                                                  NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                 No. 12-1169
                               _______________

                          ERNEST M. D'ORAZIO, III,
                                          Appellant

                                       v.

              WASHINGTON TOWNSHIP; STEPHEN ROLANDO;
            JASON PLAYER; RICHARD SUMEK; RAFAEL MUNIZ;
                    DENNIS SIMS; PAUL MORIARITY
                           _______________

                 On Appeal from the United States District Court
                        for the District of New Jersey
                       (D.C. Civil No. 1-07-cv-05097)
                     District Judge: Hon. Joseph E. Irenas
                               _______________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                October 5, 2012

            BEFORE: FUENTES, FISHER and COWEN, Circuit Judges

                            (Filed: October 16, 2012)
                               _______________

                                  OPINION
                               _______________




COWEN, Circuit Judge.
       Ernest M. D’Orazio, III appeals from the order of the District Court regarding his

Motion for Attorneys’ Fees and Costs, arguing that the District Court committed various

errors in awarding attorneys’ fees and costs. We affirm the order of the District Court,

and remand solely for the limited purpose of correcting an error relating to costs for

ordering transcripts from an administrative hearing.

                                              I.

       We write exclusively for the parties who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       In 2006, Appellant Ernest M. D’Orazio was serving a one-year appointment as a

Special Law Enforcement Officer (“SLEO”) with the Washington Township Police

Department. During this appointment, it declined to appoint him to a full time position

and removed him from his SLEO position. Appellant exercised his right to an

administrative hearing on the merits of his removal. Following the administrative

hearing, he was again not appointed to a permanent position. This suit followed.

       After discovery was completed, the District Court entered an order granting in part

and denying in part summary judgment. Prior to the matter going to trial in the remaining

issues, Appellees submitted a Rule 68 Offer of Judgment in the amount of $75,000,

exclusive of attorneys’ fees and costs, which was accepted.

       Following the entry of Judgment, Appellant filed a Bill of Costs and Motion for

Attorneys’ Fees and Costs. The Magistrate Judge held a hearing and issued a Report and


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Recommendation, awarding a total of $228,607.20. Both parties filed objections to the

petition. The District Court adopted the Report and Recommendation in part, reducing

the total award to $153,147.27. We now review that determination.

                                              II.

       Under 42 U.S.C. § 1988(b), “the court, in its discretion, may allow the prevailing

party . . . a reasonable attorney’s fee as part of the costs.” In determining the

reasonableness of attorneys’ fees, the court should consider “the number of hours

reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). The reasonable hourly rate is calculated “according

to the prevailing market rates in the community.” Washington v. Philadelphia Cnty.

Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996).

       The Supreme Court has noted that “the district court has discretion in determining

the amount of a fee award” because of the district court’s “superior understanding of the

litigation and the desirability of avoiding frequent appellate review of what essentially are

factual matters.” Hensley, 461 U.S. at 437. We review the reasonableness of an award of

attorneys’ fees for an abuse of discretion. Washington, 89 F.3d at 1034.

       Appellant first argues that the District Court abused its discretion in awarding fees

based upon a rate of $250 per hour. The record indicates that the District Court

considered arguments submitted by both parties, including affidavits. The District Court

ultimately credited the affidavits submitted by the Appellees. We cannot say that the

District Court abused its discretion in making this determination.


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       Appellant also claims that the District Court erred by not considering the

Community Legal Service (“CLS”) fee schedule, which he claims has been “adopted” by

the Third Circuit. (Appellant Br. at 29.) The case that Appellant cites for this proposition

does not adopt the CLS fee schedule, but rather used it in one instance. See Maldonado v.

Houstoun, 256 F.3d 181, 187-88 (3d Cir. 2001).

       Appellant also claims that the District Court erred in concluding that the proper

legal market is the “Southern New Jersey” market. We have never held that it is improper

for a District Court to determine—based on the evidence before it—that Southern New

Jersey is an appropriate market. There was no abuse of discretion for the District Court to

come to its conclusion.

       Next, Appellant argues that the District Court erred because it did not conduct a

hearing on the reasonable market rate. This argument is without merit, since the

Magistrate Judge conducted an evidentiary hearing. Prior to the hearing, the parties

submitted multiple affidavits relating to the reasonable market rate, and taking testimony

was not necessary. We conclude that Smith v. Philadelphia Hous. Auth., 107 F.3d 223

(3d Cir. 1997) was complied with.

       Appellant also asserts that the District Court should not have considered

Appellee’s market rate affidavits because they were filed late. It is within the District

Court’s discretion to accept late filings. See N.J. Local Civil Rule 7.1(d)(7).

       Appellant next argues that the District Court abused its discretion in not awarding

fees for work that was performed in the administrative proceedings and for work


                                              4
performed after the filing of the initial Motion for Attorneys’ Fees. These arguments are

without merit.

       District courts have discretion to deny requests for attorneys’ fees for time spent on

optional administrative hearings. See Webb v. Board of Educ. of Dyer Cnty., 471 U.S.

234, 244 (1985). The District Court did not abuse its discretion when it found that

Appellant did not establish an “inextricable link” between the administrative proceeding

and the litigation.

        Similarly, we come to the same conclusion with the argument that the District

Court abused its discretion by declining to award attorneys’ fees for work performed by

Appellant after the filing of the initial Motion for Attorneys’ Fees. Given the record, we

conclude that the District Court properly exercised its discretion to deny attorneys’ fees

for work performed after the submission of the initial motion. See Hensley, 461 U.S. at

437 (explaining that giving the district court such discretion “is appropriate in view of the

district court’s superior understanding of the litigation and the desirability of avoiding

frequent appellate review of what are essentially factual matters”).

       Appellant also argues that the District Court abused its discretion in reducing

attorneys’ fees by 20 percent to reflect “limited success” in the litigation. This argument

does not have merit because district courts have wide discretion to determine whether,

and by how much, fees should be reduced for lack of success. See Hensley, 461 U.S. at

436-37 (noting that “[t]he district court may attempt to identify specific hours that should

be eliminated, or it may simply reduce the award to account for the limited success” and


                                              5
that the “court necessarily has discretion in making this equitable judgment”). Here, the

Magistrate Judge provided many reasons reflecting the “limited success,” including the

fact that Appellant settled for only 4.6 percent of damages originally sought and did not

obtain reinstatement to his job. (J.A. 50-54.)

       Appellant next argues that the District Court abused its discretion by reducing

attorneys’ fees on certain bases that were not objected to by Appellees. This argument

fails, as the District Court was free to accept or reject the Report and Recommendation.

See Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (“Even if neither party objects to the

magistrate’s recommendation, the district court is not bound by the recommendation of

the magistrate.”). Appellant is correct that a district court cannot reduce attorneys’ fees

sua sponte. See Bell v. United Princeton Props., Inc., 884 F.2d 713, 719 (3d Cir. 1989).

However, Appellees objected on these bases in their Brief in Opposition to Plaintiff’s

Application for Fees and Costs. While Appellees did not raise each of these grounds

when objecting to the Report and Recommendation, the objections were part of the

record, and the District Court did not abuse its discretion by reducing attorneys’ fees

based on these grounds.

       Finally, Appellant argues that the District Court erred in denying Appellant’s costs

incurred in the administrative proceeding and the mediation. The District Court was well

within its discretion to deny costs for the investigator fees and mediation fees. However,

the District Court’s opinion contains contradictory language about reimbursement of costs

for the administrative hearing transcript. The District Court noted in the Order that it will


                                              6
permit the reimbursement of costs for the transcript, since it was used at the

administrative hearing. (J.A. 24 n.18.) However, the District Court also noted that it

would deny costs for the administrative hearing transcript, and the Court’s calculation of

costs deducted the cost of the transcript. (J.A. 24-25.) This was an error. We remand for

the limited purpose of awarding $3,290.75 in costs for the administrative hearing

transcript.

                                            III.

       For the foregoing reasons, we will affirm in part the order of the District Court and

remand in part for the limited purpose of awarding $3,290.75 in costs for the

administrative hearing transcript.




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