On Appeal From the United States District Court for the Eastern District of Pennsylvania
D.C. Nos. 94-cv-07284 and 95-cv-07658
BEFORE: COWEN, ALITO and ROSENN Circuit Judges
Plaintiffs in this consolidated appeal contest the amount of attorney's fees awarded by the district court pursuant to 42 U.S.C. 1988. Specifically, they contend that the district court erred in finding $150 to be the reasonable hourly rate for the services provided by their attorney, rather than the $210 per hour they requested. For the reasons that follow, we will vacate the judgments of the district court and remand for further proceedings.
Plaintiffs Vernita Smith and Carmen Rivera are indigent tenants of defendant Philadelphia Housing Authority ("PHA"). Each commenced an action in the district court pursuant to 42 U.S.C. Section(s) 1983 and the United States Housing Act, 42 U.S.C. Section(s) 1437 et seq., in order to enforce administrative grievance awards previously issued in their favor pursuant to 24 C.F.R. Section(s) 966.50-.57. Smith's award required the PHA to make certain repairs to her rental unit. Rivera's award provided for a rent abatement and a rollback of a rent increase imposed by the PHA. Both Smith and Rivera were represented by Michael Donahue, Esq., of Community Legal Services ("CLS") of Philadelphia. It is not disputed that Smith and Rivera were each a "prevailing party" in their respective lawsuits, within the meaning of Section(s) 1988.
Plaintiffs petitioned the court for attorney's fees pursuant to 1988, requesting an hourly rate of $210. In support of their petitions, plaintiffs each submitted two affidavits, one from Donahue and one from Lorrie McKinley. McKinley is Project Head of the Employment Law Project at CLS and Chair of the CLS Attorneys Fees Committee, which establishes the usual billing rates for CLS counsel. Donahue's affidavit noted that he has been a member of the federal bar since 1978, and has litigated over 200 cases involving the federal housing regulations, including ten class actions and four successful appeals in this Court. *fn1 Donahue averred that $210 per hour is a reasonable market rate for the services he rendered.
McKinley's affidavit stated that she has been practicing law since 1984 and is familiar with the market rates for civil rights attorneys in the Philadelphia area. It stated that Donahue's usual hourly rate is $210, and that this rate is consistent with the rates for attorneys of similar experience and skill in civil rights matters in Philadelphia. The latter statement is based on the CLS schedule of rates, which in turn is "based upon a survey of hourly rates charged by private law firms and individual practitioners in Philadelphia." App. at 38.
In both cases, the PHA objected to the proposed hourly rate because it was higher than the rate awarded Donahue in similar prior cases, but it offered no affidavits to support its position. The PHA did not object to the McKinley affidavit, but it contested the propriety and reliability of the underlying fee schedule and survey. Without holding evidentiary hearings, the district court set the hourly rate at $150 in both cases. The court cited opinions in prior cases in which Donahue had represented plaintiffs in actions brought pursuant to the Housing Act, and in which the court had set Donahue's rate at $150 per hour. This consolidated appeal followed.
The reasonableness of an award of attorney's fees is reviewed pursuant to an "abuse of discretion" standard. See Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1034 (3d Cir. 1996); Coleman v. Kaye, 87 F.3d 1491, 1509 (3d Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 754 (1997); Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). "[A]n attorney's marketplace billing rate is a factual question which is subject to a clearly erroneous standard of review." Washington, 89 F.3d at 1035; see Student Pub. Interest Research Group v. AT & T Bell Labs., 842 F.2d 1436, 1442 (3d Cir. 1988). The question of whether the district court applied the appropriate standards and procedures ...