Tuesday, September 30, 2014

Successful DOMA Challengers Denied Attorneys' Fees Award

In McLaughlin v. Hagel, (1st Cir., Sept. 23, 2014), the U.S. 1st Circuit Court of Appeals held that plaintiffs who successfully challenged the constituitonality of Sec. 3 of the Defense of Marriage Act are not entitled to an award of attorneys' fees against the government under the Equal Access to Justice Act. According to the court:
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....
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.
 National Law Journal reported on the decision.