Parker v. District of Columbia

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. at

896 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).
64

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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