the $ 75 statutory lodestar rate results in a compensation rate of $ 95 per hour. Defendants do not dispute this calculation. Defendants' Opposition Memorandum at 10.
Mr. Bernsen, however, requests compensation at the rate of $ 200 per hour. The EAJA expressly recognizes that the presence of special factors, such as the "limited availability of qualified attorneys for the proceedings involved," justifies an award of fees at a rate in excess of the statutory cap. See 28 U.S.C. § 2412(d)(2)(A). With this in mind, Mr. Bernsen points to the following facts: he is a recognized expert in immigration and nationality law, having been employed by the INS for more than 37 years and having served as General Counsel from 1974 to 1977; it is common knowledge that immigration law is a specialized field requiring a high degree of specialized knowledge; this case involved a number of novel and difficult issues in immigration law and practice; a rate of $ 200 per hour is reasonable because Mr. Bernsen normally bills clients $ 250 per hour for his work on immigration matters.
The Supreme Court has noted that attorneys with an "identifiable practice specialty" fall within the statutory language allowing "qualified attorneys" to recover in excess of $ 75 per hour under the EAJA. Pierce v. Underwood, 108 S. Ct. at 2554. The Court is persuaded that Mr. Bernsen is entitled to an enhanced award to compensate for his expertise. However, the Court believes that a rate of $ 200 per hour is excessive under the circumstances. First, it is evident that a rate of $ 200-250 per hour is customarily charged by attorneys who specialize in immigration law. See Declaration of David Carliner, Exhibit 3 to Plaintiff's Memorandum. But an attorney's customary billing rate does not provide the starting point for determining reasonable hourly rates when making an award of fees under the EAJA. Abel Converting, Inc. v. United States, 695 F. Supp. 574, 580 n. 6 (D.D.C. 1988). Second, and more to the point, the instant case involved plaintiff's filing of a writ of mandamus to compel an agency to perform an essentially ministerial task. The Court is not convinced that the nature of this proceeding raised complicated issues of immigration law. Indeed, as plaintiff's counsel explained in oral argument, the proposed and final decisions of the INS were each less than two pages in length, signifying the uncomplicated, routine nature of the issues involved. The Court will therefore reduce Mr. Bernsen's proposed hourly rate from $ 200 to $ 150, which still fairly acknowledges and compensates his expertise in immigration matters.
Finally, plaintiff seeks to recover a filing fee of $ 120. Although defendant asserts that such fees are not recoverable under the EAJA, case law supports plaintiff's contention that such court costs are allowed to prevailing parties in mandamus actions. See, e.g., Dillard v. Yeldell, 334 A.2d 578 (D.C. 1975). Plaintiff will be awarded this cost.
Plaintiff is entitled to recover attorneys fees and expenses for prevailing in this mandamus action to compel the INS to adjudicate his application for adjustment of status. Defendants concede that plaintiff was a prevailing party and have failed to show that the agency's nearly two-year delay was substantially justified. Plaintiff's itemized submissions show that Mr. Bernsen expended 31.25 hours and Mr. Rubin expended 36.5 hours representing plaintiff in this litigation. n3 The Court will allow Mr. Bernsen to recover at the rate of $ 150 per hour and Mr. Rubin to recover at the rate of $ 95 per hour. This results in a total award of $ 8,275.00, which breaks down as follows:
31.25 hours (Mr. Bernsen) x $ 150/hour = $ 4,687.50
36.50 hours (Mr. Rubin) x $ 95/hour = $ 3,467.50
Costs (filing fee) = $ 120.00
Total = $ 8,275.00
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