UPDATE (11:31 a.m.): Acting D.C. Attorney General Peter Nickles, responding to the fee petition, told the BLT, "We obviously are going to have to look at it closely. That’s a lot of money. This is not a situation where there was a trial. Everything was done on motions. Certain kinds of work are recognized to be appropriate and certain kinds are not." Nickles said he was meeting with staff later today to discuss whether to negotiate with the Gura and the others or to contest the fee petition in court.
The lawyers who defeated the District’s handgun ban in the Supreme Court, successfully arguing that Americans have an individual right to arm themselves, want about $3.5 million for their trouble, according to a motion for attorney’s fees and costs filed Monday in the U.S. District Court for the District of Columbia.
The team financed by The Cato Institute’s Robert Levy and led by civil rights and intellectual property lawyer Alan Gura says it clocked at least 3,273 hours in the course of District of Columbia v. Heller, which was filed in February 2003 and concluded in spectacular fashion on June 26, the last day of the high court's cycle. The lawyers anticipate the District will oppose the motion, but they’ve not received a response, the motion says.
Gura, of Gura & Possessky, Clark Neily III, a senior attorney at the Institute for Justice, and Levy, the wealthy businessman-turned-lawyer, handled the bulk of the work, tallying 1,661 hours, 808.3 hours, and 595.6 hours, respectively, the motion says. In addition to about $3.5 million in fees, the lawyers asked Judge Emmet Sullivan to reimburse about $13,200 in court costs and travel expenses.
The lawyers called their case “one of the most profound and important victories available under our system of justice” and sought to emphasize the long odds they faced.
“Defendants were represented at the Supreme Court by nine attorneys from three of the nation’s largest law firms, and had access to all the legal resources provided by their own vast governmental budgets,” the motion says, noting that the D.C. Office of Attorney General has about 340 lawyers and 250 support staff.
The team asked Sullivan to multiply its fees under a provision of Section 1988 that allows for fee enhancement in exceptional cases “where the result is especially important and there is significant professional risk to counsel in pursuing the litigation.” That means Gura’s 1,661 hours, at a rate of $557 per hour, would be doubled, netting him about $1.9 million.
“If this is not an ‘exceptional case’… we are at a loss to describe what case would qualify,” the motion says.
Interestingly, the lawyers are also seeking a fee enhancement for the contingent nature of the case, though circuit precedent forbids it. “The request is made in the good faith belief that the issue requires revisiting,” the motion says.
Their reasoning: “No lawyer rationally undertakes, on a contingent basis, work that would yield the same fee for the same work that could be earned without risk of non-payment.”
SCOTUSblog has more here.