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William C. McNeill, III, State Bar No. 64392 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227 LEGAL AID SOCIETYEMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 Email: wmcneill@las-elc.org ccenter@las-elc.org ekristen@las-elc.org Daniel S. Mason, State Bar No. 54065 Patrick Clayton, State Bar No. 240191 Zelle Hofmann Voelbel & Mason LLP 44 Montgomery St Ste 3400 San Francisco, CA 94104 Telephone: (415) 693-0700 Facsimile: (415) 693-0770 Email: pclayton@zelle.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) MICHAEL DRAGOVICH, MICHAEL Case No. CV 4:10-01564-CW GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, DAVID BEERS, PLAINTIFFS ADMINISTRATIVE MOTION CHARLES COLE, RAFAEL V. DOMINGUEZ, AND MEMORANDUM IN SUPPORT OF and JOSE G. HERMOSILLO, on behalf of MOTION TO EXTEND TIME TO FILE MOTION themselves and all others similarly situated, FOR REASONABLE ATTORNEYS FEES, COSTS AND EXPENSES AS TO INTERVENER Plaintiffs, THE BILATERAL LEGAL ADVISORY GROUP v. OF THE UNITED STATES HOUSE AND UNITED STATES DEPARTMENT OF THE [PROPOSED] ORDER TREASURY, TIMOTHY GEITHNER, in his official capacity as Secretary of the Treasury, [Local Rules 6-3] United States Department of the Treasury, INTERNAL REVENUE SERVICE, DOUGLAS [Hon. Claudia Wilken] SHULMAN, in his official capacity as Commissioner of the Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS, Defendants.

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Pursuant to Civil Local Rule 6-3, the Plaintiffs move the Court for an order extending the time for them to file a motion for statutory attorneys fees and for litigation costs and expenses. While the Federal Defendants and the State Defendants have graciously signed a joint stipulation to this effect, filed herewith, BLAG has been unwilling to sign such a stipulation. Therefore, plaintiffs have filed this motion with respect to any motion for reasonable attorneys fees, costs and expenses that they may file against BLAG. Assuming the Court grants plaintiffs extension requested via stipulation, any motion for attorneys fees, costs and expenses would be filed regarding all defendants and BLAG on the same day: August 22, 2012. Reasons for Request This successful action involved entities from whom prevailing plaintiffs may seek reasonable attorneys fees, costs and expenses (attorneys fees) via different statutes such as the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412 and 42 U.S.C. 1988 (Section 1988). However, EAJA and Section 1988 provide for two very different time frames within which to file an attorneys fee motion. EAJA provides that such a motion be filed within thirty days of final judgment. 28 U.S.C. 2412(d)(1)(B). Under Ninth Circuit authority, the judgment is final on the date that a petition for certiorari becomes untimely. Zheng v. Ashcroft, 383 F.3d 919, 920 (9th Cir. 2004), citing Al-Harbi v. INS, 284 F.3d 1080, 1083-1085 (9th Cir. 2002). However, Section 1988 fee motions are governed by the general rule that motions for fees be filed no later than 14 days after the entry of judgment. Fed. R. Civ. P. 54(d)(2)(B). Because plaintiffs fee motion under section 1988 and their motion under EAJA will necessarily involve very similar considerations, such as determinations regarding rates and hours, it is efficient to

21 have plaintiffs file one motion regarding reasonable fees, costs and expenses sought from all 22 23 24 25 26 27 28 other parties. However, because of the complexity of the fee motion and the involvement of multiple entities and at least two separate fee statutes, it has not been possible for plaintiffs counsel to prepare and file their fee motion within the short time frame provided by the Federal Rules of Civil Procedure. Moreover, as explained further below, and it the attached Declaration of Elizabeth Kristen, plaintiffs counsel diligently sought a stipulation from all parties beginning on the day after the Courts final judgment was entered and continuing through June 5, 2012.
MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

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See Kristen Decl. 4-14 and Exhs. A-H thereto. It was only on June 5, 2012, that it became clear that BLAG would not stipulate to additional time. Kristen Decl. 14. Plaintiffs counsel reasonably expected that all parties would agree to stipulate to more time for plaintiffs motion. Kristen Decl. 15. Therefore, by the time BLAG informed plaintiffs counsel that it would not stipulate, it was too late to draft and complete an entire fee petition. Id. Plaintiffs Efforts to Obtain a Stipulation to Relief Sought Beginning on the day after this Court entered judgment, plaintiffs counsel diligently sought to have all parties stipulate to additional time. As detailed in the Declaration of Elizabeth Kristen, plaintiffs counsel emailed defendants and interveners counsel numerous times over twelve days from May 25, 2012 through June 5, 2012. Kristen Decl. 4-14 & Exhs. A-H. While the federal defendants and the state defendants agreed to a joint stipulation (filed herewith), counsel for BLAG ultimately refused. Id. Plaintiffs will Suffer Substantial Prejudice if this Motion is Denied Whereas there is no Prejudice to BLAG (or the other Defendants) if this Motion is Granted BLAG cannot be prejudiced by the Courts granting this motion for additional time. While BLAG asserts it has no liability for plaintiffs fees, costs and expenses, the merits of plaintiffs claim are not at issue here. The other defendants have stipulated to more time as described above and in the joint stipulation filed herewith. Therefore, there is no prejudice to the defendants. Plaintiffs would be substantially and severely prejudiced if this Court were to deny their motion as they would be prevented from presenting a full and complete application for

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attorneys fees, costs and expenses. In another case, this Court granted plaintiffs counsels administrative motion for additional time in which to file an attorneys fee motion. Muniz v. United Parcel Serv., Inc., Case No. C-09-01987-CW, Docket No. 151 (Oct. 28, 2010).

MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

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For the reasons stated above, plaintiffs request the Court grant their motion to extend the time for the filing of their motion for reasonable attorneys fees, costs and expenses. Respectfully submitted, LEGAL AID SOCIETY EMPLOYMENT LAW CENTER June 7, 2012 By: s/Elizabeth Kristen Elizabeth Kristen, Counsel for Plaintiffs

MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

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MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

[Proposed] ORDER The Plaintiffs are granted leave to file a motion for reasonable attorneys fees, costs and expenses on August 22, 2012. It is so ordered.

Dated

UNITED STATES DISTRICT JUDGE

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William C. McNeill, III, State Bar No. 64392 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227 LEGAL AID SOCIETYEMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 Email: wmcneill@las-elc.org ccenter@las-elc.org ekristen@las-elc.org Daniel S. Mason, State Bar No. 54065 Patrick Clayton, State Bar No. 240191 Zelle Hofmann Voelbel & Mason LLP 44 Montgomery St Ste 3400 San Francisco, CA 94104 Telephone: (415) 693-0700 Facsimile: (415) 693-0770 Email: pclayton@zelle.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) MICHAEL DRAGOVICH, MICHAEL GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, DAVID BEERS, CHARLES COLE, RAFAEL V. DOMINGUEZ, and JOSE G. HERMOSILLO, on behalf of themselves and all others similarly situated, Case No. CV 4:10-01564-CW DECLARATION OF ELIZABETH KRISTEN IN SUPPORT OF PLAINTIFFS ADMINISTRATIVE MOTION TO EXTEND TIME TO FILE MOTION FOR REASONABLE ATTORNEYS FEES, COSTS AND EXPENSES AS TO INTERVENER THE BILATERAL LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE

Plaintiffs, v. UNITED STATES DEPARTMENT OF THE TREASURY, TIMOTHY GEITHNER, in his [Local Rules 6-3] official capacity as Secretary of the Treasury, United States Department of the Treasury, INTERNAL REVENUE SERVICE, DOUGLAS [Hon. Claudia Wilken] SHULMAN, in his official capacity as Commissioner of the Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS, Defendants.

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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 2012.

I, Elizabeth Kristen declare that: 1. I am counsel of record for the class of plaintiffs in this matter, and am

licensed to practice law throughout California. 2. The Legal Aid Society Employment Law Center (Legal Aid) and

Zelle Hofmann Voelbel & Mason LLP jointly represent the class in this matter. 3. This Courts Judgment was entered in favor of plaintiffs on May 24,

4.

On May 25, 2012, plaintiffs counsel emailed counsel for defendants and

interveners to request that they stipulate to the timing of plaintiffs motion for reasonable attorneys fees and costs. A true and correct copy of this email and the attached draft stipulation are attached as Exhibit A. 5. On May 29, 2012, counsel for the state defendants emailed that they had

no objection to the proposed stipulation. On June 6, 2012, the state defendants also agreed to sign the stipulation as it had been edited. 6. On May 29, 2012, counsel for BLAG emailed to say that his client took

no position on the stipulation. This response was puzzling to me and seemed nonresponsive to plaintiffs request. A true and correct copy of this email from BLAGs counsel is attached as Exhibit B. 7. On May 29, 2012 and May 30, 2012, I received emails from the federal

defendants counsel regarding the stipulation. 8. On May 30, 2012, I renewed my request that all parties enter a joint

stipulation. A true and correct copy of this email is attached as Exhibit C. 9. On May 31, 2012, I received additional emails from the federal

defendants counsel regarding the stipulation. 10. On June 1, 2012, I sent another email to all counsel with an amended

stipulation designed to address the concerns raised by federal defendants counsel. I

KRISTEN DECL. ISO MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

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again asked all counsel to sign. A true and correct copy of this email is attached as Exhibit D. 11. On June 4, 2012, counsel for the federal defendant sent additional

requested edits that plaintiffs counsel incorporated. On June 6, 2012, federal defendants counsel agreed to sign the edited stipulation. Plaintiffs counsel then sent the revised stipulation to all counsel, again asking specifically if BLAG would sign the stipulation. A true and correct copy of this email is attached as Exhibit E. 12. On June 4, 2012, counsel for BLAG informed plaintiffs counsel that he

would respond to my email on the following day. A true and correct copy of this email is attached as Exhibit F. 13. On June 5, 2012, counsel for BLAG responded that BLAG declined to

sign the stipulation because it did not believe it had any liability for fees, costs or expenses. A true and correct copy of this email is attached as Exhibit G. 14. Plaintiffs counsel responded the same day to again ask whether BLAG

would sign the stipulation for an extension of time, regardless of its position on liability in order to avoid the filing of this motion. Counsel for BLAG replied and again declined to sign the stipulation. True and correct copies of these emails are attached as Exhibit H. 15. I reasonably believed that all parties would sign the stipulation for

additional time for plaintiffs motion. By the time I heard from BLAG on June 5, 2012, that it would not agree to an extension of time, it was too late to complete plaintiffs fee motion. I declare under penalty of perjury under the laws of the State of California and of the United States of America that the foregoing is true and correct, and that this declaration was executed in San Francisco, California on June 7, 2012.

s/Elizabeth Kristen
KRISTEN DECL. ISO MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

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KRISTEN DECL. ISO MOTION FOR ADDITIONAL TIME AND [PROPOSED] ORDER Case No. CV 4:10-01564-CW

Elizabeth Kristen, Counsel for Plaintiffs

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EXHIBIT A

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page2 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Attachments: Elizabeth Kristen Friday, May 25, 2012 2:44 PM Gregory, Edward; 'Lin, Jean (CIV)'; Christopher Bartolomucci Claudia Center; William McNeill Dragovich v. Treasury, 10-1564 Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-2).DOC

DearCounsel Plaintiffsintendtofileamotionforfeesandcosts.However,weareseekingastipulationregardingthetimingofsucha motion.Asyouwillseeintheattacheddraft,weproposedAugust22,2012,asthefilingdateforthefeemotion. Pleaseletmeknowwhetheryouhaveanyobjectiontotheattachedstipulation. Regards Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page3 of 33

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William C. McNeill, III, State Bar No. 64392 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227 LEGAL AID SOCIETYEMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 Email: wmcneill@las-elc.org ccenter@las-elc.org ekristen@las-elc.org Daniel S. Mason, State Bar No. 54065 Patrick Clayton, State Bar No. 240191 Zelle Hofmann Voelbel & Mason LLP 44 Montgomery St Ste 3400 San Francisco, CA 94104 Telephone: (415) 693-0700 Facsimile: (415) 693-0770 Email: pclayton@zelle.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) MICHAEL DRAGOVICH, MICHAEL GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, DAVID BEERS, CHARLES COLE, RAFAEL V. DOMINGUEZ, and JOSE G. HERMOSILLO, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE TREASURY, TIMOTHY GEITHNER, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, INTERNAL REVENUE SERVICE, DOUGLAS SHULMAN, in his official capacity as Commissioner of the Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS, Defendants. Case No. CV 4:10-01564-CW STIPULATION AND PROPOSED ORDER REGARDING PLAINTIFFS MOTION FOR REASONABLE ATTORNEYS FEES AND COSTS

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1 WHEREAS, on May 24, 2012, this Court entered judgment in favor of plaintiffs; 2 WHEREAS, this Court, in its Order Granting Plaintiffs Motion for Summary Judgment 3 and Denying the BLAGs and Federal Defendants Cross-Motions for Summary Judgment, 4 dated May 24, 2012, specifically allowed Plaintiffs to submit a motion seeking attorneys fees 5 and costs; 6 WHEREAS, plaintiffs intend to file a motion for reasonable attorneys fees and costs; 7 WHEREAS, Rule 54 (B) of the Federal Rules of Civil Procedure sets forth the 8 procedure and timing for a plaintiffs recovery of attorneys fees, and that rule requires that a 9 motion for such fees be filed within 14 days after entry of judgment; while, correspondingly, 28 10 U.S.C. 2412, which provides for a plaintiffs recovery of attorneys fees against the Federal 11 Government, or any agency, or any official of the United States acting in his or her official 12 capacity, requires that a motion for such fees and other expenses be filed within 30 days of final 13 judgment in the action; 14 WHEREAS, plaintiffs are seeking additional time within which to file their motion for 15 reasonable attorneys fees and costs; 16 WHEREAS, all parties have agreed to allow plaintiffs additional time within which to 17 file their motion for reasonable attorneys fees and costs; 18 THEREFORE, IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS: 19 Plaintiffs motion for reasonable attorneys fees and costs will be filed on or before 20 August 22, 2012. 21 22 23 24 25 26 27 28
Stipulation and Proposed Order Case No. CV 4:10-01564-CW Page 1

So stipulated, LEGAL AID SOCIETY EMPLOYMENT LAW CENTER

Dated:

By: Claudia Center, Counsel for Plaintiffs

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1 2 3 4 5 6 Dated: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Stipulation and Proposed Order Case No. CV 4:10-01564-CW

BIPARTISAN LEGAL ADVISORY GROUP OF THE HOUSE OF REPRESENTATIVES

Dated:

By: H. Christopher Bartolomucci, Counsel for BLAG

By: Edward Gregory, Counsel for Defendants CalPERS and Stausboll

U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION

Dated:

By: Jean Lin, Counsel for Federal Defendants

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1 2 3 4 5 6 7 8 9 has been obtained from each of the signatories, and I shall maintain records to support 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Stipulation and Proposed Order Case No. CV 4:10-01564-CW Page 3

GENERAL ORDER 45 ATTESTATION In accordance with General Order 45, concurrence in the filing of this document

this concurrence for subsequent production for the court if so ordered or for inspection upon request by a party. /s/ Claudia Center Claudia Center

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ORDER It is so ordered.

Dated

UNITED STATES DISTRICT JUDGE

Stipulation and Proposed Order Case No. CV 4:10-01564-CW

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EXHIBIT B

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page9 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Attachments: Kircher, Kerry [Kerry.Kircher@mail.house.gov] Tuesday, May 29, 2012 8:04 AM Elizabeth Kristen; Lin, Jean (CIV) Christopher Bartolomucci FW: Dragovich v. Treasury, 10-1564 Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-2).DOC

Elizabeth:Housetakesnopositiononthissinceitdoesnotappeartoconcernus.(Ifyouthinkyoumotionfor fees/costswouldlieagainsttheHouse,wouldappreciateyoursoadvisingme.) SuggestyoudropusoutofthesignatureblockandjustincludeaWhereasclausesayingHousetakesnoposition. Thanks. kwk

From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Friday, May 25, 2012 5:44 PM To: Gregory, Edward; Lin, Jean (CIV); Christopher Bartolomucci Cc: Claudia Center; William McNeill Subject: Dragovich v. Treasury, 10-1564

DearCounsel Plaintiffsintendtofileamotionforfeesandcosts.However,weareseekingastipulationregardingthetimingofsucha motion.Asyouwillseeintheattacheddraft,weproposedAugust22,2012,asthefilingdateforthefeemotion. Pleaseletmeknowwhetheryouhaveanyobjectiontotheattachedstipulation. Regards Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

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EXHIBIT C

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page11 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Elizabeth Kristen Wednesday, May 30, 2012 4:32 PM 'Lin, Jean (CIV)'; jmorrow@steptoe.com; egregory@steptoe.com Christopher Bartolomucci; Kircher, Kerry; William McNeill; Claudia Center RE: Dragovich v. Treasury, 10-1564

DearCounsel Thankstoallofyouforresponding,andtotheStatedefendantsforagreeingtostipulatetoadditionaltimeforour motionforreasonablefeesandcosts. Wearestillconsideringseekingfeesunder42USCsection1988againsttheBLAGandtheFederalDefendants. Therefore,werenewourrequestforastipulationforadditionaltimesothatwemayfullyconsiderthisquestionandfile ourmotionoutsidethe14dayperiodifwedecidetodoso. Pleaseletmeknowifyouarewillingtostipulate. Thanks Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

From: Lin, Jean (CIV) [mailto:Jean.Lin@usdoj.gov] Sent: Wednesday, May 30, 2012 6:47 AM To: Elizabeth Kristen; jmorrow@steptoe.com; egregory@steptoe.com Cc: Christopher Bartolomucci; Kircher, Kerry Subject: RE: Dragovich v. Treasury, 10-1564

Jennifer and Ed: My apologies. I neglected to include the both of you in my email response to Elisabeth yesterday. Please see below the federal defendants position. Elizabeth, please take a look at this 9th Circuit case, Al-Harbi v. INS, 284 F.3d 1080 (9th Cir. 2002). It confirms what I said below both about the timing and the fact that we cant extend the deadline by agreement.
Jean Lin Senior Trial Counsel U.S. Dept of Justice, Civil Div. Federal Programs Branch (202) 514-3716 From: Lin, Jean (CIV) Sent: Tuesday, May 29, 2012 12:26 PM
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To: Kircher, Kerry; EKristen@las-elc.org Cc: Christopher Bartolomucci Subject: RE: Dragovich v. Treasury, 10-1564

Elizabeth: I dont think you need an extension until August 22. By my calculation, your fee motion is due August 22 anyway at the earliest (i.e., 90 days from May 24), if there is no appeal. But we are still considering the issue of appeal, so your deadline could be much later. Specifically, 28 USC 2412(d)(1)(A) says that a motion for an award of fees and other expenses shall be filed within thirty days of final judgment in the action. Section 2412(d)(2)(G) defines final judgment to mean a judgment that is final and not appealable, and includes an order of settlement. The 5/24 judgment becomes non-appealable on 7/23, which is 60 days from 5/24. And if no one appeals, then 30 days from 7/23 would be your deadline for seeking fees and other expenses, which would be August 22. If you are concerned about Rule 54(d)(2)(B), it says that a motion for fees must be filed no later than 14 days of the entry of judgment, [u]nless a statute or a court order providers otherwise. When you are seeking fees against the United States, EAJA is the statute that controls. As for costs (which are specifically spelled out in 28 USC 1920), Rule 54(d)(1) just says that the clerk may tax costs on 14 days notice, and on motion served within the next 7 days, the court may review the clerks action. I dont see a deadline for asking for costs. Also, my understanding is that the deadline specified under 28 USC 2412(d)(1)(A) cannot be extended by agreement as it is a waiver of sovereign immunity and hence jurisdictional. Let me know what you think.
Jean Lin Senior Trial Counsel U.S. Dept of Justice, Civil Div. Federal Programs Branch (202) 514-3716 From: Kircher, Kerry [mailto:Kerry.Kircher@mail.house.gov] Sent: Tuesday, May 29, 2012 11:04 AM To: EKristen@las-elc.org; Lin, Jean (CIV) Cc: Christopher Bartolomucci Subject: FW: Dragovich v. Treasury, 10-1564

Elizabeth:Housetakesnopositiononthissinceitdoesnotappeartoconcernus.(Ifyouthinkyoumotionfor fees/costswouldlieagainsttheHouse,wouldappreciateyoursoadvisingme.) SuggestyoudropusoutofthesignatureblockandjustincludeaWhereasclausesayingHousetakesnoposition. Thanks. kwk

From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Friday, May 25, 2012 5:44 PM To: Gregory, Edward; Lin, Jean (CIV); Christopher Bartolomucci Cc: Claudia Center; William McNeill Subject: Dragovich v. Treasury, 10-1564

DearCounsel
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Plaintiffsintendtofileamotionforfeesandcosts.However,weareseekingastipulationregardingthetimingofsucha motion.Asyouwillseeintheattacheddraft,weproposedAugust22,2012,asthefilingdateforthefeemotion. Pleaseletmeknowwhetheryouhaveanyobjectiontotheattachedstipulation. Regards Elizabeth
Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

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EXHIBIT D

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page15 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Attachments: Elizabeth Kristen Friday, June 01, 2012 3:53 PM 'Lin, Jean (CIV)'; Christopher Bartolomucci; 'Gregory, Edward'; Morrow, Jennifer Claudia Center; William McNeill Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

HiAll IhaverevisedthestipulationtoendeavortoaddressJeansconcerns.Canyouallletmeknowifyouwillsignthis? Thanks Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page16 of 33

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William C. McNeill, III, State Bar No. 64392 Claudia Center, State Bar No. 158255 Elizabeth Kristen, State Bar No. 218227 LEGAL AID SOCIETYEMPLOYMENT LAW CENTER 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 Email: wmcneill@las-elc.org ccenter@las-elc.org ekristen@las-elc.org Daniel S. Mason, State Bar No. 54065 Patrick Clayton, State Bar No. 240191 Zelle Hofmann Voelbel & Mason LLP 44 Montgomery St Ste 3400 San Francisco, CA 94104 Telephone: (415) 693-0700 Facsimile: (415) 693-0770 Email: pclayton@zelle.com Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) MICHAEL DRAGOVICH, MICHAEL GAITLEY, ELIZABETH LITTERAL, PATRICIA FITZSIMMONS, CAROLYN LIGHT, CHERYL LIGHT, DAVID BEERS, CHARLES COLE, RAFAEL V. DOMINGUEZ, and JOSE G. HERMOSILLO, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE TREASURY, TIMOTHY GEITHNER, in his official capacity as Secretary of the Treasury, United States Department of the Treasury, INTERNAL REVENUE SERVICE, DOUGLAS SHULMAN, in his official capacity as Commissioner of the Internal Revenue Service, BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and ANNE STAUSBOLL, in her official capacity as Chief Executive Officer, CalPERS, Defendants. Case No. CV 4:10-01564-CW STIPULATION AND PROPOSED ORDER REGARDING PLAINTIFFS MOTION FOR REASONABLE ATTORNEYS FEES AND COSTS

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page17 of 33

1 WHEREAS, on May 24, 2012, this Court entered judgment in favor of plaintiffs; 2 WHEREAS, this Court, in its Order Granting Plaintiffs Motion for Summary Judgment 3 and Denying the BLAGs and Federal Defendants Cross-Motions for Summary Judgment, 4 dated May 24, 2012, specifically allowed Plaintiffs to submit a motion seeking attorneys fees 5 and costs; 6 WHEREAS, plaintiffs intend to file a motion for reasonable attorneys fees and costs; 7 WHEREAS, Rule 54 (B) of the Federal Rules of Civil Procedure sets forth the 8 procedure and timing for a plaintiffs recovery of attorneys fees, and that rule requires that a 9 motion for such fees be filed within 14 days after entry of judgment; while, correspondingly, 28 10 U.S.C. 2412 (EAJA), which provides for a plaintiffs recovery of attorneys fees against the 11 Federal Government, or any agency, or any official of the United States acting in his or her 12 official capacity, requires that a motion for such fees and other expenses be filed within 30 days 13 of final judgment in the action; 14 WHEREAS, plaintiffs are seeking additional time within which to file any motion for 15 reasonable attorneys fees and costs that do not arise under EAJA; 16 WHEREAS, all parties have agreed to allow plaintiffs additional time within which to 17 file their motion for reasonable attorneys fees and costs that do not arise under EAJA; 18 WHEREAS, the deadline for filing their motion for reasonable attorneys fees and costs 19 under EAJA is not affected by this stipulation. 20 WHEREAS, defendants do not concede that plaintiffs are entitled to recover attorneys 21 fees and costs by entering into this stipulation for an extension of time. 22 THEREFORE, IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS: 23 Plaintiffs motion for reasonable attorneys fees and costs will be filed on or before 24 August 22, 2012. 25 26 27 28
Stipulation and Proposed Order Case No. CV 4:10-01564-CW Page 1

So stipulated, LEGAL AID SOCIETY EMPLOYMENT LAW CENTER

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Stipulation and Proposed Order Case No. CV 4:10-01564-CW Page 2

Dated:

By: Claudia Center, Counsel for Plaintiffs

BIPARTISAN LEGAL ADVISORY GROUP OF THE HOUSE OF REPRESENTATIVES

Dated:

By: H. Christopher Bartolomucci, Counsel for BLAG BOARD OF ADMINISTRATION OF CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and ANNE STAUSBOLL

Dated:

By: Edward Gregory, Counsel for Defendants CalPERS and Stausboll

U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION

Dated:

By: Jean Lin, Counsel for Federal Defendants

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Stipulation and Proposed Order Case No. CV 4:10-01564-CW Page 3

GENERAL ORDER 45 ATTESTATION In accordance with General Order 45, concurrence in the filing of this document has been obtained from each of the signatories, and I shall maintain records to support this concurrence for subsequent production for the court if so ordered or for inspection upon request by a party. /s/ Claudia Center Claudia Center

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ORDER It is so ordered.

Dated

UNITED STATES DISTRICT JUDGE

Stipulation and Proposed Order Case No. CV 4:10-01564-CW

Page 4

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page21 of 33

EXHIBIT E

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page22 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Elizabeth Kristen Monday, June 04, 2012 11:30 AM 'Lin, Jean (CIV)'; Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Claudia Center; William McNeill RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

ThanksJean.IassumethisisstillokfortheStatedefendants.CanyouconfirmEd?Also,Christopher,canyouletme knowwhetherBLAGwillsign? Regards Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

From: Lin, Jean (CIV) [mailto:Jean.Lin@usdoj.gov] Sent: Monday, June 04, 2012 10:57 AM To: Elizabeth Kristen; Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Cc: Claudia Center; William McNeill Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth: Thanks for the revision. Please see my attached edits, which are principally just to reflect that EAJA doesnt cover costs, only fees and expenses, and the 30 day after final judgment rule is only for fees and expenses under 2412(d). The separate waiver for sovereign immunity for costs is in 2412(a), which is not part of EAJA.
Jean Lin Senior Trial Counsel U.S. Dept of Justice, Civil Div. Federal Programs Branch (202) 514-3716 From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Friday, June 01, 2012 6:53 PM To: Lin, Jean (CIV); Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer Cc: Claudia Center; William McNeill Subject: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

HiAll
1

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page23 of 33

IhaverevisedthestipulationtoendeavortoaddressJeansconcerns.Canyouallletmeknowifyouwillsignthis? Thanks Elizabeth
Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page24 of 33

EXHIBIT F

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page25 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Christopher Bartolomucci [cbartolomucci@bancroftpllc.com] Monday, June 04, 2012 11:46 AM Elizabeth Kristen; Lin, Jean (CIV); Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Claudia Center; William McNeill RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Iwill,Elizabeth,butIneedtoconferwithmyclient,andwearefinalizingandfilingour9thCircuitbriefinGolinskitoday, soitwillprobablybetomorrow.
From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Monday, June 04, 2012 2:30 PM To: Lin, Jean (CIV); Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Cc: Claudia Center; William McNeill Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

ThanksJean.IassumethisisstillokfortheStatedefendants.CanyouconfirmEd?Also,Christopher,canyouletme knowwhetherBLAGwillsign? Regards Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

From: Lin, Jean (CIV) [mailto:Jean.Lin@usdoj.gov] Sent: Monday, June 04, 2012 10:57 AM To: Elizabeth Kristen; Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Cc: Claudia Center; William McNeill Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth: Thanks for the revision. Please see my attached edits, which are principally just to reflect that EAJA doesnt cover costs, only fees and expenses, and the 30 day after final judgment rule is only for fees and expenses under 2412(d). The separate waiver for sovereign immunity for costs is in 2412(a), which is not part of EAJA.
Jean Lin Senior Trial Counsel U.S. Dept of Justice, Civil Div. Federal Programs Branch
1

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page26 of 33

(202) 514-3716 From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Friday, June 01, 2012 6:53 PM To: Lin, Jean (CIV); Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer Cc: Claudia Center; William McNeill Subject: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

HiAll IhaverevisedthestipulationtoendeavortoaddressJeansconcerns.Canyouallletmeknowifyouwillsignthis? Thanks Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page27 of 33

EXHIBIT G

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page28 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Christopher Bartolomucci [cbartolomucci@bancroftpllc.com] Tuesday, June 05, 2012 1:14 PM Lin, Jean (CIV); Elizabeth Kristen; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Claudia Center; William McNeill RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth,theHousesviewisthatitdoesnothaveanyliabilityinthislitigationforanyfees,costs,orexpenses.And sinceitdoesnothaveadoginthisfight,theHousedeclinestosignthestipulation.ButyoumayrepresenttotheCourt thattheHousetakesnopositiononwhenyourfeemotionmustbefiled.

From: Lin, Jean (CIV) [mailto:Jean.Lin@usdoj.gov] Sent: Monday, June 04, 2012 1:57 PM To: Elizabeth Kristen; Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Cc: Claudia Center; William McNeill Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth: Thanks for the revision. Please see my attached edits, which are principally just to reflect that EAJA doesnt cover costs, only fees and expenses, and the 30 day after final judgment rule is only for fees and expenses under 2412(d). The separate waiver for sovereign immunity for costs is in 2412(a), which is not part of EAJA.
Jean Lin Senior Trial Counsel U.S. Dept of Justice, Civil Div. Federal Programs Branch (202) 514-3716 From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Friday, June 01, 2012 6:53 PM To: Lin, Jean (CIV); Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer Cc: Claudia Center; William McNeill Subject: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

HiAll IhaverevisedthestipulationtoendeavortoaddressJeansconcerns.Canyouallletmeknowifyouwillsignthis? Thanks Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency.

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page29 of 33

This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page30 of 33

EXHIBIT H

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page31 of 33 Elizabeth Kristen

From: Sent: To: Cc: Subject: Elizabeth Kristen Tuesday, June 05, 2012 4:08 PM 'Christopher Bartolomucci' William McNeill; Claudia Center RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Thanksforlettingmeknow.Wewillfileouradministrativemotionalongwiththestipulation. Regards Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

From: Christopher Bartolomucci [mailto:cbartolomucci@bancroftpllc.com] Sent: Tuesday, June 05, 2012 4:06 PM To: Elizabeth Kristen Cc: William McNeill; Claudia Center Subject: Re: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth,theHousedoesnotagreetosigntheproposedstipulation.TheHousetakesnopositiononthetimingofyour feemotion.
From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Tuesday, June 05, 2012 05:37 PM To: Christopher Bartolomucci Cc: William McNeill <wmcneill@las-elc.org>; Claudia Center <CCenter@las-elc.org> Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

DearChristopher Iunderstandyouaretakingthepositionthatyourclientisnotliableforattorneysfees,costsorexpenses.However,as Iexplained,weareconsideringbringingamotionseekingfees,costsandexpensesfromalldefendantsandyourclient aswell.Weareseekingadditionaltimeinwhichtodoso.Pleaseletmeknowifyouwillsignthestipulationgrantingus moretime(astheDOJandtheStatehaveagreedtodo)orwhetherwewillbeforcedtofileanadministrativemotionfor moretime. Regards Elizabeth

1

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page32 of 33

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.

From: Christopher Bartolomucci [mailto:cbartolomucci@bancroftpllc.com] Sent: Tuesday, June 05, 2012 1:14 PM To: Lin, Jean (CIV); Elizabeth Kristen; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Cc: Claudia Center; William McNeill Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth,theHousesviewisthatitdoesnothaveanyliabilityinthislitigationforanyfees,costs,orexpenses.And sinceitdoesnothaveadoginthisfight,theHousedeclinestosignthestipulation.ButyoumayrepresenttotheCourt thattheHousetakesnopositiononwhenyourfeemotionmustbefiled.

From: Lin, Jean (CIV) [mailto:Jean.Lin@usdoj.gov] Sent: Monday, June 04, 2012 1:57 PM To: Elizabeth Kristen; Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer; Kerry.Kircher@mail.house.gov Cc: Claudia Center; William McNeill Subject: RE: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

Elizabeth: Thanks for the revision. Please see my attached edits, which are principally just to reflect that EAJA doesnt cover costs, only fees and expenses, and the 30 day after final judgment rule is only for fees and expenses under 2412(d). The separate waiver for sovereign immunity for costs is in 2412(a), which is not part of EAJA.
Jean Lin Senior Trial Counsel U.S. Dept of Justice, Civil Div. Federal Programs Branch (202) 514-3716 From: Elizabeth Kristen [mailto:EKristen@las-elc.org] Sent: Friday, June 01, 2012 6:53 PM To: Lin, Jean (CIV); Christopher Bartolomucci; Gregory, Edward; Morrow, Jennifer Cc: Claudia Center; William McNeill Subject: Emailing: Stipulation and Proposed Order re Reasonable Attorneys' Fees (00277284-4).DOC

HiAll IhaverevisedthestipulationtoendeavortoaddressJeansconcerns.Canyouallletmeknowifyouwillsignthis? Thanks Elizabeth

Elizabeth Kristen Director Gender Equity & LGBT Rights Program Senior Staff Attorney 2

Case4:10-cv-01564-CW Document128-2 Filed06/07/12 Page33 of 33

Legal Aid Society-Employment Law Center 180 Montgomery St., Suite 600 San Francisco, CA 94104 Tel: 415.864.8848 Fax: 415.593.0096 www.las-elc.org Legal Aid Society-Employment Law Center, an organization with more than 95 years of uninterrupted service to the community, enforces rights guaranteed by federal, state and local employment-related civil rights laws, enabling low wage workers and their families to maintain economic selfsufficiency. This message is intended for the named recipients only. It may contain confidential information protected by attorney-client or work-product privilege. If you have received this email in error, please notify the sender immediately by reply email. Please do not disclose the contents of this message to anyone and immediately delete the message and any attachments. Thank you.