Case 4:13-cv-40057-TSH Document 136 Filed 02/17/16 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
CENTRAL DIVISION
ROBERT THAYER, SHARON BROWNSON,
and TRACY NOVICK,
Plaintiffs,
Civil Action No. 13-40057
v.
CITY OF WORCESTER,
Defendant.

PLAINTIFFS MOTION FOR LEAVE TO FILE REPLY MEMORANDUM

IN SUPPORT OF MOTION FOR AWARD OF
ATTORNEYS FEES AND LITIGATION EXPENSES
Plaintiffs Robert Thayer, Sharon Brownson, and Tracy Novick (collectively, Plaintiffs)
hereby move, pursuant to Local Rule 7.1(b)(3), for leave to file a reply to the City of Worcesters
Opposition to Plaintiffs Motion for Award of Attorneys Fees and Litigation Expenses. The
proposed reply is confined to 10 pages of text. The reply is intended to aid the Court in resolving
Plaintiffs motion.
WHEREFORE, Plaintiffs respectfully request that this Court grant them leave to file
Plaintiffs Reply Memorandum in Support of Motion for Award of Attorneys Fees and
Litigation Expenses, which is attached as Exhibit A hereto.

Case 4:13-cv-40057-TSH Document 136 Filed 02/17/16 Page 2 of 3

Dated: February 17, 2016

/s/ Kevin P. Martin
Kevin P. Martin (BBO# 655222)
Mark E. Tully (BBO# 550403)
Yvonne W. Chan (BBO# 669223)
Todd Marabella (BBO# 682525)
GOODWIN PROCTER LLP
53 State Street
Boston, Massachusetts 02109
Tel.: 617.570.1000
Fax.: 617.523.1231
KMartin@goodwinprocter.com
MTully@goodwinprocter.com
YChan@goodwinprocter.com
TMarabella@goodwinprocter.com
Matthew R. Segal (BBO# 654489)
Sarah R. Wunsch (BBO# 548767)
American Civil Liberties Union
of Massachusetts
211 Congress Street
Boston, Massachusetts 02110
Tel.: 617.482.3170
Fax.: 617.451.0009
MSegal@aclum.org
SWunsch@aclum.org
Attorneys for Plaintiffs Robert Thayer,
Sharon Brownson, and Tracy Novick
CERTIFICATION PURSUANT TO RULE 7.1(A)(2)
I hereby certify that pursuant to Local Rule 7.1(A)(2), counsel for Plaintiffs has conferred
with counsel for Defendant prior to filing this motion. Counsel for Defendant has stated that
Defendant will not oppose Plaintiffs motion.
/s/ Kevin P. Martin
Kevin P. Martin

Case 4:13-cv-40057-TSH Document 136 Filed 02/17/16 Page 3 of 3

CERTIFICATE OF SERVICE
I, Kevin P. Martin, hereby certify that the foregoing document is being filed through the
ECF system and will be sent electronically to the registered participants as identified on the
Notice of Electronic Filing on February 17, 2016. The foregoing document will be available for
viewing and downloading from the ECF system.

/s/ Kevin P. Martin

Kevin P. Martin

Case 4:13-cv-40057-TSH Document 136-1 Filed 02/17/16 Page 1 of 13

EXHIBIT
A

Case 4:13-cv-40057-TSH Document 136-1 Filed 02/17/16 Page 2 of 13

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
CENTRAL DIVISION
ROBERT THAYER, SHARON BROWNSON,
and TRACY NOVICK,
Plaintiffs,
Civil Action No. 13-40057
v.
CITY OF WORCESTER,
Defendant.

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR AWARD OF

ATTORNEYS FEES AND LITIGATION EXPENSES
The City of Worcesters Opposition to Plaintiffs Motion for Attorneys Fees and
Expenses (Opp.) is meritless, employing a series of arbitrary calculations to suggest that the
casewhich involved constitutional challenges to two separate ordinances, with no directly
controlling precedent, and proceeded all the way to the Supreme Courtshould have been
handled in about 450 hours by lawyers billing $175 to $350 an hour. The City then asks that the
unrealistically low amount it suggests be cut in half as a sanction. Taken as a whole, the Citys
position would result in a flagrant violation of 42 U.S.C. 1988s directive that a reasonable
attorneys fee be paid to the prevailing party in a civil rights case. Plaintiffs counsel will not
respond to the unprofessional insults levied in the concluding sentences of the Citys brief,
including its accusation that Plaintiffs counsel has engaged in contempt and fraud. Instead,
Plaintiffs write to make only the following points.

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ARGUMENT
1.

The Citys request for an award under $100,000 or $50,000 blinks reality. As

even the City observes, Opp. at 3, the City of Portland settled for $175,000 the issue of
attorneys fees in a similar case litigated by Plaintiffs same counselan amount nearly twice
the $97,000 that Worcester suggests be awarded against it on a contested basis (prior to its
suggested sanction, which would bring the amount below $50,000). Even leaving aside the
fundamental difference between a settlement and a contested award, numerous factors explain
why the fee award in this case should be substantially higher than in the Portland litigation:
The City of Portland, unlike Worcester, enacted only one ordinance banning speech
in medians; Worcester also enacted a second ban on aggressive solicitation. The
multi-pronged aggressive solicitation law by far constituted the more complicated
and time-consuming piece of this litigation.
Portland agreed not to enforce its law pending trial, obviating a contested motion for
preliminary injunction, and it did not depose the plaintiffs, saving on deposition and
deposition preparation time.
The Portland case did not involve proceedings at the U.S. Supreme Court.
The one-day bench trial in the Portland litigation required less effort than the crossmotions for summary judgment in this case.
A reasonable floor for settlement of attorneys fees in this case therefore might have been twice
the attorneys fee settlement in the single-ordinance Portland case, or $350,000. A contested
award, taking into account of all the factors discussed above, should be substantially higher. In
that context, the Citys argument to the Court that a fee award on a contested basis should be
under $100,000 is not serious, nor was its settlement offer of $100,000.
The City provides no detail to demonstrate that the similar cases it cites, Opp. at 18-19,
are actually similar, and in fact all but the smaller-scale Portland case are entirely dissimilar. As
with Portland, none of those cases involved a contested fee award; all involved settlements. In
Clatterbuck, an agreement was reached concerning attorneys fees while the government still had
2

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the right to appeal the district court decision; here, Worcester already has abandoned any right to
appeal and therefore has no settlement leverage. In the Hawaii case, the City agreed to settle
soon after the district court granted plaintiffs a TRO against the challenged law; two of the other
cases (Waechter and Pendleton) settled almost immediately after a complaint was filed. Those
cases thus involved only a fraction of the effort necessary in this case. In Reynolds (which
Plaintiffs counsel also handled on appeal after the plaintiff proceeded pro se in district court)
there was no fee award because the homeless plaintiff had never prevailed within the meaning
of 42 U.S.C. 1988 (see the next section) before deciding to voluntarily dismiss his case due to a
change in his personal circumstances.
2.

The City needlessly prolonged this litigation. Only a prevailing party is entitled

to attorneys fees under 42 U.S.C. 1988, and the Supreme Court decided fifteen years ago that
only a party that prevails in court can recover fees; serving as the catalyst for a government
voluntarily repealing an unconstitutional law is insufficient. See Buckhannon Bd. & Care Home,
Inc. v. W.V. Dept of Health & Hum. Resources, 532 U.S. 598, 603-605 (2001). In light of this
background rule, it is clear that the City only now faces the prospect of a substantial fee award
because it unreasonably refused ever to voluntarily repeal the challenged ordinances. It might
have repealed the aggressive panhandling ban after the U.S. Supreme Court issued its
decisions in McCullen v. Coakley, 134 S.Ct. 2518 (2014), and Reed v. Town of Gilbert, 135 S.
Ct. 2218 (2015), striking down one buffer zone law under intermediate scrutiny and clarifying
that strict scrutiny applies to laws that are content-based on their face (as Section 16 obviously
is) regardless of government intent. Likewise, it might have repealed the roadway and median
ban once the First Circuit struck down Portlands similar law in Cutting v. City of Portland. The
City had another chance to do the right thing when Judge Woodlock struck down Lowells

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narrower ban on aggressive solicitation. Worcester might also have taken account of the
numerous other decisions casting doubt on the constitutionality of its laws between the time
summary judgment was argued and this Courts final decision, which Plaintiffs brought to the
Courts and the Citys attention in a series of supplemental briefs. If Worcester had voluntarily
repealed its laws at any step along the way, it is unlikely that it would be facing this fee petition.
Instead, Worcester dug in its heels and insisted on litigating this case to the very end, prolonging
its violation of Plaintiffs civil rights and needlessly increasing Plaintiffs costs.
All of Worcesters argumentsincluding its plea for a municipal discount, Opp. at 1720must be viewed in the context of a city government that, whether due to politics or bad
advice, never seriously reconsidered its decision to abridge Plaintiffs free speech rights. Indeed,
the City still does not get it. It refers to its violation of Plaintiffs First Amendment rights as an
alleged theoretical First Amendment violation, Opp. at 1, disregarding this Courts holding that
the City did violate Plaintiffs constitutional rights and flagrantly diminishing the harm it
imposed on Plaintiffs, particularly the two homeless plaintiffs who testified that police often
invoked the laws in ordering them to move along when they were soliciting for charity.
3.

Plaintiffs were justified in seeking preliminary injunctive relief. The City takes

great umbrage with Plaintiffs motion for preliminary injunctive relief, relying heavily on dicta
from a vacated First Circuit opinion to suggest that Plaintiffs request for such relief was
inappropriate. Opp. at 4-5, 12, 16. That argument is obviously meritless. It ignores that an
abridgement of free speech rights constitutes irreparable harm as a matter of law. See Elrod v.
Burns, 427 U.S. 347, 373 (1976). Thus, it is routine for plaintiffs challenging laws criminalizing
speech to seek immediate relief rather than relinquish their constitutional rights during the
pendency of litigation. In an effort to achieve such relief quickly and inexpensively, lead

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counsel for Plaintiffs (attorney Martin) called City Solicitor Moore within hours of filing the
complaint to ask if the City would agree not to enforce the law while the case was pending, so as
to moot the preliminary injunction motion. The City refused, and in doing so greatly expanded
the scope and expense of the litigation. It neednt have done so. The City of Portland almost
immediately agreed not to enforce its law pending trial, and the City of Lowell eventually agreed
to do the same. Only Worcester insisted on litigating the issue, including on appeal.
It is simply remarkable that the City criticizes Plaintiffs for pursuing their appellate rights
and taking the case to the countrys highest court, Opp. at 16, given that the First Circuit
granted Plaintiffs partial injunctive relief, and the Supreme Court ultimately vindicated
Plaintiffs efforts when it granted their petition for certiorari, vacated the First Circuits decision,
and remanded the case for reconsideration by the First Circuit. The Supreme Court obviously
would not have granted Plaintiffs petition and vacated the decision below if it were
inappropriate for Plaintiffs even to be seeking preliminary injunctive relief. And, of course, on
remand this Court concluded that Worcesters laws had, in fact, been violating Plaintiffs First
Amendment rights for more than two years. More than two years of irreparable harm to
Plaintiffs and others could have been avoided had the City simply agreed not to enforce its laws
pending a decision on the merits, as Portland and Lowell did. Having insisted on violating
Plaintiffs civil rights while this case was pending, the City cannot now avoid its responsibility
for the legal fees Plaintiffs were forced to incur as a result.
4.

The Citys laws were not consistent with precedent when adopted. The City

asserts that a substantial attorney fee award would be unfair because its laws were supposedly
four-square with precedent when adopted, pointing to Reed as a change in the law. Opp. at 18.
This is wrong for several reasons. First, the point is entirely irrelevant; an award of attorneys

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fees under 1988 is not designed to punish defendants but instead to encourage civil rights
litigation, so there is no defense to an award of attorneys fees akin to qualified immunity.
Second, this Court invalidated the roadway ordinance under intermediate scrutiny, not strict
scrutiny; thus, contrary to the Citys theory, Reed had no bearing on the invalidation of that
ordinance. Third, Reed did not make new law: as Plaintiffs explained in their own petition for
certiorari, filed well before Reed was decided, the Supreme Courts 1993 decision in Cincinnati
v. Discovery Network, Inc., 507 U.S. 410 (1993), already made clear that a governments motive
is irrelevant when a law is content-based on its face. Indeed, the Supreme Courts decision in
Reed seemed surprised that anyone could think differently. See 135 S. Ct. at 2228 ([W]e have
repeatedly considered whether a law is content neutral on its face before turning to the laws
justification or purpose. (first emphasis added)). Finally, even taking the Citys argument on its
own terms, once Reed was issued the City could have voluntarily repealed the challenged
ordinances to end its abridgement of Plaintiffs civil rights and this litigation, but it chose not to.
5.

There is no municipal discount for attorneys fees awards. The Citys request

that a 20% municipal consideration discount be applied (Opp. at 19-20) is baseless. By

definition, an award of attorneys fees under 42 U.S.C. 1988 for the prevailing party in a civil
rights case only can be sought from a party acting under color of state law, such as a city.
Routinely applying a substantial discount in civil rights cases brought against local governments
would frustrate Congresss manifest intention through 1988 to facilitate the prosecution of
private actions aimed at deterring civil rights abuses. Coutin v. Young & Rubicam Puerto Rico,
Inc., 124 F.3d 331, 341 (1st Cir. 1997). If Worcester did not want to put itself at risk for a
sizeable attorneys fees award, it should not have (a) adopted novel laws that abridge civil

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rights,1 (b) refused to stay enforcement of those laws pending a decision on the merits, and (c)
refused to repeal its laws, and continued to enforce them, even as contrary precedent piled up in
the U.S. Supreme Court, the First Circuit, and in this District. The City had ample warning that
it could no longer rely on the initial rulings of this Court and the First Circuit and should not
have continued to litigate all the way through to a final decision establishing Plaintiffs as
prevailing parties. Worcesters taxpayers have only their city government to blame.
6.

An award should not be based on Central Massachusetts rates. The City proposes

to cut Plaintiffs requested award approximately in half by arguing that the rates similar to (but in
some cases even lower than) Worcester law firms should control. Opp. at 8-11. The City
ignores that this case proceeded to the First Circuit and then to the U.S. Supreme Court,
justifying the involvement of attorneys at a national law firm based in Boston and Washington,
D.C., including former Supreme Court law clerks with substantial appellate expertise, and the
involvement of ACLU attorneys with particular expertise in First Amendment law. The City has
no evidence contradicting Plaintiffs evidence that the rates charged for the level of
constitutional and appellate expertise Plaintiffs counsel brought to this case reflect reasonable
rates in the relevant market.
7.

The case was not overstaffed. The City takes great liberty with the facts in

arguing that the case was overstaffed and asking for a blanket 60% discount across all time
entries for the entire case:
The City misleadingly observes that four attorneys for Plaintiffs appeared for portions
of certain depositions, Opp. at 5-6, but the billing records accompanying the fee
petition plainly show that that Plaintiffs seek fees for the time of only two attorneys
for each of those depositions, the same number of attorneys present on behalf of the
1

As the Court itself can determine, the Citys two challenged ordinances bear no resemblance whatsoever to
laws that already exist in Boston and Springfield; indeed, Plaintiffs made a point of noting how much narrower those
laws are in their summary judgment briefs. Pls. Mem. in Supp. of Mot. for Summ. J. at 8; Pls. Reply Mem. in
Supp. of Mot. for Summ. J. at 4 n.2.

Case 4:13-cv-40057-TSH Document 136-1 Filed 02/17/16 Page 9 of 13

City. Most egregiously, the Citys brief notes the attendance of an attorney whose
name does not even appear in the fee petition and accompanying billing records.
Opp. at 6 n.7 (naming Mr. Wiesen).
The City observes that nine Goodwin Procter attorneys worked on the case, and states
that this caused ninefold excesses in every facet of the case. Opp. at 11-14. Such
criticism is frivolous because it is divorced from the actual time entries Plaintiffs
submitted. Generally speaking, the only attorneys involved in every facet of the
case were attorneys Martin, Chan, and Marabella. Attorneys Burgess (a former
Supreme Court clerk) and Daniels (a former SJC clerk), both of whom worked on the
appeal in the Portland litigation, worked mainly on briefing questions of law on
appeal and before this Court on summary judgment. Attorney MacLeman was
involved in proceedings early in the more-than-two-years-long litigation before being
pulled away on other matters. Attorneys Bart, Lu, and Sullivan, three junior lawyers,
were brought in during discovery and, in an effort to shift work to lower-rate
attorneys, were responsible for going through voluminous records produced by the
City in discovery and working on related aspects of summary judgment briefing.
The City ultimately concludes that the case should have been staffed by only two to
three lawyers instead of nine to eleven lawyers, thus justifying a 60% discount in
hours. Opp. at 13. That is a complete non sequitur. A fee award is based on the
number of hours worked, not the number of attorneys who worked themit is
irrelevant whether a single lawyer works 2,000 hours or five lawyers work 400 hours
each, so long as the 2,000 hours of total work were justified. Plaintiffs counsel
already accounted for time spent on general coordination by voluntarily leaving out of
their fee petition hundreds of hours spent at weekly team meetings and applying a
20% discount to their standard rates.
To the extent Plaintiffs counsel conferred with respect to case strategy, the content
of particular pleadings, which legal theories to advance, moot courts, and so forth,
that is entirely appropriate: Effective preparation and presentation of a case often
involve[s] the kind of collaboration that only occurs when several attorneys are
working on a single issue. Gay Officers Action League v. Puerto Rico, 247 F. 3d
288, 297 (1st Cir. 2001). Collaboration necessarily requires conferring, particularly
in a complex constitutional litigation such as this case.
8.

There was no block billing. The City accuses Plaintiffs of block billing and

asks for a blanket 20% discount across all time entries for the entire case. Opp. at 15. Block
billing consists of lumping together unrelated work and providing only a single time entry for all
of it. See In re Volkswagen & Audi Warranty Extension Litig., 89 F. Supp. 3d 155, 176 (D.
Mass. 2015). The Court can itself review the billing records submitted with the fee petition to
see that, when an attorney billed time on a single day to unrelated tasks, a breakdown in time is
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provided. The only examples of block billing the City cites are two examples of attorney
Martin combining his work on a brief and discussions with a teammate concerning the same
brief. That is not block billing as it is commonly understood, and certainly does not support a
20% discount applied across the entire case.
9.

There was no excess billing. On top of the 60% discount the City requests for

overstaffing, it asks for a further 20% discount for overbilling. Opp. at 15-16. The only
example it provides is summary judgment briefing. Opp. at 15-16. In criticizing the time spent
on this phase of the case, the City ignores:
The parties filed cross-motions for summary judgment, raising different issues. To be
conservative, Plaintiffs did not move for summary judgment on their as-applied First
Amendment challenges or their Equal Protection and Due Process Clause claims.
The City, on the other hand, aggressively moved for summary judgment on every
issue in the case, requiring Plaintiffs to expend additional hours responding.
The First Circuits now-vacated decision, which was still in force when summary
judgment was briefed, incorrectly placed the burden of proof on Plaintiffs and
required Plaintiffs to address the relative likely frequency of constitutional and
unconstitutional applications of the law. Thayer v. City of Worcester, 755 F.3d 60, 74
(1st Cir. 2014). This required Plaintiffs to analyze and summarize for the Court every
instance of alleged aggressive solicitation identified by the Cityabout 200 incidents
in totaland to compare those incidents to both the multi-pronged aggressive
solicitation law, the median ban, and other existing laws (e.g., trespass, disorderly
conduct, assault) that might apply to such incidents (a relevant consideration under
McCullen v. Coakley, 134 S. Ct. 2518 (2014)). This analysis, and a description of the
results in summary judgment briefing, was necessarily time consuming.
While a decision from this Court was pending between June and November, the
Supreme Court issued its decision in Reed; the First Circuit vacated its prior decision
in this case; the First Circuit issued a decision in the Portland case; and Judge
Woodlock issued a decision in the Lowell case. Plaintiffs appropriately submitted
supplemental briefing to this Court concerning those decisions, as well as decisions
from other jurisdictions addressing the issues in this case. Reviewing these decisions
and providing proper summaries for the Court took some time.
Notably, other than its broad complaint about overstaffing, the City does not argue that there
was any overbilling in any aspect of the case other than summary judgment briefing, including:
the initial pleadings; the appeal to the First Circuit; and the petition for certiorari to the Supreme
9

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Court. The City does claim that the fee petition was a ministerial task, Opp. at 16, but that
argument is belied by the Citys own 22-page brief in opposition.
10.

The Citys criticism of printing costs ignores Supreme Court practice. The City

asks the Court to reduce the $6,200 in printing costs Plaintiffs incurred for their submissions to
the U.S. Supreme Court to only about $200, pointing to the $124 spent by the City on printing its
cert opposition as supposed evidence that Plaintiffs costs were too high. Opp. at 17. The Citys
asserted equivalence ignores basic rules of Supreme Court practice. As petitioners, Plaintiffs
were responsible for the cost of submitting 40 copies of the voluminous record appendix to the
Supreme Court, in addition to the cost of printing their opening and reply briefs. The amount
Plaintiffs seek for printing is a straight pass through from a respected and well-established legal
printer in Washington, D.C., that Goodwin Procter routinely uses in Supreme Court litigation.
The City also complains, Opp. at 6, 16, about the cost of the videotaped depositions of its two
witnesses, but Plaintiffs did not include in their fee petition any reimbursement request for
videographer fees. Plaintiffs stenographer costs were higher than those incurred by the City for
its depositions of Plaintiffs because stenographers bill by the page and the depositions of the
Citys two witnesseswho played key roles in the adoption and enforcement of the challenged
laws reasonably lasted longer than the Citys depositions of the two homeless plaintiffs.
CONCLUSION
For more than two years the City violated the civil rights of its poorest citizens by
enacting, and insisting on enforcing, two unconstitutional laws. Now it asks this Court to ignore
the standards applicable to a fee petition under 1988 and to show it the mercy that it refused to
show its own citizens. For the reasons Plaintiffs gave in their fee petition, this Court should
award the amount requested.

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Dated: February 17, 2016

/s/ Kevin P. Martin
Kevin P. Martin (BBO# 655222)
Mark E. Tully (BBO# 550403)
Yvonne W. Chan (BBO# 669223)
Todd Marabella (BBO# 682525)
GOODWIN PROCTER LLP
53 State Street
Boston, Massachusetts 02109
Tel.: 617.570.1000
Fax.: 617.523.1231
KMartin@goodwinprocter.com
MTully@goodwinprocter.com
YChan@goodwinprocter.com
TMarabella@goodwinprocter.com
Matthew R. Segal (BBO# 654489)
Sarah R. Wunsch (BBO# 548767)
American Civil Liberties Union
of Massachusetts
211 Congress Street
Boston, Massachusetts 02110
Tel.: 617.482.3170
Fax.: 617.451.0009
MSegal@aclum.org
SWunsch@aclum.org
Attorneys for Plaintiffs Robert Thayer,
Sharon Brownson, and Tracy Novick

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CERTIFICATE OF SERVICE
I, Kevin P. Martin, hereby certify that the foregoing document is being filed through the
ECF system and will be sent electronically to the registered participants as identified on the
Notice of Electronic Filing on February 17, 2016. The foregoing document will be available for
viewing and downloading from the ECF system.

/s/ Kevin P. Martin

Kevin P. Martin

12