Opinion
Civil Action No: 00-3512 SECTION: "M" (4)
July 20, 2001
The plaintiff's Motion for Award of Fees and Costs (doc. #10), filed pursuant to the Equal Access to Justice Act, Title 28 U.S.C. § 2412 (d)(1)(A), has been referred to the undersigned United States Magistrate Judge. Upon review of the motion, however, the Court finds that the plaintiff has failed to submit sufficient information for the Court to make a determination of whether the suggested hourly rate is "reasonable."
See Rec. doc. #11. Order of Reference (Beer, J.).
The process for determinating a reasonable fee under the EAJA, Title 28 U.S.C. § 2412 (d)(1)(A), is the same as that followed in cases awarding fees under 42 U.S.C. § 1988, by computing the "lodestar" figure. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 160 (1990) ("once a private litigant has met the multiple conditions for eligibility for EAJA fees, the district court's task of determining what fee is reasonable is essentially the same as that described in Hensley [v. Eckerhart, 461 U.S. 424 (1983)]"). Accordingly, the Court must determine the reasonable number of hours expended in the litigation and the reasonable hourly rate for the participating attorneys. Hensley, 461 U.S. at 433. The lodestar is then computed by multiplying the number of hours by the reasonable hourly rate. Id.
See also Clevenger v. Chater, 977 F. Supp. 776, 779 (M.D. La. 1997) (Parker, J.) (noting that while the cases do nor focus on the statute's initial requirement to award fees based on prevailing market rates, the plain language of the statute clearly contemplates the application of the lodestar method of calculating attorney's fees); Gregory C. Sisk, The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part Two), 56 La. L. Rev.1, 109 (1995).
Relevant to the Court's determination of a reasonable hourly rate, the EAJA provides that:
reasonable fees shall be based upon prevailing market rates for the kind and quality of the services furnished. . . ., except that . . . attorneys 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.See 28 U.S.C. § 2412 (d)(2)(A) (emphasis added). Thus, under the plain language of the statute, a reasonable hourly rate is the "prevailing market rate for the kind and quality of the services furnished." It is the applicant's burden to produce satisfactory evidence that the requested rates are in line with prevailing market rates. Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984); Hensley, 461 U.S. at 437.
Although Hensley involved an award of attorney's fees pursuant to 42 U.S.C. § 1988. the Court specifically stated that, "[t]he standards set forth in this opinion are generally applicable to all cases in which Congress has authorized an award of fees to a `prevailing party.'" Id. at 433 n. 7.
"Satisfactory evidence" of the reasonableness of the rate necessarily includes an affidavit from each attorney performing the work, detailing his background, experience, and usual billing rate. Id. Further, satisfactory evidence must speak to the rates actually billed and paid in similar lawsuits. Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). Thus, in addition to the attorney's own affidavit, the applicant must also introduce evidence of the rates charged in similar cases by other attorneys in the same legal community, who possess similar experience, skill and reputation. See Blum, 465 U.S. at 896, n. 11 (fee applicant has burden "to produce satisfactory evidence — in addition to counsel'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"); Norman, 836 F.2d at 1299.
The plaintiff in this case suggests that the statutory maximum rate of $125.00 per hour is reasonable and appropriate for the services provided by his counsel. However, the Court has not been provided any proof of counsels' education, background or experience. Nor, has it been provided any evidence of the customary fee of other area lawyers of reasonably comparable skill, experience, and competence for representation of Social Security Appeals.
Therefore, in order for the Court to conduct a proper review of the pending motion, counsel for the plaintiff is ORDERED to provide the Court with (1) an affidavit from each attorney (or paralegal) attesting to his or her education, background, skills and experience and (2) sufficient evidence of the customary fee of other area lawyers of reasonably comparable skill, experience, and competence for representation of Social Security Appeals no later than July 27, 2001.