DC Memo

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA____________________________________)SHELLY PARKER,

et al.

))Plaintiffs, ))v. ) Civil Action No.03-0213 (EGS))DISTRICT OF COLUMBIA,

et al.

, ))Defendants. )____________________________________)MEMORANDUM OF POINTS AND AUTHORITIESIN OPPOSITION TOPLAINTIFF HELLER’S MOTION FOR ATTORNEY FEES AND COSTS

I. Introduction and Summary of ArgumentThere is no question that plaintiff’s counsel achieved a notable victory. But that victorydoes not justify the excessive demand for attorney’s fees of $3,566,114.40, made here on theDistrict’s taxpayers. A reasonable fee is one that is “adequate to attract competent counsel, butwhich do[es] not produce windfalls to attorneys.”

Blum v. Stenson

, 465 U.S. 886, 894 (1984).

1

Judged against this standard, the almost $3.6 million fee is highly

un

reasonable.First, while counsel for plaintiffs won a significant victory in the Supreme Court in thefirst case on the Second Amendment that the Court had heard in almost 70 years, the theories onwhich they proceeded were not novel. That undercuts their assertions that their fees should bedoubled through “enhancement.” They were able to take advantage of ground-breakingprecedent in the Fifth Circuit,

United States v. Emerson

, 270 F.3d 203 (5

th

Cir. 2001), strong

1

See also, e.g., American Lands Alliance v. Norton

, 525 F.Supp.2d 135, 145(D.D.C. 2007) (“[L]imitations on attorneys’ fee awards are intended to ‘adequately protectagainst the possibility that [a fee award statute] might produce a ‘windfall’ . . . .”) (quoting

Cityof Riverside v. Rivera

, 477 U.S. 561, 581 (1986)).

Case 1:03-cv-00213-EGS Document 47 Filed 09/30/2008 Page 1 of 25

-2-dissents in denials of rehearing in

Silveira v. Lockyer

, 328 F.3d 567 (9

th

Cir. 2002), andsubstantial law review material published during the fifteen or so years proceeding their suit. Inaddition, while they achieved success, they did not do it alone. In the Court of Appeals, theywere joined by an

amicus

brief filed on behalf of 17 States; in the Supreme Court, they were joined by 47

amicus

briefs, including briefs filed on behalf of over 50 members of Congress andof seven States.Second, counsel’s request for reimbursement at “enhanced”

Laffey

rates based onnationwide statistics derived from a declaration by a hired expert are unjustified. Although thecurrent

Laffey

rates established by the U.S. Attorney’s Office (“USAO”) (copy attached) may beadjusted, the members of this District Court have been understandably reluctant to acceptadjustments. Counsel has not justified a deviation here.Third, counsel ask for fees for work on which they were unsuccessful or which isotherwise noncompensable. For example, five of the six plaintiffs were dismissed for lack of standing in the Court of Appeals. They unsuccessfully petitioned the Supreme Court to reviewthe dismissal. Despite their failure to have the five plaintiffs reinstated, they ask the Districttaxpayers to pay for that lack of success. They also ask for payment of non-reimbursable items,such as pre-complaint time spent recruiting potential plaintiffs.

2

Fourth, the hours claimed are frequently excessive for the task at hand—such as minor (andsometimes unsuccessful motions)—and often insufficiently supported with enough specificity tosatisfy counsel’s burden to establish the reasonableness of the charges. To be sure, Supreme Courtlitigation of any sort requires a substantial expenditure of time. So does much constitutional

2

In support of the instant opposition, the District presents herein a Declarationfrom Daniel A. Rezneck and an Appendix, which details the calculations made by the District toarrive at a reasonable fee.

Case 1:03-cv-00213-EGS Document 47 Filed 09/30/2008 Page 2 of 25

-3-litigation. Still, as in all litigation, “there is a point at which thorough and diligent litigation effortsbecome overkill.”

Oklahoma Aerotronics v. United States

, 943 F.2d 1344, 1347 (D.C. Cir. 1991).Many hours that counsel claim cannot be gauged at all; they indulge in considerable instances of “block billing”—the lumping together of a number of disparate tasks into a single entry—thatmake it impossible for the Court to determine the reasonableness of the time spent on eachseparate task. Such block billing usually justifies an across-the-board percentage reduction in anyaward; it does so here.In addition, three of the seven attorneys did not keep contemporaneous time records atall. Courts generally do not accept on faith the reliability of self-serving recollections of counselyears after the fact.Finally, the Court should carefully scrutinize the large amount claimed here, in light of the impact this award will have on a public fisc. Even though public bodies are properly subjectto fee-shifting statutes, “[s]pecial caution is required because of the incentive which the[government’s] ‘deep pocket’ offers to attorneys to inflate their billing charges and to claim farmore as reimbursement then would be sought or could reasonably be recovered from mostprivate parties.”

Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co

., 743 F.2d 932, 942 (D.C. Cir.1984) (quoting

Copeland v. Marshall

, 594 F.2d 244, 250 (D.C.Cir.1978)).Thus, despite the Supreme Court’s proscription that “[a] request for attorney’s feesshould not result in a second major litigation,”

Hensley v. Eckerhart

, 461 U.S. 424, 437 (1983),the District is compelled to object to the amount claimed here. For the reasons given throughoutthis memorandum, the fee award should be no more than $798,232.00. In addition,reimbursement of legitimate litigation expenses should not exceed $9,480.27.

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