Chisholm v. Hood

PER CURIAM. * Defendant contests, as being excessive, the hourly rates set by the district court in awarding attorney’s fees to plaintiffs. Defendant does not challenge the “lodestar”, which is determined by multiplying the number of compensable hours reasonably expended by a rate considered appropriate in that community. See Shipes v. Trinity Industries, 987 F.2d 311, 319-20 (5th Cir. 1993). Rather, defendant contends the specific rates set by the district court for plaintiffs’ experienced counsel are excessive when compared to previous awards in comparable civil rights cases, previous rates set by another district court for these very attorneys, and the non-profit status of the organization which employs two of plaintiffs’ attorneys. Although the total award for attorneys fees is reviewed for abuse of discretion, “a district court’s determination of a ‘reasonable hourly rate’ is a finding of fact subsidiary to the ultimate award, and is, therefore, reviewable under the clearly-erroneous rubric”. Islamic Ctr. of Miss., Inc. v. City of Starkville, Miss., 876 F.2d 465, 468 (5th Cir.1989). Defendant contends that the district court erred by not considering the same cases reviewed by a magistrate judge in another action. The district court was not required to do so. Determination of the reasonable hourly rate for a particular community is generally established through affidavits of other attorneys practicing there. E.g., Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir.1993). The district court evaluated, inter alia, two affidavits from local attorneys as to prevailing market rates, and set the rates for plaintiffs’ attorneys within that range. Defendant complains that two of plaintiffs’ attorneys were awarded fees in another action at $25 per hour less than the award here. This award was not clearly erroneous. The district court must deter *711 mine the appropriate rate on a case by case basis; and, in some instances, the same attorney will receive different rates for different cases. See Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir.2000), cert. denied by 533 U.S. 929,121 S.Ct. 2550, 150 L.Ed.2d 717 (2001). Defendant also contends that two of plaintiffs’ attorneys should have been awarded fees at lower rates because of their affiliation with a non-profit organization. The Supreme Court has specifically rejected this contention in reviewing the Civil Rights Attorney’s Fees Awards Act of 1976, holding that rates for fees under the Act are to be determined by the prevailing market rates. See Blum v. Stenson, 465 U.S. 886, 893-895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Finally, defendant contends the district court erred when setting the hourly rate for out-of-town counsel. But the rate for out-of-town counsel was set at $75 less than requested by plaintiffs, and well within the acceptable market range. The district court’s determination regarding plaintiffs’ attorneys rates was not clearly erroneous. (Plaintiffs’ motion for summary affirmance of the portion of the judgment not contested on appeal is DENIED as moot.) AFFIRMED Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.