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Heather Gardner #0111079

Caitlin Shortell #0405027


Counsel for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MATTHEW HAMBY ET AL.,
Plaintiffs,
vs.

)
)
)
Case No. 3:14-cv-00089 TMB

WILLIAM WALKER, ET AL.,


Defendants.

MOTION FOR RECONSIDERATION


OF COURTS ORDER ON MOTION
FOR ATTORNEYS FEES (42 U.S.C.
1988) (FRCP 59(e)

COME NOW Plaintiffs counsel Caitlin Shortell and Heather Gardner1 and move
the court for reconsideration of its April 15, 2015 Order on their Attorneys Fees pursuant
to FRCP 59(e). This motion is supported by attached Declarations of undersigned
counsel Caitlin Shortell, Heather Gardner, and the Declarations of attorneys Lee Holen,
Ken Legacki, and Jessica Hedges.
I.

BACKGROUND

Allison Mendel is not participating in this motion and undersigned counsel are not
authorized to speak for her or to represent her interests or those of her staff in this matter.
All references to counsel or undersigned counsel in this motion refer exclusively to
Shortell and/or Gardner.

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On April 15, 2015, this court partially granted Plaintiffs Motion for Attorneys
Fees pursuant to 42 U.S.C. 1988. The court reduced the award of undersigned counsels
fees from the amounts requested by more than fifty percent. The court reduced the
hourly rates requested by all counsel and disallowed a significant number of hours set
forth in counsels declarations. The original motion for fees drafted by Allison Mendel
or her associate did not include additional declarations from other counsel in the
community, and as a result, the court could not rely upon such declarations. Undersigned
counsel Shortell and Gardner apologize for this mistake, and seek to correct it by
providing such evidence herein. Even taking the lack of corroborating declarations into
account, the court relied upon a number of errors of fact, failed to apply binding Ninth
Circuit law on the matter of 1988 fees, and reached a conclusion that defies the purpose
of the fee-shifting statute in reducing the award. Accordingly, the court should reconsider
its decision to drastically reduce counsels award for the reasons set forth below.
II.

LEGAL STANDARDS

The Ninth Circuit has set forth the grounds justifying reconsideration of a
judgment under Rule 59(e). There are four basic grounds upon which a Rule 59(e)
motion may be granted: (1) if such motion is necessary to correct manifest errors of law
or fact upon which the judgment rests; (2) if such motion is necessary to present newly

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discovered or previously unavailable evidence; (3) if such motion is necessary to prevent


manifest injustice; or (4) if the amendment is justified by an intervening change in
controlling law.2 For the reasons set forth below, reconsideration is warranted.
The factual basis for an award of attorneys fees is reviewed for clear error, and
the orders underlying legal premises are reviewed de novo.3 If there are no clear errors,
an award of attorneys fees is reviewed for an abuse of discretion.4 In cases involving
federal fee-shifting statutes, the district court must calculate the lodestar by multiplying
number of hours reasonably expended by the reasonable hourly rate.5 The 9th Circuit
generally requires district courts to use the 12 factors outlined in Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67 (9th Cir. 1975) to make attorneys' fee determinations. The Kerr
factors are: 1) the time and labor required; 2) the novelty and difficulty of the questions
involved; 3) the skill requisite to perform the legal service properly; 4) the preclusion of
other employment by the attorney due to acceptance of the case; 5) the customary fee; 6)
2

Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011).
3
Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1147-48 (9th Cir. 2001) (per curiam)
(citations omitted).
4

Ferland, 244 F.3d at 1148.

Van Skike v. Dir., Office of Workers' Comp. Programs, 557 F.3d 1041, 1046 (9th Cir.

2009)(cit. omitted).

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whether the fee is fixed or contingent; 7) time limitations imposed by the client or the
circumstances; 8) the amount involved and the results obtained; 9) the experience,
reputation, and ability of the attorneys; 10) the "undesirability" of the case; 11) the nature
and length of the professional relationship with the client; and 12) awards in similar
cases.6 In providing its analysis, the district court must provide more than just a general
statement that it considered the Kerr factors.
In Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008), the 9th
Circuit ruled that the larger the disparity between the attorneys' fee request and the court's
award, the "more specific articulation of the court's reasoning is expected." A District
court must calculate awards for fees using the lodestar method and the amount of that
fee must be determined on the facts of each case.7 The lodestar is calculated by
multiplying the number of hours the prevailing party reasonably expended on the
litigation by a reasonable hourly rate.8 In most cases, the lodestar figure should be
considered presumptively reasonable by the District court.9 To fulfill the purpose of

Quesada v. Thomason, 850 F.2d 537, 539 n.1. (9th Cir. 1988).

Ferland, 244 F.3d at 1149 n.4, Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).

Ferland, 244 F.3d at 1149 n.4 (citation and internal quotation marks omitted).
Id.

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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"10 without yielding a windfall to either party.11
In order to assess the reasonableness of an hourly rate, the 9th circuit court of
appeals has held that the district court must look to the prevailing rate of other attorneys
of similar skill, experience, and reputation in the relevant community,12 which is the
federal district in which the case was brought.13 The applicants for fees bear the burden of
producing affidavits to show that their requested hourly rate is within the range for
attorneys of similar experience, and reputation in the same district.14 This evidence can
include the applicants own affidavits, the affidavits of other attorneys in the same
district, and fee determinations in other cases.15 The party opposing the fee application
has a burden of rebuttal that requires submission of evidence to the district court

10

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).
12
Barjon v. Dalton, 132 F.3d 496, 132 F.3d 496, 502 (9th Cir. 1997).
11

13

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008).

14

Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

15

United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

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challenging the accuracy and reasonableness of the facts asserted by the prevailing party
in its submitted affidavits.16
A district court errs when it fails to consider evidence as to the market rate for
attorneys of like experience, skill, and reputation in the same federal district, as in
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008).17 The 9th Circuit
also instructs district courts to compare requested fees solely in comparison to cases
brought under the identical statute or on identical subject matter, but instead in
comparison to the fees commensurate to the fees the applicants could have obtained by
taking other cases of like difficulty.18

16

Camacho, at 4251, citing Gates, 987 F.2d at 1397-98.

17

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008).
The 9th Circuit court of Appeals remanded Camacho to the district court where the
district court limited its inquiry to FDCPA cases, directing the District court, [i]n order
to encourage able counsel to undertake FDCPA cases, as congress intended, it is
necessary that counsel be awarded fees commensurate with those which they could obtain
by taking other types of cases. Camacho at Tolentino v. Friedman, 46 F.3d 645, 652 (7th
Cir. 1995); see also Semar v. Platte Valley Fed. Sav. & Loan Assn, 791 F.2d 699, 706
(9th Cir. 1986) (explaining that reasonable hourly rate must be based on customary fees
in cases of like difficulty).
18

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A District court must give adequate explanation of how it reached its decision in
making a fee award. In Carter v. Caleb Brett LLC19, a three judge panel for the 9th
Circuit Court of Appeals vacated the district court's order awarding reduced attorneys'
fees to appellant. Carter reiterated and confirmed prior 9th Circuit holdings requiring a
sufficiently specific explanation in order to determine the reasonableness of a fee award.
The greater the reduction, the more specificity required in the explanation. Appellant
Rick Carter appealed the district court's order awarding him $14,268.50 in attorneys' fees
and costs where his fee petition was sought $22,585. Carter appealed, arguing that the
district court's failure to sufficiently explain its rationale for the fee reduction constituted
error as a matter of law. The 9th Circuit agreed.
District courts have discretion in determining the amount of a fee award, but they
must provide a clear explanation of their reasoning for an award.20 In Carter v. Caleb
Brett LLC, the district court based its award on a "blended" hourly rate (calculated using
a combination of the senior and junior attorney rates) combined with a 37% reduction in
compensable hours. The 9th Circuit panel opined that the district court 's focus on only
two of the twelve Kerr factors was insufficient and that the court must provide more

19
20

Carter v. Caleb Brett LLC, 757 F. 3d 866 (9th Cir. 2014).


Hensley v. Eckerhart, 461 U.S. 424, 437-439 (1983).

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specific reasons for making such a significant reduction. The panel cites the 9th Circuit's
opinion in Costa v. Commissioner of Social Security Administration, 690 F.3d 1132 (9th
Cir. 2012) where it held that the magistrate was required to provide relatively specific
reasons in support of ordering an hours reduction of one-third. Similarly, in Carter, the
panel vacated the award and remanded to the district court with instructions to reconsider
the amount awarded and to articulate the basis for the award with more specificity.
III.

DISCUSSION
A.

Kerr Factors

The court should reconsider its order to include a thorough application of the Kerr
factors to reinstate applicants requested fees, as follows:
1) Time and Labor Required
Shortell and Gardner were required to spend extensive time and labor to bring and
litigate the case, including client recruitment, investigation, legal research, drafting of all
the substantive pleadings, and meetings with each other and their co-counsel, Allison
Mendel, as detailed in their declarations and fee bills submitted to this court. Shortell
recruited six of the ten clients in the case and acted as the client liaison. Shortell
researched and drafted the motion for summary judgment. Gardner drafted the Complaint
and the Reply to the Motion for Summary Judgment as well as the Reply to the

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Opposition to the Motion for Fees. Both attorneys had to research all the applicable case
law as it developed during the pendency of the case and discussed in the Motion and
Opposition, because they were lead drafters of the substantive pleadings. Undersigned
counsel remained in contact and met on a weekly basis throughout the case to check in
and review any new cases that had issued and any needs and questions posed by the
clients. Shortell spent time and labor listening to oral arguments and meeting with cocounsel, preparing for oral argument, and in arguing the due process claim in the Motion
for Summary Judgment. Gardner helped prepare Shortell for oral argument and met with
the clients and co-counsel prior to the oral argument. Gardner also drafted the Reply to
the Motion for Fees. These are all both appropriate and necessary uses of lawyers time.
Finally, Shortell and Gardner have spent time and labor on this motion for
reconsideration, for which they have not billed, as well as the Reply to the opposition to
the original motion for fees.
2) The Novelty and Difficulty of the Issues Presented
Hamby et al. v. Walker et al. presented a matter of first impression in the District
of Alaska: whether the State of Alaskas laws denying same sex couples the right to
marry and recognition of their marriages violated the guarantee of due process and equal
protection in the 14th amendment to the United States Constitution. The case was brought

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less than one year after the Supreme Courts landmark decision striking down the federal
Defense of Marriage Act as unconstitutional in United States v. Windsor21, and four
months after the Ninth Circuit decision in SmithKline Beecham v. Abbott22 which
determined the applicable level of scrutiny in the circuit for review of a law that
discriminates on the basis of sexual orientation, but did not resolve the question of
marriage. More than thirty decisions on same sex marriage bans issued from federal and
state courts during the pendency of this case. None of plaintiffs counsel in this matter,
nor any other attorney in the district of Alaska had litigated these issues before
applicants. Thus, applicants Shortell and Gardner were required to do substantial work to
litigate this case of first impression during the time when its underlying issues and claims
were and still remain, in legal flux.
The issue of same sex marriage is currently pending before the U.S. Supreme
Court. Until the Supreme Court rules on Obergefell v. Hodges so as to resolve conflicts
between the circuits, the right of same sex couples to marry is still not settled law. With
Defendants maintaining the appeal of the above-captioned matter before the Ninth Circuit
and joining with 14 other states in an anti-equality amicus brief to the United States
Supreme Court, the outcome of this matter is still not a foregone conclusion. In its fee
21
22

United States v. Windsor, 570 U.S. (2013).


SmithKline Beecham Corp. v. Abbott Laboratories, 740 F. 3d 471 (9th Cir. 2014).

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order, the court essentially states that counsel knew what the outcome of the case would
be, so counsel spent too much time working on it. This conflicts with the reality of
preparing a civil rights case on an issue of significant national importance, as new orders
were coming out of multiple states as the case was being researched, prepared, and
briefed, with unpredictable results. It also conflicts with the Ninth Circuits position that
courts should generally defer to the winning lawyers professional judgment as to how
much time was required to spend on the case; after all, he won, and might not have, had
he been more of a slacker.23
3) The Skill Requisite to Perform the Legal Service Properly
This case required applicants to be skilled at recruitment and management of ten
clients, to strategize the pleading of a federal civil rights case under 28 U.S.C. 1983, to
be skilled at legal research and writing, to work on a project that included other attorneys,
supportive staff, clients, journalists, activists, advocacy organizations, government
agencies, and opposing counsel.
4) Preclusion of Other Employment by the Attorneys Due to Acceptance of the
Case

23

Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

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At the outset of this case, both Shortell and Gardner resided in Seattle,
Washington and traveled periodically to Anchorage to represent Alaska clients. The time
required to adequately pursue this matter hindered both attorneys from accepting and
performing other work. Both attorneys traveled to Anchorage in 2014 to meet with clients
and co-counsel and Shortell moved back to Anchorage in July of 2014 in part because the
case demanded that she be present and available to clients and co-counsel. Both Shortell
and Gardner devoted focused sessions of time to the legal research, writing, editing, and
argument of this case. All the time devoted to the case represented an opportunity cost to
Plaintiffs lawyers as they did not earn and have not yet received any compensation for
the time they spent, whereas they would have been paid had they devoted the same time
to other cases.
5) Customary Fee
The Alaska Bar Association has approximately 4000 members. A large percentage
of those lawyers work for governmental organizations, NGOs, or as in house counsel.
The customary fee is difficult to assess due to the very small population of lawyers who
practice in the area of federal civil rights litigation against state actors. For example,
Shortell is one of approximately three attorneys who focus on employment law

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representing plaintiffs in Anchorage.24 The mode of compensation for undersigned in


their private practices ranges depending on whether the fee agreement is contingency, flat
fee, or hourly basis. Shortell currently charges $375.00 as a basic hourly rate for routine
legal advice and representation in all matters including employment law and family law.
The hourly rate of $375.00 is a rate charged where clients agree to pay Shortell for her
services in advance, as opposed to a complex case of first impression taken without any
assurance of getting paid. Gardner has been employed most recently as in house counsel
for an out of state firm. Both attorneys have agreed to charge clients less than the rate
requested in this matter where payment is made in advance and payment is not contingent
on recovery of damages. However, contingency fees are more difficult to quantify, and
lead to variable results when reduced to an hourly rate. Undersigned counsel submit that
an hourly rate of $395.00 was within the range of a reasonable customary rate for
attorneys with 10-20 years of experience who undertake and prevail in complex federal
litigation such as this case. Attorneys Holen, Legacki, and Hedges, all experienced civil
rights attorneys in private practice, submitted declarations that support the request for an
hourly rate of $395 as reasonable.

24

Attorneys Lee Holen and Kenneth Legacki, who have submitted declarations in
support of this motion, are the other two plaintiff-side employment lawyers known to
applicants.

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6) Whether the Fee is Fixed or Contingent


The fees sought by applicants are contingent upon their prevailing in the lawsuit
and the courts award pursuant to 1988. This case was not accompanied by a demand for
damages against the Defendants, which would have permitted the court to include the
award of damages in its analysis.
7) Time Limitations Imposed by the Client or the Circumstances
Although Shortell and Gardner began to work together to develop the case in June,
2013, the Complaint in this case was filed on May 12, 2014 and the Motion for Summary
Judgment, Opposition and Reply were briefed and decided by October 12, 2014. The
schedule of the case required applicants Shortell and Gardner to devote large amounts of
time during 2014 to the case that could have otherwise been spent earning fees in cases
where payment was certain. Both attorneys were working as sole practitioners during the
pendency of the case. Unlike firms where attorneys can devote time to pro bono cases
and this activity is subsidized by other paying clients, Shortell and Gardner sacrificed
much of 2014 to the Hamby case due to its social and legal significance, and did not work
within a firm framework where that lost time could be absorbed. Due to the courts order
that the case proceed on a tight deadline and the fast-moving national legal landscape, the
case demanded that Shortell and Gardner devote much of their time in 2014 to the

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Hamby case. The court noted that it took the risk to the attorneys as sole practitioners
into account, but failed to explain how that reasoning is consistent with the courts more
than 50% reduction of the fee award. Accordingly, applicants Shortell and Gardner ask
the court to reconsider its reasoning and decision in light of their sacrifice as sole
practitioners and the fees that they could have earned had they not been working on the
Hamby case during the tight deadlines necessary in 2014.
8) The Amount Involved and the Results Obtained
The Hamby Case was not a lawsuit for money damages and the fees requested
were reasonable in light of the historic result obtained. Since 1998, the state of Alaska
had expressly discriminated against same sex couples, denying them marriage and
recognition of marriage. Applicants won a permanent injunction and a declaration that
Alaskas marriage laws violated due process and equal protection clauses of the 14th
amendment of the United States Constitution. As of January 2015, hundreds of same sex
couples had married in Alaska. Plaintiffs achieved reversal of an era of discrimination
that persisted from 1998-2014 that denied same-sex Alaskans fundamental rights and
equal protection of the law. The fees requested by Shortell and Gardner were necessary
and reasonable in relation to the historic result accomplished, but the court reduced those

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fees by over 50%25. Although this court recognized that Plaintiffs counsel benefitted
their clients and others throughout society and stated [t]he 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, the courts more than 50%
reduction of Shortell and Gardners fee request will have the effect of chilling, not
encouraging, future civil rights litigation against the government. Applicants urge the
court to reconsider its reasoning and decision to drastically reduce their requested fees
based on the remarkable result they achieved for civil rights in Alaska.
9) Experience, Reputation, and Ability of the Attorneys

25

The court reduced Shortell and Gardners fees by 53% as follows: Caitlin Shortell

billed $395 per hour for 180.5 hours for a requested total of $71,297.50. This court
reduced Shortells hourly rate from $395 to $250 and reduced her hours by 25% to 135.4
hours for a reduced total award of $33,850.00. Heather Gardner billed an hourly rate of
$395 per hour and 230.2 hours for a requested total of $90,929.00. This court reduced
Gardners hourly rate to $250/hr and reduced her hours by 25% from 230.2 hours to
172.7 hours for a reduced award of $43,175.00.

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Applicants Shortell and Gardner both graduated from law school in 1999, Shortell
from Northeastern University School of Law and Gardner from Tulane Law School. Both
applicants had fourteen years of legal work experience following law school at the time
this case proceeded.
In 1999, Shortell was a judicial extern for District Court Judge Maxine Chesney of
the Northern District of California. She also worked for the private law firm of Gold,
Bennett, Cera & Sidener in San Francisco on complex multidistrict class actions in
Securities Fraud and Antitrust. In 2000-2001, Shortell worked as a judicial law clerk for
Superior Court Judge Stephanie Joannides in Anchorage, Alaska. After returning to
Alaska permanently in 2003, Shortell worked as a lawyer at the Alaska Public Defender
Agency and as an Assistant Attorney General in Child Protection and Medicaid
Subrogation sections until January of 2008. In January of 2008, Shortell worked as
Attorney IV, Human Rights Advocate, at the Alaska State Commission for Human
Rights. From 2009 to the present, Shortell has been in private practice with Gardner and
in solo practice. In her private practice, Shortell focuses on plaintiff-side employment,
discrimination and harassment, as well as civil litigation against government. Shortell
currently is sole counsel for Plaintiffs in a hybrid collective/class action brought under
the Fair Labor Standards Act and the Alaska Statutes and Human Rights Law before this

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court. Shortell has also done constitutional appellate advocacy for criminal defendants in
state and federal court. The focus of Shortells career as a lawyer since 1999 has been
constitutional and civil rights, the same subject matter of the Hamby case.
Heather Gardner graduated from Tulane Law School in 1999. Following law
school, she worked for private firms in Seattle and Juneau before becoming an assistant
attorney general representing the Divisions of Medical Assistance, Public Health, and
Public Assistance. From 2003 to 2005, she was in private practice in a firm specializing
in complex civil litigation in Juneau, Alaska. In 2005 she founded her own law firm,
where her practice included personal injury litigation, maritime litigation, business
litigation, administrative proceedings and appeals, federal criminal appeals, and family
law.
Both attorneys each had over 14 years of legal work experience at the filing of this
case in 2014 and possessed the requisite skill and experience in constitutional advocacy,
civil rights litigation, and the basic skills of legal research, writing, and client
management necessary to bring a case of first impression involving a constitutional
challenge to Alaska law with a team of multiple attorneys and ten clients.

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Applicants Shortell and Gardner request that the court reconsider their experience,
skill, and ability due to its factual errors in noting their respective work experience and
the relevancy of those experiences to the instant case.
10) The "undesirability" of the case
When Shortell and Gardner began investigating this case in 2013, no other known
attorney, law firm, or advocacy organization would agree to take it. In response to press
inquiries in December 2013, representatives of Lambda Legal, Identity Inc, and the
ACLU of Alaska all stated that they did not intend to bring an Alaska marriage case. The
lack of any other local organization bringing the case made it undesirable. In addition,
the case required advocating for LGBT people, a group that courts have recognized has
been a despised minority group. Applicants respectfully request that the court reconsider
its order based on the undesirablility of the case that applicants brought when no other
attorneys or organizations would do so in the State of Alaska on behalf of an unpopular
minority that continues to experience discrimination in the state.
11) Nature and extent of the professional relationship with the client
Counsel has outlined the relationship and efforts with the clients as set forth
above.

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12) Awards in similar cases


The court considered similar or parallel marriage cases outside Alaska, but did not
apply rates from within the District of Alaska, and few parallels exist. Counsel notes that
the total award claimed by the Alaska attorneys was considerably less than the amount
claimed by and awarded to the Idaho plaintiffs. The court failed to adequately explore
this factor and applicants urge the court to reconsider the Motion for Fees in light of this
factor.
B.

Errors in the Courts April 15, 2015 Order Require the Court to

Reconsider and Vacate its Order as to Undersigned Counsel and Reinstate the Fees
Requested
Applicants Shortell and Gardner request that the court reconsider its order in light
of manifest factual and legal errors, each of which appear to have factored into the courts
decision to reduce the fee award requested by counsel:
1.

Undersigned counsel did not assist with the case [Doc. 62 at 8] but in

fact, brought 6 of 10 Plaintiffs into the case and drafted the preponderance of substantive
pleadings in this matter. As the timesheets of both counsel indicate, Gardner drafted the
Complaint, the Reply to Defendants Opposition to Motion for Summary Judgment and

20
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the Reply to Defendants Opposition to Motion for Attorneys Fees.26 Caitlin Shortell
drafted the Motion for Summary Judgment, organized the Plaintiffs, and performed the
preponderance of work involved in initially bringing the case, preparing the clients,
meeting with clients before the complaint was filed, interacting with clients after the case
was underway, and dealing with public inquiries about the case. Mendels office brought
four of the Plaintiffs into the case, edited and made inclusions in documents, and drafted
the pre-trial conference notice, the opposition to the stay in mid-October 2014, and the
motion for fees. The delegation of substantive work between the attorneys in this matter
was divided between Mendels office on one hand and undersigned counsel on the other,
and is reflected in the time spent by undersigned counsel set forth in their timesheets.
Undersigned counsel began the legwork to bring this case in late June, 2013,
immediately after the Windsor decision was issued. Because of the nature of the case,
both attorneys performed work that is not reflected in time sheets because it is noncompensable by this court under 42 U.S.C. 1988. This was also explained in the
Declarations of both attorneys, and is also evident in the Affidavit of Blakeley. The
courts repeated assumption that Mendel led the case, its legal team [Doc. 62 at 14,
17] and its other assumptions about the relative value and weight of the attorneys
26

As Allison Mendel is not participating in this motion, Counsel cannot speak to her and
her associates billing in this matter.

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contributions is not based upon any facts present or relevant in this matter, but appears to
have factored heavily into its decision to impose a substantially lower hourly rate (and
greater discount of both rate and hours) on undersigned counsel than upon Mendel,
whose compensable effort was more limited.27 It also appears to be the basis for the
courts subjective evaluation of experience and reputation, without any reference as to
any specific basis for those conclusions.
Because undersigned counsel was largely responsible for the briefing and were in
reliable communication with each other, undersigned counsel met on a regular basis by
phone to discuss, among other matters: new cases as they were decided; legal
scholarship, theories, and news articles on the matters before the court; the postures of
pending cases; recorded oral arguments and the judges questions as they became
available; and questions presented by the Plaintiffs themselves to their counsel. There are
all reasonable uses of attorney time, and would in fact be reasonably billable to private
clients who were headed to federal court on a rapidly evolving issue. Not all of the time
the attorneys spent working on this case was actually reflected in their timesheets. If the
Plaintiffs were directly paying for the work performed by counsel, they would reasonably

27

Counsel does not suggest that Mendel is not entitled to her claimed fees. To the
contrary. But undersigned counsel does not represent Mendel or have any authority from
her to speak for her.

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expect Counsel to be fully informed and up to date on all developments on their issue,
regardless of how quickly they occurred, and they would expect their attorneys to direct
their case based upon the latest developments. Moreover, the hours claimed do not reflect
all of the time counsel spent reasonably working on, researching, discussing, or otherwise
occupied by the case. Counsel exercised discretion in billing as billing occurred.
2.

The court also misstated undersigned counsels legal experience as set forth

in Declarations. For example, as an AAG, Gardner did not do child protection


litigation, nor does her practice focus on domestic matters as the court states. [Doc 62
at 9, FN 50.] These are relevant errors because they appear to have factored into the
courts eventual determination of the artificial hourly rate it assigned to counsel. If the
court is relying upon date of admission to practice in Alaska, it has not explained why
that is the relevant basis for calculating an attorneys experience, rather than the year the
attorney completed law school. Gardner was admitted to practice in 1999, and Shortell in
2004. Yet the court assigned both attorneys the same substantially reduced hourly rate.
3.

It is also unclear why the court, finding that Gardners experience merited

an hourly rate of only $250 an hour, awarded Mendel a different rate for a longer career
that has actually been focused on family law, found no reason to reward Shortells
experience litigating discrimination claims, an area of practice directly relevant here, and

23
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assigned an hourly rate of only $75 less to an associate with less than five years of
experience. The court does not explain why any of these characterizations, regardless of
accuracy, lead to the conclusion that the hourly rate claimed by counsel is inappropriate.
The courts reasoning is not adequately explained as required by the Ninth Circuit.28
4.

The court also characterizes experience working on LGBT issues as

significant to counsel receiving a compensatory fee in this matter. This is an arbitrary


and circular basis for reducing counsels fee, given the fact that this case could certainly
not have been brought before Windsor (June 2013) and arguably not before SmithKline
Beecham (January 2014) and the Alaska Supreme Court was effectively denied
jurisdiction over this matter by the constitutional amendment this case overturned. Since
the courts either did not view same sex couples or LGBT people as meriting protection or
were prevented from doing so prior to 2013, very few Alaska attorneys have substantial
experience pursuing LGBT claims. For example, the Alaska State Commission for
Human Rights does not investigate or pursue claims of discrimination against LGBT
people. As a result, Shortell was barred from pursuing such claims when she was the
agencys attorney, and the court has declined to recognize her experience as valuable,
when the lack of any protections for LGBT people in Alaska resulted in a legal

28

Moreno at 1112.

24
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environment in which challenging any form of discrimination against them was virtually
impossible.
5.

The court also did not explain why it refused to consider the evidence of the

hourly rates offered to private contract counsel by the State of Alaska in 2014 (c.
$380.00) as useful in determining the reasonableness of counsels requested hourly rate,
but did consider the rate ($225.00) proposed by Defendants in their conclusory
opposition, which Defendants conceded was several years old, based upon studies not
provided to the court, was not intended to be a compensatory rate, and was unsupported
by any offered evidence other than Defendants counsels affidavit. As Defendants
acknowledged that the rate they proposed had been in effect for years, the Ninth Circuit
has specifically disallowed the evidence Defendants offered. We also note that in
determining the prevailing market rate a district court abuses its discretion to the extent it
relies on cases decided years before the attorneys actually rendered their services.29
6.

29

Moreover, the court failed to consider that Defendants did not meet their

Bell v. Clackamas County, 341 F.3d 858, 869 (9th Cir. 2003) (holding that it was an

abuse of discretion to apply market rates in effect more than two years before the work
was performed).

25
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burden of rebuttal. Defendants opposed the fee motion for the general reasons that they
believed that undersigned counsel took too much time and asked for a too-high hourly
rate. It is notable that Defendants admitted to about 670 hours spent defending the case;
the courts reduction of all of Plaintiffs counsels hours reduces the total hours allowed to
be billed to 542.2 hours [Doc. 62 at 20], more than 127 fewer total hours than Defendants
claimed to have spent defending it. Neither of Defendants vague bases of opposition
form anything approaching an adequate rebuttal. In Moreno, the Ninth Circuit warned
that
the burden of producing a sufficiently cogent explanation can mostly be
placed on the shoulders of the losing parties If opposing counsel cannot
come up with specific reasons that the district court finds persuasive, it
should normally grant the award in full, or with no more than a haircut.30
6.

The court should also reconsider the reasonablenesss of applicants

requested fees in comparison to cases of like difficulty and should not limit its inquiry to
equal marriage cases in other districts. The court did not base its analysis on cases of like
difficulty in the district, but considered rates in the context of equal marriage lawsuits
from other districts. The court appears to have relied primarily on a rate requested by an
attorney in the Western District of Kentucky, which is not comparable to the local

30

Moreno at 1116.

26
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market. The failure to consider the rates of attorneys in the district and restriction of
comparison to other FDCPA cases were a basis for remand in Camacho. The court
commented, [i]n order to encourage able counsel to undertake FDCPA cases, as
Congress intended, it is necessary that counsel be awarded fees commensurate with those
which they could obtain by taking other types of cases.31
7.

The court should also reconsider its orders impermissible double

discounts, as established in Moreno. By cutting both counsels hourly rate and the hours
reasonably spent, the court has imposed draconian reductions that are not justified by
either the circumstances of the case or the market rates in the district. As the Moreno
court warned:
It is possiblefor a district court to reduce both the hours and hourly rate
awarded for some tasks. But the district court must exercise extreme care
in making such reductions to avoid double counting [t]he district court
may properly use the simplicity of a given task as justification for a
reduction in the rate for the hours spent performing that task or as
justification for a reduction in the overall rate, but not both. 32

31

Camacho, supra, citing Tolentino, 46 F.3d at 652; see also Semar v. Platte Valley Fed.

Sav. & Loan Assn, 791 F.2d 699, 706 (9th Cir. 1986).
32

Moreno at 1115-1116.

27
HAMBY ET AL. V. WALKER ET AL.
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The courts order has imposed upon undersigned counsel draconian cuts where
Defendants offered no effective rebuttal, in a matter of monumental significance in the
development of civil rights, and on an issue where the final outcome is far from certain,
because it is currently pending before the U.S. Supreme Court. Plaintiffs achieved a
significant victory, and the court should not deter other attorneys from being willing to
bring similar claims before the court by arbitrarily cutting their fees to a noncompensable
level without justification.
IV.

CONCLUSION
Based upon the above, the court should reconsider its April 15, 2015 Order,

reverse its reductions of counsels requested fees pursuant to 42 U.S.C. 1988, and
reinstate counsels fees as requested by undersigned counsel in the original motion for
fees.
RESPECTFULLY SUBMITTED this 13th day of May, 2015 at Anchorage,
Alaska.
By:

____________/s/_______________
Heather Gardner #0111079
Caitlin Shortell #0405027

28
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CERTIFICATE OF SERVICE
I certify that on May 13, 2015 I caused to be served by CM/ECF electronic service the
above document, attached declarations of Caitlin Shortell, Heather Gardner, Lee Holen,
Ken Legacki, and Jessica Hedges, and proposed Order on the counsel of record set forth
below:

Allison Mendel, Esq.


William Milks, Esq.
Kevin Wakeley, Esq.

/s/ Caitlin Shortell

29
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Case 3:14-cv-00089-TMB Document 63 Filed 05/13/15 Page 29 of 29

Heather Gardner #0111079


Caitlin Shortell #0405027
Counsel for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MATTHEW HAMBY ET AL.,

)
)
)

Plaintiffs,
vs.

Case No. 3:14-cv-00089 TMB


PROPOSED ORDER ON
RECONSIDERATION OF COURTS
ORDER ON MOTION FOR
ATTORNEYS FEES (42 U.S.C.
1988) (FRCP 59(e)

WILLIAM WALKER, ET AL.,


Defendants.

Plaintiffs counsels motion is GRANTED. The court has reconsidered its April
15, 2015 Order, VACATES the order as to movants Caitlin Shortell and Heather
Gardner, and awards attorneys fees pursuant to 42 U.S.C. 1988 to Shortell and Gardner
as follows:
1) the court awards Caitlin Shortell attorneys fees in the amount of $71,297.50.
2) the court awards Heather Gardner attorneys fees in the amount of $90,929.00.
IT IS SO ORDERED.
BY:

_____________________________________
U.S. District Court Judge Timothy Burgess

1
HAMBY ET AL. V. PARNELL ET AL.
CASE NO. 3:14-cv- 00089 TMB
PROPOSED ORDER ON MOTION FOR RECONSIDERATION (FRCP 59(E))

Case 3:14-cv-00089-TMB Document 63-1 Filed 05/13/15 Page 1 of 2

CERTIFICATE OF SERVICE
I certify that on May 13, 2015 I caused to be served by CM/ECF electronic service the above
document on the counsel of record set forth below:
Allison Mendel, Esq.
William Milks, Esq.
Kevin Wakeley, Esq.
/s/ Caitlin Shortell

2
HAMBY ET AL. V. PARNELL ET AL.
CASE NO. 3:14-cv- 00089 TMB
PROPOSED ORDER ON MOTION FOR RECONSIDERATION (FRCP 59(E))

Case 3:14-cv-00089-TMB Document 63-1 Filed 05/13/15 Page 2 of 2

Heather Gardner AK Bar #0111079


Caitlin Shortell AK Bar #0405027
Counsel for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER


SHELDEN, a married couple, CHRISTINA )
LABORDE and SUSAN TOW, a married )
couple, SEAN EGAN and DAVID
)
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,
Plaintiffs,
vs.
SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J. STREUR, in his official
capacity as Commissioner of the State of
Alaska, Department of Health and Social
Services, and PHILLIP MITCHELL, in his
official capacity as State Registrar and
Licensing Officer, Alaska Bureau of Vital
Statistics,

DECLARATION IN SUPPORT OF
MOTION FOR RECONSIDERATION
RE: ORDER FOR ATTORNEYS
FEES AND COSTS PURSUANT TO
28 U.S.C. 1988
Case No. 3:14-cv-00089 TMB

Defendants.

I, Heather L. Gardner, hereby declare and state as follows:


1.

I am a member in good standing of the state bars of Alaska and Washington. I am

inactive in Washington. I am also licensed to practice in the United States District Court for the
District of Alaska, the United States Court of Appeals for the Ninth Circuit, and the United
States Supreme Court. I am submitting this declaration in support of counsel Shortell and
Gardners Motion for Reconsideration of the April 15, 2015 Order on Attorneys Fees [Doc 62.]

DECLARATION OF HEATHER L. GARDNER IN SUPPORT OF MOTION FOR RECONSIDERATION - 1

Case 3:14-cv-00089-TMB Document 63-2 Filed 05/13/15 Page 1 of 3

I have personal knowledge of the matters stated in this declaration and could competently testify
to these facts.
2.

I previously set forth my experience, education, and qualifications in my earlier

Declaration in Support of Attorneys Fees [Doc. 50] and incorporate that declaration herein.
3.

The fee award entered by the court at Docket 62 is not fully compensatory to me.

I have not charged $250.00 per hour as a normal rate for any type of civil litigation for several
years. My rate varies, but is dependent upon having a deposit of fees in advance of performing
work. I often charge flat fees on complex matters when clients request it. I am rarely in a
financial position to undertake contingency fee litigation, and this matter was a rare exception
due to the importance of the issue.
4.

In the above referenced case, I took primary responsibility for drafting the

Complaint [Doc. 1], the Reply to the Opposition to Plaintiffs Motion for Summary Judgment,
[Doc. 33] and the Reply to the Defendants Opposition to Motion for Attorneys Fees [Doc. 58.]
I did not spend more time than necessary on any of these tasks, especially since I did not know
if, or when, I would be paid for them. I have not billed for drafting the reply to the opposition to
attorneys fees.
5.

In addition to the tasks for which I was primarily responsible, I spent time that I

did not bill for because I did not believe it was reasonably billable on this case. Caitlin Shortell
and I planned to bring this matter for almost a year before it was filed. I did bill for any
preparation time and I avoided billing when I was simply answering questions, interacting with
press, and other nonbillable activities.
6.

The time demands of this case reduced my capacity to work on other cases. Due

to short deadlines and the rapidly evolving legal landscape of the issues presented in this matter,
I had to devote substantial focus to this case to the exclusion of other work.

DECLARATION OF HEATHER L. GARDNER IN SUPPORT OF MOTION FOR RECONSIDERATION - 2

Case 3:14-cv-00089-TMB Document 63-2 Filed 05/13/15 Page 2 of 3

7.

The courts April 15, 2015 order drastically reducing both my hourly rate and my

total hours spent on this matter will absolutely deter me from accepting any future civil rights
cases or other types of cases subject to fee shifting statutes within the District of Alaska. I
cannot take such a risk in the future if, even if I prevail and achieve a high degree of success, and
even where the opposing party fails to rebut my request for fees, I stand to be under compensated
for my time and efforts.
8.

For the foregoing reasons, I respectfully request the court award me the fees I

requested, and fully compensate me for the work I performed in this matter.
I declare under penalty of perjury that the foregoing is true and correct.
Executed at Seattle, Washington on this 13th day of May, 2015.

By:

/s Heather Gardner
____________________________
Heather Gardner ABA #0111079

DECLARATION OF HEATHER L. GARDNER IN SUPPORT OF MOTION FOR RECONSIDERATION - 3

Case 3:14-cv-00089-TMB Document 63-2 Filed 05/13/15 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER


SHELDEN, a married couple, CHRISTINA )
LABORDE and SUSAN TOW, a married )
couple, SEAN EGAN and DAVID
)
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,
Plaintiffs,
vs.
SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J. STREUR, in his official
capacity as Commissioner of the State of
Alaska, Department of Health and Social
Services, and PHILLIP MITCHELL, in his
official capacity as State Registrar and
Licensing Officer, Alaska Bureau of Vital
Statistics,

DECLARATION IN SUPPORT OF
MOTION FOR ATTORNEYS FEES
AND COSTS PURSUANT TO 28
U.S.C. 1988

Case No. 3:14-cv-00089 TMB

Defendants.

I, Lee Holen, hereby declare and state as follows:


1.

I am a member in good standing of the state bar of Alaska. I am licensed to

practice in the United States District Court for the District of Alaska and the United States Court
of Appeals for the Ninth Circuit. I am submitting this declaration in support of Plaintiffs
Motion for Reasonable Attorneys Fees and Costs. I have personal knowledge of the matters
stated in this declaration and can competently testify to these facts.
2.

I am a 1977 graduate of William Mitchell College of Law in St. Paul, Minnesota.

DECLARATION OF LEE HOLEN IN SUPPORT OF PLAINTIFFS MOTION FOR REASONABLE


ATTORNEYS FEES AND EXPENSES - 1

Case 3:14-cv-00089-TMB Document 63-3 Filed 05/13/15 Page 1 of 3

3.

Following graduation from law school, I relocated to Alaska and became a

member of the Alaska Bar in 1978 to the present.


4.

Since the early 1980s, I have practiced employment law almost exclusively, in my

own firm since approximately 1990. I have litigated cases in Alaska State and Federal Courts, as
well as before administrative agencies, with appellate work before the Alaska Supreme Court,
the Ninth Circuit Federal Court of Appeals, and the U.S. Supreme Court. I have served as cocounsel with the EEOC in discrimination cases in Federal District Court in Anchorage, Alaska.
5.

In my current practice, which includes mainly plaintiff-side employment

litigation, I have litigated federal civil rights lawsuits, including Breland v. Fred Meyer Stores,
Inc., Case No. A05-169 CI (TMB); Jacobsen v. Ketchikan Police Dept., et al., Case No. K030003-CV (RRB); Walker v. NANA WorleyParsons, LLC, Case No. 3:11-cv-00089 (SLG); Sutton
v. Jewell, Case No. 3:13-cv-00096 (TMB); as well as a large number of cases in State Court
which also include federal civil rights claims.
6.

As a lawyer who practices in the District of Alaska, I believe the hourly rate of

$395.00 requested by Ms. Shortell and Ms. Gardner is a reasonable hourly rate of compensation
for private attorneys with ten to twenty years of experience in a complex 1983 civil rights
lawsuit like Hamby v. Walker.
7.

A federal civil rights lawsuit brings with it a risk that the lawyer never will be

paid. If the court declines to award the lawyers who have brought such a case their reasonable
hourly rates commensurate for their risk, their skill in concluding the case, and the result, it will
be a deterrent to civil rights lawyers bringing such cases in the future. I do not believe that a rate
of $250 per hour is near adequate compensation for taking on a case with the high degree of risk
involved in this vigorously contested civil rights case regarding equal marriage; the disparity
between the State resources and the Plaintiffs must be considered. Without attorneys who take
DECLARATION OF LEE HOLEN IN SUPPORT OF PLAINTIFFS MOTION FOR REASONABLE
ATTORNEYS FEES AND EXPENSES - 2

Case 3:14-cv-00089-TMB Document 63-3 Filed 05/13/15 Page 2 of 3

these risks, the Plaintiffs would not be able to prosecute these legitimate and ultimately
successful claims.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Anchorage, Alaska on this 27th day of April, 2015.
/s/ Lee Holen
AK Bar # 7810071

DECLARATION OF LEE HOLEN IN SUPPORT OF PLAINTIFFS MOTION FOR REASONABLE


ATTORNEYS FEES AND EXPENSES - 3

Case 3:14-cv-00089-TMB Document 63-3 Filed 05/13/15 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ALASKA .

MATTHEW HAMBY and CHRISTOPHER


SHELDEN, a married couple, CHRISTINA
LABORDE and SUSAN TOW, a married
couple, SEAN EGAN and DAVID
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,
Plaintiffs,
vs.
SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J. STREUR,in his official capacity
as Commissioner of the State of Alaska,
Department of Health and Social Services,
and PHILLIP MITCHELL, in his official
capacity as State Registrar and Licensing
Officer, Alaska Bureau of Vital Statistics,

DECLARATION
IN SUPPORT OF
MOTION FOR ATTORNEY'S
FEES
AND COSTS PURSUANT TO 28
U.S.C. 1988

Case No. 3:14-cv-00089

TMB

Defendants.

I, Kenneth Legacki, hereby declare and state as follows:


1.

I am a member

Washington State Bar Association.

in good standing of the Alaska Bar Association

and the

I am licensed to practice in the United States District Court

for the District of Alaska and the United States Court of Appeals for the 9th Circuit.

I am

submitting this declaration in support of Plaintiffs' Motion for Reasonable Attorneys' Fees and
Costs. I have personal knowledge of the matters stated in this declaration and could competently
testify to these facts.

DECLARATIONOF KENNETHLEGACKIIN SUPPORTOF PLAINTIFFS'MOTIONFORREASONABLE


ATTORNEYS'FEESAND EXPENSES- I

Case 3:14-cv-00089-TMB Document 63-4 Filed 05/13/15 Page 1 of 3

2.

I graduated in 1982 from the University of Puget Sound School of Law, now

known as Seattle University School of Law.

3.

Following graduation, I worked as a law clerk for The Honorable Thomas E.

Schulz, Judge of the Superior Court, and as a magistrate in Ketchikan, Alaska.

4.

I was admitted to the Alaska Bar Association in November

1983 and to the

Washington State Bar Association in July 2003.

5.

I have been practicing law in Anchorage, Alaska since 1983.

I worked for

private law firms between 1984 and 1988, before opening my own practice in 1988.

6.

In my current practice, which includes plaintiff-side employment litigation, I have

litigated race and gender discrimination cases.

7.

As a lawyer who practices in the District of Alaska, I believe the hourly rate of

$395.00 requested by Ms. Shortell and Ms. Gardner is a reasonable hourly rate of compensation
for private attorneys of similar experience in this district in a complex 1983 civil rights lawsuit
like Hamby v. Walker.

8.

A federal civil rights lawsuit is by nature a contingency case that brings with it a

risk that the lawyer will never be paid. If the court declines to award the lawyers who have
brought such a case their requested hourly rates, it will be a deterrent to lawyers bringing such
cases in the future. I do not believe that a rate of $250 per hour is near adequate compensation

DECLARATION OF KENNETH LEGACKIIN


ATTORNEYS' FEES AND EXPENSES - 2

SUPPORT OF PLAINTIFFS'

MOTION FOR REASONABLE

Case 3:14-cv-00089-TMB Document 63-4 Filed 05/13/15 Page 2 of 3

for taking on a case with the risk involved in this highly contested civil rights case regarding
equal marriage, and I do not believe it represents a market rate for such work performed by
experienced attorneys.

Ideclare under penalty of perjury that the foregoing is true and correct.
Executed in Anchorage, Alaska on this 13th day of May 2015.

enneth W. Legacki
Alaska BarNo. 8310132
425 G Street, Suite 920
Anchorage, AK 99501
Phone: (907) 258-2422
Fax: (907) 278-4848
E-mail: legacki@gci.net

DECLARA nON OF KENNETH LEGACKIIN


ATTORNEYS' FEES AND EXPENSES - 3

SUPPORT OF PLAINTIFFS'

MOTION FOR REASONABLE

Case 3:14-cv-00089-TMB Document 63-4 Filed 05/13/15 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY and CHRISTOPHER


SHELDEN, a married couple, CHRISTINA )
LABORDE and SUSAN TOW, a married )
couple, SEAN EGAN and DAVID
)
ROBINSON, a married couple, TRACEY
WIESE and KATRINA CORTEZ, a married
couple, and COURTNEY LAMB and
STEPHANIE PEARSON, unmarried
persons,
Plaintiffs,
vs.
SEAN C. PARNELL, in his official capacity
as Governor of Alaska, MICHAEL
GERAGHTY, in his official capacity as
Attorney General of the State of Alaska,
WILLIAM J. STREUR, in his official
capacity as Commissioner of the State of
Alaska, Department of Health and Social
Services, and PHILLIP MITCHELL, in his
official capacity as State Registrar and
Licensing Officer, Alaska Bureau of Vital
Statistics,

DECLARATION IN SUPPORT OF
MOTION FOR ATTORNEYS FEES
AND COSTS PURSUANT TO 28
U.S.C. 1988
Case No. 3:14-cv-00089 TMB

Defendants.

I, Jessica D. Hedges, hereby declare and state as follows:


1.

I am a member in good standing of the state bar of Massachusetts. Since 2009, I

have been a partner in the law firm of Hedges & Tumposky, LLP, a small law firm that
specializes in civil rights (police misconduct) and criminal law. Currently, most of my cases
(both criminal and civil) are being litigated the United States District Court for the District of
Massachusetts, Boston. Before opening my own firm, I worked in another small law firm in
Boston for eight years (first as an associate and then as a partner) where I also specialized in civil
rights and criminal law.

DECLARATION OF JESSICA HEDGES IN SUPPORT OF PLAINTIFFS MOTION FOR REASONABLE


ATTORNEYS FEES AND EXPENSES - 1

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2.

I am a 1999 graduate of Northeastern University School of Law. I am licensed to

practice in the States of Massachusetts and West Virginia, the United States District Court for the
District of Massachusetts and the United States Court of Appeals for the 1st and 4th Circuit(s),
and the Supreme Court of the United States.
3.

Throughout my career I have been asked to lecture, teach, and sit on various

panels concerning on civil rights law and criminal law. I have also been an Adjunct professor at
Northeastern University School of Law for the past five years.
4.

I am submitting this declaration in support of Plaintiffs Motion for Reasonable

Attorneys Fees and Costs. I have personal knowledge of the matters stated in this declaration
and could competently testify to these facts.
5.

Throughout my career I have litigated numerous federal civil rights lawsuits.

Most of these suits have ultimately settled. However, I have tried several of these cases to
verdict, and supervised other in doing so, including, but not limited to the following:
Caldwell v. Delancy, US District Court, 06-11869 (J. Young) (civil Rights, prison)
Losano v. Town of Swampscott, 02-11111 (J. Lasker) (civil rights, police misconduct)
Lacy v. Feeny 04-11492 (J. Young) (civil rights, police misconduct)
6.

I have reviewed the fee bills of Caitlin Shortell and Heather Gardner in the above-

captioned matter. While I practice in the District of Massachusetts and Ms. Shortell and Ms.
Gardner practice in the District of Alaska, I have experience litigating 1983 civil rights cases
where the Plaintiffs lawyer assumes the risk of never getting paid. Taking such cases has an
opportunity cost, because any time spent on a case where a client pays me for my services.
7.

Having reviewed the billing of Ms. Shortell and Ms. Gardner and based on my

experience as a private lawyer who has practiced in the area of 1983 litigation, I believe that the
time spent by Ms. Shortell and Ms. Gardner on this case was reasonable for a case of this risk,
complexity and import. Plaintiffs counsel Shortell and Gardner found the appropriate clients,
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coordinated those ten clients throughout, kept abreast of decisions in the federal courts around
the nation that issued on a weekly basis during the pendency of the case. In addition, Shortell and
Gardner researched and authored the pleadings in the case. Gardner drafted the Complaint.
Shortell drafted the Motion for Summary Judgment.

Gardner drafted the Reply to the

Opposition to the Motion for Summary Judgment. Ms. Shortell and Ms. Gardner met once a
week for one hour throughout the case to manage the progress of the case and nationwide
developments in equal marriage litigation. In addition, Plaintiffs counsel spent time throughout
the case meeting with their co-counsel, Ms. Mendel, to finalize the pleadings that Shortell and
Gardner authored, and in preparation for an oral argument.
8.

The billing submitted by Shortell and Gardner was sufficiently specific with

regard to the tasks performed in each entry and was not block billing prohibited in the federal
courts. Entries by Shortell noted the particular topics researched and particular sections of the
Motion for Summary Judgment written on any given entry. Gardners entries were similarly
specific. Shortell and Gardners entries as to their meetings gave the court information as to the
topics discussed.
9.

As an attorney in private practice, I handle different types of cases with different

rates of compensation, depending on whether the case is court appointed, billed to a client, on
contingency, or billed by the hour. The rate that I charge or receive for a court appointed
criminal defense case is different and typically much lower than the rate that I would charge and
receive to successfully bring a complex civil rights case. The reasons for the difference in my
rates include: 1) the rates of court appointed work are set by the court; 2) bringing a complex
federal civil rights case involves the very high risk that I will never be compensated for my time
unless I am a prevailing party.

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10.

Because any time I spend on federal civil rights litigation is uncompensated as it

proceeds and consumes time I would otherwise be doing paying work, my billing in federal civil
rights litigation has to be efficient so that I can continue to do other paying work during the time
period that I am litigating the unpaid civil rights litigation.
11.

I can afford to be paid a lower rate for court appointed criminal defense work that

I do because there is a certainty that I will be paid for the work I bill. I could not afford to receive
only $250/hour on billing as a prevailing party in a complex civil rights lawsuit. If the court
approved an hourly rate for me of $250/hour, I would be dissuaded from bringing such litigation
in the future.
12.

While I do not practice in the District of Alaska, my experience with federal civil

rights litigation and my knowledge of the nationwide developments in the area of civil rights
litigation in the federal courts, the time reflected in the billing by Ms. Shortell and Ms. Gardner
was not excessive. The time spent appears to have been necessary to bring and develop the case,
coordinate ten clients, author the pleadings, prepare for and do oral argument. Based on the
diligent work performed to bring the case, the Plaintiffs prevailed and changed the law in the
State of Alaska. I conclude that the time spent by Ms. Shortell and Ms. Gardner was reasonable
and necessary to accomplish the result that they obtained.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Boston, Massachusetts on this 25th day of April 2015.
/s/Jessica D. Hedges
MA Bar # 645847

DECLARATION OF JESSICA HEDGES IN SUPPORT OF PLAINTIFFS MOTION FOR REASONABLE


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Heather Gardner AK Bar #0111079


Caitlin Shortell AK Bar #0405027
Allison Mendel AK Bar #8310136
Counsel for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MATTHEW HAMBY et al, unmarried


persons,
Plaintiffs,

)
)
)

vs.
WILLIAM WALKER et al,
Defendants.

DECLARATION IN SUPPORT OF
MOTION FOR RECONSIDERATION
RE: ORDER FOR ATTORNEYS
FEES AND COSTS PURSUANT TO
28 U.S.C. 1988
Case No. 3:14-cv-00089 TMB

I, Caitlin Shortell, hereby declare and state as follows:


1.

I am a member in good standing of the state bar of Alaska. I am licensed to

practice in the United States District Court for the District of Alaska and the United States Court
of Appeals for the Ninth Circuit. I am submitting this declaration in support of counsel Shortell
and Gardners Motion for Reconsideration of this courts April 15, 2015 order partially granting
Plaintiffs Motion for Reasonable Attorneys Fees and Costs. I have personal knowledge of the
matters stated in this declaration and could competently testify to these facts.
2.

I previously set forth my experience, education, and qualification in my earlier

declaration in support of Attorneys Fees [Doc. 49] and incorporate that declaration herein.

DECLARATION OF CAITLIN SHORTELL IN SUPPORT OF PLAINTIFFS MOTION FOR REASONABLE


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6. The fee award entered by the court at Doc. 62 is not adequately compensatory to me. I
have not charged an hourly rate of $250 for several years. Although I charge a variable hourly
rate depending on the complexity of the matter and other factors, I currently charge a rate of
$375.00 per hour in most cases, including routine family law and employment law matters.
7. Although I rarely undertake contingent fee representation due to my status as a sole
practitioner, I made an exception for this case because of the importance of the issue of the civil
rights issue of equal marriage involved.
8. In this case, I recruited six of the ten plaintiffs in the case. I was the client liaison by
agreement of counsel. I performed the majority of client communication and coordination
throughout the case.
9. During the pendency of the case, rather than take work where payment was certain, I
devoted a significant amount of time in 2014 to the Hamby case. I turned away other work
because this challenging and expedited litigation required a significant amount of my available
time and focus. This matter, while unquestionably worthwhile, has been a financial burden to my
practice. I was efficient and conservative in allocating my time to tasks in this case due to the
fact that I had no assurance that I would ever get paid and any time I spent took away from time
that I could earn fees in my other cases.
11.

Despite these challenges, Plaintiffs team have produced excellent results for our

clients and others in society.


15.

Accordingly, I requested to be compensated for 180.5 hours at $395 per hour

through October 27, 2014. In support of the Motion for Reconsideration, I submitted this
declaration, and the declarations of Heather Gardner, Lee Holen, and Kenneth Legacki, who all
aver that the requested rate and fees are reasonable within the district and for cases of like

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difficulty given my background, experience, and skill; the confluence of complexity, risk, and
time demands in this case; and the degree of success that we have achieved.
16.

I requested 180.5 hours at $395.00 per hour for a total of $71,297.50. The court

reduced my fees by 53%. This drastic reduction of my fees will likely deter me from accepting
such cases where fee shifting applies in the future. Because my practice is focused on civil rights
litigation in the District of Alaska and there is much more work to be done to secure full equality
for LGBT Alaskans and other individuals, the courts order of April 15, 2015 sets a chilling
precedent. Based on the foregoing, I respectfully request that the court reconsider its order and
reinstate my requested fees in this matter.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Anchorage, Alaska on this 13th day of May 2015.
/Caitlin Shortell___
AK Bar # 0405027

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