                                                     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that this opinion should not be published and is not precedent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




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