MAJ. SHANNON L. MCLAUGHLIN; CASEY MCLAUGHLIN; LTC. VICTORIA A. HUDSON; MONIKA POXON; COL. STEWART BORNHOFT; STEPHEN MCNABB; LT. GARY C. ROSS; DAN SWEZY; CPT. STEVE M. HILL; JOSHUA SNYDER; A1C DANIEL HENDERSON; JERRET HENDERSON; CW2 CHARLIE MORGAN; KAREN MORGAN; CPT. JOAN DARRAH; JACQUELINE KENNEDY, Plaintiffs, Appellants,
CHUCK HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, JR., in his official capacity as Attorney General; ERIC K. SHINSEKI, in his official capacity as Secretary of Veterans Affairs; UNITED STATES, Defendants, Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.
Christopher D. Man, with whom Abbe David Lowell, and Chadbourne & Parke LLP were on brief, for appellants.
Jeffrey E. Sandberg, Attorney, Appellate Staff, Civil Division, with whom Michael E. Robinson, Attorney, Appellate Staff, Civil Division, Stuart F. Delery, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Michael Jay Singer, Attorney, Appellate Staff, Civil Division, were on brief, for appellee.
Before Lynch, Chief Judge, Torruella and Ripple,[*] Circuit Judges.
LYNCH, Chief Judge.
The plaintiffs (" McLaughlin Group" ), who prevailed in a constitutional challenge to Section 3 of the Defense of Marriage Act (" DOMA" ), 1 U.S.C. § 7, appeal from the district court's denial of fees and costs under the Equal Access to Justice Act (" EAJA" ), 28 U.S.C. § § 2412(a)(1) & (d). Whether prevailing parties who successfully challenged Section 3 of DOMA are entitled to fees under EAJA is an issue of first impression in any Court of Appeals.
On appeal, the McLaughlin Group argues that the government's position could not have been substantially justified because its pre-litigation and during-litigation position involved " knowingly and intentionally violat[ing] the [McLaughlin Group's] constitutional rights," and its litigate-to-lose strategy concedes that its position is not substantially justified. The McLaughlin Group also contends that, even if not entitled to fees, they are entitled to $350 in costs under a separate provision of the EAJA, 28 U.S.C. § 2412(a), and Fed.R.Civ.P. 54(d).
We reject these arguments. The district court's denial of fees was correct as a matter of law because the government reasonably believed its actions were constitutionally appropriate under the circumstances. See Aronov v. Napolitano, 562 F.3d 84, 94 (1st Cir. 2009) (en banc). And its denial of costs without comment was not an abuse of discretion because the reason for the denial -- that the case was " close and difficult" -- was " readily apparent on the face of the record."
See B. Fernández & HNOS, Inc. v. Kellogg USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008) (quoting In re Two Appeals Arising Out of the San Juan DuPont Plaza Hotel Fire Litig., 994 F.2d 956, 963 & n.9 (1st Cir. 1993)).
The McLaughlin Group are active duty members of the United States armed forces and National Guard, veterans, and their same-sex spouses. On October 27, 2011, they brought suit against the United States of America, and Secretary of Defense Leon E. Panetta, Attorney General Eric H. Holder, Jr., and Secretary of Veterans Affairs Eric K. Shinseki, in their official capacities. The suit challenged the constitutionality of Section 3 of DOMA as applied to definitions of marriage in Title
10, Title 32, and Title 38 of the United States Code as they affect same-sex military spouses.
President Obama had previously determined, eight months earlier in ...