Case 1:13-cv-00482-CWD Document 152 Filed 03/18/15 Page 1 of 8

Deborah A. Ferguson, ISB No. 5333

Craig Harrison Durham, ISB No. 6428
Ferguson Durham, PLLC
223 N. 6th Street, Suite 325
Boise, Idaho 83702
Tel.: (208) 345-5183
Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, California 94102
Tel.: (415) 392-6257
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SUSAN LATTA and TRACI EHLERS,
LORI WATSEN and SHARENE WATSEN,
SHELIA ROBERTSON and ANDREA
ALTMAYER, AMBER BEIERLE and
RACHAEL ROBERTSON,
Plaintiffs,
v.
C.L. "BUTCH" OTTER, as Governor of the
State of Idaho, in his official capacity, and
CHRISTOPHER RICH, as Recorder of Ada
County, Idaho, in his official capacity,

Case No. 1:13-cv-00482-CWD

PLAINTIFFS REPLY
MEMORANDUM IN
SUPPORT OF
SUPPLEMENTAL MOTION
FOR REASONABLE
ATTORNEYS FEES AND
EXPENSES

Defendants,
and
STATE OF IDAHO,
Defendant-Intervenor.

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INTRODUCTION
Defendants raise two objections to Plaintiffs supplemental request for reasonable
attorneys fees and expenses. Neither has merit, as Plaintiffs request is appropriate and
well supported. Aside from these two objections, discussed below, Defendants implicitly
concede that all other fees and expenses should be granted by failing to object to them.
As the prevailing party in this expedited appeal, Plaintiffs respectfully request that the
Court award them their full attorney fees and costs, after taking into account Plaintiffs
own reductions through billing judgments, for their work in the District Court after May
23, 2014 and in the Ninth Circuit Court of Appeals.
DISCUSSION
1. The time spent on oral argument should not be arbitrarily reduced.
Defendants argue that the Court should impose a draconian cut on the time spent
related to oral argument across the board by 50%, but do not identify any particular time
entries that are allegedly unnecessary or excessive.1 Such a meat-axe percentage
reduction is not proper. Willnerd v. Sybase, Inc. (D. Idaho, Jan. 20, 2012, 1:09-CV00500-BLW) 2012 WL 175341, at *5 (Absent a specific showing that claimed hours or
services were inappropriate or unreasonable, a 50%or other percentagereduction of
the claimed total hours is unwarranted.); see also Moreno v. City of Sacramento, 534 F.3d
1

Plaintiffs were unable to discern how Defendants determined that 334.6 hours were
devoted to oral argument. For example, Defendants assert that Ms. Ferguson seeks 223.6
hourssolely for preparing for and making her half-hour argument. Opp. at 4 and fn. 7,
(Dkt.148). Yet Ms. Fergusons time from the dates specified is higher than the one
provided, and a total of only the entries for the relevant dates that specifically mention
oral argument, is lower than what Defendants provide. Similarly, Defendants allege
that Mr. Minter spent 36.7 hours on oral argument preparation, id. at 4 and fn. 10, yet the
total hours Mr. Minter worked (including on non-oral argument issues) on the days
Defendants specify do not equal that amount.
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1106, 1112 (9th Cir. 2008) (finding a 50% reduction in requested hours was draconian
and could not be upheld based upon opaque explanation that fees were excessive.).
Indeed, large percentage reductions, like the one Defendants urge here, are so
problematic that they are subject to heightened scrutiny. See, e.g., Gates v. Deukmejian,
987 F.2d 1392, 1400 (9th Cir. 1992). This is both because [w]here a plaintiff has
obtained excellent results, his attorney should recover a fully compensatory fee, Hensley
v. Eckerhart, 461 U.S. 424, 435 (1983), and because there is a strong presumption that
the lodestar represents the reasonable fee. City of Burlington v. Dague, 505 U.S. 557,
561 (1992).
Accordingly, once Plaintiffs counsel has submitted time records that are
supported by attorney affidavits and other evidence, [t]he party opposing the fee
application has the burden of rebuttal, which requires submission of evidence to the
district court challenging the accuracy and reasonableness of the hours charged or the
facts asserted by the prevailing party in its submitted affidavits. Gates v. Gomez, 60 F.3d
525, 534-535 (9th Cir. 1995) (emphasis added); see also Toussaint v. McCarthy, 826 F.2d
901, 904 (9th Cir. 1987) (requiring that defendants submit admissible, probative evidence
when objecting to fees). Defendants opposition to the supplemental fees motion includes
no evidence. Instead, Defendants urge a severe cut by half based on unsupported
conclusions and personal opinions about what was reasonable, and fail to explain how
that percentage reduction bears any relationship whatsoever to actual time entries they
find excessive or unreasonable.
In fact, oral argument was an essential element of defending Defendants appeal
of the District Courts historic decision. As the attorney who argued the case in the Ninth

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Circuit, Ms. Ferguson was required to expend the most time in preparing for oral
argument. See Ferguson Supp. Decl., Exhibit A. This preparation occurred primarily in
the eight weeks leading to argument, in a disciplined and organized fashion, so that all
the necessary preparation could be accomplished in this short time frame. As reflected in
the time sheets, Ms. Ferguson created a preparation plan, which she further refined into
discrete preparation segments. A review of her time sheets reflects that no entry simply
states that time was spent preparing for oral argument. On the contrary, every entry
provides specific detail as to the nature and manner of preparation for oral argument on
that date, such as prepare summaries of key cases or draft potential panel questions.
The extensive detail in these time sheets provides a cumulative narrative of the
preparation, up to the date of the argument.
Ms. Fergusons detailed records, and those of Plaintiffs other attorneys, thus
provide ample information for this Courts review. See, e.g., Ferland v. Conrad Credit
Corp., 244 F.3d 1145, 1150-51 (9th Cir. 2001) (when a Court fulfills its duty of
reviewing Plaintiffs detailed timesheets, often hours that seem high in the aggregate
prove necessary to ensure careful compliance with the attorneys responsibilities.).

In short, Defendants provide no basis for the Court to arbitrarily slash the time
necessarily expended for the oral argument by 50%. Defendants make no effort to
explain why certain tasks were unnecessary or the time expended excessive. Rather,
2

Defendants appear to question even the need for Ms. Ferguson to read the briefs filed in
the appeal. (Ms. Ferguson seeks an additional 30.6 hours for reviewing amicus briefs
before her argument, presumably to help her prepare. (Italics added) Opp. at 4 and fn.8,
(Dkt.148)). Because of the historical significance of the issues at stake in the appeal, 35
amici briefs were filed by a vast array of entities and individuals. The fact that Ms.
Ferguson spent only 30.6 hours efficiently and productively in this regard was possible
because of coordination with the NCLRs staff. Without this delegation and assistance,
the task could have easily taken three times as long for her to accomplish.
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Plaintiffs detailed time records demonstrate that all of the work was reasonable and
necessary to the litigation and fully successful outcome.
2. The time spent on fees for fees is compensable.
Defendants also object to the time expended on preparing the reply brief in
connection with Plaintiffs initial fee request, and for fees spent on the supplemental
motion. Plaintiffs were mindful of the areas of concern highlighted by the Court in its
Memorandum Decision on fees. (Dkt. 139 at 19-20). As noted in the supplemental
request, with respect to the Courts statement that it would not entertain another request
for fees incurred in litigating [the original] fee motion (fees for fees), Plaintiffs
attorneys have excluded all time spent on the motion from May 24, 2014, until the filing
of the motion on May 27, 2014 as an exercise of billing judgment reduction. (Dkt.148 at
9). Defendants fail to note this reduction.
However, Plaintiffs are seeking compensation for the time spent in preparing the
Reply to Defendants Memorandum in Response to Motion for Attorneys Fees, filed on
July 28, 2014 (Dkt. 122), as well as some hours preparing the supplemental fee request. It
is well-established that Plaintiffs are entitled to reasonable attorneys fees for time spent
on a fees motion. Orange Blossom PShip v. S. Cal. Sunbelt Developers, Inc., 608 F.3d
456, 46265 (9th Cir. 2010). This is so because it would be inconsistent to dilute a fees
award by refusing to compensate attorneys for the time they reasonably spent in
establishing their rightful claim to the fee. Camacho v. Bridgeport Fin., Inc., 523 F.3d
973, 981 (9th Cir. 2008). If an attorney is required to expend time litigating his fee
claim, yet may not be compensated for that time, the attorneys effective rate for all the

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hours expended on the case will be correspondingly decreased. In re Nucorp Energy,

Inc., 764 F.2d 655, 660-61 (9th Cir. 1985)(citation omitted).
Moreover, just as a court must review merits fees using the lodestar method, it
must calculate an award of attorneys fees by first calculating the lodestar before
departing from it. Camacho, 523 F.3d at 981 (internal citations and quotations omitted).
Here, Plaintiffs reply brief was necessary to address Defendants lengthy response, with
myriad exhibits, that challenged (unsuccessfully) nearly every aspect of Plaintiffs
original request. It is reasonable to compensate Plaintiffs counsel for work that
Defendants created for them while they were seeking their statutory right to recover fees.
For these reasons, the fees requested for this work are proper and should be awarded by
this Court.
3. Plaintiffs have made significant billing judgment reductions.
Each of Plaintiffs attorneys have significant exercised billing judgment
reductions, as set out in the timesheets attached to the supplemental declarations, and
have chosen not to bill for tasks that would otherwise be compensable. Mr. Minter and
Mr. Stoll frequently did not bill for time spent on numerous conference calls with cocounsel about various briefs, strategy decisions, and defense filings. (Minter Supp. Decl.
at 19.)
Likewise, Ms. Ferguson and Mr. Durham have taken significant reductions for
time that would otherwise be compensable, as set forth in their declarations. (Ferguson
Supp. Decl. at 20; Durham Supp. Decl. at 13.) For example, Ms. Ferguson exercised
her billing judgment and reduced her total fee request by 46.3 hours, or by 10%.
Likewise, Mr. Durham cut nearly 10% in his hours working on the merits, and was

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judicious in recording his time for fees for fees work. Additionally, Plaintiffs team
received many hours of assistance from other legal professionals who seek no
compensation, including invaluable advice and consultation from the NCLRs
Constitutional Litigation Director, David Codell, and Supreme Court specialists at
Morrison & Foerster. (Minter Supp. Decl. at 19.)
CONCLUSION
Plaintiffs supplemental petition for fees is reasonable and well supported.
Accordingly, Plaintiffs respectfully request that the Court award their counsel
$297,475.00 in attorneys fees (NCLR - $99,770; Ferguson Durham - $197,705) and
$6,730.85 in costs and expenses (NCLR - $3,611.32; Ferguson Durham - $3,119.53),
plus post-judgment interest pursuant to 28 U.S.C. 1961.
Respectfully submitted this 18th day of March, 2015
_______/s/____________
Deborah A. Ferguson
Craig Harrison Durham
Ferguson Durham, PLLC
Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 18, 2015, I filed the foregoing
PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF SUPPLEMENTAL
ATTORNEYS FEES electronically through the CM/ECF system, which caused the
following parties or counsel to be served by electronic means, as more fully reflected
on the Notice of Electronic Filing:
Attorneys for Defendant Rich and Intervenor State of Idaho:
Steven Lamar Olsen
steven.olsen@ag.idaho.gov
Clay R Smith
clay.smith@ag.idaho.gov
W Scott Zanzig
scott.zanzig@ag.idaho.gov
Attorneys for Defendant Governor Otter:
Thomas C. Perry
tom.perry@gov.idaho.gov
Cally Ann Younger
cally.younger@gov.idaho.gov

_________/s/_______
Deborah A. Ferguson

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