Opinion
Civ. No. 00-2362, SECTION "A".
February 14, 2001.
ORDER AND REASONS
Before the Court is an Application for Attorney's Fees Under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d)(1)(A), filed on behalf of the plaintiffs, Sayed Aley Kasni and Sayeeda Bano. In the instant motion plaintiff seeks an award in the full amount of $4,236.08, representing 24.35 hours of judicial time at varying rates ranging from $150.00 to $100.00 per hour, plus total costs in the amount of $202.51, plus a cost of living adjustment (11%) in the amount of $419.82).
28 U.S.C. § 2412 (d)(1)(A) provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
Plaintiff's filed a Petition for Writ of Mandamus on August 10, 2000 [Rec.Doc. No. 1], requesting the Court to order the Immigration and Naturalization Service (INS) to adjudicate their Applications for Adjustment of Status (Form 1-485) filed with the INS on December 17, 1997 based on approved Petition for Alien Relative (Form 1-130). Prior to filing the Petition for Writ of Mandamus, plaintiffs assert that on their own and through counsel, they attempted to obtain a decision on their applications, albeit unsuccessfully. After filing the Petition for Writ of Mandamus, the INS approved both applications on November 7, 2000. Plaintiffs assert that they are the prevailing party and that the INS was not "substantially justified since INS' almost three year delay in the case of their applications is unexcused.
Plaintiffs support their fee application with a memorandum and an itemization of time and costs.
The Government does not dispute counsel's entitlement to EAJA fees. However, it does object to counsel's request for "limited availability"/"specialization" fee enhancement of $25.00 per hour, and the request that counsel's staff be awarded at or above the statutory rate of $125.00 per hour. Defendant further objects to specific fees and costs.
A. The Relevant Provisions of the EAJA.
Until March 29, 1996, the EAJA provided that "attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved justifies a higher fee." 28 U.S.C. § 2412 (d)(2)(A) (ii) (before 1996 amendment). In Hall v. Shalala, 50 F.3d 367, 370 (5th Cir. 1995), the Fifth Circuit held that the district court has discretion to award attorney's fees at or below the $75 statutory hourly rate, but that the $75 rate is a ceiling which cannot be exceeded unless the district court determines a higher fee is justified by inflation or a special factor.
The Fifth Circuit in Hall invited the judges of the Eastern District of Louisiana to address any lack of uniformity in fees awarded under the EAJA in this district. Accordingly, the district judges met en banc and issued a General Order dated September 12, 1995, which provided that "`the amount of attorney's fees warded [under the EAJA] shall be $75.00 per hour, conditioned upon the ability of the judge for good to increase the amount of attorney's fees awarded to that which is appropriate under the circumstances.'" Adams v. Chater, 914 F. Supp. 1365, 1369 (E.D. La. 1995) (quoting the General Order).
The EAJA was amended in 1996 to increase the maximum statutory rate from $75 to $125 per hour. 28 U.S.C. § 2412. That amendment applies to civil actions, such as this, commenced on or after its effective date of March 29, 1996. Id. Historical and Statutory Note to 1996 Amendment (quoted in Federal Civil Judicial Procedure and Rules 965 (West pamph. 1999 ed.)). In October of 1997, the district judges of this Court again met en banc and amended the General Order to conform with the new statutory rate. The General Order now provides "[t]hat in cases in which the Equal Access to Justice Act applies, the amount of attorney's fees awarded may be $125.00 per hour, conditioned upon a finding by the Judge of good cause to increase the amount of attorney's fees to $125.00 or that which is appropriate under the circumstances."
The instant action was commenced after the effective date of the amendments to the statute and the amended General Order. Accordingly, the amended statute and the General Order apply to this case.
In determining an appropriate award, the district court must take into account the goals of the EAJA. The hourly rate must satisfy the dual purposes of the EAJA: (1) to ensure adequate representation for those who need it; and (2) to minimize the cost of this representation to taxpayers. Baker v. Bowen, 839 F.2d 1075, 1083 (5th Cir. 1988). The Court finds that a rate of $125 per hour is reasonable. This rate satisfies the dual purposes of the EAJA by ensuring adequate representation while minimizing the costs to taxpayers.
The Court rejects plaintiffs' counsel' argument that he and his staff are entitled to a "specialization" or "limited availability" fee enhancement of $25.00. See, Perales v. Casillas, 950 F.2d 1066 (5th Cir. 1992) (rejecting immigration attorney's request for a fee enhancement). Specialization, in and of itself, is not a special factor warranting attorney's fees above the statutory rate. As the Government observed, it is clear from the record, no special issues or unique legal arguments needed to be advanced in the present case. Counsel simply filed a Petition for Writ of Mandamus involving a facile set of facts (i.e., the INS failed to adjudicate plaintiffs' applications for naturalization).
B. Computation of Hours.
The Court agrees with the Government's argument that the number of hours claimed by plaintiffs' counsel in this case is excessive. Plaintiffs' counsel is not entitled to fees incurred prior to the time that counsel turned their attentions to federal court. Only fees incurred on and after August 7, 2000, when counsel began to prepare the mandamus action filed on August 10, 2000, are properly the subject of this EAJA award. Also, time spent on administrative processing of plaintiffs' applications is not compensable ( i.e., calls regarding the INS and INS Adjustment Interviews, traveling to the INS, checking finger print status which are all part of plaintiff's application for adjustment of status and not part of the litigation). There were no court proceedings to speak of in the context of this case. Petitioners filed for writ of mandamus and the INS provided the requested relief. Additionally, the Court agrees that eleven hours to draft an EAJA fee application is excessive.
The fee applicant bears the burden of documenting and supporting the reasonableness of all time expenditures for which compensation is sought. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). Applying the Hensley rationale, the Fifth Circuit has observed that "the burden of proof of reasonableness of the number of hours is on the fee applicant and not on the opposing party to prove their unreasonableness." Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987). "Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, and otherwise unnecessary. . . ." Hensley, 461 U.S. at 434.
The Court believes that plaintiff's counsel should be compensated for reasonable legal services rendered in connection with litigating the instant case. Plaintiffs' counsel's time records present somewhat of a challenge in this regard, because they include hours expended on administrative tasks which were not part of the litigation.
The Court recognizes that it is within the its discretion to discount the attorney fee bill when the applicant fails to comply with the requirements of the EAJA and where it appears the total time claimed is not reasonable. The Court is persuaded by the Government's line by line analysis of the plaintiffs' counsel's itemization. The Court agrees that the Government's Exhibit "A", a copy of which is attached hereto, constitutes a more realistic accounting of the time actually expended providing legal service to the plaintiffs in the case at bar. It is noteworthy that Petitioner's EAJA Fee Application and the Opposition thereto make up approximately half of the slim, single-volume federal record in this matter.
Accordingly,
IT IS ORDERED that plaintiff's motion for attorney's fees under the EAJA is GRANTED and plaintiffs' counsel is awarded discounted attorney's fees and costs in the full amount of $1,488.13 (representing attorney's fees for legal services reasonably performed in litigating plaintiffs' petition in the amount of $1,293.12, plus litigation costs in the amount of $195.01)
EXHIBIT A
The defendant objects to the award of EAJA fees and costs for those reasons set forth in the attached memorandum However, if such an award is deemed to be just by the court, defendant object the above costs and fees for the reasons noted:DETAILED ANALYSIS OF COUNSEL'S BILLING ENTRIES
DATE TIME ENTRY OBJECTION REASONABLE SUBTOTAL $1,947.50 TOTAL FEES $1,293.12 Costs TOTAL COSTS $195.01 TOTAL FEES AND COSTS $1488.13
1/5/00 Interview with Client Pre-ligation 0.00 1/8/00 Memo to File Pre-ligation 0.00 1/12/00 Meeting with INS Roy Schremp Pre-ligation 0.00 1/12/00 Travel time to and waiting at INS Pre-ligation 0.00 7/7/00 Call to Client Pre-ligation 0.00 7/7/00 Conference with Paralegal (CP) Pre-ligation 0.00 7/7/00 Conference with DW Pre-ligation 0.00 7/7/00 Review File Pre-ligation 0.00 7/12/00 Conference with Associate (MT) Pre-ligation 0.00 7/12/00 Conference with Paralegal (CP) Pre-ligation 0.00 7/12/00 Review File Pre-ligation 0.00 7/13/00 Conference with Associate (MT) Pre-ligation 0.00 7/13/00 Conference with Paralegal (CP) Pre-ligation 0.00 7/14/00 Call to Client Pre-ligation 0.00 7/14/00 Call to Client Pre-ligation 0.00 7/14/00 Conference with Associate (MT) Pre-ligation 0.00 7/14/00 Conference with Paralegal (CP) Pre-ligation 0.00 7/14/00 Letter to INS Pre-ligation 0.00 7/14/00 Review client's documents Pre-ligation 0.00 7/14/00 Revise and Review Letter to INS Pre-ligation 0.00 7/14/00 Prepare two Form G-28s Pre-ligation 0.00 8/1/00 Email Letter to Client Pre-ligation 0.00 8/1/00 Review Client Documents Pre-ligation 0.00 8/2/00 Call from Client Pre-ligation 0.00 8/2/00 Conference with DW Pre-ligation 0.00 8/2/00 Conference with Paralegal (CP) Pre-ligation 0.00 8/2/00 Draft Mandamus (CP) 40.00 8/7/00 Conference with Paralegal (CP) 10.00 8/7/00 Conference with Paralegal (MV) 10.00 8/7/00 Email from Client(CP) 10.00 8/7/00 Prepare Mandamus for Filing (CP) 50.00 8/9/00 Conference with Paralegal (MV) 10.00 8/9/00 Conference with Paralegal (MV) 10.00 8/11/00 Docket Date (CP) 10.00 8/11/00 Review Client Documents (CP) 20.00 8/11/00 Prepare and send Mandamus(CP) 30.00 8/14/00 Call from Client (CP) 20.00 8/18/00 Email to Client 20.00 8/21/00 Email to Client 10.00 8/21/00 Email from Client 10.00 8/25/00 Email to Client 10.00 8/25/00 Email from Client 10.00 9/15/00 Email to Client 10.00 9/15/00 Email from Client 10.00 9/18/00 Conference with Paralegal (MV) 10.00 9/18/00 Conference with Paralegal (CP) 10.00 9/18/00 Email from Client 10.00 9/19/00 Email to Client 20.00 9/28/00 Review US Motion to Extend Time 18.75 9/29/00 Email from Client 20.00 10/2/00 Email from Client 20.00 10/10/00 Email from Client 20.00 10/11/00 Email from Client 20.00 10/19/00 Email from and to Client 20.00 10/31/00 Call to INS Anne Baker (ADC NOLA) 37.50 10/31/00 Conference with Associate (RAJ) 20.00 11/1/00 Call from INS re: interview Relief Requested — Non litigation 0 11/1/00 Conference w/Paralegal (CP) re interview Relief Requested — Non litigation 0 11/1/00 Conference with Associate (RAJ) Relief Requested — Non litigation 0 11/2/00 Call from INS Anne Baker (ADC NOLA) Relief Requested — Non litigation 0 11/2/00 Call to Client 20.00 11/3/00 Review Grant of Extension 15.00 11/7/00 1145 Adjustment Interview Relief Requested — Non litigation 0 11/7/00 Travel time and waiting at INS Relief Requested — Non litigation 0 11/7/00 Call to Paralegal (CP) re: Fingerprint Status Relief Requested — Non litigation 0 11/7/00 Call from Associate (RAJ) re: police records Relief Requested — Non litigation 0 11/7/00 Call to Baton Rouge Police Dept. Relief Requested — Non litigation 0 11/7/00 Call to Associate (RAJ) 20.00 11/7/00 Conference with DW 20.00 11/7/00 Conference with Paralegal (CP) Rate $125/hour 25.00 11/9/00 Call from US Atty. re: Motion to Dismiss Rate = $125/hour 31.25 11/14/00 Email from and to Client 20.00 11/16/00 Review U.S. Motion to Dismiss and Order Rate = $125/hour 31.25 11/27/00 Legal Research re: EAJA *Assessed too high 30.00 11/28/00 Conference with staff re: work Itemization *Assessed too high 30.00 11/29/00 Conference with staff re: itemization format *Assessed too high 30.00 12/1/00 Draft EAJA *Assessed too high 500.00 12/1/00 Itemize Attorney's Fees and Costs *Assessed too high 250.00 12/4/00 Review and Revise EAJA *Assessed too high 93.75 12/4/00 Conference with Paralegal (CP) re: timesheets *Assessed too high 25.00 12/4/00 Conference with Associates (RAJ) re timesheets *Assessed too high 25.00 12/4/00 Review and Revise EMA Attorney's Fees *Assessed too high 250.00 12/4/00 Prepare and Send EAJA *Assessed too high 75.00 — 654.38* 7/7/00 Long Distance Charges Pre-Litigation 0 7/14/00 Long Distance Charges Pre-Litigation 0 7/14/00 Long Distance Charges Pre-Litigation 0 8/9/00 Copying Charge 60 copies 6.00 8/10/00 Copying Charge 30 copies 3.00 8/10/00 Mandamus Filing Fee 150.00 8/11/00 Postage 12.00 8/21/00 Postage 1.21 12/4/00 Copying Charge 10.80 12/4/00 Postage 108 copies 12.00 * The 10 55 hours to draft the EAJA fee request is an excessive amount of time to draft the same memorandum that was filed for several other recent cases by counsel. Therefore, the billing time should be reduced in half, and a rate of $125/hour was applied. This amounts to a reduction of $654.38.