Parker v. District of Columbia ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DICK ANTHONY HELLER, )
)
Plaintiff, )
) Civil Action No. 03-213 (EGS)
v. )
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Dick Anthony Heller was the prevailing party in
litigation before the United States Supreme Court, in which that
Court held that the District of Columbia’s “ban on handgun
possession in the home violates the Second Amendment, as does
its prohibition against rendering any lawful firearm in the home
operable for the purpose of immediate self-defense.” See
District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
Pending before the Court is plaintiff’s motion for attorney fees
and costs pursuant to 42 U.S.C. § 1988 (“§ 1988”). Plaintiff is
seeking an award of $3,126,397.25 in fees and costs. Pl.’s Mot.
at 2. Defendants, by contrast, urge the Court to award no more
than $840,166.24, see Defs.’ Opp’n at 5,1 arguing that
1
After briefing on plaintiff’s fee petition was ripe,
defendants filed a “notice” with the Court in which it argued
that plaintiff should be awarded no more than $657,252.22. See
plaintiff’s counsel should not be permitted to “enrich
themselves at the expense of taxpayers,” particularly during
this time of “financial crisis.” Defs.’ Opp’n at 1. 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. Upon consideration of plaintiff’s fee
petition, the opposition and reply thereto, defendants’ notices
and the opposition thereto, the arguments of the parties made
during the hearings held on December 13, 2010 and March 23,
2011, the parties’ post-hearing briefs and additional
supplemental briefing ordered by the Court, the Court hereby
Defs.’ Notice, Docket No. 71 ¶ 8. Defendants then further
revised their position and argued that plaintiff should receive
no more than $722,424.78. See Defs.’ Third Notice, Docket No.
75. Prior to oral argument in this case, defendants filed three
“Notice[s] of Intent to Rely on Additional Authority and
Arguments” with the Court. See Docket Nos. 71, 74, and 75.
These filings were made without the consent of plaintiff and
without leave of the Court; they were not made in response to
new case law, in response to newly discovered evidence, or in
response to new arguments raised by plaintiff for the first time
in his reply brief. Instead, these “notices” primarily consist
of new arguments that could have been made in defendants’
opposition brief. Despite the fact that these supplementary
pleadings were improperly filed with the Court, the Court has
nevertheless considered defendants’ late-raised arguments and
finds them generally unpersuasive for the reasons articulated by
plaintiff. See Docket No. 72.
2
determines that plaintiff’s counsel is entitled to fees in the
amount of $1,132,182.00 and expenses in the amount of $4890.27.
I. STATUTORY FRAMEWORK
Section 1988 authorizes a district court, in its
discretion, to award a “reasonable attorney’s fee” to a
prevailing civil rights litigant. 42 U.S.C. § 1988. “[A]
‘reasonable’ fee is a fee that is sufficient to induce a capable
attorney to undertake the representation of a meritorious civil
rights case.” Perdue v. Kenny A., 130 S. Ct. 1662, 1672 (2010);
see also Blum v. Stenson, 465 U.S. 886, 897 (1984) (“[A]
reasonable attorney’s fee is one that is adequate to attract
competent counsel, but that does not produce windfalls to
attorneys.”)(ellipsis, brackets, and internal quotation marks
omitted).
The starting point for determining a reasonable fee is the
“lodestar method,” which “is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “[T]he
lodestar method produces an award that roughly approximates the
fee that the prevailing attorney would have received if he or
she had been representing a paying client who was billed by the
hour in a comparable case[.]” Perdue, 130 S. Ct. at 1672.
There is a “strong presumption” that the lodestar figure
3
represents a reasonable attorney’s fee, id. at 1673, because
“‘the lodestar figure includes most, if not all, of the relevant
factors constituting a ‘reasonable’ attorney’s fee,’” id. at
1667 (quoting Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 478 U.S. 546, 566 (1986)).
In calculating a reasonable fee award, the Court must make
three separate determinations: (1) what constitutes a
“reasonable hourly rate” for the services of plaintiff’s
counsel; (2) the number of hours that were reasonably expended
on the litigation; and (3) whether plaintiff has offered
“specific evidence” demonstrating this to be the “rare” case in
which a lodestar enhancement is appropriate, and if so, in what
amount. Miller v. Holzmann, 575 F. Supp. 2d 2, 11 (D.D.C.
2008); see also Covington v. District of Columbia, 57 F.3d 1101,
1107 (D.C. Cir. 1995). The fee applicant, however, “bears the
burden of establishing entitlement to an award, documenting the
appropriate hours, and justifying the reasonableness of the
rates[.]” Covington, 57 F.3d at 1107 (citing Blum, 465 U.S. at896 n.11; Hensley, 461 U.S. at 437). Likewise, “the burden of
proving that an enhancement is necessary must [also] be borne by
the fee applicant.” Perdue, 130 S. Ct. at 1673. This Court,
therefore, must first determine whether plaintiff has met his
burden with respect to rates, hours, and enhancements. The
4
Court will then consider plaintiff’s request for reasonable
expenses.
II. PLAINTIFF’S FEE AWARD
A. Reasonable Hourly Rate
The first significant issue this Court must decide is the
appropriate hourly rate at which each of plaintiff’s attorneys
should be compensated. “[A] fee applicant’s burden in
establishing a reasonable hourly rate entails a showing of at
least three elements: [1] the attorneys’ billing practices;
[2] the attorneys’ skill, experience, and reputation; and
[3] the prevailing market rates in the relevant community.”
Covington, 57 F.3d at 1107; see also Blum, 465 U.S. at 896 n.11
(“[T]he 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 similar services by lawyers of reasonably
comparable skill, experience, and reputation.”). After careful
consideration of this evidence, “the Court must then exercise
its discretion to adjust [the requested rate] upward or downward
to arrive at a final fee award that reflects the characteristics
of the particular case (and counsel) for which the award is
sought.” Falica v. Advance Tenant Servs., 384 F. Supp. 2d 75,
78 (D.D.C. 2005) (internal quotation marks omitted) (citing
5
cases); see also American Lands Alliance v. Norton, 525 F. Supp.
2d 135, 148 (D.D.C. 2007) (explaining that the district court
must assure itself that the rate requested is “commensurate with
the attorneys’ skill and experience, and with the quality of the
attorneys’ work”)(internal quotation marks omitted). The Court
will begin by addressing the first element of the Covington rate
inquiry: the billing practices of plaintiff’s counsel.
1. Counsel’s Billing Practices
With regard to this first factor, “an attorney’s usual
billing rate is presumptively the reasonable rate, provided that
this rate is ‘in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill,
experience, and reputation.’” Kattan ex rel. Thomas v. District
of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum,
465 U.S. at 895-96 n.11). The attorneys in this case, however,
do not have a usual billing rate. See Pl.’s Mot. at 14 (“As is
typical among attorneys dedicated largely or exclusively to
public interest work, Plaintiff’s counsel lack relevant hourly
billing practices.”). Specifically, three of plaintiff’s
attorneys (Mr. Neily, Mr. Levy, and Mr. Healy) are employed by
non-profit public interest organizations that do not charge
hourly billing rates, and three of his attorneys (Mr. Gura, Ms.
Possessky, and Mr. Huff) do not have standard, fixed hourly
6
rates, as they frequently charge “sub-market rates in order to
provide legal services to those who otherwise could not afford
them.” Pl.’s Mot. at 14-15. Plaintiff’s counsel, therefore, is
“entitled to an award based on the prevailing market rates.”
Covington, 57 F.3d at 1107 (explaining that attorneys “who
either practice privately and for-profit but at reduced rates
reflecting non-economic goals or who have no established billing
practice” should be compensated based on the prevailing market
rate).2
2
Following a hearing on plaintiff’s fee petition, both
parties were given leave by the Court to file a 5-page post-
argument brief. In their post-argument brief, defendants - for
the first time - challenged counsel’s billing practices. See
Defs.’ Supp. Br., Docket No. 77, at 1-2 (“[P]laintiff has not
established that lead counsel’s two-person law firm can command
even USAO Laffey rates in the cases where the firm does not
discount rates for public spirited reasons. . . . Plaintiff’s
failure to show entitlement to USAO Laffey rates necessarily
means he is not entitled to a higher rate.”). Defendants did
not raise this argument in their opposition brief. Indeed,
rather than challenge the representations of plaintiff’s counsel
with respect to their lack of relevant billing practices,
defendants initially conceded that plaintiff’s counsel lacked a
usual billing rate and agreed that they should be compensated at
the prevailing market rate for complex federal litigation. See
Defs.’ Opp’n at 6-7 (“Particularly where (as here), attorneys
lack a usual billing rate, federal courts most frequently use
the ‘lodestar’ approach, which ‘looks to the prevailing market
rates in the relevant community.’”) (internal citations
omitted). Despite this initial concession, the Court has
nevertheless considered defendants’ late-raised challenge to the
billing practices of Mr. Gura, Ms. Possessky, and Mr. Huff. The
Court finds this argument unpersuasive, however, and for the
reasons articulated below, concludes that an award of fees under
the USAO Laffey Matrix is appropriate.
7
2. Counsel’s Experience, Skill & Reputation
“Second, prevailing parties must offer evidence to
demonstrate their attorneys’ experience, skill, reputation, and
the complexity of the case they handled.” Covington, 57 F.3d at
1108. This, in turn, requires an attorney 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 similar services by lawyers of
reasonably comparable skill, experience, and reputation.’” Id.(quoting Blum, 465 U.S. at 896 n.11). The D.C. Circuit has
noted that “this second element of the reasonable-rate analysis
informs the first element of the inquiry,” explaining that
“‘[w]e do not propose . . . that all attorneys be remunerated at
the same rate, regardless of their competence, experience, and
marketability. We only aim to provide that their experience,
competence, and marketability will be reflected in the rate at
which they are in fact remunerated.’” Id. This factor,
therefore, is of only limited utility to the Court because - as
discussed above - plaintiff’s attorneys do not have standard
billing rates that reflect their experience, competence, and
marketability.
The Court will note, however, the impressive qualifications
of plaintiff’s counsel. Indeed, with the exception of one
8
attorney, plaintiff was represented by a team of skilled
litigators with significant experience in the for-profit, non-
profit, and government sectors at both the trial and appellate
level. See generally Pl.’s Mot. at 16-20 and the declarations
cited therein.
3. Prevailing Market Rate
Given the limited utility of the first and second factors
in this case, in order to determine a reasonable hourly rate for
plaintiff’s counsel, the Court must focus its inquiry upon the
third factor: “the prevailing market rates in the relevant
community for attorneys of reasonably comparable skill,
experience, and reputation.” Covington, 57 F.3d at 1107.
In the District of Columbia, a reasonable hourly rate for
complex federal litigation has traditionally been determined
through use of a matrix known as the “Laffey Matrix.” The
Laffey Matrix, which was developed 25 years ago in Laffey v.
Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1986), aff’d in
part and rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir.
1984), provides billing rates for attorneys in the Washington,
D.C. market with various degrees of legal experience.3 The
3
Specifically, the Laffey Matrix provides billing rates for
attorneys with 1-3 years of experience; 4-7 years of experience;
8-10 years of experience; 11-19 years of experience; and 20+
years of experience. These various “brackets” are intended to
correspond to “junior associates” (1-3 years after law school
9
initial Laffey Matrix was based upon the prevailing market rates
from 1981-1982. As discussed more fully below, two different
matrices have been used as proof of prevailing market rates in
complex federal litigation in the District of Columbia. “One
version, which is maintained by the Civil Division of the Office
of the United States Attorney, calculates the matrix rate for
each year by adding the change in the overall cost of living, as
reflected in the United States Consumer Price Index for the
Washington, D.C. area for the prior year, and then rounding that
rate to the nearest multiple of $5. A second, slightly
different version of the Laffey Matrix . . . calculates the
matrix rates for each year by using the legal services component
of the CPI rather than the general CPI on which the U.S.
Attorney’s Office Matrix is based.” Smith v. District of
Columbia, 466 F. Supp. 2d 151, 156 (D.D.C. 2006) (internal
quotation marks and abbreviations omitted).
The Circuit has advised that in order to demonstrate the
prevailing market rate:
[P]laintiffs may point to such evidence as an updated
version of the Laffey matrix or the U.S. Attorney’s
Office matrix, or their own survey of prevailing
market rates in the community. . . . To supplement
graduation), “senior associates” (4-7 years), “experienced
federal court litigators” (8-10 and 11-19 years), and “very
experienced federal court litigators” (20 years or more). See
Laffey, 572 F. Supp. at 371.
10
any matrix that has been offered, plaintiffs may also
provide surveys to update the matrix; affidavits
reciting the precise fees that attorneys with similar
qualifications have received from fee-paying clients
in comparable cases; and evidence of recent fees
awarded by the courts or through settlement to
attorneys with comparable qualifications handling
similar cases.
Covington, 57 F.3d at 1109. Once the plaintiff has put forward
his evidence, the burden falls upon the government to produce
“equally specific countervailing evidence” which demonstrates
that the plaintiff’s proposed hourly rate is “erroneous.” Id.(explaining that the government’s burden in rebuttal is not
without demand).
In this case, plaintiff argues for the alternative matrix,
which calculates the rate using the legal services component of
the CPI. Accordingly, plaintiff requests that Mr. Gura, Mr.
Neily, Mr. Levy, Mr. Healy, and Ms. Possessky be compensated at
a base rate of $589/hour (as each of these attorneys has 11-19
years of experience), and that Mr. Huff be compensated at the
base rate of $361/hour (as he has 4-7 years of experience).4
Plaintiff contends that these are the prevailing market rates
for attorneys engaged in complex federal litigation in the
Washington, D.C. area. As discussed below, plaintiff’s
4
“Years of experience” refers to the years following the
attorney’s graduation from law school. See Laffey, 572 F. Supp.
at 371.
11
principal support for his requested rates is a so-called
“updated” version of the Laffey Matrix, which was developed by
Dr. Michael Kavanaugh (the “Updated Laffey Matrix”). In further
support of his requested rates, plaintiff has provided the Court
with the National Law Journal’s 2009 law firm rate survey, a
declaration by a legal recruiter familiar with the Washington,
D.C. legal market, the standard billing rates of defense counsel
in this action, and citations to fee awards in other complex
cases.
In response, defendants assert that plaintiff’s requested
rates are “unreasonable”; that Dr. Kavanaugh’s matrix rests upon
“deficient methodology”; and that the appropriate rate for
compensating plaintiff’s counsel should be determined by
reference to the Laffey Matrix maintained by the Civil Division
of the Office of the United States Attorney (the “USAO Laffey
Matrix”). Defs.’ Opp’n at 6, 14. Pursuant to the USAO Laffey
Matrix, defendants contend that plaintiff’s counsel should be
compensated at the rates of $420/hour and $275/hour.5 It is
defendants’ position that “[t]he USAO Laffey Matrix reflects
prevailing market rates for representation in ‘complex federal
5
$420/hour is the rate yielded by the USAO Laffey Matrix for
attorneys with 11-19 years of experience, and $275/hour is the
rate yielded by that matrix for attorneys with 4-7 years of
experience.
12
litigation,’” and that Dr. Kavanaugh’s Updated Laffey Matrix “is
an inappropriate measure of rates both in this case and more
generally.” Defs.’ Opp’n at 7, 11. In support of this
argument, defendants have provided the Court with declarations
from economist Dr. Laura Malowane. The Court will explore these
arguments and the evidence proffered by each side, in turn,
beginning with a discussion of the parties’ competing matrices.
As noted above, the USAO Laffey Matrix determines hourly
rates for attorneys of varying experience levels by taking the
hourly rates contained in the original 1982 Laffey Matrix and
adjusting those rates for inflation based upon changes in the
Washington, D.C.-area Consumer Price Index (the “CPI”). See
supra at 10; see also Kavanaugh Decl. dated June 1, 2010, Docket
No. 63-2 ¶ 8. Dr. Kavanaugh’s Updated Laffey Matrix differs
from the USAO Laffey Matrix in two significant ways. First, Dr.
Kavanaugh uses the legal services component of the nationwide
CPI (the “Legal Services Index”) – as opposed to the general,
local CPI – to measure inflation. Kavanaugh Decl. dated June 1,
2010, Docket No. 63-2 ¶ 9. Second, Dr. Kavanaugh “applies the
specific legal services index to the more recent survey of rates
for the Washington D.C. metropolitan area developed in 1989 in
response to the remand decision in Save Our Cumberland
Mountains.” Kavanaugh Decl. dated June 1, 2010, Docket No. 63-2
13
¶ 9. As a result of these differences, plaintiff contends that
Dr. Kavanaugh’s approach yields a more accurate estimate of
current market rates than that of the USAO Laffey Matrix.
Plaintiff also directs the Court to Judge Kessler’s opinion
in Salazar v. District of Columbia, 123 F. Supp. 2d 8 (D.D.C.
2000) (“Salazar I”), in which that court found that Dr.
Kavanaugh’s Updated Laffey Matrix “more accurately reflects the
prevailing legal rates for legal services in the D.C. community”
than the USAO Laffey Matrix. Id. at 15. In reaching that
conclusion, the Salazar I court found that the Updated Laffey
Matrix had the “distinct advantage of capturing the more
relevant data because it is based on the legal services
component of the Consumer Price Index rather than the general
CPI on which the U.S. Attorney’s Office matrix is based.” Id.
at 14-15; see also Smith v. District of Columbia, 466 F. Supp.
2d 151, 156 (D.D.C. 2006) (Kessler, J.) (concluding that the
Updated Laffey Matrix was “more accurate” than the USAO Laffey
Matrix). It should be noted, however, that – unlike this case -
the defendants in Salazar I and Smith did not challenge the use
of the Updated Laffey Matrix.
Plaintiff further contends that survey data from the
National Law Journal corroborates the rates contained in Dr.
14
Kavanaugh’s matrix. Focusing on Washington, D.C.-based law
firms, plaintiff proffers the following rate data:
Firmwide Top Rate Avg. Median Top
Avg. Partner Partner Assoc.
Rates Rates Rates Rates
Arent Fox $755 $485
Dickstein $520 $950 $633 $630 $515
Hogan $540 $990 $675 $660 $550
McKenna $775 $471 $470
Patton $521 $990 $650 $625 $540
Boggs
Venable $457 $975 $556 $550 $450
Pl.’s Mot. at 29. Plaintiff asserts that “[w]hile these real
world rates are in line with the rates predicted by Dr.
Kavanaugh’s Updated Laffey Matrix, they are not remotely
reflected by the U.S. Attorney’s model. The USAO’s predicted
top rate for the absolutely most experienced attorneys in
Washington is exceeded by the average billing rate of lawyers in
at least three firms, and is within ten dollars of a fourth.”
Pl.’s Mot. at 29.6
In addition, plaintiff also submitted a declaration from
Robert Podgursky, a legal recruiter at Klein, Landau, Romm &
Schwartz. In his declaration, Mr. Podgursky states that he has
“reviewed the qualifications of Alan Gura, Clark Neily, Robert
6
The highest rate yielded by the 2010 USAO Laffey Matrix is
$475, which purportedly reflects the prevailing market rate for
attorneys with 20+ years experience who are engaged in complex
federal litigation.
15
Levy, Gene Healy, Tom Huff, and Laura Possessky, including their
educational background and work experience,” and avers that his
firm “could place all of these attorneys within top major law
firms, where they would command market billing rates . . . [of]
$500-900 an hour.” Podgursky Decl., Docket No. 63-9 ¶¶ 8-9.
Plaintiff also cites to the fee award in Miller v.
Holzmann, in which another member of this court approved rates
ranging from $625-$750/hour for senior partners at Wilmer Hale.
Pl.’s Reply at 5 (citing Miller, 575 F. Supp. 2d at 13).
Finally, plaintiff points to the standard billing rates for
the attorneys who provided pro bono services to the District of
Columbia in this litigation. Specifically, a pleading filed by
defendants indicates that the historical, 2007-2008 standard
billing rates for the attorneys who represented the District of
Columbia in this litigation were $640-$800/hour for attorneys
with 11-20 years of experience and $480/hour for attorneys with
4-7 years of experience. See Docket No. 79, Notice of Filing.
Plaintiff asserts that these historic rates provide further
support for the reasonableness of his proposed hourly rates -
$589/hour and $361/hour. See Pl.’s Supp. Br., Docket No. 80.
Defendants respond by urging the Court to reject
plaintiff’s proposed rates, and instead argue that “[t]he
appropriate rate for compensating plaintiff should be
16
established by reference to the [USAO Laffey] Matrix, which is
the presumptive rate in this jurisdiction for complex federal
litigation.” Defs.’ Opp’n at 6. Defendants maintain that “most
local court decisions on attorneys’ fees have applied the USAO
Laffey matrix, specifically rejecting Kavanaugh’s approach.”
Defs.’ Opp’n at 12 (citing cases); see also, e.g., Miller, 575
F. Supp. 2d at 17-18 (noting that “[Dr.] Kavanaugh's alternative
methodology has achieved only limited acceptance in this
District”). In support of this assertion, defendants direct the
Court to Chief Judge Lamberth’s opinion in Miller v. Holzmann,
in which that court awarded fees at USAO Laffey Matrix rates
based upon its determination that Dr. Kavanaugh’s Updated Laffey
Matrix lacked the requisite “geographic specificity” due to its
reliance on the national Legal Services Index. 575 F. Supp. 2d
at 17-18.
Defendants also argue that “the reasoning underlying the
Kavanaugh matrix is deficient and does not justify the requested
departure.” Defs.’ Opp’n at 14. In support of this assertion,
defendants have proffered the declaration of Dr. Laura A.
Malowane.7 Dr. Malowane maintains that Dr. Kavanaugh’s Updated
7
The declaration of Dr. Malowane that defendants submitted
in this case was originally filed in Norden v. Clough, Case No.
05-1232 (D.D.C.) (Collyer, J.). Dr. Malowane, however,
submitted a supplemental declaration in this case, which states
that her conclusions in the Norden case are applicable in this
17
Laffey Matrix should be rejected for several reasons, including
that “[t]he US Legal Index is a nationwide average index and not
specific to the Washington, D.C. metropolitan region” and that
“[t]he US Legal Index is for flat-fee services rather than
hourly rates.” Malowane Decl. dated Aug. 11, 2009, Docket No.
64-4 ¶ 12. Based upon these and other purported deficiencies,
Dr. Malowane concludes that the USAO Laffey Matrix is more
appropriate than the Updated Laffey Matrix for determining
attorneys’ fees in cases involving complex federal litigation in
the Washington, D.C. area. See Malowane Decl. dated July 9,
2010, Docket No. 64-4 ¶ 4.
In further support of their argument regarding the
unreasonableness of plaintiff’s proffered rates, defendants
argue that “plaintiffs in this case were represented by an
extremely small firm, and as various courts and Dr. Malowane
recognize, small firms typically charge less than large firms.”
Defs.’ Opp’n at 16; see Malowane Decl. dated Aug. 11, 2009,
Docket No. 64-4 ¶¶ 33, 37 (explaining, among other things, that
case as well. See Malowane Decl. dated July 9, 2010, Docket No.
64-4, ¶ 4 (“My analysis, and subsequent conclusions, in Norden
v. Clough are not limited to the facts of that specific case. In
particular, my conclusion that the USAO Laffey Matrix is more
appropriate than the Salazar Matrix for determining attorneys’
fees is applicable to many types of cases, including those that
involve complex federal litigation within the Washington, DC
area.”); Malowane Decl. dated July 9, 2010, Docket No. 69-1, ¶ 6
(“The conclusions I reached in the Norden Final Affidavit remain
true and correct, and I incorporate and adopt them herein.”).
18
small law firms do not have the same overhead as larger firms
and that, as a result, attorneys at small firms may be able to
offer services at lower fees than those at their larger firm
counterparts; observing that “[i]n general, law firm billing
rates increase with the size of the firm”). Defendants further
contend that “[c]ounsel here simply assume that they should be
paid the same amount as big-firm partners in the private world,
but . . . nothing justifies that assumption. Lawyers at small
firms typically earn less than lawyers at larger firms.” Defs.’
Opp’n at 17.
Finally, defendants attack the rate data offered by
plaintiff as unreliable. First, with regard to the National Law
Journal survey, defendants argue that “these rates ‘are
misleading and should not be used for comparison purposes’
because they ‘reflect nominal billing rates and not realized
rates (i.e., the amount actually collected divided by the hours
actually expended on the work).’” Defs.’ Opp’n at 18 (quoting
Malowane Decl. ¶ 36). Defendants further maintain that
“[b]ecause small firms typically charge less than large firms, a
survey of the nation’s largest firms would therefore be
valueless even if it were otherwise reliable.” Defs.’ Opp’n at
19. Second, with regard to the standard billing rates of
defense counsel, defendants argue that this data is irrelevant,
19
because, among other reasons: (i) “the rates of large firms are
not an appropriate benchmark because lead counsel’s firm has
only two lawyers, and small firms routinely charge less than big
firms”; and (ii) “the standard rates of pro bono counsel [] do
not reflect what would have been required to incentivize even a
large firm to take this case” because “in Supreme Court
litigation, the firms frequently charge significantly lower than
their highest rates or use alternative fee arrangements because
of the reputational and professional opportunities those cases
offer to the firms and the involved lawyers.” Defs.’ Opp’n to
Pl.’s Supp. Br., Docket No. 81, at 2, 4.
Plaintiff urges the Court to reject these arguments.
First, with respect to defendants’ claims that the USAO Laffey
Matrix is the “presumptive rate” for complex federal litigation
in this jurisdiction, Defs.’ Opp’n at 6, plaintiff contends that
“Covington specifically instructs that the U.S. Attorney’s
matrix is to be afforded the same consideration as any other
updated Laffey Matrix or a party’s own survey” and argues that
it would be “error to refuse consideration of any rate evidence,
on the presumptive assumption that the government’s matrix is
20
controlling.” Pl.’s Mot. at 27 (citing Covington, 57 F.3d at
1109).8 Next, in response to defendants’ economic arguments,
plaintiff provided detailed rebuttal declarations from Dr.
Kavanaugh. See Kavanaugh Decl. dated July 25, 2010, Docket No.
67-1, and Kavanaugh Decl. dated Aug. 25, 2010, Docket No. 70-1.9
8
Plaintiff also disputes the characterization of the USAO
Laffey Matrix as “the standard rate,” arguing, instead, that the
USAO Laffey Matrix “is nothing more than ‘a concession by that
office of what it will deem reasonable when a fee-shifting
statute applies and its opponent prevails and seeks attorneys’
fees.’” Pl.’s Mot. at 27 (quoting Adolph Coors Co. v. Truck
Ins. Exch., 383 F. Supp. 2d 93, 98 (D.D.C. 2005)). Despite
plaintiff’s argument, courts in this district have nevertheless
referred to the USAO Laffey matrix as “the standard Laffey
Matrix.” American Lands Alliance, 525 F. Supp. 2d at 149; see
also case cited infra 30-31.
9
Plaintiff also filed a separate motion to strike the
affidavit of Dr. Malowane. See Docket No. 66. Plaintiff’s
principal objection to the affidavit of Dr. Malowane concerns
her reliance on an “undisclosed study called ‘Survey of Law Firm
Economics, 2008 Edition’” and “an unpublished study that it
appears she herself has not even reviewed.” Pl.’s Mot. to
Strike at 1; see also Pl.’s Reply at 1 (“Contrary to the
Defendants’ assertion, Plaintiff has no problem with the Court
considering admissible portions of [the submissions of Dr.
Malowane]. What Plaintiff objects to is the Defendants’
reliance, through Dr. Malowane, on undisclosed (or, what is much
the same thing, untimely and insufficiently disclosed) data that
Plaintiffs have not had an appropriate opportunity to
evaluate.”). Having carefully considered the motion, the
opposition and reply thereto, as well as the supplemental
declarations of Dr. Malowane and Dr. Kavanaugh, the Court finds
that plaintiff has not shouldered the “formidable burden”
necessary to support a motion to strike. United States ex. rel.
Hockett v. Columbia/HCA Healthcare Corp., 498 F. Supp. 2d 25,
34-35 (D.D.C. 2007) (explaining that motions to strike are
generally viewed with disfavor). The Court further finds that
the deficiencies identified by plaintiff in his motion to strike
21
With respect to defendants’ critiques regarding plaintiff’s
reliance on the National Law Journal Survey, plaintiff notes
that the survey is “routinely cited by courts in this district
and others.” Pl.’s Reply at 5 (citing cases). Finally, on the
issue of the standard billing rates of defense counsel in this
case, plaintiff maintains that “the rates charged by the very
lawyers who opposed Plaintiff’s counsel are certainly relevant
in determining how the local market values work of the kind they
performed in this case.” Pl.’s Reply to Defs.’ Supplemental
Br., Docket No. 82, at 1.
Having carefully considered the parties’ arguments, the
Court concludes that plaintiff has failed to provide the Court
with sufficient evidence to support the extraordinary rates of
$589/hour and $361/hour. Specifically, as explained below, the
Court finds that plaintiff has not carried his burden to
establish that the rates he is requesting are “the prevailing
market rates in the relevant community for attorneys of
reasonably comparable skill, experience, and reputation.”
Covington, 57 F.3d at 1108.
First, with regard to the parties’ dispute over the
accuracy of their competing matrices, the Court finds that
go to the weight to be given to Dr. Malowane’s testimony, not
its admissibility. Accordingly, plaintiff’s motion to strike is
DENIED.
22
“[n]either index is perfect.” Pl.’s Reply at 6. As plaintiff
admits: “The [D.C.] CPI offers geographic specificity but is
based almost entirely on goods and services other than legal
work, while the Legal Services Index offers specificity as to
industry but not geography.” Pl.’s Reply at 6. In an effort to
determine the prevailing market rate, the Court will use the
rates contained in the widely accepted USAO Laffey Matrix as the
“starting point” for its analysis. See Covington, 57 F.3d at
1109 (explaining that “fee matrices are somewhat crude,” and
that, as a result, they merely provide courts with “a useful
starting point” in determining the prevailing market rate). See
also cases cited infra 30-31. Further, the Court is not
persuaded that the additional evidence proffered by plaintiff
demonstrates that the rates contained in the Updated Laffey
Matrix are in line with the prevailing hourly rates for
attorneys engaged in complex federal litigation in the District
of Columbia.
As discussed above, in support of the Updated Laffey Matrix
rates, plaintiff has provided the Court with (i) survey data
from the National Law Journal; (ii) the declaration of a legal
recruiter familiar with the Washington, D.C. legal market;
(iii) a citation to the fee award in Miller v. Holzmann; and
(iv) the standard billing rates of opposing counsel in this
23
litigation. Having carefully considered this evidence, the
Court finds that these materials – which are based upon the
rates typically charged by practitioners at the largest law
firms in the District of Columbia - fail to establish that
plaintiff’s requested rates are, in fact, the prevailing market
rates for attorneys engaged in complex federal litigation
outside of the “big firm” context.
The National Law Journal survey, for instance, only
examines the rates of the nation’s 250 largest law firms, which
range in size from 392 to 1092 attorneys. See Defs.’ Opp’n at
19. The Court finds this data largely inapposite because none
of plaintiff’s attorneys practice at large law firms; indeed,
plaintiff’s lead counsel is a principal at a two-partner law
firm. See Malowane Decl. dated Aug. 5, 2010, Docket No. 69-1
¶ 14 (stating that it would be “misleading” to use the rates of
the “largest 250 firms in the nation to determine attorney fees
in this case” because, among other reasons, “small and medium
firms may be able to offer services at lower fees than those at
their larger firm counterparts”). The declaration of legal
recruiter Robert Podgursky similarly focuses upon the market
billing rates at “top major law firms,” and his ability to place
plaintiff’s counsel at such firms. Docket No. 63-9, Podgursky
Decl. ¶¶ 8. The fee award principally relied upon by plaintiff,
24
see Pl.’s Reply at 5, also involves the standard billing rates
for senior partners at a “large, international law firm.”
Miller, 575 F. Supp. 2d at 12 (discussing the standard billing
rates of senior partners at Wilmer Hale; finding that the
relator established that Wilmer Hale’s established billing rates
were consistent with the rates charged by partners at “other
large, D.C. litigation firms”). Finally, although this Court
previously recognized that the standard billing rates of defense
counsel in this action were potentially relevant to plaintiff’s
fee petition, see generally March 24, 2011 Hearing Transcript,
the Court now concludes that this evidence is also of limited
utility because, among other things, the law firms that gave pro
bono assistance to defendants in this case are all large law
firms.10
10
Although defendants repeatedly argue that plaintiff is not
entitled to look to “big firm” rates in support of his requested
rates, see, e.g., Defs.’ Supp. Br., Docket No. 81 at 1; Defs.’
Post-Hearing Br., Docket No. 77 at 2, the Court finds this
argument overly simplistic. Data regarding the rates typically
charged by large law firms in the District of Columbia is
certainly relevant to the Court’s inquiry regarding “the
prevailing market rates in the relevant community for attorneys
of reasonably comparable skill, experience, and reputation.”
Covington, 57 F.3d at 1108. It is not, however, the only (or
most) relevant data. To be clear, therefore, the Court is not
troubled by the fact that plaintiff has proffered data regarding
the rates of some of the largest law firms in the District of
Columbia; instead, the Court is troubled by the fact that
plaintiff only relies upon the rates of the largest law firms in
the District of Columbia when none of plaintiff’s attorneys are
employed at large law firms.
25
Ultimately, therefore, this Court is simply not convinced
that plaintiff has demonstrated that the high rates he is
requesting are the prevailing market rates for attorneys
performing complex federal litigation other than those
practicing law at the District of Columbia’s largest law firms.
Indeed, the rate requested by plaintiff for five of his
attorneys - $589/hour – is consistent with the average partner
rates at large law firms such as Dickstein Shapiro and Venable.
See supra at 15.
Absent from plaintiff’s evidentiary record are the rates
typically charged by attorneys at small or boutique law firms in
the District of Columbia who perform the type of complex federal
litigation at issue in this case.11 The Court finds this
evidentiary gap significant because “[t]he market generally
accepts higher rates from attorneys at firms with more than 100
lawyers than from those at smaller firms -- presumably because
of their greater resources and investments, such as attorneys,
11
For instance, in Miller v. Holzmann, the relator submitted
declarations from senior partners at two “large, international
law firm[s]” in the District of Columbia to demonstrate that the
rates requested by his attorneys from Wilmer Hale were “within
the range of prevailing market rates charged by large law firms
in the District of Columbia for lawyers and paralegals of
similar experience and qualifications.” 575 F.2d at 12
(emphasis added).
26
librarians, researchers, support staff, information technology,
and litigation services.” Wilcox v. Sisson, No. 02-1455, 2006
U.S. Dist. LEXIS 33404, at *8 (D.D.C. May 25, 2006). Indeed, as
a result of these overhead costs, “[c]ourts have recognized that
the size of the firm representing a plaintiff seeking attorney’s
fees is a factor in determining a reasonable attorney’s fee[.]”
Tlacoapa v. Carregal, 386 F. Supp. 2d 362, 369-70 (S.D.N.Y.
2005) (citing Chambless v. Masters, Mates & Pilots Pension Plan,
885 F.2d 1053, 1058-59 (2d Cir. 1989)) (declining to award the
rates requested by the plaintiff’s small-firm practitioners,
where the requested rates were “usually reserved for attorneys
in larger law firms”); see also, e.g., Saunders v. Salvation
Army, No. 06-2980, 2007 U.S. Dist. LEXIS 22347, at *12-13
(D.D.C. March 27, 2007) (declining to award large-firm rates to
a small non-profit organization; explaining that because “the
Center does not incur the same overhead costs that burden a
large law firm . . . the rates charged by its attorneys cannot
approximate those charged by attorneys in large New York City
law firms); Algie v. RCA Global Communication, Inc., 891 F.
Supp. 875, 895 (S.D.N.Y. 1994) (“If the movant is represented by
a small or medium-size firm, the appropriate rates are those
typically charged by such firms, whereas a movant may obtain
higher compensable rates if represented by a large urban firm,
27
since such firms typically charge more per hour to cover a
higher overhead.”), aff'd, 60 F.3d 956 (2d Cir. 1995); see also
Malowane Decl. dated Aug. 5, 2010, Docket No. 69-1 ¶ 14 (“It is
well recognized that firms use such factors as firm size to set
rates. Small and medium law firms presumably do not have the
same overhead as larger firms and, as a result, attorneys at
small and medium firms may be able to offer services at lower
fees than those at their larger firm counterparts. Similarly,
larger multiregional or multinational firms may be able to
command higher fees due to, among other reasons, an offering of
more services, having a better national or international
reputation, or being located in a higher rent and higher profile
area of the region. Limiting the comparison, as plaintiff has
done, to the largest firms in the nation will not provide an
accurate indication of comparable market rates for firms in the
Washington, DC area.”).12
12
While Dr. Kavanaugh provided detailed declarations in
response to the affidavits of Dr. Malowane, the Court finds it
significant that he did not dispute Dr. Malowane’s assertions
regarding the impact that firm size may have on an attorney’s
hourly rate or her statements regarding the ability of attorneys
at small and medium size firms to offer services at lower rates
than those attorneys at their larger firm counterparts. See
generally Kavanaugh Decl. dated Aug. 25, 2010, Docket No. 70-1;
Kavanaugh Decl. dated July 25, 2010, Docket No. 67-1; see also
Queen Anne’s Conservation Ass’n v. Dep’t of State, Case No. 10-
0670, 2011 U.S. Dist. LEXIS 88963, at *14 (D.D.C. Aug. 3, 2011)
(declining to use the rates contained in the Updated Laffey
28
Therefore, in light of the “special caution” courts must
exercise when reviewing fee petitions to be paid by the
government, Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co.,
743 F.2d 932, 941-42 (D.C. Cir. 1984),13 and because this Court
is charged with “‘fixing the prevailing hourly rate in each
particular case with a fair degree of accuracy[,]’” id. (quoting
Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d
1319, 1325 (D.C. Cir. 1982)), the 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.
4. Determination of Reasonable Rate
Having found that plaintiff failed to carry his burden to
establish the reasonableness of his requested rates, Covington,
57 F.3d at 1107, the Court will exercise its discretion to
Matrix where “the declaration offered by Defendants in support
of their argument that the ‘updated’ Laffey matrix may not
accurately represent prevailing market rates for small firm
lawyers in the District of Columbia area . . . [was] largely
unrebutted”).
13
This special caution stems from “the incentive” that a
government’s “‘deep pocket’ offers to attorneys to inflate their
billing charges and to claim far more as reimbursement then
would be sought or could reasonably be recovered from private
parties.” Eureka, 743 F.3d at 941-42.
29
determine a reasonable hourly rate for plaintiff’s counsel. As
discussed above, “a ‘reasonable’ fee is a fee that is sufficient
to induce a capable attorney to undertake the representation of
a meritorious civil rights case,” Perdue, 130 S. Ct. at 1672; it
is a rate that is “adequate to attract competent counsel, but
that does not produce windfalls to attorneys.” Blum, 465 U.S.
at 897 (ellipsis, brackets, and internal quotation marks
omitted).
After a careful review of the evidence in this case, the
Court concludes – with the exception of one attorney – that
plaintiff’s counsel should be compensated at the rates produced
by the USAO Laffey Matrix. While the Court readily acknowledges
the shortcomings of relying upon a fee matrix, see supra at 22
(finding that neither of the parties’ proposed matrices were
perfect), the rates produced by the USAO Laffey Matrix are
frequently awarded to attorneys engaged in complex federal
litigation in this district. See Miller v. Holzmann, 575 F.
Supp. 2d at 18 n.29 (“Due to its widespread acceptance, this
matrix has been aptly described as ‘the benchmark for reasonable
fees in this Court.’” (citing cases)); American Lands Alliance,
525 F. Supp. 2d at 149 (listing “numerous cases in which members
of this Court have endorsed the [USAO] Laffey Matrix”); see
also, e.g., Citizens for Responsibility & Ethics v. Dep’t of
30
Justice, No. 10-750, 2011 U.S. Dist. LEXIS 133962, at *4-5
(D.D.C. Nov. 21, 2011) (awarding fees pursuant to the USAO
Laffey Matrix); Queen Anne’s Conservation Ass’n, 2011 U.S. Dist.
LEXIS 88963, at *14 (same); Covad Communs. Co. v. Revonet, Inc.,
267 F.R.D. 14, 31-32 (D.D.C. 2010) (same); Friends of Animals v.
Salazar, 696 F. Supp. 2d 16, 20 (D.D.C. 2010) (same). The Court
finds the frequency with which the USAO Laffey Matrix rates are
applied to be strong evidence of both their prevalence and their
reasonableness.14 The Court further finds that the rates
produced by this matrix are consistent with the goals of § 1988.
See Perdue, 130 S. Ct. at 1673 (“Section 1988’s aim is to
enforce the covered civil rights statutes, not to provide ‘a
form of economic relief to improve the financial lot of
attorneys.’”). The Court concludes, therefore, that Mr. Gura,
Mr. Neily, Mr. Levy, Mr. Healy, Ms. Possessky, and Mr. Huff
14
The Court will also note that the rates yielded by the USAO
Laffey Matrix are roughly 29% less than the rates requested by
plaintiff (i.e., the rates produced by the Updated Laffey
Matrix). As discussed above, the evidence that plaintiff
proffered in support of his requested rates were based upon the
rates typically charged by the largest law firms in the District
of Columbia. The reduced rates yielded by the USAO Laffey
Matrix are consistent, therefore, with the reductions that are
frequently made by courts in the Southern District of New York
when small-firm practitioners request compensation at large-firm
rates. See Defs.’ Post-Hearing Br. at 2 (explaining that courts
in the Southern District of New York routinely reduce the fees
paid to small firm practitioners by 25-33%).
31
should be compensated at the applicable USAO matrix rate.
Accordingly, each of these attorneys shall be compensated at a
base rate of $420/hour (as a result of their 11-19 years of
relevant legal experience), with the exception of Mr. Huff, who
shall be compensated at the base rate of $275/hour (as a result
of his 4-7 years of relevant legal experience).
The Court is not, however, convinced that Mr. Levy is
entitled to the applicable USAO Laffey Matrix rate. Unlike the
other attorneys in this case, Mr. Levy has no litigation
experience. While Mr. Levy’s declaration reflects an impressive
career, the Court is not persuaded, see supra note 3, that an
individual with no litigation experience can command a rate
reserved for “‘experienced federal court litigators.’” See
supra at 9 n.4 (quoting Laffey, 572 F. Supp. at 371). The
Court, therefore, will exercise its discretion to reduce the
USAO Laffey Matrix rate applicable to Mr. Levy by 25%. See
Falica, 384 F. Supp. 2d at 75 (explaining that a Court must
adjust the requested rate “upward or downward to arrive at a
final fee award that reflects the characteristics of the
particular case (and counsel) for which the award is sought”).
Accordingly, Mr. Levy will be compensated at the base rate of
$ 315/hour.
32
B. Number of Hours
Next, the Court must determine “the number of hours
reasonably expended on the litigation.” Hensley, 461 U.S. at
433. To enable the Court to make this determination, the party
seeking an award of fees must submit evidence supporting the
hours worked and the rates claimed. Id. “A ‘fee application
need not present the exact number of minutes spent[,] nor the
precise activity to which each hour was devoted[,] nor the
specific attainments of each attorney.” Miller, 575 F. Supp. 2d
at 21 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of
Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)). The petition must,
however, “be sufficiently detailed to permit the District Court
to make an independent determination whether or not the hours
claimed are justified.” Concerned Veterans, 675 F.2d at 1327.
“Where the documentation of hours is inadequate, the district
court may reduce the award accordingly.” Hensley, 461 U.S. at
433.
In this case, plaintiff’s counsel claim 3,270.2 hours of
work over six years. In support of this request, plaintiff
submitted detailed billing records for each of his attorneys,
and requests the following number of billable hours: Mr. Gura:
1,661 hours; Mr. Neily: 808.3 hours; Mr. Levy: 595.6 hours; Mr.
Huff: 153.6 hours; Mr. Healy: 33.7 hours; and Ms. Possessky: 18
33
hours. Pl.’s Mot. at 5. Plaintiff asserts that the hours
billed by his counsel are documented and “eminently reasonable,”
explaining that “[t]he total hours sought by counsel for
litigating a case of this magnitude and complexity – less than
3,300 – is extremely low, reflecting careful billing judgment
and, to Defendants’ benefit, the relatively high efficiency
nature of counsel’s practice.” Pl.’s Mot. at 9, 11.
Defendants dispute this contention and raise a number of
challenges to the billing records of plaintiff’s counsel. In
particular, defendants contend that the number of hours expended
by plaintiff’s counsel should be reduced because of
(i) reconstructed timesheets; (ii) vague and inadequately
documented billing entries; (iii) block billing; (iv)
uncompensable items; (v) excessive hours; (vi) unsuccessful
claims; and (vii) lack of billing judgment. Defs.’ Opp’n at 28-
40. Due to these purported deficiencies, defendants request
that certain entries be discounted or excluded in their entirety
and further argue for two across-the-board reductions. The
Court will discuss defendants’ objections in turn.
1. Reconstructed Timesheets
The first defect identified by defendants is reconstructed
timesheets. Specifically, defendants note that three of
plaintiff’s six attorneys – including two of its top billers –
34
failed to keep contemporaneous time records, and, instead,
provided the Court with reconstructed timesheets. See Defs.’
Opp’n at 30; see also Pl.’s Mot. at 5 (noting that Mr. Neily,
Mr. Levy, and Mr. Healy “largely reconstructed their time”).
Plaintiff has provided the Court with no explanation for this
defect nor explained to the Court how his attorneys
reconstructed their time.15 The Court finds this defect deeply
troubling.
The D.C. Circuit has clearly stated that “[a]ttorneys who
anticipate making a fee application must maintain
contemporaneous, complete and standardized time records which
accurately reflect the work done by each attorney.” Concerned
Veterans, 675 F.2d at 1327. The Circuit has further warned that
“[c]asual after-the-fact estimates of time expended on a case
are insufficient to support an award of attorneys’ fees.” Id.;
see also Kennecott Corp. v. Envtl. Prot. Agency, 804 F.2d 763,
767 (D.C. Cir. 1986) (“[C]ontemporaneous time charges should be
filed with the motion for attorneys’ fees as a matter of course,
and certainly should be provided once legitimate questions are
raised by the opposing party.”).
15
The Court will note, however, that during oral argument Mr.
Neily explained that he reconstructed his timesheets using e-
mails to co-counsel. See Dec. 13, 2010 Hearing Tr. at 90:4-19.
The Court has been provided with no such explanation as to
either Mr. Levy or Mr. Healy.
35
While the Court does not find a complete disallowance of
fees to be warranted in this case, cf. In re North, 32 F.3d 607,
608-09 (D.C. Cir. Spec. Div. 1994), the Court nevertheless
concludes that it is appropriate to reduce the number of hours
requested by Mr. Neily, Mr. Levy, and Mr. Healy by 10% in order
to account for any inaccuracies or overbilling that may have
occurred as a result of these attorneys’ unacceptable
timekeeping practices.
2. Vague and Inadequately Documented Billing Entries
Defendants next argue that plaintiff’s fee award should be
reduced by 15% as a result of purportedly vague and inadequately
documented billing entries. For the reasons discussed below,
the Court declines to impose the requested across-the-board
reduction. Instead, the Court finds that the number of billable
hours attributable to Mr. Levy should be reduced by 25% as a
result of the vague and inadequate descriptions contained in his
timesheets.
Defendants identify numerous areas in which plaintiff’s
billing records are purportedly vague or undetailed. See Defs.’
Opp’n at 30-34. In particular, focusing upon the billing
records of Mr. Levy and Mr. Neily, defendants argue that
“[c]ounsels’ entries do not satisfy their burden of establishing
the reasonableness of the fee request, because the supporting
36
documentation is not ‘of sufficient detail and probative value
to enable the court to determine with a high degree of certainty
that such hours were actually and reasonably expended[.]’”
Defs.’ Opp’n at 30-31 (quoting Role Models v. Brownlee, 353 F.3d
962, 970 (D.C. Cir. 2004)). Plaintiff, in turn, accuses
defendants of “flyspecking,” Pl.’s Reply at 13, and asserts that
“the Plaintiff’s billing records in this case make clear how
much time was spent on which activities for what purpose, and
thus – ‘when viewed by an individual with knowledge of the case,
and in light of the surrounding entries,’ - provide ample
support for the total hours claimed.” Pl.’s Reply at 14
(internal citation omitted).
Having carefully reviewed the billing records of
plaintiff’s counsel, the Court finds those records – with the
exception of the reconstructed timesheets of Mr. Levy – to be
sufficiently detailed to allow the Court to “make an independent
determination whether or not the hours claimed are justified.”
Concerned Veterans, 675 F.2d at 1327. The Court therefore
concludes that an across-the-board reduction of 15% is
unwarranted.
With respect to the billing records submitted by Mr. Levy,
however, the Court finds that these records contain a large
number of extremely vague entries. For example:
37
06/26 2.5 Review cases
06/28 3.0 Review literature
06/30 2.0 Review literature
07/03 4.0 Review literature
07/06 3.0 Review DC laws
07/08 3.5 Review cases
07/11 3.0 Review cases
08/15 0.5 Email w/[Clark Neily] (CN)
12/09 0.5 Phone w/Alan Gura (AG)
12/11 1.0 Email w/AG
12/26 0.1 Email w/AG
01/06 0.2 Email w/AG
01/08 0.1 Email w/AG
01/23 0.5 Emails w/AG & CN
Pl.’s Ex. 4, Docket No. 63-13 at 1. While extremely detailed
billing entries are not required in this Circuit, the Court
finds that many of Mr. Levy’s entries fail to provide the Court
with the minimum level of detail needed for meaningful analysis.
See, e.g., Role Models, 353 F.3d at 971 (explaining that
“generic entries” in which attorneys “billed simply for
‘research’ and ‘writing,’ or for time spent in teleconferences
or meetings . . . the purposes of which are not provided” are
“inadequate to meet a fee applicant’s heavy obligation to
present well-documented claims”) (internal quotation marks
omitted); Michigan v. Envtl. Prot. Agency, 254 F.3d 1087, 1095
(D.C. Cir. 2001) (“There are, in particular, numerous entries
concerning meetings and conferences that, although they include
information concerning the identities of the individuals
involved, are nevertheless devoid of any descriptive rationale
for their occurrence. Therefore, as we have done in similar
38
circumstances in the past, after all other deductions have been
taken we will make a further deduction of 10% of the remaining
billings.”); Miller, 575 F. Supp. 2d at 36 (finding that
counsel’s time records were “simply rife with ambiguous and
nugatory entries” such as “reviewing and analyzing issues re
strategy” and “preparing for trial,” and concluding that the
ambiguity of counsel’s time entries warranted an across-the-
board reduction of 10%). Accordingly, and in lieu of an across-
the-board reduction, the Court concludes that the number of
billable hours attributable to Mr. Levy should be reduced by
25%.
3. Block Billing
Third, defendants argue that plaintiff’s fee petition
should be reduced due to purported block-billing. See Defs.’
Opp’n at 34-35. The Court disagrees.
Although some of counsel’s entries do, in fact, “lump
together multiple tasks,” Role Models, 353 F.3d at 971, the
Court nevertheless concludes that a reduction on this basis is
not warranted given (i) the infrequency with which such entries
occur, as well as (ii) the overall reasonableness of the time
requested in the few instances in which multiple tasks were
grouped together. See, e.g., Smith, 466 F. Supp. 2d at 158
39
(declining to reduce a fee petition for block-billing where “the
use of such entries in [the] case was not unduly excessive”).
4. Non-compensable Items
Defendants also identify several entries that are
purportedly non-compensable. See Defs.’ Opp’n at 35-36.
Specifically, defendants object to the time spent by plaintiff’s
counsel on the following activities: (i) “time spent in
discussion with the press”; (ii) time spent recruiting potential
plaintiffs; (iii) time spent drafting the motion to recuse
Seegar’s counsel and in opposition to consolidation (on which
defendants took no position); (iv) time spent “correct[ing] [an]
appendix because of counsel error”; (v) time spent attending a
symposium; (vi) time spent in discussion with the NRA regarding
pending legislation; and (vii) time spent preparing a response
to the District’s petition for rehearing at the Circuit. Defs.’
Opp’n at 35-36 (internal quotation marks omitted).
As a threshold matter, the Court will note that with the
exception of one issue (communications with the press),
defendants have failed to provide the Court with any legal
reasoning or authority to explain why these entries are non-
compensable. Instead, defendants simply request that the
entries be struck from the fee calculation. See Defs.’ Opp’n at
36. Plaintiff, in turn, provides a similarly generalized
40
response, arguing that “[t]he tasks nit-picked by Defendants
were all reasonably pursued by counsel” and that it would be
“needlessly tedious to address each and every item on
Defendants’ target list.” Pl.’s Reply at 16. Despite the
parties’ sparse briefing on these issues, the Court has
nevertheless closely reviewed the specific entries to which
defendants object, and, for the reasons discussed below,
concludes that the following entries are non-compensable:
(i) time spent correcting an appendix because of counsel error;
(ii) time spent in discussion with the NRA regarding pending
legislation; (iii) time spent attending a symposium; and
(iv) time spent preparing a response to the District’s petition
for rehearing by the Circuit. The time allocated to these
activities will therefore be struck from plaintiff’s fee
petition. The Court declines, however, to strike the remaining
activities identified by defendants.
First, although defendants are correct that “the government
cannot be charged for time spent in discussions with the press,”
Role Models, 363 F.3d at 973, plaintiff’s billing records do not
reflect any such discussions. Indeed, defendants’ opposition
brief misstates what is contained in plaintiff’s billing
records. Specifically, defendants’ opposition brief states that
“attorney Gura listed ‘Reading Legal Times and contacting NPR,
41
0.3 hours’ for 12/16 & 12/26/02.” Defs.’ Opp’n at 35-36. Mr.
Gura’s billing records, however, contain only the following
entries for the dates in dispute: “Review Legal Times article,
0.2 hours” for 12/16/02 and “Email to R. Levy re: NPR, 0.1
hours” for 12/26/02. Pl.’s Ex. 2, Docket No. 63-11 at 1.
Because counsel’s billing records do not contain the conduct
complained of by defendants, the Court finds this objection
misplaced.
Next, defendants object to the 3.8 hours plaintiff’s
counsel purportedly spent “recruiting potential plaintiffs.”
Defs.’ Opp’n at 36. Defendants cite no authority, however, for
the proposition that such limited time is not compensable,
particularly in the context of public impact litigation. The
Court therefore declines to strike this time from the petition.
Cf. Tax Analysts v. IRS, No. 94-923, 1996 U.S. Dist. LEXIS
22115, at *5 n.3 (D.D.C. May 30, 1996) (rejecting the
government’s argument that fees incurred before the complaint
was filed are not compensable).
Defendants’ third objection relates to the time that
plaintiff’s counsel spent drafting “the motion to recuse Seegars
counsel and in opposition to consolidation (on which the
District took no position).” Defs.’ Opp’n at 36. It is unclear
to the Court why defendants believe this time is not
42
compensable. As plaintiff explains in his reply brief, “even if
Defendants took no position on the motion to consolidate this
case with Seegars v. District of Columbia, this Court agreed
with counsel that the consolidation motion should be denied lest
it make the case unmanageable.” Pl.’s Reply at 16. The Court,
therefore, also declines to strike this time from the fee
petition.
The Court agrees with defendants, however, that four of the
requested tasks were inappropriately billed to the District.
First, the Court finds that the .5 hour that Mr. Gura spent
“correcting an appendix because of counsel error” is not
compensable. See, e.g., Summers v. Howard Univ., No. 98-2692,
2006 U.S. Dist. LEXIS 95853, at *33 (D.D.C. March 20, 2006)
(disallowing the time that counsel spent correcting errors to a
pleading that was previously filed); Brown v. Pro Football, 839
F. Supp. 905, 917 (D.D.C. 1993) (same). The Court further finds
that the 4.4 hours that Mr. Levy spent “in discussion with the
NRA regarding pending legislation” was not properly billed to
the District. Cf. In re Theodore B. Olson, 884 F.2d 1415, 1429
(D.C. Cir. 1989) (disallowing fees associated with lobbying
efforts). Nor was the three hours that Mr. Gura spent attending
a symposium on “2nd Amendment jurisprudence.” See Pl.’s Ex. 2,
Docket No. 63-11 at 47. Finally, in view of Rule 35(e) of the
43
Federal Rules of Appellate Procedure, which specifically
prohibits the filing of a response to a petition for en banc
consideration (absent court order), the Court concludes that
counsel’s time spent preparing such a response – which was never
requested by nor filed with the Circuit Court - is not
compensable. Cf. Martini v. Fannie Mae, 977 F. Supp. 482, 488
(D.D.C. 1997) (striking time from a fee petition that was spent
on a motion that was not filed). The Court will therefore
deduct the time billed for those activities from plaintiff’s
petition.
5. Excessive Hours
Defendants further allege that there are “a number of
entries that evidence excessive effort on individual tasks,” and
argue that the hours claimed for these tasks should be reduced
by 50%. Defs.’ Opp’n at 36-38. Some of the excessive hours
highlighted by defendant include the 133 hours that Mr. Gura
spent researching and drafting plaintiff’s submissions to the
D.C. Circuit, as well as the 300 hours that Mr. Gura
subsequently spent preparing plaintiff’s Supreme Court briefs.
See Defs.’ Opp’n at 37.16 Having carefully reviewed the disputed
16
In their opposition brief, defendants argued that the 400
hours that Mr. Gura spent drafting plaintiff’s Supreme Court
briefs and preparing for oral argument before the Supreme Court
should also be reduced by half. See Defs.’ Opp’n at 37 (“While
counsel scored an impressive, indeed precedential, victory at
44
entries, the Court finds defendants’ claims of “excessive
effort” largely unpersuasive. Defs.’ Opp’n at 37. As the D.C.
Circuit has previously counseled: “It is neither practical nor
desirable to expect the trial court judge to [review] each paper
. . . to decide, for example, whether a particular motion could
have been done in 9.6 hours instead of 14.3 hours.” Copeland,
641 F.2d at 903; see also, e.g., Concerned Veterans, 675 F.2d at
1337-38 (“Neither broadly based, ill-aimed attacks, nor nit-
picking claims by the Government should be countenanced.”).
The Court nevertheless finds one set of entries in Mr.
Gura’s timesheets troubling. Specifically, Mr. Gura attributes
25.5 hours to “revis[ing]/draft[ing] p. 1 appellants’ brief.”
See Pl.’s Ex. 2, Docket No. 63-11 at 19. Those particular
entries by Mr. Gura appear extremely unreasonable, and the Court
will deduct 80% from them.
The Court also finds that Mr. Levy billed an excessive
amount of travel time. As this Court has previously held,
the Supreme Court, the District should not have to pay for
counsel’s over-preparation . . . .”). The Court will note,
however, that defendants subsequently revised their position.
See Notice dated Dec. 7, 2010, Docket No. 75 (“While the
District continues to believe that plaintiff has not met his
burden to show the reasonable necessity of this amount of time,
it believes that the proposed reduction is unnecessary in light
of separate deductions that the District has requested for
inadequately detailed billing (15%) and lack of billing judgment
(10%).”).
45
“[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.
6. Unsuccessful Claims
Arguing that “‘no compensation should be paid for time
spent litigating claims upon which the party seeking the fee did
not ultimately prevail,’” Defs.’ Opp’n at 38 (quoting Copeland,
641 F.2d at 891-92), defendants next contend that plaintiff
should not be compensated for the time his counsel spent on the
following activities: (i) drafting his cross-petition for
certiorari; (ii) researching the Ninth Amendment; and
(iii) working on various procedural motions on which he was
unsuccessful (such as oppositions to motions for extension of
time).17 See Defs.’ Opp’n at 38-39. Plaintiff, by contrast,
17
Specifically, defendants identify four motions on which
plaintiff did not succeed – (i) two motions for extensions of
time that plaintiff opposed; (ii) a motion for amicus
46
contends that he “fully prevailed on all [of] his claims, and
all time sought is thus compensable.” Pl.’s Reply at 14.
Plaintiff further responds that defendants “fundamentally
misconceive the law” on the issue of compensability, explaining
that “the test for whether time is compensable is whether it was
‘reasonably expended’ in the litigation” and has “nothing to do
with whether [the] particular activity is successful or
opposed.” Pl.’s Reply at 14-15 (citing Hensley, 461 U.S. at
434).
In Copeland – a case relied upon by both parties - the D.C.
Circuit explained as follows:
[I]t sometimes will be the case that a lawsuit will
seek recovery under a variety of legal theories
complaining of essentially the same injury. A
district judge must take care not to reduce a fee
award arbitrarily simply because a plaintiff did not
prevail under one or more of these legal theories. No
reduction in fee is appropriate where the issue was
all part and parcel of one matter, but only when the
claims asserted are truly fractionable.
641 F.2d at 892 n.18 (internal quotation marks and citations
omitted); see also Miller, 575 F. Supp. 2d at 33 (discussing
Copeland and concluding that “even efforts directed to non-
prevailing issues may be expended in pursuit of a successful
resolution of the case”) (internal quotation marks omitted).
participation that plaintiff opposed; and (iii) a motion to lift
the stay of the Circuit mandate.
47
This Court, therefore, must determine if the purportedly
unsuccessful claims identified by defendants – the cross-
petition for certiorari, Ninth Amendment research, and work on
various procedural motions – are “truly fractionable” from the
underlying issue on which plaintiff ultimately prevailed (i.e.,
the unconstitutionality of the District’s gun laws).
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.”).
48
Nor is the Court persuaded that the time that plaintiff’s
counsel spent working on the various procedural motions
identified by defendants should be stricken. To the contrary,
the Court finds that plaintiff’s counsel reasonably expended
time on these motions during the course of litigation on which
plaintiff was ultimately successful. See, e.g., Air Transp.
Ass’n of Can. v. FAA, 156 F.3d 1329, 1335 (D.C. Cir. 1998) (“[A]
litigant who is unsuccessful at a stage of litigation that was a
necessary step to her ultimate victory is entitled to attorney’s
fees even for the unsuccessful stage.”) (internal quotation
marks omitted).
The Court is not, however, so persuaded with respect to the
time spent on plaintiff’s cross-petition for certiorari. The
cross-petition, which challenged the D.C. Circuit’s
determination that each of the plaintiffs other than Mr. Heller
lacked standing to challenge the District’s gun laws – was
neither successful nor a “necessary step to [Mr. Heller]’s
ultimate victory.” Id. The Court therefore concludes that the
District should not be billed for the 102.8 hours that
plaintiff’s counsel spent drafting the unsuccessful cross-
petition and reply brief. Accordingly, the Court will deduct
the following time, which was spent by plaintiff’s counsel on
49
the cross-petition and reply: 56.3 hours from Mr. Gura, 27.3
hours from Mr. Neily, and 19.2 hours from Mr. Levy.
7. Billing Judgment
Finally, defendants argue that plaintiff’s petition should
be reduced by 10% for his counsel’s failure to exercise proper
billing judgment. In support of this claim, defendants argue
that plaintiff’s counsel failed to “specifically identify any
hours that were excluded from [the] fee petition and indicate
the tasks to which those hours were devoted.” Defs.’ Opp’n at
39-40. The Court concludes that a reduction on this basis is
unwarranted.
While it is true that plaintiff failed to submit a separate
declaration identifying the exact number of hours that were
excluded from his fee petition, plaintiff’s counsel aver that,
None of [plaintiff’s counsels’] records fully reflects
the time actually required to competently conduct the
representation: some hours were inadvertently omitted
from our records, or overlooked in the process of
reconstructing timesheets; other tasks were not
recorded because the associated hours do not qualify
as billable, e.g., responding to and working with
media, training clients to do the same, lobbying
against legislative interference, responding to
inquiries about the matter, and generally engaging the
court of public opinion on the important issues raised
by the case.
Pl.’s Mot. at 5. It is clear, therefore, that plaintiff’s
counsel did, in fact, exercise billing judgment.
50
Ultimately, therefore, although it is desirable – and,
indeed, advisable - for a fee applicant to submit a separate
declaration explaining the various reductions and exclusions of
charges that were made in the billing-judgment exercise, the
Court concludes that an across-the-board reduction is not
warranted based upon plaintiff’s failure to do so. See, e.g.,
District of Columbia v. Jeppsen, 686 F. Supp. 2d 37, 39 (D.D.C.
2010) (“Failing to specify hours which were written off is not a
fatal deficiency . . . so long as the Court can discern that the
time claimed was necessary and reasonable and that any
nonproductive time was excluded from the request.”)(internal
quotation marks omitted); Cook v. Block, 609 F. Supp. 1036, 1041
(D.D.C. 1985) (concluding that the failure of counsel to include
nonbillable time was not a basis upon which to reduce the number
of hours claimed).
8. Determination of Reasonable Number of Hours
In sum, for the reasons set forth above, the Court
concludes that the following number of hours were properly
billed to defendants: Mr. Gura: 1577.2 hours;18 Mr. Neily: 700.2
18
Mr. Gura’s time was calculated as follows: 1661 hours (time
requested by plaintiff) – 56.3 hours (time spent on unsuccessful
cross-petition for writ of certiorari and reply) - .5 hours
(time spent correcting an appendix due to counsel’s error) – 3
hours (time spent attending a symposium) – 3.6 hours (time spent
preparing an unfiled response to defendants’ request for
51
hours;19 Mr. Levy: 397.7 hours;20 Mr. Huff: 153.6 hours;21 Mr.
Healy: 30.3 hours;22 and Ms. Possessky: 18 hours.23
C. Lodestar Enhancement
Finally, the Court must determine if any enhancement of the
lodestar rate is appropriate in this case. Plaintiff contends
that it is, arguing that his attorneys are entitled to fee
adjustments for “superior performance” and “excessive delay in
payment.” Pl.’s Mot. at 31. Specifically, plaintiff is
requesting a fee enhancement amounting to a roughly $200
increase to the hourly rates for the “11-19 year” experience
rehearing en banc) = 1597.6 hours – 20.4 (80% of the 25.5 hours
billed for revising the page of the appellate brief) = 1577.2.
19
Mr. Neily’s time was calculated as follows: 808.3 hours
(time requested by plaintiff) – 27.3 hours (time spent on
unsuccessful cross-petition for writ of certiorari and reply) –
3 hours (time spent preparing an unfiled response to defendants’
request for rehearing en banc) = 778 hours – 77.8 (10% reduction
for reconstructed timesheets) = 700.2 hours
20
Mr. Levy’s time was calculated as follows: 77 hours of
travel time; and 518.6 (remaining time requested by plaintiff) –
19.2 hours (time spent on unsuccessful cross-petition for writ
of certiorari and reply) – 1.6 hours (time spent preparing an
unfiled response to defendants’ request for rehearing en banc) –
4.4 hours (time spent discussing pending legislation with the
NRA) = 493.4 - 123.4 (25% reduction for vague billing entries) -
49.3 (10% reduction for reconstructed timesheets) = 320.7 hours.
21
The time calculated by plaintiff.
22
Mr. Healy’s time was calculated as follows: 33.7 hours
(time requested by plaintiff) – 3.4 (10% reduction for
reconstructed timesheets) = 30.3 hours.
23
The time calculated by plaintiff.
52
range and a roughly $140 increase for the “4-7 year” experience
range. (Plaintiff - applying the enhancement to the Updated
Laffey Matrix – requests that his attorneys receive $790/hour
for those in the “11-19 year” experience range (up from
$589/hour) and $400/hour for the “4-7 year” experience range
(from $361/hour). Pl.’s Mot. at 35.) In addition, plaintiff is
also seeking three years of “excessive-delay” interest in the
amount of $589,627.95. Pl.’s Mot. at 38-41.24 Defendants urge
the Court to reject these requested enhancements, arguing, among
other things, that “[p]laintiff offers no coherent basis for
claiming the ‘rare’ entitlement to a performance enhancement,
let alone an enhancement that would increase opposing counsels’
rate to $789/hour[.]” Defs.’ Opp’n at 20. Defendants further
contend that an enhancement for “excessive delay” is
inappropriate, asserting that there is nothing “‘exceptional’”
or “‘unanticipated’” about the delay in this case. Defs.’ Opp’n
at 24-26 (quoting Perdue, 130 S. Ct. at 1675). For the reasons
discussed below, the Court concludes that plaintiff has not
overcome the “strong presumption” in favor of the lodestar rate,
Perdue, 130 S. Ct. at 1673, and therefore declines to enhance
the fee of plaintiff’s counsel as requested.
24
According to defendants, “[t]his additional enhancement
amounts to approximately $180 for each hour claimed
($589,627.95/3,270.2).” Defs.’ Opp’n at 24.
53
1. Legal Framework
In Perdue, the Supreme Court reaffirmed that an attorney’s
fee based upon the lodestar rate may be increased “due to
superior performance and results” in “extraordinary cases.” 130
S. Ct. at 1669; see also id. at 1673 (rejecting “any contention
that a fee determined by the lodestar method may not be enhanced
in any situation”; explaining that “[t]he lodestar method was
never intended to be conclusive in all circumstances”). The
Court also reiterated, however, that “there is a strong
presumption that the lodestar is sufficient; factors subsumed in
the lodestar calculation cannot be used as a ground for
increasing an award above the lodestar; and a party seeking fees
has the burden of identifying a factor that the lodestar does
not adequately take into account and proving with specificity
that an enhanced fee is justified.” Id. at 1669.
Despite this strict standard, the Perdue Court identified
three “rare” and “exceptional” circumstances that could
potentially support a fee enhancement. First, the Supreme Court
indicated that an enhancement might be appropriate “where the
method used in determining the hourly rate employed in the
lodestar calculation does not adequately measure the attorney’s
true market value, as demonstrated in part during the
litigation.” Id. at 1674. The Court explained that “[t]his may
54
occur if the hourly rate is determined by a formula that takes
into account only a single factor (such as years since admission
to the bar) or perhaps only a few similar factors.” Id. (citing
Salazar, 123 F. Supp. 2d at 8 and Laffey, 572 F. Supp. at 354).
Next, the Supreme Court counseled that an enhancement might be
appropriate “if the attorney’s performance includes an
extraordinary outlay of expenses and the litigation is
exceptionally protracted.” Id. Third, the Supreme Court
recognized that an enhancement might be appropriate if there are
“extraordinary circumstances in which an attorney’s performance
involves exceptional delay in the payment of fees.” Id. at
1675. The Court also emphasized, however, that the fee
applicant must provide “specific evidence that the lodestar fee
would not have been ‘adequate to attract competent counsel.’”
Id. at 1674.
2. The Requested Enhancements
Plaintiff argues that two of the three “rare” and
“exceptional” circumstances identified in Perdue are applicable
here. Specifically, plaintiff contends that the lodestar rate
should be enhanced (i) because the method used to determine the
prevailing market rate does not adequately measure the superior
attorney performance of his counsel; and (ii) in response to the
excessive delay in payment. See Pl.’s Mot. at 1 (“Perdue
55
confirms beyond all doubt that this case qualifies for two of
three authorized upward fee adjustments: a matrix adjustment to
market rates, and an interest adjustment for excessive delay in
payment.”). The Court will explore these requests in turn.
i. Adjustment for Superior Attorney Performance
Plaintiff first argues that an adjustment is necessary in
order to compensate plaintiff’s counsel for their superior
attorney performance. In support of this enhancement, plaintiff
principally argues that the rates produced even by the Updated
Laffey Matrix - $589/hour and $361/hour – do not adequately
reflect the “true market value” of plaintiff’s counsel as
demonstrated by their “exceptional” performance. See Pl.’s Mot.
at 32 (explaining that “the precise matrix looked to by the
Court is unimportant” because “[i]f the performance is
exceptional, its value will not be captured by any matrix”).
Plaintiff contends that “[t]he exceptional nature of the work
performed by [his] counsel should be self-evident,” explaining
that “[c]ounsel were required to scrutinize a great range of
complex material, synthesize coherent and persuasive arguments,
and anticipate, dissect, and respond to the opposition’s
analyses – all within the art of litigation as practiced at the
highest level.” Pl.’s Mot. at 33. Plaintiff further asserts
that the results achieved by his attorneys provide additional
56
evidence that their performance “was indeed exceptional,”
arguing that “[t]his case will stand as a landmark foundational
precedent in American constitutional law.” Pl.’s Mot. at 34-35.
Finally, plaintiff maintains that “significant enhancements
[may] apply where, as here, the controversial or otherwise
particularly challenging nature of the issue made the case
unattractive to many lawyers.” Pl.’s Mot. at 34-35. For those
reasons, plaintiff argues that neither the USAO Laffey Matrix
nor the Updated Laffey Matrix reflects “the rates needed to
attract this type of performance,” and therefore requests that –
“[c]onsistent with established rates” – his attorneys be
compensated at the rates of $790/hour for the 11-19 year
experience range and $400/hour for the 4-7 year experience
range. Pl.’s Mot. at 35.25
Defendants, in response, urge the Court to reject this
requested enhancement for several reasons. First, defendants
assert that plaintiff has failed to provide the Court with
“‘specific proof linking the attorney’s ability’” to the
25
In further support of these rates, plaintiff relies upon
Mr. Podgursky’s declaration. Mr. Podgursky avers that
plaintiff’s requested rates of $790/hour for the 11-19 year
experience range and $400/hour for the 4-7 experience range are
“fair rates, but comfortably below the highs.” Pl.’s Mot. at 35
(citing Podgursky Decl. ¶ 9); see also Pl.’s Mot. at 36-38
(chart containing partner and associate “high” rates at major
law firms).
57
enhanced rates that he is requesting. Defs.’ Opp’n at 20
(quoting Perdue, 130 S. Ct. at 1674). Next, defendants argue
that plaintiff has failed to offer “‘specific evidence that the
lodestar fee would not have been adequate to attract competent
counsel.’” Defs.’ Opp’n at 20 (quoting Perdue, 130 S. Ct. at
1674). Finally, defendants argue that “plaintiff’s counsel
exaggerate the extent of their accomplishment by failing to pay
even basic lip service to the scholars who preceded them and on
which they heavily relied.” Defs.’ Opp’n at 22.
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
58
“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
59
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.
ii. Adjustment for Unanticipated Delay
Next, plaintiff asserts that his counsel are entitled to an
enhancement for unanticipated delay, arguing that this case
involved a “great deal of ‘unanticipated delay,’ much of it
‘unjustifiably caused by the defense[.]’” Pl.’s Mot. at 38. As
a result of this unanticipated delay, plaintiff maintains that,
in addition to being compensated at current rates,26 his counsel
26
As plaintiff recognizes, the traditional method for
compensating a party for delay in payment is through payment at
the current market rate. See Pl.’s Mot. at 8 (“The easiest,
most readily accepted practice accounting for compensation delay
60
is entitled to three years of unanticipated delay-interest,
compounded at an annual rate of 7.25%, for a total of
$589,627.95 in unanticipated delay-interest charges. Pl.’s Mot.
at 8. In response, defendants argue, among other things, that
plaintiff’s delay-enhancement must be rejected as “a transparent
attempt at double recovery.” Defs.’ Opp’n at 4. Defendants
further assert that plaintiff improperly characterizes “as
unjustified and unanticipated delay such predictable steps as
seeking rehearing en banc or moving for summary affirmance on a
standing issue that the District reasonably believed to have
been squarely governed by prior Circuit precedent.” Defs.’
Opp’n at 25. This Court agrees and finds that plaintiff’s
request for an enhancement due to unanticipated delay lacks
merit.
Simply put, the Court is not persuaded that the District’s
vigorous defense of a gun control law that it “viewed as [both]
critical to [the] exercise of its police powers [and] for the
protection of public safety,” Defs.’ Mot. for Protective Order,
Docket No. 58 at 1, can be characterized as dilatory tactics
that resulted in unanticipated delay. Instead, the Court
concludes that any prejudice to plaintiff’s counsel that
is to award counsel their fees for all hours at the current
rate. . . .”).
61
resulted from delay in payment is remedied by the fact that
plaintiff’s fee award is based upon 2010-2011 rates. See, e.g.,
Perdue, 130 S. Ct. at 1675 (“An attorney who expects to be
compensated under § 1988 presumably understands that payment of
fees will generally not come until the end of the case, if at
all. Compensation for this delay is generally made ‘either by
basing the award on current rates or by adjusting the fee based
on historical rates to reflect its present value.’”) (quoting
Missouri v. Jenkins, 491 U.S. 274, 282 (1989)) (internal
citations omitted). The Court therefore finds that an
enhancement for unanticipated delay is unwarranted.
D. Fee Calculation
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: 1577.2 hours x $420/hour = $662,424.00
 Clark Neily: 700.2 hours x $420/hour = $294,084.00
 Robert Levy: 320.7 hours x $315/hour = $101,020.50; and 77
hours x $157.50/hour = $12,127.50
 Thomas Huff: 153.6 hours x $275/hour = $42,240.00
 Gene Healy: 30.3 hours x $420/hour = $12,726.00
 Laura Possessky: 18 hours x $420/hour = $7,560.00
62
III. EXPENSES
In a § 1983 civil rights action, where, as here, the
plaintiff is the prevailing party, he is also entitled to seek
reasonable expenses. Plaintiff, therefore, seeks reimbursement
of the following expenses and costs to Mr. Levy: (i) travel
expenses: $3,544.00; (ii) photocopy/printing expenses: $765.44;
(iii) teleconferencing: $244.00; (iv) postage: $212.36;
(v) messenger fees: $124.47; and (v) outside legal services:
$7,650.00, for a total of $12,540.27.27 See Pl.’s Mot. at 6. Of
these expenses, defendants only object to the expenses for
“outside legal services,” which it characterizes as “vaguely
described.” Defs.’ Opp’n. at 40.
In support of his request for “outside legal services,”
plaintiff submits the declaration of attorney Robert Levy. In
his declaration, Mr. Levy states that he seeks to recover
“$3,250 for legal fees paid to attorney Stephen Halbrook, for
initial research into [the] case, and $4,400 for legal fees paid
to attorney Don Kates for assistance with the reply brief filed
before the D.C. Circuit.” Levy Decl. ¶ 7. No further
documentation in support of these “expenses” was filed with the
Court.
27
Although plaintiff states in his petition that he is
seeking $13,215.30 in costs reimbursable to Mr. Levy, the
expenses detailed above only total to $12,540.27.
63
The Court is aware of no authority allowing an attorney to
claim the “outside legal services” of other attorneys as a
reasonable expense of litigation, nor has counsel provided the
Court with any such authority. See generally Miller, 601 F.
Supp. 2d at 58 (noting that reasonable expenses can include
“‘out-of-pocket litigation expenses for postage, photocopying,
telephone calls, facsimile transmissions, messengers, local
travel, Westlaw, [&] transcripts’” (quoting Salazar I, 123 F.
Supp 2d at 16-17)).28 The Court will further note that no
billing records or other detailed documentation have been
submitted in support of these sums. Without such documentation,
the Court is unable to independently assess the reasonableness
of the requested expenses. Having received no response from
plaintiff on the issue, the Court concludes that Mr. Levy is not
entitled to reimbursement for his undocumented claims of
“outside legal services.”
The Court finds, therefore, that Mr. Levy is entitled to
28
The cases cited by plaintiff in support of his expenses,
see Pl.’s Mot. at 42, are not to the contrary. See Sexcius v.
District of Columbia, 839 F. Supp. 919, 927 (D.D.C. 1993)
(“Reasonable photocopying, postage, long distance telephone,
messenger, and transportation and parking costs are customarily
considered part of a reasonable ‘attorney's fee.’”); Palmer v.
Barry, 704 F. Supp. 296, 298 (D.D.C. 1989) (granting a request
for reimbursement of travel expenses; denying without prejudice
request for reimbursement of photocopying expenses where
supporting documentation was not provided to the court).
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reimbursement in the amount of $4,890.27 for his reasonable
expenses.
IV. CONCLUSION
For the reasons set forth above, the Court concludes that
plaintiff’s counsel is entitled to fees in the amount of
$1,132,182.00 and expenses in the amount of $4,890.27. A
separate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
December 29, 2011
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