2:04-cv-08425 #326

Case 2:04-cv-08425-VAP-E Document 326
Filed 01/12/12 Page 1 of 30 Page ID #:9000
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DAN WOODS (SBN: 78638) EARLE MILLER (SBN: 116864) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: emiller@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and LEON E. PANETTA, SECRETARY OF DEFENSE, in his official capacity, Defendants.
Case No. CV 04-8425 VAP (Ex) NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS FEES AND EXPENSES PURSUANT TO (1) THE EQUAL ACCESS TO JUSTICE ACT (28 U.S.C. 2412) AND (2) FED. R. CIV. P. 37; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [DECLARATIONS OF DAN WOODS AND R. CLARKE COOPER FILED CONCURRENTLY HEREWITH] Judge: Date: Time: Ctrm: Hon. Virginia A. Phillips February 27, 2012 2:00 p.m. 2
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PLAINTIFF LOG CABIN REPUBLICANS MOTION FOR ATTORNEYS FEES
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on February 27, 2012, at 2:00 p.m., or as soon thereafter as this matter can be heard, before the Hon. Virginia A. Phillips of the United States District Court for the Central District of California, 3470 Twelfth Street, Riverside, California 92501, Log Cabin Republicans (Log Cabin) will and hereby does move for an award of attorneys fees and expenses, in the amount of $2,090,614.13 in attorneys fees and $35,353.90 in expenses, for a total award of $2,125,968.03 or according to proof, pursuant to the Equal Access To Justice Act, 28 U.S.C. 2412 (the EAJA). PLEASE TAKE FURTHER NOTICE that at the same time and place, Log Cabin will and hereby does move for a separate award of attorneys fees and expenses, in the amount of $2,235,656.00 in attorneys fees and $47,583.64 in expenses, for a total award of $2,283,239.64 or according to proof, pursuant to Fed. R. Civ. P. 37(c). To the extent that any portion of an award the Court makes pursuant to Fed. R. Civ. P. 37(c) duplicates an award the Court may make pursuant to EAJA, Log Cabin disclaims such portion of the EAJA award as would constitute a duplicate recovery. In the event the Court awards Log Cabin attorneys fees and expenses under both EAJA and Fed. R. Civ. P. 37(c), Log Cabin would seek a total net award of $3,550,358.03, or according to proof. This motion is and will be made on the grounds that Log Cabin is the prevailing party on the merits following this Courts judgment entered after trial; that the position of the United States was not substantially justified; and that the government failed to admit, with no reasonable grounds to believe it might prevail, matters of substantial importance to the case which Log Cabin later proved to be true. This motion is and will be based on this Notice of Motion; the Application for Fees and Other Expenses (Form AO 291), Memorandum of Points and -1LOSANGELES 932731 (2K)
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Authorities, and Declarations of Dan Woods and R. Clarke Cooper filed herewith; the pleadings, papers, and records on file herein, and such other and further oral and documentary evidence as may be presented at the hearing. This motion is made following the conference of counsel pursuant to L.R. 73 which took place on December 30, 2011; and pursuant to the stipulation of the parties and order thereon (Docs. 323 and 325) regarding the procedure for hearing of this motion, filed on January 6, 2012, under which the determination of this motion will be made in two stages, the Court first determining whether Log Cabin is entitled to an award of attorneys fees and expenses under EAJA, Fed. R. Civ. P. 37, or both, and thereafter, if it determines that question in the affirmative, setting a schedule for further proceedings regarding the amount of fees and expenses that may be appropriate.
Dated:
January 12, 2012
WHITE & CASE LLP
By:
/s/ Dan Woods Dan Woods Attorneys for Plaintiff Log Cabin Republicans
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TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................... 1 STATEMENT OF FACTS ............................................................................ 2 LOG CABIN IS ENTITLED TO AN AWARD OF FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT .......... 6 A. Log Cabin Is a Prevailing Party and Eligible to Receive an Award of Fees and Expenses ....................................... 7 1. 2. Log Cabin prevailed in its mission to prevent investigations and discharges pursuant to DADT. ......................................... 7 Log Cabin retains its prevailing party status despite mootness because it obtained relief that is now permanent and its victory was not undone by a later ruling on the merits ......................................................................................... 10
The Governments Position Was Not Substantially Justified ........ 12
LOG CABIN IS ENTITLED TO AN AWARD OF ATTORNEYS FEES AND EXPENSES UNDER FED. R. CIV. P. 37(C) ........................ 13 A. B. The Requests for Admission and the Governments Responses.... 14 The Governments Denial of the RFAs was Unreasonable ............ 16 1. The government relied solely on 1993 legislative history, which was contradicted by 2009 statements by military and civilian officials .................................................................. 17 The government failed to independently examine whether DADT actually furthered national security ........................... 19
Log Cabin Is Entitled to Recover All Expenses Incurred from the Time the Government Failed to Admit the RFAs, Through Trial ..................................................................................... 20
SUMMARY STATEMENT OF AMOUNTS CLAIMED ........................ 21 CONCLUSION ............................................................................................. 23
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TABLE OF AUTHORITIES Page(s)
CASES Barry v. Bowen, 825 F.2d 1324 (9th Cir. 1987) ........................................................................... 12 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) .................................. 7, 8 Californians for Alts. To Toxics v. U.S. Forest Serv., 2007 WL 2993132 (E.D. Cal. Oct. 11, 2007) .................................................... 10 Carbonell v. INS, 429 F.3d 894 (9th Cir. 2005) ........................................................................ 7, 8, 9 Diamond State Ins. Co. v. Deardorff, No. 1:10-CV-00004, 2011 WL 2414391 (E.D. Cal. June 8, 2011) ............. 17, 18 Flores v. Shalala, 49 F.3d 562 (9th Cir. 1995) ................................................................................. 6 Foster Poultry Farms, Inc. v. SunTrust Bank, 377 F.Appx 665 (9th Cir. 2010)........................................................................ 19 Herrington v. County of Sonoma, 883 F.2d 739 (9th Cir. 1989) ................................................................................ 9 Holmgren v. State Farm Mut. Auto Ins. Co., 976 F.2d 573 (9th Cir. 1992) .............................................................................. 20 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................................. 2 Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011) ..................................................................5, 12, 21 Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991) .............................................................................. 6
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Marchand v. Mercy Med. Ctr., 22 F.3d 933 (9th Cir. 1994) ....................................................................13, 17, 20 Meinhold v. U.S. Dept of Def., 123 F.3d 1275, amended by 131 F.3d 842 (9th Cir. 1997) ........................... 6, 12 Oregon Natural Desert Association v. Lohn, 522 F. Supp. 2d 1295 (D. Or. 2007)............................................................. 10, 11 Oregon Natural Res. Council v. Madigan, 980 F.2d 1330 (9th Cir. 1992) .............................................................................. 6 Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) .................................... 12 Richard S. v. Dept of Developmental Servs., 317 F.3d 1080 (9th Cir. 2003) ............................................................................ 11 Sampson v. Chater, 103 F.3d 918 (9th Cir. 1996) .............................................................................. 12 Scarborough v. Principi, 541 U.S. 401, 124 S.Ct 1856, 158 L.Ed.2d 674 (2004) ....................................... 6 Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) ...................................... 7 U.S. v. Marolf, 277 F.3d 1156 (9th Cir. 2002) ............................................................................ 13 U.S. v. Real Prop. at 2659 Roundhill Dr., Alamo, Cal., 283 F.3d 1146 (9th Cir. 2002) .............................................................................. 7 United States v. 313.34 Acres of Land, 897 F.2d 1473 (9th Cir. 1989) ............................................................................ 12 Watson v. County of Riverside, 300 F.3d 1092 (9th Cir. 2002) ........................................................................ 9, 11 Witt v. Dept of the Air Force, 527 F.3d 806 (9th Cir. 2008) .............................................................................. 18
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CONSTITUTION First Amendment ...........................................................................................2, 13, 16 Fifth Amendment................................................................................................. 2, 13
STATUTES 10 U.S.C. 654...................................................................................................... 2, 4 10 U.S.C. 654(a)(15) .............................................................................................. 2 10 U.S.C. 654(b)..................................................................................................... 2 28 U.S.C. 2412...............................................................................................passim 28 U.S.C. 2412(d)(1)(A)................................................................................... 6, 12 28 U.S.C 2412(d)(2)(D).......................................................................................... 7 42 U.S.C. 1988.................................................................................................. 9, 11 Dont Ask, Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010) ........................................................ 3
RULES Fed. R. Civ. P. 36............................................................................................... 13, 14 Fed. R. Civ. P. 37............................................................................................... 20, 22 Fed. R. Civ. P. 37(c) ............................................................................................ 1, 13 Fed. R. Civ. P. 37(c)(2).....................................................................................passim
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I. INTRODUCTION On October 12, 2010, this Court entered judgment in favor of Log Cabin Republicans (Log Cabin) finding that former 10 U.S.C. section 654 and its implementing regulations (Dont Ask, Dont Tell or DADT) violated United States servicemembers substantive due process rights under the Fifth Amendment to the United States Constitution and their rights to freedom of speech and to petition the government for redress of grievances guaranteed by the First Amendment. The Court also entered a permanent injunction barring the government from enforcing DADT against any person subject to its jurisdiction or command. During the lengthy litigation that led up to the Courts judgment, the government steadfastly maintained that DADT was constitutional based solely on the legislative history of its adoption in 1993. The governments position in the litigation was without substantial justification because reliance on legislative history alone is insufficient to justify the constitutionality of DADT in view of significant intervening legal and factual developments. Notwithstanding those tectonic shifts in the constitutional and practical landscape, the government refused to present any evidence at trial other than the statutes legislative history. The government also unjustifiably refused to admit three Requests for Admission that called on it to admit the truth of public statements by the President of the United States. The governments obstructionist position denying those Requests for Admission obliged Log Cabin to devote substantial time before and at trial to present extensive evidence to prove that the President was correct and that DADT undermined our national security. Log Cabin now moves for an award of attorneys fees and expenses on two separate grounds: pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412 (the EAJA); and pursuant to Federal Rule of Civil Procedure 37(c). -1LOSANGELES 932731 (2K)
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II. STATEMENT OF FACTS The Court is well-acquainted with the facts of this case, and Log Cabin will not repeat them here in great detail. However, a brief summary of the case will help place Log Cabins request for an award of fees and expenses in context. In 1993, Congress enacted the statute and policy known as Dont Ask, Dont Tell, codified at 10 U.S.C. 654 and its implementing regulations. The statute declared that the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability, 10 U.S.C. 654(a)(15) (former), and directed the separation from the armed forces of a servicemember who had engaged in homosexual acts, stated that he or she was a homosexual or bisexual, or married or attempted to marry a person of the same sex. 10 U.S.C. 654(b) (former). The effect of DADT was to prohibit open service by homosexuals in the military. In 2004, following the Supreme Courts decision in Lawrence v. Texas, 539 U.S. 558 (2003), Log Cabin filed this facial constitutional challenge to DADT. As tried, the essence of Log Cabins showing was that DADT did not promote morale, good order and discipline, and unit cohesion, and in fact undermined military capability and endangered our national security. After six years of litigation and a contested two-week bench trial, at which seven expert witnesses in various disciplines and six former servicemembers affected by DADT testified, this Court declared DADT unconstitutional and enjoined its further enforcement. Specifically, this Court found that DADT violated both the Fifth Amendment due process rights of United States servicemembers and their First Amendment rights to freedom of speech and to petition for redress of grievances. It entered judgment in favor of Log Cabin on its claims for declaratory and injunctive relief. -2LOSANGELES 932731 (2K)
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The injunction was entered on October 12, 2010. The government filed a Notice of Appeal on October 14, 2010. For eight days the United States government was prohibited from enforcing and applying DADT, and was ordered to suspend and discontinue any investigation or discharge proceeding that had been commenced under DADT. It did so: on October 15, 2010 the Undersecretary of Defense issued a Memorandum to the Secretaries of the Military Departments directing that unless the injunction was stayed on appeal, the Department of Defense will abide by the terms of the injunction. The Ninth Circuit then stayed the injunction temporarily on October 20, 2010 and on November 1, 2010 pending resolution of the governments appeal. Congress thereafter enacted the Dont Ask, Dont Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010) (Repeal Act), which the President signed on December 22, 2010. Congress, in passing the Repeal Act, and the government, in this litigation, have acknowledged that this case, and this Courts judgment and injunction invalidating DADT, spurred the passage of the Repeal Act after all previous efforts at repeal had failed. See Governments Corrected Emergency Motion for Reconsideration of Order Lifting Stay, Log Cabin Republicans v. United States, No. 10-56634 (9th Cir. July 15, 2011, Dkt. 115-1), at 8-9 and n.2 (citing legislative history). The Repeal Act provided that DADT would be repealed 60 days after: (1) the Secretary of Defense received a report determining the impact of repealing DADT and recommending any necessary changes to military policy; and (2) the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certified that they had considered the report's recommendations and were prepared to implement the repeal consistent with military readiness, military effectiveness, and unit cohesion. Repeal Act 2(b). The Repeal Act left DADT in full force and effect until 60 days after the prerequisites to repeal were satisfied. Id. 2(c). In May 2011, after the appellate briefing was complete, Log Cabin moved in -3LOSANGELES 932731 (2K)
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the Ninth Circuit to lift the stay of injunction, on the basis that the government did not defend the constitutionality of DADT in its briefs on appeal and therefore could not show a likelihood of success on the merits. On July 6, 2011 the Ninth Circuit granted Log Cabins motion and lifted the stay of injunction. Once again, the government was prohibited from enforcing and applying DADT, and pending DADT investigations and discharge proceedings were discontinued. The government filed an emergency motion for reconsideration. On July 15, 2011 the Ninth Circuit temporarily reinstated the stay, but with a large exception that swallowed the rule: the Ninth Circuit ordered that this Courts judgment would continue in effect insofar as it enjoins [the government] from investigating, penalizing, or discharging anyone from the military pursuant to the Dont Ask, Dont Tell policy. Following full briefing on the motion for reconsideration, the Ninth Circuit on July 22, 2011 granted the motion, but with the same large exception. Thus, from July 6, 2011 on, the government was prohibited, by the orders of two courts, from enforcing DADT. Presumably, it complied; and after July 6, 2011 no investigations or discharges under DADT took place. On July 22, 2011, the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that the congressionally mandated prerequisites to repeal of 10 U.S.C. 654 have been satisfied, and the certification document was transmitted to Congress. Governments Letter Pursuant to FRAP 28(j), Log Cabin Republicans v. United States, No. 10-56634 (9th Cir. July 22, 2011, Dkt. 123-1). The certification took place quite literally as the government was in the process of filing its reply brief on the motion for reconsideration the government stated in that brief that certification was imminent and less than four hours later the Ninth Circuit issued its order granting the motion for reconsideration while leaving the injunction in effect. Certification had originally been projected to take some number of months from the enactment of the Repeal Act, with months of planning necessary to -4LOSANGELES 932731 (2K)
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implement the orderly elimination of DADT. See Declaration of Clifford L. Stanley dated October 14, 2010 (Doc. 253-2), 19-20. It surely was no coincidence that certification instead came a swift two weeks after the Ninth Circuit lifted the stay of this Courts injunction, while the governments motion for reconsideration of that order was pending, and in time for the government to be able to state, at oral argument on the appeal, that the 60-day period following certification was running and about to pass, rendering the Repeal Act effective.1 The Ninth Circuit heard oral argument on the appeal on September 1, 2011. The repeal of DADT became effective on September 20, 2011. On that day, the government filed a motion in the Ninth Circuit suggesting that the case was moot, and moving to vacate this Courts judgment and injunction. On September 29, 2011, the Ninth Circuit issued its opinion, Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 2011), holding that the case was moot, vacating the judgment of this Court, and remanding the case to this Court with directions to dismiss the complaint. The Ninth Circuit did not decide the appeal on the merits. Its decision does not change the fact that this Court issued judgment in favor of Log Cabin and that for eight days in 2010 and two and a half months in 2011, its injunction prevented the government from investigating, penalizing, or discharging servicemembers pursuant to DADT. For the reasons shown below, this Court should award Log Cabin attorneys fees and expenses for its successful efforts to prevent the government from enforcing an unconstitutional statute.
Indeed, barely a week before the certification date, on July 14, 2011, the government was projecting that certification was still weeks away from even being presented to the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, and would not occur until the end of July or early in August. Declaration of Major General Steven A. Hummer, Log Cabin Republicans v. United States, No. 10-56634 (9th Cir. July 14, 2011, Dkt. 113-2), 11. -5LOSANGELES 932731 (2K)
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III. LOG CABIN IS ENTITLED TO AN AWARD OF FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT The EAJA, 28 U.S.C. 2412, provides for an award of attorneys fees to the prevailing party in any action brought against the United States. In relevant part, it provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . . incurred by that party in any civil action . . . ., 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. 28 U.S.C. 2412(d)(1)(A) (emphasis added).2 Thus, under section 2412(d), the award of attorneys fees to the prevailing party is mandatory unless the United States shows that its position was substantially justified. The EAJA creates a presumption that fees will be awarded to prevailing parties. Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). The government thus bears the burden of proving that its position was substantially justified. Scarborough v. Principi, 541 U.S. 401, 414, 416, 124 S.Ct 1856, 1866-67, 158 L.Ed.2d 674 (2004); Meinhold v. U.S. Dept of Def., 123 F.3d 1275, 1277 (9th Cir. 1997), amended by 131 F.3d 842; Oregon Natural Res. Council v. Madigan, Log Cabin qualifies for an award of attorneys fees and expenses pursuant to EAJA because it is an organization whose net worth did not exceed $7 million, and which had fewer than 500 employees, at the time this civil action was filed. 28 U.S.C. 2412(d)(2)(B); Declaration of R. Clarke Cooper, 3; Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir. 1991). -6LOSANGELES 932731 (2K)
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980 F.2d 1330, 1331 (9th Cir. 1992). The governments position includes both its conduct in litigation and the underlying act giving rise to the suit. 28 U.S.C 2412(d)(2)(D). A. Log Cabin Is a Prevailing Party and Eligible to Receive an Award of Fees and Expenses The EAJA applies to any civil suit (aside from an action sounding in tort) against the government, and expressly includes proceedings for judicial review of agency action. Log Cabins action, which was for declaratory and injunctive relief against the enforcement of DADT, is therefore within the scope of the Act. There are two requirements to qualify as a prevailing party under the EAJA: (1) there must be a material alteration of the legal relationship of the parties; and (2) the alteration must be judicially sanctioned. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598, 621, 121 S.Ct. 1835, 1849, 149 L.Ed.2d 855 (2001); Carbonell v. INS, 429 F.3d 894, 898 (9th Cir. 2005). A party need not succeed on every claim in order to prevail. Carbonell, 429 F.3d at 900 n.5. Rather, a party is considered the prevailing party if it succeeds on any significant issue in litigation which achieve[d] some of the benefit sought in bringing the suit. Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993); U.S. v. Real Prop. at 2659 Roundhill Dr., Alamo, Cal., 283 F.3d 1146, 1150-51 (9th Cir. 2002). Thus, fees can be appropriately awarded for interim relief. Buckhannon, 532 U.S. at 603-04. As this Court recognized when it granted Log Cabins request to apply for attorneys fees pursuant to EAJA (Doc. 252, 4), Log Cabin qualifies for an award of attorneys fees and expenses as a prevailing party under EAJA. 1. Log Cabin prevailed in its mission to prevent investigations and discharges pursuant to DADT. Log Cabin is a prevailing party because on October 12, 2010, this Court entered judgment in its favor, affording it the complete relief it had sought. -7LOSANGELES 932731 (2K)
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Specifically, this Court issued judgment in favor of Log Cabin on its claims for declaratory and injunctive relief. The permanent injunction prohibited the government from enforcing DADT for nearly three months until the Repeal Act took effect on September 20, 2011. Investigations and discharge proceedings pending when the injunction was entered, or when it was reinstated by the Ninth Circuit in July 2011, were stopped in their tracks. This Court-ordered relief creates the material alteration of the legal relationship of the parties necessary to permit an award of attorneys fees. Buckhannon, 532 U.S. at 604 (internal quotations and citations omitted). In Carbonell, supra, an alien applied for asylum with the aid of an attorney. 429 F.3d at 896. He was later informed of an order of deportation and subsequently hired a new attorney and filed a motion to reopen based on a claim of ineffective assistance of counsel. The motion was denied and he appealed to the Board of Immigration Appeals (BIA). The BIA affirmed the denial of the motion to reopen and plaintiff then filed a motion to reconsider and a request for a stay of deportation with the BIA. The INS and plaintiff then stipulated to a stay of deportation until the BIA ruled on his motion to reconsider. Id. at 897. The Ninth Circuit held that the plaintiff satisfied the first prong of the prevailing party test, having shown a material alteration in the legal relationship between the parties as a result of the parties stipulation to a stay of deportation. Id. at 900. Because the stay was enforced, the plaintiff obtained the desired relief. Before the district court issued its order which incorporated the stay of deportation, the INS had the authority to deport Carbonell immediately. Had the INS done so prior to the BIAs deciding his motion to reopen his case, the BIA would have dismissed his case and Carbonell would have had no further recourse.... The stipulation for the stay of deportation thus materially altered the legal relationship between the parties, because the defendants -8LOSANGELES 932731 (2K)
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were required to do something directly benefiting the plaintiff[ ] that they otherwise would not have had to do. Id. at 899-900 (internal quotations and citation omitted). Thus the plaintiff was a prevailing party because he received a court-ordered stay of deportation until the BIA reconsidered his claim of ineffective assistance of counsel. In Watson v. County of Riverside, 300 F.3d 1092, 1093 (9th Cir. 2002), discussed in more detail infra, a case decided under the analogous attorneys fee provision of 42 U.S.C. 1988, the Ninth Circuit affirmed that a plaintiff who obtains a preliminary injunction can be a prevailing party, even if the plaintiff recovers no other relief sought in the lawsuit. The Ninth Circuit did note that not all cases where the plaintiff wins an early victory of a preliminary injunction will result in the plaintiff being a prevailing party. Id. at 1096. However, in Watson, plaintiffs injunctive relief satisifie[d] the prevailing party test because the plaintiff achieved some of the benefit [he] sought in bringing the suit and because the injunction altered the legal relationship between the parties. Id. at 1094-95. Here, this Court granted a permanent injunction that materially altered the legal relationship between the parties for a significant amount of time. The Government was prohibited from enforcing DADT until the Repeal Act took effect on September 20, 2011. And, as noted above, this lawsuit and this Courts injunction were the impetus for the very enactment of the Repeal Act and its accelerated certification. In the analogous context of a Section 1988 fee award, a party is considered the prevailing party, even if it does not prevail on all issues, if it shows a sufficient causal relationship between the lawsuit and the practical outcome realized by the suit. Herrington v. County of Sonoma, 883 F.2d 739, 744 (9th Cir. 1989). Accordingly, by obtaining a permanent injunction, Log Cabin achieved the benefit it sought in the lawsuit. This is sufficient to confer prevailing party status on Log Cabin. -9LOSANGELES 932731 (2K)
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2.
Log Cabin retains its prevailing party status despite mootness because it obtained relief that is now permanent and its victory was not undone by a later ruling on the merits
Plaintiffs who obtain the relief sought in district court remain prevailing parties for the purpose of EAJA attorneys fees for that court even if an intervening event rendered the case moot on appeal. Californians for Alts. To Toxics v. U.S. Forest Serv., 2007 WL 2993132, at *3 (E.D. Cal. Oct. 11, 2007). The determination whether a plaintiff retains its prevailing party status turns on whether a later ruling is on the merits. In Californians for Alternatives To Toxics, plaintiffs who obtained an injunction that was not later undone were prevailing parties entitled to EAJA attorneys fees. Plaintiffs sought declaratory and injunctive relief barring defendants from implementing a project described in a Record of Decision. 2007 WL 2993132, at *1. During the course of litigation, new requirements were created and the challenged Record of Decision did not comply with them. The court issued a preliminary injunction prohibiting the implementation of the challenged Record of Decision. Defendants then withdrew the challenged Record of Decision and the parties filed a joint status report stating that the withdrawal had rendered the case moot. Plaintiffs achieved the results they sought in obtaining a preliminary injunction and, as in this case, this victory was not undone by a later adverse ruling on the merits. Id. at *3. (emphasis added). The subsequent mooting of plaintiffs claims did not nullify the plaintiffs victory. Furthermore, the order enjoining defendants from implementing the contested Record of Decision sufficed to give a judicial imprimatur of the changed legal relationship. Id. at *4. Similarly, in Oregon Natural Desert Association v. Lohn, 522 F. Supp. 2d 1295, 1299 (D. Or. 2007), plaintiffs who obtained a judgment on the merits in their favor that was not vacated for lack of entitlement were prevailing parties. The district court issued a judgment declaring certain administrative opinions to be in - 10 LOSANGELES 932731 (2K)
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violation of the Endangered Species Act. Id. at 1297. Soon thereafter, the government issued new, superseding documents, rendering the case moot. The court ordered the case dismissed on mootness grounds and vacated the judgment. Nevertheless, plaintiffs remained prevailing parties entitled to fees pursuant to the EAJA because they had obtained a judgment on the merits in their favor, which was not vacated for lack of entitlement, and rendered moot after the judgment had done its job. Id. at 1299. In Watson v. County of Riverside, supra, the court held that plaintiff who obtained a preliminary injunction that was not dissolved for lack of entitlement was a prevailing party entitled to attorneys fees pursuant to 42 U.S.C. 1988. 300 F.3d at 1096. The trial court issued a preliminary injunction prohibiting the defendant from introducing a particular document at plaintiffs termination hearing. Plaintiffs claim for a permanent injunction was rendered moot when his employment termination hearing was over, after the preliminary injunction had done its job. Id. at 1094. But because plaintiffs claim for permanent injunctive relief was not decided on the merits, which distinguished the case from other situations where a plaintiff scores an early victory by securing a preliminary injunction, then loses on the merits and judgment is entered against him, id. at 1096, plaintiff retained his prevailing party status and recovered attorneys fees under Section 1988. See also Richard S. v. Dept of Developmental Servs., 317 F.3d 1080, 1088 (9th Cir. 2003) (where plaintiffs obtained a preliminary injunction and then entered into a legally enforceable settlement agreement, achieving much but not all the relief sought in the injunction, plaintiffs were deemed entitled to prevailing party status). Here, as a result of this litigation, this Court enjoined the enforcement of DADT, and after the Ninth Circuit reinstated that injunction on July 6, 2011, the injunction remained in place until DADT was formally repealed. This Courts decision was never reversed or vacated on the merits; rather, after Congress passed - 11 LOSANGELES 932731 (2K)
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the Repeal Act, the Ninth Circuit simply found the case to have become moot by virtue of the passage of that Act and its entry into effect. Log Cabin, 658 F.3d at 1166. The appellate courts decision did not even reach the merits of Log Cabins case, much less reverse this Courts judgment on the merits. Therefore, Log Cabin retains its prevailing party status. B. The Governments Position Was Not Substantially Justified
As discussed above, under the EAJA, a prevailing party is presumed to be entitled to an award of reasonable attorneys fees unless the position of the United States was substantially justified or special circumstances make an award unjust. 28 U.S.C. 2412(d)(1)(A); United States v. 313.34 Acres of Land, 897 F.2d 1473, 1477 (9th Cir. 1989) (The shallunless language of the EAJA creates the presumption of a fee award). In order to show that its position was substantially justified, the Government must show that its case had a reasonable basis in both law and fact. Pierce v. Underwood, 487 U.S. 552, 564, 108 S.Ct. 2541, 2543, 101 L.Ed.2d 490 (1988). In evaluating the governments position to determine whether it was substantially justified, the Court must look to the record of both the underlying government conduct and the totality of circumstances present before and during the litigation. Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). This means that the court looks not only to the underlying governmental action being defended in the litigation, but also to the positions taken by the government in the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), revd on other grounds 884 F.2d 442 (9th Cir. 1989) If the governments position violates the Constitution, it is an abuse of discretion to find that the position was substantially justified. Meinhold, 123 F.3d at 1278 (affirming award of EAJA fees in successful challenge to predecessor regulations to DADT). As the Ninth Circuit put it in another case, If a due process violation is not enough to trigger a finding that the government was not - 12 LOSANGELES 932731 (2K)
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substantially justified under the EAJA, the EAJA would amount to nothing but a hollow statutory shell offering little of substance to prevailing parties. U.S. v. Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002) (citations and quotations omitted). In its detailed Order Granting Permanent Injunction, Memorandum Opinion, and Findings of Fact and Conclusions of Law, Docs. 249, 250, and 251 respectively, this Court determined that DADT violated United States servicemembers Fifth Amendment substantive due process rights and their First Amendment rights of free speech and petition. The governments position in this litigation, therefore, was without substantial justification. IV. LOG CABIN IS ENTITLED TO AN AWARD OF ATTORNEYS FEES AND EXPENSES UNDER FED. R. CIV. P. 37(C) Fed. R. Civ. P. 37(c)(2) sets forth the consequences if a party fails to admit matters requested for admission under Rule 36 and the requesting party thereafter proves the matter to be true. The Rule provides that If a party fails to admit what is requested under Rule 36 and if the requesting party later proves the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorneys fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. Fed. R. Civ. P. 37(c)(2) (emphasis added). Unless the government proves that one of the exceptions applies, an award of expenses is mandatory. Marchand v. Mercy
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Med. Ctr., 22 F.3d 933, 936 (9th Cir. 1994). Before trial, the government denied three significant requests for admission (RFAs) that Log Cabin served pursuant to Rule 36, which went to the heart of Log Cabins case and which (with the exception of the issue of standing, which consumed at most one-half day of trial time) the entire trial was devoted to proving. Log Cabin is entitled to recover its expenses incurred in making that proof, at fee rates that are not limited by EAJAs statutory hourly fee cap. A. The Requests for Admission and the Governments Responses
Log Cabin served its first set of RFAs on the government on December 10, 2009. This set included RFAs 3, 4, and 5, as follows: 3. Admit that DADT does not contribute to our national security; 4. Admit that DADT weakens our national security; and 5. Admit that discharging members pursuant to DADT weakens our national security. Each of these requested admissions was directly based on a statement of President Obama on June 29, 2009 in a speech to a White House audience. On January 28, 2010, the government served its Objections and Responses to the RFAs. Its response to each of the three requests in question was essentially identical: Defendants object to this request, as it does not call for facts, the application of law to fact, or an opinion about facts or the application of law to fact. See Fed. R. Civ. P. 36(a)(1)(A). Defendants further object to this request because the terms "weakens" and "national security" as used in this context are vague and ambiguous. To the extent a further response is required, Defendants note the responses to requests for admission l and 2 supra, but deny this request because it was rational for Congress to have concluded at the time the statute - 14 LOSANGELES 932731 (2K)
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was enacted in 1993 that DADT was necessary "in the unique circumstances of military service," 10 U.S.C. 654(a)(13). Log Cabin filed an ex parte application requesting that the RFAs be deemed admitted, or in the alternative ordering the government to serve amended responses to the RFAs. On March 16, 2010, Magistrate Judge Eick overruled the governments objections to the RFAs and ordered the government to unqualifiedly admit or deny the requests. The government filed a motion for review by this Court of the Magistrate Judges ruling. The Court denied that motion on April 6, 2010. On April 12, the government responded to the RFAs; its response to each, though prefaced by over two pages of purported explanation and justification, was a straight denial.3 The governments denial of the RFAs forced Log Cabin to prove at trial that DADT did not contribute to, and in fact weakened, our countrys national security. At the trial of this matter, Log Cabin presented evidence of the truth of each of the matters in those three requests for admission. Apart from the testimony and documentary evidence related to Log Cabins standing to sue, all of the trial testimony of both the expert and lay witnesses, and every piece of written evidence introduced, went to prove the truth of the facts that DADT does not contribute to the national security of the United States, that it weakens national security, and that discharge of servicemembers pursuant to DADT weakens national security. These facts were the core of Log Cabins proof that Dont Ask, Dont Tell violated the Fifth and First Amendments, and each of those facts was material to the Courts decision in Log Cabins favor. The testimony of each of the expert and lay witnesses, and the documents Log Cabin introduced in evidence, established that DADT did not contribute to, or Copies of the pertinent portions of the governments original Objections and Responses to Plaintiffs First Set of Requests for Admission, and of its Supplemental Responses to Requests 3, 4, and 5, are attached as Exhibits 1 and 2, respectively, to the Woods Declaration. - 15 LOSANGELES 932731 (2K)
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weakened, national security, and that the discharge of servicemembers under DADT weakened national security. In particular, the Court found, in its Findings of Fact and Conclusions of Law (Doc. 251), among other things: that DADT did not significantly advance the Governments interests in military readiness or unit cohesion (Finding of Fact 135); that DADT resulted in the discharge of qualified servicemembers despite troop shortages (Findings of Fact 136-139); that DADT resulted in the discharge of servicemembers with critically needed skills and training (Findings of Fact 140-141); that DADT resulted in the admission to the armed services of lesser qualified enlistees, including felons and individuals with lower levels of education and physical fitness (Findings of Fact 147-149); that DADT had a significant negative impact on military recruiting, both in volume and in cost (Findings of Fact 142-146); that DADT was not necessary to protect unit cohesion, privacy, and military readiness (Findings of Fact 159-176); and that DADT had a chilling effect on the First Amendment rights of servicemembers and restricted their speech more than reasonably necessary to protect the Governments interests (Findings of Fact 178-187). Accordingly, Log Cabin is entitled to recover its expenses, including attorneys fees, incurred in making that proof. B. The Governments Denial of the RFAs Was Unreasonable
Of the four exceptions to a mandatory fee award under Rule 37(c)(2), only the third can possibly apply here. Exception (A) does not apply because both the Magistrate Judge and the District Judge specifically overruled the governments objections. Exception (B) does not apply because the admissions sought were not only of substantial importance, they were matters that went to the very beating heart of this case, namely, whether DADT in practice furthered the legislative goals it purported to advance. And exception (D) does not apply because it is not good reason to fail to admit the requests that doing so might cause the prospect of embarrassment to the government, or to the executive branch, resulting from a - 16 LOSANGELES 932731 (2K)
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denial that the Presidents public statements were true.4 Therefore, the ultimate test under Rule 37(c)(2) is whether the government acted reasonably in believing it might prevail on the matter for which admissions were sought. See Marchand, supra, 22 F.3d at 937. It did not. 1. The government relied solely on 1993 legislative history, which was contradicted by 2009 statements by military and civilian officials In Marchand, a medical malpractice case, the plaintiff served an RFA on the defendant physician, asking him to admit that the medical treatment he provided did not comply with the applicable standard of care. The defendant denied the RFA. After the plaintiff prevailed at trial, the district court awarded the plaintiff expenses, including attorneys fees, under Rule 37(c)(2). The Ninth Circuit affirmed. It held that because the defendant relied entirely on a single piece of uncorroborated evidence the testimony of an expert witness who testified that the applicable standard of care was satisfied the defendants denial of the RFA was unreasonable. The court also relied on the fact that the expert witness testimony at trial contradicted his own deposition statement. In Diamond State Ins. Co. v. Deardorff, No. 1:10-CV-00004, 2011 WL 2414391 (E.D. Cal. June 8, 2011), a subrogation case in which insurance company plaintiffs sought to recover money paid out to their insureds, the plaintiffs denied an RFA asking them to admit that their livestock was killed while being boarded by The fact that the prospect of such embarrassment was a concern to the government is inferable from the fact that then-Solicitor General Kagan personally participated in a meeting with the White House to determine how to respond to discovery in this case, presumably these RFAs. See Response to Question 29e of Senator Jeff Sessions, Questions for the Record, in Responses [of Elena Kagan] to Supplemental Questions from Senators Jeff Sessions et al., available at
http://www.judiciary.senate.gov/nominations/SupremeCourt/upload/ElenaKaganQFRs.pdf, pp. 28-29. The personal involvement of the Solicitor General in
4
determining how the United States should respond to discovery in the trial court is certainly a rare, if not unprecedented, phenomenon. - 17 LOSANGELES 932731 (2K)
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the defendant, an admission that would bar the plaintiffs claims under the applicable statute of limitations. Id. at *3-4. The plaintiffs denied the RFA based solely on an invoice that described the service provided as transportation rather than boarding. Further, the plaintiff insurance companies were bound by statements of their insureds that transportation of animals was part of the overall boarding relationship. The district court analogized to Marchand, holding that the plaintiffs denial of the RFA was unreasonable under the circumstances and therefore entitled the defendant to recover expenses under Rule 37(c)(2). Id. at *5. Here, as in Marchand and Deardorff, the government relied on what amounted to a single piece of evidence the Act itself and its legislative history to deny that DADT does not further and in fact weakens national security. Although the legislative history of DADT introduced at trial was thick, the government did not offer any other evidence of DADTs effects in the 17 years that had passed since enactment to counter the copious evidence Log Cabin presented that DADT did not, in fact, further the governments stated interest. See Witt v. Dept of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008). Furthermore, just as in Marchand and Deardorff, the governments only evidence was directly contradicted by its own admissions. Less than nine months before the government denied the RFAs, as this Court found at trial, President Obama stated that Don't Ask, Dont Tell doesnt contribute to our national security preventing patriotic Americans from serving their country weakens our national security [R]eversing this policy [is] the right thing to do [and] is essential for our national security. Doc. 250 at 65; Doc. 251 at 156. At the time it denied the RFAs, the government also knew of Admiral Michael Mullens statement that allowing homosexuals to serve openly is the right thing to do. Doc. 250 at 66; Doc. 251 at 158. Based on the evidence available to it at the time it denied the RFAs, and what it actually produced at trial, the government could not reasonably believe that it would be able to prove that DADT - 18 LOSANGELES 932731 (2K)
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furthered national security. 2. The government failed to independently examine whether DADT actually furthered national security A party responding to an RFA has an independent duty to at least attempt to determine the truth of the matter for which admissions are requested. Foster Poultry Farms, Inc. v. SunTrust Bank, 377 F.Appx 665, 672 (9th Cir. 2010). In Foster, the plaintiff served RFAs on the defendant SunTrust Bank asking it to admit that it was not the holder of certain promissory notes at issue in the case. SunTrust denied the request, relying on its former counsels opinion that SunTrust held the notes. At trial, SunTrust ultimately conceded that it never became the holder of the notes. The district court denied plaintiffs motion for expense-shifting sanctions based on the failure to admit. The Ninth Circuit reversed, holding that SunTrust failed to satisfy its independent duty to determine whether it actually held the notes when Foster served the RFAs. The court added that because two and a half years had passed since SunTrusts counsel provided the opinion, the defendant could have determined during that time that its lawyer lacked a reasonable basis for his opinion. Here, the government made no attempt to independently assess the impact of DADT on national security. In fact, it admitted that it did not conduct even a single study evaluating the impact of DADT since the policy was enacted. Gade Dep. 59:18-22; 88:16-90:9, Apr. 16, 2010 (received in evidence at trial, see Docs. 214 at p. 6, 215 at p. 2). Instead, the government based its denial of the RFAs on a single Congressional finding from 1993 that DADT was necessary in the unique circumstances of military service. At trial, the government offered no support for this conclusion other than the Acts own legislative history from 17 years earlier. Doc. 250 at 48. Like the defendant in Foster, the government failed to make any effort to - 19 LOSANGELES 932731 (2K)
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evaluate whether the basis for its denial had any connection to reality. It turned a blind eye to admissions made by President Obama and Admiral Mullen. Instead, it chose to rely on 17-year-old Congressional findings because the government had failed to assess the impact of DADT since then. The governments denial of the RFAs was unreasonable because it made no attempt, either in responding to the RFAs or at trial, to determine whether DADT actually furthered national security. C. Log Cabin Is Entitled to Recover All Expenses Incurred from the Time the Government Failed to Admit the RFAs, Through Trial When a party unreasonably fails to admit an RFA, the propounding party may recover all reasonable expenses incurred in proving the matter. Marchand v. Mercy Med. Ctr., supra, 22 F.3d at 939. This includes any failure to admit, not simply a denial. Id. at 938; see also Advis. Comm. Notes to Fed. R. Civ. P. 37. Here, the government served its responses and objections to the RFAs on January 28, 2010. In those responses it failed to admit that DADT did not further national security, that DADT weakened national security, or that the enforcement of DADT weakened national security. Thus, Log Cabin is entitled to recover its expenses incurred in proving these matters after service of the governments original objections and responses on January 28, 2010. Holmgren v. State Farm Mut. Auto Ins. Co., 976 F.2d 573, 581 (9th Cir. 1992). The governments failure to admit the RFAs caused Log Cabin to incur substantial expenses in proving the matters at trial. Log Cabin introduced expert and lay witness testimony, as well as numerous documents, proving that DADT weakened national security and therefore did not substantially advance the governments interests in military readiness and unit cohesion. Doc. 251, 153 and elsewhere as shown supra, p. 16. Under Rule 37(c)(2), the Court should award Log Cabin all expenses incurred after January 28, 2010 through the conclusion of trial in connection with its having successfully proven DADTs negative effect on the
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United States national security.5 The government may contend that the Ninth Circuits vacatur of this Courts judgment, injunction, opinions, orders, and factual findings, Log Cabin, supra, 658 F.3d at 1168, means that Log Cabin did not prove that DADT, and the discharge of servicemembers thereunder, did not contribute to our national security and weakened our national security. Such a contention would misread both the purpose and the effect of the vacatur order. The Ninth Circuit expressly stated that it was vacating this Courts rulings only to clear the path completely for any future litigation, such that those rulings could not be used collaterally in offense by other litigants. In this motion, Log Cabin does not seek to use those rulings collaterally, but rather to show that it did, in fact, prove the matters that the government had refused to admit. No vacatur order can erase the trial proceedings, or turn back time to create an alternate reality in which Log Cabin was unsuccessful in proving its case. The Ninth Circuits vacatur order can only remove the precedential effect of this Courts rulings insofar as they might apply to other litigation; within the context of this litigation itself, and as against the other party to it, those rulings are a simple matter of record. V. SUMMARY STATEMENT OF AMOUNTS CLAIMED Pursuant to the stipulation of counsel regarding the procedure for the hearing of this motion, and the Courts order thereon, Log Cabin is not at this time submitting to the Court its attorneys detailed billing records or detailed documentation regarding the claimed expenses, though those records and documentation are available to the Court and the government if required. Rather, Log Cabin is submitting with this motion a summary statement of its claim, setting In this motion, Log Cabin claims its attorneys fees and expenses under Rule 37(c) only through the end of trial; it does not claim any amount on the basis of that Rule for its fees and expenses incurred in any post-trial or appellate proceedings. - 21 LOSANGELES 932731 (2K)
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forth the total hours and fees incurred for each phase of the case, both at EAJA rates and at its attorneys standard hourly rates for those phases claimed under Fed. R. Civ. P. 37, as well as a summary total of its expenses claim. That information appears in the accompanying Declaration of Dan Woods, at 19 and 27-29. In total, as set forth in that Declaration, Log Cabin seeks an award of the following amounts: Attorneys fees for the case, inception to date, a total of 12,211.7 hours calculated at EAJA statutory fee cap: $2,090,614.13; Attorneys fees for discovery, expert and lay witness preparation, pretrial filings, trial preparation, and trial for the time period January 28, 2010, when the government first failed to admit the three RFAs, through the conclusion of trial on July 23, 2010, a total of 4708.5 hours calculated at White & Case LLPs standard hourly rates: $2,235,656.00;6 Expert witness fees for deposition and trial testimony: $30,175.00; Other expenses (travel, hotel, etc.): $5,178.90 on the EAJA claim, or $17,408.64 on the Rule 37 claim. Log Cabin provides only this summary at this time pursuant to the agreement of the parties, for the Courts information. If the Court determines at the hearing of this motion that Log Cabin is entitled to recovery under either or both provisions of law, Log Cabin requests that further proceedings be set to determine the actual amount to be awarded, in which proceedings Log Cabin will furnish a detailed statement of its attorneys billing records and expense documentation which the government will have an opportunity to review and respond to.
If the Court awards attorneys fees on this basis, the claim for EAJA fees for these activities would of course be withdrawn. The fees for these activities calculated at EAJA rates total $823,495.74. Woods Declaration, 27. That amount would be deducted from the $2,090,614.13 specified in the previous entry. - 22 LOSANGELES 932731 (2K)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 12, 2012
VI. CONCLUSION For the reasons stated above, the Court should determine that Log Cabin is entitled to an award of attorneys fees and expenses. In further proceedings, the Court should award Log Cabin those attorneys fees and expenses pursuant to the Equal Access to Justice Act in the amount of $2,125,968.03; or pursuant to Fed. R. Civ. P. 37(c) in the amount of $2,283,239.64; or pursuant to both provisions of law in the net amount, after eliminating duplicate recovery, of $3,550,358.03.
WHITE & CASE LLP
/s/ Dan Woods Dan Woods Attorneys for Plaintiff Log Cabin Republicans By:
Case 2:04-cv-08425-VAP-E Document 326-1
Case 2:04-cv-08425-VAP-E Document 326-2 Filed 01/12/12 Page 1 of 40 Page ID #:9032
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Case No. CV 04-8425 VAP (Ex) DECLARATION OF DAN WOODS IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS MOTION FOR ATTORNEYS FEES AND EXPENSES Judge: Hon. Virginia A. Phillips Date: February 27, 2012 Time: 2:00 p.m. Ctrm: 2
DECLARATION OF DAN WOODS IN SUPPORT OF MOTION FOR ATTORNEYS FEES
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DECLARATION OF DAN WOODS I, Dan Woods, declare as follows: I am an attorney admitted to practice in California and before this Court. I am a partner in White & Case LLP, counsel for Log Cabin Republicans in this case. I make this declaration in support of Log Cabin Republicans application for an award of attorneys fees and expenses pursuant to the Equal Access to Justice Act and Fed. R. Civ. P. 37. 2. If called and sworn as a witness, I would be able to testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration. My Background, Qualifications, and Experience I received my undergraduate degree from the University of Southern California, cum laude, in 1974. I received my J.D. degree from the University of Southern California in 1977. While in law school, I was a member, during my second year, and an Executive Editor, during my third year, of the Southern California Law Review. 4. California. 5. After clerking, I spent over 17 years at the Los Angeles office of the law firm of Brobeck, Phleger & Harrison, from November 1978 to August 1996, the first six years as an associate and the last 11 years as a partner. I left Brobeck and became a partner in White & Case LLP on September 1, 1996, and have remained a partner with that firm since that date. White & Case is an international law firm, founded in New York in 1901 and practicing today with over 2000 attorneys in 38 offices in 26 countries around the world. 6. I was admitted to practice in California in December 1977 and have been admitted to practice in all of the federal district courts in California, before the -1LOSANGELES 934676 (2K)
Following my graduation, I served one year as a law clerk to the Hon.
A. Andrew Hauk, of the United States District Court for the Central District of
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Ninth Circuit and Federal Circuit Courts of Appeals, and before the United States Supreme Court. 7. I am a member of the American and Los Angeles County Bar Associations (including their Litigation sections), and the Association of Business Trial Lawyers. 8. Trial. 9. 10. I have also served as a judge pro tem in the Los Angeles Superior and During my career, I have received a certain amount of recognition for Municipal Courts. my work. These awards and honors, some of which I received in consequence of my work on this case, include the following: I have been recognized as a California Litigation Star in Benchmark I have been recognized in Chambers USA in its California Litigation In 2000, I received the Katherine Krause Award from the Inner City Litigation in both 2010 and 2011; section each year since 2006; Law Center for work performed as co-counsel with Inner City Law Center on a major slum housing case; Award; 2010; The California Lawyer magazine has named me a CLAY (California I received the ABAs Judge John Minor Wisdom Award for Public Lawyer Attorney of the Year) award winner for 2011; Service and Professionalism in April 2011; -2LOSANGELES 934676 (2K)
Since 1998, I have also been the author of the annual update to the
CEBs three-volume treatise California Trial Practice: Civil Procedure During
In 2000, I received the State Bar of Californias Presidents Pro Bono The Recorder named me as a California Attorney of the Year for
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In September 2011, I was named one of the Top 100 Attorneys in
California by the Los Angeles and San Francisco Daily Journal. Work Performed in This Litigation 11. On behalf of our client Log Cabin Republicans, I have been the lawyer primarily responsible for the handling of this case since 2004. During the past seven and half years, we have worked zealously to represent the interests of our client and the rest of the American population to challenge the constitutionality of a statute that violated the core principles of the United States Constitution as explained in more detail below. Due to the vigorous defense put forth by the government, the nature of the claims, and the length of the litigation, the work we were required to perform far exceeded what would be typical in civil litigation. Our firms work on the case, since filing the initial complaint in 2004, included the following tasks. To the extent possible, these tasks are correlated to the phase of the case identified in paragraph 19 below, though there is necessarily some overlap and imprecision as these tasks do not correspond exactly to case phases, and vice versa. (a) On October 12, 2004, we filed a complaint against Defendants Donald H. Rumsfeld and the United States of America alleging that the Dont Ask, Dont Tell law and policy (DADT) was unconstitutional on several grounds, including due process, equal protection, and the First Amendment. Considerable work went into researching and confirming the viability of the claims, developing the facts and legal arguments, and drafting the complaint. We conducted an in depth factual analysis of the statute, including the history surrounding and rationale for its enactment, statistics concerning its application throughout the previous two decades, studies of its impact on military performance, and surveys and research measuring then-current public and military perspectives on the statute. (Case Phase 1) (b) Defendants filed a motion to dismiss on December 13, 2004. In -3DECLARATION OF DAN WOODS IN SUPPORT OF MOTION FOR ATTORNEYS FEES
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anticipation of this filing, and during the month after it was filed, we performed substantial legal research to support our claims, including continued analysis of the statute, its history and rationale, and application and effects, and we researched and filed a brief in opposition to Defendants arguments for dismissal. (Case Phase 2) (c) For the next fifteen months we awaited a decision by the Hon. George Schiavelli on Defendants motion to dismiss. During that time, we continued to review relevant case law in support of Log Cabin Republicans claims, monitor discharge statistics and other evidence of the policys impact, submit supplemental authority to the Court, and respond to supplemental filings by Defendants. (Case Phase 2) (d) On March 21, 2006, Judge Schiavelli granted Defendants motion to dismiss on the ground that Log Cabin Republicans lacked associational standing, and permitted the filing of an amended complaint. We spent the next month developing facts, identifying a suitable Log Cabin member to support our clients standing, researching law to support associational standing, and drafting the First Amended Complaint, which we filed on April 28, 2006. (Case Phase 3) (e) Defendants filed a motion to dismiss the First Amended Complaint on June 12, 2006. We researched, prepared, and filed an opposition to Defendants motion to dismiss on June 30, 2006, and began to prepare for the hearing. On July 14, 2006, the Court took the motion off calendar and under submission. (Case Phase 4) (f) Between July 2006 and May 2008, we awaited a decision by the Court on Defendants motion to dismiss. During that time, we continued to review relevant case law in support of Log Cabin Republicans claims, monitor discharge statistics and other evidence of the policys impact, submit supplemental authority to the Court, and respond to supplemental filings by Defendants. In June 2007, we also received an order from the Court requiring Log Cabin to file a declaration from the member of Log Cabin identified in the complaint as John Doe, and we complied -4LOSANGELES 934676 (2K)
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promptly with that order. In addition, on two occasions, we conferred with the government regarding the delay in decision, negotiated and determined an appropriate course of action, and filed requests for determination in accordance with Local Rules 83-9.1 and 83-9.2. (Case Phases 4, 24) (g) On May 23, 2008, the Court issued an order staying this action in light of the Ninth Circuits May 21, 2008 decision in Witt v. Department of Air Force, et al. In response, on May 30, 2008, we prepared and submitted an ex parte application to vacate the order, which the Court denied on July 1, 2008. We then prepared and filed a petition for writ of mandamus with the Ninth Circuit, seeking an order overturning the stay and permitting the litigation to continue. In connection with the appeal, we researched, prepared, and filed a response to the Ninth Circuits order to show cause concerning the finality of the Courts order staying the action and a reply in support of our petition. The Ninth Circuit ultimately denied the petition. Judge Schavelli then retired without deciding the pending motion to dismiss the First Amended Complaint. (Case Phase 5) (h) On October 8, 2008, this case was transferred from Judge Schiavelli to the Hon. Virginia A. Phillips. We received and reviewed Judge Phillips standing order, issued in this case on November 4, 2008. On December 11, 2008, we filed a status report and request for status conference. On December 17, 2008, this Court set a status conference for January 21, 2009. We subsequently met and conferred with the government, and negotiated and agreed on the terms of a joint status report with Defendants. We reviewed and considered the progress of the case and the remaining activities necessary in order to prepare for the status conference. At the status conference, the Court set a schedule for supplemental briefing on the issue of substantive due process. In accordance with the Courts schedule, we conducted research in support of, prepared, and filed a supplemental brief. (Case Phase 24) (i) We then prepared for and attended the March 9, 2009 argument -5DECLARATION OF DAN WOODS IN SUPPORT OF MOTION FOR ATTORNEYS FEES
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on Defendants motion to dismiss the First Amended Complaint. On June 9, 2009, the Court issued an order denying the motion insofar as it challenged Log Cabin Republicans standing to bring suit and as to the substantive due process claim. The Court granted the motion as to the equal protection claim, and granted in part and denied in part as to the First Amendment claim. (Case Phase 4) (j) The Court then scheduled a scheduling conference for July 6, 2009. In anticipation of that conference, we engaged in a contentious process of negotiating a discovery plan and proposed scheduling order pursuant to Rule 26(f) with counsel for Defendants. We then prepared for and appeared at the July 6, 2009 scheduling conference. (Case Phase 24) (k) On July 24, 2009, the Court issued a minute order denying Defendants request to preclude Log Cabin from conducting discovery. On the same date, the Court issued a Civil Trial Scheduling Order, scheduling deadlines for designations of expert witnesses, for completion of discovery, and for hearing on dispositive motions. The Court also scheduled a pretrial conference for June 7, 2010 and trial on June 14, 2010. We reviewed these orders and began to prepare to comply with them. (Case Phase 24) (l) On October 16, 2009, Defendants filed a motion to certify the Courts order on the motion to dismiss for interlocutory appeal and for a stay. We prepared and filed an opposition to that motion, and prepared for and appeared at oral argument on the matter. On November 24, 2009, the Court denied Defendants motion to certify an order for interlocutory appeal and for a stay. (Case Phase 6) (m) In late 2009 we began a contentious six-month period of drafting, responding to, conferring about, moving to compel, and ultimately reviewing and analyzing responses to, written discovery. Due to Defendants refusal to comply with requests for production of documents, we filed a motion to compel production of documents on February 22, 2010. The Defendants opposed the motion. The motion was heard by Magistrate Judge Eick on March 15, 2010 -6LOSANGELES 934676 (2K)
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and, on March 16, 2010, he issued an order granting the motion in large part and ordered the Defendants to produce documents in many categories to which they had objected. (Case Phase 7) (n) In December 2009, we noticed the deposition of the designated representative of the United States and the Secretary of Defense under Rule 30(b)(6). Defendants served objections and refused to comply. Accordingly, on March 5, 2010, we applied ex parte for an order compelling defendants to comply with the notice of deposition. This application also came before Magistrate Judge Eick on March 15, 2010, and on March 16, 2010, Magistrate Judge Eick ordered the Department of Defense to produce for a Rule 30(b)(6) deposition a person or persons prepared to testify concerning certain designated topics. I subsequently prepared for, traveled to Washington, D.C., and conducted the depositions of the three witnesses produced by the Defendants in response to the 30(b)(6) notice and the Courts order. (Case Phase 7) (o) The discovery that we served also comprised Requests for Admission under Fed. R. Civ. P. 36. These included the Requests for Admission that are discussed in additional detail at paragraphs 22-26 below, and which are the basis for Log Cabins alternative request for an award of fees and expenses under Rule 37(c). Because Defendants did not respond adequately to all of the requests for admissions we had served, we also prepared and filed an ex parte application that these requests for admission be deemed admitted or that further responses be provided. We filed this application on March 8, 2010, the Defendants opposed it, and Magistrate Judge Eick heard it on March 15, 2010. On March 16, 2010, he granted the motion as to requests for admissions 3-5 and 81-105 and ordered the Defendants to unqualifiedly admit or deny those requests. (Case Phase 7) (p) After Magistrate Judge Eick issued his order (Doc. 127) on March 16, 2010 ordering Defendants to produce documents, designate a witness or witnesses to testify at deposition pursuant to Fed. R. Civ. P. 30(b)(6), and -7LOSANGELES 934676 (2K)
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unqualifiedly admit or deny the specified requests for admission, Defendants filed a motion to review the portion of the Magistrate Judges ruling ordering responses to Requests for Admission 3, 4, and 5. We researched, prepared, and filed briefing opposing this motion. On April 6, 2010, the Court denied Defendants motion to review the Magistrate Judges discovery ruling (Doc. 158). Defendants eventually served supplemental responses to the Requests for Admission, including a separate response pertaining specifically to nos. 3, 4, and 5. (Case Phase 7) (q) Defendants also produced over 77,000 pages of documents in response to Magistrate Judge Eicks order. We swiftly assembled and organized a team of lawyers from multiple offices of my firm to carefully review and analyze each of these documents and determine how best to make use of them in depositions and at trial, and which documents to use. (Case Phase 7) (r) The Court also conducted a status conference on February 18, 2010. We prepared for that conference and, in particular, prepared to respond to the Defendants request that the case be stayed or that the trial be postponed. On March 4, 2010, the Court issued a minute order declining to stay the case or continue the trial. (Case Phase 24) (s) To prepare to comply with the Courts scheduling order and to prepare for trial, we undertook a significant search for the leading experts in the areas of: (1) military performance and behavior, (2) the history of the enactment, rationale, application, and impact of the Dont Ask, Dont Tell Policy; (3) the experiences of foreign militaries that permit gay and lesbian soldiers to serve openly; and (4) the impact of Dont Ask, Dont Tell on women and minorities. After researching, locating, and narrowing the experts we wanted to offer, we identified seven experts, worked with each to communicate relevant facts and information, and ultimately served their expert reports in January 2010. In March and April 2010, counsel for the Defendants deposed all seven of our experts. Attorneys in our office traveled throughout the country (including San Francisco, -8LOSANGELES 934676 (2K)
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New York, and Washington, D.C.) and to two locations in Canada to defend the various experts in their depositions. (Case Phase 9) (t) On March 29, 2010, Defendants filed a motion for summary judgment. We opposed Defendants motion for summary judgment, submitting to the Court a memorandum in opposition, a statement of genuine issues, thirteen declarations in support of the opposition, and over 3,000 pages of documents supporting Log Cabin Republicans position. In response to Defendants reply brief, we filed a supplemental memorandum of points and authorities. In addition, we opposed Defendants objections to evidence submitted in support of Log Cabin Republicans opposition to the motion for summary judgment. On April 26, 2010, we appeared for oral argument on the motion for summary judgment. At the hearing, the Court ruled that each party could submit supplemental briefing, which we researched, prepared and submitted. On May 27, 2010, the Court issued an order denying Defendants motion for summary judgment to the extent it was based on lack of standing and granting the parties leave to file supplemental briefs for the sole purpose of discussing the application of the Witt standard to Log Cabin Republicans substantive due process claim. Accordingly, we researched, prepared and submitted a supplemental brief addressing the appropriate standard of review. On July 6, 2010, the Court denied Defendants motion for summary judgment. (Case Phase 8) (u) Simultaneously, in the spring of 2010, we researched and located former servicemembers to testify concerning the impact the Dont Ask, Dont Tell policy had on each of them personally and on their units. This was a time consuming task as we wished to identify a diverse range of servicemembers including a mix of men and women, officers and enlisted personnel, heterosexuals and homosexuals, and representing multiple branches of the armed services. To identify and select witnesses for trial, among other tasks, we conducted extensive fact interviews and drafted declarations concerning each former servicemembers -9LOSANGELES 934676 (2K)
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experiences. Those declarations were filed as part of our opposition to the governments summary judgment motion, in the supplemental briefing regarding the application of the Witt standard of review. The government thereafter took the depositions of each of these servicemembers, and we prepared and appeared for each of those depositions in July 2010, immediately before trial, in Sacramento, San Diego, and Washington, D.C. (Case Phase 10) (v) On June 18, 2010, Defendants filed three motions in limine to exclude Log Cabin Republicans experts, lay witnesses, and certain exhibits. We researched, prepared, and filed briefs, declarations, and other materials in opposition to each of these motions in limine. We also prepared for the argument on these motions, which was held concurrently with the pretrial conference. With small exceptions, the Court denied all three motions. (Case Phase 11) (w) In June and July, we prepared and submitted numerous pre-trial filings, including proposed findings of fact and conclusions of law, a memorandum of contentions of fact and law, a Pretrial Conference order, exhibit lists, witness lists, deposition transcript designations and counterdesignations, and a trial brief regarding legislative privilege and expert testimony on legislative history. In addition, we prepared for and appeared at the pre-trial conference on June 28, 2010. (Case Phase 11) (x) During this same period, we spent a substantial amount of time preparing for trial, including developing trial strategy, preparing an opening statement, drafting examination outlines, finalizing exhibits, preparing witnesses, and other tasks. (Case Phase 12) (y) From July 13 through July 23, 2010, our trial team prosecuted an eight-day bench trial, examining on the stand 18 total witnesses and introducing over 110 exhibits. In addition to the full days spent in Court every day, our trial team spent hours each day crafting the next days strategy, preparing witnesses, revising examination outlines, and communicating with the governments trial - 10 LOSANGELES 934676 (2K)
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attorneys on various matters. (Case Phase 13) (z) Subsequent to trial, at the Courts request, we prepared and submitted a trial brief on the admissibility of Exhibit 38, the declaration of Lt. Col. John Doe. (Case Phase 14) (aa) On September 9, 2010, the Court issued its 85-page Memorandum and Opinion, finding that Log Cabin Republicans established standing to bring and maintain a suit on behalf of its members, and demonstrated that the Dont Ask, Dont Tell Policy violated the Fifth and First Amendments and the constitutional rights of its members. The Court directed Log Cabin Republicans to submit a proposed judgment, including a permanent injunction, consistent with the terms of the Memorandum and Opinion. Accordingly, we prepared and submitted a request for judgment and permanent injunction on September 16, 2010. Defendants filed an objection to the request, to which we responded. We then prepared for and appeared at a hearing on these issues. (Case Phase 14) (bb) On October 12, 2010, the Court issued its Amended and Final Memorandum and Opinion, granting the permanent injunction and ordering Defendants immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding that may have been commenced under the Dont Ask, Dont Tell Act. The Court also issued its findings of fact and conclusions of law on that date. We reviewed and analyzed the decisions. (Case Phase 24) (cc) On October 14, 2010, Defendants filed an emergency application to stay the judgment pending appeal. The following day, we filed an opposition to the emergency application to stay. On October 19, 2010, the Court denied the emergency application. (Case Phase 15) (dd) On October 20, 2010, after filing a notice of appeal, Defendants filed with the Ninth Circuit an emergency motion to stay the Courts injunction. The Ninth Circuit issued an order temporarily staying the action and inviting Log Cabin Republicans to file an opposition to the motion to stay pending appeal by - 11 LOSANGELES 934676 (2K)
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October 25, 2010. We prepared and submitted such opposition. During the next few days, we spoke with and organized numerous organizations that ultimately decided to file amicus briefs in the Ninth Circuit supporting Log Cabin Republicans. (Case Phase 16) (ee) On November 1, 2010, the Ninth Circuit issued its order granting Defendants motion to stay the district courts judgment pending appeal. We reviewed and analyzed the decision. (Case Phase 16) (ff) We immediately prepared, and on November 5, 2010 filed in the United States Supreme Court, an emergency application to vacate the stay entered by the Ninth Circuit. On November 12, 2010, the Supreme Court denied our application. (Case Phase 17) (gg) After the Supreme Court denied our application to vacate the Ninth Circuit stay, we filed a cross-appeal of the dismissal of Log Cabins equal protection claim. We then discussed the appeals with the Government and prepared and filed a joint motion to expedite the appeals in the Ninth Circuit, and the Ninth Circuit issued a shortened briefing schedule. (Case Phase 18) (hh) On December 29, 2010, Defendants moved to suspend the briefing schedule and to hold the appeals in abeyance in light of Congress enactment of the Dont Ask, Dont Tell Repeal Act. We prepared and submitted an opposition to Defendants motion, arguing that repeal would not take effect until 60 days following certification that several requirements had been met, and there was no deadline or expected timetable for such certification. On January 28, 2011, the Ninth Circuit denied Defendants motion to hold the appeals in abeyance and reset a briefing schedule. (Case Phase 18) (ii) Defendants filed their opening appellate brief on February 25, 2011. We researched, prepared and filed Log Cabins answering brief on March 28, 2011. We then received and reviewed defendants reply brief. (Case Phase 18) (jj) On May 10, 2011, after the appellate briefing was concluded, we - 12 DECLARATION OF DAN WOODS IN SUPPORT OF MOTION FOR ATTORNEYS FEES
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filed a motion to vacate the Ninth Circuits stay of the lower courts injunction based on the ground that the government had abandoned its position that Dont Ask, Dont Tell was constitutional and did not defend the constitutionality of the statute in its briefs on appeal. Defendants opposed this motion, and we prepared and filed a reply in support of the motion to lift the stay. (Case Phase 19) (kk) On July 6, 2011, the Ninth Circuit granted our motion to lift the stay. The motions panels order reinstated this Courts injunction and prohibited the Defendants from investigating, discharging, or penalizing any servicemember under Dont Ask, Dont Tell. We reviewed and analyzed the decision. (Case Phase 19) (ll) On July 11, 2011, the Ninth Circuit merits panel ordered Defendants to state whether they intended to submit a report to Congress explaining their decision to refrain from defending the constitutionality of Dont Ask, Dont Tell. The Ninth Circuit also ordered the parties to show cause why the appeal should not be dismissed as moot either immediately or at such time as the President certified that the conditions for repeal had been satisfied. We prepared and submitted a letter brief in response to the order to show cause. (Case Phase 18) (mm) On July 14, 2011, Defendants filed a motion for reconsideration of the July 6 order. We prepared and filed both a preliminary and a full opposition. The Ninth Circuit issued its decision on July 22, 2011, holding that the stay entered November 1, 2010 would remain in place, except that the district courts judgment enjoining the government from investigating, penalizing, or discharging anyone from the military pursuant to the Dont Ask, Dont Tell policy would continue in effect. (Case Phase 19) (nn) In the following months, we submitted supplemental authority to the Ninth Circuit in support of Log Cabin Republicans answering brief and prepared for oral argument. On September 1, 2011, we appeared for oral argument before the Ninth Circuit. (Case Phase 18) - 13 LOSANGELES 934676 (2K)
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(oo) On September 20, 2011, in light of the repeal of Dont Ask, Dont Tell, Defendants submitted to the Ninth Circuit a motion to vacate the district court judgment on the ground of mootness. We researched, prepared and submitted an opposition to that motion. (Case Phase 20) (pp) On September 29, 2011, the Ninth Circuit issued its opinion finding the case to be moot and vacating the judgment of the district court. We reviewed and analyzed the decision. (Case Phase 24) (qq) We thereafter researched, prepared, and on October 13, 2011 filed a petition for panel rehearing or for rehearing en banc. The petition was denied on November 9, 2011. (Case Phase 21) (rr) Since the conclusion of the appellate proceedings, we have researched and prepared this application for an award of attorneys fees and expenses under the EAJA and Fed. R. Civ. P. 37. In connection with that, we have reviewed, analyzed, and categorized our fee bills for a period of over seven years, collected and organized the expenses incurred by our client, and met and conferred with the Government regarding the application including agreeing on a bifurcated presentation of the issues to the Court and an associated briefing schedule. (Case Phase 22) (ss) Following the entry of the district courts judgment in this case, we had also prepared and filed, on October 27, 2010, an Application to Tax Costs under Fed. R. Civ. P. and Local Rule 54. The Government opposed the application and filed objections. We researched and filed a response to the Governments objections. On February 3, 2011 the Court entered an order taxing costs in Log Cabins favor in the amount of $20,869.29. On March 1, 2011 the Government filed a motion to retax costs. We thereafter negotiated with the Government and reached an agreement that costs should be taxed in the amount of $20,838.36, but that enforcement of the bill of costs should be stayed until the conclusion of the appeal. The Court entered its order embodying that agreement on March 18, 2011. - 14 LOSANGELES 934676 (2K)
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(Case Phase 14) 12. In addition to the work described above, the lawyers who worked on this case spent a substantial amount of time on case maintenance and strategy, including many conversations and much correspondence with the government negotiating, resolving, or litigating numerous ancillary matters that arose during the course of this heavily contested litigation, as well as corresponding with the client, general legal research and analysis, monitoring discharge proceedings, staying upto-date on media relevant to Dont Ask, Dont Tell, communicating with counsel for attorneys in other pending challenges to Dont Ask, Dont Tell and reviewing filings and orders in those cases, maintaining seven years of litigation files, and participating in meetings to develop overall litigation strategy. 13. In addition, a significant component of this case required work outside of appearances and documents filed with the district court, Ninth Circuit, and United States Supreme Court. As attorneys challenging the constitutionality of a federal statute, specifically one concerning the equal rights of gay and lesbian soldiers, it was our obligation to assist our client in monitoring public perception of Dont Ask, Dont Tell and ensuring public awareness of the litigation. Thus, portions of our work involved attention to media and appearance requests, responding to press inquiries, and explaining the developments in the case to reporters, other interested parties, and the public at large. 14. Until early 2010, we handled much of the media relations responsibility for Log Cabin with respect to this litigation. After that time, R. Clarke Cooper, the new Executive Director of Log Cabin, took on much of that responsibility but we continued to be the main point of contact with the legal press, which provided an important outlet for publicity for the case among the legal and political communities whose support and understanding our client considered crucial to accomplishing the demise of Dont Ask, Dont Tell. - 15 LOSANGELES 934676 (2K)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15.
Personnel Who Worked on This Litigation Over the seven-plus years our firm has represented Log Cabin Republicans in this case, a large number of lawyers at the firm have worked on the case. The names, positions, year of bar admission, years in which these lawyers worked on the case, and their hourly rate at White & Cases standard rates are as follows: Standard Hourly Rate $750 $355-$395 $370 $295 $240-$320 $295 $220-$490 $435-$465 $295 $300-$510 $530 $300 $295 $370-$405 $295 $430-$620
Attorney Name Fernando Aenlle-Rocha* Francisco Cabada Susanna Chenette Sebyul Chun Tara Church Jacob Daniels Rachel Feldman* Lauren Fujiu Patrick Hagan Sayema Hameed Ruth Harlow Amanda Hayes Jonathan Hawk Michael Houske Kaoyu Hsu Patrick Hunnius Ronald Gorsich
Position Partner
Year of Year(s) of Admission Work on Case 1987 2010-11 2004-05 2010 2008 2004-05 2010 2006-11 2009-11 2009-10 2004-06, 2008 2004 2004 2008 2004-05 2010 2004-10 2010
Associate 2001 Associate 2008 Associate 2008 Associate 2005 Associate 2009 Associate 2006 Associate 2006 Associate 2009 Associate 2002 Counsel 1987 Associate 2003 Associate 2007 Associate 2002 Associate 2009 Partner 1994
Associate 2001 - 16 -
2004-06, 2008, $355-$560
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Aaron Kahn* Mark Lambert Kenneth Maikish C. Martin Meekins Danae McElroy Earle Miller* Kelly Morrison Devon Myers* Melissa Nadal Sara Phillips Timothy Rusche Arash Sadat Melanie Scott Micol Sordina Adam Summerfield Nicholas Van Brunt John Wells Daniel Woods*
Associate 2005 Partner 1998 Associate 2009 Associate 2003 Associate 2009 Counsel 1984 Associate 2008 Associate 2005 Associate 2010 Associate 2006 Associate 2004 Associate 2011 Associate 2004 Associate 2006 Associate 2008 Associate 2004 Counsel Partner 2002 1977
2006-11 2008 2010 2004-05 2010 2009-11 2009 2010-11 2010-11 2009 2004-07 2011 2009-10 2007 2009 2004-06 2010-11 2004-11
$270-$510 $620 $295 $415-$460 $295 $600-$610 $370 $490-$510 $295 $435 $370-$485 $295 $465-$490 $285 $295 $195-$330 $685 $570-$700
The primary members of Log Cabins trial team, including myself, are indicated above with an asterisk. The standard hourly rates shown for each attorney are consistent with the hourly rates charged by firms in the Los Angeles market of similar size, capabilities, and reputation as White & Case for attorneys of comparable seniority and experience working on complex litigation matters such as this. 16. In addition to these lawyers, several legal assistants worked on the case over the years. They are: - 17 LOSANGELES 934676 (2K)
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Legal Assistant Christina Abossedgh Antoine Bland Hillary Darnell Fortuna Davinson Daniel Duncan Maricela Garcia Andrea Koerte Robynn McCall Joan Quinn Marie Quitasol Cheryl Ripley 17. They were: Summer Associate Asal Akhondzadeh Whitney Baugh Kayla Burns Sebyul Chun Joshua Krebs Julian Lamm Andrew Mackintosh Sara Phillips 3 10 1 1 2 11 2 13 21 1 33
Years of Experience
Year(s) of Work on Case 2010 2010 2010 2005 2010 2006 2005-06 2009-11 2010 2010 2009-10
Standard Hourly Rate $205 $225 $125 $120 $205 $175 $100-$105 $195-$205 $250 $140 $250
Over the years on which the firm worked on the case, various summer
associates performed legal research and other tasks to assist the lawyers on the case.
Law School University of Southern California Loyola Law School Los Angeles Loyola Law School Los Angeles Stanford Law School Pepperdine University School of Law Loyola Law School Los Angeles University of Pennsylvania Law School University of Southern California - 18 -
Summer Year 2008 2005 2011 2006 2009 2011 2008 2005
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David Ruderman Micol Sordina William Troutman Zabi Nowaid Lauren Woodland Roye Zur
University of California Los Angeles University of California Los Angeles University of Southern California University Of California, Hastings College of Law University of California Los Angeles University of Southern California
2005 2005 2005 2007 2010 2009
While each of these individuals performed important services for the prosecution of the case, including conducting legal research and assisting in certain aspects of the trial, the fees sought in this motion do not include any fees for any time spent by any of these summer associates. 18. I believe that we handled the case efficiently and that all of the work we performed was necessary and appropriate. In the United States government, we had a committed, well-funded adversary, represented by very able counsel, who did everything they could to try to defeat Log Cabin Republicans claims. In my opinion, the amount of fees sought by this motion is reasonable. Specification of Fees Claimed in This Application Under EAJA 19. The following chart shows a summary of the number of hours and the fees incurred, broken down by phase of the case as characterized by services provided, as follows: Phase 1. 2. 3. Services Provided Preparing Complaint Opposing Motion to Dismiss Complaint Preparing First Amended Complaint Task(s) Total as Listed Hours in 11__ a 293.6 b, c 745.57 d 106.6 Total Fees at EAJA Rate $44,524.44 $115,179.88 $17,222.34
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
4. 5.
6.
7. 8. 9.
10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.
Opposing Motion to Dismiss First Amended Complaint Ex Parte Application to Vacate District Court Stay and Appeal to Ninth Circuit Opposing Motion to Certify Order Denying Motion to Dismiss for Interlocutory Appeal Preparing, Responding to, Conferring Regarding, and Moving to Compel Discovery Opposing Summary Judgment Motion Retaining Experts, Submitting Expert Reports, and Defending Experts at Depositions Retaining and Interviewing Lay Witnesses and Defending Them at Depositions Pre-Trial Filings Trial Preparation Trial Preparing Proposed Judgment and Other Post-Trial Filings Opposing Motion for Emergency Stay in District Court Opposing Application for Temporary Stay in Ninth Circuit Application to Supreme Court to Vacate Stay Appellate Briefing and Argument Motion to Vacate Stay Opposing Motion to Vacate Judgment Petition for Rehearing
e, i g l
358.6 202.3 106.3
$59,251.65 $34,967.56 $18,309.11
m, n, o, p, 2062 q t s 577.8 576
$358,945.21 $101,149.67 $100,429.93
u v, w x y z, aa, ss cc dd, ee ff gg, hh, ii, ll, nn jj, mm oo qq
143 1111.05 1184.5 407.4 349.6 140.15 249.8 210.9 784.7 232.7 44.4 63.6
$25,033.58 $193,811.25 $207,348.56 $71,319.44 $61,200.98 $24,534.66 $43,892.86 $36,920.15 $140,261.64 $41,771.98 $7,970.24 $11,416.84
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Fee Application (through December 31, 2011) Attention to Media Requests 23. and Appearances General Case Strategy and 24. Maintenance; Analysis of Developments TOTAL 22.
rr 13-14
304.8 627.9
$54,714.65 $110,543.12
f, h, j, k, r, 1328.43 $209,894.40 bb, kk, pp 12211.7 $ 2,090,614.13
The fees shown above are calculated at the lesser of our firms standard hourly rate for an individual or the EAJA rates by year as shown on the Ninth Circuits website, namely: 2004 - $ 151.65 per hour 2005 - $ 156.79 per hour 2006 - $ 161.85 per hour 2007 - $ 166.46 per hour 2008 - $ 172.85 per hour 2009 - $ 172.24 per hour 2010 - $ 175.06 per hour 2011 - $ 179.51 per hour By way of comparison, at our standard hourly rates the amount shown on the TOTAL line above would be $5,774,529.50. 20. 21. We have also incurred additional time since December 31, 2012 in the As noted above, the fee calculation does not include any fees for time preparation of this fee application, but have not yet calculated that amount. billed by summer associates. In addition, we have excluded certain time from the fee claim herein to eliminate any component for a number of particular tasks including the following: time by law librarians, whose professional time we normally charge to clients; time by attorneys spent on logistical or purely clerical tasks such as making travel arrangements for witnesses and the trial team; transporting witnesses between the airport and the trial; observing the trial - 21 LOSANGELES 934676 (2K)
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proceedings in the gallery; and the like. Fee Claim Under Fed. R. Civ. P. 37(c) 22. As set forth above, we served a set of Requests for Admission in late 2009. In three of those requests, Nos. 3, 4, and 5, we requested that the government admit: that Dont Ask, Dont Tell does not contribute to our national security; that Dont Ask, Dont Tell weakens our national security; and that discharging members pursuant to Dont Ask, Dont Tell weakens our national security. Each of those requests for admission was directly based on a statement of President Obama on June 29, 2009 in a speech to a White House audience. 23. The government served its initial responses to the requests for admission on January 28, 2010. As to requests 3, 4, and 5, the government neither admitted nor denied each request, but served a lengthy objection. A true and correct copy of the relevant portion of Defendants Objections and Responses to Plaintiffs First Set of Requests for Admission is attached hereto as Exhibit 1. 24. Because these three requests for admission went to the heart of Log Cabins facial challenge to Dont Ask, Dont Tell, we applied for an order compelling the government to respond to the requests. As set forth above, Magistrate Judge Eick granted the application on March 16, 2010, ordering the Government to unqualifiedly admit or deny the requests. On April 6, 2010, after the government filed a motion for review, the district court affirmed the Magistrate Judges order. The government then responded to the requests for admission on April 12, 2010. The governments Supplemental Responses to each of requests 3, 4, and 5, after an introductory explanation and purported justification, was a straight denial. A true and correct copy of those Supplemental Responses is attached hereto as Exhibit 2. 25. At the trial of this matter, Log Cabin presented evidence of the truth of each of the matters in those three requests for admission. In my view, with the exception of the testimony and documentary evidence related to Log Cabins - 22 LOSANGELES 934676 (2K)
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standing to sue, all of the trial testimony of both the expert and lay witnesses, and every piece of written evidence introduced, went to prove the truth of the facts that Dont Ask, Dont Tell does not contribute to the national security of the United States, that it weakens national security, and that discharge of servicemembers pursuant to Dont Ask, Dont Tell weakens national security. These facts were the core of our proof that Dont Ask, Dont Tell violated the Fifth and First Amendments, and each of those facts was material to the Courts decision in Log Cabins favor. 26. The testimony of each of the expert and lay witnesses established that Dont Ask, Dont Tell did not contribute to, or weakened, national security, and that the discharge of servicemembers under Dont Ask, Dont Tell weakened national security. In particular, the Court found, in its Findings of Fact and Conclusions of Law (Doc. 251), that DADT did not significantly advance the Governments interests in military readiness or unit cohesion (Finding of Fact 135); that DADT resulted in the discharge of qualified servicemembers despite troop shortages (Findings of Fact 136-139); that DADT resulted in the discharge of servicemembers with critically needed skills and training (Findings of Fact 140141); that DADT resulted in the admission to the armed services of lesser qualified enlistees, including felons and individuals with lower levels of education and physical fitness (Findings of Fact 147-149); that DADT had a significant negative impact on military recruiting, both in volume and in cost (Findings of Fact 142146); that DADT was not necessary to protect unit cohesion, privacy, and military readiness (Findings of Fact 159-176); and that DADT had a chilling effect on the First Amendment rights of servicemembers and restricted their speech more than reasonably necessary to protect the Governments interests (Findings of Fact 178187). 27. In addition to the calculation of fees incurred at EAJA statutory rates set forth in paragraph 19 above, we have calculated the hours, and the fees incurred - 23 LOSANGELES 934676 (2K)
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at White & Case LLPs standard hourly rates, for the categories above denominated Phases 7, 9, 10, 11, 12, and 13, for the time period beginning January 28, 2010, when Defendants served their initial responses to our Requests for Admission, through the end of trial on July 23, 2010. A total of 4708.5 hours are attributable to those categories for that time period; those fees total $2,235,656.00, with the same exclusions listed in paragraph 21. The fees for the same categories and time period computed at EAJA rates total $823,495.74. Expenses 28. The expert witness fees incurred by Log Cabin Republicans in connection with testimony and services provided by Aaron Belkin, Melissa Sheridan Embser-Herbert, Elizabeth Hillman, and Nathaniel Frank total $30,175.00. The other expert witnesses who testified at trial, Lawrence Korb, Robert MacCoun, and Alan Okros, did not charge expert witness fees. 29. The other expenses that Log Cabin incurred that it claims in this motion pertain to travel expenses, including airfare, hotel, meals, and related expenses. Log Cabin claims those expenses under EAJA for its expert witnesses, and under Fed. R. Civ. P. 37(c) for its expert witnesses, lay witnesses, and trial team. Those expenses total $5,178.90 on the EAJA claim, and $17,408.64 on the Rule 37 claim. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 12, 2012, at Los Angeles, California. /s/ Dan Woods Dan Woods
EXHIBIT 1
EXHIBIT 2
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Case No. CV 04-8425 VAP (Ex) DECLARATION OF R. CLARKE COOPER IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS MOTION FOR ATTORNEYS FEES Judge: Hon. Virginia A. Phillips Date: February 27, 2012 Time: 2:00 p.m. Crtm: 2
DECLARATION OF R. CLARKE COOPER IN SUPPORT OF MOTION FOR ATTORNEYS FEES
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DECLARATION OF R. CLARKE COOPER I, R. Clarke Cooper, declare as follows: 1. I am the Executive Director of Log Cabin Republicans (Log Cabin).
Log Cabin is a 501(c)(4) corporation organized since 1993 under the District of Columbia Nonprofit Corporation Act. Log Cabin promotes legislation to provide basic fairness for gay and lesbian Americans and works to build a more inclusive Republican Party. The organization has state and local chapters nationwide, a fulltime office in Washington, D.C., a federal political action committee, and state political action committees. 2. If called and sworn as a witness, I would be able to testify
competently, of my own personal knowledge or based on my knowledge and review of the regularly-maintained business records of Log Cabin, to the truth of the matters contained in this declaration. 3. At the time this case was filed in 2004, Log Cabins net worth did not
exceed $7,000,000 and the organization had fewer than 500 employees. Both of those statistics are still true today. 4. One of Log Cabins major policy objectives has been to end the
discriminatory Dont Ask, Dont Tell law and policy. We have carried on this objective in multiple arenas, including via this lawsuit, lobbying of the White House and Congress, public relations and public awareness campaigns, and in other ways. 5. Log Cabin has always considered it important to continually gauge the
public perception of Dont Ask, Dont Tell, and to sway public and legislative opinion towards the elimination of the law. One means we have employed to do so has been to ensure public awareness of this litigation and its progress in the courts. To that end we have always actively cooperated with the press and the media to publicize this lawsuit, its importance as a civil rights struggle, and the significance of developments in it. -1LOSANGELES 938664 (2K)
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6.
Before I became Executive Director of Log Cabin in early 2010, our
attorneys at White & Case played an important role in press liaison, at Log Cabins request. When I became the organizations Executive Director, I personally took on much of the media relations responsibility that White & Case previously had had to handle. Indeed, that was an important part of the job that Log Cabin hired me for. However, we asked our attorneys to continue to be the main point of contact with the legal press (for example, the American Lawyer, the National Law Journal, the Daily Journal, and the Recorder), which provided an important outlet for publicity for the case among the legal and political communities whose support and understanding were crucial to accomplishing the demise of Dont Ask, Dont Tell. 7. Throughout the course of the case we have expected our attorneys at
White & Case to devote time and attention to media and appearance requests, responding to press inquiries and explaining the developments in the case to reporters, other interested parties, and the public at large. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January ___, 2012, at _______________, ___________. ___________________________ R. Clarke Cooper
-2LOSANGELES 938664 (2K)

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Case 2:04-cv-08425-VAP-E Document 326

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January 12, 2012

WHITE & CASE LLP

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. VI. C. 2. IV. B. I. II. III.

The Governments Position Was Not Substantially Justified ........ 12

SUMMARY STATEMENT OF AMOUNTS CLAIMED ........................ 21 CONCLUSION ............................................................................................. 23

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CONSTITUTION First Amendment ...........................................................................................2, 13, 16 Fifth Amendment................................................................................................. 2, 13

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