ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC
As no member of this panel, nor any other judge in regular active service on this court, has requested that this court be polled on rehearing en banc (Rule 35, Fed.R.App.P.; 11th Cir.Rule 35-5), the suggestion of rehearing en banc is DENIED. However, the original panel hereby grants rehearing, withdraws the previous panel opinion dated September 28, 1993, published at 3 F.3d 356 (11th Cir.1993), and substitutes therefor the following opinion:
This appeal arises out of a dispute between William Loranger ("Loranger") and Dade County, Florida (the "County") regarding a 30' hedge of orange jasmine trees located on Loranger's property (the "hedge"). Between 1978 and 1979, the County issued numerous citations directing Loranger to cut the hedge to 4'.
In 1981, Loranger initiated an action in federal court that gives rise to this appeal. Loranger sued the County, as well as County officials (collectively, the "defendants"), alleging violations of his due process, equal protection and first amendment rights. The district court dismissed Loranger's complaint with leave to amend, holding that the defendants
In December of 1985, one of Loranger's attorneys, Michael D. Ray ("Ray"), filed a motion for attorney's fees and costs pursuant to 42 U.S.C.A. § 1988.
The district court first ruled on Ray's motion in January of 1988, awarding $35,000 in attorney's fees and $3,181.50 in costs. Ray filed a suggestion for en banc review of the district court's initial fee award by the other judges of the Southern District of Florida. The district court did not circulate the suggestion for en banc review. Loranger, through Ray, moved to recuse the trial judge. The district court denied Loranger's motion for recusal. Loranger attempted to appeal. We declined to review the interlocutory order until final judgment.
Thereafter, the district court held a hearing on Ray's request for attorney's fees and costs. This time, the district court awarded Ray fees in the amount of $50,400, finding only 800 hours of the 2907 hours claimed to be allowable hours devoted to the federal litigation. In addition, the district court concluded that only 560 of those 800 hours were compensable. The district court found that a reasonable hourly rate was $75, and that in this case an upward adjustment to $90 was appropriate. Ray appeals from the district court's award, as well as its denial of his motion for recusal. We affirm the district court's order denying Loranger's motion for recusal but vacate the district court's fee order and remand for further consideration.
II. ISSUES ON APPEAL
In this opinion we address the following issues:
III. STANDARD OF REVIEW
We review a district court's denial of a recusal motion for abuse of discretion. Jaffree v. Wallace, 837 F.2d 1461, 1465 (11th Cir.1988). Similarly, a district court's order on attorney's fees is reviewed for abuse of discretion. Popham v. City of Kennesaw, 820 F.2d 1570, 1581 (11th Cir.1987). Hence, a district court's order on attorney's fees must allow for meaningful review. See Norman v. Housing Auth., 836 F.2d 1292, 1304 (11th Cir.1988).
IV. CONTENTION OF THE PARTIES
Ray's arguments are prolix. In short, Ray contends that the district court erred in fashioning his award by (1) using an hourly rate of $90, (2) inadequately explaining the reduction in claimed hours, (3) failing to enhance the award as requested and (4) failing to award all the costs claimed. In addition, Ray argues that the district judge erred by failing to recuse himself from this case per 28 U.S.C.A. § 455(a). Ray contends that (1) the two year delay between the motion for attorney's
In response to Loranger's motion for recusal, defendants simply argue that the motion is without merit. That is, Ray offers no evidence that would cause a reasonable person to conclude that the lower court was biased.
As to the fee award, defendants assert two principal objections to Ray's fee request. First, they argue that the time compensable under 42 U.S.C. § 1988 is the time that was reasonably expended on this lawsuit, and that Ray's fee request seeks compensation for time expended other than on this litigation. Accordingly, defendants argue that the district court correctly found that not all the time Ray claimed was compensable. Second, defendants challenge the time that Ray alleges was expended on this lawsuit. The defendant's objection to Ray's fee request is not that such time was not spent, but rather that the time spent was excessive — i.e., not reasonably expended in the conduct of the litigation — and that the exercise of "billing judgment" requires that the hours be reduced. Moreover, defendants contend that under such circumstances the district court was entitled to reduce Ray's request in gross rather than attempting the impossible task of itemizing those numerous hours for which Ray was not entitled to compensation.
A. Did the district court err in denying the motion for recusal?
Under Section 455(a) "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C.A. § 455(a) (1993). Disqualification under section 455(a) is required only when the alleged bias is personal in nature, however. Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1020 (5th Cir. 1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982). "[F]or a bias to be personal, and therefore disqualifying, it `must stem from an extra-judicial source.'" In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 964 (5th Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980) (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)). Thus, as a general rule, a judge's rulings in the same case are not valid grounds for recusal. Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481 (1921).
Every incident of alleged bias cited by Ray occurred during the district judge's handling of the motion for fees. As none of these grounds "stem from an extra-judicial source," we do not find that the district court abused its discretion in denying Loranger's motion for recusal.
However, the fact that a judge's remarks or rulings occur in a judicial context does not necessarily insulate them from scrutiny. In rare cases
B. Did the district court err in fashioning Ray's fee award?
The starting point in fashioning an award of attorney's fees is to multiply the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). This "lodestar" may then be adjusted for the results obtained. Id. at 435-37, 103 S.Ct. at 1940-41; Norman v. Housing Auth., 836 F.2d 1292, 1302 (11th Cir.1988). Although a district court has wide discretion in performing these calculations, Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, "[t]he court's order on attorney's fees must allow meaningful review — the district court must articulate the decisions it made, give principled reasons for those decisions, and show its calculation." Norman, 836 F.2d at 1304.
1. The reasonable hourly rate
The first step in the computation of the lodestar is determining the reasonable hourly rate. "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman, 836 F.2d at 1299 (citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547-48 n. 11, 79 L.Ed.2d 891 (1984)). The party seeking attorney's fees bears the burden of producing "satisfactory evidence that the requested rate is in line with prevailing market rates." Id. By "satisfactory evidence," we mean "more than the affidavit of the attorney performing the work." Id.
Ray requested an hourly rate of $125. In support of that rate, he presented the district court with three affidavits, all executed by attorneys in the Dade County area, all testifying that an hourly rate of $125 was reasonable. In opposition to these affidavits, the defendants submitted another attorney's affidavit, testifying that an hourly rate of $60-75 was reasonable. A court, however, "is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value." Norman, 836 F.2d at 1303 (citing Campbell v. Green, 112 F.2d 143, 144 (5th Cir.1940)).
The district court determined that "[a] reasonable hourly rate of attorneys fee for this cause of action at the time in question for an attorney with the general legal background and experience of the movant is $75.00." (Supp.R.1-400 at 2). The district court rejected Ray's request for $125 per hour as "[a] review of the record and the facts established in the various filings in connection with the attorneys fee motion do not support the higher ($125.00) hourly rate sought by the movant." (Id. at n. 5). Then looking to the difficulty of the case, the contingent nature of the fee and the time limitations imposed, the district court adjusted the hourly rate upwards to $90. (Id. at 2, n. 6).
2. The reasonable number of compensable hours
a. Determination of compensable hours
Ray's contention that his fee award amounts to $17.34 per hour assumes that he is entitled to compensation for all
Ray does not contend that he has submitted his fee request in a form which would enable the district court to determine how much time was spent on the federal litigation.
In determining that only 800 of the 2907 hours were devoted to the federal litigation, the district court noted that Ray's "timesheets, in some instances, group together his claimed legal services, thereby making it difficult to determine the exact number of hours undertaken in the present case, vis-a-vis other (non-allowable) discrete proceedings and unsuccessful claims." (Supp.R.1-400 at n. 2). The district court correctly decided that it should disallow all claims for compensation for time expended independent of the federal litigation. However, when a request for attorney's fees does not permit easy division between compensable and non-compensable hours, a district court should require the party seeking fees to refashion its request. See King v. McCord, 707 F.2d 466, 468 (11th Cir.1983). Thus, instead of undertaking the imprecise and tortuous task of determining compensable hours based on Ray's fee request, the district court should have required Ray to resubmit his request in a form that would allow the district court to clearly delineate between the federal litigation and other matters.
b. Determination of reasonable hours
Following Ray's resubmission of his fee request on remand, the district court will need to decide how many hours were reasonably expended in the conduct of the federal litigation in order to calculate Ray's fee award. Previously, the district court found only 800 hours devoted to the federal litigation of which 560 were found to be compensable. (Supp.R.1-400 at 2). A review of Ray's fee request and the record convince us that many of the hours expended in the conduct of this litigation were "excessive, redundant or otherwise unnecessary." See Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40. The record is replete with long, rambling documents filed by Ray, which contain more rhetoric than substance. The fee request evidences patently excessive expenditures of time throughout the litigation.
Ray argues that the district court failed to explain, in derogation of Norman v. Housing Auth., 836 F.2d 1292, 1304 (11th Cir.1988), which of the 800 hours were disallowed and why. Norman is one of a long line of decisions in this circuit applying the rule that when hours are disallowed the court should identify the hours disallowed and explain why they are disallowed.
Other circuits have grappled with the question, and have almost uniformly held that where a fee application is voluminous, an hour-by-hour analysis of a fee request is not required. See, e.g., Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1202-03 (10th Cir.1986); New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983); Copeland v. Marshall, 641 F.2d 880, 903 (D.C.Cir.1980). In fact, given a voluminous application, most circuits recognize the utility of across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure. See id. This approach does not relieve district courts of the requirement to concisely but clearly articulate their reasons for selecting specific percentage reductions. See Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992). Some circuits explicitly state that the adequacy of a court's explanation should be carefully scrutinized where substantial fees are involved. See, e.g., Gates, 987 F.2d at 1399; In re Continental Illinois Sec. Litig., 962 F.2d 566, 570 (7th Cir.1992); In re Fine Paper Antitrust Litig., 751 F.2d 562, 594-95 (3d Cir.1984). Regardless, a court's explanation must provide for meaningful review. See, e.g., Gates, 987 F.2d at 1400. When faced with a massive fee application, however, an hour-by-hour review is both impractical and a waste of judicial resources. See Copeland, 641 F.2d at 903.
We adopt our sister circuits' position regarding review of voluminous fee applications. In a case like this one, where the fee motion and supporting documents are so voluminous, it is sufficient for the court to provide a concise but clear explanation of its reasons for the reduction. Accordingly, on remand the district court need not engage in an hour-by-hour analysis. Rather, once the district court determines how many hours were actually devoted to the conduct of the federal litigation, it may then reduce that figure in gross if a review of the resubmitted fee request warrants such a reduction.
3. Enhancement of the fee award
Ray argues that a remand is necessary because the district court needs to decide whether this is that rare and exceptional case where an upward adjustment of the lodestar is called for because of exceptional success. We disagree. The district court has already found that the success the plaintiff achieved in this case "was, in large part, due to the services at trial of another lawyer." (Supp.R.1-400 at 3 n. 7) (emphasis added). This record could not support an upward adjustment of the lodestar. Ray's argument with regard to enhancement is without merit.
4. The reasonable expenses
As with his hours claimed, expenses claimed by Ray are also lumped together. Ray's expenses include costs incurred in both state and federal litigation as well as costs which cannot be allocated to any particular litigation. For example, the cost of 18,007 photocopies at 25 cents per page includes 6,427 copies allocated to the federal litigation; 3,580 copies allocated to the state litigation; and 8,000 copies not allocated to any particular litigation. Ray argues that the district court abused its discretion by reducing these expenses "without explanation." We find that the burden rests with Ray to submit a request for expenses that would enable the district court to determine what expenses were incurred on the federal litigation. Accordingly, on remand Ray should be directed to resubmit a request for expenses in a form that demonstrates his entitlement to them.
For the foregoing reasons, we AFFIRM the district court's order denying Loranger's motion for recusal, and VACATE and REMAND the district court's fee award for reconsideration. On remand, the district court should order Ray to undertake to separate the time and expense related to the federal litigation from that not so related. After that is done, the district court should be able to make findings as to the total time and expense reasonably expended on the federal litigation. However, the district court need only provide a concise but clear explanation of its reduction, if any, as opposed to engaging in an hour-by-hour analysis. In a case like this one, no more should be required.
AFFIRMED in part, VACATED AND REMANDED WITH INSTRUCTIONS.
Similarly, Ray claims time spent on the 1980 state court action that was eventually voluntarily dismissed. Defendants estimate, based on Ray's records, that some 824 hours were devoted to that non-compensable action. (R.9-342 at 8).