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Case 5:13-cv-00077-MFU-RSB Document 145 Filed 10/29/14 Page 1 of 17 Pageid#: 2104

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
JOANNE HARRIS and JESSICA DUFF, and
CHRISTY BERGHOFF and VICTORIA KIDD,
on behalf of themselves and all others similarly
situated,

Plaintiffs,
v.
JANET M. RAINEY, in her official capacity as
State Registrar of Vital Records; THOMAS E.
ROBERTS, in his official capacity as Staunton
Circuit Court Clerk,
Defendants.

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Civil Action No. 5:13-cv-00077-MFU-RSB

BRIEF IN SUPPORT OF
DEFENDANT RAINEYS MOTION TO DISMISS AS MOOT,
AND IN OPPOSITION TO PLAINTIFFS MOTION FOR ENTRY OF JUDGMENT

Mark R. Herring
Attorney General of Virginia
Rhodes B. Ritenour, VSB 71406
Deputy Attorney General
rritenour@oag.state.va.us
Allyson K. Tysinger, VSB 41982
Senior Assistant Attorney General
atysinger@oag.state.va.us
Catherine Crooks Hill, VSB 43505
Senior Assistant Attorney General
cchill@oag.state.va.us

Stuart A. Raphael, VSB 30380


Solicitor General
sraphael@oag.state.va.us
Trevor S. Cox, VSB 78396
Deputy Solicitor General
tcox@oag.state.va.us
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile

Counsel for Defendant Janet M. Rainey

October 29, 2014

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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
ISSUE PRESENTED ...................................................................................................................... 1
STATEMENT OF THE CASE....................................................................................................... 1
ARGUMENT .................................................................................................................................. 5
I.

The now-final judgment in Bostic, and the Commonwealths enforcement of that


judgment, render this case moot. .........................................................................................5

II.

Because the case is moot, the Harris Class is not entitled to attorneys fees in this
action. ...................................................................................................................................8

CONCLUSION ............................................................................................................................. 11
CERTIFICATE OF SERVICE ..................................................................................................... 12
EXHIBITS
1.

Judgment, Bostic v. Rainey, No. 2:13-cv-395 (E.D. Va. Feb. 24, 2014) (ECF No. 139).

2.

Statement of Attorney General Herring on marriage equality in Virginia (Oct. 6, 2014),


http://www.oag.state.va.us/index.php/media-center/news-releases/341-october-6statement-of-attorney-general-herring-on-marriage-equality-in-virginia.

3.

Governor McAuliffe Statement on Supreme Courts Gay Marriage Decision (Oct. 6,


2014), https://governor.virginia.gov/newsroom/newsarticle?articleId=6776.

4.

Executive Order No. 30: Marriage Equality in the Commonwealth of Virginia (Oct. 7,
2014), https://governor.virginia.gov/executive-actions/executive-orders/eo-30/.

5.

McAuliffe Administration to Local Divisions of Social Services: Same-Sex Spouses can


now Legally Adopt (Oct. 10, 2014),
https://governor.virginia.gov/newsroom/newsarticle?articleId=6827.

6.

Declaration of Thomas E. Roberts, Clerk of Court.

7.

Consent Order, No. 2:13cv395, Bostic v. Rainey (E.D. Va. Oct. 21, 2014) (ECF. No.
156).

ii

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TABLE OF AUTHORITIES
Page
Cases
Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014),
affd sub nom. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014),
cert. denied, 2014 U.S. LEXIS 6054 (U.S. Oct. 6, 2014) ..................................................... 9, 11
Bostic v. Rainey,
970 F. Supp. 2d 456 (E.D. Va. 2014),
affd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014),
cert. denied sub nom Rainey v. Bostic, No. 14-153, 2014 U.S. LEXIS 6053 (U.S. Oct. 6,
2014),
Schaefer v. Bostic, No. 14-225, 2014 U.S. LEXIS 6405 (U.S. Oct. 6, 2014),
McQuigg v. Bostic, No. 14-251, 2014 U.S. LEXIS 6316 (U.S. Oct. 6, 2014) ................... passim
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014),
cert. denied sub nom Rainey v. Bostic, No. 14-153, 2014 U.S. LEXIS 6053 (U.S. Oct. 6,
2014),
Schaefer v. Bostic, No. 14-225, 2014 U.S. LEXIS 6405 (U.S. Oct. 6, 2014),
McQuigg v. Bostic, No. 14-251, 2014 U.S. LEXIS 6316 (U.S. Oct. 6, 2014) ............................ 3
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept of Health & Human Res.,
532 U.S. 598 (2001) .................................................................................................................... 8
Carpenter v. United States DOJ,
No. 7:05CV00491, 2006 U.S. Dist. LEXIS 24282 (W.D. Va. Apr. 25, 2006),
adopted, 2006 U.S. Dist. LEXIS 29792 (W.D. Va. May 12, 2006)........................................ 6, 7
Diamond v. Charles,
476 U.S. 54 (1986) ...................................................................................................................... 9
Fla. Assn of Rehab. Facilities, Inc. v. Fla. Dept of Health & Rehab. Servs.,
225 F.3d 1208 (11th Cir. 2000) ................................................................................................... 5
Giovanni Carandola, Ltd. v. City of Greensboro,
258 F. Appx 512 (4th Cir. 2007)................................................................................................ 9
Lewis v. Contl Bank Corp.,
494 U.S. 472 (1990) .............................................................................................................. 9, 11
McQuigg v. Bostic,
No. 14-251, 2014 U.S. LEXIS 6316 (U.S. Oct. 6, 2014) ............................................................ 3
N. Va. Womens Med. Ctr. v. Balch,
617 F.2d 1045 (4th Cir. 1980) ..................................................................................................... 7

iii

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N.C. Right to Life, Inc. v. Leake,


344 F.3d 418 (4th Cir. 2003),
vacated and remanded on other grounds, 541 U.S. 1007 (2004) ............................................... 5
Norfolk S. Ry. Co. v. City of Alexandria,
608 F.3d 150 (4th Cir. 2010) ................................................................................................... 5, 6
PDK Labs. Inc. v. DEA,
362 F.3d 786 (D.C. Cir. 2004) .................................................................................................... 6
Phillips v. McLaughlin,
854 F.2d 673 (4th Cir. 1988) ....................................................................................................... 7
Rainey v. Bostic,
No. 14-153, 2014 U.S. LEXIS 6053 (U.S. Oct. 6, 2014) ............................................................ 3
Rhodes v. Stewart,
488 U.S. 1 (1988) .................................................................................................................... 8, 9
S1 v. State Bd. of Educ.,
6 F.3d 160 (4th Cir.),
vacated, 21 F.3d 49 (4th Cir. 1993) ........................................................................................ 8, 9
Schaefer v. Bostic,
No. 14-225, 2014 U.S. LEXIS 6405 (U.S. Oct. 6, 2014) ............................................................ 3
Schindler v. Deal,
1:10-CV-4012, 2012 WL 1110082 (N.D. Ga. Mar. 30, 2012).................................................... 7
Telco Commcns, Inc. v. Carbaugh,
885 F.2d 1225 (4th Cir. 1989) ................................................................................................. 5, 7
United States v. Windsor,
133 S. Ct. 2675 (2013) .............................................................................................................. 10
Statutes
42 U.S.C. 1988 ............................................................................................................................. 8
Defense of Marriage Act, 3, 1 U.S.C. 7 .................................................................................... 9
Constitutional Provisions
U.S. Const. amend. XIV ............................................................................................................. 1, 2
U.S. Const. art. III ....................................................................................................................... 7, 9
Other Authorities
Executive Order No. 30: Marriage Equality in the Commonwealth of Virginia (Oct. 7, 2014),
https://governor.virginia.gov/executive-actions/executive-orders/eo-30/ ................................... 4
Governor McAuliffe Statement on Supreme Courts Gay Marriage Decision (Oct. 6, 2014),
https://governor.virginia.gov/newsroom/newsarticle?articleId=6776 ........................................ 4
Markus Schmidt, Same-sex couples marry as the unions become legal in Virginia, Richmond
Times Dispatch (Oct. 6, 2014), available at http://www.timesdispatch.com/u-s-supreme-courtpaves-way-for-gay-marriage-in/article_b69318d2-ad92-5e33-a276-8da57520ef04.html .......... 3
iv

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McAuliffe Administration to Local Divisions of Social Services: Same-Sex Spouses can now
Legally Adopt (Oct. 10, 2014),
https://governor.virginia.gov/newsroom/newsarticle?articleId=6827 ........................................ 4
Statement of Attorney General Herring on marriage equality in Virginia (Oct. 6, 2014),
http://www.oag.state.va.us/index.php/media-center/news-releases/341-october-6-statement-ofattorney-general-herring-on-marriage-equality-in-virginia. ....................................................... 3

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ISSUE PRESENTED
When a controlling federal court declares a State law facially unconstitutional, it moots
other lawsuits seeking to invalidate the same law. The Fourth Circuit affirmed the district
courts decision in Bostic v. Rainey, declaring Virginias same-sex-marriage ban facially
unconstitutional and enjoining its enforcement. When the mandate issued, Defendants here
immediately obeyed it. Although the Harris Class seeks to duplicate the judgment in Bostic,
must this case be dismissed as moot?
STATEMENT OF THE CASE
Plaintiffs in this case, the Harris Class, seek a declaratory judgment that Virginias laws
banning marriage between same-sex couples, and refusing to recognize same-sex marriages
validly celebrated in other jurisdictions, violate the Due Process and Equal Protection Clauses of
the Fourteenth Amendment. 1 They also seek to permanently enjoin Defendants from enforcing
those laws. 2 Defendants remaining in this case are Janet Rainey, in her official capacity as State
Registrar of Vital Records, and Thomas E. Roberts, in his official capacity as the Clerk of the
Staunton Circuit Court. This case was commenced two weeks after Bostic v. Rainey was filed in
the Eastern District of Virginia, seeking the same relief. 3
In January 2014, Virginia Attorney General Mark R. Herring filed a notice of change in
legal position in Bostic 4 and in this case. 5 The Attorney General concluded that Virginias
1

Compl. at 30 (ECF No. 1).

Id.

No. 2:13-cv-395 (E.D. Va. filed July 18, 2013).

Notice of Change in Legal Position by Defendant Janet M. Rainey, No. 2:13-cv-395, Bostic v.
Rainey (E.D. Va. Jan. 23, 2014) (ECF No. 96).
5

Notice of Change in Legal Position by Defendant Janet M. Rainey, filed Jan. 27, 2014 (ECF
No. 110).
1

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same-sex-marriage ban violated the Fourteenth Amendment to the United States Constitution; he
further informed the Court that the State Registrar would continue to enforce Virginias ban until
a definitive ruling could be obtained from the judicial branch. 6 Two circuit court clerks in Bostic
continued to defend the validity of Virginias ban. In this case, however, Clerk Roberts took no
position on its constitutionality. 7
On February 14, 2014, the district court in Bostic issued a memorandum opinion
concluding that Virginias marriage ban is facially unconstitutional and enjoining the
Commonwealth from enforcing it. 8 The Bostic court entered judgment on February 24, 2014
(attached as Exhibit 1), memorializing both its declaratory judgment of facial unconstitutionality
and its permanent injunction against, among others, the officers, agents, and employees of the
Commonwealth of Virginia including the State Registrar of Vital Records. 9 The court stayed
the judgment pending appeal. 10 The two clerks and Rainey filed notices of appeal, and the
parties agreed to an expedited schedule for consideration by the United States Court of Appeals
for the Fourth Circuit. The case there was styled Bostic v. Schaefer.
On March 10, 2014, the Harris Class from this case was granted leave by the Fourth
Circuit to intervene in Bostic v. Schaefer. On March 31, this Court stayed further proceedings

Id.

Answer of Defendant Thomas E. Roberts 17, 20, 22, 23 (ECF No. 104).

Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014), affd sub nom. Bostic v. Schaefer, 760
F.3d 352 (4th Cir. 2014), cert. denied sub nom Rainey v. Bostic, No. 14-153, 2014 U.S. LEXIS
6053 (U.S. Oct. 6, 2014), Schaefer v. Bostic, No. 14-225, 2014 U.S. LEXIS 6405 (U.S. Oct. 6,
2014), McQuigg v. Bostic, No. 14-251, 2014 U.S. LEXIS 6316 (U.S. Oct. 6, 2014).
9

Judgment, Bostic v. Rainey, No. 2:13-cv-395 (E.D. Va. Feb. 24, 2014) (ECF No. 139) (Ex. 1).

10

Id.
2

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here. 11 The Court observed that Plaintiffs had represented that their main goal was to have their
day in court and that Plaintiffs have that opportunity in the court of appeals in Bostic. 12
On July 28, 2014, the Fourth Circuit affirmed the district courts ruling in Bostic. 13 On
October 6, 2014, the Supreme Court denied all petitions for certiorari. 14 At 1 p.m. that day, the
Fourth Circuit issued its mandate, giving effect to the permanent injunction issued by the district
court in Bostic.
The decision in Bostic was immediately welcomed by the Attorney General 15 and
instantly put into effect by the Commonwealth of Virginia. As soon as the mandate issued,
circuit court clerks throughout Virginia began issuing marriage licenses to same-sex applicants, 16
including Plaintiffs Joanne Harris and Jessica Duff. 17 Governor McAuliffe also immediately
announced that the Executive Branch would diligently implement the judgment:
On issues ranging from recognizing same-sex marriages to extending health
care benefits to same-sex spouses of state employees, Virginia is already well11

Mem. Op. (ECF No. 137); Order (ECF No. 138).

12

Mem. Op. at 1 (ECF No. 137).

13

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied sub nom Rainey v. Bostic, No.
14-153, 2014 U.S. LEXIS 6053 (U.S. Oct. 6, 2014), Schaefer v. Bostic, No. 14-225, 2014 U.S.
LEXIS 6405 (U.S. Oct. 6, 2014), McQuigg v. Bostic, No. 14-251, 2014 U.S. LEXIS 6316 (U.S.
Oct. 6, 2014).
14

Rainey v. Bostic, No. 14-153, 2014 U.S. LEXIS 6053 (U.S. Oct. 6, 2014); Schaefer v. Bostic,
No. 14-225, 2014 U.S. LEXIS 6405 (U.S. Oct. 6, 2014); McQuigg v. Bostic, No. 14-251, 2014
U.S. LEXIS 6316 (U.S. Oct. 6, 2014).
15

Statement of Attorney General Herring on marriage equality in Virginia (Oct. 6, 2014) (Ex. 2),
http://www.oag.state.va.us/index.php/media-center/news-releases/341-october-6-statement-ofattorney-general-herring-on-marriage-equality-in-virginia.
16

See Markus Schmidt, Same-sex couples marry as the unions become legal in Virginia,
Richmond Times Dispatch (Oct. 6, 2014), available at http://www.timesdispatch.com/u-ssupreme-court-paves-way-for-gay-marriage-in/article_b69318d2-ad92-5e33-a2768da57520ef04.html.
17

Declaration of Thomas E. Roberts, Clerk of Court (Ex. 6).


3

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prepared to implement this historic decision. Going forward we will act


quickly to continue to bring all of our policies and practices into compliance so
that we can give marriages between same-sex partners the full faith and credit
they deserve. 18
The next day, October 7, the Governor issued Executive Order 30, directing that all entities in
the executive branch, including agencies, authorities, commissions, departments, and all
institutions of higher education further evaluate all policies and take all necessary and
appropriate legal measures to comply with this decision. 19 The Virginia Department of Social
Services, for instance, promptly notified local social services departments that Virginia now
recognizes any legally-performed marriage (same-sex or opposite-sex), whether performed in
Virginia or another state when determining the appropriateness of a foster or adoptive
home. 20
On October 16, 2014, the Harris Class filed the present motion. They request entry of a
final judgment in this case, largely copied from the final judgment in Bostic, that would declare
Virginias same-sex-marriage ban facially unconstitutionalagainand that would enjoin
Rainey and Clerk Roberts from enforcing Virginias same-sex-marriage ban, despite that they
have already complied (and are complying) with the now-final judgment in Bostic.

18

Governor McAuliffe Statement on Supreme Courts Gay Marriage Decision (Oct. 6, 2014)
(Ex. 3), https://governor.virginia.gov/newsroom/newsarticle?articleId=6776.
19

Executive Order No. 30: Marriage Equality in the Commonwealth of Virginia (Oct. 7, 2014)
(Ex. 4), https://governor.virginia.gov/executive-actions/executive-orders/eo-30/.
20

McAuliffe Administration to Local Divisions of Social Services: Same-Sex Spouses can now
Legally Adopt (Oct. 10, 2014) (Ex. 5),
https://governor.virginia.gov/newsroom/newsarticle?articleId=6827.
4

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ARGUMENT
I.

The now-final judgment in Bostic, and the Commonwealths enforcement of that


judgment, render this case moot.
When events subsequent to the commencement of a lawsuit create a situation in which

the court can no longer give the plaintiff meaningful relief, the case is moot and must be
dismissed. 21 For example, in Telco Communications, Inc. v. Carbaugh, 22 the Fourth Circuit
held that the plaintiffs challenge to a Virginia statute became moot once Virginia officials
announced that they would no longer enforce it in light of a U.S. Supreme Court decision
invalidating a similar statute in North Carolina. The Fourth Circuit said that no reasonable
expectation exists that Virginia will seek to enforce the statute. 23 Similarly, in N.C. Right to
Life, Inc. v. Leake, 24 the Fourth Circuit held that a plaintiffs lawsuit to invalidate a North
Carolina statute became moot when an earlier Fourth Circuit decision invalidated the same
statute. 25
As in Telco and N.C. Right to Life, the Harris Classs challenge to Virginias same-sexmarriage ban is moot in light of the now-final judgment in Bostic and the prompt action by
Virginias Executive Branch to implement it. Indeed, Plaintiffs Harris and Duff were issued
their marriage license the same day that certiorari was denied. As then-Magistrate Judge

21

Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010) (quoting Fla. Assn
of Rehab. Facilities, Inc. v. Fla. Dept of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir.
2000)).
22

885 F.2d 1225 (4th Cir. 1989).

23

Id. at 1231.

24

344 F.3d 418 (4th Cir. 2003), vacated and remanded on other grounds, 541 U.S. 1007 (2004).

25

344 F.3d at 435.


5

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Urbanski once put it, the plaintiffs requested relief has been granted. There is nothing left for
the court to do at this time. 26
The Harris Class understandably seeks vindication for its work in this case, but that wish
cannot render the case justiciable. The Fourth Circuit has made clear that although the parties
may desire that we render an opinion to satisfy their demand for vindication or curiosity about
whos in the right and whos in the wrong, we may only decide cases that matter in the real
world. 27 What then-D.C. Circuit Judge John Roberts said about judicial restraint in general
applies specifically to this situation: if it is not necessary to decide more, it is necessary not to
decide more. 28
Plaintiffs cannot justify another federal-court judgment that duplicates Bostic on the
theory that the Harris Class is not formally included as a party to [the Bostic] injunction, and
thus arguably does not currently have standing to enforce the injunction through contempt
proceedings if the Attorney General or one of his successors in office stops complying. 29 That
misses the significance of Bostic. The judgment in Bostic that Virginias same-sex-marriage ban
is facially unconstitutional operates throughout the Commonwealth. And because Virginias

26

Carpenter v. United States DOJ, No. 7:05CV00491, 2006 U.S. Dist. LEXIS 24282, at *7
(W.D. Va. Apr. 25, 2006) (Urbanski, M.J.) (holding that State prisoners habeas claim was
mooted when he was transferred to federal prison), adopted, 2006 U.S. Dist. LEXIS 29792
(W.D. Va. May 12, 2006).
27

Norfolk S. Ry., 608 F.3d at 161 (quoting Wyoming v. U.S. Dept of Interior, 587 F.3d 1245,
1250 (10th Cir. 2009)).
28

PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part
and concurring in the judgment) (emphasis added).
29

Plfs. Mot. to Lift Stay and Enter J. at 6 (ECF No. 140).


6

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same-sex-marriage ban has been declared unconstitutional, there is no possibility that it will be
enforced against Plaintiffs, and there is no additional relief that this Court can provide. 30
Moreover, the Fourth Circuit has made clear that possible future collateral legal
consequences of a judgment cannot suffice to establish a justiciable controversy under Article
III. 31 Even assuming for arguments sake that the parties might have to expend resources
litigating anew if a future Virginia Attorney General attempts to undo what this one has done,
that hypothetical, future possibility does not make the issue justiciable now. 32 Such remote
possibilities are simply not sufficient to generate an immediate case or controversy. 33
Important considerations of federalism also weigh against the Harris Classs request.
The Fourth Circuit emphasized in Telco Communications that respect for the role of the states
and for the limits of the federal adjudicative function to live cases and controversies counsels
against the issuance of unnecessary injunctions against state officials. 34 That case became
moot, and an injunction became unnecessary, when Virginia ceased to enforce a statute that was
similar to one declared unconstitutional by the Supreme Court. 35 Because Virginia officials
there showed no inclination to enforce the law following the Supreme Courts decision, the
Fourth Circuit decline[d] to indulge any presumption with respect to their conduct other than

30

Schindler v. Deal, 1:10-CV-4012, 2012 WL 1110082, at *3 (N.D. Ga. Mar. 30, 2012).

31

Phillips v. McLaughlin, 854 F.2d 673, 677 (4th Cir. 1988).

32

Id.

33

Carpenter, 2006 U.S. Dist. LEXIS 24282, at *6-7 (emphasis added).

34

885 F.2d at 1231 (emphasis added).

35

Id.; accord N. Va. Womens Med. Ctr. v. Balch, 617 F.2d 1045, 1049 (4th Cir. 1980) (holding
that suit against Commonwealths Attorneyfor failing to prosecute trespassers interrupting
abortion-clinic accesswas mooted by his representation at oral argument that the policy against
prosecution was no longer in effect).
7

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one of good faith. 36 There is no justification for less respectful treatment of Virginias good
faith here, particularly given the now-final judgment in Bostic, the Attorney Generals position
agreeing that Virginias same-sex-marriage ban was unconstitutional, and the speed with which
Virginias Executive Branch has conscientiously implemented the ruling in Bostic. Given
Virginias proven good faith here, one declaratory judgment and statewide injunction alone is
enough.
II.

Because the case is moot, the Harris Class is not entitled to attorneys fees in this
action.
In asking for a new injunction here, the Harris Class makes clear what this motion is

really about: it seeks formal legal relief so it can be considered a prevailing party entitled to
attorneys fees under 42 U.S.C. 1988. 37 It is true, as the Supreme Court has squarely held, that
in the absence of relief, a party cannot meet the threshold requirement of 1988 that he prevail,
and in consequence he is not entitled to an award of attorneys fees. 38 Formal legal relief is
required because prevailing party under 1988 means one who has been awarded some relief
by the court. 39 The Supreme Court thus has held, in agreement with the Fourth Circuits
longer-standing rule, that a plaintiff is not entitled to recover attorneys fees when his actions
have acted merely as a catalyst for change. 40 As Judge Wilkinson put it: For individuals to

36

Id.

37

Pls. Mot. to Lift Stay and Enter J. at 7 (ECF No. 140).

38

Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam).

39

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept of Health & Human Res., 532 U.S. 598,
603 (2001).
40

Id. at 600, 609; S1 v. State Bd. of Educ., 6 F.3d 160, 170-72 (4th Cir.) (Wilkinson, J.,
dissenting), vacated, 21 F.3d 49, 51 (4th Cir. 1993) (en banc) (adopting Judge Wilkinsons
dissenting opinion).
8

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recover fees, they must prevail in their status as parties, not in their role as agents of reform.
And to prevail for 1988 purposes, parties must succeed on the merits of a claim. 41
Accordingly, the Supreme Court has held repeatedly that 1983 plaintiffs whose cases
become moot before judgment are not prevailing parties entitled to recover attorneys fees under
1988. 42 The Court put it bluntly in Lewis v. Continental Bank Corp., saying that a plaintiffs
interest in fees is, of course, insufficient to create an Article III case or controversy where none
exists on the merits of the underlying claim. 43 The Court admonished lower courts to be sure
that mooted litigation is not pressed forward, and unnecessary judicial pronouncements on even
constitutional issues obtained, solely in order to obtain reimbursement of sunk costs. 44
Consistent with that directive, the en banc Fourth Circuit, in S-1 v. State Board of Education,
discussed above, vacated the trial courts entry of attorneys fees under 1988 after concluding
that the case had become moot by the time of the district-court award. 45
One notable, recent application of this rule came in Bishop v. United States ex rel.
Holder, 46 when the district court struck down Oklahomas same-sex-marriage ban but dismissed
as moot one couples challenge to the anti-marital-recognition provisions in 3 of the Defense of
41

6 F.3d at 170 (Wilkinson, J., dissenting), adopted, 21 F.3d at 51 (The court adopts as its own
the dissenting panel opinion of Judge Wilkinson.).
42

See Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990); Rhodes, 488 U.S. at 4; see
also Diamond v. Charles, 476 U.S. 54, 70-71 (1986) (But the mere fact that continued
adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does
not mean that the injury is cognizable under Art. III.).
43

494 U.S. 472, 480 (1990) (citation omitted).

44

Id.

45

21 F.3d at 51. Accord Giovanni Carandola, Ltd. v. City of Greensboro, 258 F. Appx 512, 515
(4th Cir. 2007) (the existence of a live controversy concerning attorneys fees cannot save the
underlying claim from mootness).
46

962 F. Supp. 2d 1252, 1271 (N.D. Okla. 2014), affd sub nom. Bishop v. Smith, 760 F.3d 1070
(10th Cir. 2014), cert. denied, 2014 U.S. LEXIS 6054 (U.S. Oct. 6, 2014).
9

Case 5:13-cv-00077-MFU-RSB Document 145 Filed 10/29/14 Page 15 of 17 Pageid#: 2118

Marriage Act 47 (DOMA). DOMA previously had been invalidated by the Supreme Court in
United States v. Windsor, 48 and Bishop held that Windsor mooted that aspect of the lawsuit:
As a general rule, where a law has been declared unconstitutional by a
controlling court, pending requests for identical declaratory relief become
moot . . . . Because Section 3 [of DOMA] has already been declared
unconstitutional by the Supreme Court, an identical declaration by this Court
will have no further impact on the United States actions. 49
The court then dismissed the couples request for attorneys fees, ruling that the possibility of
recovering attorneys fees or costs is not a sufficient reason to enter judgment in an otherwise
moot case. 50 The couple was not reimbursed for their attorneys fees, despite having fought
against DOMA for nearly ten years. 51
The Harris Class has not informed us whether it plans to petition for attorneys fees in
Bostic for its intervention on appeal there. We take Plaintiffs at their word in their representation
to the Fourth Circuit that, [i]n the event the Harris Class ultimately prevails and ultimately
decides to file a fee petition based on litigation at the court of appeals, the Attorney General is
always free at that point to make whatever arguments it wants with respect to whether such fees
are appropriate. 52 Judge Arenda Wright Allen recently entered a consent order in Bostic
allowing parties until November 21, 2014 to submit a fee claim. 53
47

1 U.S.C. 7.

48

133 S. Ct. 2675 (2013).

49

962 F. Supp. 2d at 1269-70.

50

Id. at 1271.

51

Id. at 1259 (noting the Barton couple filed their lawsuit in late 2004).

52

Reply in Further Support of Harris Classs Motion to Intervene on Appeal on the Side of
Plaintiffs-Appellees and for Leave to File Separate Briefs at 8, Bostic v. Schaefer, 760 F.3d 352
(No. 14-1167) (4th Cir. Mar. 3, 2014) (ECF No. 28).
53

Consent Order, No. 2:13cv395, Bostic v. Rainey (E.D. Va. Oct. 21, 2014) (ECF No. No. 156)
(Ex. 7).
10

Case 5:13-cv-00077-MFU-RSB Document 145 Filed 10/29/14 Page 16 of 17 Pageid#: 2119

Whatever happens with the fee claims in Bostic, however, cases like Lewis, S-1, and
Bishop make clear that the Harris Class is not entitled to recover attorneys fees for its work in
this case, when this case is clearly moot in light of Bostic. Although the Harris Plaintiffs, like
the couple in Bishop, should rightly be commended for their foresight, courage, and
perseverance, 54 that deservingness does not entitle them to attorneys fees here.
CONCLUSION
The Fourth Circuits decision in Bostic, coupled with Virginias diligent enforcement of
the judgment invalidating Virginias same-sex-marriage ban, renders this case moot.
Accordingly, the Court should (1) deny the Harris Classs request for the entry of a duplicative
judgment and (2) dismiss this case as moot.
Respectfully submitted,
JANET M. RAINEY, in her official capacity as State
Registrar of Vital Records

By:

/s/
Stuart A. Raphael, VSB 30380
Solicitor General
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile
sraphael@oag.state.va.us

Mark R. Herring
Attorney General of Virginia
Trevor S. Cox, VSB 78396
Deputy Solicitor General
E-mail: tcox@oag.state.va.us
54

Bishop, 962 F. Supp. 2d at 1272.


11

Case 5:13-cv-00077-MFU-RSB Document 145 Filed 10/29/14 Page 17 of 17 Pageid#: 2120

Rhodes B. Ritenour, VSB 71406


Deputy Attorney General
E-mail: rritenour@oag.state.va.us
Allyson K. Tysinger, VSB 41982
Senior Assistant Attorney General
E-mail: atysinger@oag.state.va.us
Catherine Crooks Hill, VSB 43505
Senior Assistant Attorney General
E-mail: cchill@oag.state.va.us

CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2014, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the counsel of record for Plaintiffs.
By:

/s/

Stuart A. Raphael

12

Case
Case
5:13-cv-00077-MFU-RSB
2:13-cv-00395-AWA-LRL Document
Document145-1
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Filed 02/24/14
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Page 11 of
of 22 PageID#
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2121

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA


Norfolk Division

TIMOTHY B. BOSTIC, etai,


Plaintiffs,
Civil Action No. 2:13-cv-00395-ALWA

JANET M. RAINEY, el ai,


Defendants.

JUDGMENT

THIS ACTION having come before the Court on the parties' respective cross-motions for

summaryjudgment, and the Court having rendered its Opinion and Order of February 13,2014
(Doc. 135), as amended February 14, 2014 (Doc. 136), it is hereby
ORDERED, ADJUDGED AND DECREED that:

1.

Virginia's marriage laws are facially unconstitutional under the Due Process and

Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to the

extent they deny the rights of marriage to same-sex couples or recognition of lawful marriages
between same-sex couples that are validly entered into in other jurisdictions.

2.

The Clerk of the Circuit Court of the City of Norfolk, the Clerk of the Circuit

Court of Prince William County, and their officers, agents, and employees, and the officers,

agents, and employees of the Commonwealth of Virginia including the State Registrar of Vital
Records are hereby ENJOINED from enforcing: Article I, 15-A, of the Constitution of

Virginia; Virginia Code 20-45.2; Virginia Code 20-45.3; and any other Virginia law if and to

Rainey Mot. to Dism. -- Ex. 1

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the extent that it denies to same-sex couples the rights and privileges of marriage that are
afforded to opposite-sex couples.
3.

The effect of this judgment and the injunction set forth above are hereby

STAYED pending final disposition by the United States Court of Appeals for the Fourth Circuit
of the forthcoming appeal.
4.

By agreement of the parties, Plaintiffs' claim for attorneys' fees and costs under

42 U.S.C. 1988 is hereby severed and will be considered by the Court after the final disposition
of the appeal.

This Judgment is FINAL.

Arenda L. Wright All/


United States District Judge

FEB 2 4 2014

Rainey Mot. to Dism. -- Ex. 1

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Rainey Mot. to Dism. -- Ex. 2

Case 5:13-cv-00077-MFU-RSB Document 145-3 Filed 10/29/14 Page 1 of 1 Pageid#: 2124

Rainey Mot. to Dism. -- Ex. 3

Case 5:13-cv-00077-MFU-RSB Document 145-4 Filed 10/29/14 Page 1 of 2 Pageid#: 2125

Rainey Mot. to Dism. -- Ex. 4

Case 5:13-cv-00077-MFU-RSB Document 145-4 Filed 10/29/14 Page 2 of 2 Pageid#: 2126

Rainey Mot. to Dism. -- Ex. 4

Case 5:13-cv-00077-MFU-RSB Document 145-5 Filed 10/29/14 Page 1 of 2 Pageid#: 2127

Rainey Mot. to Dism. -- Ex. 5

Case 5:13-cv-00077-MFU-RSB Document 145-5 Filed 10/29/14 Page 2 of 2 Pageid#: 2128

Rainey Mot. to Dism. -- Ex. 5

Case 5:13-cv-00077-MFU-RSB Document 145-6 Filed 10/29/14 Page 1 of 3 Pageid#: 2129

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
JOANNE HARRIS, et al,
Plaintiffs
v.
ROBERT F. McDONNELL, et al,
Defendants

)
)
)
)
)
)
)
)
)

Civil Action No.: 5:13-cv-77

DECLARATION OF THOMAS E. ROBERTS, CLERK OF COURT


I, Thomas E. Roberts, Clerk of the Circuit Court for the City of Staunton, do state and
declare as follows:
1.

On October, 6, 2014, my office issued a marriage license to Joanne Harris and

Jessica Duff in accordance with the decision of the U.S. Court of Appeals for the Fourth
Circuit declaring Virginias same-sex marriage ban unconstitutional and in compliance with
the injunction enjoining the Commonwealth from enforcing Va. Code 20-45.2 and 20-45.3
and Va. Const. Art.I, 15-A to the extent those laws prohibit a person from marrying
another person of the same gender. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. July 28, 2014),
cert. denied 2014 U.S. LEXIS 6405 (Oct. 6, 2014), order of injunction found in 970 F. Supp.
2d 456, 485 (E.D. Va. Feb. 13, 2014). A certified copy of the license issued to Harris and
Duff is attached hereto as Exhibit A.
LAW OFFICES
TIMBERLAKE, SMITH,
THOMAS & MOSES, P.C.
STAUNTON, VIRGINIA
540/885-1517
fax: 540/885-4537

Rainey Mot. to Dism. -- Ex. 6

Case 5:13-cv-00077-MFU-RSB Document 145-6 Filed 10/29/14 Page 2 of 3 Pageid#: 2130

2.

My office has issued marriage licenses to other same-sex couples since

October 6, 2014.
3.

My continued compliance with the Bostic decision and injunction is not

discretionary, but is mandatory with respect to any "person" who comes before me seeking a
marriage license. I cannot deny a marriage license on the sole basis that the applicants are of
the same gender.
4.

My continued compliance with the Bostic decision and injunction is consistent

with the instructions and forms I have received from Janet M. Rainey, State Registrar of Vital
Records, as well as the Executive Order issued on October 7, 2014, by Terence R. McAuliffe,
Governor of Virginia. Exec. Order No. E0-30 1 I know of no impediments to my continued
future compliance with the decision and injunction in Bostic.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on October Z.o, 2014

https ://governor. virginia.govI executive-actions/executive-orders/ eo-3 01

LAW OFFICES
TIMBERLAKE, SMITH,
THOMAS & MOSES, P.C.
STAUNTON, VIRGINIA

540/885-1517
fax: 540/885-4537

Rainey Mot. to Dism. -- Ex. 6

__

.............Page 3 of 3 Pageid#: 2131


""""TllT..,,.
...... -..-......
Case 5:13-cv-00077-MFU-RSB Document
145-6
Filed10/29/14
~

APPUCATION FOR MARRIAGE LICENSE


~

C'RCVrT COURT FOR CITY OR COU NTY OF

TO BE Al!TAINl!O BY
CLE Ai( OF COURT

CLERKS

NUMBER

STAUNTON
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(t'tt lddlr)

(losr)

LAVERNE

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09061975

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5 . RACE

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(0-12)

12

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I'

JERRY GILBERT HARRIS, JR.


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Y

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17. NUMBER O P'

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;?On. US UAL RESIOeNCE: STREET ADDRESS OR ~l . NUM6EPI

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: 20d . ST ATE (OR FOAEtGN COUNTF(Yl

blank)

VlRGINIA

21. NAM!; OF FATHER

, ~2 . FU LL MAIDEN NAME OF MOTHER

DANIEL HARRISON DUFF, JR.

DONNA FAYE CAMPBELL

WI! l-ll!!FIU!SY MAK~ AP~UCATION TO THE CLERK OF T H E ABOVE MAMEO COU RT F OR A MAARIAOE LICENSE AND SOL EMNLY SWliAF=I THAT ALL Of' TH:
STATEMENTS ABOVE ARE TRVE . w; FV~THt;R MAKE C)ATH TH AT Nf!ITHE,R OF THf; PA~Tl~S NAMED A BOVE WHO ARE TO BE MAFIRIEO 1$ Li!G..l.Lt.Y
lNCOMPETl!:NT. C.U~.N.:C.l.l..M.ABBU;C: . NOr.t . ARE WE A ELATED r o EAC H OTHER TO A PROH I BlTEO DEGREE.. Chapter 3 . litle 20. Cod9 ol Vl19lni::i

WE FURTHeB..JJ.tl.DE.l'l.SIM:ID..ntAT. WlLLFUL.L.Y llND .KH OWINGL..Y.. MAKING . AH.Y_ f

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10. NA.ME OF FATHER

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FIRST
,v. U SUAL RESI DENCE ~ STAEE"l ,-.ot>Aess OR RT. NUMBER
112 LAMBERT STREET

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4. PLACE OF 81RTH (state or ~rgn r;ovnlry_) _ _

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HARRIS:

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SPOUSE

fMl/P>

..:o"'-=e_=-=-7-,-'~~~"--'e'-'-r------------ 20 /

DAY op _ _ _

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REMARKS

CLERK OF COURT OR

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-#

Rainey Mot. to Dism. -- Ex. 6

.. -

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......
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~UTY

--

--

-~

Case
Case
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2:13-cv-00395-AWA-LRL Document
Document145-7
156 Filed
Filed 10/21/14
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Page 11 of
of 11 PageID#
Pageid#:
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2132

UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

TIMOTHY B. BOSTIC, etal,


Plaintiffs,
v.

Civil No. 2:13cv395

JANET M. RAINEY, et al.t


Defendants.

CONSENT ORDER

Upon consideration of the parties' Joint Motion for Entry of a Consent Order Regarding

Applications for Attorney's Fees and Costs (ECF No. 154), it is hereby ORDERED that:
Any prevailing party wishing to file an application for attorney's fees and costs under 42
U.S.C. 1988 shall file such application by November 21, 2014.

Responses to such applications shall be filed by December 22, 2014.


Replies in support of such applications shall be filed by January 6, 2015.
The Clerk is REQUESTED to forward a copy of this Order to all parties.
IT IS SO ORDERED.

October d^2014
Norfolk, Virginia

Arenda L. Wright AWen


United States District Judge

Rainey Mot. to Dism. -- Ex. 7