NO.

14-1035
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MAJ SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC
VICTORIA A. HUDSON; MONIKA POXON; COL STEWART BORNHOFT;
STEPHEN MCNABB; LT GARY C. ROSS; DAN SWEZY; CPT STEVE M.
HILL; JOSHUA SNYDER; A1C DANIEL HENDERSON; JERRET
HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN; CPT JOAN
DARRAH; JACQUELINE KENNEDY
Plaintiffs – Appellants
v.
CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H.
HOLDER, JR., in his official capacity as Attorney General; ERIC K. SHINSEKI,
in his official capacity as Secretary of Veterans Affairs; UNITED STATES
Defendants - Appellees
On Appeal from the United States District Court for the District of Massachusetts
1:11-cv-11905-RGS (Honorable Richard G. Stearns, District Court Judge)
BRIEF OF APPELLANTS
Abbe David Lowell, Bar No. 1144695
Christopher D. Man, Bar No. 1151675
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 974-5600
Counsel for Appellants
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TABLE OF CONTENTS
STATEMENT IN SUPPORT OF ORAL ARGUMENT........................................ 1
JURISDICTIONAL STATEMENT ........................................................................ 1
STATEMENT OF THE ISSUES............................................................................. 1
STATEMENT OF THE CASE................................................................................ 2
STATEMENT OF FACTS ...................................................................................... 4
SUMMARY OF THE ARGUMENT ...................................................................... 9
ARGUMENT......................................................................................................... 11
I. THE GOVERNMENT'S CONDUCT AND LITIGATION
STRATEGY WERE NOT "SUBSTANTIALLY JUSTIFIED"... 11
A. The Government's Conduct And Defense Must Be "Substantially
Justified" On the Merits ................................................................ 11
B. The District Court's Construction of "Substantially Justified"
Undermines The EAJA................................................................. 15
C. The Executive Branch Could Have Respected The Plaintiffs'
Constitutional Rights..................................................................... 18
D. Windsor Did Not Address The EAJA Or Whether The
Government's Litigation Strategy Was Substantially Justified..... 21
II. PLAINTIFFS ARE ENTITLED TO COSTS AS A PREVAILING
PARTY.......................................................................................... 24
CONCLUSION...................................................................................................... 26
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TABLE OF AUTHORITIES
CASES
Air Transp. Ass'n of Canada v. FAA, 156 F.3d 1329
(D.C. Cir. 1998) .............................................................................. 11, 12
Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp.,
698 F.3d 885 (6th Cir. 2012) ................................................................. 16
Ardestani v. INS, 502 U.S. 129 (1991) ...................................................... 15
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) .................................. 16, 17
Castaneda-Castillo v. Holder, 723 F.3d 48 (1st Cir. 2013) ...... 10, 12, 17, 25
Hakim v. Accenture U.S. Pension Plan, 901 F. Supp. 2d 1045
(N.D. Ill. 2012) ...................................................................................... 25
INS v. Chadha, 462 U.S. 919 (1983) .......................................................... 19
INS v. Jean, 496 U.S. 154 (1990) ............................................................... 15
Marx v. Gen. Revenue Corp., 133 S. Ct. 1166 (2013) ............................... 25
Melkonyan v. Sullivan, 501 U.S. 89 (1991) ................................................. 1
Morgan v. Perry, 142 F.3d 670 (3d Cir. 1998) ........................................... 13
Myers v. United States, 272 U.S. 52 (1926) ............................................... 19
Pierce v. Underwood, 487 U.S. 552 (1988) ............................................ 9, 12
Schock v. United States, 254 F.3d 1 (1st Cir. 2001) .............................. 9, 12
United States v. Gelin, 712 F.3d 612 (1st Cir. 2013) ................................... 2
United States v. 515 Granby LLC, 736 F.3d 309 (4th Cir. 2013) ........ 15, 16
United States v. Windsor, 133 S. Ct. 2675 (2013) ................. 3, 5, 20, 21, 22
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Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632 (2011)......... 18
Watson v. Memphis, 373 U.S. 526 (1963) ................................................. 16
STATUTES
1 U.S.C. § 7 ........................................................................................... 2, 4, 5
10 U.S.C. § 101(f)(5) .................................................................................... 4
28 U.S.C. § 530D .......................................................................................... 7
28 U.S.C. § 2412 ......................................................................... 1, 11, 12, 24
28 U.S.C. § 1291 ........................................................................................... 2
32 U.S.C. § 101(18) ...................................................................................... 4
38 U.S.C. § 101(3) ........................................................................................ 4
38 U.S.C. § 101(31) ...................................................................................... 4
Fed. R. Civ. P. 54(d) ................................................................................... 20
LEGISLATIVE MATERIALS
H.R. Rep. No 96-1418 (1980) ................................................................ 11, 12
MISCELLANEOUS
Brief of the United States, INS v. Jean, 496 U.S. 154 (1990)
(No. 86-601), 1990 WL 505692 ............................................................ 13
Brief of the United States, Pierce v. Underwood,
487 U.S. 552 (1987) (No. 86-1512), 1987 WL 880437 ........................ 13
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John P. Elwood, Deputy Assistant Att'y Gen., Oversight Hearing:
Presidential Signing Statements under the Bush Administration:
A Threat to Checks and Balances and the Rule of Law?
Before the H. Comm. on the Judiciary, 110 Cong. 5 (2007) .................. 20
Barack Obama, Statement on Signing the Consolidated Appropriations
Act, 2012, (Dec. 23, 2011) ...................................................................... 19
Barack Obama, Statement on Signing the National Defense Authorization
Act for Fiscal Year 2012, (Dec. 30, 2011) .............................................. 19
Presidential Authority to Decline to Execute Unconstitutional Statutes,
18 Op. O.L.C. 199 (1994) .................................................................. 18, 19
The Att'y Gen.'s Duty to Defend and Enforce Const. Objectionable Legis.,
43 Op. Att'y Gen. 55 (1980) ............................................................. 18, 19
1 The Adams-Jefferson Letters (Lester J. Cappon ed. 1959) ................ 19, 20
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STATEMENT IN SUPPORT OF ORAL ARGUMENT
The district court approved a novel departure from the standard for
recovering attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28
U.S.C. § 2412, and oral argument may be warranted to answer any questions the
Court may have.
JURISDICTIONAL STATEMENT
On October 2, 2013, the district court issued a judgment in favor of the
Plaintiffs and against the United States. (JA 56.)
1
On October 28, 2013, Plaintiffs
filed a motion for attorneys' fees and costs pursuant to the EAJA and Federal Rule
of Civil Procedure 54(d). (JA 60.) The district court denied that motion on
December 17, 2013 (Add. 1), and the Plaintiffs filed their notice of appeal from
that Order on January 6, 2014 (JA 124). This Court has jurisdiction pursuant to
28 U.S.C. § 1291, as such a denial is a final judgment. Melkonyan v. Sullivan,
501 U.S. 89, 95-96 (1991).
STATEMENT OF THE ISSUES
1. Under Section 2412(d) of the EAJA, did the government concede its
unconstitutional actions were not "substantially justified" by acknowledging that it
1
The Joint Appendix is cited as "JA," and the Addendum is cited as "Add."
The district court docket is cited as "Dkt."
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knowingly and purposefully violated the Plaintiffs' constitutional rights and by
conceding its conduct was unconstitutional before the district court?
(a) The Plaintiffs preserved this issue below in their motion for attorneys'
fees. (JA 60.)
(b) This Court reviews a district court decision involving statutory
interpretation de novo. United States v. Gelin, 712 F.3d 612, 617 (1st Cir. 2013).
2. Did the district court err in denying Plaintiffs' request for costs as a
prevailing party under Federal Rule of Civil Procedure 54(d) and under Section
2412(a) of the EAJA by applying a "substantially justified" test that is applicable
only to attorneys' fees and expenses, and not to costs?
(a) The Plaintiffs preserved this issue below in their motion for costs.
(JA 60.)
(b) This Court reviews a district court decision involving statutory
interpretation de novo. Gelin, 712 F.3d at 617.
STATEMENT OF THE CASE
Plaintiffs challenged the constitutionality of the definitions of "spouse" and
"surviving spouse" as used in Titles 10, 32 and 38, both as defined in those titles
and as modified by the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, to the
extent those definitions prevented the military from treating legally married same-
sex spouses as "spouses" for purposes of providing family support and benefits.
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Following the Supreme Court's decision in United States v. Windsor, 133 S. Ct.
2675 (2013), which found DOMA "unconstitutional as a deprivation of the equal
liberty of persons that is protected by the Fifth Amendment" of the Constitution,
id. at 2680, the district court directed the parties to brief whether judgment should
be entered in favor of the Plaintiffs (JA 55). Following that briefing, the district
court entered a final judgment on October 2, 2013, holding that the terms "spouse"
and "surviving spouse" as defined in Titles 10, 32 and 38 are unconstitutional to
the extent they exclude legally married same-sex spouses. (JA 56.)
2
On October 28, 2013, Plaintiffs moved for an award of attorneys' fees and
costs under the EAJA and Rule 54(d). (JA 60.) The district court denied
Plaintiffs' motion for fees and costs on December 17, 2013, finding the
government's position of conceding that it was violating the Constitution but
forcing the Plaintiffs to litigate the constitutional question was "substantially
justified" to pay the "appropriate respect to the primacy of the Supreme Court in
matters of constitutional interpretation." (Add. 3.) Plaintiffs filed a timely notice
of appeal on January 6, 2014. (JA 124.)
2
A slightly amended judgment was entered on February 4, 2014, clarifying
the government's obligation to pay the Plaintiffs benefits. (JA 126.)
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STATEMENT OF FACTS
This is an unusual case where, at the outset of the litigation, the President
and the Attorney General publicly professed they were violating the constitutional
rights of current and former gay and lesbian members of the armed forces and
their spouses, and declared they would not stop violating their constitutional rights
until ordered to stop by a federal court or the laws in question were repealed. At
no point in the litigation did the government ever defend the constitutionality of
its actions. Instead, the government told the court it should lose on the merits.
Plaintiffs are active duty members of the armed forces, members of the
National Guard or veterans, and their legally married spouses of the same sex. As
such, they are entitled to numerous government benefits and family support
programs. The Plaintiffs attempted to obtain these spousal benefits, but were
denied because the definitions of the terms "spouse" and "surviving spouse" in
Titles 10, 32 and 38, as modified by DOMA, prevented the government from
recognizing a same-sex spouse as a "spouse."
3
Plaintiffs brought this action in the
3
Titles 10 and 32 define "spouse" as "husband or wife, as the case may be,"
10 U.S.C. § 101(f)(5), 32 U.S.C. § 101(18), and Title 38 defines "spouse" as "a
person of the opposite sex who is a wife or husband" and "surviving spouse" as "a
person of the opposite sex who was the spouse of a veteran at the time of the
veteran's death," 38 U.S.C. §§ 101(31), 101(3). Each of these definitions was
subsequently modified by DOMA, which provided: "In determining the meaning
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district court alleging the government's refusal to provide them the same benefits
as married couples with opposite-sex spouses was unconstitutional.
More than six months before the Plaintiffs attempted to register for spousal
benefits, the government had concluded DOMA was unconstitutional and that it
would not defend DOMA in court. But the government took the rather bizarre
position that it would continue to enforce this unconstitutional statute to
purposefully violate the constitutional rights of persons, like the Plaintiffs, for the
sole purpose of manufacturing a judicial case that it wanted to lose on the merits.
4
This strategy of purposefully violating constitutional rights, but then refusing to
defend the unconstitutional actions was first set out in a February 23, 2011 letter
from Attorney General Holder to Speaker of the House Boehner. (Add. 21.)
In that letter, the Attorney General advised the Speaker that he and
President Obama had concluded DOMA was unconstitutional and the Executive
Branch would no longer defend DOMA in court because no "reasonable
of any Act of Congress, or of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the United States, the word
'marriage' means only a legal union between one man and one woman as husband
and wife, and the word 'spouse' refers only to a person of the opposite sex who is a
husband or a wife." 1 U.S.C. § 7.
4
In Windsor, the Supreme Court described this as an "unusual position" and
one that would be problematic if generally followed. 133 S. Ct. at 2687-89.
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arguments" could be made in its defense. (Add. 25.) Yet the Attorney General
added: "Notwithstanding this determination, the President has informed me that
Section 3 [of DOMA] will continue to be enforced by the Executive Branch."
(Id.)
Plaintiffs found it startling the Executive Branch would purposefully violate
the constitutional rights of members of the military and veterans for the sole
purpose or creating a judicial case it believed was indefensible. In the Complaint
itself, Plaintiffs made clear:
Plaintiffs also seek an award of attorneys fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412. The government cannot
maintain that its position in denying the Plaintiffs' claims for spousal
benefits is "substantially justified" when the President and the
Attorney General have acknowledged that DOMA Section 3 is
unconstitutional. Like members of the Federal Judicial Branch,
Executive Branch officials take an oath to uphold the Constitution.
While the courts may have the last word as to whether a legislative
enactment is constitutional, the political branches have the first word.
And where, as here, the President and the Attorney General
acknowledge a law is unconstitutional, they should not enforce it. In
this case, the Executive Branch has enforced DOMA and specifically
denied each Plaintiff spousal benefits on the basis of that statute.
(JA 23 ¶ 5.)
At the time the Complaint was filed on October 27, 2011, it was unclear
what the government's position would be with respect to the constitutionality of
Titles 10, 32 and 38, as those Titles had not previously been challenged, or
whether the government would view the operation of DOMA differently in the
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military context. But, on February 21, 2012, the government wrote the district
court to explain: "[T]he Department of Justice will not defend the
constitutionality of Section 3 of the Defense of Marriage Act ('DOMA'), 1 U.S.C.
§ 7, and Sections 101(3) and 101(31) of Title 38 of the United States Code under
the equal protection component of the Fifth Amendment." (Add. 12; see also
Add. 15 ("[T]he Attorney General recently has also concluded that 38 U.S.C. §§
101(3), (31) similarly classify on the basis of sexual orientation, . . . and that,
consistent with his prior determination regarding Section 3 of DOMA, the
Department will cease its defense of these provisions of Title 38 against
challenges under the equal protection component of the Fifth Amendment.").)
Just prior to delivering this notice to the district court, the Attorney General
provided notice to the Speaker of the House, in accordance with 28 U.S.C. §
530D. (Add. 16.) The Attorney General explained: "McLaughlin presents a
challenge, among other things, to provisions of Title 38 that are the equivalent to
Section 3 of DOMA," and concluded those provisions "violate the equal
protection component of the Fifth Amendment." (Add. 17; see also Add. 16 ("The
language of the Title 38 provisions is identical in material respects to the language
of Section 3 of DOMA. . . .").) Further undercutting any constitutional defense to
Title 38, the Attorney General advised:
The legislative record of these provisions contains no rationale for
providing veterans' benefits to opposite-sex spouses of veterans but
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not to legally married same-sex spouses of veterans. Neither the
Department of Defense nor the Department of Veterans Affairs
identified any justification for that distinction that could warrant
treating these provisions differently from Section 3 of DOMA.
(JA 17.) Notwithstanding this finding that Title 38 is unconstitutional, the
Attorney General maintained he would "continue to enforce" the unconstitutional
provisions of Title 38 "unless and until Congress repeals those provisions or the
judicial branch renders a definitive verdict against their constitutionality." (Id.)
Plaintiffs filed a motion for summary judgment on November 21, 2011
(Dkt. 13), but the case was stayed as DOMA challenges worked their way through
this Court and then the Supreme Court. Following the Supreme Court's decision
in Windsor, holding DOMA unconstitutional, the district court ordered the parties
to brief whether judgment should be entered for the Plaintiffs. (JA 55.)
Following that briefing, the district court entered a final judgment on October 2,
2013, holding that the terms "spouse" and "surviving spouse" as defined in Titles
10, 32 and 38 are unconstitutional to the extent they exclude legally married same-
sex spouses. (JA 56; see also JA 126 (amended judgment).)
On October 28, 2013, Plaintiffs filed a motion for attorneys' fees and costs
pursuant to the EAJA and Federal Rule of Civil Procedure 54(d). (JA 60.) The
district court denied that motion on December 17, 2013, without addressing how
the government's position in purposefully violating the Plaintiffs' constitutional
rights and then refusing to defend the litigation was "substantially justified" on the
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merits. (Add. 1.) Instead of looking to whether the merits of the government's
unconstitutional conduct and litigating position were "substantially justified," the
district court held the government was "substantially justified" in pursuing a
course that allowed Congress to be heard before the courts and for the courts to
decide the constitutional questions. Because the district court misapplied the
standard for awarding attorneys' fees and costs, Plaintiffs filed their notice of
appeal on January 6, 2014. (JA 124.)
SUMMARY OF THE ARGUMENT
There should be no question that the EAJA defines "substantially justified"
in relation to the government's defense of its unlawful conduct on the merits. The
Supreme Court already has said so, and the government itself has acknowledged
that is the appropriate inquiry in numerous filings with the courts. In every EAJA
case, the government will have lost, and the question courts must ask in
determining whether the government's litigating position was "substantially
justified" is "whether urging of the opposite merits determination was
substantially justified." Pierce v. Underwood, 487 U.S. 552, 560 (1988). As part
of that inquiry, this Court has explained "[t]here must be an examination of the
actual merits of the government's litigation position as to both the facts and the
law." Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001).
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The district court lost sight of the relevant inquiry and did not examine the
merits of the government's litigation position. Had it done so, it is clear that there
was no reasonable "opposite merits determination" because the government did
not even seek an opposite result on the merits. The government, like the
Plaintiffs, wanted the government to lose on the merits.
The district court believed the government acted reasonably in forcing the
constitutionality of DOMA to the Supreme Court, where the government hoped to
lose, out of respect for the Supreme Court's role as the final arbiter of what the
Constitution says. But whether that is true or not, it is not the relevant inquiry
under the EAJA. Where the government's conduct is not defensible on the merits
and violates the rights of citizens, the EAJA seeks to encourage those citizens to
sue by paying their attorneys' fees. Castaneda-Castillo v. Holder, 723 F.3d 48, 56
(1st Cir. 2013). That is precisely what the Plaintiffs did here. Nothing in the
EAJA precludes the government from adopting its enforce, but do not defend
strategy, but the EAJA does require the government to pay the Plaintiffs' legal
fees when it purposefully violates their rights and makes no effort to defend the
legality of that conduct.
In addition, the district court erred in refusing Plaintiffs' request for costs as
a prevailing party by applying the "substantially justified" test. That test applies
only to an award of attorneys' fees and expenses, not costs. Costs are to be
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awarded to the prevailing party under a separate provision of the EAJA, 28 U.S.C.
§ 2412(a), and Federal Rule of Civil Procedure 54(d).
ARGUMENT
I. THE GOVERNMENT'S CONDUCT AND LITIGATION STRATEGY
WERE NOT "SUBSTANTIALLY JUSTIFIED"
A. The Government's Conduct And Defense Must Be "Substantially
Justified" On The Merits
The district court erred by losing its frame of reference in analyzing
whether the government's conduct in knowingly and purposefully violating the
Plaintiffs' constitutional rights, and then forcing them to litigate a case the
government would not defend on the merits, was "substantially justified." The
district court divorced the "substantially justified" test from the merits of the
government's defense of the legality of its conduct, and improperly looked to non-
merits based justifications, such as the government's desire for Congress to be
heard before the courts and for the courts to rule on constitutional questions.
(Add. 3.) But those justifications are entirely foreign to the EAJA, which the
Supreme Court and this Court analyze solely in terms of whether the government
reasonably believed it was acting lawfully.
5
5
In addition to precluding fee shifting when the government's position is
"substantially justified," the EAJA also precludes fee shifting if "special
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In determining whether the government's litigating position was
"substantially justified," the Supreme Court has directed courts to ask "whether
urging the opposite merits determination was substantially justified." Pierce, 487
U.S. at 560 (emphasis added). As part of that inquiry, this Court has explained
"[t]here must be an examination of the actual merits of the government's litigation
position as to both the facts and the law." Schock, 254 F.3d at 5 (emphasis
added). The government "must justify the positions it took both during the
litigation and the agency proceedings that preceded that litigation. These
positions must have a reasonable basis in both law and fact." Castaneda-Castillo,
723 F.3d at 73.
Moreover, "[i]t is well-settled that the government bears the burden of
establishing that its position was substantially justified." Id. (citing Pierce, 487
U.S. at 565). And because the EAJA fee inquiry is a merits-based inquiry and
circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). That provision
is inapplicable here, as it applies only when the plaintiffs have engaged in some
inequitable conduct (i.e., unclean hands). See Air Transp. Ass'n of Canada v.
FAA, 156 F.3d 1329, 1333 (D.C. Cir. 1998) (a "theme of 'unclean hands' pervades
the jurisprudence of 'special circumstances' under EAJA."); H.R. Rep. No. 96-
1418, at 11 (1980) (the special circumstances exception is a "safety valve" that
gives courts "discretion to deny awards where equitable considerations dictate an
award should not be made"). There is no evidence in the record of any such
conduct by the Plaintiffs, and the district court expressly chose not to address this
issue. (Add. 5 n.4.)
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arises only after the government has been found to have, in fact, violated
someone's rights, this is a heavy burden for the government. "Indeed, in the usual
case, a constitutional violation will preclude a finding that the government's
conduct was substantially justified." Morgan v. Perry, 142 F.3d 670, 690 (3d Cir.
1998).
Prior to this case, the government shared this understanding that
"substantially justified" required it to prove that it made reasonable arguments on
the merits. Indeed, the government has argued to the Supreme Court that
"substantially justified" does not require it to prove "a substantial probability of
prevailing," but that its "arguments [have] a fair possibility of success." Brief of
the United States, Pierce v. Underwood, 487 U.S. 552 (1987) (No. 86-1512), 1987
WL 880437 at *10. The government even advised the Supreme Court that, in
making this assessment, "courts typically have undertaken a detailed, de novo
assessment of the strength of the government's arguments on the merits." Id. at
*20 (emphasis added). Similarly, in arguing for the "substantially justified" test to
be applied to fee litigation under the EAJA, the government told the Supreme
Court: "If the government makes unreasonable fee arguments, it will have to pay
fees for fees. Otherwise, it will not." Brief of the United States, INS v. Jean, 496
U.S. 154 (1990) (No. 86-601), 1990 WL 505692 at *12.
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Plainly, that standard cannot be met here because the government has made
no "opposite merits determination" at all, as Pierce requires, and made no effort to
obtain "success" on the merits.
6
Nor was the government indifferent about what
the merits of the case were. The government advised the Court and Congress that
the laws challenged in this very case were unconstitutional. (Add. 15-16.)
Indeed, even prior to violating the Plaintiffs' constitutional rights, the Attorney
General advised the Speaker of the House that he and the President had concluded
no "reasonable arguments" could be made in defense of DOMA. (Add. 25.)
Despite the firm belief of the President and Attorney General, however,
they knowingly and purposefully enforced DOMA to violate the Plaintiffs'
constitutional rights. (Id. (explaining DOMA will continue to be enforced despite
its unconstitutionality).) Even after the Plaintiffs sued and the government
confessed that it had violated the Plaintiffs' constitutional rights, the government
6
The fact that the government got the result it wanted does not mean it
succeeded on the merits for purposes of the EAJA. It would only be in some
Alice in Wonderland-like world that losing could come to be defined as winning.
It would provide cold comfort to victims who lost their liberty for a government
official to tell them that he knew he was violating their constitutional rights all
along, and now feels vindicated because the courts agreed. The purpose of the
EAJA is to prevent such a violation in the first place.
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advised both Congress and the district court that it would not remedy the violation
but would continue to violate the Plaintiffs' constitutional rights. (Add. 15-17.)
B. The District Court's Construction Of "Substantially Justified"
Undermines The EAJA
The district court's conclusion that the government had a "substantially
justified" strategy of enforcing laws it believed were unconstitutional to force
litigation, so that courts will decide those laws are unconstitutional, turns the
EAJA on its head. The purpose of the EAJA is not to force cases into court so
that courts can issue rulings as to what rights people posses, the purpose was to
deter the Executive Branch from violating people's rights in the first place.
As the Supreme Court explained: "The clearly stated objective of the EAJA
is to eliminate financial disincentives for those who would defend against
unjustified governmental action and thereby to deter the unreasonable exercise of
Government authority." Ardestani v. INS, 502 U.S. 129, 138 (1991). The EAJA
triggers an obligation for the government to pay attorneys' fees when the
government takes unjustified actions that force litigation. See, e.g., INS v. Jean,
496 U.S. 154, 159 n.7 (1990) (The EAJA is actionable against "government action
that led the private party to the decision to litigate."); United States v. 515 Granby
LLC, 736 F.3d 309, 316 (4th Cir. 2013) ("In assessing the reasonableness of
awards of attorney's fees under the EAJA, we have recognized that 'Congress
intended to address governmental misconduct whether that conduct preceded
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litigation, compelling a private party to take legal action, or occurred in the
context of an ongoing case through prosecution or defense of unreasonable
positions.'") (internal citations omitted).
If accepted, the district court's rationale would dramatically undercut the
deterrence of the EAJA. Rather than discourage the Executive Branch from
taking unconstitutional or unlawful actions, the district court's opinion encourages
civil rights violations to take place – even where, as here, the President and
Attorney General believe those actions are indefensible on the merits. It will be
true in every case that the judiciary, if called upon to serve as a referee, will have
the last word in deciding what rights the people hold. But the EAJA expects
Executive Branch officials to exercise their own judgment and not take actions
they believe will violate the civil rights of the people they serve. When they take
such unjustified actions, they must pay the plaintiffs' attorneys' fees. Preventing
constitutional violations is well-established public policy, and that policy should
not be undercut by federal courts. See, e.g., Watson v. Memphis, 373 U.S. 526,
532-33 (1963) ("[A]ny deprivation of constitutional rights calls for prompt
rectification."); Am. Freedom Def. Initiative v. Suburban Mobility for Reg.
Transp., 698 F. 3d 885, 896 (6th Cir. 2012) ("[T]he public interest is promoted by
the robust enforcement of constitutional rights."); Awad v. Ziriax, 670 F.3d 1111,
1132 (10th Cir. 2012) ("[I]t is always in the public interest to prevent the violation
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of a party's constitutional rights.") (quoting G & V Lounge, Inc. v. Mich. Liquor
Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994)).
Perhaps even more troubling, the district court's rationale may increase the
number of civil rights violations that occur and then go unremedied. The surest
way to prevent constitutional violations is for government officials not to take
actions they believe are unlawful. The district court's rationale of fostering
litigation to protect the primacy of the courts in deciding legal questions depends
on the existence of litigants who are willing to sue. But absent access to attorneys'
fees under the EAJA, those who have had their rights violated may lack the
resources to bring a suit to vindicate their rights.
Just as Congress sought to deter government officials from taking
unjustified acts through the EAJA, Congress also enacted the EAJA so that
citizens would not be deterred in enforcing their rights. Castaneda-Castillo, 723
F.3d at 56 ("The EAJA aims to 'ensure that certain individuals . . . will not be
deterred from seeking review of, or defending against, unjustified governmental
action because of the expense involved.'") (quoting Aronov v. Napolitano, 562
F.3d 84, 88 (1st Cir. 2009)). Under the district court's rule, no injured citizen or
their counsel could be sure there is an EAJA remedy that awaits them, even if the
government makes no effort to defend its conduct before a court. Consequently,
the district court's ruling may foster civil rights violations that are never remedied.
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C. The Executive Branch Could Have Respected The Plaintiffs'
Constitutional Rights
The government concedes that neither the Take Care Clause nor any other
rule of law precluded the President from simply not enforcing the law, and
respecting the Plaintiffs' constitutional rights. (Add. 4 ("It is not that the President
could not have ended all enforcement of Section 3 by executive fiat – the
government is careful to make the point that it was among his prerogatives to do
so. . . ."); JA 88 ("[T]he President may decide in certain circumstances not to
enforce a statute he has determined to be unconstitutional.").) To the contrary, the
President had no authority to enforce these unconstitutional laws. See, e.g., Va.
Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) ("[B]ecause
an unconstitutional legislative enactment is 'void,' [an] official who enforces that
law 'comes into conflict with the superior authority of [the] Constitution. . . .'")
(quoting Ex parte Young, 209 U.S. 123, 159-60 (1908)); The Att'y Gen.'s Duty to
Defend and Enforce Const. Objectionable Legis., 4A Op. Att'y Gen. 55 (1980)
("[E]verything in our constitutional jurisprudence inescapably establishes that
neither [the President] nor any other executive officer can be given authority to
enforce [an unconstitutional] law.").
U.S. Attorneys General have advised Presidents they have no obligation to
provide provisional enforcement of unconstitutional laws. Presidential Authority
to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 204 (1994)
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("[T]he President's constitutional duty does not require him to execute
unconstitutional statutes; nor does it require him to execute them provisionally,
against the day they are declared unconstitutional by the courts.") (quoting The
Attorney General's Duty to Defend and Enforce Constitutionally Objectionable
Legislation, 4A Op. O.L.C. 55, 59 (1980)). And "every President since
Eisenhower has issued signing statements in which he stated that he would refuse
to execute unconstitutional provisions." Id. at 202; see, e.g., INS v. Chadha, 462
U.S. 919, 942 n.13 (1983) (citing a memorandum from President Franklin
Roosevelt to Attorney General Jackson in which the President indicated his
intention not to implement an unconstitutional provision in a statute he had just
signed); Myers v. United States, 272 U.S. 52 (1926) (noting President Wilson had
defied a statute that prohibited him from removing postmasters without Senate
approval). That includes President Obama, who has refused to enforce statutes he
believed were unconstitutional without waiting for a court to tell him so. See,
e.g., Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23,
2011) (President Obama) (refusing to enforce parts of the Act because they are
unconstitutional); Statement on Signing the National Defense Authorization Act
for Fiscal Year 2012 (Dec. 30, 2011) (President Obama) (same). Similarly, in a
comment on the Sedition Act of 1798, President Jefferson stated his "oath to
protect the constitution" required him to "arrest [the] execution" of the Act at
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"every stage." Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in
1 The Adams-Jefferson Letters 274, 275-76 (Lester J. Cappon ed. 1959). Indeed,
as the Executive Branch has acknowledged to Congress:
The President has the responsibility and duty also to faithfully
execute the laws of the United States. U.S. Const., art. II. § 3. But
these duties are not in conflict: the law the President must execute
includes the Constitution – the supreme law of the land. Because the
Constitution is supreme over all other law, the President must resolve
any conflict between statutory law and the Constitution in favor of
the Constitution, just as courts must. This Presidential responsibility
may arise most sharply when the President is charged with executing
a statute, passed by a previous Congress and signed by a prior
President, a provision which he finds unconstitutional under
intervening Supreme Court precedent. A President that places the
statutory law over the constitutional law . . . would fail in his duty
faithfully to execute the laws. The principle is equally sound where
the Supreme Court has yet to rule on an issue, but the President has
determined that a statutory law violates the Constitution. To say that
the principle is not equally sound in this context is to deny the
President's independent responsibility to interpret and uphold the
Constitution. It is to leave the defense of the Constitution only to
two, not three, of the branches of our government.
Oversight Hearing: Presidential Signing Statements under the Bush
Administration: A Threat to Checks and Balances and the Rule of Law? Before
the H. Comm. on the Judiciary, 110th Cong. 5 (2007) (statement of John P.
Elwood, Deputy Assistant Attorney General of the United States) (emphasis
added).
In Windsor, the Supreme Court expressed its disfavor for the "unusual
position" taken by the government, 133 S. Ct. at 2687, and the Windsor dissent
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more strongly criticized the position as a "contrivance" that stripped the Court of
an actual case and controversy," id. at 2700 (Scalia, J., dissenting). But while the
majority and the dissent disagreed as to whether the government's position left a
genuine Article III controversy intact, no member of the Court took issue with the
dissent's conclusion that nothing compelled the Executive Branch to violate the
rights of people, like the Plaintiffs, and force them to litigate:
It may be argued that if what we say is true some Presidential
determinations that statutes are unconstitutional will not be subject to
our review. That is as it should be, when both the President and the
plaintiff agree that the statute is unconstitutional. Where the
Executive is enforcing an unconstitutional law, suit will of course lie;
but if, in that suit, the Executive admits the unconstitutionality of the
law, the litigation should end in an order or a consent decree
enjoining enforcement. This suit saw the light of day only because
the President enforced the Act (and thus gave Windsor standing to
sue) even though he believed it unconstitutional. He could have
equally chosen (more appropriately, some would say) neither to
enforce nor to defend the statute he believed to be unconstitutional –
in which event Windsor would not have been injured, the District
Court would not have refereed this friendly scrimmage, and the
Executive's determination of unconstitutionality would have escaped
this Court's desire to blurt out its view of the law. The matter would
have been left, as so many matters ought to be left, to a tug of war
between the President and Congress. . . .
Windsor, 133 S. Ct. at 2702 (Scalia, J., dissenting) (internal citation omitted).
D. Windsor Did Not Address The EAJA Or Whether The
Government's Litigation Strategy Was Substantially Justified
The district court mistakenly conflated the Supreme Court's discussion of
justiciability in Windsor with whether the government's position was
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"substantially justified" under the EAJA (the latter question was never before the
Court in Windsor). The justiciability problem the Court addressed in Windsor
was that the plaintiff and the government sought the same relief – a holding that
DOMA was unconstitutional – so the question was whether there was a genuine
dispute. Windsor, 133 S. Ct. at 2685. Ultimately, because the Second Circuit's
decision invalidating DOMA required the government to return taxes to the
plaintiff the government would not have otherwise returned (even though the
government agreed it should), the Supreme Court held there was a real injury and
a genuine case before it. Id. at 2686.
In the context of addressing whether there was an actual injury for standing
purposes and rules of prudential standing, the Supreme Court explained the
government's approach of enforcing laws it would not defend as constitutional in
court created a "procedural dilemma." Id. at 2688. The Court "underscored" that
the arguments for dismissing the case on prudential grounds do not "lack
substance," and made clear it would be troubled if this became a "common
practice in ordinary cases." Id. at 2688. The Court added that the "integrity of the
political process would be at risk if difficult constitutional issues were simply
referred to the Court as a routine exercise." Id. at 2689. But because "this case is
not routine," the Court proceeded to consider the merits. Id.
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Windsor's holding that the government's enforce, but do not defend strategy
presents an Article III case or controversy says nothing about whether that
strategy is "substantially justified" on the merits for purposes of the EAJA.
Inquiries into jurisdiction and the merits are entirely separate, and this Court
undoubtedly has had jurisdiction to decide many cases that lacked merit. If the
government is "substantially justified" whenever its actions trigger a justiciable
Article III case or controversy, no plaintiff could ever prevail under the EAJA.
Plaintiffs cannot get an EAJA judgment from a court that lacks jurisdiction and, if
the mere existence of jurisdiction defeats their claim, they cannot prevail on the
merits of their EAJA claim when jurisdiction exists either.
The district court believed the Windsor Court found the government's
litigation strategy "constitutionally reasonable" (Add. 5), but the Supreme Court
did not opine on the reasonableness of the strategy, only that the strategy produced
a justiciable case. Even if the President did have the constitutional authority to
provisionally enforce an unconstitutional law (an issue Windsor did not address),
that is not inconsistent with awarding fees under the EAJA. If the government
enforces a law that it believes is unconstitutional and makes no effort to defend,
the government must pay the plaintiffs' attorneys' fees because its defense is not
"substantially justified" on the merits, even if litigating to lose where somehow a
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24
permissible strategy. Like any strategic choice, this choice has consequences and
one of those consequences is having to pay attorneys' fees under the EAJA.
To be clear, this Court does not need to decide that the Executive Branch
lacked the constitutional authority to enforce a law it believed was
unconstitutional or make any judgment about whether it was "constitutionally
reasonable" (or politically reasonable) for the Executive Branch to knowingly
violate the Plaintiffs' constitutional rights to trigger litigation that it would not
defend against. All the Plaintiffs ask is for the Court to rule that attorneys' fees
should be awarded when the government pursues such a strategy because neither
its conduct nor its defense of that conduct is "substantially justified" on the merits.
II. PLAINTIFFS ARE ENTITLED TO COSTS AS A PREVAILING
PARTY
Plaintiffs are entitled to have their costs paid pursuant to the EAJA and
Rule 54(d)(1) because they were a prevailing party,
7
regardless of whether the
government's defense was "substantially justified." 28 U.S.C. § 2412(a)(1)
7
There is no question that Plaintiffs are a "prevailing party," as the district
court's judgment materially altered their legal relationship with the government
and provided them all the relief they requested. "[W]here the party has 'received a
judgment on the merits,'" as was the case here, this requirement is met.
Castaneda-Castillo, 723 F.3d at 57 (quoting Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep't of Health & Human Res., 532 U.S 598, 605 (2001)).
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provides that costs "may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or any official of the United
States acting in his or her official capacity in any court having jurisdiction of such
action." But "in addition to any costs awarded pursuant to subsection (a)," Section
2412(d)(1)(A) authorizes an award of "fees and other expenses" unless "the
position of the United States was substantially justified." In other words, all a
plaintiff must do to be awarded costs is to prevail, but to obtain attorneys' fees, the
court must also find the government's position was not "substantially justified."
See Hakim v. Accenture U.S. Pension Plan, 901 F. Supp. 2d 1045, 1055 n.3 (N.D.
Ill. 2012) ("The 'substantially justified' test in EAJA applies only to attorneys'
fees. A court has greater discretion to award costs depending on the
circumstances."). Moreover, "Rule 54(d)(1) codifies a venerable presumption that
prevailing parties are entitled to costs," and that presumption is not displaced by
the EAJA. Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172 (2013).
The district court erred as a matter of law by applying the "substantially
justified" test to Plaintiffs' claim for costs, when that test is applicable only to
Plaintiffs' claim for fees. There is a presumption in favor of the award of costs,
regardless of whether the government's erroneous legal position was substantially
justified, and those costs should be awarded here.
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CONCLUSION
The district court erred by using a basis other than the merits of the
government's defense of its unconstitutional action in evaluating whether the
government's position was "substantially justified." Because the government
correctly believed it was violating the Plaintiffs' constitutional rights, and made no
effort to defend its conduct on the merits, the government's position was not
"substantially justified" and attorneys' fees should be awarded. Plaintiffs' costs
also should be awarded simply because they were the prevailing party.
/s/ Christopher D. Man
Abbe David Lowell, Bar No. 1144695
Christopher D. Man, Bar No. 1151675
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 974-5608
(202) 974-6708
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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned counsel certifies that this brief:
(i) complies with the type-volume limitation of Rule 32(a)(7)(B), because it
contains 6,177 words, including footnotes and excluding the parts of the brief
exempted by Rule 32(a)(7)(B)(iii); and
(ii) complies with the typeface requirements of Rule 32(a)(5) and the type style
requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office
Word 2007 and is set in Times New Roman font in a size equivalent to 14 points
or larger.
/s/ Christopher D. Man
Christopher D. Man
May 15, 2014
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CERTIFICATE OF SERVICE
I hereby certify that, on May 15, 2014, the foregoing brief was filed with the
Clerk of the Court using the Court’s CM/ECF system. I further certify that counsel
for all parties in this case are registered CM/ECF users and will be served by the
appellate CM/ECF system.
/s/ Christopher D. Man
Christopher D. Man
May 15, 2014
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i
NO. 14-1035
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MAJ SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC
VICTORIA A. HUDSON; MONIKA POXON; COL STEWART BORNHOFT;
STEPHEN MCNABB; LT GARY C. ROSS; DAN SWEZY; CPT STEVE M.
HILL; JOSHUA SNYDER; A1C DANIEL HENDERSON; JERRET
HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN; CPT JOAN
DARRAH; JACQUELINE KENNEDY
Plaintiffs – Appellants
v.
CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H.
HOLDER, JR., in his official capacity as Attorney General; ERIC K. SHINSEKI,
in his official capacity as Secretary of Veterans Affairs; UNITED STATES
Defendants - Appellees
On Appeal from the United States District Court for the District of Massachusetts
1:11-cv-11905-RGS (Honorable Richard G. Stearns, District Court Judge)
ADDENDUM TO BRIEF OF APPELLANTS
Abbe David Lowell, Bar No. 1144695
Christopher D. Man, Bar No. 1151675
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 974-5600
Counsel for Appellants
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TABLE OF CONTENTS
Docket Entry 63 from the District Court Docket – December 17, 2013
Memorandum and Order on Plaintiffs' Application
For an Award of Attorney's Fees and Costs ................................. Add 1
28 U.S.C. §2412 .................................................................................. Add 6
Docket Entry 28 from the District Court Docket – February 21, 2012
Notice to the Court ..................................................................... Add 12
Docket Entry 29 from the District Court Docket – February 22, 2012
Amended Notice to the Court .................................................... Add 18
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28 USC 2412: Costs and fees
Text contains those laws in effect on May 7, 2014
From Title 28-JUDICIARY AND JUDICIAL PROCEDURE
PART VI-PARTICULAR PROCEEDINGS
CHAPTER 161-UNITED STATES AS PARTY GENERALLY
Jump To:
Source Credit
References In Text
Amendments
Effective Date
Savings Provision
Miscellaneous
§2412. Costs and fees
(a)(1) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in
section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the
prevailing party in any civil action brought by or against the United States or any agency or any official of
the United States acting in his or her official capacity in any court having jurisdiction of such action. A
judgment for costs when taxed against the United States shall, in an amount established by statute,
court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred
by such party in the litigation.
(2) A judgment for costs, when awarded in favor of the United States in an action brought by the
United States, may include an amount equal to the filing fee prescribed under section 1914(a) of this
title. The preceding sentence shall not be construed as requiring the United States to pay any filing fee.
(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of
attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing
party in any civil action brought by or against the United States or any agency or any official of the
United States acting in his or her official capacity in any court having jurisdiction of such action. The
United States shall be liable for such fees and expenses to the same extent that any other party would
be liable under the common law or under the terms of any statute which specifically provides for such an
award.
(c)(1) Any judgment against the United States or any agency and any official of the United States
acting in his or her official capacity for costs pursuant to subsection (a) shall be paid as provided in
sections 2414 and 2517 of this title and shall be in addition to any relief provided in the judgment.
(2) Any judgment against the United States or any agency and any official of the United States acting
in his or her official capacity for fees and expenses of attorneys pursuant to subsection (b) shall be paid
as provided in sections 2414 and 2517 of this title, except that if the basis for the award is a finding that
the United States acted in bad faith, then the award shall be paid by any agency found to have acted in
bad faith and shall be in addition to any relief provided in the judgment.
(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party
other than the United States fees and other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust.
(B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in
the action, submit to the court an application for fees and other expenses which shows that the party is a
prevailing party and is eligible to receive an award under this subsection, and the amount sought,
including an itemized statement from any attorney or expert witness representing or appearing in behalf
of the party stating the actual time expended and the rate at which fees and other expenses were
computed. The party shall also allege that the position of the United States was not substantially
justified. Whether or not the position of the United States was substantially justified shall be determined
on the basis of the record (including the record with respect to the action or failure to act by the agency
upon which the civil action is based) which is made in the civil action for which fees and other expenses
are sought.
(C) The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or
deny an award, to the extent that the prevailing party during the course of the proceedings engaged in
conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.
(D) If, in a civil action brought by the United States or a proceeding for judicial review of an adversary
adjudication described in section 504(a)(4) of title 5, the demand by the United States is substantially in
excess of the judgment finally obtained by the United States and is unreasonable when compared with
such judgment, under the facts and circumstances of the case, the court shall award to the party the
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fees and other expenses related to defending against the excessive demand, unless the party has
committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an
award unjust. Fees and expenses awarded under this subparagraph shall be paid only as a
consequence of appropriations provided in advance.
(2) For the purposes of this subsection-
(A) “fees and other expenses” includes the reasonable expenses of expert witnesses, the
reasonable cost of any study, analysis, engineering report, test, or project which is found by the court
to be necessary for the preparation of the party's case, and reasonable attorney fees (The amount of
fees awarded under this subsection shall be based upon prevailing market rates for the kind and
quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in
excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii)
attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an
increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for
the proceedings involved, justifies a higher fee.);
(B) “party” means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil
action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation,
association, unit of local government, or organization, the net worth of which did not exceed
$7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the
time the civil action was filed; except that an organization described in section 501(c)(3) of the Internal
Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such
Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12
U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative
association or for purposes of subsection (d)(1)(D), a small entity as defined in section 601 of title 5;
(C) “United States” includes any agency and any official of the United States acting in his or her
official capacity;
(D) “position of the United States” means, in addition to the position taken by the United States in
the civil action, the action or failure to act by the agency upon which the civil action is based; except
that fees and expenses may not be awarded to a party for any portion of the litigation in which the
party has unreasonably protracted the proceedings;
(E) “civil action brought by or against the United States” includes an appeal by a party, other than
the United States, from a decision of a contracting officer rendered pursuant to a disputes clause in a
contract with the Government or pursuant to chapter 71 of title 41;
(F) “court” includes the United States Court of Federal Claims and the United States Court of
Appeals for Veterans Claims;
(G) “final judgment” means a judgment that is final and not appealable, and includes an order of
settlement;
(H) “prevailing party”, in the case of eminent domain proceedings, means a party who obtains a final
judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to
the highest valuation of the property involved that is attested to at trial on behalf of the property owner
as it is to the highest valuation of the property involved that is attested to at trial on behalf of the
Government; and
(I) “demand” means the express demand of the United States which led to the adversary
adjudication, but shall not include a recitation of the maximum statutory penalty (i) in the complaint, or
(ii) elsewhere when accompanied by an express demand for a lesser amount.
(3) In awarding fees and other expenses under this subsection to a prevailing party in any action for
judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5,
United States Code, or an adversary adjudication subject to chapter 71 of title 41, the court shall include
in that award fees and other expenses to the same extent authorized in subsection (a) of such section,
unless the court finds that during such adversary adjudication the position of the United States was
substantially justified, or that special circumstances make an award unjust.
(4) Fees and other expenses awarded under this subsection to a party shall be paid by any agency
over which the party prevails from any funds made available to the agency by appropriation or
otherwise.
(e) The provisions of this section shall not apply to any costs, fees, and other expenses in connection
with any proceeding to which section 7430 of the Internal Revenue Code of 1986 applies (determined
without regard to subsections (b) and (f) of such section). Nothing in the preceding sentence shall
prevent the awarding under subsection (a) of section 2412 of title 28, United States Code, of costs
enumerated in section 1920 of such title (as in effect on October 1, 1981).
(f) If the United States appeals an award of costs or fees and other expenses made against the United
States under this section and the award is affirmed in whole or in part, interest shall be paid on the
amount of the award as affirmed. Such interest shall be computed at the rate determined under section
1961(a) of this title, and shall run from the date of the award through the day before the date of the
mandate of affirmance.
(June 25, 1948, ch. 646, 62 Stat. 973; Pub. L. 89–507, §1, July 18, 1966, 80 Stat. 308; Pub. L. 96–481,
title II, §204(a), (c), Oct. 21, 1980, 94 Stat. 2327, 2329; Pub. L. 97–248, title II, §292(c), Sept. 3, 1982,
96 Stat. 574; Pub. L. 99–80, §§2, 6, Aug. 5, 1985, 99 Stat. 184, 186; Pub. L. 99–514, §2, Oct. 22, 1986,
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100 Stat. 2095; Pub. L. 102–572, title III, §301(a), title V, §§502(b), 506(a), title IX, §902(b)(1), Oct. 29,
1992, 106 Stat. 4511–4513, 4516; Pub. L. 104–66, title I, §1091(b), Dec. 21, 1995, 109 Stat. 722; Pub.
L. 104–121, title II, §232, Mar. 29, 1996, 110 Stat. 863; Pub. L. 105–368, title V, §512(b)(1)(B), Nov. 11,
1998, 112 Stat. 3342; Pub. L. 111–350, §5(g)(9), Jan. 4, 2011, 124 Stat. 3848.)
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., §§258, 931(a) (Mar. 3, 1911, ch. 231, §152, 36 Stat.
1138; Aug. 2, 1946, ch. 753, §410(a), 60 Stat. 843).
Section consolidates the last sentence of section 931(a) of title 28, U.S.C., 1940 ed., with
section 258 of said title 28. For other provisions of said section 931(a), see Distribution
Table.
Subsection (a) is new. It follows the well-known common-law rule that a sovereign is not
liable for costs unless specific provision for such liability is made by law. This is a corollary to
the rule that a sovereign cannot be sued without its consent.
Many enactments of Congress relating to fees and costs contain specific exceptions as to
the liability of the United States. (See, for example, section 548 of title 28, U.S.C., 1940 ed.) A
uniform rule, embodied in this section, will make such specific exceptions unnecessary.
Subsection (b) incorporates section 258 of title 28, U.S.C., 1940 ed.
Subsection (c) incorporates the costs provisions of section 931(a) of title 28, U.S.C., 1940
ed.
Words “and for summoning the same,” after “witnesses,” were omitted from subsection (b)
as covered by “those actually incurred for witnesses.”
Changes were made in phraseology.
REFERENCES IN TEXT
Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (e), is classified
to section 7430 of Title 26, Internal Revenue Code.
AMENDMENTS
2011-Subsec. (d)(2)(E). Pub. L. 111–350, §5(g)(9)(A), substituted “chapter 71 of title 41” for
“the Contract Disputes Act of 1978”.
Subsec. (d)(3). Pub. L. 111–350, §5(g)(9)(B), substituted “chapter 71 of title 41” for “the
Contract Disputes Act of 1978”.
1998-Subsec. (d)(2)(F). Pub. L. 105–368 substituted “Court of Appeals for Veterans
Claims” for “Court of Veterans Appeals”.
1996-Subsec. (d)(1)(D). Pub. L. 104–121, §232(a), added subpar. (D).
Subsec. (d)(2)(A)(ii). Pub. L. 104–121, §232(b)(1), substituted “$125” for “$75”.
Subsec. (d)(2)(B). Pub. L. 104–121, §232(b)(2), inserted before semicolon at end “or for
purposes of subsection (d)(1)(D), a small entity as defined in section 601 of title 5”.
Subsec. (d)(2)(I). Pub. L. 104–121, §232(b)(3)–(5), added subpar. (I).
1995-Subsec. (d)(5). Pub. L. 104–66 struck out par. (5) which read as follows: “The
Attorney General shall report annually to the Congress on the amount of fees and other
expenses awarded during the preceding fiscal year pursuant to this subsection. The report
shall describe the number, nature, and amount of the awards, the claims involved in the
controversy, and any other relevant information which may aid the Congress in evaluating
the scope and impact of such awards.”
1992-Subsec. (a). Pub. L. 102–572, §301(a), designated existing provisions as par. (1)
and added par. (2).
Subsec. (d)(2)(F). Pub. L. 102–572, §902(b)(1), substituted “United States Court of
Federal Claims” for “United States Claims Court”.
Pub. L. 102–573, §506(a), inserted before semicolon at end “and the United States Court
of Veterans Appeals”.
Subsec. (d)(5). Pub. L. 102–572, §502(b), substituted “The Attorney General shall report
annually to the Congress on” for “The Director of the Administrative Office of the United
States Courts shall include in the annual report prepared pursuant to section 604 of this title,”.
1986-Subsecs. (d)(2)(B), (e). Pub. L. 99–514 substituted “Internal Revenue Code of 1986”
for “Internal Revenue Code of 1954”.
1985-Subsecs. (a), (b). Pub. L. 99–80, §2(a)(1), substituted “or any agency or any official
of the United States” for “or any agency and any official of the United States”.
Subsec. (d). Pub. L. 99–80, §6, repealed amendment made by Pub. L. 96–481, §204(c),
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and provided that subsec. (d) was effective on or after Aug. 5, 1985, as if it had not been
repealed by section 204(c). See 1980 Amendment note and Revival of Previously Repealed
Provisions note below.
Subsec. (d)(1)(A). Pub. L. 99–80, §2(a)(2), inserted “, including proceedings for judicial
review of agency actions,” after “in tort)”.
Subsec. (d)(1)(B). Pub. L. 99–80, §2(b), inserted provisions directing that whether or not
the position of the United States was substantially justified must be determined on the basis
of the record (including the record with respect to the action or failure to act by the agency
upon which the civil action was based) which is made in the civil action for which fees and
other expenses are sought.
Subsec. (d)(2)(B). Pub. L. 99–80, §2(c)(1), substituted “$2,000,000” for “$1,000,000” in cl.
(i), and substituted “or (ii) any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or organization, the net worth of which did
not exceed $7,000,000 at the time the civil action was filed, and which had not more than
500 employees at the time the civil action was filed; except that an organization described in
section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from
taxation under section 501(a) of such Code, or a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless
of the net worth of such organization or cooperative association;” for “(ii) a sole owner of an
unincorporated business, or a partnership, corporation, association, or organization whose
net worth did not exceed $5,000,000 at the time the civil action was filed, except that an
organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.
501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative
association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)),
may be a party regardless of the net worth of such organization or cooperative association,
or (iii) a sole owner of an unincorporated business, or a partnership, corporation,
association, or organization, having not more than 500 employees at the time the civil action
was filed; and”.
Subsec. (d)(2)(D) to (H). Pub. L. 99–80, §2(c)(2), added subpars. (D) to (H).
Subsec. (d)(4). Pub. L. 99–80, §2(d), amended par. (4) generally. Prior to amendment,
par. (4) read as follows:
“(A) Fees and other expenses awarded under this subsection may be paid by any agency
over which the party prevails from any funds made available to the agency, by appropriation
or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall
be paid in the same manner as the payment of final judgments is made in accordance with
sections 2414 and 2517 of this title.
“(B) There is authorized to be appropriated to each agency for each of the fiscal years
1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses
awarded pursuant to this subsection in such fiscal years.”
Subsec. (f). Pub. L. 99–80, §2(e), added subsec. (f).
1982-Subsec. (e). Pub. L. 97–248 added subsec. (e).
1980-Pub. L. 96–481, §204(a), designated existing provisions as subsec. (a), struck out
provision that payment of a judgment for costs shall be as provided in section 2414 and
section 2517 of this title for the payment of judgments against the United States, and added
subsecs. (b) to (d). Pub. L. 96–481, §204(c), repealed subsec. (d) eff. Oct. 1, 1984. See
Effective Date of 1980 Amendment note below.
1966-Pub. L. 89–507 empowered a court having jurisdiction to award judgment for costs,
except as otherwise specifically provided by statute, to the prevailing party in any action
brought by or against the United States or any agency or official of the United States acting
in his official capacity, limited the judgment for costs when taxed against the Government to
reimbursing in whole or in part the prevailing party for costs incurred by him in the litigation,
required the payment of a judgment for costs to be as provided in section 2414 and section
2517 of this title for the payment of judgments against the United States and eliminated
provisions which limited the liability of the United States for fees and costs to those cases in
which liability was expressed provided for by Act of Congress, permitted the district court or
the Court of Claims, in an action under section 1346(a) or 1491 of this title if the United States
put in issue plaintiff's right to recover, to allow costs to the prevailing party from the time of
joining such issue, and which authorized the allowance of costs to the successful claimant in
an action under section 1346(b) of this title.
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EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–368 effective on first day of first month beginning more than
90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under
section 7251 of Title 38, Veterans’ Benefits.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104–121 applicable to civil actions and adversary adjudications
commenced on or after Mar. 29, 1996, see section 233 of Pub. L. 104–121, set out as a note
under section 504 of Title 5, Government Organization and Employees.
EFFECTIVE DATE OF 1992 AMENDMENT
Pub. L. 102–572, title V, §506(b), Oct. 29, 1992, 106 Stat. 4513, provided that: “The
amendment made by subsection (a) [amending this section] shall apply to any case pending
before the United States Court of Veterans Appeals [now United States Court of Appeals for
Veterans Claims] on the date of the enactment of this Act [Oct. 29, 1992], to any appeal filed
in that court on or after such date, and to any appeal from that court that is pending on such
date in the United States Court of Appeals for the Federal Circuit.”
Pub. L. 102–572, title V, §506(d), Oct. 29, 1992, 106 Stat. 4513, provided that: “This
section [amending this section and enacting provisions set out under this section], and the
amendment made by this section, shall take effect on the date of the enactment of this Act
[Oct. 29, 1992].”
Amendment by section 902(b)(1) of Pub. L. 102–572 effective Oct. 29, 1992, see section
911 of Pub. L. 102–572, set out as a note under section 171 of this title.
Amendment by sections 301(a) and 502(b) of Pub. L. 102–572 effective Jan. 1, 1993, see
section 1101(a) of Pub. L. 102–572, set out as a note under section 905 of Title 2, The
Congress.
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by Pub. L. 99–80 applicable to cases pending on or commenced on or after
Aug. 5, 1985, but with provision for additional applicability to certain prior cases and to prior
board of contracts appeals cases, see section 7 of Pub. L. 99–80, set out as a note under
section 504 of Title 5, Government Organization and Employees.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97–248 applicable to civil actions or proceedings commenced after
Feb. 28, 1983, see section 292(e)(1) of Pub. L. 97–248, set out as an Effective Date note
under section 7430 of Title 26, Internal Revenue Code.
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by section 204(a) of Pub. L. 96–481 effective Oct. 1, 1981, and applicable to
any adversary adjudication, as defined in section 504(b)(1)(C) of Title 5, Government
Organization and Employees, and any civil action or adversary adjudication described in this
section which is pending on, or commenced on or after, such date, see section 208 of Pub.
L. 96–481, set out as an Effective Date note under section 504 of Title 5.
Pub. L. 96–481, title II, §204(c), Oct. 21, 1980, 94 Stat. 2329, which provided in part that
effective Oct. 1, 1984, subsec. (d) of this section is repealed, except that the provisions of
subsec. (d) shall continue to apply through final disposition of any adversary adjudication
initiated before the date of repeal, was repealed by Pub. L. 99–80, §6(b)(2), Aug. 5, 1985, 99
Stat. 186.
EFFECTIVE DATE OF 1966 AMENDMENT
Pub. L. 89–507, §3, July 18, 1966, 80 Stat. 308, provided that: “These amendments
[amending this section and section 2520 of this title] shall apply only to judgments entered in
actions filed subsequent to the date of enactment of this Act [July 18, 1966]. These
amendments shall not authorize the reopening or modification of judgments entered prior to
the enactment of this Act.”
REVIVAL OF PREVIOUSLY REPEALED PROVISIONS
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For revival of subsec. (d) of this section effective on or after Aug. 5, 1985, as if it had not
been repealed by section 204(c) of Pub. L. 96–481, and repeal of section 204(c) of Pub. L.
96–481, see section 6 of Pub. L. 99–80, set out as a note under section 504 of Title 5,
Government Organization and Employees.
SAVINGS PROVISION
Pub. L. 96–481, title II, §206, Oct. 21, 1980, 94 Stat. 2330, as amended by Pub. L. 99–80,
§3, Aug. 5, 1985, 99 Stat. 186, provided that:
“(a) Except as provided in subsection (b), nothing in section 2412(d) of title 28, United States
Code, as added by section 204(a) of this title, alters, modifies, repeals, invalidates, or
supersedes any other provision of Federal law which authorizes an award of such fees and
other expenses to any party other than the United States that prevails in any civil action
brought by or against the United States.
“(b) Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an
award of fees and other expenses under section 2412(d) of title 28, United States Code. Section
206(b)(2) of the Social Security Act shall not apply with respect to any such award but only
if, where the claimant's attorney receives fees for the same work under both section 206(b)
of that Act and section 2412(d) of title 28, United States Code, the claimant's attorney refunds to
the claimant the amount of the smaller fee.”
AUTHORITY OF COURT OF APPEALS FOR VETERANS CLAIMS TO AWARD FEES
UNDER EQUAL ACCESS TO JUSTICE ACT FOR NON-ATTORNEY
PRACTITIONERS.
Pub. L. 107–330, title IV, §403, Dec. 6, 2002, 116 Stat. 2833, provided that: “The authority
of the United States Court of Appeals for Veterans Claims to award reasonable fees and
expenses of attorneys under section 2412(d) of title 28, United States Code, shall include
authority to award fees and expenses, in an amount determined appropriate by the United
States Court of Appeals for Veterans Claims, of individuals admitted to practice before the
Court as non-attorney practitioners under subsection (b) or (c) of Rule 46 of the Rules of
Practice and Procedure of the United States Court of Appeals for Veterans Claims.”
NONLIABILITY OF JUDICIAL OFFICERS FOR COSTS
Pub. L. 104–317, title III, §309(a), Oct. 19, 1996, 110 Stat. 3853, provided that:
“Notwithstanding any other provision of law, no judicial officer shall be held liable for any
costs, including attorney's fees, in any action brought against such officer for an act or
omission taken in such officer's judicial capacity, unless such action was clearly in excess of
such officer's jurisdiction.”
FEE AGREEMENTS
Pub. L. 102–572, title V, §506(c), Oct. 29, 1992, 106 Stat. 4513, provided that: “Section
5904(d) of title 38, United States Code, shall not prevent an award of fees and other expenses
under section 2412(d) of title 28, United States Code. Section 5904(d) of title 38, United States Code,
shall not apply with respect to any such award but only if, where the claimant's attorney
receives fees for the same work under both section 5904 of title 38, United States Code, and
section 2412(d) of title 28, United States Code, the claimant's attorney refunds to the claimant the
amount of the smaller fee.”
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
____________________________________
)
SHANNON L. MCLAUGHLIN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 1:11-cv-11905
) Judge Richard G. Stearns
LEON PANETTA, et al., )
)
Defendants. )
____________________________________)
NOTICE TO THE COURT
Defendants United States of America, Secretary of Defense Leon Panetta, Attorney
General Eric Holder, and Secretary of Veterans Affairs Eric Shinseki, by their undersigned
counsel, hereby notify the Court and the parties that the Department of Justice will not defend
the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, and
Sections 101(3) and 101(31) of Title 38 of the United States Code under the equal protection
component of the Fifth Amendment, for the reasons explained in the attached letter to the Court
from Tony West, Assistant Attorney General for the Civil Division, dated February 21, 2012.
The reasons cited in Assistant Attorney General West’s letter are further explained in the letter
from the Attorney General to The Honorable John A. Boehner, Speaker of the House, dated
February 17, 2012, which is attached thereto. The Attorney General has informed Members of
Congress of this decision pursuant to 28 U.S.C. § 530D(a)(1)(B)(ii), so that Members who wish
to defend Section 3 of DOMA and 38 U.S.C. §§ 101(3) and (31) may pursue that option.
Dated: February 21, 2012 Respectfully Submitted,
TONY WEST
Assistant Attorney General
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CARMEN M. ORTIZ
United States Attorney
ARTHUR R. GOLDBERG
Assistant Deputy Director
/s/ Jean Lin
JEAN LIN
Senior Trial Counsel
U.S. Department of Justice
Civil Division
Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Phone: (202) 514-3716
Fax: (202) 616-8470
email: jean.lin@usdoj.gov
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CERTIFICATE OF SERVICE
I certify that on February 21, 2012, I filed the foregoing Notice to the Court using the
CM/ECF system; and that the attorneys for the parties in this case as listed below are registered
CM/ECF users:
Ian McClatchey, Esq.
IMcClatchey@Chadbourne.com
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza
New York, NY 10112
Abbe David Lowell, Esq.
ADLowell@Chadbourne.com
Christopher D. Man
CMan@Chadbourne.com
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., NW
Washington, DC 20036
John M. Goodman, Esq.
JGoodman@SLDN.org
David McKean
DMcKean@SLDN.org
SERVICEMEMBERS LEGAL DEFENSE NETWORK
Post Office Box 65301
Washington, DC 20035
_/s/__Jean Lin____________
Jean Lin
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
____________________________________
)
SHANNON L. MCLAUGHLIN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 1:11-cv-11905
) Judge Richard G. Stearns
LEON PANETTA, et al., )
)
Defendants. )
____________________________________)
AMENDED NOTICE TO THE COURT
Defendants United States of America, Secretary of Defense Leon Panetta, Attorney
General Eric Holder, and Secretary of Veterans Affairs Eric Shinseki, by their undersigned
counsel, hereby notify this Court that their Notice to the Court (ECF No. 28), filed on February
21, 2012, inadvertently failed to attach one additional letter from the Attorney General to The
Honorable John A. Boehner, Speaker of the U.S. House of Representatives, dated February 23,
2011, which is now attached thereto. Defendants regret the error.
Dated: February 22, 2012 Respectfully Submitted,
TONY WEST
Assistant Attorney General
CARMEN M. ORTIZ
United States Attorney
ARTHUR R. GOLDBERG
Assistant Deputy Director
/s/ Jean Lin
JEAN LIN
Senior Trial Counsel
U.S. Department of Justice
Civil Division
Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Case l:ll-cv-ll905-RGS Document 29 Filed 02/22/l2 Page l of 3
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Phone: (202) 514-3716
Fax: (202) 616-8470
email: jean.lin@usdoj.gov
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CERTIFICATE OF SERVICE
I certify that on February 22, 2012, I filed the foregoing Amended Notice to the Court
using the CM/ECF system; and that the attorneys for the parties in this case as listed below are
registered CM/ECF users:
Ian McClatchey, Esq.
IMcClatchey@Chadbourne.com
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza
New York, NY 10112
Abbe David Lowell, Esq.
ADLowell@Chadbourne.com
Christopher D. Man
CMan@Chadbourne.com
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., NW
Washington, DC 20036
John M. Goodman, Esq.
JGoodman@SLDN.org
David McKean
DMcKean@SLDN.org
SERVICEMEMBERS LEGAL DEFENSE NETWORK
Post Office Box 65301
Washington, DC 20035
_/s/__Jean Lin____________
Jean Lin
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United States Court of Appeals
For the First Circuit

No. 14-1035
MAJ SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC VICTORIA A.
HUDSON; MONIKA POXON; COL STEWART BORNHOFT; STEPHEN MCNABB; LT
GARY C. ROSS; DAN SWEZY; CPT STEVE M. HILL; JOSHUA SNYDER; A1C DANIEL
HENDERSON; JERRET HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN;
CPT JOAN DARRAH; JACQUELINE KENNEDY

Plaintiffs - Appellants

v.

CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, JR., in
his official capacity as Attorney General; ERIC K. SHINSEKI, in his official capacity as
Secretary of Veterans Affairs; UNITED STATES

Defendants - Appellees

APPELLEE’S BRIEFING NOTICE
Issued: May 15, 2014

Appellee’s brief must be filed by June 18, 2014.
The deadline for filing appellant’s reply brief will run from service of appellee’s brief in
accordance with Fed. R. App. P. 31 and 1st Cir. R. 31.0. Parties are advised that extensions of
time are not normally allowed without timely motion for good cause shown.
Presently, it appears that this case may be ready for argument or submission at the
coming September, 2014 session.
The First Circuit Rulebook, which contains the Federal Rules of Appellate Procedure,
First Circuit Local Rules and First Circuit Internal Operating Procedures, is available on the
court’s website at www.ca1.uscourts.gov. Please note that the court’s website also contains tips
on filing briefs, including a checklist of what your brief must contain.
Failure to file a brief in compliance with the federal and local rules will result in the
issuance of an order directing the party to file a conforming brief and could result in the
appellee not being heard at oral argument. See 1st Cir. R. 3 and 45.
Case: 14-1035 Document: 00116689170 Page: 1 Date Filed: 05/15/2014 Entry ID: 5824113
Margaret Carter, Clerk

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
John Joseph Moakley
United States Courthouse
1 Courthouse Way, Suite 2500
Boston, MA 02210
Case Manager: Melinda Asiamah - (617) 748-4214


cc:
H. Christopher Bartolomucci
Dina Michael Chaitowitz
John M. Goodman
Jean Lin
Abbe David Lowell
Christopher Dowden Man
Ian M. McClatchey
Michael E. Robinson
Michael Jay Singer

Case: 14-1035 Document: 00116689170 Page: 2 Date Filed: 05/15/2014 Entry ID: 5824113

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