An Ohio man who sued the federal government over a stagnant background check appeal on a gun purchase was told he was not entitled to get his fees back.
Last Friday, U.S. District Judge Amy Berman Jackson, sitting in on the federal bench in the District of Columbia, refused to grant $9,775.65 in attorney’s fees and costs incurred by Gregory Ledet to get his gun rights recognized.
Ledet tried to purchase a firearm through a licensed dealer on Feb. 27, 2016, but his National Instant Criminal Background Check System check – also known as NICS and performed by the Federal Bureau of Investigation – came back denied. The FBI subsequently informed Ledet he was a prohibited firearms possessor, which he appealed.
Under federal law, those found guilty of non-domestic violence-related state misdemeanors punishable by over two years in prison can lose their gun rights. Ledet’s criminal history consisted of a misdemeanor theft under $100 charge in 1997 in Louisiana for which he received a six-month suspended sentence in lieu of 18 months probation, meaning he should not have been denied.
Court records show the FBI was sent this data as early as 2003 and had been delivered it again in 2010.
Told he would likely have to wait more than a year for his latest NICS appeal to come up for review, Ledet retained an attorney and filed suit in May 2016, arguing the federal government was unlawfully depriving him of his constitutional rights. Just 22 days after the suit was filed, the FBI updated his NICS records and approved him for future gun transfers. With the matter seemingly resolved, both the government and Ledet agreed to dismiss the case before it came up in court.
This, holds Jackson in her opinion, precluded Ledet’s effort to recover his fees because he is not the “prevailing party” in the litigation.
“Here, upon dismissal of the case, the Court did not issue any judgement whatsoever, let alone a judgement favorable to the plaintiff, and the court did not impose any relief,” said Jackson, going on to point out that Ledet was able to complete gun transactions through steps taken voluntarily by the government, not following a court order.
“We’ve had a feeling this was coming, and the upside is that there’s finally case law,” Ledet told Guns.com. “But it also means that every person that has to sue for their rights after an erroneous denial will now have to foot the bill themselves, something that’ll run you a minimum of $10K.”
Ledet says he is working with U.S. Rep. Tom Emmer, a Minnesota Republican, on legislation to require NICS to make a final decision on appeals and correct its records within 60 days. Emmer submitted a similar bill last session that, while it picked up 50 co-sponsors, never made it out of committee.
“This bill would change the language of the law to shift the attorney’s fees from the person wronged to the government, and reinstating what’s known as the ‘catalyst theory’ of awarding attorney’s fees,” says Ledet, meaning that a plaintiff would just need to prove that their lawsuit was the catalyst that made the government change their position, not actually win the case in court.
“So, this is where this whole fiasco ends,” Ledet said. “After nearly a year and a half of fighting with the FBI, NICS, and the U.S. attorney’s office, we come to a close with a giant ‘no fees for you.'”
“Why should an erroneously denied individual be on the hook for thousands of dollars to fix the government’s mistake?” says Ledet’s attorney, Stephen D. Stamboulieh. “Good question. But, until Congress steps in, that’s the way it is.”