Date: 09-23-2014

Case Style: Maj. Shannon L. McLaughlin v. Chuck Hagel

Case Number: 14-1035

Judge: Lynch

Court: United States District Court for the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Chris Man, with whom Abbe David Lowell, and
Chadbourne & Parke LLP were on brief, for appellants.

Defendant's Attorney: Jeffrey E. Sandberg, Attorney, Appellate Staff, Civil
Division, with whom Michael E. Robinson, Attorney, Appellate Staff,
Civil Division, Stuart F. Delery, Assistant Attorney General,
Carmen M. Ortiz, United States Attorney, and Michael Jay Singer,
Attorney, Appellate Staff, Civil Division, were on brief, for
appellee.

Description: The plaintiffs ("McLaughlin
Group"), who prevailed in a constitutional challenge to Section 3
of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, appeal from
the district court's denial of fees and costs under the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. §§ 2412(a)(1) & (d).
Whether prevailing parties who successfully challenged Section 3 of
DOMA are entitled to fees under EAJA is an issue of first
impression in any Court of Appeals.
On appeal, the McLaughlin Group argues that the
government's position could not have been substantially justified
because its pre-litigation and during-litigation position involved
"knowingly and intentionally violat[ing] the [McLaughlin Group's]
constitutional rights," and its litigate-to-lose strategy concedes
that its position is not substantially justified.1 The McLaughlin
Group also contends that, even if not entitled to fees, they are
entitled to $350 in costs under a separate provision of the EAJA,
28 U.S.C. § 2412(a), and Fed. R. Civ. P. 54(d).
We reject these arguments. The district court's denial
of fees was correct as a matter of law because the government
reasonably believed its actions were constitutionally appropriate
under the circumstances. See Aronov v. Napolitano, 562 F.3d 84, 94
(1st Cir. 2009) (en banc). And its denial of costs without comment
1 We use "government" to refer only to the Executive Branch,
not to the Bipartisan Legal Advisory Group of the U.S. House of
Representatives who intervened in this case.
-2-
was not an abuse of discretion because the reason for the denial --
that the case was "close and difficult" -- was "readily apparent on
the face of the record." See B. Fernández & HNOS, Inc. v. Kellogg
USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008) (quoting In re Two
Appeals Arising Out of the San Juan DuPont Plaza Hotel Fire Litig.,
994 F.2d 956, 963 & n.9 (1st Cir. 1993)).
I.
The McLaughlin Group are active duty members of the
United States armed forces and National Guard, veterans, and their
same-sex spouses. On October 27, 2011, they brought suit against
the United States of America, and Secretary of Defense Leon E.
Panetta, Attorney General Eric H. Holder, Jr., and Secretary of
Veterans Affairs Eric K. Shinseki, in their official capacities.
The suit challenged the constitutionality of Section 3 of DOMA as
applied to definitions of marriage in Title 10, Title 32, and Title
38 of the United States Code as they affect same-sex military
spouses.
President Obama had previously determined, eight months
earlier in February 2011, that:
(1) he personally believed that Section 3 of DOMA was
unconstitutional;
(2) out of deference to the courts and to Congress, and
in light of the executive's obligation to faithfully
execute the laws, the President would nonetheless
-3-
instruct that the executive branch continue to enforce
DOMA; however,
(3) this presented the "rare case" in which the
Department of Justice should decline to defend the
statute.
The government, pursuant to this Presidential position, did not
oppose the McLaughlin Group's suit on the merits.
At the parties' request, the district court stayed the
case in light of two other similar challenges that were then on
appeal before the First Circuit. This court held Section 3 of DOMA
invalid on May 31, 2012. See Massachusetts v. U.S. Dep't of Health
& Human Servs., 682 F.3d 1 (1st Cir. 2012). The district court
continued the stay, over the McLaughlin Group's objection,
following this court's decision in that case, id. at 17, to
withhold issuance of a mandate in deference to anticipated DOMA
challenges before the Supreme Court.
On June 26, 2013, the Supreme Court held Section 3
unconstitutional as a violation of the Fifth Amendment. See United
States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013).
The district court resumed proceedings in this case,
entering judgment in favor of the McLaughlin Group on October 2,
2013. The district court did not address costs at that time.
On October 28, 2013, the McLaughlin Group moved for fees
and costs under the EAJA. The district court denied the McLaughlin
-4-
Group's motion, finding that the government's position was
substantially justified. The district court reasoned:
To answer this question, the court need go no
further than the Windsor decision itself. As
the High Court recognized, the approach taken
by the President of preserving the
justiciability of Section 3 of DOMA by
continuing to enforce it despite a personal
belief that the statute was unconstitutional,
paid the appropriate respect to the primacy of
the Supreme Court in matters of constitutional
interpretation.
McLaughlin v. Hagel, 987 F. Supp. 2d 132, 134 (D. Mass. 2013). The
court added that the relevant question was not whether the
President could have ended enforcement of Section 3, but whether it
would have been "constitutionally reasonable" under the
circumstances, concluding that "[i]t is clear from Windsor that the
Supreme Court would have thought not." Id.
II.
A district court's determination of whether the
government's position2 was "substantially justified," and so
2 "Defining the concept of the Government's 'position' -- at
least with any precision -- has proved . . . elusive." See Saysana
v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010). The statute itself
offers little guidance, stating simply that a court shall award
fees "unless the court finds that the position of the United States
was substantially justified." 28 U.S.C. § 2412(d)(1)(A). It adds
that the "'position of the United States' means, in addition to the
position taken by the United States in the civil action, the action
or failure to act by the agency upon which the civil action is
based . . . ." 28 U.S.C. § 2412(d)(2)(D). The district court
described the government's position as "its litigating position
that, in deference to Congress, it would continue to enforce
Section 3 of DOMA until the courts (or Congress itself) had
definitively spoken, while in the interim conceding the
-5-
whether to award attorney's fees under EAJA, is reviewed for abuse
of discretion. See Pierce v. Underwood, 487 U.S. 552, 562-63
(1988). Legal determinations made in finding a position
substantially justified are reviewed de novo. See Aronov, 562 F.3d
at 88.
A denial of costs is reviewed for abuse of discretion.
B. Fernández, 516 F.3d at 28.
III.
Under the EAJA, "a court shall award to a prevailing
party other than the United States fees and other expenses . . .
unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award
unjust." 28 U.S.C. § 2412(d)(1)(A). The burden is on the United
States to make those showings. See Saysana v. Gillen, 614 F.3d 1,
5 (1st Cir. 2010). Because we agree with the district court that
the position of the United States was substantially justified, we
do not reach the question of special circumstances.
unconstitutionality of Section 3." McLaughlin, 987 F. Supp. 2d at
134. By contrast, the McLaughlin Group variously describes the
government's position as "the government's defense of its unlawful
conduct on the merits," and "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." These characterizations are narrower than
the district court's in that they emphasize the government's
refusal to defend Section 3 -- and so too its "unlawful conduct" --
but exclude constitutional considerations for continued enforcement
pending judicial review.
-6-
A "position" of the United States is "substantially
justified" if it is "justified to a degree that could satisfy a
reasonable person" -- that is, if the position has a "reasonable
basis both in law and fact." Pierce, 487 U.S. at 565. If the
government "reasonably believes the action or inaction is required
by law, then, by definition it cannot be the basis for an award of
EAJA fees." Aronov, 562 F.3d at 94 (citing Dantran, Inc. v. U.S.
Dep't of Labor, 246 F.3d 36, 41 (1st Cir. 2001)) (holding
government was substantially justified as a matter of law). Both
the government's pre-litigation and litigation positions are
evaluated holistically in making this determination. See Saysana,
614 F.3d at 5.
This extraordinary case presents the unusual situation in
which the government's pre-litigation and during-litigation
position was to enforce a challenged statute, but in which the
government's litigation position was to argue that the challenged
statute is unconstitutional. The McLaughlin Group makes a twofold
argument: the government pursued pre-litigation actions that it
believed violated the McLaughlin Group's constitutional rights, and
the government's litigation position agreed with the McLaughlin
Group in denying that the opposite position, defense of the
statute, had any merit.
The McLaughlin Group attempts to divorce the government's
position from the practical constitutional difficulty the
-7-
government faced. The President and the Department of Justice
concluded unilaterally both that heightened scrutiny was the
appropriate standard of review -- contrary to "substantial circuit
authority" -- and that there was no reasonable argument consistent
with that standard available in defense of Section 3. The
government then "face[d] a difficult choice": either enforce (but
decline to defend) a statute it believed unconstitutional, or
decline to enforce the statute under a novel legal theory while
simultaneously precluding judicial review of that novel theory.
See Windsor, 133 S. Ct. at 2688-89. The district court appreciated
this difficulty, and found that, under the Supreme Court's decision
in Windsor, the government's enforce-but-not-defend position was
substantially justified.3
In Windsor, the Court observed that the alternative to
finding justiciability would be to find that the government's
refusal to defend Section 3 precluded judicial review. Id. at
2688. The Court reasoned that this alternative was unacceptable
because it "would undermine the clear dictate of the
separation-of-powers principle that when an Act of Congress is
alleged to conflict with the Constitution, [i]t is emphatically the
province and duty of the judicial department to say what the law
3 The McLaughlin Group's argument that Windsor's finding of
justiciability is not the same as finding that a position is
"substantially justified" misses the mark. The district court
relied on the Windsor Court's reasoning, not the finding itself.
-8-
is." Id. (quoting Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427-28
(2012) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803))) (internal quotation marks omitted). The district court
found that this dilemma provided a reasonable basis for the
government's position. We agree. First, had the government not
continued to enforce Section 3, it would have precluded judicial
review of a controversial conclusion regarding the statute's
validity. Second, had it not continued to enforce Section 3, the
government would also have posed a second "grave challenge[]" to
separation of powers by effectively "nullify[ing] Congress'
enactment solely on its own initiative and without any
determination from the Court." Id.
This practical difficulty highlights the conceptual
difficulty in identifying the government's position: The McLaughlin
Group urges that the government's "litigation position" was the
narrow position that Section 3 -- and so too its pre- and duringlitigation
conduct of enforcing Section 3 -- is unconstitutional.
But the district court understood the government's position to be
the broader, nuanced position that the government represented
itself as taking, namely, that it enforced the statute to permit
judicial review of its novel legal theory in deference to the other
branches.
We agree with the district court that the government's
position is the broader one and must be "assessed in its totality."
-9-
See Saysana, 614 F.3d at 5, 7. Contrary to what the McLaughlin
Group argues, the district court did not improperly look to "nonmerits
based justifications." Rather, the lower court properly
focused on the constitutional difficulties faced by the government.
Our en banc decision in Aronov v. Napolitano, 562 F.3d
84 (1st Cir. 2009) (en banc), held that a denial of fees is correct
as a matter of law where the government reasonably believes its
actions are legally required. Id. at 94. Here, the district court
correctly found that the government reasonably believed its
actions, whether or not required,4 were appropriate given "the
Executive's obligation" to faithfully execute the laws. See Letter
from Eric H. Holder, Jr., Att'y Gen., U.S. Dep't of Justice, to
John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23,
2011) (emphasis added) (explaining the government's decision to
enforce but not defend Section 3 of DOMA). Similarly, we agree
with the district court's conclusion that the Supreme Court would
not have found "constitutionally reasonable" the opposite course of
action, urged by the McLaughlin Group, of refusing to enforce
Section 3. See McLaughlin, 987 F. Supp. 2d at 134. Because the
government reasonably believed its actions were the most
4 While the government made clear it believed the President
could have lawfully chosen to end enforcement of Section 3, see
McLaughlin, 987 F. Supp. 2d at 134, we believe the reasoning behind
Aronov is still applicable to the unique facts of this case given
the uncertainty of that position in light of the acknowledged
separation-of-powers concerns, see Windsor, 133 S. Ct. at 2688.
-10-
constitutionally appropriate available, its actions were "by
definition" substantially justified. See Aronov, 562 F.3d at 94.
We find the denial of fees correct as a matter of law. See id.
The McLaughlin Group's argument that this is erroneous
under different First Circuit precedent is unavailing. They argue
that in Sierra Club v. Sec'y of the Army, 820 F.2d 513, 519-20 (1st
Cir. 1987), the First Circuit held that if the government
subjectively believes that its actions are unlawful, then its
decision to take those actions cannot be substantially justified.
This stretches the precedent. Sierra Club does not make the
government's subjective belief dispositive. The court observed,
first, that this was one among many considerations counseling
against the position's justification, and, second, that during the
EAJA phase of litigation, the government "chose not to . . .
argu[e] that their position turned on some close or unsettled
question of law." Id. at 520. This differs from the present case
where the government had at least two strong separation-of-powers
reasons for its actions and argues that the constitutionality of
its pre-litigation action -- not merely the statute's
constitutionality, but also the constitutionally appropriate action
in this unusual situation -- turned on a close question of law.
See also United States v. Marolf, 277 F.3d 1156, 1162 (9th Cir.
2002) (quoting TKB Int'l, Inc. v. United States, 995 F.2d 1460,
1468 (9th Cir. 1993)).
-11-
The McLaughlin Group correctly argues the law should not
encourage government abuse by condoning a "knowing" rights
violation, and that there is the need to provide incentives for
litigation of rights violations. But that is not this case, which
was "not routine." Windsor, 133 S. Ct. at 2689. This is an
extraordinary case in which the government "face[d] a difficult
choice." Id.; see also Pierce, 487 U.S. at 562 (holding that
whether the government's position is "substantially justified" is
reviewed for abuse of discretion to provide "needed flexibility").
Moreover, while the President and the executive branch may have
thought Section 3 of DOMA was unconstitutional, the House of
Representatives strongly disagreed. The President may have
ultimately been correct, but until the Supreme Court resolved the
issue in Windsor, it is hard to see how the enforcement of
Section 3 was a "knowing" rights violation.
Finally, the McLaughlin Group, relying on Pierce, 487
U.S. at 560, urges that the government's litigation position could
not have been substantially justified because the government has
not argued for the "opposite merits determination." But Pierce
does not "require" that the government "urg[e] . . . the opposite
merits determination." Rather, the quoted passage explains why the
appropriate standard of review is the "deferential,
-12-
abuse-of-discretion review." See id.5 First Circuit precedent
does not suggest otherwise. See, e.g., Castañeda-Castillo v.
Holder, 723 F.3d 48, 73 (1st Cir. 2013) (recognizing that, at least
on appeal, advancing only procedural arguments might be
substantially justified); Aronov, 562 F.3d at 87, 89-93 (permitting
immediate settlement without exposure to fees). Though novel, the
government's litigate-to-lose position is not barred by the case
law. And because it was constitutionally appropriate, fees were
correctly denied as a matter of law. See Aronov, 562 F.3d at 94.
IV.
The McLaughlin Group also contends that, even if not
entitled to fees, the "district court erred as a matter of law by
applying the 'substantially justified' test to [the McLaughlin
Group's] claim for [$350 in] costs" under 28 U.S.C. § 2412(a)(1)
and Fed. R. Civ. P. 54(d). As the government concedes, this would
be an error of law if that were what happened. But the district
court did not improperly apply the standard. It merely declined to
address costs separately.
Under other circumstances, this silence could be a
problem. "There is a background presumption favoring cost recovery
5 Pierce frames the relevant inquiry as "determin[ing]
whether urging of the opposite merits determination was
substantially justified." Pierce, 487 U.S. at 560 (emphasis
added). That this framing does not describe this case is not
surprising because the government's litigation position is unusual.
See Windsor, 133 S. Ct. at 2689.
-13-
for prevailing parties," and so "[w]hen denying costs, a district
court must offer an explanation for doing so unless the basis for
denying costs is 'readily apparent on the face of the record.'"
B. Fernández, 516 F.3d at 28 (quoting San Juan Dupont Plaza Hotel,
994 F.2d at 963). Here, the basis for denying costs was readily
apparent: as we have thoroughly detailed above, the case was "close
and difficult," and "required considered balancing." See id.
While an explanation would have avoided any confusion about the
district court's reasoning, we find that the district court's
unexplained decision to deny costs was not an abuse of discretion.

Outcome: We affirm. Costs are assessed against the McLaughlin
Group.

Plaintiff's Experts:

Defendant's Experts:

Comments: