IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

VICTORY PROCESSING, LLC, and ? ° CV 17-27-H-CCL DAVE DISHAW, ry

Plaintiffs, ORDER VS. AUSTIN KNUDSEN’, in his official capacity as Attorney General for the State of Montana, Defendant.

Before the Court are Plaintiffs’ “Application for Attorneys’ Fees and

Expenses” (Doc. 61) and Plaintiffs’ “Supplemental Application for Attorneys’ Fees,” (Doc. 83). The Attorney General for the State of Montana, acting in his

official capacity, (hereinafter the State) objects to Plaintiffs’ calculation of

attorneys fees and asks the Court to substantially reduce the fees requested to a

reasonable amount.

| Attorney General Knudsen is hereby substituted for former Attorney General Fox, pursuant to Fed. R. Civ, P. 25(d).

BACKGROUND Plaintiffs Victory Processing, LLC, and Dave Dishaw (collectively Victory Processing) filed suit challenging the State of Montana’s “robocall” statute in

February of 2017. In February of 2018, the Court issued its order granting the

State’s motion for summary judgment and denying Victory Processing’s motion

for summary judgment. On September 10, 2019, the Ninth Circuit held as a matter

of law that section 45-8-216(1)(e) of the Montana Code violates the First

Amendment. The Ninth Circuit reversed and remanded this Court’s grant of summary judgment to Defendant for further proceedings consistent with its opinion. Victory Processing v. Fox,

(9" Cir. 2019), After the

Ninth Circuit issued its order, Plaintiffs filed an unopposed motion to transfer consideration of attorneys’ fees on appeal to this Court. (Doc. 47). The Court granted the unopposed motion once the mandate was issued. (See Docs. 48 and

49). On October 16, 2019, the Court set a status conference for October 25, 2019

and ordered the parties to file statements of their positions as to the form, necessity, and scope of further proceedings. (Doc. 50). After receiving status reports from both parties, the Court ordered the Clerk

to enter judgment in favor of Victory Processing, paving the way for Victory

Page 2 of 23

Processing to file the pending application for attorneys’ fees. (Doc. 61). In

October of last year, the Court set a hearing on Plaintiffs’ application for

attorneys’ fees for October 27, 2020. Plaintiffs were represented at the October 27, 2020, hearing by Blake E.

Johnson, with local counsel James Brown appearing by telephone. The State of

Montana was represented at the hearing by Patrick M. Risken. Each party called a

single witness, the expert retained to opine on the requested fee award. At the

conclusion of the hearing, Plaintiffs’ counsel requested leave to file a

supplemental application for fees, seeking fees expended in prosecuting the first

application. The Court issued an order setting a briefing schedule for the

supplemental application the day after the hearing. (Doc. 82). LEGAL STANDARD Federal law allows the Court to award the prevailing party “a reasonable

attorney’s fee as part of the costs” in any action taken under

to

enforce rights guaranteed by the United States Constitution,

(b). Congress’s purpose in enacting § 1988 was “to ensure ‘effective access to the

* Plaintiffs initially sought attorneys’ fees in a motion filed on September 24, 2019. (Doc. 45}. The Court denied the motion with leave to refile, based on Plaintiffs’ citation to a non-existent local rule and failure to follow the actual local rules of this Court. (Doc. 46). Plaintiffs filed a second application on October 16, 2019, (Doc. 53), which was also denied with leave to refile. (Doc. 59). Page 3 of 23

judicial process’ for persons with civil rights grievances.” Hensley v. Eckerhart,

(1983) quoting H.R.Rep. No. 94-1558, p. 1 (1976)). In

Hensley, the Supreme Court reversed and remanded the district court’s award of

attorney’s fees because the district court failed to “properly consider the

relationship between the extent of success and the amount of the fee award” in a

case in which plaintiff did not prevail as to all their claims. /d, at 438 - 439,

The instant case does not present the same issue as that faced by the district

court in Hensley because Victory Processing brought a single claim and prevailed

as to the entire claim on appeal, The Supreme Court’s opinion in Hensley nevertheless provides the starting point for any discussion of reasonable attorney’s fees under

— the district court determines the amount of a

reasonable fee by multiplying the number of hours reasonably expended on the

litigation by a reasonable hourly rate.” Jd. at 432. This method has since become

known as the “lodestar method.” Purdue v. Kenny A. Ex rel. Winn,

,

551 (2010). In awarding attorney’s fees, “the district court must strike a balance between

granting sufficient fees to attract qualified counsel to civil rights cases, and

avoiding a windfall to counsel.” Moreno v. City of Sacramento,

(9" Cir. 2008) (internal citations omitted). Before Congress enacted 42

Page 4 of

, district courts in the Ninth Circuit charged with awarding attorney’s fees under other federal statutes adopted the following factors to

consider as part of the required balancing test: (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) 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. Kerr y. Screen Extras Guild, Inc.,

(9" Cir. 1975). Some of these

factors are subsumed in the lodestar analysis, Gonzalez v. City of Maywood,

(9" Cir. 2013), and proper application of the “lodestar

method produces an attorney’s fee that is presumptively reasonable.” /d, at 1209.

Victory Processing, as the party seeking attorney’s fees, “bears the burden

of submitting evidence of the hours worked and the rate paid.” Carson y, Billings Police Dep't,

(9" Cir. 2006). “In determining the appropriate number of hours to be included in a lodestar calculation, the district court should

exclude hours that are ‘excessive, redundant, or otherwise unnecessary.’” McCown

Page 5 of 23

vy. City of Fontana,

(9" Cit 2009) (quoting Hensley,

). Victory Processing must also demonstrate that its attorneys’ rates are

consistent with prevailing market rates in the relevant community, Blum v.

Stensen,

, 895 (1984), which in this case is the District of Montana.

See Prison Legal News vy. Schwarzenegger,

(9" Cir. 2010). Once the party seeking attorney’s fees meets its burden, the burden shifts to the

opposing party to submit evidence “challenging the accuracy and reasonableness

of the hours charged or the facts asserted by the prevailing party in its submitted

affidavits.” Gates v. Deukmejian,

, 1398 - 99 (9 Cir. 1992). PARTY SUBMISSIONS Victory Processing submitted an affidavit from Blake E. Johnson, the lead

attorney representing Victory Processing in this case. (Doc. 63 at 4 - 14). In his

affidavit. Mr, Johnson explained the qualifications of each attorney from the

Bruning Law Group that worked on the case and laid the foundation for the

invoice from the Bruning Law Group detailing the hours spent by each attorney. (Doc. 63 at 15 - 46). Victory Processing also submitted an affidavit from its local

counsel, James Brown, along with invoices from the James Brown Law Office. (Doc. 63 at 47 - 61). These records were submitted to support Victory Processing’s claim regarding the hours worked and the rates paid to each attorney.

Page 6 of 23

To support its claim as to the reasonableness of the rates paid, Victory Processing submitted the declaration of a local attorney. (Doc. 63 at 62 - 65). Mr. Johnson

submitted a supplemental affidavit with his reply brief, detailing the time spent by Bruning Law Group attorneys preparing the reply brief. (Doc. 65-1). The State of Montana submitted a declaration from Assistant Attorney General Patrick. M Risken challenging a number of the hours billed by the

attorneys from the Bruning Law Group and laying the foundation for a number of

exhibits ostensibly demonstrating excessive or redundant hours billed by attorneys from the Bruning Law Group. (See Doc. 64-1 at 4 8 through 14 and Doc. 64-] at

23 through 134). To support its objection to the rates charged by the attorneys from the Bruning Law Group and the reasonableness of the hours billed, the State

submitted the declaration of a local attorney. (Doc. 64-1 at 9 through 14). Mr. Johnson submitted a second supplemental affidavit to support Plaintiffs’ Supplemental Application for Attorneys’ Fees, laying the foundation for

the invoice for work performed and costs incurred by Plaintiffs following the

Court’s October 6, 2020, Order setting the October 27, 2020, hearing. (See Doc.

85). Plaintiffs also submitted an invoice from local counsel, James Brown, for the

time he spent participating in the October 27, 2020, hearing. (Doc. 85 at 18).

Page 7 of 23

DISCUSSION Hourly Rates The State challenges the hourly rates proposed by all of the attorneys with

the Bruning Law Group, but does not contest the rates proposed by Plaintiffs’

local counsel. Plaintiffs ask the Court to apply the following rates:

Years of Experience’ [Rate

Katherine Spohn $300

James Brown 12 $180 through May 2017, $200 starting June 2017 [Austin ames [0 8150

Reasonable fees under § 1988 are “calculated according to the prevailing market rates in the relevant community.” Blum, 465 U.S. at 895. “To inform and

assist the court in the exercise of its discretion, the burden is on the fee applicant

to produce satisfactory evidence — in addition to the attorney’s own affidavits —

that the requested rates are in line with those prevailing in the community for

3 As of November 2019. Page 8 of 23

similar services by lawyers of reasonably comparable skill, experience and

reputation.” /d. at 896 n. 11. “The relevant community is generally defined as

‘the forum in which the district court sits.’” Christensen v. Stevedoring Servs. of Am.,

(9" Cir. 2009)(quoting Barjon v. Dalton,

(9" Cir. 1997)). Jon Metropoulos filed a declaration and testified at the October 27, 2020, hearing in support of Plaintiffs’ request for attorney fees. Without much

explanation, Mr. Metropoulos testified that the hourly rates charged by each

attommey retained by Plaintiffs and the total fees charged were reasonable. (See Metropoulos Decl., Doc. 63 at 62 - 65). Although Mr. Metropoulos claims to be

generally familiar with the hourly rates of attorneys in Montana, his expertise relates specifically to “the hourly rates awarded by federal courts in Montana and

settled on by parties in natural resource and environmental cases.” (Metropoulos Decl., Doc. 63 at 63, 9 5). Mr. Metropoulos never represented a client in a first

amendment challenge to a state or federal statute, regulation or activity.’ Mr.

Metropoulos disagreed with the State’s characterization of the instant case as

involving a single issue, but was unable to explain why.

4 This information is drawn from the Court’s review of the court reporter’s rough draft of the October 27, 2020, hearing, and my notes and recollection of the hearing. Page 9 of 23

Maxon R. Davis filed a similar declaration on behalf of the State and also

testified at the October 27, 2020, hearing. Mr. Davis testified in his declaration

that the $180 to $200 hourly rate charged by local counsel, James Brown, “fairly represent what lawyers with similar experience charge in this jurisdiction.” (Davis Decl., Doc. 64-1 at 97). Mr. Davis views the rates of the lawyers from the

Bruning Law Group as “above what would be viewed as reasonable for hourly-fee litigation in Montana.” (Doc. 64-1 at ] 7). He suggests a rate of $250 for partners and $200 for associates as more than reasonable in Montana. (Doc. 64-1 at 8). The Court finds Mr. Davis’s testimony more persuasive than Mr.

Metropoulos’s because he provides specific examples of rates charged by attorneys retained to defend tort cases for the State of Montana. Mr. Davis’s

comparison of rates for attorneys in the Bruning Law Group to the rates charged by Plaintiffs’ local counsel is particularly telling. When questioned by the Court

during the October 27, 2020, hearing, Mr, Davis stated that he charges his

insurance clients from $200 to $285 per hour. Earlier he stated that he charges large commercial clients, like Johnson and Johnson, as much as $300 per hour.

Based on the declarations and testimony from both experts and the Court’s

own knowledge of rates charged by Montana attorneys, the Court has determined

that Mr. Bruning is entitled to charge $300 per hour for his time. Mr. Bruning was

Page 10 of 23

the attorney general for the State of Nebraska and founded the Bruning Law

Group. Ms. Spohn, who worked as the Deputy Attorney General and helped found the Bruning Law Group, is entitled to charge $250 per hour.

Mr. Johnson, who acted as the lead attorney in this case, required extensive

supervision from two partners at the Bruning Law Group. As will be discussed in

the next section, he also took excessive time to accomplish fairly simple tasks.

Having reviewed the documents prepared by Mr. Johnson and having observed his

skills during the hearing, the Court has determined that $200 per hour is a

reasonable rate for Mr. Johnson. Mr. Johnson is not entitled to a greater rate than

that charged by local counsel, Mr. Brown, who has more experience than Mr.

Johnson. Mr. Johnson was assisted by two associates at the Bruning Law Group, Mary Jacobson and Paul Lembrick. Although Ms. Jacobson graduated from law

school in 2013, it appears that she did not start practicing law until 2016. During the intervening years she worked as a staff person for the United States House of

Representatives and “is currently active in both the lobbying and legal sections of

Bruning Law Group.” (Johnson Decl., Doc. 63 at 11, § 25). The Court has

determined that her hourly rate should be less than that of Mr. Johnson and awards

her $180 per hour — the same rate that Mr. Brown was charging at the beginning of

Page 11 of 23

this case. Mr, Lembrick graduated from law school in 2018 and was a new associate when he began working on this case. Like Ms. Jacobson, he is entitled

to a rate of $180 per hour for his work on this case. The Court’s approved rates for all of the attorneys who worked on this case for Plaintiffs is summarized below.

Years of Experience’

Katherine Spohn $250

James Brown 12 $180 through May 2017; $200 starting June 2017 Austin James Admitted to practice in | $150 2019; worked for Mr. Brown as a summer associate and an associate during the pendency of this case.

Hours Billed According to Plaintiffs, the fees they request “are based upon a traditional

lodestar calculation using the actual time spent by Plaintiffs’ counsel on the

> As of November 2019, Page 12 of 23

matters in this case, multiplied by the billing rates of the attorneys involved.”

(Doc. 62 at 4), Although Plaintiffs claim that they exercised proper billing judgment, as required by Hensley, and excluded excessive, redundant or otherwise

unnecessary hours, (Doc. 65 at 3), they made no effort to quantify the hours

excluded. The State presented numerous charts to justify its argument that

Bruning Law Group attorneys spent an inordinate amount of time on various tasks.

(See Doc. 64 at 16 - 24; Doc. 64-1 at 23 - 134). The ultimate responsibility for determining whether the hours billed by various attorneys were reasonable lies with the Court, and it is up to the Court to sufficiently explain those reasons to allow for appellate review. In an effort to

meet this responsibility, the Court has prepared its own tables based on the

invoices presented by the Bruning Law Group, explaining the Court’s reasons for

excluding or reducing fee requests. (See attachments | through 3). The Court began its analysis by excluding all hours charged by Bruning Law Group attorneys for work done to find local counsel in this case. The Court

does not question Plaintiffs’ entitlement to retain counsel of their choice —

however, the client usually bears the costs associated with deciding who to

represent it in a particular case and this cost should not be born by the opposing party.

Page 13 of 23

In addition to reviewing the billing records from this case, the Court

reviewed the billing records presented to the United States District Court for the

District of Wyoming in Victory Processing v. Michael, Case No. 17-CV-109-ABJ,

a case filed by the Bruning Law Group on behalf of Victory Processing and Dave

Dishaw after the complaint was filed in this case. (Compl., Dkt. 1 Jun. 26, 2017). The Court also reviewed the billing records presented to the United States

District Court for the District of South Carolina in Cahaly v. LaRosa, C.A. No. 6-

13-CV-00775-JMC. The district court in Cahaly declared South Carolina’s anti-

robocall statute unconstitutional, a decision affirmed by the United States Court of

Appeals for the Fourth Circuit. Cahaly v. LaRosa,

, 404 - 405 (4° Cir. 2015), The Cahaly case is significant because it arguably involved the first

challenge to an anti-robocall statute and was relied on by the Eastern District of

Arkansas in Gresham v. Rutledge, a case in which a political consultant

successfully challenged Arkansas’ anti-robocall statute.

(E.D, Ark. 2016). In August of 2016, shortly after the United States District Court

for the Eastern District of Arkansas issued its decision in July of 2016, Mr.

Johnson began billing in the instant case by researching Montana law and

° The Court will refer to Victory Process v. Michael as the Wyoming case, and will identify documents filed in that case by Dkt followed by the document number and date. Page 14 of 23

“reviewing case law regarding First Amendment challenges to other state robocall

bans.” (Doc. 63 at 15). This timing led the Court to conclude that Mr. Johnson’s

interest in challenging state robocall bans was prompted by learning about the

Gresham case. The billing in the Cahaly case is instructive because Samuel Harms, attorney for the plaintiff in that case, stated in his affidavit that he “exercised billing judgment when recording the time spent on the case” and “reduced or

eliminated any time spent. . . that may have been excessive, redundant or unreasonable.” (Harms Aff., Dkt. 47-2 at § 16 in Cahally v. LaRose). Mr. Johnson makes no similar representation in his initial, supplemental, or second

supplemental affidavits. (Docs. 63 at 4 - 14, 65-1 and 85). Although Mr. Harms had to effectively start from scratch in his case, as it was the first challenge to a

state robocall statute, he expended only 375.7 hours on the case. (Dkt. 47-2 at § 16). He was also the only attorney who worked on the case. The Bruning Law

Group, in contrast, billed for the work of five separate attorneys who collectively expended over 1300 hours prosecuting the instant case. While it is reasonable in a case of this type to have a partner review the work of a senior associate and for a senior associate to seek assistance from junior associates, it is not reasonable to have two partners participate in the review of

Page 15 of 23

documents. The Court therefore reduced or cut a number of entries involving multiple review by multiple partners of various filings. It is also reasonable for a firm to assign junior attorneys to conduct

preliminary research, prepare memos, and proof-read and cite check documents

prepared by a senior associate, even when said document has been edited by a

partner. Firms exercising proper billing judgment, however, frequently choose not

to bill their client for such work, instead viewing the work as a method to train

new associates. It is clear from the invoices submitted by the Bruning Law Group that it failed to exercise the kind of billing judgment expected of a professional law firm. Although the Court approved some of the hours billed by junior associates Mary Jacobson and Paul Lembrick, it reduced or cut many of the

entries. The Court prepared its own charts analyzing each entry from the invoices

prepared by the Bruning Law Group and explaining why hours were reduced or

cut. Attachment 1 analyzes the invoice covering the period between August 16, 2016 and October 7, 2019. Attachment 2 analyzes the invoice submitted on

January 31, 2020, covering the period between January 17, 2020 and January 31, 2020. Attachment 3 analyzes the invoice submitted on November 17, 2020, covering the period between October 6, 2020 and November 16, 2020.

Page 16 of 23

Brown Law Firm Billing The Court reviewed the invoices presented by the Brown Law Firm, even

though the State did not object to that firm’s billing. The Court agrees with the

State’s expert that the rates charged by Mr, Brown and his intern were reasonable.

Indeed, the Court used Mr. Brown’s rates as a benchmark for reasonable rates in

Montana. The hours billed by Mr. Brown, his law clerk, and paralegal were also reasonable.’ The Court therefore approves payment of fees to the Brown Law

Firm in the amount of $4,322.° COSTS Plaintiffs initially submitted a Bill of Costs on October 16, 2019, as part of a document titled “Index of Evidence in Support of Plaintiffs’ Motion for Attorneys’ Fees and Expenses.” (Doc. 55 at 66 - 67). The State filed its objection to the Bill

of Costs on October 30, 2019 (Doc. 57) and the Court denied Plaintiffs’ Bill of

Costs as premature on November 8, 2019. (Doc. 59). Plaintiffs filed a second Bill of Costs on November 20, 2019, as part of a

” The Court applauds the billing judgment exercised by Mr. Brown, who chose not to bill for many of his consultations with attorneys from the Bruning Law Group, even though the Bruning Law Group billed for those consultations. § The Brown Law Firm assessed fees in the amount of $3,222 for the period ending in October of 2019, (Doc. 63 at 51, ] 23) and $1100 for Mr. Brown’s participation in the October 27, 2020, hearing. (Doc. 85 at 18). Page 17 of 23

document titled “Index of Evidence in Support of Plaintiffs’ Motion for Attorneys’ Fees and Expenses.” (Doc. 63 at 66 through 79). Unlike the first Bill of Costs, the second Bill of Costs separately itemized the costs and included supporting documentation. The State incorporated its previous objections to Plaintiffs’ Bill of

Costs in its Brief in Opposition to Plaintiffs’ Application for Attorneys’ Fees and

Expenses. (Doc. 64 at 30). Those objections were based in large part on Plaintiffs’ failure to itemize and document the costs included in its first Bill of

Costs, an issue corrected in the second filing. The sole objection not related to the

failure to document costs goes to Plaintiffs’ choice to allow two attorneys to attend

the Ninth Circuit oral argument. (Doc. 57 at 4). There is no dispute concerning Plaintiffs’ entitlment to recover $400 for the

filing fee assessed by the Clerk of Court. Plaintiffs are also entitled to recover $82.60 for the costs as shown on the Mandate of the Court of Appeals. The costs

ordered by the Ninth Circuit do not include the $505 filing fee because that fee

was paid in the district court case. Plaintiffs are also entitled to recover that fee. Plaintiffs are not entitled to recover the $225 spent on the pro hac vice

admission fee. The Ninth Circuit has determined that pro hac vice fees do not

qualify as taxable costs. Kalitta Air LLC v. Central Texas Airborne System Inc.,

(9" Cir. 2013).

Page 18 of 23

The remaining costs consist of $857.83 for travel expenses relating to

counsel’s appearance at the preliminary pretrial conference and $1916.60 for

travel expenses incurred by the two Bruning Law Group attorneys who attended

the Ninth Circuit argument. The Court’s power to tax costs is limited to those

costs expressly allowed by

. Travel expenses are not referenced in the statute and therefore cannot be taxed. The total taxable costs to which

Plaintiffs are entitled based on their first bill of costs is $987.60. Plaintiffs submitted a Bill of Costs on November 17, 2020. (Doc. 86). Although the State registered an objection to the Bill of Costs in its response to

Plaintiffs’ Supplemental Motion for Attorney Fees, (Doc, 89 at 18), the State

failed to properly notify the Clerk of Court of its objection. The Deputy Clerk for

the Helena Division therefore taxed Defendant for Plaintiffs’ costs on December

11, 2020. (Doc. 90). The State having failed to appeal the clerk’s decision by filing a motion within seven days of entry of the clerk’s taxation of costs, as required by L.R. 54,1(6), the Court affirms the Clerk’s taxation of costs in the

amount of $6,194.47. The amount awarded by the Clerk does not include the

taxable costs of $987.60 itemized in Plaintiffs’ first bill of costs. Plaintiffs, as the

prevailing party, are entitled to collect $7,182.07 in taxable costs from the State.

Page 19 of 23

Non-taxable Costs Although Plaintiffs cannot recover travel expenses as taxable costs, they

may nevertheless be entitled to recover travel expenses. “It is well established that

attorney’s fees under

include reasonable out-of-pocket litigation

expenses that would normally be charged to a fee paying client, even if the court

cannot tax these expenses as ‘costs’ under

.” Trs. of the Constr.

Indus. and Laborers Health and Welfare Trust v. Redland Ins. Co.,

(9" Cir. 2006). In deciding whether to allow Plaintiffs to recover their travel

expenses, the Court considers whether it is a prevailing practice for attorneys in

Montana to bill travel costs separately from their hourly rates.” /d. at 1258. Although neither party addressed this issue, Mr. Brown states in his declaration that it is his firm’s practice “to charge clients for reasonable out-of-pocket

expenses, such as for photocopying, travel, telephone costs and electronic legal research fees.” (Doc. 63 at 49, 15). Plaintiffs should be compensated for

reasonable travel fees incurred by their counsel. The Court approves payment of $857.83 to cover Mr. Johnson’s expenses incurred in traveling to Helena for the preliminary pretrial conference in May of

2017. The Court agrees with the State that it was not necessary for Mr. Lembrick

to travel to Seattle with Mr. Johnson for the oral argument before the Ninth

Page 20 of 23

Circuit, as Mr, Lembrick did not argue the case. The Court sees no justification for counsel having remained in Seattle through March 9, 2017, when the oral

argument took place on March 7. The Court approves the following travel

expenses related to Mr. Johnson’s travel to Seattle: Round trip airfare: $306.61 Two nights lodging: $595.88 Airport to hotel fare: $52.92 Meals: $34.04 Total: 3 989.45 The Court does not approve reimbursement of the two payments made to the

James Brown Law Firm for out-of-pocket expenses in 2017, as those payments are

not supported by Mr. Brown’s affidavit. (CfDoc. 63 at 46 and 51). The Court

approves reimbursement of the $77.50 for copying costs of the Brown Law Firm

referenced in Mr. Brown’s affidavit. (Doc, 63 at 51, 25). The Court approves the following non-travel expenses from the Bruning Law Group’s October 9, 2019, invoice (Doc. 63 at 46): Courier charges: $13.65 Photocopies: $ 2.80 Postage: $13.65 Photocopying: $ 2.70 Total: $32.80 Plaintiffs, as the prevailing party, are entitled to recover $1,957.58 in non-

taxable costs from the State.

Page 21 of 23

CONCLUSION & ORDER In addition to reviewing the entire record in this case, the Court considered

pertinent documents from the Wyoming case and the Cahaly case. The Court also

reviewed the documents filed in the Ninth Circuit in the appeal of this case and

considered the Ninth Circuit oral argument. In accordance with the foregoing analysis and the attachments, IT IS HEREBY ORDERED that Plaintiffs’ “Application for Attorneys’ Fees

and Expenses” (Doc. 61) is granted in part and denied in part as follows.

Pjaintiffs are awarded $3,222 in fees for the Brown Law Firm’s work

through October of 2019. Plaintiffs are awarded $165,028 in fees for the Bruning Law Group’s work through October of 2019 and $5343 in fees for its work in

January of 2020. Plaintiffs are awarded $987.60 in taxable costs and $1957.58 in

non-taxable costs for the period ending January 31, 2020.

IT IS FURTHER ORDERED that Plaintiffs’ “Supplemental Application for

Attorneys’ Fees” (Doc. 83) is granted in part and denied in part as follows:

Plaintiffs are awarded $1,100 in fees for the James Brown Law Firm’s work in

connection with the October 27, 2020, hearing and $20,946 in fees for the Bruning Law Group’s work in connection with the October 27, 2020, hearing and the

supplemental application for fees.

Page 22 of 23

The Clerk is directed to enter judgment awarding Plaintiffs total fees in the

amount of $195,639, non-taxable costs in the amount of $1,957.58 and taxable

costs in the amount of $7,182.07. IT IS FURTHER ORDERED that Plaintiffs’ Request for a Status

Conference (Doc. 92) is denied as moot. th Dated this / A day of February, 2021.

“Gost ree SENIOR UNITED STATES DISTRICT JUDGE

Page 23 of 23