A federal judge has ruled that lawyers who represented the Log Cabin Republicans in a constitutional challenge to the military’s Don’t Ask, Don’t Tell policy deserve attorney fees and expenses, even though a federal appeals court ultimately vacated her ruling in the organization’s favor.
U.S. District Judge Virginia Phillips in Riverside, Calif., ruled on March 15 that White & Case, which represented Log Cabin Republicans on a pro bono basis, was entitled to fees and costs under the Equal Access to Justice Act because the organization obtained an injunction halting enforcement of the ban on openly gay service members. Phillips, who issued that injunction as part of a judgment finding Don’t Ask, Don’t Tell unconstitutional in 2010, said she would decide the amount of fees and expenses at a later date.
Dan Woods, a partner in the Los Angeles office of White & Case who spearheaded a team of dozens of attorneys in the case, on Jan. 12 asked for up to $2.1 million in fees and expenses under the act, which grants attorney fees to a “prevailing party” in an action against the United States unless the government’s position in the case is “substantially justified.”
“We’re very pleased with the judge’s ruling yesterday,” Woods said on March 16. “We have another step in the process to recover attorney fees, but we wouldn’t even get to the second step if we hadn’t received the ruling we received yesterday. We expect to move forward and expect the court to award us a substantial amount of attorneys’ fees, and hope we’re successful in that.”
Woods said the law caps any fees at $120 to $170 per hour. He expected that some of the award would go to Log Cabin Republicans, which paid for court costs, depositions and expert witnesses.
Department of Justice spokeswoman Tracy Schmaler did not respond to a request for comment.
Phillips rejected arguments that the gay Republican organization was entitled to an additional $2.2 million in fees and $47,000 in costs under the Federal Rule of Civil Procedure. Wood had argued that his client was entitled to the additional recovery because the government had failed to prove that Don’t Ask, Don’t Tell contributed to national security — a point President Obama conceded in 2009.
The case was filed in 2004. Phillips ultimately found that the policy violated service members’ freedom of speech under the First Amendment and their Fifth Amendment due-process rights. But the U.S. Court of Appeals for the 9th Circuit stayed her injunction pending the government’s appeal.
On Dec. 22, 2010, Obama signed into law the repeal of policy, which entailed a lengthy transition within the U.S. military. Meanwhile, the Log Cabin Republicans urged the 9th Circuit to lift the stay on Phillips’ injunction.
The 9th Circuit granted that request on July 6, 2011, in part because the Justice Department had stopped defending the constitutionality of the law. On Sept. 29, 2011, the 9th Circuit vacated Phillips’ ruling entirely in light of the repeal, which took effect on Sept. 20, 2011.
In his original motion, Woods argued that his client was entitled to more than $2 million in fees and $35,000 in costs because it had successfully argued that Don’t Ask, Don’t Tell was unconstitutional. He noted that the 9th Circuit had not vacated Phillips’ ruling on the merits of the case. He also maintained that the Log Cabin Republicans had effectively lifted the stay on Phillips’ injunction prior to effective repeal of Don’t Ask, Don’t Tell, allowing service members to avoid discharge under the law.
Phillips agreed. “Here, the Ninth Circuit’s partial lift of the stay provided a significant benefit to Plaintiff as it resulted in the halt of all investigations and discharges under the Act,” Phillips wrote. “The limited injunctive relief therefore constituted a material alteration in the legal relationship between the parties. This material alteration provided a benefit to Plaintiff that was not nullified when the Ninth Circuit found the Act’s repeal rendered the case moot and vacated the judgment and injunction.”
She said the government’s defense of the statute was unreasonable. “In opposing the lift of the stay, Defendants advocated for continued enforcement of Don’t Ask, Don’t Tell, even though Congress had passed the Repeal Act and Defendants no longer defended Don’t Ask, Don’t Tell as constitutional,” she wrote.
Phillips rejected the Justice Department’s argument that awarding fees and costs would be harmful to the government because such awards would be considered “collateral proceedings” to a ruling that the 9th Circuit had vacated.
Contact Amanda Bronstad at firstname.lastname@example.org.