NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-2671

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DENISE CAREY,

Appellant

v.

CITY OF WILKES-BARRE;

MAYOR THOMAS M. LEIGHTON,

individually and in his official capacity

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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

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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
2

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

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OPINION OF THE COURT

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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.
3

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.
4

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

 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.

 Carey 

timely appealed.
5

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. CanonMcMillan, 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 burdenshifting 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 
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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).
7

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 burdenshifting analysis. It failed to discuss whether Pollick had met her prima facie case, and it 
8

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

so.

4

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 

 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.

 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).
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that her rates were reasonable.5

IV.

 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.”).

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-cv2637 (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.