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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
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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
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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
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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’
MEMORANDUM IN
SUPPORT OF
SUPPLEMENTAL MOTION
FOR REASONABLEATTORNEYS’ FEES AND
EXPENSES
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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
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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.
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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
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PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SUPPLEMENTAL MOTION FOR ATTORNEYS’ FEES - 5
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.
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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
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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.
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PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SUPPLEMENTAL MOTION FOR ATTORNEYS’ FEES - 9
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.
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PLAINTIFFS’ MEMORANDUM IN SUPPORT OF SUPPLEMENTAL MOTION FOR ATTORNEYS’ FEES - 11
$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
Attorneys for Plaintiffs
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Deborah A. Ferguson, ISB No. 5333Craig Harrison Durham, ISB No. 6428Ferguson Durham, PLLC223 N. 6th Street, Suite 325Boise, ID 83702
Tel.: (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
DECLARATION OF
DEBORAH A. FERGUSON
IN SUPPORT PLAINTIFFS’
SUPPLEMENTAL MOTIONFOR REASONABLE
ATTORNEYS’ FEES AND
EXPENSES
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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
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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
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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
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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).
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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.
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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
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EXHIBIT A
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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
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DATE DESCRIPTION HOURS
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
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DATE DESCRIPTION HOURS
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
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DATE DESCRIPTION HOURS
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
7/1/2014 Review amicus briefing 1.8 1.8 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
7/3/2014 Review amicus briefing 1.5 1.5 0
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
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DATE DESCRIPTION HOURS
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
7/17/2014 Preparation for oral argument‐ review
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
7/28/2014 Preparation for oral argument‐ review
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
7/30/2014 Review amicus briefing 2.6 2.6 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
7/31/2014 Review amicus briefing 2.1 2.1 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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
8/23/2014 Preparation for oral argument‐ prepare
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
8/26/2014 Preparation for oral argument‐ prepare
argument blocks/ segments
4.1 4.1 0
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
8/27/2014 Preparation for oral argument‐ prepare
argument blocks/ segments
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
8/29/2014 Preparation for oral argument‐ prepare
argument blocks/ segments
4.8 4.8 0
8/30/2014 Preparation for oral argument‐ prepare
argument blocks/ segments
8.2 8.2 0
8/31/2014 Review of amicus briefs 3.4 3.4 0
8/31/2014 Preparation for oral argument‐ prepare
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
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Latta v. Otter ‐ 14‐35420, 21
Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
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Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
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Latta v. Otter ‐ 14‐35420, 21
Deborah Ferguson Merits Time
DATE DESCRIPTION HOURS
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
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EXHIBIT B
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Deborah Ferguson Fees for Fees Time
DATE DESCRIPTION HOURS
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
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Latta v. Otter ‐ 14‐35420, 21
Deborah Ferguson Fees for Fees Time
DATE DESCRIPTION HOURS
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
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Latta v. Otter ‐ 14‐35420, 21
Deborah Ferguson Fees for Fees Time
DATE DESCRIPTION HOURS
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
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Latta v. Otter ‐ 14‐35420, 21
Deborah Ferguson Fees for Fees Time
DATE DESCRIPTION HOURS
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
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EXHIBIT C
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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
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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
Attorneys for Plaintiffs
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,
Defendant-Intervenor.
Case No. 1:13-cv-00482-CWD
DECLARATION OF SHANNON
P. MINTER IN SUPPORT OF
PLAINTIFFS’ SUPPLEMENTAL
MOTION FOR REASONABLEATTORNEYS’ FEES AND
EXPENSES
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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
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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
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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.
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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
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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
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EXHIBIT A
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Shannon P. Minter Merits Time
DATE DESCRIPTION HOURS
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
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