It took six years for the attorneys for Dick Heller to win the D.C. resident, and all Washington residents, the right to possess handguns in their homes. The U.S. Supreme Court made its landmark decision in District of Columbia v. Heller in 2008.
It’s taken another three years for those attorneys, after a lengthy court fight with the District of Columbia, to be awarded their attorney fees.
In a ruling released Friday, U.S. District Judge Emmet Sullivan in Washington awarded Heller’s attorneys, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, just over $1.1 million—about one-third of what they had requested.
Gura and his team had requested about $3.1 million in fees. By contrast, the District of Columbia had argued that Heller’s attorneys merited just over $840,000.
Sullivan noted in his 65-page ruling that lawyers for the city had claimed Gura’s team shouldn’t be allowed to “enrich themselves at the expense of the taxpayers” in a time of financial crisis. The judge made it known that he, too, was cognizant of the issue.
“Sensitive to the fact that the fees in this case will be paid by the taxpayers, this Court is left with the difficult task of closely scrutinizing plaintiff’s fee petition to determine what is fair, reasonable, and just compensation for the legal services of plaintiff’s attorneys,” Sullivan wrote.
The bulk of Sullivan’s ruling is dedicated to detailing the intricacies of how to determine fair and appropriate legal fees. The judge wrote he must make three separate determinations, including what constitutes a “reasonable hourly rate” for plaintiff’s counsel; the number of hours expended on the litigation; and whether the plaintiff had offered evidence that this was a such rare case that a special enhancement is appropriate.
Sullivan said determining the lawyers’ hourly rates alone was difficult, as three of the six attorneys on the case—Clark Neily III of the Institute for Justice, and Robert Levy and Gene Healy with the Cato Institute—work for nonprofit groups. And the other three, including Gura, Laura Possessky and Thomas Huff, do not have standard, fixed hourly rates, in part because they charge lower rates to clients who otherwise couldn’t afford them.
Both sides argued to Sullivan that various matrixes and formulas should be used to determine the correct hourly rate. The plaintiffs’ team concluded that the rates should be $589 per hour for all of the attorneys except Huff, who had less experience. They argued Huff should be compensated at a rate of $361 per hour.
Sullivan called those rates “extraordinary” and not appropriate for this case. “[T]he Court is unwilling to award the high rates requested by plaintiff absent specific evidence that those rates are, indeed, the prevailing market rates for attorneys engaged in complex federal litigation outside of the District of Columbia’s largest law firms,” Sullivan wrote.
Regarding number of hours worked, the plaintiff’s attorneys claimed they worked 3,270 hours over six years. Criticizing three of the attorneys—Neily, Levy and Healy—for “unacceptable” timekeeping practices, among other reasons, Sullivan found that only 2,877 hours had been “properly billed” to defendants.
Finally, Sullivan concluded that no fee enhancement would be warranted, despite the attorneys’ assertions that they had provided “superior” legal performance, and that the awards had been delayed.
In a joint written statement, Gura and Neily, on behalf of the rest of their team said, “We appreciate Judge Sullivan's remarkably thorough opinion in which he substantially rejected the District's attempts to cut by nearly half the number of billable hours reasonably expended by Plaintiff's counsel in obtaining an unprecedented ruling from the Supreme Court that the Second Amendment protects an individual right to keep and bear arms.”
Gura and Neily added that they “respectfully” disagreed with Sullivan's determination of the hourly rates calculated in this case, which they submitted was based on an outdated U.S. Attorney’s Office Fee Matrix.
“As has become increasingly apparent in recent years, that matrix bears little if any relationship to prevailing hourly rates for complex litigation in the Washington, D.C. market,” the attorneys wrote, “nor do we believe the rates provided in the USAO matrix accurately reflect the exceptional quality of the legal work performed by Plaintiff's counsel in securing this historic win. We have not yet decided how to proceed and are considering various options.”
D.C. Attorney General Irvin Nathan in a statement “commended” Judge Sullivan for reducing the “outlandish” fee request of the plaintiffs’ team.