Heller v. Dist. of Columbia

• Decision Date: 29 December 2011
• Docket Number: Civil Action No. 03–213 (EGS).
• Citation: 832 F.Supp.2d 32
• Parties: Dick Anthony HELLER, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

832 F.Supp.2d 32

Dick Anthony HELLER, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 03–213 (EGS).

United States District Court, District of Columbia.

Dec. 29, 2011.

Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, Clark M. Neily, III, Arlington, VA, for Plaintiff.

Jonathan F. Potter, Office of Corporation Counsel, Robert C. Utiger, Andrew J. Saindon, D.C. Office of Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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 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 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., ––– U.S. ––––, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010); see also Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (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 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, 106 S.Ct. 3088, 92 L.Ed.2d 439 (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. at 896 n. 11, 104 S.Ct. 1541;Hensley, 461 U.S. at 437, 103 S.Ct. 1933). 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 Court will then consider plaintiff's request for reasonable expenses.

II. PLAINTIFF'S FEE AWARDA. 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, 104 S.Ct. 1541 (“[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 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, 104 S.Ct. 1541). 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 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. 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, 104 S.Ct. 1541). 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 attorney, plaintiff was represented by a team of skilled litigators with significant experience in the for-profit, nonprofit, 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...