                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 09-2448
                                     _____________

               L.J., a minor, individually and by his parents, V.J. and Z.J.,

                                                      Appellants,

                                             v.

                        AUDUBON BOARD OF EDUCATION

                                      ______________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                  (D.C. No. 06-cv-5350)
                     District Judge: Honorable Jerome B. Simandle
                                    _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 26, 2010

  Before: FISHER and FUENTES, Circuit Judges, and KANE*, Chief District Judge.

                                  (Filed: April 9, 2010)
                                   _______________

                              OPINION OF THE COURT
                                  _______________


_______________
  *Honorable Yvette Kane, Chief Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.
KANE, Chief District Judge.

       V.J. and Z.J., individually and on behalf of their son L.J. (hereinafter collectively

“L.J.”), appeal from the final order of the District Court awarding them attorney’s fees in

the amount of $44,946. L.J. contends that the District Court erred as a matter of law in

disregarding the requested hourly rate of $400 and instead calculating the attorney’s fee

award based on the hourly rate of $250. We affirm because we conclude that the District

Court applied the correct legal standard and did not abuse its discretion in finding that

$250 is a reasonable hourly rate.

I.     Factual and Procedural Background

       Because we write for the parties, we reproduce only those facts pertinent to the

narrow issue of whether the District Court properly determined the hourly rate for the

work L.J.’s attorney, Jamie Epstein, performed on the case.

       L.J. is a minor student within the Audubon School District (“Audubon”). L.J. has

been diagnosed as autistic and receives special education and related services from

Audubon. On July 10, 2006, L.J. filed an administrative suit alleging that the

individualized education program (“IEP”) prepared by Audubon for the 2005-2006 school

year failed to adequately address his needs. The administrative law judge (“ALJ”) agreed

and issued an order calling upon Audubon to improve L.J.’s IEP.

       On November 8, 2006, L.J. filed a complaint in the Eastern District of

Pennsylvania to recover attorney’s fees for the legal services provided in the



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administrative litigation. In response, Audubon challenged L.J.’s fee petition and filed a

counterclaim challenging the ALJ’s decision. The District Court denied Audubon’s

counterclaim on September 10, 2008, after what it deemed “unnecessarily protracted and

contentious” litigation, including “the unproductive acrimony displayed by counsel on

both sides.” (App. at A8.) Before ruling on the pending petition for attorney’s fees, the

District Court ordered Epstein to “submit to the Court for in camera inspection copies of

all billing statements from the last six months in which he has charged a fee-paying client

at the rate of $400 per hour . . . .” (App. at A14.) Epstein indicated that he had no such

records. In a subsequent order, the District Court offered to hold an evidentiary hearing to

determine the “reasonable market rate” for Epstein’s services, but both parties declined

the invitation.

       Accordingly, the only evidentiary support submitted in favor of Epstein’s

requested hourly rate of $400 were the affidavits of John McGahren, a Newark-based

environmental law practitioner, who bills at $575 per hour, and Mr. McAndrews,1 a

Philadelphia-based education law practitioner with twenty-nine years of experience, who

bills at $375 per hour. The District Court found that neither affidavit supported a finding

that a reasonable billing rate for Epstein in the south New Jersey market is $400. The



   1
    Attorney McAndrews’ first name is not given in the District Court’s opinion, and
copies of the affidavits were not provided in the record. In assessing the similarity of
attorneys Epstein, McAndrews, and McGahren to determine whether the District Court
abused its discretion, we are limited to the credentials articulated in the District Court’s
opinion.

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district court granted L.J.’s motion for attorney’s fees but at the significantly decreased

hourly rate of $250 per hour and for only 177.2 of the 235.8 hours requested.

         L.J. appeals only the District Court’s determination of Epstein’s hourly rate.

II.      Jurisdiction and Standard of Review

         We exercise jurisdiction under 28 U.S.C. § 1291 over a final decision of a district

court. The amount of attorney’s fees and an attorney’s hourly billing rate are factual

findings by a district court which will be disturbed only if clearly erroneous. Interfaith

Cmty. Org. v. Honeywell Int’l, 426 F.3d 694, 709 (3d Cir. 2005). The question of whether

a district court applied the correct legal standard to determine the amount of the fee award

is, however, a legal question subject to plenary review. Lanni v. New Jersey, 259 F.3d

146, 148 (3d Cir. 2001); Jama v. Esmor Corr. Servs., Inc. 577 F.3d 169, 173 (3d Cir.

2009).

III.     Discussion

         In an attorney’s fee award, the proper hourly fee rate is determined by the

community market rate rule. To wit, a reasonable hourly rate should be determined by

examination of the prevailing market rates in the relevant community at the time of the

fee petition, not the time the legal services were performed. Lanni, 259 F.3d at 149. A

court should assess the skill and experience of the prevailing party’s attorneys and

compare their rates to the rates prevailing in the community for similar services by

lawyers of reasonably comparable skill, experience, and reputation. Rode v. Dellarciprete,



                                               4
892 F.2d 1177, 1183 (3d Cir. 1990). The party seeking to recover attorney’s fees has the

initial burden of “producing sufficient evidence of what constitutes a reasonable market

rate for the essential character and complexity of the legal services rendered in order to

make out a prima facie case.” Lanni, 259 F.3d at 149. If the burden is met, the party

opposing the fee award can rebut the reasonableness of the proffered hourly rate with

record evidence. Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). If

hourly rates are disputed, the court must conduct a hearing to determine the reasonable

market rates. Id. A district court may not set attorney’s fees based upon “a generalized

sense of what is usual and proper, but ‘must rely upon the record.’” Evans v. Port Auth.,

273 F.3d 346, 362 (3d Cir. 2001) (quoting Smith, 107 F.3d at 225).

       Here, the District Court first found that L.J. failed to meet his burden of

demonstrating that Epstein’s asserted hourly fee is a reasonable market rate. In doing so,

it demonstrated that it used the proper standard—that a reasonable market rate is

determined by assessing the rates of attorneys of similar skill, working with similarly

complex cases, in the local market. The District Court found that the submitted affidavits

were insufficient to determine the market rate because the affiants were not comparable to

Epstein. The District Court found that John McGahren’s affidavit was inapposite because

McGahren practices environmental litigation, a significantly more complex area of the

law, and therefore reasonably commands a higher fee than Epstein could expect to

command. The District Court then found that Mr. McAndrews’s affidavit actually



                                              5
weighed against the requested hourly rate. McAndrews commands a rate $25 lower than

Epstein’s requested rate though he has nearly a decade more experience and practices in a

more metropolitan area. Based on these findings, the District Court reasoned that the

record did not suffice to make out a prima facie case in favor of the requested $400

hourly rate. Moreover, the District Court attempted to remedy this shortcoming by

collecting more record evidence and holding an evidentiary hearing, but both offers were

declined. Considering the above facts, the District Court’s determination that L.J. failed

to produce sufficient evidence to establish that $400 is a reasonable hourly rate for the

work performed by Epstein in this case was not clearly erroneous 2 .

       Once a district court finds that the prevailing party has failed to sustain its burden

with respect to a reasonable market rate, it must use its discretion to determine the market

rate. Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1036

(3d Cir. 1996) (“In the absence of such a showing, the district court must exercise its



   2
    In a footnote, the District Court stated that “even if Mr. Epstein had sustained his
burden of showing that $400 was a reasonable hourly rate, that rate would not apply to the
majority of the billings in this action” because “the majority of the hours he billed in this
matter” occurred at his prior rate of $300. (App. at A29 n.11.) To the extent the District
Court relied on the market rate during the period in which the majority of the billing
occurred rather than the “current market rate” at the time of the fee petition, this was
error. Lanni, 259 F.3d at 149-50. Yet, because the District Court did not appear to base its
actual finding on that notion, merely suggesting it in the alternative, we find such error to
be harmless. See Zolfo, Cooper & Co. v. Sunbeam-Oster Co., 50 F.3d 253, 260-61 (3d
Cir. 1995) (using harmless error analysis to determine that bankruptcy court’s initial error
in determining proper market did not warrant reversal); Davis v. Se. Pa. Transp. Auth.,
924 F.2d 51, 55-56 (3d Cir. 1991) (applying harmless error analysis to “district court’s
failure to grant larger fees”).

                                              6
discretion in fixing a reasonable hourly rate.”); Loughner v. Univ. of Pittsburgh, 260

F.3d 173, 180 (3d Cir. 2001) (“Having rejected the prevailing party's evidence of rates,

the District Court was free to affix an adjusted rate.”). As stated above, a district court

should not determine the hourly rate “based upon a generalized sense of what is

customary or proper, but rather must rely upon the record.” Hurley v. Atlantic City

Police Dep’t, 174 F.3d 95, 131-32 (3d Cir. 1999).

       It bears repeating that, in this case, the parties failed, despite specific requests, to

supplement the record with evidence of a reasonable market rate for Epstein’s services.

After finding that the evidence on the record did not support an hourly rate of $400, but

instead supported a rate significantly under $375, the District Court turned to recent cases

within its geographical area to determine the prevailing market rate. In order to

approximate cases of the same complexity, the District Court relied upon cases where the

attorney had won an IDEA claim at the administrative level and filed a claim in federal

court for attorney’s fees 3 . The District Court articulated its reasoning for awarding a

number less than Epstein had been awarded in the past: his skill, experience, and

performance in the litigation before the District Court was unprofessional and



   3
    As the amici note, the District Court was not restricted to rely solely on IDEA or
education law cases. We do not read the District Court’s opinion to indicate that it relied
upon other IDEA cases as a proxy for cases of similar complexity. Rather, the facts of
those cases indicate they were relatively similar in terms of complexity in addition to all
being in the same area of law. It was certainly within the District Court’s discretion to
pick the three cases it did as being the most similar in terms of geographic area,
experience of the attorney, and complexity.

                                               7
contentious. In the District Court’s view, this unprofessionalism also warranted a rate at

the low end of what had been recently commanded for cases of similar complexity. This

was a reasonable determination. The District Court’s use of the proper factors in

determining that L.J. did not meet his prima facie case indicates that the District Court

used these same factors to fix a proper market rate in the absence of a factual record,

though they may not have been articulated as clearly. The District Court properly

exercised its discretion to set a reasonable hourly rate in light of the barren record. We

cannot say that the finding of $250 is clearly erroneous.

IV.    Conclusion

       It appearing that the District Court used the proper legal standard and made a

reasonable determination of the market rate for an attorney of Epstein’s skill and

experience in light of the minimal evidence on record in this case, the decision will be

affirmed.




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