LLP, and, since joining the

NCLR in 2008, has litigated challenges to same-sex marriage bans in at least six states.

During his time at NCLR, Stoll also has litigated employment, discrimination, family,

and constitutional law matters across the country. In this case, Stoll helped Ferguson

prepare for oral argument and assisted with research, brief writing, and litigation strategy.

Defendants argue $300 per hour would be fair compensation for Stoll because he

has more experience than Durham. Curiously, Defendants claim Minter and Stoll are both

entitled to $300 per hour, yet Durham is entitled to $250 at most. But Minter has two

years more experience than Stoll and four years more experience than Durham. If two

years is enough to entitle Stoll to $50 more per hour than Durham, Defendants’ logic

would dictate that Minter is entitled to $100 more per hour than Durham. The fact that

Defendants make no effort to explain this inconsistency shows the arbitrariness of their

position. Although Stoll’s longer and more directly applicable experience might entitle

him to a somewhat higher rate than Durham, the Court finds Stoll’s requested rate of

$325 per hour reasonable.



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(5) Amy Whelan

Plaintiffs seek $275 per hour for senior NCLR staff attorney Amy Whelan.

Throughout her 13-year legal career, Whelan’s practice has focused on complex civil

litigation in the areas of civil rights, prisoners’ rights, and employment. Similar to the

other NCLR attorneys in this case, Whelan has worked on challenges to same-sex

marriage bans in several states. Defendants argue Whelan’s rate should be less than $250

per hour because Plaintiffs have not offered evidence of actual rates charged by similarly

experienced Boise attorneys.

This argument may have found traction had it been supported by evidence. But

argument alone is insufficient to rebut Plaintiffs’ showing. See Gates, 987 F.2d at 1397–

98. As noted above, Scholnick, who practices in Boise, opined that the rate sought for

Whelan’s services is “within the range of market rates” for comparable work by similarly

skilled and experienced attorneys “in this community.” (Dkt. 113-15 at 4.) Scholnick’s

opinion also finds support in this Court’s recent decision in Community House, where

Boise attorneys with 14 and 15 years of experience qualified for rates of $275 per hour.

2014 WL 1247758, at *7. Thus, the Court finds Whelan’s requested rate reasonable.

(6) Jaime Huling Delaye

Plaintiffs request, and Defendants do not oppose, a rate of $175 per hour for Jaime

Huling Delaye’s services. Huling Delaye is a staff attorney for the NCLR with general

litigation, judicial clerkship, and LGBT advocacy experience. The Court finds Huling

Delaye’s requested rate reasonable, considering her five years of legal experience, the

complexity of this case, and the rates awarded to similarly experienced attorneys in



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similar cases. See Community House, 2014 WL 1247758, at *7 (finding $175 per hour

reasonable for an attorney with five years’ specialized experience relevant to the case).

B. Hours Reasonably Expended

The next step in the lodestar analysis is to determine how many hours each

attorney “reasonably expended in pursuit of the ultimate result achieved.” Hensley, 461

U.S. at 431. Here too, the prevailing party has the burden of submitting time records

justifying the hours claimed. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th

Cir. 1986), as amended by 808 F.2d 1373 (9th Cir. 1987). “Those hours may be reduced

by the court where documentation of the hours is inadequate; if the case was overstaffed

and hours are duplicated; if the hours expended are deemed excessive or otherwise

unnecessary.” Id . (citing Hensley, 461 U.S. at 433–34). Put differently, “[h]ours that are

not properly billed to one’s client also are not properly billed to one’s adversary pursuant

to statutory authority.” Hensley, 461 U.S. at 434 (quotation omitted). But the Court’s

discretion to reduce claimed hours is not unbounded, nor does it provide an opportunity

for second-guessing when counsel exercises sound billing judgment. “By and large, the

court should defer to the winning lawyer’s professional judgment as to how much time he

was required to spend on the case; after all, he won, and might not have, had he been

more of a slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

Plaintiffs seek fees for 1,289.3 hours expended on this litigation through May 23,

2014.4 Detailed time records for each attorney substantiate this request. In addition,

4 Plaintiffs note that they plan to submit supplemental time records for any time incurredafter May 23, 2014. (Dkt. 113-3 at 10.)



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Cabrales, 935 F.2d at 1053. Because Plaintiffs’ loss on the State’s motion to intervene

“was simply a temporary setback on the way to a complete victory,” the Court finds the

60.7 hours spent opposing the motion were reasonably expended. Id. at 1052.

(2) Time for Specific Tasks

Defendants next claim Plaintiffs’ counsel spent an excessive amount of time

communicating about the case, briefing dispositive motions, preparing for oral argument,

and drafting the instant motion for fees. The essence of this excessiveness argument is

that the case was neither factually nor procedurally complex, and thus did not reasonably

require the amount of time Plaintiffs’ counsel devoted to it. The Court cannot accept

Defendants’ premise. Whatever this case lacked in procedural complications or disputed

issues of material fact, it surely made up in legal complexity. After all, the case involved

constitutional issues of first impression not only in Idaho, but in all district courts in the

Ninth Circuit.5

Faced with this challenging legal landscape, the parties saw fit to file hundreds of

pages in briefs on three dispositive motions. Attached to, or referenced by, the briefs

were thousands of pages of declarations, reports, news articles, legislative history, and

caselaw.6 As the case proceeded from briefing to oral argument to final judgment, district

5 Among the novel issues presented: (1) the applicability of Baker v. Nelson in light of theSupreme Court’s decisions in Windsor and other cases; (2) the applicability of Windsor toPlaintiffs’ Fourteenth Amendment challenge; and (3) whether and how the Ninth Circuit’sdecision in SmithKline affected the standard of review for Plaintiffs’ Equal Protection claim.

6 For instance, Plaintiffs supported their motion for summary judgment with thedeclarations of all eight Plaintiffs as well as the Declaration of Dr. Michael E. Lamb. (Dkt. 47 to55.) Plaintiffs’ counsel, and Ferguson in particular, spent a significant amount of time developingthese declarations. (Dkt. 113-5, 113-9.)



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courts across the country issued decision after decision on the very issues presented here.

Moreover, the Ninth Circuit decided a key case— SmithKline —in the midst of the

briefing. Anyone would need a significant amount of time just to read and digest the

record, not to mention the formidable body of law underlying it. Yet time was short in

this case—it proceeded from Complaint to Judgment in little over six months. Simply

put, the case was neither easy nor ordinary.

It is therefore not surprising that Plaintiffs employed a team of experienced

attorneys to divvy up the many legal tasks. It is equally unsurprising that this team of

attorneys would need to communicate with one another frequently. According to

Defendants, however, Plaintiffs’ counsel communicated too frequently, billing 177.5

hours for communications and another 171 hours for communications blocked with other

tasks—a total of 348.5 hours spent, at least in part, on attorney conferencing. Defendants

assure the Court that it would be reasonable to cut this total in half.

Despite the simplistic appeal of this “meat-axe approach,” Gates, 987 F.2d at 1399

(quoting In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir. 1992)), the Ninth Circuit

has refused to sustain a similarly “Draconian” 50 percent reduction absent a “clear

explanation.” Moreno, 534 F.3d at 1113. It is plausible that Plaintiffs’ counsel

communicated more than necessary. But the Court does not find anything per se

unreasonable about a team of attorneys regularly communicating over the course of such

a complex, fast-moving case. See M.L. v. Fed. Way Sch. Dist., 401 F.Supp.2d 1158,

1169-70 (W.D. Wash. 2005) (“[W]here two attorneys may be working cooperatively and

simultaneously on the same matter, they could well be progressing at twice the rate of



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speed as a single attorney working alone for the same number of hours.”). Moreover,

Defendants do not provide a basis for distinguishing between necessary and unnecessary

attorney communications. Thus, the Court is without a clear explanation to justify

Defendants’ proposed reduction for excessive communications.

Defendants propose a similarly imprecise 25 percent cut to the 522.3 hours

Plaintiffs’ counsel spent on dispositive motions. Such a reduction would be warranted if

the Court “reasonably concludes that preparation of the motion ‘demanded little of

counsel’s time.’” Welch, 480 F.3d at 950 (quoting Webb v. Sloan, 330 F.3d 1158, 1170

(9th Cir. 2003)). According to Defendants, Plaintiffs’ counsel had significant experience

in similar cases such that they could simply “recycle” their old work. (Dkt. 121 at 7.)

Indeed, it appears Plaintiffs’ counsel did just that in small part. On November 29, 2013,

the NCLR filed an amicus brief in the case challenging Utah’s same-sex marriage ban.

On February 18, 2014, Plaintiffs filed their 60-page memorandum in support of summary

judgment, which contains a few passages virtually identical to portions of the NCLR’s

amicus brief. Compare Pls.’ Mem. Supp. Summ. J. (Dkt. 59 at 54–58) with Amicus Br.

(Dkt. 119-15 at 18–24).

It may have demanded little time to recycle a few pages of old language, but that

does not mean the remainder of Plaintiffs’ four briefs were ready-made. Counsel’s

decision to copy-paste a relatively small part of one brief does not, by itself, justify an

untargeted 25 percent reduction. Further, Defendants offer no evidence to support

targeted reductions for specific tasks performed by particular attorneys. Nor do

Defendants proffer the time they devoted to the dispositive motions as a basis for



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comparison. Here, again, there is no clear explanation to back up Defendants’ suggested

reduction.

Next, Defendants challenge the time Plaintiffs’ counsel spent preparing for oral

argument. They urge the Court to award 40 hours at most instead of the 137.6 hours

Plaintiffs seek for counsel’s oral argument preparation and attendance. Ferguson billed

81.7 hours of this time for preparations ahead of her 45-minute oral argument on the

parties’ dispositive motions. The remainder, 55.9 hours, was time Huling Delaye, Minter,

Stoll, and Durham spent assisting with those preparations. These totals include time the

attorneys spent in moot court rehearsals and hours they billed on the day of oral

argument.

“[C]ourts ought to examine with skepticism claims that several lawyers were

needed to perform a task, and should deny compensation for such needless duplication as

when three lawyers appear for a hearing when one would do.” Democratic Party of

Wash. v. Reed , 388 F.3d 1281, 1286 (9th Cir. 2004). Even so, “[p]articipation of more

than one attorney does not necessarily amount to unnecessary duplication of effort.” Id. at

1287. Applying these principles, this Court has previously allowed over 150 hours for

one attorney’s time to prepare for a 30-minute oral argument—and that total did not

include the Court’s allowance for additional time spent in moot court practice. Hash v.

United States, No. 1:99-cv-324-MHW, 2012 WL 1252624, at *14–16 (D. Idaho Apr. 13,

2012) (calculating reasonable fees in a complex Fifth Amendment takings case). Here, by

contrast, five attorneys needed substantially less time to fully prepare lead counsel

Ferguson for a 45-minute argument. The Court has scrutinized Plaintiffs’ counsel’s



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preparation time and nonetheless finds it reasonable, especially given the gravity of this

case. See Nadarajah v. Holder , 569 F.3d 906, 924–25 (9th Cir. 2009) (finding 40 hours

of preparation for a 15-minute oral argument to be reasonable in an immigration case).

Defendants also claim Plaintiffs’ counsel spent too much time preparing Plaintiffs’

motion for attorney fees. On this point, the Court agrees. The applicable law is well-

settled, and the most important supporting documents—billing records and statements of

counsel’s experience—should have been readily available. Plaintiffs’ litigation team has

extensive experience with § 1983 litigation, which should have reduced the time

necessary to prepare the motion. But, all told, Ferguson, Whelan, and Durham billed 77.7

hours for work related to the motion.7

It may be true that “lawyers are not likely to spend unnecessary time on

contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to

both the result and the amount of the fee.” Moreno, 534 F.3d at 1112. But there was no

contingency when counsel billed most of the time for Plaintiffs’ fee motion; they had

already prevailed.

Even so, Ferguson spent 27.6 hours on the fee motion, mostly conferencing with

co-counsel, reviewing billing records, and preparing declarations. Although the Court

accepts that a limited amount of this time was necessary for Ferguson to exercise her

7 This total does not include time spent reviewing Defendants’ response or preparingPlaintiffs’ reply brief in support of the fee petition. It also excludes 0.4 hours Ferguson billed onMay 20, 2014 for “Review[ing] Court's order granting emergency request for a stay pendingappeal, advised Plaintiffs of same and briefing schedule; conferred with co-counsel.” (Dkt. 113-6at 2.) This task appears related to proceedings in the Ninth Circuit, (See Dkt. 112), and Plaintiffsconcede that such tasks are non-compensable in this Court.



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billing judgment, most of these tasks could be accomplished by clerical staff at a fraction

of the cost. Likewise, Whelan spent 31.1 hours preparing the documentation to support

the fee petition. That documentation consists of three declarations, four resumes, billing

records, and a list of litigation expenses. (Dkt. 113-7 to -11, 113-14 to -15.) Painstaking

though it may be, assembling these documents is not complex legal work. In fact, it

barely qualifies as legal work. By contrast, Durham needed only 19 hours to prepare both

his declaration and the brief in support of the fee petition. (Dkt. 113-13 at 4.)

The Court finds that 40 hours at most is a reasonable amount of time for a fee

motion of this complexity. The Court also finds Ferguson and Whelan billed excessive

hours for their work on the motion. In addition to the 19 hours recorded by Durham,

Plaintiffs will be awarded 10.5 hours for time spent by each Ferguson and Whelan. The

Court will not entertain another request for fees incurred in litigating this fee motion.

(3) Block-billed Time

The lion’s share of Defendants’ objections pertain to so-called block billing.

“‘Block billing’ is ‘the time-keeping method by which each lawyer . . . enters the total

daily time spent working on a case, rather than itemizing the time expended on specific

tasks.’” Welch, 480 F.3d at 945 n.2 (quoting Harold Stores, Inc. v. Dillard Dep’t Stores,

Inc., 82 F.3d 1533, 1554 n.15 (10th Cir. 1996)). The practice is disfavored because it

obscures the time spent on discrete legal tasks, frustrating the Court’s analysis of whether

the time was reasonably spent. Id . at 948.

The Court agrees with Defendants that Plaintiffs’ counsel engaged in some

improper block-billing. The billing records show that Plaintiffs’ counsel frequently



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lumped time spent drafting or reviewing documents together with time spent emailing

their clients or conferring with co-counsel. For instance, Ferguson documented 8.3 hours

on February 13, 2014, as follows: “Revisions to declarations, emails with clients re same,

draft Statement of Facts, revisions to same, confer with co-counsel, research Idaho tax

implications.” (Dkt. 113-5 at 9.) This and similar entries make it impossible to determine

whether a reasonable amount of time was spent on each of the several tasks mentioned.

Thus, a reduction for block billing is warranted.

The difficulty comes with quantifying the extent of the problem. Defendants

again propose a meat-axe solution—reduce the block-billed hours by “20 to 25” percent.

(Dkt. 121 at 12.) But when the Court looks to Defendants’ proof—a 13-page tally of the

239 billing entries arguably constituting “all requested block billings” (Dkt. 119-12)—it

finds a chart replete with errors.8 It would take a “green-eyeshade accountant” to make

sense of this filing. Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).

Mercifully, “trial courts need not, and indeed should not,” moonlight in that

profession to resolve fee petitions. Id . “The essential goal in shifting fees (to either party)

is to do rough justice, not to achieve auditing perfection.” Id . Accordingly, the Court will

impose a 10 percent reduction to Plaintiffs’ counsel’s requested hours in addition to the

reductions discussed above. See Moreno, 534 F.3d at 1112 (“[T]he district court can

8 For example, Defendants represent that “DF” (Deborah Ferguson) charged 2.3 hours onOctober 26, 2013, (Dkt. 119-12 at 2), yet a review of Ferguson’s billing records shows she didnot bill any time on that day. (Dkt. 113-5 at 3.) Instead, Durham performed the 2.3-hour taskindicated on Defendants’ chart. (Dkt. 113-13 at 2.) Ten such errors appear on the first page of thechart alone, and more appear on each successive page. Suffice it to say, these errors affect thedollar value of the alleged block billing, because Plaintiffs’ counsel billed their time at differentrates. Thus, Defendants’ chart is unreliable.



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The Court finds Plaintiffs achieved excellent results in this litigation, entitling

them to a fee equal to this presumptively reasonable lodestar amount. See Hensley, 461

U.S. at 435.

2. Litigation Expenses

Section 1988 authorizes the Court to award “out-of-pocket expenses incurred by

an attorney which would normally be charged to a fee paying client . . . .” Chalmers v.

Los Angeles, 796 F.2d 1205, 1216 n.7 (9th Cir. 1986) as amended by 808 F.2d 1373 (9th

Cir. 1987). Here, Plaintiffs seek $4,363.08 in litigation expenses, the bulk of which are

expenses Minter and Stoll incurred traveling from San Francisco to Boise for the hearing

on dispositive motions. (Dkt. 113-9 at 9.) Defendants object to the travel expenses,

arguing that San Francisco counsel could have participated in the hearing by telephone.

While that is true, the Court finds it reasonable for counsel of record to attend such an

important hearing in person.10 More to the point, the Court finds the requested expenses

are the kind which normally would be charged to a fee-paying client. Defendants offer no

evidence to the contrary. Accordingly, the Court will award Plaintiffs the requested

$4,363.08 in litigation expenses.

3. Post-Judgment Interest

Plaintiffs request that the Court apply the prevailing post-judgment interest rate to

the award of fees and expenses “from the date of the Court’s Judgment on May 14,

10 On the other hand, Plaintiffs’ out-of-state counsel appeared by telephone when the Courtheard oral argument on the State of Idaho’s motion to intervene. It is also noteworthy that theCourt has already found compensable the time Minter and Stoll billed on the few the days theywere working in Boise for their Idaho clients.



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2014.” (Dkt. 122 at 10.) Under 28 U.S.C. § 1961(a), post-judgment interest is allowed on

money judgments in civil cases “from the date of the entry of the judgment.” This statute

applies to attorney fee awards under § 1988, and the interest accrues “from the date that

entitlement to fees is secured . . . .” Friend v. Kolodzieczak , 72 F.3d 1386, 1391–92 (9th

Cir. 1995). In Friend , the Ninth Circuit affirmed an award of post-judgment interest from

the date on which the district court first entered its order on attorney fees related to the

litigation on the merits. Id . Thus, interest accrues from the date of this Order, and not, as

Plaintiffs request, the date of the Court’s Judgment on the merits. The applicable post-

judgment interest rate is 0.20 percent per annum.11

ORDER

NOW THEREFORE IT IS HEREBY ORDERED:

(1) Plaintiffs’ Motion for Reasonable Attorneys’ Fees and Expenses Through

May 23, 2014 (Dkt. 113) is GRANTED IN PART AND DENIED IN PART.

(2) Plaintiffs are awarded $397,300.00 in attorney fees and $4,363.08 in non-

taxable litigation expenses pursuant to 42 U.S.C. § 1988.

(3) The foregoing amounts shall be paid with interest at the rate of 0.20 percent

per annum from the date of this Order.

11 Bd. of Govs. of the Fed. Res. Sys., December 15, 2014 Selected Interest Rates (Weekly) – H.15, available at http://www.federalreserve.gov/releases/h15/.


December 19, 2014


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EXHIBIT 2

Case 3:13-cv-24068 Document 156-2 Filed 01/26/15 Page 1 of 25 PageID #: 6189

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1

UNITED STATES DISTRICT COURT FORTHE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF, et al.,

Plaintiffs,

vs. Case No.:

3:13-cv-24068 #156

Documents

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