Opinion
CIVIL ACTION NO. 01-618, SECTION "A"
January 14, 2004
MINUTE ENTRY
Before the Court is a Petition for Attorney's Fees (Rec. Doc. 7) filed by plaintiff Lenora Buras pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, The motion, set for hearing on January 14, 2004, is before the Court on the briefs without oral argument.
Plaintiff initiated this action on March 9, 2001, seeking judicial review of the final decision of the Commissioner denying her disability claim. On June 21, 2001, Judge Schwartz granted the Commissioner's unopposed motion to voluntarily remand the case for further consideration. In October 2003, Plaintiff was found to be disabled and was awarded benefits. Plaintiff asserts that she is a "prevailing party" in this litigation and is eligible to receive an attorney's fee award pursuant to the EAJA, Plaintiff seeks a total award of $4,773.50.
The requested award breaks down as follows:
Year 2000: 4 hrs. @ $138/hr.
Year 2001: 6 hrs. @ $142/hr.
Year 2002: 12.50 hrs. @ $144/hr.
Year 2003: 10.75 hrs. @ $146/hr. (includes 3 hours preparing EAJA fee application)
The Commissioner does not oppose a fee award in this case but does object to the hourly rate that Plaintiff is requesting. The Commissioner argues that Plaintiff obtained her suggested hourly rates by applying the CPI for states other than Louisiana. The Commissioner also points out that $125 per hour is the rate typically awarded in the Eastern District of Louisiana. Thus, the Commissioner suggests that $3,781.25 is an appropriate award. 28 U.S.C. § 2412(d)(2)(A) provides that an attorney fee award
This number reflects 30.25 hours at $125 an hour but does not include the 3 hours spent preparing the EAJA application. Reasonable fees for preparing an EAJA fee petition are recoverable. Knight v. Barnhart, 02-1741, 2003 WL 21467533, at *2 n. 1 (E.D. La. June 20, 2003) (citingGardner v. Social Sec. Admin., 00-2848, 2001 WL 1537722, at *5 (E.D. La. Nov. 30, 2001)).
shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125 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.A. § 2412(d)(2)(A) (West 1994 Supp. 2003) (emphasis added). The $125 cap was set by Congress in 1996 to increase the prior cap of $75 per hour. Knight, 2003 WL 21467533, at *2. Plaintiff bears the burden of proving that an increase in the cost of living or a special factor warrants a higher hourly rate. Id. (citing Spencer v. Apfel, 97-1872, 1998 WL 26484, at *3 (E.D. La. May 21, 1998)).
Plaintiff's primary argument for exceeding the $125 cap is that an increase in the cost of living has occurred since the EAJA was amended in 1996. However, in Hall v. Charter, the Fifth Circuit clarified that a district court is not required to award an amount in excess of the statutory cap based upon cost of living increases. 50 F.3d 367, 369 (5th Cir. 1995). The Fifth Circuit found that the trial judge had not abused his discretion because the statutory cap served to "ensure adequate representation for those who need it and [to] minimize the cost of representation to tax payers" — the dual purposes of the EAJA. Id. at 369, 370. Moreover, the Fifth Circuit recognized the need for uniformity among the judges in the Eastern District of Louisiana when setting attorney fee awards. Id. at 370.
Plaintiff has cited no cases from this district in which a fee in excess of the $125 cap was awarded. The Court's own research has revealed that $125 per hour is the going rate in this District for social security fee awards. See, e.g., Knight v. Barnhart, 02-1741, 2003 WL 21467533 (E.D. La. June 20, 2003) (Vance, J.); Jackson v. Barnhart, 01-1911, 2002 WL 927799 (E.D. La. May 7, 2002) (Barbier, J.); Lodge v. Apfel, 00-1022, 2001 WL 637366 (E.D. La. June 8, 2001) (Schwartz, J.); Gardner v. Social Sec. Admin., 00-2848, 2001 WL 1537722 (E.D. La. Nov. 30, 2001) (Roby, M.J.). Moreover, the fee awards suggested by Plaintiff, while promulgated by the Office of the General Counsel for Social Security, clearly state that they are applicable only in the district courts of Oklahoma and New Mexico. Pla.'s Mot. Exh. P-1. The Court therefore concludes that the $125 per hour statutory cap is the appropriate rate in this District for ensuring that the purposes of the EAJA are met.
Plaintiff alludes to a "special factor" in this case in that counsel was retained only after Plaintiff had already lost at his administrative hearing. Plaintiff points out that very few attorney's would accept a case in that posture given the poor success rate for social security appeals in the federal courts. Undoubtedly, counsel for Plaintiff rendered stellar performance on behalf of his client. However, the Court is unpersuaded that counsel's decision to accept this case after a loss at the administrative level constitutes a "special factor" as contemplated by the statute.
Accordingly;
IT IS ORDERED that Plaintiff's Petition for Attorney's Fees (Rec. Doc. 7) is GRANTED IN PART AND DENIED IN PART. Plaintiff's counsel is awarded $4,156.25 (33.25 hours at $125/hour) in attorney's fees for time spent on this matter.