Chisholm v. Hood , 90 F. App'x 709 ( 2004 )


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  •                                                      United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS           January 22, 2004
    FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 03-30520
    Summary Calendar
    MELANIE CHISHOLM, next best friend of minors Christina Chisholm
    and Meredith Chisholm, ET AL.,
    Plaintiffs,
    LINDA ELLISON, next best friend of minor Erin Ellison, WILLIE MAE
    REAMS, next best friend of minor Jonathan Turner, on behalf of
    themselves and others similarly situated,
    Plaintiffs-Appellees,
    versus
    DAVID W. HOOD, as the Secretary of the Louisiana Department of
    Health and Hospitals,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    (97-CV-3274-J)
    Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
    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
    *
    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    that this opinion should not be published and is not precedent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.
    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.
    2
    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 determine 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
    (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 (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
    3