Chisholm, et al v. Hood

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 22, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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

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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.

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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

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