Cato Institute Chairman Robert Levy has replied to my post below, continuing his recent public relations offensive in support of his demand for $1,114.00 per hour in attorney fees for his work in the Heller Second Amendment litigation:
After nearly six years, culminating in a landmark Supreme Court victory, my co-counsel and I have requested reasonable legal fees, to which we are entitled under federal law.
Only those who would rather fight than win will characterize the Heller decision as anything less than a resounding affirmation of Second Amendment rights.
In today’s Washington Examiner we set out the reasons for our fee request. Mr. Oliva’s objections to those fees would be better addressed to the D.C. government, which persisted in an abortive attempt to justify its unconstitutional gun ban.
Before suggesting that my personal motives were merely self-aggrandizement, Oliva should have asked. He would have learned that I committed long ago to donating all legal fees that I recover from the Heller case. I can assure Oliva that the recipients of my donations will use the money to advance liberty — unlike the uses to which the money would otherwise have been put by D.C.’s mayor and city council.
Below, I’ll address Mr. Levy’s points in order.
- There is no civilized society, anywhere, anytime that would consider $1,114.00 per hour for a single attorney’s legal work on a lawsuit “reasonable” – especially when you were not the principal attorney of record in the case (that was Alan Gura.)
- Whether you are entitled to your fee request is still being determined by the district judge. You are entitled to nothing until he decides the matter.
- I’m not sure who your “Only those who would rather fight than win…” comment was directed towards. I never addressed the merits of the Heller litigation, though I noted there were libertarian critics of your case (whom your co-counsel essentially characterized as crackpots.) Frankly, this is irrelevant to whether your fee request is justified.
- I didn’t direct my objections to the District government, because the District government didn’t file a petition seeking nearly $3.6 million in taxpayer funds for his personal enrichment. You did.
- The District’s firearms ban may have been unconstitutional, but I don’t fault the government for defending its law before the courts. It’s generally understood that the executive branch of any U.S. government will defend a law’s constitutionality.
- You mischaracterize the District’s defense of its law as “abortive.” Quite the contrary, the litigation’s outcome was in doubt throughout the proceedings. Five of the six plaintiffs you personally selected were dismissed by the district court for lack of standing. The district court then dismissed your lawsuit. The Court of Appeals panel divided 2-1, and the dissenting judge credibly argued that the plain language of the Second Amendment did not apply to the District since it is not a state. The Supreme Court ultimately upheld your position in a 5-4 decision.
- You individually seek compensation for a number of claims and motions where you were unsuccessful, including nearly 20 hours for a Supreme Court cross-petition that was denied.
- The District has offered you and your co-counsel a cumulative $798,232 in fees, of which $116,850 would be paid directly to you. Since you’re fond of comparisons, I’d note that your proposed fee amount is nearly double the average annual income of a District resident. Once again, I believe the District is not being unreasonable here. You are.
- You wrote, “Before suggesting that my personal motives were merely self-aggrandizement, Oliva should have asked.” I don’t see why. All I did was cite your own arguments to the district court.
- Your intention to donate fees – to unspecified recipients – does not mitigate the unjust nature of your demand. Distributing state funds – which are themselves acquired through force upon the general public – to your favored causes is not a just outcome. It is merely money laundering.
- Your “assurance” that your fees will be donated to causes that will “advance liberty” is, frankly, unconvincing. (Perhaps you could provide a specific list of groups and causes that you intend to donate to.) Especially in light of your co-counsel’s attacks against other libertarian groups that disagreed with your position in Heller – and your own comment above dismissing those who disagreed with your litigation strategy – it seems that your principal interest is in funding individuals who agree with you. I suppose there’s nothing wrong with that, but I’d hate for people to confuse “advancing liberty” with “advancing Robert Levy.” The Objectivists tried that sort of strategy, and it hasn’t worked out too well.
- Your position that you are a better steward of District taxpayers’ money then the taxpayers themselves is interesting, particularly given that you were a resident of Florida during this litigation.
- Assuming that you “donate” at least some of your fees to Cato, would that not violate Cato’s own self-professed rejection of government funding?
Finally, I must say I’m honestly surprised at Mr. Levy’s aggressiveness in pursuing this issue. Between the op-ed in the Examiner and his response here, you’d think someone at Cato would have sat him down and said, “Y’know, Bob, you’re reinforcing the stereotype of libertarians as greedy bastards who don’t hold any ethical principles.”
As I said to someone else — who posted this line in the comments to my earlier post — if you have to write an op-ed in defense of your request for attorney fees, you’re asking for too much.