1:13-cv-00482 #147

8/9/2019 1:13-cv-00482 #147

1/84

Deborah A. Ferguson, ISB No. 5333Craig Harrison Durham, ISB No. 6428Ferguson Durham, PLLC223 N. 6th Street, Suite 325Boise, ID 83702Tel.: (208) 345-5183

Shannon P. MinterChristopher F. Stoll National Center for Lesbian Rights870 Market Street, Suite 370San Francisco, California 94102Tel.: (415) 392-6257Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS,LORI WATSEN and SHARENE WATSEN,SHELIA ROBERTSON and ANDREAALTMAYER, AMBER BEIERLE andRACHAEL 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

PLAINTIFFS’

SUPPLEMENTAL MOTION

FOR REASONABLE

ATTORNEYS’ FEES AND

EXPENSES

Case 1:13-cv-00482-CWD Document 147 Filed 02/05/15 Page 1 of 3

8/9/2019 1:13-cv-00482 #147

2/84

PLAINTIFFS’ SUPPLEMENTAL MOTION FOR REASONABLE ATTORNEYS’ FEES AND EXPENSES - 2

COME NOW the Plaintiffs, by and through their attorneys, and respectfully move this

Court to order Defendants to pay their reasonable attorneys’ fees, costs, and expenses, pursuant

to 42 U.S.C. § 1988, Rule 54 of the Federal Rules of Civil Procedure, and District of Idaho Local

Civil Rules 54.1 and 54.2.

Specifically, Plaintiffs, as the prevailing party, move the Court to order Defendants to pay

$297,475 in reasonable attorneys’ fees and $6,730.85 in costs and expenses for representation in

the District Court since May 24, 2014, and for successful representation in the Ninth Circuit

Court of Appeals.

This Motion is based on the record herein, together with the memorandum and

declarations filed in support.

Respectfully submitted this 5th day of February 2014,

______________/s/____________Deborah A. FergusonCraig H. DurhamFerguson Durham, PLLC

Shannon P. MinterChristopher F. Stoll National Center for Lesbian Rights

Attorneys for Plaintiffs


8/9/2019 1:13-cv-00482 #147

3/84

PLAINTIFFS’ SUPPLEMENTAL MOTION FOR REASONABLE ATTORNEYS’ FEES AND EXPENSES - 3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 5th day of February, 2015, I filed the foregoing

Supplemental Motion electronically through the CM/ECF system, which caused the following

parties or counsel to be served by electronic means, as more fully reflected on the Notice of

Electronic Filing:

Attorneys for Defendant Rich and Intervenor State of Idaho:

Steven Lamar [email protected]

Clay R [email protected]

W Scott [email protected]

Attorneys for Defendant Governor Otter:

Thomas C. [email protected]

Cally Ann [email protected]

______________/s/____________Deborah A. Ferguson


8/9/2019 1:13-cv-00482 #147

4/84

Deborah A. Ferguson, ISB No. 5333Craig Harrison Durham, ISB No. 6428Ferguson Durham, PLLC223 N. 6th Street, Suite 325Boise, ID 83702Tel.: (208) 345-5183





Plaintiffs,

v.


Defendants,

and

STATE OF IDAHO,



PLAINTIFFS’

MEMORANDUM IN

SUPPORT OF

SUPPLEMENTAL MOTION

FOR REASONABLEATTORNEYS’ FEES AND

EXPENSES

Case 1:13-cv-00482-CWD Document 147-1 Filed 02/05/15 Page 1 of 11

8/9/2019 1:13-cv-00482 #147

5/84

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SUPPLEMENTAL MOTION FOR ATTORNEYS’ FEES - 2

INTRODUCTION

On May 13, 2014, this Court held that Idaho’s statutory and constitutional laws banning

same-sex couples from marrying, or from having their out-of-state marriages recognized in

Idaho, violated Plaintiffs’ Fourteenth Amendment rights. (Dkt. 98.) It granted summary

judgment to Plaintiffs on all claims and permanently enjoined state officials from enforcing the

marriage ban. (Dkts. 98, 101.)

Based on the “excellent results in this litigation,” the Court later granted, with some

modifications, Plaintiffs’ request that Defendants pay their reasonable attorneys’ fees for work

completed in the District Court through May 23, 2014. (Dkt. 139, p. 23.) In reaching its

conclusion, the Court found that the requested hourly rates for all of Plaintiffs’ attorneys were

reasonable, and it further determined that just under 90% of the work hours that Plaintiffs’

attorneys had claimed were reasonable and compensable. ( Id . at 5-23.) Rejecting Defendants’

assertion that the case offered only “recycled” legal arguments, the Court noted that the case

instead presented complex issues of first impression in a rapidly changing environment, and that

the parties had filed, on an expedited schedule, “hundreds of pages of briefs” and “thousands of

pages of declarations, reports, news articles, legislative history, and caselaw.” ( Id . at 15-16.)

According to the Court, “the case was neither easy nor ordinary.” ( Id . at 16.)

The Court’s observation remains true today, and Defendants have now unsuccessfully

challenged the Court’s Judgment in the Ninth Circuit Court of Appeals, which issued its

Mandate on January 21, 2015. The Ninth Circuit has since transferred the issue of appellate

attorneys’ fees to this Court. Plaintiffs remain the prevailing party, and now seek $297,475 in


8/9/2019 1:13-cv-00482 #147

6/84


reasonable attorneys’ fees and $6,730.85 in costs and expenses incurred in the District Court

after May 23, 2014 and for work completed in the Ninth Circuit Court of Appeals.1

STANDARD OF LAW

The Court is familiar with the legal standards governing the award of attorneys’ fees in

civil rights cases under 42 U.S.C. § 1988(b), and they are repeated here only as necessary.

A court must award reasonable attorneys’ fees to the prevailing party in a § 1983 case

unless special circumstances would render the award unjust. Hensley v. Eckerhart , 461 U.S.

424, 429 (1983). Generally, a party that is entitled to an award of attorneys’ fees in the district

court is also entitled to an award of attorneys’ fees on appeal. See, e.g., Stewart v. Gates, 987

F.2d 1450, 1454 (9th Cir. 1993) (noting that appellate attorneys’ fees may be awarded under 42

U.S.C. § 1988’s fee-shifting provision to a party that successfully defends an award on appeal);

see also Planned Parenthood of Cent. & N. Ariz. v. Arizona, 789 F.2d 1348, 1354 (9th Cir. 1986)

(awarding attorneys’ fees on appeal under § 1988 when the plaintiff won on the merits in the

district court and on appeal).

In determining a reasonable fee, the Court must begin by finding the “lodestar” amount,

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

hourly rate.” Hensley, 461 U.S. at 433. There is a strong presumption that the lodestar

represents the reasonable fee. City of Burlington v. Dague, 505 US 557, 561 (1992). The fee

applicant bears the initial burden of adequately documenting her time, and “satisfactory evidence

of the prevailing market rate may consist of a plaintiff’s attorney’s affidavit, other attorneys’

affidavits regarding prevailing fees in the community, and rate determinations in other cases.”

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008). “The party opposing the

1 Defendants continue to challenge this Court’s decision, currently in the Supreme Court of the United States.Plaintiffs are not now requesting attorneys’ fees for time spent responding to Defendants’ Petitions for Writ ofCertiorari but intend to seek, at a later date, additional fees and costs for work completed in the Supreme Court.


8/9/2019 1:13-cv-00482 #147

7/84


fee application has the burden of rebuttal,” which 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 v. Gomez, 60 F.3d 525, 534-535 (9th Cir.

1995). The most critical factor in determining the reasonableness of a fee award is “the degree

of success obtained.” See, e.g., Farrar v. Hobby, 506 U.S. 103, 114 (1992).

ARGUMENT

Plaintiffs have successfully withstood Defendants’ challenge to this Court’s Judgment in

the Court of Appeals, and they remain the prevailing party under 42 U.S.C. § 1988. They are

entitled to an award of reasonable attorneys’ fees and expenses, both for work completed in the

District Court since May 23, 2014, and for work completed on appeal in the Ninth Circuit.

A. Plaintiffs’ Proposed Lodestar is Reasonable

The lodestar amount, discussed in greater detail below, is summarized by the following

chart:

ATTORNEY/

LEGAL STAFF REASONABLE

HOURLY RATE

HOURS TOTAL

Ms. Ferguson $400 408.3 $163,320.00

Mr. Minter $400 96.8 $38,720.00

Mr. Durham $325 105.8 $34,385.00

Mr. Stoll $325 139.4 $45,305.00

Ms. Whelan $275 28.4 $7,810.00

Ms. Huling Delaye $175 15.7 $2,747.50

Aaron Aruck(paralegal)

$125 11.9 $1,487.50

Law Student $125 29.6 $3,700.00

TOTALS: 835.9 $297,475.00


8/9/2019 1:13-cv-00482 #147

8/84


1. The Requested Hourly Rates are Reasonable

Earlier, Plaintiffs submitted evidence to the Court that supported their attorneys’

requested hourly rates, including declarations from Deborah Ferguson, Craig Durham, and

Shannon P. Minter. (Dkt. 113-3, 113-7, 113-12.) Two attorneys with extensive litigation

experience in Idaho and surrounding areas, Debora Kristensen and Lauren Scholnick, offered

their opinions that the requested rates were reasonable in light of Plaintiffs’ attorneys’ experience

and skill and given that few attorneys would have been willing to take on the risk and the

workload that loomed at the beginning of this case. (Dkt. 113-14, 113-15.) Plaintiffs also relied

on the Court’s award of similar hourly rates in the comparable recent case of Community House,

Inc., v. City of Boise, et al., 1:05-cv-00283-CWD. (Dkt. 113-1, p.9.) In contrast, Defendants

came forward with no evidence to carry their burden to rebut the reasonableness of the rates, and

the Court found the rates for each of Plaintiffs’ attorneys to be reasonable. (Dkt. 139, pp. 5-11.)

Plaintiffs now incorporate and rely on that same evidence, and the Court’s findings in its

Memorandum Decision, in addition to the supplemental declarations provided with the present

motion. Notably, Plaintiffs do not seek an increase on appeal that could be justified by a higher

prevailing market rate for appellate work by attorneys of similar experience and skill in the Ninth

Circuit for cutting-edge issues of the type presented in this case. Instead, they ask that the Court

simply adhere to its original findings that the following rates continue to be reasonable: Deborah

A. Ferguson, $400 per hour; Shannon P. Minter, $400 per hour; Craig Durham, $325 per hour;

Christopher Stoll, $325 per hour; Amy Whelan, $275 per hour, and Jaime Huling Delaye, $175

per hour. In addition, Plaintiffs also seek compensation, at $125 per hour, for a paralegal and

law student, which is a lower rate than attorneys would charge for completing the same tasks.


8/9/2019 1:13-cv-00482 #147

9/84

8/9/2019 1:13-cv-00482 #147

10/84


state officials in this case have doubled-down and continued to litigate the case aggressively.

While that is certainly their prerogative, it comes with a potential cost. See, e.g., City of

Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986) (noting that a party “cannot litigate

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

response.”) (internal citation and quotation omitted).

For instance, Defendants immediately sought emergency stays in the Court of Appeals to

prevent this Court’s Judgment from going into effect. The Governor next requested an initial en

banc review rather than proceeding with the normal assignment to a panel of judges, an unusual

request that was denied by the Court of Appeals. The Governor filed his own opening brief, and

the Attorney General filed a separate opening brief on behalf of Recorder Rich and the State.

Plaintiffs did not learn until counsel for the Governor was at the podium for oral argument in the

Court of Appeals that the Attorney General had ceded his argument time to the Governor’s

attorney. There was no advance notice of this change, and Plaintiffs’ counsel were required to

prepare as if the Attorney General’s representative and the Governor’s counsel would be

presenting separate arguments.

After the Ninth Circuit released its decision affirming this Court, the Governor sought an

emergency stay in the United States Supreme Court, which was briefly granted – dashing the

hopes of hundreds of individuals who arrived at county courthouses across the state just minutes

before marriage licenses were to be issued on October 8 – before being dissolved within two

days. The Governor later filed a Petition for Rehearing En Banc, and the Court of Appeals

ordered a response from Plaintiffs’ counsel, while the State and Recorder Rich declined to


8/9/2019 1:13-cv-00482 #147

11/84


request a rehearing. Indeed, to this day, Defendants’ refusal to speak with a unified voice on

behalf of Idaho’s interests has sown confusion and caused more work for all parties.2

Despite these challenges, Plaintiffs’ attorneys delegated and divided work among the

team to conserve time and to avoid duplication of effort to the extent that they could. In addition

to her duties as lead counsel, which included the review and editing of the comprehensive

briefing on appeal, Ms. Ferguson focused and prepared extensively for a rigorous and difficult

oral argument in the Court of Appeals on legal issues of historic importance. The Court of

Appeals allotted triple the average time for oral argument in this case, which it streamed live on

the day of the argument. Ms. Ferguson also was the point person on the team who communicated

with Plaintiffs to keep them apprised of the many motions, filings, and rulings in the case. In

addition, she responded to the constant requests for information from the media, which sought to

keep the public across the country abreast of the rapid case developments. Chris Stoll and

Shannon Minter carried the bulk of the brief-writing and legal research duties. Mr. Durham’s

background and experience in researching, writing, and appellate work was put to use in drafting

a portion of the appellate brief, reviewing and making suggestions to other portions, taking on

varied research tasks, and participating in moot court sessions. Mr. Minter also contributed his

deep reservoir of experience and knowledge on the issues presented in the case, and was

instrumental in formulating strategy that permitted the team to target its resources more

effectively and efficiently.

Each of Plaintiffs’ attorneys have exercised billing judgment reductions, as set out in the

timesheets attached to the supplemental declarations, and have chosen not to bill for tasks that

would otherwise be compensable. For instance, although Mr. Minter and Mr. Stoll were on

2 Yet another example: Defendant Otter filed a separate petition for a writ of certiorari in the United States SupremeCourt from Defendant Rich and the State of Idaho. As noted above, Plaintiffs will file a motion for fees related towork before the Supreme Court at an appropriate time.


8/9/2019 1:13-cv-00482 #147

12/84


numerous conference calls with co-counsel about various briefs, strategy decisions, and defense

filings, they frequently did not charge for those communications. (Minter Supp. Decl. at ¶ 19.)

Likewise, Ms. Ferguson and Mr. Durham have taken meaningful reductions for time that would

otherwise be compensable, as set forth in their declarations. (Ferguson Supp. Decl. at ¶ 20;

Durham Supp. Decl. at ¶ 13.) Additionally, Plaintiffs’ team received many hours of assistance

from other legal professionals who seek no compensation, including invaluable advice and

consultation from the NCLR’s Constitutional Litigation Director, David Codell. (Minter Supp.

Decl. at ¶ 19.) Plaintiffs also have not sought time for Supreme Court specialists at Morrison &

Foerster who provided assistance opposing the Governor’s motion for a stay filed with the

United States Supreme Court. Id. Other NCLR staff also provided key services for which

Plaintiffs are not seeking compensation. Id.

Finally, Plaintiffs are sensitive to the areas of concern that the Court noted in its previous

Memorandum Decision on fees. Plaintiffs’ attorneys have assigned individual tasks for each

time entry to the extent that an assignment is possible. With respect to the Court’s statement that

it would not “entertain another request for fees incurred in litigating [the original] fee motion”

(“fees for fees”), Plaintiffs’ attorneys have excluded all time spent on the motion from May 24,

2014, until the filing of the motion on May 27, 2014.

However, Plaintiffs are seeking compensation for the time spent in preparing the Reply

to Defendants’ Memorandum in Response to Motion for Attorneys’ Fees, filed on July 28, 2014.

(Dkt. 122.) It is well-established that Plaintiffs are entitled to reasonable attorneys’ fees for time

spent on a fees motion. See, e.g., Orange Blossom P’Ship v. S. Cal. Sunbelt Developers, Inc. ,

608 F.3d 456, 462–65 (9th Cir. 2010) (noting that in statutory fee cases, federal courts have

uniformly held that attorneys are entitled to be compensated for the time reasonably spent

establishing their right to the fee); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir.


8/9/2019 1:13-cv-00482 #147

13/84

8/9/2019 1:13-cv-00482 #147

14/84


$99,770; Ferguson Durham - $197,705) and $6,730.85 in costs and expenses (NCLR - $3,611.32;

Ms. Ferguson – $1,837.23; Mr. Durham - $1,282.30), plus post-judgment interest pursuant to 28

U.S.C. § 1961.

Respectfully submitted this 5th day of February, 2014

______________/s/____________Deborah A. FergusonCraig Harrison DurhamFerguson Durham, PLLC

Shannon P. MinterChristopher F. Stoll National Center for Lesbian Rights



8/9/2019 1:13-cv-00482 #147

15/84

Deborah A. Ferguson, ISB No. 5333Craig Harrison Durham, ISB No. 6428Ferguson Durham, PLLC223 N. 6th Street, Suite 325Boise, ID 83702

Tel.: (208) 345-5183





Plaintiffs,

v.


Defendants,

and

STATE OF IDAHO,



DECLARATION OF

DEBORAH A. FERGUSON

IN SUPPORT PLAINTIFFS’

SUPPLEMENTAL MOTIONFOR REASONABLE

ATTORNEYS’ FEES AND

EXPENSES


8/9/2019 1:13-cv-00482 #147

16/84

2

I, Deborah A. Ferguson, hereby declare and state as follows:

1. I am lead counsel in this action and represent the Plaintiffs, along with my

co-counsel. I am a member in good standing of the Idaho State Bar, and am admitted to

practice before this Court, the Ninth Circuit Court of Appeals and the Supreme Court of

the United States. I have personal knowledge of the matters stated in this declaration and

could competently testify to these facts.

2. I am submitting this second declaration in support of Plaintiffs’

Supplemental Motion for Reasonable Attorneys’ Fees and Expenses from May 24, 2014,

which has been filed concurrently. This fee petition seeks fees from May 24, 2014 in the

District Court and through the appeal in the Ninth Circuit Court of Appeals.

3. I incorporate by reference my earlier declaration filed with the Court on

May 27, 2014, detailing my legal background, the complexity, risk and unique demands

of the litigation, the excellent results obtained, and my billing rate. (Dkt. No. 113-3).

4. Since my first declaration was submitted to the Court, I have formed the

law firm of Ferguson Durham, PLLC, along with my partner, Craig Durham in August,

2014.

THE COMPLEXITY AND UNIQUE DEMANDS OF THE APPEAL

5. The appeal presented unique and complex demands on an extremely

expedited time frame. As Plaintiffs’ attorneys, we were required to respond to

Defendants’ separate emergency motions to stay in the Ninth Circuit; to review the

Governor’s unusual Petition for Initial Hearing En Banc and consult with co-counsel; to

review and file a response to the Governor’s 142-page Opening Brief (with appendices)

and the State and Recorder Rich’s 45-page Opening Brief with over 800 pages of


8/9/2019 1:13-cv-00482 #147

17/84

3

excerpts of the record; to review 36 briefs filed by amici; to prepare extensively for oral

argument in a case with issues of first-impression and of national importance; to present a

lengthy oral argument in the Ninth Circuit; and to review and respond to the Governor’s

Petition for Re-hearing En Banc.

6. Thousands of pages of documents, news reports, legal research, drafts, and

memoranda were reviewed and digested. Briefs and responses on issues of first

impression were written, edited, re-written, and filed within the expedited parameters set

by the Ninth Circuit. And each of these tasks was performed while the legal landscape

was shifting quickly. Along with my team, I needed to stay abreast of those changes –

which included major developments in the Fourth, Sixth, and Tenth Circuits – and to

adjust quickly.

7. Moreover, as has been true from the inception of this case, Defendants’

litigation choices and tactics have added significantly to the workload of our legal team.

Unlike officials in their sister states who decided to discontinue their challenges to

similar marriage equality claims, the state officials in this case doubled-down and

continue to litigate the case aggressively.

8. For instance, Defendants immediately sought emergency stays in the

Court of Appeals to prevent this Court’s Judgment from going into effect. The Governor

next filed a rare request for an initial en banc review rather than proceeding with the

normal assignment to a panel of judges, an unusual request that was denied by the Court

of Appeals. The Governor filed his own opening brief, and the Attorney General filed a

separate opening brief on behalf of Recorder Rich and the State. I did not learn until

counsel for the Governor was at the podium for oral argument in the Court of Appeals


8/9/2019 1:13-cv-00482 #147

18/84

4

that the Attorney General had ceded his argument time to the Governor’s attorney. I was

given no advance notice of this change, requiring me to prepare to respond to both the

Attorney General’s and the Governor’s separate arguments.

9. After the Ninth Circuit released its decision affirming this Court, the

Governor sought an emergency stay in the United States Supreme Court. It was briefly

granted – dashing the hopes of the engaged Latta Plaintiffs and hundreds of individuals

who arrived at county courthouses across the state just minutes before marriage licenses

were to be issued on October 8 – before being dissolved within two days. The Governor

later filed a Petition for Rehearing En Banc, and the Court of Appeals ordered a response

from Plaintiffs’ counsel, while the State and Recorder Rich declined to request a

rehearing. Indeed, to this day, Defendants’ refusal to speak with a unified voice on

behalf of Idaho’s interests, such as Defendants’ separate petitions for a writ of certiorari

in the United States Supreme Court has compounded the response needed from our legal

team.

MY ROLE AS LEAD COUNSEL ON APPEAL

10. Despite these challenges, work was delegated and divided among the team

to conserve time and to avoid duplication of effort to the extent possible. Part of my

duties as lead counsel included the review and editing of Plaintiffs’ comprehensive

briefing on appeal, the review and analysis of the Defendants’ extensive briefing and

excerpts of records, as well review of the 36 amici briefs filed in the appeal.

11. As lead counsel I focused primarily on presenting the oral argument, and

prepared extensively for the rigorous and difficult appellate oral argument on legal issues

of historic importance. My timesheets reflect the basic chronology of my preparation for


8/9/2019 1:13-cv-00482 #147

19/84

5

oral argument, over the weeks leading to the argument.1 This preparation included several

moot courts with my co-counsel, as well as professors and other attorneys with extensive

familiarity with the relevant constitutional issues. I also met with court staff to discuss

logistical matters and visited the courtroom prior to the argument to familiarize myself

and test the Court’s audio systems. The Court of Appeals allotted triple the average time

for oral argument in this case, which it streamed live on the day of the argument to over

3,000 viewers through its website.

12. During this period of intensive argument preparation, I also was the point

person on the team who communicated personally with the eight Plaintiffs. I kept them

apprised of the many motions, filings, and rulings in the case, and guided them through

the rapidly changing landscape. In addition, I responded to the barrage of requests for

information from local and national media outlets, which sought to keep the public

abreast of the many rapid case developments as the expedited appeal progressed.

THE ROLE OF MY CO-COUNSEL

13. Due to the complexity of the legal issues raised in the action and the

exceptionally fast pace of the litigation, significant communication was required by our

legal team. The hours of co-counsel are being submitted separately through the

declarations of Shannon Minter, on behalf of the NCLR, and by my partner, Craig

Durham.

14. Chris Stoll and Shannon Minter carried the bulk of the brief-writing and

legal research duties. Craig Durham’s background and experience in researching,

writing, and appellate work was put to use in drafting a portion of the appellate brief,

1 My time sheets reflect that I generally followed the preparation outline found in David C. Frederick,Supreme Court and Appellate Advocacy Appendix A (West 2d ed. 2010).


8/9/2019 1:13-cv-00482 #147

20/84

6

reviewing and making suggestions to other portions, taking on varied research tasks, and

participating in moot court sessions. Shannon Minter also contributed his deep reservoir

of experience and knowledge on the issues presented in the case, and was instrumental in

formulating strategy that permitted the team to target its resources more effectively and

efficiently.

THE EXCELLENT RESULTS OBTAINED

15. Despite these demands and challenges, our efforts on behalf of the

Plaintiffs produced an excellent result, as we obtained the full relief sought in our

Complaint. The lives of the Plaintiffs and thousands of Idaho families as well as residents

of Arizona, Montana and Alaska have been forever altered as a result of the Court of

Appeals affirmance of the Court’s Decision in this case. Latta v. Otter is now established

law in the entire Ninth Circuit recognizing same sex couples' right to marry and have

their marriages recognized, under the U.S. Constitution.

MY BILLING RATE AND REASONABLE HOURS SPENT

16. Attached as Exhibit A is a true and accurate transcription of the time that I

spent working on the merits of this case in the Ninth Circuit Court of Appeals. The hours

and expenses listed in my time records are based upon contemporaneous records, and

were necessary to the prosecution of this action. I have devoted 406 hours to the merits of

this case.

17. Attached as Exhibit B is true and accurate transcription of the time that I

spent working on the case in since May 24, 2014 related to fee petitions.

18. Attached as Exhibit C is a true and accurate report of the expenses for

which I am seeking reimbursement in the amount of $1,837.23.


8/9/2019 1:13-cv-00482 #147

21/84

8/9/2019 1:13-cv-00482 #147

22/84

8

requesting compensation for time spent working on the case in the United States Supreme

Court, though I may do so at a later time.

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

Executed in Boise, Idaho on this 5th day of February 2015.

/s/ ____________________Deborah A. Ferguson


8/9/2019 1:13-cv-00482 #147

23/84

EXHIBIT A


8/9/2019 1:13-cv-00482 #147

24/84

Latta v. Otter ‐ 14‐35420, 21

Deborah Ferguson Merits Time

DATE DESCRIPTION HOURS

BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

5/14/2014 Confer with co‐counsel on emergency

motions for a stay pending appeal, and

response

1 1 0

5/14/2014 Appeal filed in 9th Cir., review Gov.'s

motion for stay pending appeal, and

supporting affidavit

2 2 0

5/14/2014 Review AG's emergency motion for a

stay pending appeal

1.2 1.2 0

5/15/2014 Review and edit draft response

opposing motion for stay, filed response

with 9th Cir.

3.1 3.1 0

5/15/2014 Phone

conference

with

emergency

motion unit of 9th Cir.0.2 0.2 0

5/15/2014 Responded to multiple media requests,

interviews re: same

1.5 1 ‐0.5

5/15/2014 Advised Plaintiffs on status of appeal

and effect of temporary stay

0.8 0.8 0

5/15/2014 Reviewed Gov.'s reply in support of stay

request

1 1 0

5/15/2014 Responded to multiple press inquires 0.6 0.4 ‐0.2

5/15/2014 Reviewed 9th Cir.'s order granting a

temporary stay, confer with co‐counsel

1 1 0

5/16/2014 Respond to Plaintiffs' inquires on next

steps

1.2 1.2 0

5/20/2014 Advised Plaintiffs of Court's order

granting emergency request for a stay

pending appeal and responded to

questions

0.5 0.5 0

5/20/2014 Reviewed Dist.

of

Oregon's

same

sex

marriage Decision

0.4 0.4 0

5/20/2014 Reviewed Court's order granting

emergency request for a stay pending

appeal

0.5 0.5 0


8/9/2019 1:13-cv-00482 #147

25/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

5/20/2014 Conferred with co‐counsel re order

granting emergency request for a stay

pending appeal

0.5 0.5 0

5/27/2014 Reviewed Rule 10 Notice and conferred

with co‐counsel on request for

transcript

0.2 0.2 0

5/29/2014 Conferred with co‐counsel on Nevada

9th Cir. same sex marriage case, request

to coordinate

0.2 0.2 0

5/29/2014 Reviewed motion to consolidate appeals

of AG and Gov.Otter

0.2 0.2 0

5/30/2014 Confer

with

co‐

counsel

on

consent

on

amicus briefing and responded to Gov.'s

counsel (agreeing to consent)

0.3 0.3 0

5/30/2014 Reviewed Gov.'s petition for initial

hearing en banc , conferred with co‐

counsel re: same

1.5 1.5 0

5/30/2014 Email from Gov. counsel on "blanket

consent" on amicus, and response of AG

re: same

0.3 0.3 0

5/30/2014 Discussion with potential amici 0.2 0.2 0

5/31/2014 Research petition for initial hearing en

banc, review of 4th Cir. petition and

response to petition

0.5 0.5 0

6/2/2014 Review Court's order granting

consolidation of appeals

0.2 0.2 0

6/2/2014 Review of briefing in 10th Circuit Utah

same sex marriage case, and research

re: same

1.6 1.6 0

6/2/2014 Draft detailed agenda for appeal

strategy and

conference

of

co

‐cousel

on

6/3

0.8 0.8 0

6/3/2014 Conference call with co‐counsel on

appeal issues and strategy,including

amicus briefing and Gov.'s request for

initial en banc review

0.8 0.8 0


8/9/2019 1:13-cv-00482 #147

26/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

6/3/2014 Follow up email to co‐counsel recapping

dates and details of assignments for

further review

re:

appeal

0.5 0.5 0

6/3/2014 Email with AW on request for district

court transcript

0.1 0.1 0

6/4/2014 Response to media concerning

questions about Gov.'s petition for

initial en banc hearing in 9th Cir

0.3 0.3 0

6/5/2014 Review two amicus briefs in support of

10th Cir. appeals, question re: same to

co‐

counsel

0.6 0.6 0

6/8/2014 Confer with co‐counsel on consolidation

of appeals

0.2 0.2 0

6/10/2014 Research re: appeal 0.6 0.6 0

6/10/2014 Discussion with SM on preparation for

oral argument

0.3 0.3 0

6/11/2014 Research re: appeal 1 1 0

6/11/2014 Initial organization of preparation plan

for oral argument

1.5 1.5 0

6/11/2014 Meeting with reporter to respond to

inquires regarding appeal and

procedure

0.3 0.3 0

6/12/2014 Request from Gov.'s counsel re:

coordination with amicus briefing in NV

Sevcik case, confer with co‐counsel re:

same, response to request

0.4 0.4 0

6/12/2014 Email to co‐counsel on en banc issue, re:

status of Smithkline and Latta petition

0.1 0.1 0

6/12/2014 Discussion with CD on en banc and

appeal issues

0.5 0.5 0

6/13/2014 Research and review of amicus filings. 0.4 0.4 0

6/15/2014 Prepared detailed outline of preparation

plan for oral argument

1 1 0


8/9/2019 1:13-cv-00482 #147

27/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

6/15/2014 Research on appeal 1.5 1.5 0

6/16/2014 Phone conference with co‐counsel on

coordination of

amicus

briefing

0.9 0.9 0

6/16/2014 Review of Gov.'s ER motion re: amicus

briefing on Sevcik case and confer with

co‐cousel re: response to same

0.5 0.5 0

6/16/2014 Research on appeal 1.2 1.2 0

6/17/2014 Revise response to Gov.'s emergency

motion re: amicus briefs, confer with co‐

counsel re: same and filing

0.2 0.2 0

6/17/2014 Review Clerk's order re: amicus briefing

(Docket No. 20)

0.2 0.2 0

6/18/2014 Review email fro Gov.'s counsel, confer

with co‐counsel, respond to same

0.2 0.2 0

6/19/2014 Phone call with former Gov't offical on

amicus issues, draft letter to him re

same, enclosing requested brief

0.4 0 ‐0.4

6/19/2014 Follow up note to Senator re: amicus

briefing

0.2 0 ‐0.2

6/19/2014 Email from amicus coordinator and

contacts for amici briefing

0.1 0.1 0

6/19/2014 Review of 9th Cir. brief filed by AG and

Recorder

2 2 0

6/19/2014 Status update to Plaintiffs with AG's 9th

Cir. brief

0.2 0.2 0

6/20/2014 Review of Gov. Otter's 9th Cir. brief, and

index of Excerpt of Record, sent same to

Plaintiffs with

comments

2.4 2.4 0

6/20/2014 Review of AG's index to AG's Excerpts of

Record

0.3 0.3 0

6/20/2014 Conference call with CD re: briefing 0.2 0.2 0

6/20/2014 Confer with co‐counsel on Appellants'

9th Cir. briefs, and strategy re: response

to same

0.8 0.8 0


8/9/2019 1:13-cv-00482 #147

28/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

6/20/2014 Email and response to Robertson

(potential amicus) requesting consent to

file

0.2 0.2 0

6/20/2014 Review of Gov. Otter's draft motion re:

consent to amici briefs and AG's

suggested edits, confer with co‐counsel

and response to same

0.4 0.4 0

6/23/2014 Reviewed amicus brief 0.6 0.6 0

6/23/2014 Research for response brief and

argument

1.5 1.5 0

6/23/2014 Review email from amicus L. Joseph and

confer

with

co‐

counsel

on

request

0.3 0.3 0

6/24/2014 Review of Smithkline dissent to denial of

en banc review

1 1 0

6/24/2014 Review amicus brief of The Center for

Urban Renewal

1.1 1.1 0

6/24/2014 Research and analysis re:Smithkline

dissent

1.5 1.5 0

6/25/2014 Review of 10th Cir. opinion in Kitchen

(Utah)

2.3 2.3 0

6/25/2014 Confer with co‐counsel on amicus filings

and coordination re: same with AA

0.2 0.2 0

6/25/2014 Respond to inquiry from ACLU on

amicus filing

0.1 0.1 0

6/25/2014 Confer with co‐counsel on dates for

other circuit oral arguments and

structuring of our arguments in briefing

0.2 0.2 0

6/26/2014 Review analysis

of

10th

Cir.

decision 0.3 0.3 0

6/27/2014 Review status of current supporting

amici; email co‐counsel re: same

0.3 0.3 0

6/30/2014 Notification on 9th hearing date, inform

Plaintiffs re: same

0.2 0.2 0


8/9/2019 1:13-cv-00482 #147

29/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

6/30/2014 Confer with co‐counsel on status of en

banc petition, oral argument schedule

0.2 0.2 0

6/30/2014 Confer with CD re: appeal brief, SOF 0.2 0.2 0

6/30/2014 Review amicus briefing 1.5 1.5 0


7/2/2014 Review amicus briefing 2 2 0

7/2/2014 Review of Kentucky's federal same‐sex

marriage decision

0.6 0.6 0

7/3/2014 Review and edit portions of brief 1 1 0

7/3/2014 Oral argument hearing Notice issued by

Court,

completed

and

filed

Acknowledgment of Hearing

0.4 0.2 ‐0.2


7/4/2014 Review of SOC and SOF sections,

revisions to same.

2.3 2.3 0

7/4/2014 Confer with CD on suggested edits to

SOF section of brief.

0.2 0.2 0

7/7/2014 Review of revised SOF section of briefing 0.4 0.4 0

7/7/2014 Review of amicus briefing 1.5 1.5 0

7/8/2014 Response to questions on amicus

briefing

0.2 0.2 0

7/8/2014 Confer with Watsen Plaintiffs on status

of their adoption for SOF update, email

to co‐counsel re: same

0.4 0.4 0

7/9/2014 Review draft of 9th Cir. brief 2.5 2.5 0

7/9/2014 Edits to draft of 9th Cir. brief 1.2 1.2 0

7/9/2014 Inquiries re: amicus briefing on business

interests

0.2 0.2 0

7/10/2014 Sent multiple

mails

with

inquiries

re:

Idaho business amicus briefing

0.4 0.2 ‐

0.2

7/10/2014 Confer with CD on 9th Cir brief edits 0.3 0.3 0

7/10/2014 Reviewed brief with CD's suggested

edits

0.5 0.5 0

7/10/2014 Confer with co‐counsel on edits to 9th

Cir briefs

0.3 0.3 0


8/9/2019 1:13-cv-00482 #147

30/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

7/11/2014 Confer and responded to inquires

related to amicus briefing

0.5 0.5 0

7/11/2014 Phone call

from

Gov.'s

counsel

re:

filing

issues, emailed co‐counsel re; same0.2 0.2 0

7/11/2014 Preparation for oral argument‐ review

and outline of district court transcript

2 2 0

7/11/2014 Reviewed docket order from Clerk of

Court, Dkt. 73 re: media

0.1 0.1 0

7/11/2014 Emails to co‐counsel re: further

suggested

edits

on

brief

0.2 0.2 0

7/12/2014 Preparation of oral argument‐ listened

to portions of S Ct arguments in key

cases

2.7 2.7 0

7/13/2014 Preparation for oral argument‐ revised

preparation schedule into daily and

weekly segments

2.3 2.3 0

7/14/2014 Phone conference with SM re: oral

argument preparation, amicus filings,

and status of 9th Cir briefing

0.9 0.9 0

7/14/2014 Preparation for oral argument ‐ Review

Gov.'s briefing

1.5 1.5 0

7/15/2014 Preparation for oral argument‐ Review

Gov.'s briefing

1 1 0

7/15/2014 Phone conference with SM on fact

section of 9th Cir. response brief

0.2 0.2 0

7/15/2014 Coordination with co‐counsel of moot

court on 8/21 in San Francisco

0.3 0.3 0

7/16/2014 Revisions to SOF in 9th Cir response

brief

1 1 0

7/16/2014 Review and edits to first 1/2 of 9th Cir.

response brief

1.2 1.2 0

7/16/2014 Preparation for oral argument‐ Review

Gov.'s briefing

1.5 1.5 0

7/16/2014 Confer with co‐counsel on moot court

issues

0.3 0.3 0


8/9/2019 1:13-cv-00482 #147

31/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

7/16/2014 Coordinate with Plaintiffs re: client

meeting on 7/20

0.4 0.4 0

7/16/2014 Confer with

NCLR

on

filming

of

Plaintiffs

on 7/20 and Plaintiff interviews0.3 0

‐0.3

7/16/2014 Coordinate with co‐counsel CD on travel

plans to SF for moot court and case

meeting

0.3 0.3 0

7/16/2014 Review and respond to amicus requests 0.2 0.2 0

7/16/2014 Review and respond to letter from

potential

amicus

with

further

information

0.2 0.2 0


of 10th Cir argument in Kitchen (UT)

2.7 2.7 0

7/17/2014 Review amicus request and response to

same

0.4 0.4 0

7/17/2014 Review 9th Cir. response brief, edits re:

same

4 4 0

7/17/2014 Preparation for client meeting on 7/20

and coordination with co‐counsel

1.5 1.5 0

7/18/2014 Review of 10th Cir. Decision in Bishop

(Oklahoma decision)

2 2 0

7/18/2014 Revisions and edits of 9th Cir. brief 2.5 2.5 0

7/18/2014 Confer with co‐counsel on 10th Cir.

decision and related edits

1.5 1.5 0

7/19/2014 Review of 9th Cir brief and email to co‐

counsel SM re comments

1.4 1.4 0

7/20/2014 Client meeting

with

8 plaintiffs

and

co

‐

counsel CD on status and case updates

1.5 1.5 0

7/21/2014 Oral argument preparation‐ review EOR 1.6 1.6 0

7/22/2014 Review statement of related cases 0.1 0.1 0

7/22/2014 Respond to business amicus emails 0.2 0.2 0


8/9/2019 1:13-cv-00482 #147

32/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

7/22/2014 Review summary of all Appellants'

amicus briefing

1.2 1.2 0

7/22/2014 Read amicus

briefing 1 1 0

7/24/2014 Phone conference with SM re: moot

court preparation and planning

0.5 0.5 0

7/24/2014 Respond to business amicus briefing

inquiries

0.4 0 ‐0.4

7/25/2014 Oral argument preparation‐ review EOR 3 3 0

7/25/2014 Oral argument preparation‐ review EOR 1.4 1.4 0

7/25/2014 Review

of

amicus

briefing 1.5 1.5 07/27/2014 Oral argument preparation‐ review AG's

briefing

1.5 1.5 0

7/28/2014 Respond to Plaintiffs' inquiries re:

amicus briefing

0.2 0.2 0

7/28/2014 Review 4th Circuit Bostic marriage

decision

1.4 1.4 0


AG's briefing

2.2 2.2 0

7/29/2014 Review amicus briefing 2 2 0

7/29/2014 Prepare for oral argument‐ review AG's

filings

3.5 3.5 0


7/31/2014 Preparation for oral argument ‐

participation in moot court with

Plaintiffs' counsel for 6th Cir. and

discussion of coordination of issues in

Latta case

4.6 4.6 0


8/1/2014 Preparation for

oral

argument

‐review

cases cited in defendants briefs

2.5 2.5 0

8/2/2014 Preparation for oral argument ‐

reviewed cases cited in defendants

briefs

4.2 4.2 0


8/9/2019 1:13-cv-00482 #147

33/84

8/9/2019 1:13-cv-00482 #147

34/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

8/16/2014 Preparation for oral argument‐ prepare

responses to potential panel questions

6.1 6.1 0

8/17/2014 Preparation for oral argument; research

re: potential panel questions;

5.5 5.5 0

8/18/2014 Prepare for moot court ‐rehearsing

argument

6.5 6.5 0

8/19/2014 Prepare for moot court ‐ rehearsing

alone and before CD

8.4 8.4 0

8/20/2014 Travel to SF for moot court 3.5 1.7 ‐1.8

8/20/2014 Meeting

with

Court

Deputy

Clerk

of

9th

Cir., tour courtroom where oral

argument will occur, testing audio

system

0.8 0.8 0

8/20/2014 Conference with co‐counsel on oral

argument

2.5 2.5 0

8/21/2014 Preparation for moot court ‐ practicing

oral argument

1.8 1.8 0

8/21/2014 Moot court in SF with co‐counsel 5 5 0

8/21/2014 Contact Plaintiffs re: new Court order re:

change in hearing on 9/8, respond to

questions re: same

0.3 0.3 0

8/21/2014 Travel back to Boise 3.5 1.7 ‐1.8

8/22/2014 Draft and file Notice of Oral Argument

with 9th Cir.

0.3 0.3 0

8/22/2014 Preparation for oral argument‐ draft

opening

3.4 3.4 0


argument blocks/ segments

5 5 0

8/23/2014 Review amicus

briefing 1.2 1.2 0

8/26/2014 Listen to 7th Circuit same sex marriage

oral arguments

1.5 1.5 0

8/26/2014 Meeting with Plaintiffs re: hearing in SF 1.5 1.5 0



4.1 4.1 0


8/9/2019 1:13-cv-00482 #147

35/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

8/27/2014 Confer with co‐counsel on 7th Cir

argument questioning

0.3 0.3 0

8/27/2014 Confer with

CD

on

oral

argument

issues 1.5 1.5 0

8/27/2014 Confer with SM on oral argument issues 0.3 0.3 0

8/27/2014 Review press release on media

conference for 9/2/2014

0.2 0.2 0



3 3 0

8/28/2014 Review of amicus briefing 3.6 3.6 0

8/28/2014 Preparation

for

oral

argument‐

prepare

argument blocks/ segments4.2 4.2 0

8/29/2014 Review of amicus briefing 2 2 0



4.8 4.8 0



8.2 8.2 0

8/31/2014 Review of amicus briefs 3.4 3.4 0


for moot court

7.1 7.1 0

9/1/2014 Moot court with co‐counsel and

preparation for same

3 3 0

9/1/2014 Preparation on oral argument‐ research

answers to new questions raised at

moot court

4.5 4.5 0

9/2/2014 Oral argument preparation‐ refine

argument with moot court feedback

7.3 7.3 0

9/2/2014 Phone conference with NCLR and

Lambda ‐ preparation for media call

0.5 0.5 0

9/2/2014 Media interviews

with

Lambda 1 0.5

‐0.5

9/2/2014 Confer with SM on revisions to oral

argument

0.6 0.6 0

9/3/2014 Moot court session with CD and SM on

conference call; strategy session and

discussion re: 9th Cir. argument

3.5 3.5 0


8/9/2019 1:13-cv-00482 #147

36/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

9/3/2014 Preparation for oral argument‐ practice

argument presentation and responding

to questions

5 5 0

9/4/2014 Confer with CD and oral argument

preparation, discussion of amicus

briefing

3.5 3.5 0

9/4/2014 Preparation for oral argument‐ final

review of our briefing

5 5 0

9/5/2014 Meeting with CD re: moot court 4 4 0

9/5/2014 Oral argument preparation‐ final review

of AG briefing

2.2 2.2 0

9/5/2014 Oral

argument

preparation‐

final

review

Gov. briefing3.1 3.1 0

9/6/2014 Oral argument preparation‐ practice

segues between blocks

1.8 1.8 0

9/6/2014 Travel from Boise to San Francisco for

9th Cir. argument

3.5 1.7 ‐1.8

9/7/2014 Confer with CD re: oral argument

preparation and feedback

1.5 1.5 0

9/7/2014 Final practice of oral argument 2 2 0

9/8/2014 Presented oral argument in 9th Cir. and

attended arguments in related NV and

HI marriage equality cases immediately

following (no exit for counsel from

Courtroom allowed, per court's

instruction)

3.5 3.5 0

9/8/2014 Media interviews post ‐argument 2 1 ‐1

9/9/2014 Travel from San Francisco to Boise,

return from 9th Cir. oral argument

3.5 1.7 ‐1.8

10/6/2014 Respond to Plaintiffs concerning

questions regarding

Supreme

Court's

denial of cert. in all pending petitions.

0.8 0.8 0

10/7/2014 Inform Plaintiffs of mandate issued by

9th Cir., respond to questions re: same

0.5 0.5 0


8/9/2019 1:13-cv-00482 #147

37/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

10/7/2014 Phone call from 9th Cir. staff attorney

concerning filing of ER motion to

dissolve stay

0.3 0.3 0

10/7/2014 Respond to additional emails from

Plaintiffs on mandate issues

0.3 0.3 0

10/7/2014 Coordinate with Plaintiffs on proceeding

with marriages tomorrow

0.5 0.5 0

10/7/2014 Review of Plaintiffs' emergency motion

to dissolve stay and confer with co‐

counsel on same

0.8 0.8 0

10/7/2014 Confer

with

SM

on

marriages

proceeding tomorrow; procedural issues

re: same on further appeals

0.4 0.4 0

10/7/2014 Press conference with media at federal

building with Plaintiffs

1.5 1 ‐0.5

10/7/2014 Received mandate from 9th Cir., confer

with co‐counsel re: same

0.5 0.5 0

10/7/2014 Live TV Interview on FOX news with

Plaintiffs.

1.5 0.5 ‐1

10/7/2014 Initial review 9th Cir. Decision, send to

Plaintiffs, respond to questions

regarding same.

2 2 0

10/7/2014 Email Gov. and AG's counsel on ER

motion to dissolve stay with 9th Cir.

0.2 0.2 0

10/7/2014 Telephone conference with 9th Cir. staff

attorney on issuance of mandate

0.2 0.2 0

10/8/2014 Confer with co‐counsel on emergency

motion to Justice Kennedy

0.5 0.5 0

10/8/2014 Respond to requests for numerous

interviews with media

1.2 0.6 ‐0.6

10/8/2014 Review media information from AG re:

appeal position

0.3 0.3 0


8/9/2019 1:13-cv-00482 #147

38/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

10/8/2014 Conference call with Co‐counsel and MF

(Morrison Forster) attorneys on

overnight developments

0.8 0.8 0

10/8/2014 Review Gov.'s emergency application for

stay to Circuit Justice Kennedy

1 1 0

10/8/2014 Met with Plaintiffs at Courthouse for

marriage licenses

1 1 0

10/8/2014 Emails from AG on emergency motion

for recall of the mandate under Circuit

Rule 27‐3; confer with co‐counsel re:

same

0.3 0.3 0

10/8/2014 Email to Plaintiffs explaining overnight

emergency filings

0.3 0.3 0

10/8/2014 Review Gov.'s emergency motion for

recall of the mandate under Circuit Rule

27‐3 t

1 1 0

10/8/2014 Further review of 9th Cir. Decision 1.2 1.2 0

10/8/2014 Review email from AG's office on

issuance of marriage licenses on 10/8

0.2 0.2 0

10/8/2014 Discussion with clients regarding stay

and impact on case

0.7 0.7 0

10/8/2014 Reviewed emergency order from Justice

Kennedy granting stay at 8:50 a.m.

0.3 0.3 0

10/8/2014 Review of AG's emergency motion for

recall of the mandate under Circuit Rule

27‐3

0.5 0.5 0

10/8/2014 Reviewed 9th Cir. order recalling

mandate, discussion

with

Co

‐counsel

re:

same

0.4 0.4 0

10/8/2014 Review of email from Gov.'s counsel on

motions

0.2 0.2 0

10/9/2014 Email responses to Plaintiffs' questions

on status of emergency motions

0.3 0.3 0


8/9/2019 1:13-cv-00482 #147

39/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

10/10/2014 Respond to Plaintiffs' questions on

motion to dissolve stay

0.4 0.4 0

10/10/2014 Review of

Plaintiff's

motion

to

dissolve

the stay and reissue the mandate for 9th

Cir.; confer with Co‐counsel re: same

1 1 0

10/10/2014 Review 9th Cir order on response and

reply to motion to dissolve stay, confer

with Co‐counsel re: same

0.4 0.4 0

10/10/2014 Respond to numerous media requests

for information re: S. Ct's denial of stay

1.5 0.5 ‐1

10/10/2014 Confer with co‐counsel on motion to

dissolve stay, review and edit same

1.6 1.6 0

10/13/2014 Conference call with co‐cousel and MF

on reply brief to dissolve stay

0.5 0.5 0

10/13/2014 Review of Gov.'s response in opposition

to dissolving stay

1 1 0

10/13/2014 Review of 9th Cir.'s order dissolving

stay; discussions with co‐counsel re:

same

0.6 0.6 0

10/13/2014 Review of AG's non opposition response

to motion to dissolve stay

0.3 0.3 0

10/13/2014 Address plaintiffs' questions on 9th Cir.'s

lifting of stay

1.2 1.2 0

10/13/2014 Review of Gov.'s supplement to citations

28(j) letter

0.3 0.3 0

10/13/2014 Review of en banc petition challenging

9th Cir panel selection; confer with co‐

counsel

0.8 0.8 0

10/13/2014 Review of

draft

reply

briefing 0.8 0.8 0

10/13/2014 Response to clients' questions re: filings

with 9th Cir.

0.4 0.4 0

10/13/2014 Email to/from AG's Office on filing 0.2 0.2 0

10/14/2014 Confer with co‐counsel on Gov.'s

statement concerning 2nd request for

stay

0.4 0.4 0


8/9/2019 1:13-cv-00482 #147

40/84

8/9/2019 1:13-cv-00482 #147

41/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

11/9/2014 Review of draft response to Gov.'s

petition for en banc review, emails to co‐

counsel re:

same

1.2 1.2 0

11/10/2014 Review of MF's revisions to Response to

en banc petition

0.5 0.5 0

11/19/2014 Email from Gov.'s counsel on consent to

en banc reply; response to same

0.2 0.2 0

11/19/2014 Phone conference with co‐counsel re:

Gov.'s request for leave to file an en

banc reply brief and timing

0.5 0.5 0

11/20/2014 Review

of

En

banc

reply

motion,

brief

and attachments1.1 1.1 0

11/21/2014 Review of 9th Cir. orders on Gov.'s

motion to file reply brief

0.2 0.2 0

1/9/2015 9th Cir. denial of en banc review; review

of dissenting opinion re: same

1.2 1.2 0

1/10/2015 Email to clients re: denial of en banc

review, explaining same

0.2 0.2 0

Totals 406.3 392 ‐14.3


8/9/2019 1:13-cv-00482 #147

42/84

EXHIBIT B


8/9/2019 1:13-cv-00482 #147

43/84

Latta v. Otter ‐ 14‐35420, 21

Deborah Ferguson Fees for Fees Time


BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

5/24/2014 Fee petitions, review of draft of SM's

declaration and multiple

attachments

2.5 0 ‐2.5

5/25/2014 Revisions to my draft declaration

and memo in support of fee petition

2 0 ‐2

5/26/2014 Revisions and proof of my

declaration, exhibits and supporting

declarations

2.5 0 ‐2.5

5/27/2014 File review and edits of all filings in

support of fee petition

4 0 ‐4

5/28/2014 Research effect of appeal on fee

petition

0.3 0.3 0

5/28/2014 Research re: effect of stay on fee

petition

0.8 0.8 0

5/28/2014 Interview with NPR on filing of fee

petition on 5/27/2014

0.3 0 ‐0.3

5/30/2014 Phone call from AG Office on

request for a stipulation to

stay fee

petition

or

for

extension,

confer with co‐counsel re same

0.3 0.3 0

6/2/2014 Confer with co‐counsel on extension

for AG on fee petition,

email to AG re: same, and

agreement to request for AG's

additional response to respond

0.4 0 ‐0.4

6/3/2014 Confer with co‐counsel‐ SM,

CS, AW, CD on fee petition

stays and

research

on

stay

0.2 0.2 0

6/3/2014 Review of consent motion

from AG on its extension of

time to respond to fee petition

0.3 0.1 ‐0.2


8/9/2019 1:13-cv-00482 #147

44/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

6/4/2014 Emails from AG and Gov. counsel

on motion for extension of response

to fee

petition

0.2 0.2 0

6/10/2014 Review research memo of AW on

fee issues and impact of stay, and

response to same

0.4 0 ‐0.4

6/11/2014 Research re:reply brief in support of

fee petition

0.6 0.6 0

6/24/2014 Review of research on public record

requests, payment of fees to

defense counsel and Idaho

Constitutional Defense fund

1 0 ‐1

7/3/2014 Review of response to fee

petition and multiple exhibits A‐N

2.9 1 ‐1.9

7/7/2014 Email from co‐counsel AW on

logistics of response to fee

objections, response from CD re:

same

0.2 0.2 0

7/8/2014 Review of AG's response brief and

exhibits, and notes re: same

1.8 1 ‐0.8

7/9/2014 Research re: reply to fee petition 1.5 1.5 0

7/10/2014 Outline re: reply on fee petition 1.5 0.5 ‐1

7/10/2014 Research and review of case law in

AG's response brief

2 0 ‐2

7/10/2014 Phone conf with CD on AG's fee

petition response and our reply

1 0.5 ‐0.5

7/10/2014 Request for response on various fee

petition issues and research to AW

0.3 0.3 0

7/17/2014 Research re: fee reply brief 1.8 0.8 ‐1

7/18/2014 Additional research, review of AG's

15 exhibits, and response to same,

confer with CD on draft reply

3 3 0

7/19/2014 Review draft reply brief on fees 1.5 0.5 ‐1


8/9/2019 1:13-cv-00482 #147

45/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

7/21/2014 Research and revisions to draft reply

brief, review of defendants 15

exhibits

3.5 1 ‐2.5

7/21/2014 Email and review of response to AG

counsel on errata for fee opposition

0.1 0.1 0

7/21/2014 Email to AW and response re:

NCLR time on fee reply briefing

0.2 0.2 0

7/23/2014 Review of CD's edits to reply

briefing, and additional edits, sent

same to AW and AA

0.5 0 ‐0.5

7/24/2014 Review of

AW's

additional

edits,

revisions re: same to CD0.3 0

‐0.3

7/25/2014 Proof and edit reply brief, emailed

same to CD

1 0 ‐1

9/11/2014 Confer with AW on fees timing

issues in 9th Cir.

0.2 0.2 0

9/15/2014 Research on request for fees in

Ninth Circuit

0.5 0 ‐0.5

12/29/2014 Phone call from AG counsel,

discussion of

fee

award,

and

state's

intention to delay payment

until all appeal efforts are final;

email co‐counsel re: same

0.3 0.3 0

1/9/2015 Research fee payment request

before Idaho State Board of

Examiners

1 0 ‐1

1/10/2015 Email to co‐counsel re: preparation

of fee petition in 9th Circuit;

research procedure re: same

0.5 0 ‐0.5

1/13/2015 Review of time sheets for fees in the

9th Cir.

1.5 1 ‐0.5

1/13/2015 Confer with AW concerning

questions on coordinating fee

petition filing in 9th Cir.

0.3 0.3 0


8/9/2019 1:13-cv-00482 #147

46/84

Latta v. Otter ‐ 14‐35420, 21



BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

1/14/2015 Review of 9th Circuit time sheets 1.5 0 ‐1.5

1/15/2015 Emailed requests to Gov. and AG re:

their positions

on

filing

motion

to

transfer consideration of fees to

district court, response for same

0.2 0.2 0

1/16/2015 Revisions to unopposed motion to

transfer fe consideration to district

court; filed same with 9th Cir.

0.4 0.2 ‐0.2

1/16/2015 Request Gov. and AG stipulate to

additional time

to

file

supplemental

fee petition

0.2 0.2 0

1/17/2015 Respond to AG's agreement to

extend deadlines

0.1 0.1 0

1/21/2015 Drafted stipulation to extend

briefing schedule with proposed

order, and emailed to SZ and TP for

review.

0.5 0.5 0

1/21/2015 Review 9th Cir. order transferring

fees, and

issuance

of

mandate

0.2 0.2 0

1/28/2015 Drafted second DAF declaration 2 2 0

Totals 48.3 16.3 32


8/9/2019 1:13-cv-00482 #147

47/84

EXHIBIT C


8/9/2019 1:13-cv-00482 #147

48/84

Date Description Expense

9/6/2014 Airfare to SF for 9th Cir. argument 446

8/1/2014 Postage to Plaintiffs 12.68

9/6/2014

Hotel in SF for 3 nights, 9/6/2014‐9/8/2014 for 9th

Cir. Argument 884.4

9/6/2014 Cab from SFO to hotel 50.65

9/9/2014 Cab from hotel to SFO 50

9/9/2014

Parking at BOI from 9/6‐9/14 while in SF for 9th Cir.

argument 41.5

8/20/2014 Airfare to SF for 9th Cir. moot court 352

Total 1,837.23


8/9/2019 1:13-cv-00482 #147

49/84

Deborah A. Ferguson, ISB No. 5333Craig Harrison Durham, ISB No. 6428Ferguson Durham, PLLC223 N. 6th Street, Suite 325Boise, Idaho 83702

Tel.: (208) 345-5183

Shannon P. MinterChristopher F. Stoll National Center for Lesbian Rights870 Market Street, Suite 370San Francisco, California 94102Tel.: (415) 392-6257


UNITED STATES DISTRICT COURTFOR THE DISTRICT OF IDAHO

SUSAN LATTA and TRACI EHLERS, et al.,

Plaintiffs,

v.

C.L. “BUTCH” OTTER, as Governor of theState of Idaho, in his official capacity, et al.,

Defendants,

and

STATE OF IDAHO,



DECLARATION OF SHANNON

P. MINTER IN SUPPORT OF

PLAINTIFFS’ SUPPLEMENTAL

MOTION FOR REASONABLEATTORNEYS’ FEES AND

EXPENSES


8/9/2019 1:13-cv-00482 #147

50/84

1

I, Shannon P. Minter, hereby declare and state as follows:

1. I am an attorney admitted pro hac vice before this Court and represent the Plaintiffs

in this action. I am a member in good standing of the California State Bar and am admitted to

practice law in California state and federal courts, several U.S. Courts of Appeals, and the Supreme

Court of the United States. I have personal knowledge of the matters stated in this Declaration

and could and would competently testify to these facts.

2. This Declaration is filed concurrently with Plaintiffs’ Supplemental Motion for

Reasonable Attorneys’ Fees and Expenses.

3.

My relevant experience and background, and that of other attorneys at the National

Center for Lesbian Rights (NCLR), is set forth in the prior declaration I submitted in Support of

Plaintiffs’ Motion for Reasonable Attorneys’ Fees and Expenses through May 23, 2014. See

Docket 113-7 at 1-4; 113-8; 113-11.

4. My prior declaration also summarized the litigation in this case to date, and the

excellent results obtained. See Docket 113-7 at 4-6.

5.

The declaration of my co-counsel, Deborah Ferguson, details the extensive work

required of Plaintiffs’ counsel on appeal. I will not repeat that history here other than to say that

we were required to respond to numerous emergency motions filed by Defendants attempting to

stay this Court’s ruling, as well as research and respond to the extensive legal arguments the

Governor and the State / Record Rich filed in this case, including the Governor’s 142-page

Opening Brief (with appendices) and the State and Recorder Rich’s 45-page Opening Brief with

over 800 pages of excerpts of the record. We also helped Ms. Ferguson prepare for oral argument

in a case with issues of first-impression and of national importance and successfully opposed the


8/9/2019 1:13-cv-00482 #147

51/84

2

Governor’s Petition for Re-hearing En Banc. All of this work was performed within an extremely

short time frame and often in compliance with expedited briefing schedules.

BILLING RATES, RECORDS, REDUCTIONS, AND CHARTS

12. As a non-profit litigation firm, NCLR does not charge our clients for legal services.

We do, however, seek reasonable attorneys’ fees and expenses in cases where there are fee-shifting

statutes and our clients are the prevailing parties. NCLR and our co-counsel have incurred costs

in this matter and Plaintiffs have agreed that any awarded attorneys’ fees and costs shall belong to

and be paid to Plaintiffs’ counsel.

13.

Attached hereto as Exhibit A is a true and accurate transcription of NCLR ’s time

and expenses in this case since May 24, 2014. The few time entries that appear prior to May 24,

2014 include work on the Ninth Circuit appeal that we previously removed from our original fees

motion. As Exhibit A shows, NCLR attorneys and legal staff primarily performed the following

major categories of work: (1) opposing Defendants’ multiple attempts to stay this Court’s

decision; (2) drafting, researching and editing Appellants’ Ninth Circuit brief; (3) preparing Ms.

Ferguson for oral argument before the Ninth Circuit, and; (4) opposing Defendants’ petition for

rehearing en banc.

14. Attached hereto as Exhibit B is a true and accurate transcription of NCLR’s fees-

for-fees time in this case since May 24, 2014. This time reflects NCLR’s work moving f or

reasonable attorneys’ fees and costs in this case and defending Plaintiffs’ fees award.

15. Attached hereto as Exhibit C is a true and accurate transcription of NCLR’s

expenses in this case since May 24, 2014. All of these expenses, which primarily consist of travel

for the moot courts and the oral argument, were necessary to the litigation. NCLR also paid for


8/9/2019 1:13-cv-00482 #147

52/84

3

several of the Plaintiffs to travel to and attend the oral argument before the Ninth Circuit. We do

not seek reimbursement for these expenses, however, which appear as billing judgments.

16. I have been assisted in this case by the following persons for whose work fees are

claimed: NCLR’s Senior Staff Attorneys Christopher F. Stoll and Amy Whelan, and Staff

Attorney Jaime Huling Delaye. Mr. Stoll’s, Ms. Whelan’s and Ms. Huling Delaye’s resumes were

attached to my prior fees declaration. See Docket 113-11. NCLR’s Constitutional Litigation

Director, David Codell, also worked approximately 20 hours on the appeal. Mr. Codell is a highly-

skilled expert in constitutional law who clerked for the U.S. Supreme Court and has been litigating

complex civil rights and other matters for nearly twenty years. As an exercise of billing judgment,

we are not seeking compensation for Mr. Codell’s time and have also made other billing judgments

as detailed below.

17. The current billing rates we seek in this case, and which were previously approved

by this Court as reasonable, are as follows: $400 per hour for myself, $325 per hour for

Christopher Stoll, who has 20 years of litigation experience, $275 per hour for Amy Whelan, who

has 14 years of litigation experience, and $175 per hour for Jaime Huling Delaye, who has 6 years

of litigation experience. Although NCLR could seek our San Francisco and Washington, D.C.

billing rates for this case based on our expertise and experience, see, e.g., Barjon v. Dalton, 132

F.3d 496, 501-502 (9th Cir. 1997); Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), we

are seeking rates consistent with those in the Boise legal market. As a result, our fee request is

markedly lower than that permitted under Ninth Circuit law. For example, my 2014 market rate

in Washington, D.C. is $650 per hour , Mr. Stoll’s and Ms. Whelan’s market rates in San Francisco

are between $510 and $600 per hour, and Ms. Huling Delaye’s rate is $410 per hour.


8/9/2019 1:13-cv-00482 #147

53/84

4

18. In addition, NCLR is including a few hours of time spent in this case by Aaron

Aruck, a paralegal in our office, and a law student. We have not previously sought compensation

for these time keepers. We are seeking an hourly rate of $125 per hour for both the paralegal and

the law student, which is lower than rates for paralegals that have been awarded in this market.

See, e.g., Hardenbrook v. United Parcel Service, Co., No. 1:07-CV-509, 2014 WL 524048, at *9

(D. Idaho February 7, 2014) (awarding paralegal rates between $135 and $165 per hour for work

performed before 2010). These requested rates are also significantly lower than the San Francisco

market rates we charge for Mr. Aruck and our law students, which are $230 per hour and $260 per

hour respectively.

19. NCLR and our co-counsel performed work efficiently, effectively, with extreme

diligence, and without unnecessary duplication. Based on my experience litigating complex civil

rights cases, I believe the hours recorded by NCLR staff on this case to be extremely conservative.

We have nevertheless made billing judgment reductions for the purpose of eliminating any

possible duplication, overstaffing or overwork. First, we did not record significant amounts of

time we spent drafting and revising briefs, communicating about strategy and emailing with co-

counsel about various litigation-related issues and strategy. Second, we made discrete deductions

of time based upon the same careful review of billing records that a lawyer would do before

sending a bill to a fee-paying client. These deductions appear in the “Billing Judgment Reduction”

columns on our timesheets. Third, we do not seek fees for the approximate 20 hours of work

performed by NCLR’s Constitutional Litigation Director, David Codell. He has been litigating

complex civil rights and other cases for nearly twenty years. Finally, we do not seek fees for the

more than 150 hours that attorneys at Morrison & Foerster spent assisting us with the stay briefing


8/9/2019 1:13-cv-00482 #147

54/84

5

and our opposition to the petition for rehearing en banc. Those attorneys are appellate and

Supreme Court specialists and they provided invaluable assistance with those key litigation issues.

20. Following the exercise of the various billing judgment reductions described above,

NCLR’s total claimed lodestar for merits work and fees-for-fees work since May 24, 2014 is

$99,770. We also seek $3,611.32 in expenses, for a total request of $103,381.32.

21. At the appropriate time, we will submit a supplemental fee motion, including for

attorneys’ fees and expenses related to any necessary reply brief regarding this motion as well as

work before the United States Supreme Court.

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

Executed in Washington, D.C. on this 5th day of February 2015.

Shannon P. Minter (pro hac vice)Attorney for Plaintiffs


8/9/2019 1:13-cv-00482 #147

55/84

EXHIBIT A


8/9/2019 1:13-cv-00482 #147

56/84

Latta v. Otter - 14-35420, 21

Shannon P. Minter Merits Time


BILLED

HOURS

CHARGED

BILLING

JUDGMENT

REDUCTIONS

5/14/2014 Review AG's emergency motion for a stay pending appeal 0.2 0.2 0

5/14/2014 Confer with co-counsel on emerg motions for a stay pending appeal and

response

1 1 0

5/14/2014 Review Gov's motion for stay pending appeal 0.2 0.2 0

5/15/2014 Meeting with co-counsel re response to stay 0.9 0.9 05/15/2014 Review response opposing motion for stay, make edits to opposition to

stay

0.5 0.5 0

5/15/2014 Review 9th Circuit's order granting a temporary stay 0.1 0.1 0

5/20/2014 Confer with co-counsel re: briefing schedule and communication with

Plaintiffs

0.5 0.5 0

5/27/2014 Conferred with co-counsel on request for transcript 0.2 0.2 0

5/30/2014 Confer with co-counsel on consent for amicus briefs 0.3 0 -0.3

5/30/2014 Reviewed Gov's petition for initial rehearing en banc 0.3 0.3 0

5/30/2014 Conferred with co-counsel DF, CS, and CD re: initial hea

1:13-cv-00482 #147

Documents

Transcript of 1:13-cv-00482 #147