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14-1035
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MAJ SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC
VICTORIA A. HUDSON; MONIKA POXON; COL STEWART BORNHOFT;
STEPHEN MCNABB; LT GARY C. ROSS; DAN SWEZY; CPT STEVE M.
HILL; JOSHUA SNYDER; A1C DANIEL HENDERSON; JERRET
HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN; CPT JOAN
DARRAH; JACQUELINE KENNEDY
Plaintiffs Appellants
v.
CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H.
HOLDER, JR., in his official capacity as Attorney General; ERIC K. SHINSEKI,
in his official capacity as Secretary of Veterans Affairs; UNITED STATES
Defendants - Appellees
On Appeal from the United States District Court for the District of Massachusetts
1:11-cv-11905-RGS (Honorable Richard G. Stearns, District Court Judge)
BRIEF OF APPELLANTS
Abbe David Lowell, Bar No. 1144695
Christopher D. Man, Bar No. 1151675
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 974-5600
Counsel for Appellants
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TABLE OF CONTENTS
STATEMENT IN SUPPORT OF ORAL ARGUMENT........................................ 1
JURISDICTIONAL STATEMENT ........................................................................ 1
STATEMENT OF THE ISSUES............................................................................. 1
STATEMENT OF THE CASE................................................................................ 2
STATEMENT OF FACTS ...................................................................................... 4
SUMMARY OF THE ARGUMENT ...................................................................... 9
ARGUMENT......................................................................................................... 11
I. THE GOVERNMENT'S CONDUCT AND LITIGATION
STRATEGY WERE NOT "SUBSTANTIALLY JUSTIFIED"... 11
A. The Government's Conduct And Defense Must Be "Substantially
Justified" On the Merits ................................................................ 11
B. The District Court's Construction of "Substantially Justified"
Undermines The EAJA................................................................. 15
C. The Executive Branch Could Have Respected The Plaintiffs'
Constitutional Rights..................................................................... 18
D. Windsor Did Not Address The EAJA Or Whether The
Government's Litigation Strategy Was Substantially Justified..... 21
II. PLAINTIFFS ARE ENTITLED TO COSTS AS A PREVAILING
PARTY.......................................................................................... 24
CONCLUSION...................................................................................................... 26
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TABLE OF AUTHORITIES
CASES
Air Transp. Ass'n of Canada v. FAA, 156 F.3d 1329
(D.C. Cir. 1998) .............................................................................. 11, 12
Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp.,
698 F.3d 885 (6th Cir. 2012) ................................................................. 16
Ardestani v. INS, 502 U.S. 129 (1991) ...................................................... 15
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) .................................. 16, 17
Castaneda-Castillo v. Holder, 723 F.3d 48 (1st Cir. 2013) ...... 10, 12, 17, 25
Hakim v. Accenture U.S. Pension Plan, 901 F. Supp. 2d 1045
(N.D. Ill. 2012) ...................................................................................... 25
INS v. Chadha, 462 U.S. 919 (1983) .......................................................... 19
INS v. Jean, 496 U.S. 154 (1990) ............................................................... 15
Marx v. Gen. Revenue Corp., 133 S. Ct. 1166 (2013) ............................... 25
Melkonyan v. Sullivan, 501 U.S. 89 (1991) ................................................. 1
Morgan v. Perry, 142 F.3d 670 (3d Cir. 1998) ........................................... 13
Myers v. United States, 272 U.S. 52 (1926) ............................................... 19
Pierce v. Underwood, 487 U.S. 552 (1988) ............................................ 9, 12
Schock v. United States, 254 F.3d 1 (1st Cir. 2001) .............................. 9, 12
United States v. Gelin, 712 F.3d 612 (1st Cir. 2013) ................................... 2
United States v. 515 Granby LLC, 736 F.3d 309 (4th Cir. 2013) ........ 15, 16
United States v. Windsor, 133 S. Ct. 2675 (2013) ................. 3, 5, 20, 21, 22
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Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632 (2011)......... 18
Watson v. Memphis, 373 U.S. 526 (1963) ................................................. 16
STATUTES
1 U.S.C. 7 ........................................................................................... 2, 4, 5
10 U.S.C. 101(f)(5) .................................................................................... 4
28 U.S.C. 530D .......................................................................................... 7
28 U.S.C. 2412 ......................................................................... 1, 11, 12, 24
28 U.S.C. 1291 ........................................................................................... 2
32 U.S.C. 101(18) ...................................................................................... 4
38 U.S.C. 101(3) ........................................................................................ 4
38 U.S.C. 101(31) ...................................................................................... 4
Fed. R. Civ. P. 54(d) ................................................................................... 20
LEGISLATIVE MATERIALS
H.R. Rep. No 96-1418 (1980) ................................................................ 11, 12
MISCELLANEOUS
Brief of the United States, INS v. Jean, 496 U.S. 154 (1990)
(No. 86-601), 1990 WL 505692 ............................................................ 13
Brief of the United States, Pierce v. Underwood,
487 U.S. 552 (1987) (No. 86-1512), 1987 WL 880437 ........................ 13
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John P. Elwood, Deputy Assistant Att'y Gen., Oversight Hearing:
Presidential Signing Statements under the Bush Administration:
A Threat to Checks and Balances and the Rule of Law?
Before the H. Comm. on the Judiciary, 110 Cong. 5 (2007) .................. 20
Barack Obama, Statement on Signing the Consolidated Appropriations
Act, 2012, (Dec. 23, 2011) ...................................................................... 19
Barack Obama, Statement on Signing the National Defense Authorization
Act for Fiscal Year 2012, (Dec. 30, 2011) .............................................. 19
Presidential Authority to Decline to Execute Unconstitutional Statutes,
18 Op. O.L.C. 199 (1994) .................................................................. 18, 19
The Att'y Gen.'s Duty to Defend and Enforce Const. Objectionable Legis.,
43 Op. Att'y Gen. 55 (1980) ............................................................. 18, 19
1 The Adams-Jefferson Letters (Lester J. Cappon ed. 1959) ................ 19, 20
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STATEMENT IN SUPPORT OF ORAL ARGUMENT
The district court approved a novel departure from the standard for
recovering attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28
U.S.C. 2412, and oral argument may be warranted to answer any questions the
Court may have.
JURISDICTIONAL STATEMENT
On October 2, 2013, the district court issued a judgment in favor of the
Plaintiffs and against the United States. (JA 56.)
1
On October 28, 2013, Plaintiffs
filed a motion for attorneys' fees and costs pursuant to the EAJA and Federal Rule
of Civil Procedure 54(d). (JA 60.) The district court denied that motion on
December 17, 2013 (Add. 1), and the Plaintiffs filed their notice of appeal from
that Order on January 6, 2014 (JA 124). This Court has jurisdiction pursuant to
28 U.S.C. 1291, as such a denial is a final judgment. Melkonyan v. Sullivan,
501 U.S. 89, 95-96 (1991).
STATEMENT OF THE ISSUES
1. Under Section 2412(d) of the EAJA, did the government concede its
unconstitutional actions were not "substantially justified" by acknowledging that it
1
The Joint Appendix is cited as "JA," and the Addendum is cited as "Add."
The district court docket is cited as "Dkt."
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knowingly and purposefully violated the Plaintiffs' constitutional rights and by
conceding its conduct was unconstitutional before the district court?
(a) The Plaintiffs preserved this issue below in their motion for attorneys'
fees. (JA 60.)
(b) This Court reviews a district court decision involving statutory
interpretation de novo. United States v. Gelin, 712 F.3d 612, 617 (1st Cir. 2013).
2. Did the district court err in denying Plaintiffs' request for costs as a
prevailing party under Federal Rule of Civil Procedure 54(d) and under Section
2412(a) of the EAJA by applying a "substantially justified" test that is applicable
only to attorneys' fees and expenses, and not to costs?
(a) The Plaintiffs preserved this issue below in their motion for costs.
(JA 60.)
(b) This Court reviews a district court decision involving statutory
interpretation de novo. Gelin, 712 F.3d at 617.
STATEMENT OF THE CASE
Plaintiffs challenged the constitutionality of the definitions of "spouse" and
"surviving spouse" as used in Titles 10, 32 and 38, both as defined in those titles
and as modified by the Defense of Marriage Act ("DOMA"), 1 U.S.C. 7, to the
extent those definitions prevented the military from treating legally married same-
sex spouses as "spouses" for purposes of providing family support and benefits.
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Following the Supreme Court's decision in United States v. Windsor, 133 S. Ct.
2675 (2013), which found DOMA "unconstitutional as a deprivation of the equal
liberty of persons that is protected by the Fifth Amendment" of the Constitution,
id. at 2680, the district court directed the parties to brief whether judgment should
be entered in favor of the Plaintiffs (JA 55). Following that briefing, the district
court entered a final judgment on October 2, 2013, holding that the terms "spouse"
and "surviving spouse" as defined in Titles 10, 32 and 38 are unconstitutional to
the extent they exclude legally married same-sex spouses. (JA 56.)
2
On October 28, 2013, Plaintiffs moved for an award of attorneys' fees and
costs under the EAJA and Rule 54(d). (JA 60.) The district court denied
Plaintiffs' motion for fees and costs on December 17, 2013, finding the
government's position of conceding that it was violating the Constitution but
forcing the Plaintiffs to litigate the constitutional question was "substantially
justified" to pay the "appropriate respect to the primacy of the Supreme Court in
matters of constitutional interpretation." (Add. 3.) Plaintiffs filed a timely notice
of appeal on January 6, 2014. (JA 124.)
2
A slightly amended judgment was entered on February 4, 2014, clarifying
the government's obligation to pay the Plaintiffs benefits. (JA 126.)
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STATEMENT OF FACTS
This is an unusual case where, at the outset of the litigation, the President
and the Attorney General publicly professed they were violating the constitutional
rights of current and former gay and lesbian members of the armed forces and
their spouses, and declared they would not stop violating their constitutional rights
until ordered to stop by a federal court or the laws in question were repealed. At
no point in the litigation did the government ever defend the constitutionality of
its actions. Instead, the government told the court it should lose on the merits.
Plaintiffs are active duty members of the armed forces, members of the
National Guard or veterans, and their legally married spouses of the same sex. As
such, they are entitled to numerous government benefits and family support
programs. The Plaintiffs attempted to obtain these spousal benefits, but were
denied because the definitions of the terms "spouse" and "surviving spouse" in
Titles 10, 32 and 38, as modified by DOMA, prevented the government from
recognizing a same-sex spouse as a "spouse."
3
Plaintiffs brought this action in the
3
Titles 10 and 32 define "spouse" as "husband or wife, as the case may be,"
10 U.S.C. 101(f)(5), 32 U.S.C. 101(18), and Title 38 defines "spouse" as "a
person of the opposite sex who is a wife or husband" and "surviving spouse" as "a
person of the opposite sex who was the spouse of a veteran at the time of the
veteran's death," 38 U.S.C. 101(31), 101(3). Each of these definitions was
subsequently modified by DOMA, which provided: "In determining the meaning
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district court alleging the government's refusal to provide them the same benefits
as married couples with opposite-sex spouses was unconstitutional.
More than six months before the Plaintiffs attempted to register for spousal
benefits, the government had concluded DOMA was unconstitutional and that it
would not defend DOMA in court. But the government took the rather bizarre
position that it would continue to enforce this unconstitutional statute to
purposefully violate the constitutional rights of persons, like the Plaintiffs, for the
sole purpose of manufacturing a judicial case that it wanted to lose on the merits.
4
This strategy of purposefully violating constitutional rights, but then refusing to
defend the unconstitutional actions was first set out in a February 23, 2011 letter
from Attorney General Holder to Speaker of the House Boehner. (Add. 21.)
In that letter, the Attorney General advised the Speaker that he and
President Obama had concluded DOMA was unconstitutional and the Executive
Branch would no longer defend DOMA in court because no "reasonable
of any Act of Congress, or of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the United States, the word
'marriage' means only a legal union between one man and one woman as husband
and wife, and the word 'spouse' refers only to a person of the opposite sex who is a
husband or a wife." 1 U.S.C. 7.
4
In Windsor, the Supreme Court described this as an "unusual position" and
one that would be problematic if generally followed. 133 S. Ct. at 2687-89.
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arguments" could be made in its defense. (Add. 25.) Yet the Attorney General
added: "Notwithstanding this determination, the President has informed me that
Section 3 [of DOMA] will continue to be enforced by the Executive Branch."
(Id.)
Plaintiffs found it startling the Executive Branch would purposefully violate
the constitutional rights of members of the military and veterans for the sole
purpose or creating a judicial case it believed was indefensible. In the Complaint
itself, Plaintiffs made clear:
Plaintiffs also seek an award of attorneys fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. 2412. The government cannot
maintain that its position in denying the Plaintiffs' claims for spousal
benefits is "substantially justified" when the President and the
Attorney General have acknowledged that DOMA Section 3 is
unconstitutional. Like members of the Federal Judicial Branch,
Executive Branch officials take an oath to uphold the Constitution.
While the courts may have the last word as to whether a legislative
enactment is constitutional, the political branches have the first word.
And where, as here, the President and the Attorney General
acknowledge a law is unconstitutional, they should not enforce it. In
this case, the Executive Branch has enforced DOMA and specifically
denied each Plaintiff spousal benefits on the basis of that statute.
(JA 23 5.)
At the time the Complaint was filed on October 27, 2011, it was unclear
what the government's position would be with respect to the constitutionality of
Titles 10, 32 and 38, as those Titles had not previously been challenged, or
whether the government would view the operation of DOMA differently in the
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military context. But, on February 21, 2012, the government wrote the district
court to explain: "[T]he Department of Justice will not defend the
constitutionality of Section 3 of the Defense of Marriage Act ('DOMA'), 1 U.S.C.
7, and Sections 101(3) and 101(31) of Title 38 of the United States Code under
the equal protection component of the Fifth Amendment." (Add. 12; see also
Add. 15 ("[T]he Attorney General recently has also concluded that 38 U.S.C.
101(3), (31) similarly classify on the basis of sexual orientation, . . . and that,
consistent with his prior determination regarding Section 3 of DOMA, the
Department will cease its defense of these provisions of Title 38 against
challenges under the equal protection component of the Fifth Amendment.").)
Just prior to delivering this notice to the district court, the Attorney General
provided notice to the Speaker of the House, in accordance with 28 U.S.C.
530D. (Add. 16.) The Attorney General explained: "McLaughlin presents a
challenge, among other things, to provisions of Title 38 that are the equivalent to
Section 3 of DOMA," and concluded those provisions "violate the equal
protection component of the Fifth Amendment." (Add. 17; see also Add. 16 ("The
language of the Title 38 provisions is identical in material respects to the language
of Section 3 of DOMA. . . .").) Further undercutting any constitutional defense to
Title 38, the Attorney General advised:
The legislative record of these provisions contains no rationale for
providing veterans' benefits to opposite-sex spouses of veterans but
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not to legally married same-sex spouses of veterans. Neither the
Department of Defense nor the Department of Veterans Affairs
identified any justification for that distinction that could warrant
treating these provisions differently from Section 3 of DOMA.
(JA 17.) Notwithstanding this finding that Title 38 is unconstitutional, the
Attorney General maintained he would "continue to enforce" the unconstitutional
provisions of Title 38 "unless and until Congress repeals those provisions or the
judicial branch renders a definitive verdict against their constitutionality." (Id.)
Plaintiffs filed a motion for summary judgment on November 21, 2011
(Dkt. 13), but the case was stayed as DOMA challenges worked their way through
this Court and then the Supreme Court. Following the Supreme Court's decision
in Windsor, holding DOMA unconstitutional, the district court ordered the parties
to brief whether judgment should be entered for the Plaintiffs. (JA 55.)
Following that briefing, the district court entered a final judgment on October 2,
2013, holding that the terms "spouse" and "surviving spouse" as defined in Titles
10, 32 and 38 are unconstitutional to the extent they exclude legally married same-
sex spouses. (JA 56; see also JA 126 (amended judgment).)
On October 28, 2013, Plaintiffs filed a motion for attorneys' fees and costs
pursuant to the EAJA and Federal Rule of Civil Procedure 54(d). (JA 60.) The
district court denied that motion on December 17, 2013, without addressing how
the government's position in purposefully violating the Plaintiffs' constitutional
rights and then refusing to defend the litigation was "substantially justified" on the
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merits. (Add. 1.) Instead of looking to whether the merits of the government's
unconstitutional conduct and litigating position were "substantially justified," the
district court held the government was "substantially justified" in pursuing a
course that allowed Congress to be heard before the courts and for the courts to
decide the constitutional questions. Because the district court misapplied the
standard for awarding attorneys' fees and costs, Plaintiffs filed their notice of
appeal on January 6, 2014. (JA 124.)
SUMMARY OF THE ARGUMENT
There should be no question that the EAJA defines "substantially justified"
in relation to the government's defense of its unlawful conduct on the merits. The
Supreme Court already has said so, and the government itself has acknowledged
that is the appropriate inquiry in numerous filings with the courts. In every EAJA
case, the government will have lost, and the question courts must ask in
determining whether the government's litigating position was "substantially
justified" is "whether urging of the opposite merits determination was
substantially justified." Pierce v. Underwood, 487 U.S. 552, 560 (1988). As part
of that inquiry, this Court has explained "[t]here must be an examination of the
actual merits of the government's litigation position as to both the facts and the
law." Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001).
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The district court lost sight of the relevant inquiry and did not examine the
merits of the government's litigation position. Had it done so, it is clear that there
was no reasonable "opposite merits determination" because the government did
not even seek an opposite result on the merits. The government, like the
Plaintiffs, wanted the government to lose on the merits.
The district court believed the government acted reasonably in forcing the
constitutionality of DOMA to the Supreme Court, where the government hoped to
lose, out of respect for the Supreme Court's role as the final arbiter of what the
Constitution says. But whether that is true or not, it is not the relevant inquiry
under the EAJA. Where the government's conduct is not defensible on the merits
and violates the rights of citizens, the EAJA seeks to encourage those citizens to
sue by paying their attorneys' fees. Castaneda-Castillo v. Holder, 723 F.3d 48, 56
(1st Cir. 2013). That is precisely what the Plaintiffs did here. Nothing in the
EAJA precludes the government from adopting its enforce, but do not defend
strategy, but the EAJA does require the government to pay the Plaintiffs' legal
fees when it purposefully violates their rights and makes no effort to defend the
legality of that conduct.
In addition, the district court erred in refusing Plaintiffs' request for costs as
a prevailing party by applying the "substantially justified" test. That test applies
only to an award of attorneys' fees and expenses, not costs. Costs are to be
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awarded to the prevailing party under a separate provision of the EAJA, 28 U.S.C.
2412(a), and Federal Rule of Civil Procedure 54(d).
ARGUMENT
I. THE GOVERNMENT'S CONDUCT AND LITIGATION STRATEGY
WERE NOT "SUBSTANTIALLY JUSTIFIED"
A. The Government's Conduct And Defense Must Be "Substantially
Justified" On The Merits
The district court erred by losing its frame of reference in analyzing
whether the government's conduct in knowingly and purposefully violating the
Plaintiffs' constitutional rights, and then forcing them to litigate a case the
government would not defend on the merits, was "substantially justified." The
district court divorced the "substantially justified" test from the merits of the
government's defense of the legality of its conduct, and improperly looked to non-
merits based justifications, such as the government's desire for Congress to be
heard before the courts and for the courts to rule on constitutional questions.
(Add. 3.) But those justifications are entirely foreign to the EAJA, which the
Supreme Court and this Court analyze solely in terms of whether the government
reasonably believed it was acting lawfully.
5
5
In addition to precluding fee shifting when the government's position is
"substantially justified," the EAJA also precludes fee shifting if "special
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In determining whether the government's litigating position was
"substantially justified," the Supreme Court has directed courts to ask "whether
urging the opposite merits determination was substantially justified." Pierce, 487
U.S. at 560 (emphasis added). As part of that inquiry, this Court has explained
"[t]here must be an examination of the actual merits of the government's litigation
position as to both the facts and the law." Schock, 254 F.3d at 5 (emphasis
added). The government "must justify the positions it took both during the
litigation and the agency proceedings that preceded that litigation. These
positions must have a reasonable basis in both law and fact." Castaneda-Castillo,
723 F.3d at 73.
Moreover, "[i]t is well-settled that the government bears the burden of
establishing that its position was substantially justified." Id. (citing Pierce, 487
U.S. at 565). And because the EAJA fee inquiry is a merits-based inquiry and
circumstances make an award unjust." 28 U.S.C. 2412(d)(1)(A). That provision
is inapplicable here, as it applies only when the plaintiffs have engaged in some
inequitable conduct (i.e., unclean hands). See Air Transp. Ass'n of Canada v.
FAA, 156 F.3d 1329, 1333 (D.C. Cir. 1998) (a "theme of 'unclean hands' pervades
the jurisprudence of 'special circumstances' under EAJA."); H.R. Rep. No. 96-
1418, at 11 (1980) (the special circumstances exception is a "safety valve" that
gives courts "discretion to deny awards where equitable considerations dictate an
award should not be made"). There is no evidence in the record of any such
conduct by the Plaintiffs, and the district court expressly chose not to address this
issue. (Add. 5 n.4.)
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arises only after the government has been found to have, in fact, violated
someone's rights, this is a heavy burden for the government. "Indeed, in the usual
case, a constitutional violation will preclude a finding that the government's
conduct was substantially justified." Morgan v. Perry, 142 F.3d 670, 690 (3d Cir.
1998).
Prior to this case, the government shared this understanding that
"substantially justified" required it to prove that it made reasonable arguments on
the merits. Indeed, the government has argued to the Supreme Court that
"substantially justified" does not require it to prove "a substantial probability of
prevailing," but that its "arguments [have] a fair possibility of success." Brief of
the United States, Pierce v. Underwood, 487 U.S. 552 (1987) (No. 86-1512), 1987
WL 880437 at *10. The government even advised the Supreme Court that, in
making this assessment, "courts typically have undertaken a detailed, de novo
assessment of the strength of the government's arguments on the merits." Id. at
*20 (emphasis added). Similarly, in arguing for the "substantially justified" test to
be applied to fee litigation under the EAJA, the government told the Supreme
Court: "If the government makes unreasonable fee arguments, it will have to pay
fees for fees. Otherwise, it will not." Brief of the United States, INS v. Jean, 496
U.S. 154 (1990) (No. 86-601), 1990 WL 505692 at *12.
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Plainly, that standard cannot be met here because the government has made
no "opposite merits determination" at all, as Pierce requires, and made no effort to
obtain "success" on the merits.
6
Nor was the government indifferent about what
the merits of the case were. The government advised the Court and Congress that
the laws challenged in this very case were unconstitutional. (Add. 15-16.)
Indeed, even prior to violating the Plaintiffs' constitutional rights, the Attorney
General advised the Speaker of the House that he and the President had concluded
no "reasonable arguments" could be made in defense of DOMA. (Add. 25.)
Despite the firm belief of the President and Attorney General, however,
they knowingly and purposefully enforced DOMA to violate the Plaintiffs'
constitutional rights. (Id. (explaining DOMA will continue to be enforced despite
its unconstitutionality).) Even after the Plaintiffs sued and the government
confessed that it had violated the Plaintiffs' constitutional rights, the government
6
The fact that the government got the result it wanted does not mean it
succeeded on the merits for purposes of the EAJA. It would only be in some
Alice in Wonderland-like world that losing could come to be defined as winning.
It would provide cold comfort to victims who lost their liberty for a government
official to tell them that he knew he was violating their constitutional rights all
along, and now feels vindicated because the courts agreed. The purpose of the
EAJA is to prevent such a violation in the first place.
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advised both Congress and the district court that it would not remedy the violation
but would continue to violate the Plaintiffs' constitutional rights. (Add. 15-17.)
B. The District Court's Construction Of "Substantially Justified"
Undermines The EAJA
The district court's conclusion that the government had a "substantially
justified" strategy of enforcing laws it believed were unconstitutional to force
litigation, so that courts will decide those laws are unconstitutional, turns the
EAJA on its head. The purpose of the EAJA is not to force cases into court so
that courts can issue rulings as to what rights people posses, the purpose was to
deter the Executive Branch from violating people's rights in the first place.
As the Supreme Court explained: "The clearly stated objective of the EAJA
is to eliminate financial disincentives for those who would defend against
unjustified governmental action and thereby to deter the unreasonable exercise of
Government authority." Ardestani v. INS, 502 U.S. 129, 138 (1991). The EAJA
triggers an obligation for the government to pay attorneys' fees when the
government takes unjustified actions that force litigation. See, e.g., INS v. Jean,
496 U.S. 154, 159 n.7 (1990) (The EAJA is actionable against "government action
that led the private party to the decision to litigate."); United States v. 515 Granby
LLC, 736 F.3d 309, 316 (4th Cir. 2013) ("In assessing the reasonableness of
awards of attorney's fees under the EAJA, we have recognized that 'Congress
intended to address governmental misconduct whether that conduct preceded
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litigation, compelling a private party to take legal action, or occurred in the
context of an ongoing case through prosecution or defense of unreasonable
positions.'") (internal citations omitted).
If accepted, the district court's rationale would dramatically undercut the
deterrence of the EAJA. Rather than discourage the Executive Branch from
taking unconstitutional or unlawful actions, the district court's opinion encourages
civil rights violations to take place even where, as here, the President and
Attorney General believe those actions are indefensible on the merits. It will be
true in every case that the judiciary, if called upon to serve as a referee, will have
the last word in deciding what rights the people hold. But the EAJA expects
Executive Branch officials to exercise their own judgment and not take actions
they believe will violate the civil rights of the people they serve. When they take
such unjustified actions, they must pay the plaintiffs' attorneys' fees. Preventing
constitutional violations is well-established public policy, and that policy should
not be undercut by federal courts. See, e.g., Watson v. Memphis, 373 U.S. 526,
532-33 (1963) ("[A]ny deprivation of constitutional rights calls for prompt
rectification."); Am. Freedom Def. Initiative v. Suburban Mobility for Reg.
Transp., 698 F. 3d 885, 896 (6th Cir. 2012) ("[T]he public interest is promoted by
the robust enforcement of constitutional rights."); Awad v. Ziriax, 670 F.3d 1111,
1132 (10th Cir. 2012) ("[I]t is always in the public interest to prevent the violation
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of a party's constitutional rights.") (quoting G & V Lounge, Inc. v. Mich. Liquor
Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994)).
Perhaps even more troubling, the district court's rationale may increase the
number of civil rights violations that occur and then go unremedied. The surest
way to prevent constitutional violations is for government officials not to take
actions they believe are unlawful. The district court's rationale of fostering
litigation to protect the primacy of the courts in deciding legal questions depends
on the existence of litigants who are willing to sue. But absent access to attorneys'
fees under the EAJA, those who have had their rights violated may lack the
resources to bring a suit to vindicate their rights.
Just as Congress sought to deter government officials from taking
unjustified acts through the EAJA, Congress also enacted the EAJA so that
citizens would not be deterred in enforcing their rights. Castaneda-Castillo, 723
F.3d at 56 ("The EAJA aims to 'ensure that certain individuals . . . will not be
deterred from seeking review of, or defending against, unjustified governmental
action because of the expense involved.'") (quoting Aronov v. Napolitano, 562
F.3d 84, 88 (1st Cir. 2009)). Under the district court's rule, no injured citizen or
their counsel could be sure there is an EAJA remedy that awaits them, even if the
government makes no effort to defend its conduct before a court. Consequently,
the district court's ruling may foster civil rights violations that are never remedied.
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C. The Executive Branch Could Have Respected The Plaintiffs'
Constitutional Rights
The government concedes that neither the Take Care Clause nor any other
rule of law precluded the President from simply not enforcing the law, and
respecting the Plaintiffs' constitutional rights. (Add. 4 ("It is not that the President
could not have ended all enforcement of Section 3 by executive fiat the
government is careful to make the point that it was among his prerogatives to do
so. . . ."); JA 88 ("[T]he President may decide in certain circumstances not to
enforce a statute he has determined to be unconstitutional.").) To the contrary, the
President had no authority to enforce these unconstitutional laws. See, e.g., Va.
Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) ("[B]ecause
an unconstitutional legislative enactment is 'void,' [an] official who enforces that
law 'comes into conflict with the superior authority of [the] Constitution. . . .'")
(quoting Ex parte Young, 209 U.S. 123, 159-60 (1908)); The Att'y Gen.'s Duty to
Defend and Enforce Const. Objectionable Legis., 4A Op. Att'y Gen. 55 (1980)
("[E]verything in our constitutional jurisprudence inescapably establishes that
neither [the President] nor any other executive officer can be given authority to
enforce [an unconstitutional] law.").
U.S. Attorneys General have advised Presidents they have no obligation to
provide provisional enforcement of unconstitutional laws. Presidential Authority
to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 204 (1994)
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("[T]he President's constitutional duty does not require him to execute
unconstitutional statutes; nor does it require him to execute them provisionally,
against the day they are declared unconstitutional by the courts.") (quoting The
Attorney General's Duty to Defend and Enforce Constitutionally Objectionable
Legislation, 4A Op. O.L.C. 55, 59 (1980)). And "every President since
Eisenhower has issued signing statements in which he stated that he would refuse
to execute unconstitutional provisions." Id. at 202; see, e.g., INS v. Chadha, 462
U.S. 919, 942 n.13 (1983) (citing a memorandum from President Franklin
Roosevelt to Attorney General Jackson in which the President indicated his
intention not to implement an unconstitutional provision in a statute he had just
signed); Myers v. United States, 272 U.S. 52 (1926) (noting President Wilson had
defied a statute that prohibited him from removing postmasters without Senate
approval). That includes President Obama, who has refused to enforce statutes he
believed were unconstitutional without waiting for a court to tell him so. See,
e.g., Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23,
2011) (President Obama) (refusing to enforce parts of the Act because they are
unconstitutional); Statement on Signing the National Defense Authorization Act
for Fiscal Year 2012 (Dec. 30, 2011) (President Obama) (same). Similarly, in a
comment on the Sedition Act of 1798, President Jefferson stated his "oath to
protect the constitution" required him to "arrest [the] execution" of the Act at
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"every stage." Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in
1 The Adams-Jefferson Letters 274, 275-76 (Lester J. Cappon ed. 1959). Indeed,
as the Executive Branch has acknowledged to Congress:
The President has the responsibility and duty also to faithfully
execute the laws of the United States. U.S. Const., art. II. 3. But
these duties are not in conflict: the law the President must execute
includes the Constitution the supreme law of the land. Because the
Constitution is supreme over all other law, the President must resolve
any conflict between statutory law and the Constitution in favor of
the Constitution, just as courts must. This Presidential responsibility
may arise most sharply when the President is charged with executing
a statute, passed by a previous Congress and signed by a prior
President, a provision which he finds unconstitutional under
intervening Supreme Court precedent. A President that places the
statutory law over the constitutional law . . . would fail in his duty
faithfully to execute the laws. The principle is equally sound where
the Supreme Court has yet to rule on an issue, but the President has
determined that a statutory law violates the Constitution. To say that
the principle is not equally sound in this context is to deny the
President's independent responsibility to interpret and uphold the
Constitution. It is to leave the defense of the Constitution only to
two, not three, of the branches of our government.
Oversight Hearing: Presidential Signing Statements under the Bush
Administration: A Threat to Checks and Balances and the Rule of Law? Before
the H. Comm. on the Judiciary, 110th Cong. 5 (2007) (statement of John P.
Elwood, Deputy Assistant Attorney General of the United States) (emphasis
added).
In Windsor, the Supreme Court expressed its disfavor for the "unusual
position" taken by the government, 133 S. Ct. at 2687, and the Windsor dissent
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more strongly criticized the position as a "contrivance" that stripped the Court of
an actual case and controversy," id. at 2700 (Scalia, J., dissenting). But while the
majority and the dissent disagreed as to whether the government's position left a
genuine Article III controversy intact, no member of the Court took issue with the
dissent's conclusion that nothing compelled the Executive Branch to violate the
rights of people, like the Plaintiffs, and force them to litigate:
It may be argued that if what we say is true some Presidential
determinations that statutes are unconstitutional will not be subject to
our review. That is as it should be, when both the President and the
plaintiff agree that the statute is unconstitutional. Where the
Executive is enforcing an unconstitutional law, suit will of course lie;
but if, in that suit, the Executive admits the unconstitutionality of the
law, the litigation should end in an order or a consent decree
enjoining enforcement. This suit saw the light of day only because
the President enforced the Act (and thus gave Windsor standing to
sue) even though he believed it unconstitutional. He could have
equally chosen (more appropriately, some would say) neither to
enforce nor to defend the statute he believed to be unconstitutional
in which event Windsor would not have been injured, the District
Court would not have refereed this friendly scrimmage, and the
Executive's determination of unconstitutionality would have escaped
this Court's desire to blurt out its view of the law. The matter would
have been left, as so many matters ought to be left, to a tug of war
between the President and Congress. . . .
Windsor, 133 S. Ct. at 2702 (Scalia, J., dissenting) (internal citation omitted).
D. Windsor Did Not Address The EAJA Or Whether The
Government's Litigation Strategy Was Substantially Justified
The district court mistakenly conflated the Supreme Court's discussion of
justiciability in Windsor with whether the government's position was
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"substantially justified" under the EAJA (the latter question was never before the
Court in Windsor). The justiciability problem the Court addressed in Windsor
was that the plaintiff and the government sought the same relief a holding that
DOMA was unconstitutional so the question was whether there was a genuine
dispute. Windsor, 133 S. Ct. at 2685. Ultimately, because the Second Circuit's
decision invalidating DOMA required the government to return taxes to the
plaintiff the government would not have otherwise returned (even though the
government agreed it should), the Supreme Court held there was a real injury and
a genuine case before it. Id. at 2686.
In the context of addressing whether there was an actual injury for standing
purposes and rules of prudential standing, the Supreme Court explained the
government's approach of enforcing laws it would not defend as constitutional in
court created a "procedural dilemma." Id. at 2688. The Court "underscored" that
the arguments for dismissing the case on prudential grounds do not "lack
substance," and made clear it would be troubled if this became a "common
practice in ordinary cases." Id. at 2688. The Court added that the "integrity of the
political process would be at risk if difficult constitutional issues were simply
referred to the Court as a routine exercise." Id. at 2689. But because "this case is
not routine," the Court proceeded to consider the merits. Id.
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Windsor's holding that the government's enforce, but do not defend strategy
presents an Article III case or controversy says nothing about whether that
strategy is "substantially justified" on the merits for purposes of the EAJA.
Inquiries into jurisdiction and the merits are entirely separate, and this Court
undoubtedly has had jurisdiction to decide many cases that lacked merit. If the
government is "substantially justified" whenever its actions trigger a justiciable
Article III case or controversy, no plaintiff could ever prevail under the EAJA.
Plaintiffs cannot get an EAJA judgment from a court that lacks jurisdiction and, if
the mere existence of jurisdiction defeats their claim, they cannot prevail on the
merits of their EAJA claim when jurisdiction exists either.
The district court believed the Windsor Court found the government's
litigation strategy "constitutionally reasonable" (Add. 5), but the Supreme Court
did not opine on the reasonableness of the strategy, only that the strategy produced
a justiciable case. Even if the President did have the constitutional authority to
provisionally enforce an unconstitutional law (an issue Windsor did not address),
that is not inconsistent with awarding fees under the EAJA. If the government
enforces a law that it believes is unconstitutional and makes no effort to defend,
the government must pay the plaintiffs' attorneys' fees because its defense is not
"substantially justified" on the merits, even if litigating to lose where somehow a
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24
permissible strategy. Like any strategic choice, this choice has consequences and
one of those consequences is having to pay attorneys' fees under the EAJA.
To be clear, this Court does not need to decide that the Executive Branch
lacked the constitutional authority to enforce a law it believed was
unconstitutional or make any judgment about whether it was "constitutionally
reasonable" (or politically reasonable) for the Executive Branch to knowingly
violate the Plaintiffs' constitutional rights to trigger litigation that it would not
defend against. All the Plaintiffs ask is for the Court to rule that attorneys' fees
should be awarded when the government pursues such a strategy because neither
its conduct nor its defense of that conduct is "substantially justified" on the merits.
II. PLAINTIFFS ARE ENTITLED TO COSTS AS A PREVAILING
PARTY
Plaintiffs are entitled to have their costs paid pursuant to the EAJA and
Rule 54(d)(1) because they were a prevailing party,
7
regardless of whether the
government's defense was "substantially justified." 28 U.S.C. 2412(a)(1)
7
There is no question that Plaintiffs are a "prevailing party," as the district
court's judgment materially altered their legal relationship with the government
and provided them all the relief they requested. "[W]here the party has 'received a
judgment on the merits,'" as was the case here, this requirement is met.
Castaneda-Castillo, 723 F.3d at 57 (quoting Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep't of Health & Human Res., 532 U.S 598, 605 (2001)).
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provides that costs "may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or any official of the United
States acting in his or her official capacity in any court having jurisdiction of such
action." But "in addition to any costs awarded pursuant to subsection (a)," Section
2412(d)(1)(A) authorizes an award of "fees and other expenses" unless "the
position of the United States was substantially justified." In other words, all a
plaintiff must do to be awarded costs is to prevail, but to obtain attorneys' fees, the
court must also find the government's position was not "substantially justified."
See Hakim v. Accenture U.S. Pension Plan, 901 F. Supp. 2d 1045, 1055 n.3 (N.D.
Ill. 2012) ("The 'substantially justified' test in EAJA applies only to attorneys'
fees. A court has greater discretion to award costs depending on the
circumstances."). Moreover, "Rule 54(d)(1) codifies a venerable presumption that
prevailing parties are entitled to costs," and that presumption is not displaced by
the EAJA. Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172 (2013).
The district court erred as a matter of law by applying the "substantially
justified" test to Plaintiffs' claim for costs, when that test is applicable only to
Plaintiffs' claim for fees. There is a presumption in favor of the award of costs,
regardless of whether the government's erroneous legal position was substantially
justified, and those costs should be awarded here.
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CONCLUSION
The district court erred by using a basis other than the merits of the
government's defense of its unconstitutional action in evaluating whether the
government's position was "substantially justified." Because the government
correctly believed it was violating the Plaintiffs' constitutional rights, and made no
effort to defend its conduct on the merits, the government's position was not
"substantially justified" and attorneys' fees should be awarded. Plaintiffs' costs
also should be awarded simply because they were the prevailing party.
/s/ Christopher D. Man
Abbe David Lowell, Bar No. 1144695
Christopher D. Man, Bar No. 1151675
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 974-5608
(202) 974-6708
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27
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned counsel certifies that this brief:
(i) complies with the type-volume limitation of Rule 32(a)(7)(B), because it
contains 6,177 words, including footnotes and excluding the parts of the brief
exempted by Rule 32(a)(7)(B)(iii); and
(ii) complies with the typeface requirements of Rule 32(a)(5) and the type style
requirements of Rule 32(a)(6) because it has been prepared using Microsoft Office
Word 2007 and is set in Times New Roman font in a size equivalent to 14 points
or larger.
/s/ Christopher D. Man
Christopher D. Man
May 15, 2014
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28
CERTIFICATE OF SERVICE
I hereby certify that, on May 15, 2014, the foregoing brief was filed with the
Clerk of the Court using the Courts CM/ECF system. I further certify that counsel
for all parties in this case are registered CM/ECF users and will be served by the
appellate CM/ECF system.
/s/ Christopher D. Man
Christopher D. Man
May 15, 2014
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i
NO. 14-1035
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MAJ SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC
VICTORIA A. HUDSON; MONIKA POXON; COL STEWART BORNHOFT;
STEPHEN MCNABB; LT GARY C. ROSS; DAN SWEZY; CPT STEVE M.
HILL; JOSHUA SNYDER; A1C DANIEL HENDERSON; JERRET
HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN; CPT JOAN
DARRAH; JACQUELINE KENNEDY
Plaintiffs Appellants
v.
CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H.
HOLDER, JR., in his official capacity as Attorney General; ERIC K. SHINSEKI,
in his official capacity as Secretary of Veterans Affairs; UNITED STATES
Defendants - Appellees
On Appeal from the United States District Court for the District of Massachusetts
1:11-cv-11905-RGS (Honorable Richard G. Stearns, District Court Judge)
ADDENDUM TO BRIEF OF APPELLANTS
Abbe David Lowell, Bar No. 1144695
Christopher D. Man, Bar No. 1151675
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 974-5600
Counsel for Appellants
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ii
TABLE OF CONTENTS
Docket Entry 63 from the District Court Docket December 17, 2013
Memorandum and Order on Plaintiffs' Application
For an Award of Attorney's Fees and Costs ................................. Add 1
28 U.S.C. 2412 .................................................................................. Add 6
Docket Entry 28 from the District Court Docket February 21, 2012
Notice to the Court ..................................................................... Add 12
Docket Entry 29 from the District Court Docket February 22, 2012
Amended Notice to the Court .................................................... Add 18
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