                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-2671
                                    ____________

                                  DENISE CAREY,

                                       Appellant

                                           v.

                             CITY OF WILKES-BARRE;
                         MAYOR THOMAS M. LEIGHTON,
                        individually and in his official capacity
                                    ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. No. 3-05-cv-02093)
                     District Judge: Honorable Sylvia H. Rambo
                                    ____________

                           Argued March 20, 2012
            Before: RENDELL, FISHER and CHAGARES, Circuit Judges.

                          (Opinion Filed: August 23, 2012)

Cynthia L. Pollick (Argued)
The Employment Law Firm
363 Laurel Street
Pittston, PA 18640
       Counsel for Appellant

Mark W. Bufalino (Argued)
Paula L. Radick
Elliott Greenleaf & Dean
39 Public Square, Suite 1000
Wilkes-Barre, PA 18702
Ingrid S. Cronin
Office of Federal Public Defender
116 North Washington Avenue
Kane Professional Building, Suite 2C
Scranton, PA 18503

John G. Dean
Joel M. Wolff
Elliott Greenleaf & Dean
201 Penn Avenue, Suite 202
Scranton, PA 18503

Joseph Van Jura
Harris & Van Jura
26 Pierce Street
Kingston, PA 18704
       Counsel for Appellees
                                      ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Plaintiff Denise Carey (“Carey”) prevailed in a First Amendment Retaliation claim

against the City of Wilkes-Barre and its Mayor (collectively, “Defendants”), and

requested attorney’s fees and costs. The District Court granted the request in part, but

reduced the hourly rate for Cynthia Pollick, Carey’s attorney, from $300 to $225 per

hour. Carey appeals from the judgment reducing Pollick’s hourly rate. For the reasons

stated below, we will affirm.




                                             2
                                             I.

       We write principally 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.

       Carey hired Attorney Cynthia L. Pollick (“Pollick”) to represent her in a First

Amendment Retaliation claim against Defendants. A jury verdict was returned for Carey,

and the District Court filed a judgment accordingly. See Carey v. City of Wilkes-Barre,

No. 3:05-cv-02093-SHR, ECF Nos. 132-34 (M.D. Pa. Nov. 11, 2008). The jury awarded

Carey $2,000 in lost wages and $15,000 for emotional distress, as well as $50,000 in

punitive damages against the Mayor. Following post-trial motions, Carey filed a motion

for attorney’s fees and costs. 1

       Carey requested a rate of $300 per hour for the hundreds of hours Pollick spent on

the case during six years of litigation. Pollick submitted an affidavit explaining her

experience since graduating from law school in 1999. She claimed that her hourly rate of

$300 was reasonable for attorneys performing civil rights work in the area, and included

as an exhibit a copy of an affidavit submitted in another civil rights case by Attorney




       1
         Carey’s motion was stayed pending Defendants’ appeal of the judgment. On
February 8, 2011, we issued an opinion and order affirming the District Court’s judgment
in favor of Carey. See Carey v. City of Wilkes-Barre, 410 F. App’x 479 (3d Cir. 2011).
Following our affirmance, the District Court lifted the stay on Carey’s motion and set a
briefing schedule.


                                              3
Barry Dyller, in which he discussed his rates, ranging from $300 to $375 per hour, and

stated that he began practicing in 1985.

       Defendants objected to Pollick’s rate, claiming that it was unreasonable. As

evidence, they cited to another civil rights case, which Pollick worked on

contemporaneously to Carey’s case, wherein the court awarded Pollick $215 per hour.

See Lohman v. Duryea Borough, No. 3:05-CV-1423 (M.D. Pa. July 30, 2008). They also

cited to several court decisions where an attorney was either more experienced than

Pollick, see Lewis v. Smith, No. 08-3800 (3d Cir. July 28, 2010) (granting rate of $300

per hour), or granted a rate of less than $300 per hour. See Moore v. Susquehanna Area

Reg’l Airport Auth., No. 1:02-CV-0535, WL 2430790 (M.D. Pa. DATE 2005); Svecz v.

Commw. of Pa. Dep’t of Corr., No. 3:98-CV-1177 (M.D. Pa. Nov. 17, 2003).

       The District Court denied in part and granted in part Carey’s motion for attorney’s

fees and costs. See Carey v. City of Wilkes-Barre, No. 3:05-CV-2093, 2011 WL 1900169

(M.D. Pa. May 19, 2011). The District Court reduced Pollick’s hourly rate from $300 to

$225, awarding Carey $147,217.50 in attorney’s fees and $8,163.63 in costs. Id. 2 Carey

timely appealed.




       2
        The District Court also ruled on other aspects of the fee award, which are not
relevant here because Carey appeals solely the issue of Pollick’s hourly rate.


                                            4
                                              II.

       The District Court had jurisdiction over the case pursuant to 28 U.S.C. § 1331, and

had the authority to award attorney’s fees under 28 U.S.C. § 1988(b). We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       “We review de novo the standards and procedures applied by the District Court in

determining attorneys’ fees, as it is a purely legal question.” Loughner v. Univ. of

Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001). “However, the reasonableness of an award

of attorney’s fees is reviewed for abuse of discretion. . . . A fee award ‘is within the

district court’s discretion so long as it employs correct standards and procedures and

makes findings of fact not clearly erroneous.’” Id. (quoting Pa. Environ. Def. v. Canon-

McMillan, 152 F.3d 228, 232 (3d Cir.1998)).

                                             III.

       A district court may award “the prevailing party . . . a reasonable attorney’s fee” in

a Section 1983 case. 42 U.S.C. § 1988(b); Evans v. Port Auth. of N.Y., 273 F.3d 346, 358

(3d Cir. 2001). In so doing, “[a] District Court may not set attorney’s fees based on a

generalized sense of what is usual and proper but ‘must rely upon the record.’” Id. at 361

(quoting Smith v. Philadelphia Housing Authority, 107 F.3d 223, 226 (3d Cir.1997)).

       In order to determine what fee is reasonable, district courts must apply a burden-

shifting type of procedure. See Evans, 273 F.3d at 361. First, “[t]he plaintiff bears the

burden” of establishing the prima facie case by “producing sufficient evidence of what

constitutes a reasonable market rate[.]” Id. A reasonable market rate is established “with

                                              5
reference to ‘the community billing rate charged by attorneys of equivalent skill and

experience performing work of similar complexity.’” Id. at 360-61 (quoting Student Pub.

Interest Research Grp. v. AT & T Bell Labs., 842 F.2d 1436, 1450 (3d Cir.1988)). “An

attorney’s usual billing rate is a good starting point for assessing reasonableness, though

it is not dispositive.” Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 374 (3d Cir.

2004) (citing Maldonado v. Houstoun, 256 F.3d 181, 184-85 (3d Cir. 2001)). “To inform

and assist the court in the exercise of its discretion, the burden is on the fee applicant to

produce satisfactory evidence--in addition to the attorney’s own affidavits--that the

requested rates are in line with those prevailing in the community for similar services by

lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson,

465 U.S. 886, 895 n.11 (1984). That evidence often comes in the form of affidavits from

other attorneys. See Evans, 273 F.3d at 360-61.3

       Once the plaintiff has established her prima facie case, the defendant may contest

the reasonableness of the rate with “appropriate record evidence.” Id. at 361. If the

       3
           Factors to consider in calculating a reasonable attorney’s fee include:

        “(1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in
similar cases.”

       City of Riverside v. Rivera, 477 U.S. 561, 568 n.3 (1986).


                                                6
defendant “seeks to raise a factual issue--for example, a claim that the fee applicant’s

billing rate was lower than claimed--he or she must introduce affidavits averring the facts

upon which the challenge is based.” Bell v. United Princeton Props., Inc., 884 F.2d 713,

720 (3d Cir. 1989). Notably, hourly rates that were set for a specific attorney in previous

court decisions do not generally constitute record evidence, Smith, 107 F.3d at 226,

unless those rates were set for the same attorney and for the same type of work over a

contemporaneous time period. See Black Grievance Comm. v. Phila. Elec. Co., 802 F.2d

648, 652 (3d Cir. 1986), vacated on other grounds, 483 U.S. 1015 (1987).

       If the plaintiff fails to meet her prima facie case, the district court has the

discretion to determine what award is reasonable. See Loughner, 260 F.3d at 180

(“Having rejected the prevailing party’s evidence of rates, the District Court was free to

affix an adjusted rate.”). Otherwise, once the plaintiff has established a prima facie case

for the requested hourly rate, the district court does not have the discretion to question or

change the rate absent record evidence. See Washington v. Phila. Cnty. Ct. of Com. Pl.,

89 F.3d 1031, 1036 (3d Cir. 1996).

       Attorney Pollick argues on appeal that the District Court did not use the proper

procedure for determining her hourly rate. Essentially, she argues that she established

that her hourly rate was reasonable, and that Defendants failed to provide record evidence

rebutting the reasonableness of her rate.

       We acknowledge that the District Court failed to apply the required burden-

shifting analysis. It failed to discuss whether Pollick had met her prima facie case, and it

                                               7
had no need or basis for considering Defendants’ rebuttal evidence until Pollick had done

so. 4 Its failure to follow appropriate procedures in determining attorney’s fees was in

error. See Loughner, 260 F.3d at 177. Nevertheless, we find that any procedural error

was harmless because it is clear that the outcome was unaffected by the District Court’s

failure to follow the appropriate procedure. See Klinger v. State Farm Mut. Auto. Ins.

Co., 115 F.3d 230, 236-37 (3d Cir. 1997). The District Court explained that the affidavit

Pollick provided regarding Dyller’s comparable rates actually tended to show that

Pollick’s rate was too high, because Dyller had at least fifteen years more experience than

Pollick. See Carey, 2011 WL 1900169, at *2. Thus, the District Court clearly found that

Pollick failed to prove that her rates were reasonable, see id., and without doing so,

Pollick could not possibly have established her prima facie case.

       Turning to the reasonableness of the award, we note that we do not necessarily

agree with the District Court’s substantive determination that Pollick failed to establish




       4
         We note, however, that had the District Court found that Pollick sufficiently
established her rates as reasonable, the Defendants submitted at least one case that
provided valid rebuttal evidence: Lohman v. Duryea Borough, No. 3:05-CV-1423 (M.D.
Pa. July 30, 2008). Lohman was a civil rights case which Pollick worked on
contemporaneously with Carey’s case where Judge Caputo determined that $215 per hour
was a reasonable rate for Pollick, and thus would have provided a factual basis for
rebuttal. See Black Grievance Comm. v. Phila. Elec. Co., 802 F.2d 648, 652 (3d Cir.
1986), vacated on other grounds, 483 U.S. 1015 (1987).


                                             8
that her rates were reasonable. 5 However, we “may not upset a trial court’s exercise of

discretion on the basis of a visceral disagreement with [its] decision.” Lindy Bros.

Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 116

(3d Cir. 1976). Because reasonable finders of fact could differ as to whether Pollick

established that her hourly rate was reasonable, we find no abuse of discretion in the

District Court’s determination. See Silberman v. Bogle, 683 F.2d 62, 65 (3d Cir. 1982)

(“If reasonable men could differ as to the propriety of the action taken by the trial court,

then it cannot be said that the trial court abused its discretion.” (internal citation and

quotation marks omitted)); P. Mastrippolito & Sons, Inc. v. Joseph, 692 F.2d 1384, 1387

(3d Cir. 1982) (“[T]he district court judge was particularly qualified to perform the

balancing of equities that is an integral part of the proceedings for award of attorney’s

fees.”).

                                              IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.



       5
        Especially troubling is the fact that, as Carey pointed out in her reply brief and at
oral argument, within months of the finding that Pollick did not deserve $300 per hour, a
less-experienced male attorney, who was also practicing civil rights litigation before the
United States District Court for the Middle District of Pennsylvania, received an award of
$300 per hour. See Todd v. Luzerne County Children and Youth Services, No. 3:04-cv-
2637 (M.D. Pa. Aug. 10, 2011). In Todd, the same judge who had reduced Pollick’s
award to a rate of $215 per hour in Lohman, No. 3:05-CV-1423, awarded Kevin L.
Orloski his requested rate of $300 per hour for civil rights work, despite the fact that
Orloski had fewer years of practice experience than did Pollick. See Affidavit of Kevin
L. Orloski, Todd, No. 3:04-cv-2637.


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