In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4346

TERRY A. BATT, MARK S. FERUS
and RUSSELL CANNIZZO,

Plaintiffs-Appellants,

v.

MICRO WAREHOUSE, INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7704--John A. Nordberg, Judge.


Argued October 30, 2000--Decided February 28, 2001




  Before RIPPLE, DIANE P. WOOD and EVANS, Circuit
Judges.

  RIPPLE, Circuit Judge. Terry Batt, Mark Ferus
and Russell Cannizzo, prevailing plaintiffs in a
Fair Labor Standards Act ("the FLSA" or "the
Act") action, bring this appeal to challenge the
amount of attorneys’ fees awarded by the district
court under the Act. For the reasons set forth in
the following opinion, we affirm the judgment of
the district court.

I
BACKGROUND

  Mr. Batt brought this FLSA action seeking
liquidated damages for Micro Warehouse’s failure
to pay him overtime during his employment. Mr.
Ferus and Mr. Cannizzo later joined the action.
Micro Warehouse made an offer of judgment to all
three plaintiffs of approximately $6,600,
excluding attorneys’ fees. All three plaintiffs
accepted the offer.

A.

  Mr. Batt’s attorney, Ernest Rossiello, submitted
a fee petition to the district court in the
amount of $12,840.50. The petition requested
compensation for 21.6 hours of attorney time and
5.2 hours of paralegal time for litigating the
merits of the action. It also requested
compensation for 10.5 attorney hours and 2.1
paralegal hours for preparing the fee petition.

  Mr. Rossiello requested that he be compensated
at the rate of $375 per hour for his time and
$110 per hour for his paralegal’s time. In
support of his hourly rate, Mr. Rossiello
submitted his own affidavit and those of other
practitioners. Mr. Rossiello stated in his
affidavit that he had been awarded hourly fees
ranging from $250 to $375 in FLSA cases. The
affidavits of the other practitioners stated that
they believed $375 per hour was "within the
market range," "that Mr. Rossiello’s market rate
[was] between $375 per hour and $400 per hour,"
and that "an hourly rate of $375 for services
rendered by Mr. Rossiello . . . [was] reasonable
and within the current market range." R.26, Ex.H-
5, Ex.I-4 and Ex.J-2. Only one affiant, Robin
Potter, gave evidence of actual hourly rates
awarded for "similar services"; Attorney Potter
stated: "I was paid in excess of $350 per hour
for my services as plaintiff’s counsel in the
FLSA cases noted in paragraph 5 . . . ." Id.,
Ex.H-5.

B.

  Micro Warehouse filed a response to Mr.
Rossiello’s petition in which it objected both to
the amounts of time expended and the rate claimed
by Mr. Rossiello. With respect to specific time
entries, Micro Warehouse argued that the 10.5
hours Mr. Rossiello spent on the fee application
was excessive. As well, Micro Warehouse pointed
to numerous entries that it believed were
inaccurate, duplicative or clerical in nature.
With respect to Mr. Rossiello’s rate, Micro
Warehouse cited several fee decisions by district
courts in this circuit to demonstrate that Mr.
Rossiello consistently had been awarded hourly
fees of less than $375. In reply, Mr. Rossiello
addressed Micro Warehouse’s arguments concerning
the amount of time spent on the fee petition and
his hourly rate. However, he did not refute Micro
Warehouse’s objections to the specific time
entries.

C.

  In its fee order, the district court "agree[d]
with all of the defendant’s objections to the
specific time entries that it claim[ed] were
unnecessary, clerical, or inaccurate." R.30. In
doing so, it noted that the plaintiffs had failed
to offer any reply to the specific objections.
Consequently, the court allowed 9.4 attorney
hours and .8 paralegal hours for the merits of
the action. With respect to the fee petition, the
district court concluded that 10.5 hours in
litigating the fee petition was excessive. Noting
that relatively few hours were devoted to the
merits of the case, the district court reduced
the time allowed for Mr. Rossiello’s work on the
fee petition to two hours; it did not reduce the
2.1 hours of paralegal time.

  The district court also addressed the requested
hourly rate. Based on Mr. Rossiello’s affidavits
and the cases submitted by Micro Warehouse, the
district court determined that Mr. Rossiello’s
market rate was $350 per hour. The court stated
that "even this rate seemed a little high";
nevertheless, it was willing to accept the rate
"because plaintiffs properly have provided
evidence that such are market rates." R.30.

  The district court’s analysis, therefore,
yielded a total fee of $4,280.00: 11.4 hours of
Mr. Rossiello’s time at $350 per hour and 2.9
paralegal hours at $100 per hour.

II
DISCUSSION

  Under the FLSA, prevailing plaintiffs are
entitled to reasonable attorneys’ fees. See
Bankston v. Illinois, 60 F.3d 1249, 1255 (7th
Cir. 1995) (citing 29 U.S.C. sec. 216(b)).
"District courts have wide discretion in
determining the appropriate amount of attorneys’
fees and costs; therefore, our review of such
determinations is limited to a highly deferential
abuse of discretion standard." Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, 550 (7th Cir.
1999). We have explained that "[t]his deferential
standard ’is appropriate in view of the district
court’s superior understanding of the litigation
and the desirability of avoiding frequent
appellate review of what essentially are factual
matters.’" Id. (quoting Hensley v. Eckerhart, 461
U.S. 424, 437 (1983)).

A.

  This court has set forth in detail the analysis
that a district court must undertake to determine
a reasonable fee in an FLSA case. The district
court first must determine the number of hours
reasonably expended on the merits of the matter.
"[H]ours that an attorney would not properly bill
to his or her client in the private sector cannot
properly be billed to the adverse party under a
fee-shifting statute such as the FLSA." Id. at
552. Thus, plaintiff’s counsel should exclude
from his or her request excessive, redundant or
otherwise unnecessary expenses; in the event
counsel does not exercise such judgment, the
district court may reduce the number of hours
accordingly. See Hensley, 461 U.S. at 434.

  The court then must calculate the number of
hours reasonably expended on preparing the fee
petition. This court has stated that "[o]ne
factor we consider[ ] in determining the
reasonableness of those hours [is] the comparison
between the hours spent on the merits and the
hours spent on the fee petitions." Spegon, 175
F.3d at 554. The relevant inquiry with respect to
this determination is "whether the hours claimed
to have been expended on the fee request bear a
rational relation to the number of hours spent
litigating the merits." Id.

  Once the district court has applied these
principles to determine the appropriate number of
attorney hours involved, the court then must
determine a reasonable hourly rate. A
"reasonable" hourly rate should reflect the
"market rate" for the attorney’s services, People
Who Care v. Rockford Bd. of Educ., Sch. Dist. No.
205, 90 F.3d 1307, 1310 (7th Cir. 1996); the
market rate is "the rate that lawyers of similar
ability and experience in the community normally
charge their paying clients for the type of work
in question." Spegon, 175 F.3d at 555 (internal
quotation marks and citations omitted). "The
burden of proving the ’market rate’ is on the fee
applicant; however, once the attorney provides
evidence establishing his market rate, the burden
shifts to the defendant to demonstrate why a
lower rate should be awarded." Id. at 554-55
(internal citations omitted). The fee applicant
can meet his initial burden "either by submitting
affidavits from similarly experienced attorneys
attesting to the rates they charge paying clients
for similar work or by submitting evidence of fee
awards the attorney has received in similar
cases." Id. at 556. With these principles in
mind, we turn to the district court’s methodology
in arriving at the fee award in the present
action.

B.
1.

  We turn first to the district court’s evaluation
of the hours expended. With respect to the merits
of the litigation, the court agreed with Micro
Warehouse that many of the entries reflected time
that was "unnecessary, clerical, or inaccurate."
R.30. It also noted that the plaintiffs had
"fail[ed] to offer any point-by-point rebuttal to
these specific objections." Id. Consequently, it
reduced the attorney hours spent on the merits to
approximately half of those requested. On appeal,
the plaintiffs have not offered any further
rebuttal to Micro Warehouse’s objections, and we
therefore shall not revisit the district court’s
determinations.

  The district court next scrutinized the hours
expended on the fee petition. The district court
found 10.5 hours excessive, given the relatively
few number of hours expended on the merits.
Instead, the district court believed that two
hours was sufficient to prepare a fee request in
compliance with the requirements of the local
rules.

  The district court’s determinations were well
within its discretion. We have instructed
district courts to determine "whether the hours
claimed to have been expended on the fee request
bear a rational relation to the number of hours
spent litigating the merits." Spegon, 175 F.3d at
554. Here the district court believed, given this
benchmark, that the submission was excessive;
however, it also recognized that some minimum
expenditure of time was necessary to prepare a
submission that complied with the local rules.
The district court, therefore, arrived at two
hours as a reasonable number of hours./1 This
determination is not out of line with time
expenditures that we have upheld in other cases.
See id. (upholding district court’s reduction of
time expended on the fee petition to 1.6 hours);
Kurowski v. Krajewski, 848 F.2d 767, 776 (7th
Cir. 1988) (approving district court’s allowance
of 1.6 attorney hours for preparation of the fee
petition).

2.

  We turn now to Mr. Rossiello’s hourly rate. In
support of his fees, Mr. Rossiello submitted his
own affidavit stating that he had been awarded
fees ranging from $250 to $375 per hour. Although
Mr. Rossiello submitted affidavits of other
practitioners, only Attorney Potter attested to
receiving an hourly rate of "in excess of $350
per hour." R.26, Ex.H-5. The other practitioners
only offered their opinions concerning the market
rate for Mr. Rossiello’s services; they did not
give any specific evidence of what they had
charged their clients for similar services. Here,
the district court believed that $350 was "a
little too high," but awarded that amount because
it believed that hourly fee was supported by the
evidence. R.30.

  We do not believe that the district court abused
its discretion in arriving at this figure. As
stated above, fee awards and fees charged by
practitioners of comparable skill and experience
are probative of an attorney’s market rate. See
Spegon, 175 F.3d at 556. Although the district
court must consider this evidence, it is entitled
to determine the probative value of each
submission and must arrive at "its own
determination as to a proper fee." People Who
Care, 90 F.3d at 1311. The $350 hourly rate is
near the top of the range of awards Mr. Rossiello
has received from other district courts, see R.26
at 7-10, and it is similar to the awards received
by other practitioners of comparable skill and
experience in FLSA cases, see R.26, Ex.H-5.
Evidence of a higher rate was thin and not well
substantiated. There is certainly no basis for an
appellate court to disturb the district court’s
determination.

Conclusion

  The district court followed the methodology set
forth by this court for determining the
reasonable number of hours expended in the
litigation and the appropriate hourly rate. Its
findings are supported by evidence in the record.
We, therefore, affirm the judgment of the
district court awarding the plaintiffs $4,280.00
in attorneys’ fees./2
AFFIRMED

/1 The district court did not reduce any of the
paralegal hours (2.1) expended on the fee
petition.

/2 Micro Warehouse’s motion for sanctions is denied.
