United States Court of Appeals

For the First Circuit

No. 14-1035

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,

v.

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]

Before

Lynch, Chief Judge,

Torruella and Ripple,* Circuit Judges.

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.

* Of the Seventh Circuit, sitting by designation.
September 23, 2014
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.1 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

1

 We use "government" to refer only to the Executive Branch,

not to the Bipartisan Legal Advisory Group of the U.S. House of

Representatives who intervened in this case.

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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)).

I.

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 February 2011, that: 

(1) he personally believed that Section 3 of DOMA was

unconstitutional; 

(2) out of deference to the courts and to Congress, and

in light of the executive's obligation to faithfully

execute the laws, the President would nonetheless

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instruct that the executive branch continue to enforce

DOMA; however,

(3) this presented the "rare case" in which the

Department of Justice should decline to defend the

statute.

The government, pursuant to this Presidential position, did not

oppose the McLaughlin Group's suit on the merits.

At the parties' request, the district court stayed the

case in light of two other similar challenges that were then on

appeal before the First Circuit. This court held Section 3 of DOMA

invalid on May 31, 2012. See Massachusetts v. U.S. Dep't of Health

& Human Servs., 682 F.3d 1 (1st Cir. 2012). The district court

continued the stay, over the McLaughlin Group's objection,

following this court's decision in that case, id. at 17, to

withhold issuance of a mandate in deference to anticipated DOMA

challenges before the Supreme Court.

On June 26, 2013, the Supreme Court held Section 3

unconstitutional as a violation of the Fifth Amendment. See United

States v. Windsor, 133 S. Ct. 2675, 2695-96 (2013). 

The district court resumed proceedings in this case,

entering judgment in favor of the McLaughlin Group on October 2,

2013. The district court did not address costs at that time.

On October 28, 2013, the McLaughlin Group moved for fees

and costs under the EAJA. The district court denied the McLaughlin

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Group's motion, finding that the government's position was

substantially justified. The district court reasoned:

To answer this question, the court need go no

further than the Windsor decision itself. As

the High Court recognized, the approach taken

by the President of preserving the

justiciability of Section 3 of DOMA by

continuing to enforce it despite a personal

belief that the statute was unconstitutional,

paid the appropriate respect to the primacy of

the Supreme Court in matters of constitutional

interpretation.

McLaughlin v. Hagel, 987 F. Supp. 2d 132, 134 (D. Mass. 2013). The

court added that the relevant question was not whether the

President could have ended enforcement of Section 3, but whether it

would have been "constitutionally reasonable" under the

circumstances, concluding that "[i]t is clear from Windsor that the

Supreme Court would have thought not." Id.

II.

A district court's determination of whether the

government's position2 was "substantially justified," and so

2 "Defining the concept of the Government's 'position' -- at

least with any precision -- has proved . . . elusive." See Saysana

v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010). The statute itself

offers little guidance, stating simply that a court shall award

fees "unless the court finds that the position of the United States

was substantially justified." 28 U.S.C. § 2412(d)(1)(A). It adds

that the "'position of the United States' means, in addition to the

position taken by the United States in the civil action, the action

or failure to act by the agency upon which the civil action is

based . . . ." 28 U.S.C. § 2412(d)(2)(D). The district court

described the government's position as "its litigating position

that, in deference to Congress, it would continue to enforce

Section 3 of DOMA until the courts (or Congress itself) had

definitively spoken, while in the interim conceding the

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whether to award attorney's fees under EAJA, is reviewed for abuse

of discretion. See Pierce v. Underwood, 487 U.S. 552, 562-63

(1988). Legal determinations made in finding a position

substantially justified are reviewed de novo. See Aronov, 562 F.3d

at 88.

A denial of costs is reviewed for abuse of discretion. 

B. Fernández, 516 F.3d at 28.

III.

Under the EAJA, "a court shall award to a prevailing

party other than the United States fees and other expenses . . .

unless the court finds that the position of the United States was

substantially justified or that special circumstances make an award

unjust." 28 U.S.C. § 2412(d)(1)(A). The burden is on the United

States to make those showings. See Saysana v. Gillen, 614 F.3d 1,

5 (1st Cir. 2010). Because we agree with the district court that

the position of the United States was substantially justified, we

do not reach the question of special circumstances.

unconstitutionality of Section 3." McLaughlin, 987 F. Supp. 2d at

134. By contrast, the McLaughlin Group variously describes the

government's position as "the government's defense of its unlawful

conduct on the merits," and "the government's conduct in knowingly

and purposefully violating the Plaintiffs' constitutional rights,

and then forcing them to litigate a case the government would not

defend on the merits." These characterizations are narrower than

the district court's in that they emphasize the government's

refusal to defend Section 3 -- and so too its "unlawful conduct" --

but exclude constitutional considerations for continued enforcement

pending judicial review. 

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A "position" of the United States is "substantially

justified" if it is "justified to a degree that could satisfy a

reasonable person" -- that is, if the position has a "reasonable

basis both in law and fact." Pierce, 487 U.S. at 565. If the

government "reasonably believes the action or inaction is required

by law, then, by definition it cannot be the basis for an award of

EAJA fees." Aronov, 562 F.3d at 94 (citing Dantran, Inc. v. U.S.

Dep't of Labor, 246 F.3d 36, 41 (1st Cir. 2001)) (holding

government was substantially justified as a matter of law). Both

the government's pre-litigation and litigation positions are

evaluated holistically in making this determination. See Saysana,

614 F.3d at 5.

This extraordinary case presents the unusual situation in

which the government's pre-litigation and during-litigation

position was to enforce a challenged statute, but in which the

government's litigation position was to argue that the challenged

statute is unconstitutional. The McLaughlin Group makes a twofold

argument: the government pursued pre-litigation actions that it

believed violated the McLaughlin Group's constitutional rights, and

the government's litigation position agreed with the McLaughlin

Group in denying that the opposite position, defense of the

statute, had any merit.

The McLaughlin Group attempts to divorce the government's

position from the practical constitutional difficulty the

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government faced. The President and the Department of Justice

concluded unilaterally both that heightened scrutiny was the

appropriate standard of review -- contrary to "substantial circuit

authority" -- and that there was no reasonable argument consistent

with that standard available in defense of Section 3. The

government then "face[d] a difficult choice": either enforce (but

decline to defend) a statute it believed unconstitutional, or

decline to enforce the statute under a novel legal theory while

simultaneously precluding judicial review of that novel theory. 

See Windsor, 133 S. Ct. at 2688-89. The district court appreciated

this difficulty, and found that, under the Supreme Court's decision

in Windsor, the government's enforce-but-not-defend position was

substantially justified.3

In Windsor, the Court observed that the alternative to

finding justiciability would be to find that the government's

refusal to defend Section 3 precluded judicial review. Id. at

2688. The Court reasoned that this alternative was unacceptable

because it "would undermine the clear dictate of the

separation-of-powers principle that when an Act of Congress is

alleged to conflict with the Constitution, [i]t is emphatically the

province and duty of the judicial department to say what the law

3

 The McLaughlin Group's argument that Windsor's finding of

justiciability is not the same as finding that a position is

"substantially justified" misses the mark. The district court

relied on the Windsor Court's reasoning, not the finding itself. 

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is." Id. (quoting Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427-28

(2012) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803))) (internal quotation marks omitted). The district court

found that this dilemma provided a reasonable basis for the

government's position. We agree. First, had the government not

continued to enforce Section 3, it would have precluded judicial

review of a controversial conclusion regarding the statute's

validity. Second, had it not continued to enforce Section 3, the

government would also have posed a second "grave challenge[]" to

separation of powers by effectively "nullify[ing] Congress'

enactment solely on its own initiative and without any

determination from the Court." Id.

This practical difficulty highlights the conceptual

difficulty in identifying the government's position: The McLaughlin

Group urges that the government's "litigation position" was the

narrow position that Section 3 -- and so too its pre- and duringlitigation conduct of enforcing Section 3 -- is unconstitutional. 

But the district court understood the government's position to be

the broader, nuanced position that the government represented

itself as taking, namely, that it enforced the statute to permit

judicial review of its novel legal theory in deference to the other

branches.

We agree with the district court that the government's

position is the broader one and must be "assessed in its totality." 

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See Saysana, 614 F.3d at 5, 7. Contrary to what the McLaughlin

Group argues, the district court did not improperly look to "nonmerits based justifications." Rather, the lower court properly

focused on the constitutional difficulties faced by the government.

Our en banc decision in Aronov v. Napolitano, 562 F.3d

84 (1st Cir. 2009) (en banc), held that a denial of fees is correct

as a matter of law where the government reasonably believes its

actions are legally required. Id. at 94. Here, the district court

correctly found that the government reasonably believed its

actions, whether or not required,4 were appropriate given "the

Executive's obligation" to faithfully execute the laws. See Letter

from Eric H. Holder, Jr., Att'y Gen., U.S. Dep't of Justice, to

John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23,

2011) (emphasis added) (explaining the government's decision to

enforce but not defend Section 3 of DOMA). Similarly, we agree

with the district court's conclusion that the Supreme Court would

not have found "constitutionally reasonable" the opposite course of

action, urged by the McLaughlin Group, of refusing to enforce

Section 3. See McLaughlin, 987 F. Supp. 2d at 134. Because the

government reasonably believed its actions were the most

4

 While the government made clear it believed the President

could have lawfully chosen to end enforcement of Section 3, see

McLaughlin, 987 F. Supp. 2d at 134, we believe the reasoning behind

Aronov is still applicable to the unique facts of this case given

the uncertainty of that position in light of the acknowledged

separation-of-powers concerns, see Windsor, 133 S. Ct. at 2688.

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constitutionally appropriate available, its actions were "by

definition" substantially justified. See Aronov, 562 F.3d at 94. 

We find the denial of fees correct as a matter of law. See id.

The McLaughlin Group's argument that this is erroneous

under different First Circuit precedent is unavailing. They argue

that in Sierra Club v. Sec'y of the Army, 820 F.2d 513, 519-20 (1st

Cir. 1987), the First Circuit held that if the government

subjectively believes that its actions are unlawful, then its

decision to take those actions cannot be substantially justified. 

This stretches the precedent. Sierra Club does not make the

government's subjective belief dispositive. The court observed,

first, that this was one among many considerations counseling

against the position's justification, and, second, that during the

EAJA phase of litigation, the government "chose not to . . .

argu[e] that their position turned on some close or unsettled

question of law." Id. at 520. This differs from the present case

where the government had at least two strong separation-of-powers

reasons for its actions and argues that the constitutionality of

its pre-litigation action -- not merely the statute's

constitutionality, but also the constitutionally appropriate action

in this unusual situation -- turned on a close question of law. 

See also United States v. Marolf, 277 F.3d 1156, 1162 (9th Cir.

2002) (quoting TKB Int'l, Inc. v. United States, 995 F.2d 1460,

1468 (9th Cir. 1993)).

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The McLaughlin Group correctly argues the law should not

encourage government abuse by condoning a "knowing" rights

violation, and that there is the need to provide incentives for

litigation of rights violations. But that is not this case, which

was "not routine." Windsor, 133 S. Ct. at 2689. This is an

extraordinary case in which the government "face[d] a difficult

choice." Id.; see also Pierce, 487 U.S. at 562 (holding that

whether the government's position is "substantially justified" is

reviewed for abuse of discretion to provide "needed flexibility"). 

Moreover, while the President and the executive branch may have

thought Section 3 of DOMA was unconstitutional, the House of

Representatives strongly disagreed. The President may have

ultimately been correct, but until the Supreme Court resolved the

issue in Windsor, it is hard to see how the enforcement of

Section 3 was a "knowing" rights violation.

Finally, the McLaughlin Group, relying on Pierce, 487

U.S. at 560, urges that the government's litigation position could

not have been substantially justified because the government has

not argued for the "opposite merits determination." But Pierce

does not "require" that the government "urg[e] . . . the opposite

merits determination." Rather, the quoted passage explains why the

appropriate standard of review is the "deferential,

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abuse-of-discretion review." See id.5

 First Circuit precedent

does not suggest otherwise. See, e.g., Castañeda-Castillo v.

Holder, 723 F.3d 48, 73 (1st Cir. 2013) (recognizing that, at least

on appeal, advancing only procedural arguments might be

substantially justified); Aronov, 562 F.3d at 87, 89-93 (permitting

immediate settlement without exposure to fees). Though novel, the

government's litigate-to-lose position is not barred by the case

law. And because it was constitutionally appropriate, fees were

correctly denied as a matter of law. See Aronov, 562 F.3d at 94.

IV.

The McLaughlin Group also contends that, even if not

entitled to fees, the "district court erred as a matter of law by

applying the 'substantially justified' test to [the McLaughlin

Group's] claim for [$350 in] costs" under 28 U.S.C. § 2412(a)(1)

and Fed. R. Civ. P. 54(d). As the government concedes, this would

be an error of law if that were what happened. But the district

court did not improperly apply the standard. It merely declined to

address costs separately.

Under other circumstances, this silence could be a

problem. "There is a background presumption favoring cost recovery

5

 Pierce frames the relevant inquiry as "determin[ing]

whether urging of the opposite merits determination was

substantially justified." Pierce, 487 U.S. at 560 (emphasis

added). That this framing does not describe this case is not

surprising because the government's litigation position is unusual. 

See Windsor, 133 S. Ct. at 2689.

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for prevailing parties," and so "[w]hen denying costs, a district

court must offer an explanation for doing so unless the basis for

denying costs is 'readily apparent on the face of the record.'" 

B. Fernández, 516 F.3d at 28 (quoting San Juan Dupont Plaza Hotel,

994 F.2d at 963). Here, the basis for denying costs was readily

apparent: as we have thoroughly detailed above, the case was "close

and difficult," and "required considered balancing." See id. 

While an explanation would have avoided any confusion about the

district court's reasoning, we find that the district court's

unexplained decision to deny costs was not an abuse of discretion. 

V.

We affirm. Costs are assessed against the McLaughlin

Group.

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