The District of Columbia Owes a Debt of $1 Million to Liberty, Make Check Payable to Gura, Neily, Levy, Huff, Healy, and Possesky

December 29th, 2011

From the latest litigation in District of Columbia v. Heller:

In sum, for the reasons set forth above, the Court concludes that plaintiff’s counsel is entitled to the following fees, totaling $1,132,182.00:

  •  Alan Gura:1577.2hoursx$420/hour=$662,424.00
  •  Clark Neily:700.2hoursx$420/hour=$294,084.00
  • Robert Levy:320.7hoursx$315/hour=$101,020.50;and77 hours x $157.50/hour = $12,127.50
  • Thomas Huff:153.6hoursx$275/hour=$42,240.00
  • Gene Healy:30.3hoursx$420/hour=$12,726.00
  • Laura Possessky:18hoursx$420/hour=$7,560.00

It’s less than Gura, et al wanted (about $3 million) but more than the District wanted ($840,000).

For purposes of full disclosure, I was a research assistant for Heller way-back-when. I got paid nada (though Gura and Neily are buying drinks next time I see them). Though my name was mentioned in the opinion:

The Court also finds that Mr. Levy billed an excessive amount of travel time. As this Court has previously held,“[t]ravel [] time is supposed to be compensated at half the attorney’s hourly rate.” Doe v. Rumsfeld, 501 F. Supp. 2d 186, 193 (D.D.C. 2007); Blackman v. District of Columbia, 397 F. Supp. 2d 12, 15 (D.D.C. 2005) (“In this circuit, travel time generally is compensated at no more than half the attorney’s appropriate hourly rate.”); see also Miller, 575 F. Supp. 2d at 30 (following Doe and Blackman and compensating counsel’s travel time at half his standard billing rate). The 77 hours that Mr. Levy spent traveling to and from Washington, D.C., therefore, will be compensated at half his hourly rate.

And they were reimbursed for researching the 9th Amendment!

Having carefully considered defendants’ objections and plaintiff’s response thereto, the Court concludes that plaintiff’s counsel should be compensated for the time they spent researching the Ninth Amendment as well as the time they spent working on the various procedural motions identified by defendants, but not for the time spent working on the cross- petition for certiorari. Specifically, the Court first finds that plaintiff may seek reimbursement for the 2.5 hours his counsel spent researching the Ninth Amendment. Although plaintiff did not ultimately prevail on a Ninth Amendment theory, the Court is not persuaded that the minimal amount of research spent on this issue should be stricken from the fee petition. See Pl.’s Reply Br. at 16 (“[I]t was not optional for counsel to research the Ninth Amendment and unenumerated rights issues. It was important to understand the interplay between Second Amendment rights and any independent rights of self-defense.”).

The court did not award an enhancement based on Perdue:

Having carefully considered plaintiff’s request and defendants’ objections thereto, the Court concludes that the evidence before the Court simply does not support the significant enhancement urged by plaintiff. First, the Court finds that plaintiff has failed to put forth “specific proof linking [his] attorney[s’] abilit[ies]” with the extraordinarily high enhancement he is requesting. Perdue, 130 S. Ct. at 1674. The Court is simply not persuaded that counsel’s entitlement to those high rates is “self- evident.” Pl.’s Mot. at 33. Therefore, in the absence of more specific evidence on this issue, the Court finds that the lodestar rates of $420/hour and $275/hour – which are the prevailing rates for attorneys engaged in complex federal litigation in the District of Columbia – adequately reflect the “true market value” of the exemplary work of plaintiff’s counsel in this action. See generally Blum, 465 U.S. at 899 (“The ‘quality of representation’ . . . generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional.’”); see also Miller, 575 F. Supp 2d at 51 (“[Plaintiff]’s evidence that counsel’s established billing rates do not adequately reflect the quality of their performance is simply too paltry to overcome the ‘strong presumption’ against fee enhancements for quality of representation. Absent amplifying details, this ‘evidence’ consists of nothing more than superlative-laden platitudes.” (internal citation omitted)). Nor has plaintiff provided the Court with “specific evidence that the lodestar fee would not have been ‘adequate to attract competent counsel.’” Perdue, 130 S. Ct. at 1674. Although plaintiff is correct that more than 25 years passed before someone decided to challenge the District’s handgun ban, the Court is simply not persuaded – based upon the record before it – that the lack of earlier litigation on this issue was the result of “insufficient” financial incentives or an inability to retain counsel. See Pl.’s Reply at 10. Finally, the Court is not persuaded that plaintiff’s success in this action was attributable to the superior lawyering of his counsel. As plaintiff is well aware, “superior results are relevant [to a request for a fee enhancement] only to the extent it can be shown that they are the result of superior attorney performance.” See Perdue, 130 S. Ct. at 1674. In this case, the Court finds that the lawyering on both sides was excellent. The Court therefore concludes that plaintiff has failed to present this Court with the specific evidence necessary to overcome the “strong presumption” that the lodestar figure is reasonable. Id. at 1673.

So the attorneys were “excellent” but not “superior.” Remember report cards with letter grades? Excellent? Superior? Needs improvement?