Case 2:04-cv-08425 Document 293 Filed 03/01/11 3 Pages

1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA AND ) ROBERT M. GATES, Secretary of ) Defense, ) ) Defendants. ) ) ) ) ) ) No. CV04-8425 VAP (Ex) DEFENDANTS NOTICE OF MOTION TO RETAX COSTS HEARING: April 4, 2011 TIME: 2:00 P.M. PLACE: Courtroom 2, 2nd Floor, United States District Court, 3470 Twelfth St., Riverside CA.

14 LOG CABIN REPUBLICANS,

Filed herewith: 1. Notice of Motion and Motion to Retax Costs; 2. Memorandum of Points And Authorities in Support of Motion to Retax Costs; and 3. Proposed Order.

NOTICE OF DEFENDANTS MOTION TO RETAX COSTS

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NOTICE OF MOTION AND MOTION TO RETAX COSTS NOTICE IS HEREBY GIVEN that on April 4, 2011, at 2:00 P.M., in the

3 Courtroom of the Honorable Virginia A. Phillips, United States District Judge, 4 Defendants United States and Secretary of Defense Robert M. Gates (hereafter 5 Defendants), by and through counsel, will move to retax costs assessed by the 6 Clerk by order entered February 22, 2011. The motion will be based upon these 7 moving papers, the attached Memorandum of points and authorities, and upon such 8 further arguments, documents, and grounds as may be advanced in the future. 9 As a threshold matter, any assessment of costs in this case is inappropriate. 10 The government has appealed the Courts injunction against the governments 11 implementation of 10 U.S.C. 654, the Dont Ask, Dont Tell statutory policy. 12 Given the importance and complexity of the constitutional issues presented, any 13 award of costs is inappropriate. In addition, in light of the governments appeal, 14 any assessment of costs should await final appellate resolution. Because the 15 appeal may very well result in the reversal of the Courts judgment and worldwide 16 permanent injunction, interests of judicial economy weigh strongly in favor of 17 awaiting final appellate resolution before costs are assessed. 18 At a minimum, the costs awarded by the Clerk should be reduced. The 19 airfare of two of Plaintiffs witnesses, Phillip Bradley ($1,159.58) and Christopher 20 M. Meekins ($1,819.40), well exceed the amount charged for the fares of other 21 witnesses. Because Plaintiff has failed to show that these rates were the most 22 economical rates reasonably available to Plaintiff, as required by 28 U.S.C. 23 1821(c)(1), neither charge is appropriately taxed to Defendants. Accordingly, 24 the airfares charged for both witnesses should be excluded from the amount taxed. 25 27 28
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

The Motion is made following the conference of counsel pursuant L.R. 7-3,

26 which took place on February 23, 2011.

NOTICE OF DEFENDANTS MOTION TO RETAX COSTS

1 Dated: March 1, 2011 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director /s/ Ryan B. Parker PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 paul.freeborne@usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense

NOTICE OF DEFENDANTS MOTION TO RETAX COSTS

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

Case 2:04-cv-08425 Document 293-1 Filed 03/01/11 5 Pages

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION By order entered on February 22, 2011, the Clerk has assessed costs of

4 $20,869.29. As a threshold matter, any assessment of costs in this case is 5 inappropriate. The government has appealed the Courts injunction against the 6 governments implementation of 10 U.S.C. 654, the Dont Ask, Dont Tell 7 statutory policy. Given the importance and complexity of the constitutional issues 8 presented, any award of costs is inappropriate. In addition, in light of the 9 governments appeal, any assessment of costs should await final appellate 10 resolution. Because the appeal may very well result in the reversal of the Courts 11 judgment and worldwide permanent injunction, interests of judicial economy 12 weigh strongly in favor of awaiting final appellate resolution before costs are 13 assessed. 14 At a minimum, the costs awarded by the Clerk should be reduced. The 15 airfare of two of Plaintiffs witnesses, Phillip Bradley ($1,159.58) and Christopher 16 M. Meekins ($1,819.40), well exceed the amount charged for the fares of other 17 witnesses. Because Plaintiff has failed to show that these rates were the most 18 economical rates reasonably available to Plaintiff, as required by 28 U.S.C. 19 1821(c)(1), neither charge is appropriately taxed to Defendants. Accordingly, 20 the airfares charged for both witnesses should be excluded from the amount taxed. 21 22 I. 23 24 ARGUMENT No Costs Should Be Charged Here Given the Important And Complex Legal Issues Presented In This Constitutional Challenge Fed. R. Civ. P. 54(d)(1) provides that costs other than attorneys fees shall

25 be allowed as a matter of course to the prevailing party unless a court provides 26 otherwise. By its terms, therefore, the District Court has discretion to refuse to 27 award costs. Save Our Valley v. Sound Transit, 335 F.3d 932, 945-946 (9th Cir. 28 2003); Assn of Mexican-American Educators v. California, 231 F.3d 572, 591MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO RETAX COSTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

1 593 (9th Cir. 2000). Thus, where a case involves issues of substantial public 2 importance, see Assn of Mexican-American Educators, 231 F.3d at 593, or where 3 the legal issues are close and complex, see Save Our Valley, 335 F.3d at 946, the 4 district court has the discretion to deny any award of costs under Rule 54. 5 This case presents a constitutional challenge to a federal statute. It 6 accordingly presents issues of substantial public importance. Furthermore, while 7 the District Court has found the statute and implementing regulations to be 8 unconstitutional, all of the courts of appeals to have addressed the matter had 9 sustained the constitutionality of 654 against both substantive due process and 10 First Amendment challenges. See Cook v. Gates, 528 F.3d 42 (1st Cir. 2008); 11 Able v. United States, 155 F.3d 628, 631-36 (2d Cir. 1998); Richenberg v. Perry, 12 97 F.3d 256, 260-62 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 927-31, 13 934 (4th Cir. 1996) (en banc). No award of costs is accordingly appropriate here. 14 II. 15 16 Consideration of Plaintiffs Application Should Be Deferred Until There Is A Final Appellate Resolution of Plaintiffs Challenge At the very least, no award of costs should be made now. This matter is now

17 on appeal, and implementation of the Courts judgment has been stayed pending 18 the Ninth Circuits decision. See Doc. 284. [A] determination of who is the 19 prevailing party for purposes of awarding costs should not depend on the position 20 of the parties at each stage in the litigation but should be made when the 21 controversy is finally decided. 10 Wright, Miller & Kane, Federal Practice and 22 Procedure 2667 (3d ed. 1998). 23 And it is well-established that a Court may deny without prejudice or defer 24 its ruling on attorneys fees when an appeal on the merits is pending. See 1993 25 Advisory Committee notes to Fed. R. Civ. P. 54(d) (if an appeal on the merits of 26 the case is taken, the [district] court may rule on the claim for fees, may defer its 27 ruling on the motion, or may deny the motion without prejudice[.]). The same 28 principles apply to a ruling on a bill of costs. See Lasic v. Moreno, No. 05-161,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO RETAX COSTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

1 2007 WL 4180655, *1 (E.D. Cal. Nov. 21, 2007) (finding that interests of judicial 2 economy warrant deferring consideration of bill of costs while an appeal on the 3 merits is pending); see also In re Farmers Ins. Exchange Claims Representatives 4 Overtime Pay Litig., No. 33-1439, 2009 WL 3834034, *3 (D. Or. Nov. 13, 2009) 5 (deferring payment of costs pending Ninth Circuit disposition of pending appeals). 6 Accordingly, to the extent the Court concludes that costs are otherwise 7 recoverable in this constitutional challenge, Defendants request that Plaintiffs 8 application for costs be held in abeyance until this action has been finally resolved 9 through the appellate process. 10 III. 11 12 At a Minimum, The Airfare Taxed for Messrs. Bradley and Meekins Do Not Appear to be the Most Reasonably Available Economical Rates Pursuant to L.R. 54-4.7, a prevailing party may charge for certain statutory

13 witness fees, including airfare. But the airfare charged must be at the most 14 economical rate reasonably available. 28 U.S.C. 1821(c)(1). The airfare of two 15 of Plaintiffs witnesses, Phillip Bradley ($1,159.58) and Christopher M. Meekins 16 ($1,819.40), are almost three times the amount charged for Plaintiffs other trial 17 witnesses. Compare Exhibits 4B & F to Doc. 279 with Exhibits 4A, 4C-E, 18 4G-I. Because Plaintiff has failed to show that the rates charged for Messrs. 19 Bradley and Meekins were the most economical rate reasonably available, as 20 required by 28 U.S.C. 1821(c)(1), the amounts charged should be disallowed. 21 Indeed, the receipts attached to Plaintiffs Bill of Costs show that Mr. 22 Meekins return flight was first-class (or business class). See Doc. 279, Exhibit 23 4F. The same is true of Mr. Bradleys departing flight on July 12, 2010. See Doc. 24 279, Exhibit 4B (indicating trip from Charleston, S.C. to Houston, TX was in b 25 or business class). Defendants should not be charged for luxury travel, particularly 26 where the governing statute requires that Plaintiff obtain the most economical rates 27 reasonably available. See Hemmerick v. Chrysler Corp., 769 F. Supp. 525, 531 28 (S.D.N.Y. 1991)(disallowing first class air travel from taxed costs, and recognizing
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO RETAX COSTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

1 that such travel does not constitute the most economical rate reasonably 2 utilized.) Defendants accordingly request that, at a minimum, the airfares for 3 Messrs. Meekins and Bradley be excluded from the amount taxed. 4 5 CONCLUSION Therefore, no costs should be awarded in this constitutional challenge. In

6 any event, in light of Defendants appeal, Plaintiffs application for costs should be 7 denied without prejudice to re-file upon the conclusion of the appellate process or 8 held in abeyance until this action has been finally resolved through the appellate 9 process. Should any costs be awarded now, the amount taxed by the Clerk should 10 be reduced to exclude, pursuant to 28 U.S.C. 1821(c)(1), the amount that has 11 been taxed for the airfare of Messrs. Bradley and Meekins. 12 13 Dated: March 1, 2011 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO RETAX COSTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

Respectfully submitted, TONY WEST Assistant Attorney General ANDR BIROTTE, JR United States Attorney JOSEPH H. HUNT Director VINCENT M. GARVEY Deputy Branch Director

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO RETAX COSTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

/s/ Ryan B. Parker PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8202 paul.freeborne@usdoj.gov Attorneys for Defendants United States of America and Secretary of Defense

Case 2:04-cv-08425 Document 293-2 Filed 03/01/11 2 Pages

1 TONY WEST Assistant Attorney General 2 ANDR BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch Post Office Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: paul.freeborne@usdoj.gov 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 13 15 16 v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV04-8425 VAP (Ex) [PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO RETAX COSTS HEARING: April 4, 2011 TIME: 2:00 p.m. PLACE: Courtroom 2, 2nd Floor, United States District Court, 3470 Twelfth St., Riverside CA.

14 LOG CABIN REPUBLICANS,

17 UNITED STATES OF AMERICA AND ROBERT M. GATES, Secretary of 18 Defense, 19 20 21 22 23 25 27 28

ORDER GRANTING DEFENDANTS MOTION TO RETAX COSTS

Defendants.

The Court, having considered Defendants Motion to Retax Costs and all IT IS HEREBY ORDERED that Defendants Motion is GRANTED.

24 materials and argument submitted in relation thereto, hereby orders as follows: 26 Plaintiffs application for costs is denied.

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

1 DATED: April ____, 2011 2 3 4 PRESENTED BY: 5 TONY WEST Assistant Attorney General 6 ANDR BIROTTE, Jr. United States Attorney 7 JOSEPH H. HUNT VINCENT M. GARVEY 8 9 /s/ Ryan B. Parker 10 PAUL G. FREEBORNE W. SCOTT SIMPSON 11 JOSHUA E. GARDNER RYAN B. PARKER 12 Trial Attorneys U.S. Department of Justice 13 Civil Division Federal Programs Branch 14 Post Office Box 883 Washington, D.C. 20044 15 Telephone: (202) 353-0543 Facsimile: (202) 616-8460 16 E-mail: paul.freeborne@usdoj.gov 17 Attorneys for Defendants United States of America and Secretary of Defense 18 19 20 21 22 23 24 25 26 27 28
ORDER GRANTING DEFENDANTS MOTION TO RETAX COSTS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 (202) 353-0543

HON. VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE

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