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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS

________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. )

)Plaintiffs, )

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

CHUCK HAGEL, in his official capacity as )Secretary of Defense; et al., )

)Defendants. )

________________________________________ )

PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS

Plaintiffs respectfully submit this Application for an award of attorney fees and costs

pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(a)(1) & (d), and Federal Rule of

Civil Procedure 54(d). In support of their Application, Plaintiffs submit the enclosed

d l i d M d d l h f ll i

Case 1:11-cv-11905-RGS Document 56 Filed 10/28/13 Page 1 of 4

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d l ti d M d d l t t th f ll i

8. Chadbourne & Parke LLP spent more than 170 hours drafting and filing an

amicus curiae brief in United States v. Windsor , No. 12-307, then pending before

the Supreme Court. Although Windsor addressed the same issues that were

presented in this case, Plaintiffs do not seek an award of fees and costs in

connection with the amicus curiae brief.

9. Chadbourne & Parke LLP and Outserve-SLDN will agree to be compensated at a

rate of $187.26 per hour for attorney work in 2011, $190.24 per hour for attorney

work in 2012, and $192.24 per hour for attorney work in 2013, and $100 per hour

for paralegals, even though these rates are significantly lower than the rates towhich it would be entitled given the knowledge, skill and experience of the

attorneys who litigated this case.

10. To avoid any potential disputes over the reasonableness of the time spent by

Plaintiffs' counsel and paralegals, Outserve-SLDN discounted its hour biled by


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14. Plaintiffs therefore request an award of $137,087.49 in fees and costs be paid to

Chadbourne & Parke LLP and an award of $33,492.20 in fees be made to

Outserve-SLDN..

WHEREFORE , Plaintiffs respectfully request that this Court:

GRANT its request for fees and costs, and

GRANT any other relief the Court finds just, necessary or appropriate.

LOCAL RULE 7.1(A)(2) CERTIFICATION

In accordance with Local Rule 7.1(a)(2), Plaintiffs' counsel conferred with counsel for theGovernment. The Government indicated it would like more time to consider this application,

and may seek an extension of time to respond to this application. If made, Plaintiffs will not

object to a reasonable extension request.

R f ll b i d


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/s/ Abbe David LowellAbbe David [email protected] D. [email protected] & PARKE LLP1200 New Hampshire Ave., NW

Washington, DC 20036(202) 974-5600 (phone)(202) 974-5602 (fax)

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that, on October 28, 2013, the foregoing was filed with the Clerk of the

Court using the Courts CM/ECF system, which will send electronic notice of such filing to all

i i i h


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)Plaintiffs, )

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

CHUCK HAGEL, in his official capacity as )Secretary of Defense; et al., )

)Defendants. )

________________________________________ )

MEMORANDUM IN SUPPORT OF PLAINTIFFS APPLICATIONFOR AN AWARD OF ATTORNEYS FEES & COSTS

Introduction

Having prevailed in this action, Plaintiffs now seek as award of attorneys' fees and costs

pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412(a)(1) & (d), and Federal

Case 1:11-cv-11905-RGS Document 56-1 Filed 10/28/13 Page 1 of 18

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This case is unusual because the Government conceded at the outset of the case that its

decision to deny the Plaintiffs rights and force them to litigate the constitutionality of these

statutes was not substantially justified. Indeed, the Government repeatedly advised the Court

that it agreed with the Plaintiffs on the merits that these statutes were unconstitutional. (Dkts.

28, 28-1, 28-2, 37, 47 & 50.) But rather than uphold the Constitution, the Government chose to

continue to apply the very statutes it told this Court were unconstitutional to the Plaintiffs, and

thereby knowingly and purposefully inflicted a constitutional injury upon them.

As a political matter, it is clear the Administration wanted to adopt a position that would

respect the constitutional rights of legally married same-sex couples, but it refused to do so

without the political cover of the Judicial Branch agreeing with its conclusion that such a result

was constitutionally required. The Plaintiffs, however, were entitled to have the Executive

Branch respect their constitutional rights regardless of whether it was concerned that it might


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the definitions of the term "spouse" and "surviving spouse" in Titles 10, 32 and 38, as modified

by DOMA, prevented the Government from recognizing a same-sex spouse as a "spouse." Each

Plaintiff was legally married to someone of the same sex, and sought to have that person

recognized as a "spouse", which would have made them eligible for a variety of benefit and

family support programs. In each case, the Government refused to recognize the lawful same-

sex spouse as a "spouse." Plaintiffs brought this Complaint alleging the Government's refusal to

provide them the same benefits as married couples with opposite-sex spouses was

unconstitutional.

Titles 10 and 32 define "spouse" as "husband or wife, as the case may be," 10 U.S.C.

101(f)(5), 32 U.S.C. 101(18), and Title 38 defines "spouse" as "a person of the opposite sex

who is a wife or husband" and "surviving spouse" as "a person of the opposite sex who was the

spouse of a veteran at the time of the veteran's death," 38 U.S.C. 101(31), 101(3). Each of


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defend the unconstitutional actions was first set out in a February 23, 2011 letter from Attorney

General Holder to Speaker of the House Boehner. (Dkt. 29-1.) In that letter, the Attorney

General advised the Speaker that he and President Obama had concluded DOMA was

unconstitutional and the Executive Branch would no longer defend DOMA in court because no

"reasonable arguments" could be made in its defense. (Dkt. 29-1 at 5.) Yet the Attorney General

added: "Notwithstanding this determination, the President has informed me that Section 3 [of

DOMA] will continue to be enforced by the Executive Branch." (Id.)

The Plaintiffs found it startling the Executive Branch would purposefully violate the

constitutional rights of members of the military and veterans for the sole purpose or creating a

judicial case it believed was indefensible. In the Complaint itself, the Plaintiffs made clear:

Plaintiffs also seek an award of attorneys' fees pursuant to the Equal Access to JusticeAct, 28 U.S.C. 2412. The government cannot maintain that its position in denyingthe Plaintiffs' claims for spousal benefits is "substantially justified" when thePresident and the Attorney General have acknowledged that DOMA Section 3 isunconstitutional. Like members of the Federal Judicial Branch, Executive Branch

ffi i l k h h ld h C i i Whil h h h l


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already had determined that Section 3 of DOMA was unconstitutional as applied to same-sex

couples who are legally married under state law, Plaintiffs hoped the Executive Branch would

not contest the case or oppose the requested relief. (Dkt. 1 at 17-19). On February 21, 2012,

the Executive Branch wrote this Court to explain: [T]he Department of Justice will not defend

the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7, and

Sections 101(3) and 101(31) of Title 38 of the United States Code under the equal protection

component of the Fifth Amendment. (Dkt. 28; see also Dkt. 28-1 ("[T]he Attorney General

recently has also concluded that 38 U.S.C. 101(3), (31) similarly classify on the basis of

sexual orientation, . . . and that, consistent with his prior determination regarding Section 3 of

DOMA, the Department will cease its defense of these provisions of Title 38 against challenges

under the equal protection component of the Fifth Amendment.").) 1

Just prior to delivering this notice to the Court, the Attorney General provided notice to


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The legislative record of these provisions contains no rationale for providingveterans' benefits to opposite-sex spouses of veterans but not to legally marriedsame-sex spouses of veterans. Neither the Department of Defense nor theDepartment of Veterans Affairs identified any justification for that distinction thatcould warrant treating these provisions differently from Section 3 of DOMA.

(Dkt. 28-2 at 2.) Notwithstanding this finding that Title 38 is unconstitutional, the Attorney

General maintained he would continue to enforce the unconstitutional provisions of Title 38

unless and until Congress repeals those provisions or the judicial branch renders a definitive

verdict against their constitutionality. (Id.)

At that point, the Government then the Legislative Branch initiated further litigation,

forcing Plaintiffs to expend resources to defend their rights. On May 1, 2012, the Bipartisan

Legal Advisory Group of the U.S. House of Representatives ("BLAG") moved to intervene in

the case to defend Section 3 of DOMA and 38 U.S.C. 101(3) & (31) as a valid acts of

Congress. (Dkts. 32 & 33.) Based on a concern that BLAG would seek burdensome discovery,

as it had in other cases, on May 9, 2012, Plaintiffs filed an opposition to BLAGs motion. 2


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Plaintiffs had no objection to BLAG participating as an amicus curiae and thereby advocating

the constitutionality of DOMA and Title 38. In response to BLAGs motion to intervene, the

Executive Branch agreed BLAG should be permitted to intervene, albeit for the limited purpose

of briefing the equal protection claim. (Dkt. 37.) In the brief, the Executive Branch again noted

for the Court that it would continue to violate what it believed were the Plaintiffs' constitutional

rights, just so it could keep a live case or controversy alive: "[T]he Executive departments and

agencies will continue to comply with Section 3 of DOMA and 38 U.S.C. 103(3), (31),

pursuant to the Presidents direction, unless and until Section 3 of DOMA and 38 U.S.C.

103(3), (31) are repealed by Congress or there is a definitive ruling by the Judicial Branch that

they are unconstitutional. Accordingly, there remains a live case or controversy between

Plaintiffs and Defendants." (Dkt. 37 at 2.)

This Court granted BLAG's motion to intervene on May 16, 2012. The following month,

on June 5, the Defendants requested yet another stay in this case. (Dkt. 40.) Plaintiffs opposed


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in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to

withdraw as a party defendant." (Id. at 1.) The Court granted that motion on July 19, 2013.

(Dkt. 48.)

That same day, July 18, the Defendants filed a response in which it stated: "In light of

the Supreme Courts decision in Windsor, striking down Section 3 of DOMA, the Department of

Defense will now construe the definitional provisions of spouse in Titles 10 and 32 to include

same-sex spouses. . . . The Department of Defense intends to expeditiously make available

benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers." (Dkt. 47

at 2.) The Executive Branch suggested the Court retain jurisdiction during the pendency of the

Department of Defense's implementation of its plan, and offered to provide a status report on or

before September 9, 2013 to advise the Court as to its progress. (Dkt. 47 at 3.) Nevertheless, the

Executive Branch stated that, despite Windsor's holding and BLAG's refusal to continue its

defense of Title 38, it would continue to enforce Title 38 which it conceded was


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proposed judgment on September 30, 2013 (Dkt. 53), and the Court entered that judgment on

October 2, 2013. (Dkt. 55).

ARGUMENT

Plaintiffs are entitled to an award of attorney fees and costs under the EAJA if (1) they

are a "prevailing party" and (2) the position of the Government "was not substantially justified."

28 U.S.C. 2412(d)(1)(B). As explained in further detail below, Plaintiffs are a prevailing party

because they obtained the very declaratory judgment they sought in the Complaint. Moreover,

the Government cannot pretend its decision to force the Plaintiffs to litigate was "substantially

justified" because the Government conceded at the outset that the Governments position was

indefensible. The Government was knowingly and purposefully violating the Plaintiffs

constitutional rights, just so it could manufacture a case or controversy that would provide it with

political cover once this Court agreed with that conclusion. Furthermore, there are no special

circumstances that would make an award of fees against the government unjust.


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II. THE GOVERNMENTS POSITION WAS NOT SUBSTANTIALLY JUSTIFIED

The First Circuit recently observed: "It is well-settled that the government bears the

burden of establishing that its position was substantially justified." Castaneda-Castillo, 723 F.3d

at 57 (citing Pierce v. Underwood, 487 U.S. 552, 565, (1988)). This is a heavy burden. "Indeed,

in the usual case, a constitutional violation will preclude a finding that the government's conductwas substantially justified." Morgan v. Perry, 142 F.3d 670, 690 (3d Cir. 1998). The

Government "must justify the positions it took both during the litigation and the agency

proceedings that preceded that litigation. These positions must have a reasonable basis in both

law and fact." Castaneda-Castillo, 723 F.3d at 73. "To be 'substantially justified' means, of

course, more than merely undeserving of sanctions for frivolousness." Jean, 496 U.S. at 158 n.6.

In evaluating whether the Governments litigating position was "substantially justified,"

"[t]here must be an examination of the actual merits of the government's litigation position as to

both the facts and the law." Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001). The focus of


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unconstitutional to the extent they prevented the Government from recognizing legally married

same-sex spouses as "spouses" for purposes of providing family support and benefits. The

Executive Branch took the position DOMA was unconstitutional on February 23, 2011 (Dkt. 29-

1), several months before the Plaintiffs attempted to register for spousal benefits under Titles 10,

32 and 38 in September and October of 2011. And at the outset of this litigation, and throughout

the litigation, the Government consistently took the position these laws violate the equal

protection component of the Fifth Amendment. (Dkts. 28, 28-1, 28-2, 37, 47 & 50.)

Consequently, the Government never even made "the opposite merits determination" in this case,

never believed a constitutional defense of these laws had merit, and did not even seek to succeed

on the merits. The Government believed it was acting unconstitutionally in refusing to register

the military Plaintiffs' spouses as "spouses," and conceded during the litigation that this conduct

was unconstitutional. The First Circuit has found that when Executive Branch officials

subjectively believed their actions were unlawful, the Executive Branch's decision to take those


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DOMA unconstitutional. See, e.g., Massachusetts v. United States Dep't of HHS, 698 F. Supp. 2d

234 (D. Mass. 2010) (Tauro, J.) (same); Gill v. Office of Pers. Mgmt , 699 F. Supp. 2d 374 (D.

Mass. 2010) (Tauro, J.) (same); In re Balas, 449 B.R. 567 (C.D. Cal. 2011) (same); see also In re

Golinski, 587 F.3d 901 (9th Cir. 1999) (Kozinski, C.J.) (construing DOMA to avoid constitutional

question); In re Levinson, 587 F.3d 925 (9th Cir. 2009) (Reinhardt, J.) (DOMA unconstitutional); In

re Levinson, 560 F.3d 1145 (9th Cir. 2009) (Reinhardt, J.) (same). During the pendency of the

lawsuit, additional courts, including the First Circuit Court of Appeals, held DOMA

unconstitutional. See, e.g., Windsor v. United States, 699 F.3d 169 (2d Cir. 2012); Massachusetts

v. United States Dep't of HHS , 682 F.3d 1 (1st Cir. 2012); Golinski v. Office of Pers. Mgmt., 824

F. Supp. 2d 968 (N.D. Cal. 2012). Yet the Executive Branch continued to contravene its duty to

disregard unconstitutional laws by refusing to provide family support and benefits to the

Plaintiffs for a reason it knew to be unconstitutional and continued to litigate this case.

B. The Constitution Requires The President To Refuse To Enforce


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avoided this duty and that portion of his Oath of Office when he enforced DOMA and Title 38.

Third, the President must "take Care that the Laws be faithfully executed." U.S. Const. art. II,

3. "Laws" includes the Constitution, which is "the supreme Law of the Land." U.S. Const. art.

VI. The President therefore is obliged to execute the Constitution above any unconstitutional

law. Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) ("[B]ecause an

unconstitutional legislative enactment is 'void,' [an] official who enforces that law 'comes into

conflict with the superior authority of [the] Constitution. . . .'") (quoting Ex parte Young, 209

U.S. 123, 159-60 (1908)). The President's duty to disregard statutes he has determined to be

unconstitutional is robust even where the Supreme Court has not yet decided the constitutionality

of the statute. Indeed, as the Executive Branch has acknowledged to Congress:

The President has the responsibility and duty also to faithfully execute the laws of the United States. U.S. Const., art. II. 3. But these duties are not in conflict:the law the President must execute includes the Constitution the supreme law of the land. Because the Constitution is supreme over all other law, the Presidentmust resolve any conflict between statutory law and the Constitution in favor of


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provisionally, against the day they are declared unconstitutional by the courts.") (quoting The

Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A

Op. O.L.C. 55, 59 (1980)). And "every President since Eisenhower has issued signing statements

in which he stated that he would refuse to execute unconstitutional provisions." Id. at 202. That

includes President Obama, who has refused to enforce statutes he believed were unconstitutional

without waiting for a court to tell him so. See, e.g., Statement on Signing the Consolidated

Appropriations Act, 2012 (Dec. 23, 2011) (President Obama) (refusing to enforce parts of the

Act because they are unconstitutional); Statement on Signing the National Defense Authorization

Act for Fiscal Year 2012 (Dec. 30, 2011) (President Obama) (same); INS v. Chadha, 462 U.S.

919, 942 n.13 (1983) (citing a memorandum from President Franklin Roosevelt to Attorney

General Jackson in which the President indicated his intention not to implement an

unconstitutional provision in a statute he had just signed); Myers v. United States, 272 U.S. 52


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position as a "contrivance" that stripped the Court of an actual case and controversy, id. at 2700

(Scalia, J., dissenting). But while the majority and the dissent disagreed as to whether the

Government's position left a genuine Article III controversy intact, no member of the Court took

issue with the dissent's conclusion that nothing compelled the Executive Branch to violate the

rights of people like the Plaintiffs and force them to litigate:

It may be argued that if what we say is true some Presidential determinations thatstatutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute isunconstitutional. Where the Executive is enforcing an unconstitutional law, suitwill of course lie; but if, in that suit, the Executive admits the unconstitutionality

of the law, the litigation should end in an order or a consent decree enjoiningenforcement. This suit saw the light of day only because the President enforcedthe Act (and thus gave Windsor standing to sue) even though he believed itunconstitutional. He could have equally chosen (more appropriately, some wouldsay) neither to enforce nor to defend the statute he believed to be unconstitutional in which event Windsor would not have been injured, the District Court wouldnot have refereed this friendly scrimmage, and the Executive's determination of unconstitutionality would have escaped this Court's desire to blurt out its view of


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unjustified governmental action because of the expense involved." Id. at 56 (quoting Aronov v.

Napolitano, 562 F.3d 84, 88 (1st Cir. 2009). That is precisely what Plaintiffs have done here.

IV. Plaintiffs Requested Fee Award Is Reasonable

Plaintiffs' requested fee award is reasonable. The EAJA directs that fees should be set at

"prevailing market rates," but then caps the hourly rate at $125 per hour, subject to a cost-of-

living adjustment. 28 U.S.C. 2412(d). Applying the Annual Consumer Price Index for all

Urban Consumers ("CPI-U") for Boston, the First Circuit recently held the attorneys' fee cap was

an hourly rate of $187.26 for 2011 and $190.21 for 2012. Castaneda-Castillo, 723 F.3d at 77.

Applying that same formula for attorney fees for 2013 would lead to an attorney fee of $192.24 per hour. The First Circuit also agreed a $100 hourly rate for paralegals in Boston is reasonable.

Id. at 77-78. Those are the hourly rates Plaintiffs seek here and they are just a small fraction of

the standard market rate of the lead Chadbourne attorneys on this case (Mr. Lowell's hourly rate

is $995, and Mr. Man's hourly rate is $695). 3


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they would do for any paying client. Counsel also have voluntarily discounted their hours and

the hours of their paralegals by 5%. Nadarajah v. Holder, 569 F.3d 906, 918 (9th Cir. 2009)

(upholding reasonableness of ACLU attorney rates where it voluntarily discounted them by 5%).

In addition, the only cost the Plaintiffs seek reimbursement for is the filing fee for the

Complaint -- $350.

CONCLUSION

Plaintiffs request for fees and costs should be granted.

Respectfully submitted,

/s/ Ian McClatchey

Ian McClatchey, BBO No. [email protected] & PARKE LLP30 Rockefeller Plaza New York, NY 10112

/s/ John M. Goodman

John M. [email protected] [email protected] LEGAL DEFENSE NETWORK


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CERTIFICATE OF SERVICE

I hereby certify that, on October 28, 2013, the foregoing was filed with the Clerk of the

Court using the Courts CM/ECF system, which will send electronic notice of such filing to all

participants in the case.

/s/ Christopher D. ManChristopher D. Man


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)Plaintiffs, )

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

)CHUCK HAGEL, in his official capacity as )Secretary of Defense; et al., )

)Defendants. )

________________________________________ )

[Proposed] ORDER

For the reasons set forth in Plaintiffs Application for an Award of Attorneys Fees &

Costs and supporting Memorandum, it is hereby

ORDERED that Plaintiffs motion is GRANTED , and the Court


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)Plaintiffs, )

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


)Defendants. )

________________________________________ )

DECLARATION OF ABBE DAVID LOWELL IN SUPPORT OFPLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS

I, Abbe David Lowell, declare pursuant to 28 U.S.C. 1746 as follows:

1. Along with others at the law firm, I represent the Plaintiffs in this action and

submit this declaration in support of Plaintiffs' application for attorneys' fees and


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6. I have been counsel to the U.S. House of Representatives twice, most recently as

Chief Minority Counsel during impeachment proceedings against President

Clinton and before that as special ethics counsel to the House Committee of

Standards of Official Conduct (Ethics Committee).

7. From 1994 to 1996, I was appointed as Special Counselor to the United Nations

High Commissioner for Human Rights in the investigation and prosecution of

human rights violations, war crimes and other human rights projects in Rwanda

and the former Yugoslavia.

8. I also served at the U.S. Department of Justice from 1977 to 1981 as a Special

Assistant U.S. Attorney, Special Assistant to the Deputy Attorney General and

Special Assistant to the Attorney General.

9. I have been recognized in lists naming the top trial lawyers in the country by legal

publications that publish such lists, and was ranked as one of the most influential


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1.6 hours in 2013, 4.8 hours in 2012, and 10.6 hours in 2011; Mr. Man, 143.7

hours in 2013, 153.5 hours in 2012, and 127.0 hours in 2011; Mr. Pusateri, 0.8

hours in 2013, 3.5 hours in 2012, and 194.0 hours in 2011; Mr. McClatchey, 0.8

hours in 2013, 11.6 hours in 2012, and 18.6 hours in 2011; Ms. Francis, 64.4

hours in 2013; Ms. Chasse, 33.4 hours; and Ms. Moses, 12.4 hours.

Exhibit C: Declarations from each of the Plaintiffs attesting that they meet the

statutory criteria for obtaining attorneys' fees under the EAJA, and assigning any

interest they have in obtaining an award of fees and costs to their attorneys.

13. Several Chadbourne & Parke LLP attorneys and other professionals in addition to

those identified in the time records submitted in Exhibit B contributed to our

success in this case but, in the interest of controlling costs, the Plaintiffs are not

seeking reimbursement for any Chadbourne & Parke LLP time that is not listed in

Exhibit B. In addition, the actual time of those attorneys and paralegals listed in


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when adjusted for the cost of living increase, was an hourly rate of $187.26 for

2011 and $190.21 for 2012. Castaneda-Castillo v. Holder, 723 F.3d 48, 77 (1st

Cir. 2013). Based on the CPI-U for the first half of 2013, the 2013 EAJA hourly

rate cap would be $192.24. The First Circuit also agreed a $100 hourly rate for

paralegals in Boston is reasonable. Id. at 77-78. Chadbourne & Parke LLP

requests the Court to compensate the firm for the time its attorneys and paralegals

spent working on this case at these hourly rates rates that are substantially below

the firm's standard rates.

17. Applying those hourly rates to the discounted rates Plaintiffs seek for Chadbourne

& Parke LLP are as follows:

332.69 attorney hours times $187.26 for 2011 equals $62,299.53




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I declare under penalty of perjury that the foregoing is true and correct.

Executed on October 28, 2013.

/s/ Abbe David Lowell


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Exhibit A


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Case 1:11-cv-11905-RGS Document 55 Filed 10/02/13 Page 1 of 4Case 1:11-cv-11905-RGS Document 56-3 Filed 10/28/13 Page 7 of 80

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l d f

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Exhibit C


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________________________________________MAJ SHANNON L. MCLAUGHLIN, et al. )

)Plaintiffs, )

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

)LEON E. PANETTA, in his official capacity as )

Secretary of Defense; et al., ) )Defendants. )

________________________________________ )

DECLARATION OF STEPHEN MCNABB IN SUPPORT OF PLAINTIFFSAPPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Stephen McNabb, declare pursuant to 28 U.S.C. 1746 as follows:1. I am one of 16 Plaintiffs in this action. Plaintiff Colonel Stewart Bornhoft is my

spouse.

2. I commenced the above captioned action in the United States District Court for

the District of Massachusetts on October 27, 2011.


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costs of this litigation themselves, and ask that the Court make any award of

attorneys fees and costs payable directly to them.I declare under penalty of perjury that the foregoing is true and correct.

Executed on __September 29th____, 2013.

_____________________Stephen McNabb


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)Plaintiffs, )

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

)

LEON E. PANETTA, in his official capacity as )Secretary of Defense; et al., ))

Defendants. ) ________________________________________ )

DECLARATION OF AIRMAN FIRST CLASS DANIEL HENDERSON IN SUPPORT OFPLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Airman First Class Daniel Henderson, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Jerret Henderson is my spouse.




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)Plaintiffs, )

)

v. ) No. 1:11-cv-11905-RGS)LEON E. PANETTA, in his official capacity as )Secretary of Defense; et al., )

)Defendants. )

________________________________________ )

DECLARATION OF JERRET HENDERSON IN SUPPORT OF PLAINTIFFSAPPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Jerret Henderson, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Airman First Class Daniel

Henderson is my spouse.


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)Plaintiffs, )

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



________________________________________ )

DECLARATION OF DAN ROSS IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Dan Ross, declare pursuant to 28 U.S.C. 1746 as follows:1. I am one of 16 Plaintiffs in this action. Plaintiff Lieutenant Gary C. Ross is my

spouse.




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attorneys fees and costs payable directly to them.


Executed on ____________, 2013.

_____________________Dan Ross

October 1


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)Plaintiffs, )

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



________________________________________ )

DECLARATION OF LIEUTENANT GARY C. ROSS IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Lieutenant Gary C. Ross, declare pursuant to 28 U.S.C. 1746 as follows:1. I am one of 16 Plaintiffs in this action. Plaintiff Dan Ross is my spouse.



3. At the time this action was filed, neither I nor my spouse had a net worth that


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Executed on ____________, 2013.

_____________________Lieutenant Gary C. Ross

October 1


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)Plaintiffs, )

)


)Defendants. )

________________________________________ )

DECLARATION OF CAPTAIN JOAN DARRAH IN SUPPORT OF PLAINTIFFSAPPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Captain Joan Darrah, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Jacqueline Kennedy is my

spouse.


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)Plaintiffs, )

)


)Defendants. )

________________________________________ )

DECLARATION OF JACQUELINE KENNEDY IN SUPPORT OF PLAINTIFFSAPPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Jacqueline Kennedy, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Captain Joan Darrah is my

spouse.


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)Plaintiffs, )

)


)Defendants. )

________________________________________ )

DECLARATION OF LIEUTENANT COLONEL VICTORIA A. HUDSON IN SUPPORTOF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Lieutenant Colonel Victoria A. Hudson, declare pursuant to 28 U.S.C. 1746 as

follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Monika Poxon is my spouse.


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)Plaintiffs, )

)


)Defendants. )

________________________________________ )

DECLARATION OF MONIKA POXON IN SUPPORT OF PLAINTIFFSAPPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Monika Poxon, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Lieutenant Colonel Victoria A.

Hudson is my spouse.


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)Plaintiffs, )

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



________________________________________ )

DECLARATION OF JOSHUA SNYDER-HILL IN SUPPORT OF PLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Joshua Snyder-Hill, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Major Steve M. Snyder-Hill is

my spouse.




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Executed on September 27, 2013.

_____________________Joshua Snyder-Hill


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)Plaintiffs, )

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



________________________________________ )

DECLARATION OF MAJOR STEVE M. SNYDER-HILL IN SUPPORT OFPLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEY FEES & COSTS

I, Major Steve M. Snyder-Hill, declare pursuant to 28 U.S.C. 1746 as follows:

1. I am one of 16 Plaintiffs in this action. Plaintiff Joshua Snyder-Hill is my spouse.



3. At the time this action was filed, neither I nor my spouse had a net worth that


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Executed on September 27 th, 2013.

_______________________Major Steve M. Snyder-Hill


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*UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS


)Plaintiffs, )

)

v. ) No. 1:11-cv-11905-RGS)CHUCK HAGEL, in his official capacity as )Secretary of Defense; et al., )

)Defendants. )

________________________________________ )

DECLARATION OF CHRISTPHER D. MAN IN SUPPORT OFPLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS

I, Christopher D. Man, declare pursuant to 28 U.S.C. 1746 as follows:

1. Along with others at the law firm, I represent the Plaintiffs in this action and

submit this declaration in support of Plaintiffs' application for attorneys' fees and


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New York. Bailey v. Pataki, No. 08-Civ.-8563 (S.D.N.Y. 2013) (Rakoff, J.). I

have participated in numerous other trials.

6. I have briefed numerous appeals before the federal Courts of Appeals and the

Supreme Court of the United States, and most recently prevailed in two appeals

before the United States Court of Appeals for the First Circuit: United States v.

Bravo-Fernandez, 772 F.3d 1 (1st Cir. 2013) (reversing a criminal conviction),

and Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) (affirming a civil rights award

by Judge Woodlock in favor of a trasgender inmate).

7. Prior to this case, I worked with our co-counsel at the Servicemembers Legal

Defense Network (now OutServe-SLDN) on several legal matters concerning the

rights of LGBT veterans and active duty members of the military.

8. My current hourly rate is $695.

9. Along with Abbe David Lowell, I supervised the litigation team representing


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hours in 2013, 3.5 hours in 2012, and 194.0 hours in 2011; Mr. McClatchey, 0.8

hours in 2013, 11.6 hours in 2012, and 18.6 hours in 2011; Ms. Francis, 64.4

hours in 2013; Ms. Chasse, 33.4 hours; and Ms. Moses, 12.4 hours.




11. Several Chadbourne & Parke LLP attorneys and other professionals in addition to

those identified in the time records submitted in Exhibit B contributed to our

success in this case but, in the interest of controlling costs, the Plaintiffs are not

seeking reimbursement for any Chadbourne & Parke LLP time that is not listed in

Exhibit B. In addition, the actual time of those attorneys and paralegals listed in

Exhibit B has been reduced, as a courtesy to the Government.

12. Cumulatively, the Chadbourne & Parke LLP attorneys listed in Exhibit B billed


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rate cap would be $192.24. The First Circuit also agreed a $100 hourly rate for

paralegals in Boston is reasonable. Id. at 77-78. Chadbourne & Parke LLP

requests the Court to compensate the firm for the time its attorneys and paralegals

spent working on this case at these hourly rates rates that are substantially below

the firm's standard rates.

15. Applying those hourly rates to the discounted rates Plaintiffs seek for Chadbourne

& Parke LLP are as follows:




43.51 paralegal hours times $100.00 equals $4,351.00

TOTAL: $136,737.49


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)Plaintiffs, )

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


)Defendants. )

________________________________________ )

DECLARATION OF JOHN M. GOODMAN IN SUPPORT OFPLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS

I, John M. Goodman, declare pursuant to 28 U.S.C. 1746 as follows:

1. I represent the Plaintiffs in this action and submit this declaration in support of

Plaintiffs' application for attorneys' fees and costs pursuant to the Equal Access to

Justice Act 28 U S C 2412(a)(1) & (d) and Federal Rule of Civil Procedure


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5. I was a Litigation Associate at Dewey Ballantine in New York City from 1973 to

1983, where I represented clients in state and federal court proceedings, including

trials and appeals.

6. In 1983, I joined the Verizon Communications (formerly Bell Atlantic

Corporation) legal department in Washington, D.C., where I handled federal court

and regulatory litigation and appeals and advised on legislative, regulatory and

antitrust issues. I retired from Verizon in November 2003.

7. Since retiring from the compensated practice of law, I have provided legal

services, including on litigation matters, on a pro bono basis.

8. Along with David McKean, Esq. of OutServe-SLDN, I represent the Plaintiffs in

this action, together with our co-counsel from Chadbourne & Parke LLP.

9. In support of this application, I attach as Exhibit A records I kept documenting the

work I performed on behalf of the Plaintiffs in this case: These records show 32.8


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rate cap would be $192.24. Plaintiffs request the Court to compensate OutServe-

SLDN for the time its attorneys spent working on this case at these hourly rates.

12. Applying those hourly rates to my discounted time, Plaintiffs seek for OutServe-

SLDN:




TOTAL: $20,832.14

13. Therefore, Plaintiffs seek an award of $20,832.14 for my time. Together with the

$12,659.80 Plaintiffs seek for Mr. McKeans time (see McKean Decl. 11-12),

Plaintiffs seek a total award of $33,492.20 for OutServe-SLDN.

14. In support of this application, I also note the following Exhibits that were


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Executed on October 28, 2013.

/s/ John M. Goodman

GOODMAN DECL. EXHIBIT A - TIME RECORDSDate Time Activity


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6/8/2011 1.3 telephone conference Chadbourne & Parke6/28/2011 1.4 telephone conference McLaughlin, conference Sarvis/McKean7/13/2011 1.1 telephone conference prospective plaintiffs, conference Sarvis/McKean

8/8/2011 1.5 telephone conference prospective plaintiffs, conference Sarvis/McKean8/15/2011 1.4 telephone conference prospective plaintiffs, conference Sarvis/McKean8/16/2011 1.2 telephone conference Bornhoft, conference Sarvis/McKean

8/17/2011 2.1 conference Sarvis/McKean, Chadbourne & Parke8/18/2011 2.7 telephone conference Hudson; telephone conference prospective plaintiffs, conference Sarvis/McKean8/25/2011 1.0 telephone conference McLaughlin, conference Sarvis/McKean8/26/2011 0.8 telephone conference Snyder, conference Sarvis/McKean9/15/2011 0.6 telephone conference Hill, telephone conference Chadbourne & Parke9/22/2011 1.7 telephone conference Hudson, conference Sarvis/McKean9/29/2011 2.3 telephone conference Hudson, telephone conference Chadbourne & Parke9/30/2011 0.7 telephone conference Rossr, conference Sarvis/McKean

10/13/2011 1.3 revise complaint10/14/2011 1.0 telephone conference Man, email correspondence10/15/2011 2.5 revise summary judgment brief; investigation of law re legislative history of "spouse"10/17/2011 2.1 revise motion papers; email correspondence10/18/2011 1.9 elephone conference Ladner; revise summary judgment brief 10/20/2011 0.8 conference Sarvis/McKean10/21/2011 1.3 investigation of law re legislative history of "spouse"; revise summary judgment brief 10/22/2011 2.0 telephone conference plaintiffs; email correspondence10/23/2011 1.0 revise summary judgment brief, email correspondence10/24/2011 2.5 revise complaint, email correspondence10/25/2011 7.0 revise complaint, email correspondence10/26/2011 6.1 revise complaint, email correspondence, conference Sarvis/McKean10/27/2011 5.0 revise complaint, email correspondence, conference Sarvis/McKean10/29/2011 0.7 review GLAD brief

11/1/2011 0.9 telephone conference, email correspondence, memo

11/2/2011 1.4 telephone conference, conference Sarvis/McKean11/3/2011 0.3 email correspondence11/4/2011 0.7 investigation of law, email correspondence11/8/2011 1.0 revise summary judgment11/9/2011 1.1 revise summary judgment

11/14/2011 2.4 revise summary judgment11/15/2011 3.0 revise summary judgment, conference Sarvis/McKean


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11/16/2011 0.8 telephone conference, email correspondence11/17/2011 2.4 telephone conferences, revise summary judgment11/18/2011 0.8 telephone conferences, revise summary judgment

TOTAL 2011 69.82/10/2012 0.5 telephone conference Man et al.

3/6/2012 0.4 telephone conference Man et al.

3/19/2012 0.7 telephone conference Man et al., email correspondence, conference Sarvis/McKean4/3/2012 1.3 telephone conference Man et al., email correspondence4/4/2012 1.2 telephone conference Lin, Man et al., email correspondence, stipulation4/5/2012 0.4 conference Sarvis/McKean, email correspondence

4/11/2012 0.8 telephone conference Lin, Man et al., revise motion to set deadline4/17/2012 0.4 email correspondence4/18/2012 0.4 email correspondence

5/1/2012 1.4 telephone conference Lin, Man et al.; review BLAG motion to intervene5/2/2012 1.2 revise intervention opposition5/3/2012 0.6 revise intervention opposition5/8/2012 0.3 telephone conference Man et al.

5/15/2012 1.0 telephone conference Lin et al., conference Sarvis/McKean5/31/2012 0.5 review Gill decision

6/4/2012 0.3 telephone conference Man et al6/6/2012 0.3 review DOJ motion to stay; revise response

TOTAL 2012 11.76/24/2013 0.9 telephone conference plaintiffs, McKean6/26/2013 2.1 telephone conference plaintiffs, review Supreme Court opinions6/27/2013 1.4 email correspondence, review Supreme Court ops6/24/2013 0.9 telephone conference plaintiffs, McKean6/26/2013 2.1 telephone conference plaintiffs, review Supreme Court opinions6/27/2013 1.4 email correspondence7/12/2013 0.3 email correspondence

7/15/2013 1.1 conference Sarvis/McKean, email correspondence, revise show cause filing7/18/2013 2.1 review show cause filings; email correspondence7/19/2013 2.3 telephone conference plaintiffs, McKean; rev papers; email correspondence7/20/2013 0.7 email correspondence, benefits lost7/21/2013 0.8 DoD conference call re Windsor implementation, email correspondence

8/5/2013 0.2 email correspondence8/6/2013 1.4 factual investigation re lost benefits, email correspondence


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8/8/2013 0.3 email correspondence8/9/2013 0.2 email correspondence

8/15/2013 0.5 email correspondence8/16/2013 0.5 email correspondence8/20/2013 1.4 email correspondence, telephone conference McLaughlin, factual investigation re lost benefits8/21/2013 0.3 email correspondence

8/23/2013 0.3 email correspondence8/30/2013 1.2 review Cooper-Harris decision, email correspondence, factual investigation re lost benefits9/2/2013 0.5 factual investigation re lost benefits, email correspondence9/9/2013 0.9 review DoJ status report; revise response

9/10/2013 1.2 revise response to DoJ; email correspondence9/12/2013 0.3 review order, email correspondence9/18/2013 0.8 revise proposed judgment, email correspondence9/19/2013 0.9 revise proposed judgment, email correspondence9/20/2013 1.2 revise proposed judgment, email correspondence9/23/2013 0.8 revise proposed judgment, email correspondence, telephone conference Man9/25/2013 0.7 email correspondence10/8/2013 0.3 email correspondence

10/11/2013 1.2 revise fee dec, email correspondence10/12/2013 0.4 revise fee brief, email correspondence10/14/2013 0.3 email correspondence10/18/2013 0.6 revise fee dec, email correspondence10/25/2013 0.3 revise fee brief, email correspondence

TOTAL 2013 32.8GRANDTOTAL 114.3


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)Plaintiffs, )

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


)Defendants. )

________________________________________ )

DECLARATION OF DAVID MCKEAN IN SUPPORT OFPLAINTIFFS APPLICATION FOR AN AWARD OF ATTORNEYS FEES & COSTS

I, David McKean, declare pursuant to 28 U.S.C. 1746 as follows:

1. I represent the Plaintiffs in this action and submit this declaration in support of

Plaintiffs' application for attorneys' fees and costs pursuant to the Equal Access to

Justice Act 28 U S C 2412(a)(1) & (d) and Federal Rule of Civil Procedure


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5. After law school and prior to joining OutServe-SLDN, I was a law clerk for the

Honorable Steven G. Salant of the Circuit Court for Montgomery County,

Maryland.

6. Along with John M. Goodman, Esq., Of Counsel to OutServe-SLDN, I

represented the Plaintiffs in this action, together with our co-counsel from

Chadbourne & Parke LLP.

7. In support of this application, I attach as Exhibit A records documenting the work

I performed on behalf of the Plaintiffs in this case: These records show 10.2

hours in 2013, 10.3 hours in 2012, and 46.4 hours in 2011.

8. Other OutServe-SLDN attorneys and professionals contributed to our success in

this case but, in the interest of controlling costs, the Plaintiffs are not seeking

reimbursement for any OutServe-SLDN time other than that spent by Mr.

Goodman and me.


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9.8 attorney hours times $190.21 for 2012 equals $1,864.06.

13.2 attorney hours times $192.24 for 2013 equals $2,537.57.

TOTAL: $12,659.80

12. Therefore, Plaintiffs seek an award of $12,659.80 for my time. Together with the

$20,832.14 Plaintiffs seek for Mr. Goodmans time (see Goodman Decl. 12-

13), Plaintiffs seek a total award of $33,492.20 for OutServe-SLDN.

13. In support of this application, I also note the following Exhibits that were

submitted with Mr. Lowell's Declaration:

Exhibit A: Judgment entered October 2, 2013 in favor of Plaintiffs (Dkt. 55).




14. As the Plaintiffs in this matter have assigned any interest they have in an award of

MCKEAN DECL. EXHIBIT A - TIME RECORDSDate Time Activity6/8/2011 1 3 l h f Ch db & P k


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6/8/2011 1.3 telephone conference Chadbourne & Parke6/28/2011 1.4 telephone conference McLaughlin, conference Sarvis/Goodman7/13/2011 1.1 telephone conference prospective plaintiffs, conference Sarvis/Goodman

8/8/2011 1.5 telephone conference prospective plaintiffs, conference Sarvis/Goodman8/15/2011 1.4 telephone conference prospective plaintiffs, conference Sarvis/Goodman8/16/2011 1.2 telephone conference Bornhoft, conference Sarvis/Goodman

8/17/2011 2.1 conference Sarvis/Goodman, Chadbourne & Parke8/18/2011 2.7 telephone conference Hudson; telephone conference prospective plaintiffs, conference Sarvis/Goodman8/25/2011 1.0 telephone conference McLaughlin, conference Sarvis/Goodman8/26/2011 0.8 telephone conference Snyder, conference Sarvis/Goodman9/15/2011 0.6 telephone conference Hill, telephone conference Chadbourne & Parke9/22/2011 1.7 telephone conference Hudson, conference Sarvis/Goodman9/23/2011 0.2 Correspondences w/ Shannon9/29/2011 2.3 telephone conference Hudson, telephone conference Chadbourne & Parke9/30/2011 0.7 telephone conference Rossr, conference Sarvis/Goodman

10/11/2011 0.2 Correspondences w/ Mike Pusateri10/14/2011 1.0 telephone conference Man, email correspondence10/17/2011 0.5 Correspondences w/ Mike Pusateri10/20/2011 1.3 conference Sarvis/Goodman, correspondences10/22/2011 2.0 telephone conference plaintiffs; email correspondence10/25/2011 1.0 Securing client representation aggreements10/26/2011 6.1 revise complaint, email correspondence, conference Sarvis/Goodman10/27/2011 5.0 revise complaint, email correspondence, conference Sarvis/Goodman

11/1/2011 0.9 telephone conference, email correspondence, memo11/2/2011 1.4 telephone conference, conference Sarvis/Goodman

11/15/2011 3.0 revise summary judgment, conference Sarvis/Goodman11/16/2011 0.8 telephone conference, email correspondence11/17/2011 2.4 telephone conferences, revise summary judgment11/18/2011 0.8 telephone conferences, revise summary judgment

TOTAL 2011 46.41/13/2012 0.5 correspondences2/10/2012 0.5 telephone conference Man et al.

3/6/2012 0.4 telephone conference Man et al.3/19/2012 0.7 telephone conference Man et al., email correspondence, conference Sarvis/Goodman

4/3/2012 1.3 telephone conference Man et al., email correspondence4/4/2012 1.2 telephone conference Lin, Man et al., email correspondence, stipulation4/5/2012 0 4 conference Sarvis/Goodman email correspondence


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4/5/2012 0.4 conference Sarvis/Goodman, email correspondence4/9/2012 1.5 DEERS research for Jean at DOJ

4/11/2012 0.8 telephone conference Lin, Man et al., revise motion to set deadline, correspondences with plaintiffs5/1/2012 1.4 telephone conference Lin, Man et al.; review BLAG motion to intervene5/8/2012 0.3 telephone conference Man et al.

5/15/2012 1.0 telephone conference Lin et al., conference Sarvis/Goodman6/4/2012 0.3 telephone conference Man et al

TOTAL 2012 10.36/24/2013 0.9 telephone conference plaintiffs, Goodman6/26/2013 2.1 telephone conference plaintiffs, review Supreme Court opinions6/24/2013 0.9 telephone conference plaintiffs, Goodman6/26/2013 2.1 telephone conference plaintiffs, review Supreme Court opinions7/15/2013 1.1 conference Sarvis/Goodman, email correspondence, revise show cause filing7/19/2013 2.3 telephone conference plaintiffs, Goodman; email correspondence7/21/2013 0.8 DoD conference call re Windsor implementation, email correspondence

10/22/2013 1.8 Review time records; prepare declaration in support of application for attorneys' fees10/23/2013 2.2 Review time records; prepare declaration in support of application for attorneys' fees

TOTAL 2013 14.2

GRANDTOTAL 70.9

1:11-cv-11905 #56

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