MEMORANDUM AND ORDER ON PLAINTIFFS' APPLICATION FOR AN AWARD OF ATTORNEY'S FEES AND COSTS

STEARNS, District Judge.

Plaintiffs, as the prevailing parties in this constitutional challenge to the application of Section 3 of the Defense of Marriage Act (DOMA),1 1 U.S.C. § 7, to same-sex military spouses, seek an award of attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(a)(1) & (d), in the amount of $170,229 (plus costs of $350). Under the EAJA, the United States is not liable for attorney's fees if its litigating position was "substantially justified ... to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 564-565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

Some background is in order. Plaintiffs filed this lawsuit on October 27, 2011. Eight months earlier, President Obama had determined that classifications based on sexual orientation were subject to a heightened standard of scrutiny that DOMA could not meet with respect to legally-married, same-sex couples. As a consequence, he ordered the Department of Justice to cease its legal defense of equal protection challenges to Section 3. However, in deference to the Congress, the President also instructed the Executive Branch to continue to enforce Section 3 pending its possible repeal by Congress or a definitive verdict from the judicial branch.

Before this ligation was meaningfully joined, at the parties' request, the court entered a stay in deference to two cases then pending in the First Circuit involving similar challenges to Section 3 of DOMA. On May 31, 2012, the First Circuit ruled Section 3 unconstitutional, but withheld the issuance of its mandate given the "highly likely" imminent review of DOMA by the United States Supreme Court. See Massachusetts v. HHS, 682 F.3d 1, 17 (1st Cir.2012). In conformity with the First Circuit's decision, this court continued the stay of the instant ligation (over plaintiffs' objection). On June 26, 2013, the Supreme Court decided United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), by a 5-to-4 vote, the majority of Justices holding Section 3 of DOMA unconstitutional under the Equal Protection Clause of the Fifth Amendment. This court immediately responded with an Order to the parties to show cause why, in light of Windsor, judgment should not enter for plaintiffs. On October 2, 2013, the court adopted and entered the parties' proposed form of final judgment declaring DOMA unconstitutional as applied to plaintiffs.

The sole issue in determining whether plaintiffs are entitled to an award of attorney's fees is whether the government has met its burden of showing that 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 unconstitutionality of Section 3, lacked substantial justification. 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. As the Court stated in echoing Marbury v. Madison's seminal definition of the separation-of-powers,

Windsor, 133 S.Ct. at 2688-2689 (internal citations omitted).

The issue is not dissimilar from the controversy over the self-asserted right of Presidents on signing Congressional enactments to declare which portions of the law they will or will not personally enforce.2 The practice led the American Bar Association to declare its opposition "as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of the law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress...." Am. Bar Ass'n, Report of the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine 1 (2006). It is not that the President could not have ended all enforcement of Section 3 by executive fiat — the government is careful to make the point that it was among his prerogatives to do so — the issue is whether under the circumstances to do so would have been constitutionally reasonable. It is clear from Windsor that the Supreme Court would have thought not.

In sum, this court would be loath to deem unjustified by any substantial measure a litigating position that has its roots in the very fundamentals of our constitutional form of government.3

ORDER

For the foregoing reasons, the application for an award of attorney's fees is DENIED.4

SO ORDERED.