Hamby et al v. Parnell et al
ORDER granting in part 46 Motion for Attorney Fees in the amount of $127,262.50 and $458.40 in costs and expenses for a total of $127,720.90. Signed by Judge Timothy M. Burgess on 4/15/15. (RMC, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MATTHEW HAMBY; et al.,
Case No. 3:14-cv-00089-TMB
ORDER GRANTING IN PART
PLAINTIFFS’ MOTION FOR
FEES & EXPENSES THROUGH
OCTOBER 24, 2014
BILL WALKER, in his official capacity as
Governor of Alaska; et al.,
Plaintiffs brought this action against Defendants for violations of 42 U.S.C. § 1983, claiming
that Alaska’s laws prohibiting same-sex marriage and the recognition of same-sex marriages
lawfully entered in other states violate the Fourteenth Amendment of the United States
Constitution.1 On October 12, 2014, the Court granted summary judgment in favor of Plaintiffs,
declaring the laws unconstitutional. 2 Plaintiffs, by and through their attorneys, move under 42
U.S.C. § 1988 for an award of $257,938.40 in attorneys’ fees and expenses incurred from the
start of litigation through October 24, 2014. 3 Defendants claim that the sum sought by Plaintiffs
is excessive and unreasonable. 4 For the following reasons, Plaintiffs’ motion at Docket 46 is
GRANTED in part and DENIED in part.
Dkt. 46; 47 at 2. As explained infra, the fee calculation in Plaintiffs’ motion included 246.3 hours of
work for attorney Caitlin Shortell for a total of $257,938.40. The hours were miscalculated and Shortell
later amended her affidavit for a total of 180.5 hours.
This case proceeded quickly. Plaintiffs filed their complaint on May 12, 2014. 5 The parties
filed cross motions for summary judgment in August and September; the Court heard oral
arguments on the dispositive motions on October 10, 2014. 6 Two days later, the Court granted
summary judgment in favor of Plaintiffs. 7 Defendants immediately moved for a stay of the
Court’s order pending appeal; the Court denied the motion on October 14, 2014 and entered a
judgment for Plaintiffs, declaring that the challenged Alaska laws violate the Fourteenth
Amendment of the United States Constitution and permanently enjoining their enforcement. 8
Defendants appealed and sought a stay of the Court’s judgment from the Ninth Circuit Court of
Appeals. The Ninth Circuit granted the stay to afford Defendants the opportunity to seek a stay
from the United States Supreme Court. 9 The Supreme Court denied the stay on October 17,
On October 28, 2014, Plaintiffs filed the present motion for attorneys’ fees and costs in the
sum of $257,938.40, which includes 788 hours of work from four attorneys and legal support
staff. 11 Defendants contest the sum calculated by Plaintiffs on the grounds that: (1) the case did
not present a novel claim and was decided on motions for summary judgment; (2) the time
Dkt. 20 (Plaintiffs’ Motion for Summary Judgment); Dkt. 31 (Defendants’ Opposition and CrossMotion for Summary Judgment).
Dkt. 40 (Motion to Stay); Dkt. 43 (Judgment); Dkt. 44 (text order denying Motion to Stay).
The Supreme Court order denying a stay can be found at:
records provided by Plaintiffs contain significant errors; (3) the asserted hourly billing rates are
excessive; and (4) the claimed number of hours is excessive. 12 Defendants do not contest the
$458.40 in costs.
42 U.S.C. § 1988 provides that “the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs.” 13 Absent statutory
restrictions, the prevailing party recovers the attorney’s fee “unless special circumstances would
render such an award unjust.” 14 To fulfill the purpose of § 1988, a “reasonable” fee award is one
that will encourage competent attorneys to take on meritorious civil rights claims “in order to
ensure that federal rights are adequately enforced” 15 without yielding a windfall to either party. 16
The Court typically employs the “lodestar” method to determine a fee award, which is
calculated by multiplying “the number of hours the prevailing party reasonably expended on the
litigation by a reasonable hourly rate.” 17 The prevailing party bears the burden of presenting
“satisfactory evidence” of the prevailing market rate and detailed time records documenting the
number of hours expended on litigation. 18 When reviewing the time records, the Court must
decide whether the hours are adequately documented and whether any hours should be excluded
Dkt. 56 at 2-3.
42 U.S.C. § 1988(b).
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010).
Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986).
Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006).
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008).
for being “excessive, redundant, or otherwise unnecessary.” 19 When the lodestar figure is
properly calculated and supported by satisfactory evidence, the sum is presumed to represent a
reasonable fee under § 1988. 20
Nonetheless, the Court may adjust the loadstar figure upward or downward based on factors
set forth in Kerr v. Extras Guild, Inc., including: (1) the time and labor required to litigate the
case, (2) the complexity of the case, (3) the skill required for the attorney(s) to provide effective
legal counsel on the issue, (4) whether the attorney(s) turned down other employment
opportunities due to accepting the case, (5) time limitations imposed by the court or client, (6)
the results obtained, (7) the experience, ability, and reputation of the attorney(s) involved in the
case, (8) the undesirability of the case, and (9) awards in similar cases. 21 Some of these factors
may be subsumed by being “taken into account in either the reasonable hours component or the
reasonable rate component of the lodestar calculation.” 22
Plaintiffs seek fees for four attorneys and the supportive staff who contributed to the case:
Allison Mendel, $425 per hour for 89.5 hours; Caitlin Shortell, $395 per hour for 180.5 hours; 23
Heather Gardner, $395 per hour for 230.2 hours; Laurence Blakely, $200 per hour for 112 hours;
Hensley, 461 U.S. at 433-34.
Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013).
526 F.2d 67, 70 (9th Cir. 1975).
Morales v. City of Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).
Shortell’s original affidavit miscalculated a sum of 246.3 hours (Dkt. 49). Her amended affidavit
asserts a sum of 180.5 hours (Dkt. 59).
and paralegal staff, $125 per hour for 110.6 hours. 24 Plaintiffs also seek a $400 filing fee and a
$58.40 PACER fee for an additional $458.40 in costs and other expenses. 25
A. Complexity and Novelty of the Issue
Defendants first argue that the attorneys’ fees sought are unreasonable because, “although
this case involved complex constitutional analysis, it hardly presented a novel claim.” 26 Since
numerous courts across the country have been engaged in similar litigation, Defendants assert
that Plaintiffs had a “clear roadmap” for pursuing their claim. 27 Indeed, the claim is not entirely
novel: in the last decade, state laws restricting or prohibiting same-sex couples’ access to legal
marriage and marriage recognition have been the focus of debates in state and federal courtrooms
across the nation.
During the complaint and briefing stages of this case, the legal landscape regarding the
constitutionality of state bans on same-sex marriage was changing day to day and the parties
were required to monitor and keep informed of these changes and adjust their arguments
accordingly. But Plaintiffs were not without guidance in this forum: the issue had been or was
being litigated in numerous federal courts across the nation, including in cases from six of the
eight other states in this Circuit. 28 The Tenth and Fourth Circuits had already issued decisions
Dkt. 47 at 5.
Id. at 11. 42 U.S.C. § 1988(b) permits the prevailing party to collect costs that would normally be
billed to fee-paying clients.
Dkt. 56 at 4.
See Majors v. Horne, 14 F.Supp.3d 1313 (D. Ariz. 2014); Brenner v. Scott, 999 F.Supp.2d 1278 (N.D.
Fla. 2014); Jackson v. Abercrombie, 282 F.R.D. 507 (D. Haw. 2012); Latta v. Otter, 19 F.Supp.3d 1054
(D. Idaho 2014); Love v. Beshear, 989 F.Supp.2d 536 (W.D. Ky. 2014); DeBoer v. Snyder, 973
F.Supp.2d 757 (E.D. Mich. 2014); Rolando v. Fox, 23 F.Supp.3d 1227 (D. Mont. 2014); Sevcik v.
Sandoval, 911 F.Supp.2d 996 (D. Nev. 2012); Geiger v. Kitzhaber, 994 F.Supp.2d 1128 (D. Or. 2014);
Whitewood v. Wolf, 992 F.Supp.2d 410 (M.D. Pa. 2014); DeLeon v. Perry, 975 F.Supp.2d 632 (W.D.
Tex. 2014); McGee v. Cole, 2014 WL 321122 (S.D. W. Va. Jan. 29., 2014).
on the matter in favor of the Plaintiffs’ position 29 and the district court decisions from Idaho,
Hawaii, and Nevada declaring the unconstitutionality of same-sex marriage bans similar to
Alaska’s were pending before the Ninth Circuit. 30 As the Plaintiffs admit in their opening brief:
[T]he vast majority of courts to consider the issue have ruled that state laws barring same-sex
couples from marriage or refusing to recognize their existing marriages are invalid, including
the Fourth and Tenth Circuit Courts of Appeals, fourteen federal district courts, and three
state courts. 31
In short, Plaintiffs were aware of the many courts addressing the issue and had the benefit of
these cases and the arguments propounded therein during the briefing of this case.
Furthermore, the core of Plaintiffs’ claims rested on the Fourteenth Amendment and the right
to equal protection under the laws: concepts hardly new to the federal court system. The
Plaintiffs’ arguments—which paralleled arguments presented in other federal courts—primarily
relied upon cases which have been the subject of legal arguments on the rights of same-sex
couples well before this case was filed. In particular, Plaintiffs heavily relied upon United States
v. Windsor, the Supreme Court decision issued on June 26, 2013 striking down part of the federal
Defense of Marriage Act (“DOMA”). 32 This landmark decision cleared the way for advocates of
same-sex marriage in the federal forum. Plaintiffs’ argument also hinged upon the Ninth Circuit
decision in Smithkline Beecham v. Abbott Laboratories, issued on January 21, 2014, and
providing that, in light of Windsor, “heightened scrutiny” is the appropriate standard of review
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).
In Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), the Ninth Circuit affirmed the rulings of the district
courts in Idaho, Hawaii, and Nevada that declared the states’ same-sex marriage bans unconstitutional.
The decision was issued on October 7, 2014, three days before oral arguments in this case and after the
parties submitted their briefs.
Dkt. 20 at 10.
133 S.Ct. 2675, 2692 (2013); Dkt. 20 at 1-3, 15-17, 20, 23, 27-28, 30, 35-36, 38-39, 42.
when laws discriminate based on sexual orientation. 33 The Ninth Circuit’s directive to use
heightened scrutiny on this issue further supported the success of Plaintiffs’ argument.
Additional Supreme Court cases often cited by Plaintiffs in support of their arguments date
back more than a decade, such as Lawrence v. Texas, issued in 2003, striking down Texas’ antisodomy law, 34 Zablocki v. Redhail, issued in 1978, reaffirming the status of marriage as a
fundamental right, 35 and Loving v. Virginia, issued in 1967, invalidating laws prohibiting
interracial marriage. 36 Plaintiffs may not have had a “clear roadmap” to victory in this case, but
the fact that Plaintiffs’ allegation was previously raised in numerous courts and supported by
well-established law is relevant to the Court’s calculation of a reasonable award in this case.
B. Hourly Billing Rates
A reasonable billing rate for purposes of determining a fee award is “an hourly rate that is
based on the ‘prevailing market rates in the relevant community.’” 37 The relevant community is
generally the forum in which the Court sits. 38 Within this community, the Court looks to “the
prevailing hourly rate…for work that is similar to that performed in this case, by attorneys with
the skill, experience, and reputation comparable to that of [Plaintiffs’] attorneys.” 39 The
Plaintiffs bear the burden of producing satisfactory evidence of the prevailing market rate. 40
740 F.3d 471, 481-84 (9th Cir. 2014); Dkt. 20 at 3, 23-27, 39.
539 U.S. 558 (2003); Dkt. 20 at 15, 17, 30, 37, 42.
434 U.S. 374 (1978); Dkt. 20 at 1, 10, 13-15, 24, 36.
388 U.S. 1 (1967); Dkt. 20 at 1, 3, 10-11, 13, 17, 32, 35.
Gonzalez, 729 F.3d at 1200 (quoting Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)).
Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).
Camacho, 523 F.3d at 980-81.
Id. at 980.
“Affidavits of the plaintiffs’ attorney[s] and other attorneys regarding prevailing fees in the
community, and rate determinations in other cases…are satisfactory evidence of the prevailing
market rate.” 41 However, affidavits submitted only by the Plaintiffs’ attorneys and not by other
attorneys in the community “do not conclusively establish the prevailing market rate.” 42
1. Plaintiffs’ fail to provide satisfactory evidence of the prevailing market rate
In support of the reasonableness of their hourly rates, Plaintiffs filed: affidavits of Mendel
and Blakely from the law firm Mendel & Associates, Inc.; 43 affidavits of solo practitioners
Gardner and Shortell who assisted with the case; 44 the Laffey matrix used in the D.C. Circuit and
elsewhere as a guide to calculating attorney’s fees; and a Request for Proposals from the State of
Alaska offering to hire a bankruptcy attorney for an hourly rate between $320 and $380. 45 Since
the Laffey matrix represents hourly rates for lawyers in Washington, D.C., the Court does not
find it helpful for assessing the rates in Anchorage, Alaska. 46 The Request for Proposals may
give a general idea of a fee the State of Alaska finds reasonable for hiring an attorney, but is not
indicative of the prevailing market rate in the community.
The remaining evidence provided by Plaintiffs are declarations of the primary attorneys who
participated in the litigation of this case. The four attorneys describe the number of years they
United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
Camacho, 523 F.3d at 980.
Dkt. 48 (The Affidavit of Laurence Blakely at Docket 48 is appended with “Exhibit B,” the Affidavit of
Dkts. 50 (Affidavit of Heather Gardner); 59 (Affidavit of Caitlin Shortell).
Dkts. 48, 50, 58, 59.
See Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) (“[J]ust because the
Laffey matrix has been accepted in the District of Columbia does not mean that it is a sound basis for
determining rates elsewhere, let alone in a legal market 3,000 miles away.”). Even if the Court accepted
the Laffey matrix as indicative of a prevailing market rate in Anchorage, Plaintiffs’ rates for Shortell and
Gardner are still in excess.
have been practicing law, their job experience, the type of legal work they have performed in the
past, and other relevant information to indicate their reputation. Mendel, Shortell, and Gardner
declare that the hourly rates used in their calculations are reasonable within Alaska given their
level of expertise. 47 Mendel appears particularly qualified to litigate this matter in light of the
quantity, quality, duration, and diversity of Mendel’s experience, especially in the field of LGBT
rights. 48 Shortell and Gardner have substantially less experience, but indicate considerable
previous litigation practice in a variety of fields including domestic matters. 49 Both Shortell and
Gardner also have experience working in the office of the Alaska Attorney General and in
private and solo practices. 50 Blakely, only recently admitted to the bar, confirmed that Mendel &
Associates, Inc. charges $425 per hour for Mendel’s civil litigation work, $200 per hour for
associate attorney work (including that of Blakely), and $125 for paralegal work. 51
Plaintiffs failed, however, to provide a single declaration of an attorney unrelated to the
present proceedings. In Blum, the United States Supreme Court emphasized that “the burden is
Dkts. 48 at 22; 50 at 4-5; 59 at 4-5.
Dkt. 48 at 18-19. Mendel’s background includes mention that she has practiced law since 1982; is a
member in good standing of the state bars of Alaska, California, and Washington; clerked on the Alaska
Supreme Court and the Ninth Circuit Court of Appeals; is an activist and speaker for LGBT rights and
has litigated issues related to same-sex partners and their children in trial and appellate courts; is a
member of the National LGBT Bar Association (for 20 years) and the National Family Law Advisory
Council; and has been named a “Super Lawyer” in the field of family law in Alaska in 2007, 2009, 2011,
Dkt. 50 at 2 (Shortell began practicing law in Alaska in 2004); 59 at 2 (Gardner was admitted to the
Alaska bar in 2001).
Id. Shortell’s experience includes clerking on the Anchorage Superior Court, working as an assistant
attorney general, becoming a Human Rights Advocate in 2008, leading cases involving discrimination,
retaliation, and harassment, and opening a solo practice focusing on a variety of civil litigation.
Gardner’s experience includes working as an assistant attorney general focusing on child protection
litigation, working at a multistate plaintiffs’ firm on cases involving medical malpractice, ERISA, and
personal injury, and opening a solo practice focusing on domestic matters.
Dkt 48 at 2.
on the fee applicant to produce satisfactory evidence—in addition to the attorney's own
affidavits—that the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” 52 To
substantiate the claim that the fees requested in this case were reasonable, Plaintiffs must provide
at least some corroborating evidence of the prevailing market rate for similar attorneys doing
similar work in the Anchorage area. For example, in Welch v. Metropolitan Life Inc. Co., the fee
applicants provided satisfactory evidence of the prevailing market rate in the community by
submitting: (1) rate determinations in other cases litigated by the law firm awarding fees in line
with the requested rates, and (2) declarations from comparable attorneys in the same area of law
attesting to the market rate in the community for similar work. 53 When the fee applicant fails to
produce such satisfactory evidence, the Ninth Circuit has permitted district courts to limit the
hourly rates requested. 54
Here, the Court is unreasonably asked to rely solely upon Plaintiffs’ attorneys’ affidavits to
justify a determination that the requested rates are appropriate. “[T]he proper reference point for
determining an appropriate fee award is the rates charged by private attorneys in the same legal
market as prevailing counsel.” 55 Since Plaintiffs failed to produce evidence of the prevailing
market rate in this community, the Court is left without such a reference point. The Court
Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984) (emphasis added).
480 F.3d 942, 947 (9th Cir. 2007).
See Carson v. Billings Police Dept., 470 F.3d 889, 891-92 (9th Cir. 2006) (the district court did not err
in awarding an hourly rate of $150 per hour instead of the requested rate of $205 per hour because
“Plaintiff’s counsel submitted no evidence of what the ‘prevailing market rate’ in Montana was” aside
from his own affidavit and affidavits from other lawyers stating that he “deserved” the rate he requested);
Barjon, 132 F.3d at 502 (district court appropriately awarded an hourly rate of $200 instead of the
requested rate of $250 because the evidence submitted by the fee applicants — namely that attorneys in
past cases were awarded rates of $250 per hour — was unpersuasive of the prevailing market rate).
Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996).
recognizes the importance of encouraging capable attorneys to take on public interest cases that
may otherwise never be litigated. But without satisfactory evidence of the prevailing market rate
for similar attorneys providing similar services in this legal market, the Court is unable to
conclude that Plaintiffs’ requested rates reasonably reflect the prevailing market rate.
2. Additional evidence to assess whether Plaintiffs’ hourly rates are representative of the
prevailing market rate in this community
“The party opposing the fee application has a burden of rebuttal that requires submission of
evidence to the district court challenging the accuracy and reasonableness of the…facts asserted
by the prevailing party in its submitted affidavits.” 56 To contest the reasonableness of Plaintiffs’
attorneys’ fees, Defendants argue that in 2010, the Alaska Attorney General approved market
rates for attorneys of various experience that should not exceed $225.00 per hour. 57 Specifically,
Defendants describe a three-tiered system based on attorney qualifications that establishes rates
for fairly reimbursing the state for its legal services as follows: $150 per hour for entry level
professionals referred to as Attorneys I and II; $200 per hour for Attorneys III and IV; and $225
per hour for Attorneys V and VI. 58 Defendants state that the figure was derived from a survey
based on recommendations of a “working group” at the Alaska Department of Law “to determine
fair and reasonable attorney billing rates in Alaska.” 59 The Court has been unable to find the
Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992).
Dkt. 56 at 6.
report or otherwise verify its recommendations from five years ago, but will consider the figures
alongside the Plaintiffs’ affidavits. 60
Without adequate evidence to validate the Plaintiffs’ requested rates, the Court looks to
awards from cases in other districts that have dealt with the same constitutional challenge for
additional guidance. In the case striking down Kentucky’s same-sex marriage ban, the District
Court for the Western District of Kentucky awarded fees to the prevailing plaintiffs at a rate of
$250 per hour. 61 In the District Court for the District of Oregon, the parties in one of the two
same-sex marriage cases stipulated to an award of $350 per hour for the lead attorney with the
most experience, $300 per hour for the second most experienced attorney, and $175 per hour for
the most novice attorney. 62
In Latta v. Otter, the case from the District of Idaho that was affirmed by the Ninth Circuit,
the Court awarded the lead attorney a rate of $400 per hour based on her 28 years of civil
litigation experience, her strong reputation and leadership roles in the legal community, and the
complexity of the case. 63 Another attorney with a 17-year legal career focused on litigation and
a solo practice focusing on civil rights was awarded $325 per hour. The court also awarded $275
per hour for a staff attorney with a 13-year legal career focused on civil rights and experience
working on challenges to same-sex marriage bans in other states. The least experienced attorney,
It appears that this tiered system is intended to represent the fair market rate charged by the Department
of Law for the legal services of its attorneys. Nonetheless, the research conducted by the working group
included billing rates used statewide by other government agencies as well as private practitioners.
Love, 989 F.Supp.2d 536 (“Memorandum Opinion” on motion for attorney fees at Docket 85 can be
found at: http://cases.justia.com/federal/districtcourts/kentucky/kywdce/3:2013cv00750/86567/85/0.pdf?ts=1411545978).
Geiger, 994 F.Supp.2d 1128 (“Order Granting Stipulated Motion for Attorney Fees” at Docket 146 can
be found at: https://cases.justia.com/federal/districtcourts/oregon/ordce/6:2013cv01834/114233/146/0.pdf?ts=1408538541).
Latta, 19 F.Supp.3d 1054 (“Memorandum Decision and Order” at Docket 139 on motion for attorney
fees can be found at: http://www.plainsite.org/dockets/download.html?id=209005568&z=18c337cd).
a staff attorney with experience in civil litigation and LGBT advocacy and who had been a
judicial clerk, received a fee of $175 per hour. In support of their request, the prevailing
plaintiffs submitted declarations to the court from the three lead attorneys on the case as well as
from two experienced attorneys in the community not involved in the case who opined that the
hourly rates requested were reasonable for similar work performed by attorneys of comparable
skill and experience in the Boise market. The declarations from the two independent attorneys
were critical to the court’s analysis of whether the Plaintiffs’ requested rates were reasonable and
in line with the prevailing market rate in that community.
For additional guidance, the Court looks to fees awarded in recent cases within the state of
Alaska. Experienced attorneys who have obtained successful results for their clients typically
received awards consistent with the above cases, ranging from $185 to $300 per hour, depending
on the attorney’s level of expertise. 64 In a recent civil case from this district, Horton v. Tesoro
Alaska Co., the court awarded a rate of $300 per hour for the Plaintiff’s counsel based on thirtysix years of litigation experience. 65 Noting several cases where the Ninth Circuit previously held
that $300 per hour for ERISA counsel was a reasonable rate, the court in Horton found that $300
reasonably reflected the prevailing market rate in this community for similar work. 66 These
cases do not conclusively establish the prevailing market rate in this community, but due to the
lack of evidence submitted on this issue, they assist the Court in making a more informed
decision on the matter.
See Avila v. Pediatrix Medical Group, Inc., No. 3:10–cv–00119, 2014 WL 1569502 (D. Alaska April
16, 2014); Nielson v. Alaska Trustee, LLC, No. 3:10–CV–132, 2010 WL 3940716 (D. Alaska Oct. 6,
2010); Anchorage Sch. Dist. v. D.S., No. 3:08–cv–0142, 2009 WL 5908718 (D. Alaska Sept. 22, 2009);
Krone v. State, Dept. of Health & Social Serv., 222 P.3d 250 (Alaska 2009).
Case No. 3:10-cv-171 (D. Alaska filed July 23, 2010).
3. Hourly rates awarded to Plaintiffs’ attorneys
Considering the evidence submitted, the rates awarded in similar cases for attorneys with
similar levels of legal experience, skill, and reputation, and the Court’s own knowledge of the
legal market in this community, 67 the Court finds that the rates requested by Mendel, Shortell,
Gardner, and Blakely are in this instance too high. Mendel’s experience is similar to that of the
lead attorney in Latta who received $400 per hour: both have many years of experience in
litigation in their respective states, have strong reputations within their legal communities, and
led legal teams that reached a great level of success for their clients and the public. However, the
court in Latta had the benefit of independent attorneys’ declarations to justify that rate as being
in line with the prevailing market rate in the community. Without the same benefit in this case,
and in light of the considerations discussed supra, a fee of $375 per hour is more reasonable for
Mendel’s work on this case.
Shortell and Gardner have substantially less experience than Mendel and should receive an
hourly rate that better reflects their level of expertise. While Shortell and Gardner have some
experience in litigation and domestic matters generally, neither indicated any specific experience
working on LGBT issues or engaging in LGBT advocacy before this case developed. In
contrast, the staff attorney from Latta who worked specifically on civil rights issues for 13 years
and had experience working on multiple same-sex marriage cases in other states received a fee
award of $275 per hour. In Love, the attorneys appearing most similar to Shortell and Gardner
were awarded only $250 per hour. The Court is mindful that both Shortell and Gardner are solo
practitioners and declared in their affidavits the substantial risk they took by agreeing to
represent the Plaintiffs and the fact that they turned away other work to focus on this case. In
Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (Explaining that the district court judge may
also rely upon its own familiarity with the legal market in the community in determining a reasonable
hourly billing rate).
consideration of the available evidence, $250 per hour is a reasonable fee for Shortell and
Lawrence Blakely has the least experience of the four main attorneys; she was admitted to
the Alaska bar in 2009 and began work as an associate in 2011. In light of the fees awarded to
Mendel, Shortell, and Gardner for their levels of experience and expertise, a fee of $175 per hour
is reasonable for Blakely. Finally, the rate requested for the paralegal staff, $125 per hour,
appears consistent with the prevailing market rates for similar work for legal counsel with similar
experience and is therefore reasonable in this case.
C. Number of Hours Claimed
The second step of the loadstar analysis requires the Court to determine how many hours the
attorneys “reasonably expended in pursuit of the ultimate result achieved.” 68 The Court typically
looks to Plaintiffs’ billing records to evaluate the reasonableness of the hours spent on a case. 69
In addition to the attorneys’ signed and sworn affidavits, Plaintiffs provided an itemized list of
time and expenses spent by attorneys and paralegals at Mendel & Associates, Inc. from the
beginning of the case through October 24, 2014 70 and contemporaneous time records from
Gardner and Shortell documenting their hours expended on litigation. 71
“[A] ‘reasonable’ number of hours equals ‘[t]he number of hours…[which] could reasonably
have been billed to a private client.’” 72 When reviewing the attorneys’ billing records, the Court
Hensley, 461 U.S. at 431.
Gonzales, 729 F.3d at 1202 (citing Democratic Party of Wash. v. Reed, 388 F.3d 1281, 1287 (9th Cir.
Dkt. 48 at 5-16 (“Exhibit A”: Mendel & Associates, Inc. time record).
Dkts. 50 at 6-9 (“Exhibit A”: Heather Gardner’s time record); 59-1 (Caitlin Shortell’s time record).
Hensley, 461 U.S. at 431 (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)).
may reduce the number of hours claimed “where documentation of the hours is inadequate; if the
case was overstaffed and hours were duplicated; [or] if the hours expended are deemed excessive
or otherwise unnecessary.” 73
The Court is inclined to agree with Defendants’ contention that 788 hours of work from a
legal team of four attorneys and supportive staff is unreasonable given that the case was decided
on motions for summary judgment and that similar motions were filed and granted by numerous
district courts around the country. 74 Additionally, the level of expertise of the main attorneys on
the case—reflected in the substantial hourly rates determined above—further suggests that 788
hours of work for a case decided on dispositive motions is excessive.
The billing records provided by Plaintiffs include time spent on the following tasks:
reviewing, analyzing, researching, drafting, and editing briefs; various communication with cocounsel, opposing counsel, and clients; conferences to discuss legal theories, brief preparation,
and client meetings; and preparing for oral arguments. 75 The Court finds that these tasks were
necessary in order for counsel to effectively litigate the action. However, the documented hours
corresponding to each task appear at times to be excessive, redundant, or otherwise unnecessary;
there appears to be an inordinate amount of time spent by multiple attorneys conducting the same
tasks, which indicates duplicative efforts. This is particularly evident in the billing records of
Shortell and Gardner. Shortell’s billing record shows at least 40 entries totaling over 60 hours
described as meetings with Gardner. 76 Gardner documented approximately 46 entries totaling
Id. at 433-34.
Dkt. 56 at 7.
Dkts. 48 at 5-16 ("Exhibit A"); 50 at 6-9 ("Exhibit A"); 59-1.
Dkt. 50 at 6-9.
over 80 hours described as meetings with Shortell. 77 These meetings indicate repeated
discussions over the same topic and some lack any explanation as to what the meetings
Moreover, billing records for all of the attorneys frequently lack an adequate description of
the work performed. In particular, the three billing records indicate voluminous meetings,
emails, and telephone calls, but fail to state the nature of the communication. For example, when
listing communication via emails, phone calls, and conferences, the billing records often state
“emails with [co-counsel]” or “conference with [co-counsel]” without additional information.
Other entries indicate the general content or purpose of those communications and support their
reasonableness. The lack of specificity for some entries, however, frustrates the Court’s ability
to effectively assess whether the time spent on those tasks was reasonable or necessary.
Most importantly, after reviewing the billing records, it also appears that Defendants
correctly state that Plaintiffs spent well over 300 hours working on and editing the drafts of the
motion for summary judgment and the subsequent reply. In fact, this may be a modest estimate.
The Court is mindful of the complexity of this issue, but questions whether this many hours
“could reasonably have been billed to a private client.” 78 The Court is particularly wary of the
number of hours claimed given the large, diverse legal staff working on the case, the lead
attorney’s knowledge of LGBT legal issues and the supporting attorneys’ extensive experience in
domestic matters, and the existence of the same legal arguments in cases across the nation.
As discussed supra, this case did not present an entirely novel question, was rooted in wellestablished law, was decided on dispositive motions without trial or discovery, and was
completed in approximately six months. Numerous cases across the county had addressed or
Moreno, 534 F.3d at 1111.
were addressing the same question with parallel legal arguments. Plaintiffs were successful, but
as they indicated in the opening of their brief, nearly every court that had considered the issue
ruled in their favor. Plus, Plaintiffs had three district court cases within the Ninth Circuit that
had already ruled in favor of their position to direct them.
As to specific challenges to the hours for which Plaintiffs seek payment, Defendants argue
that there are two errors in the timesheets submitted by Shortell and Mendel. First, Defendants
claim that Shortell overstated her hours and so her calculations should be considered unreliable:
the individual time entries on her billing record total 180.5 hours, not 246.3 hours as she
originally listed in her declaration. 79 After the addition error came to light, however, Shortell
submitted an amended affidavit to correct the total number of hours she expended on the case. 80
While Plaintiffs promptly corrected this error, the Court is concerned by the substantial
overstatement of hours. Second, Defendants assert that the August 29, 2014 time entry in the
billing record for Mendel & Associates, Inc., which indicates a total of 27.1 hours, must be in
error. 81 However, the far right column of the document indicates three different individuals
completed the work that contributed to that total. 82 Thus, the Court finds no error in this entry. 83
In light of these circumstances and the above analysis, the Court finds that the time spent by
Plaintiffs researching, reviewing, and editing briefs was excessive and not fully compensable.
Dkt. 56 at 5.
Dkt. 59 at 5.
Dkt. 56 at 5; Dkt. 48 at 12 (“Exhibit A” at 8).
See Missouri v. Jenkins, 491 U.S. 274 (1989) (holding that attorneys’ fees under § 1988 can include
paralegal fees so long as the fees “are consistent with market rates and practices.”). Id. at 287-88.
Based on this finding, a reduction in hours by 25% is a reasonable but not over-burdensome
D. Summary of Attorneys’ Fee Awards
The Supreme Court has explained that “the extent of a plaintiff’s success is a crucial factor in
determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988.” 84 In
short, “the result is what matters.” 85 Unlike many cases where the prevailing party achieves only
partial success, the Plaintiffs in this case achieved complete success on their claims. The success
of a plaintiff is particularly notable in a case brought under § 1983 because “[a] civil rights
plaintiff who obtains meaningful relief has corrected a violation of federal law and, in doing so,
has vindicated Congress’s statutory purposes.” 86
Here, the Plaintiffs undeniably obtained a successful result that served the public interest by
vindicating significant constitutional rights. The effective litigation by Plaintiffs’ legal counsel
not only conferred benefits upon the named Plaintiffs, but also “confer[red] benefits on others
throughout society” 87 by allowing same-sex couples to legally marry in Alaska and to have
lawful marriages entered into in other states recognized by the State of Alaska. The Court has
limited its deductions from Plaintiffs’ award due to this success and in order to fulfill the purpose
of § 1988 to encourage experienced, uniquely-qualified attorneys to take on meritorious
constitutional claims of clients wronged by the government. 88
Hensley, 461 U.S. at 440.
Id. at 435.
Fox v. Vice, 131 S.Ct. 2205, 2214 (2011).
McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 810 (9th Cir. 1994).
See Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001).
The following table represents the calculation of attorneys’ fees based on the rates and hours
found by the Court to be reasonable in view of the nature and circumstances of this case:
Requested Rate, Hours
(deducted by 25% and rounded up to the
nearest 1/10 of an hour)
$425, 89.5 hours
$395, 180.5 hours
$395, 230.2 hours
$200, 112 hours
$125, 110.6 hours
For the foregoing reasons, the Court GRANTS in part Plaintiffs’ motion at Docket 46 in the
amount of $127,262.50 in attorneys’ fees to reflect the reductions as explained in this order and
$458.40 in costs and other expenses for a total of $127,720.90.
Dated at Anchorage, Alaska, this __ day of April, 2015.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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