Save Our Cumberland Mountains, Inc. v. Donald P. Hodel, Secretary of the Interior

STARR, Circuit Judge,

dissenting, in which Circuit Judges SILBERMAN and BUCKLEY concur:

In the thirteen years since the Supreme Court’s decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975), federal law has moved haltingly in the direction of the venerable English Rule with respect to the award of attorney’s fees. We shall perhaps in the fullness of time advance back to where we began, for long ago, American law embraced the sensible *1526 proposition that the winner should be made whole, including the recovery of attorney’s fees. In the meantime, the present situation is quite anomalous. That is, the one hundred plus fee-shifting statutes now on the federal books typically operate only when the defendant is the United States, with the “shift” being a one-way arrangement. Non-governmental winners who leave the Government vanquished in the courthouse recover fees, but non-govem-mental losers ordinarily do not have to fear, for the United States is not entitled to fees when it wins. The United States Treasury is thus, as a general matter, in a sure-lose situation.

This, I hasten to add, is Congress’ will, and as my colleagues rightly point out, our task in this enterprise is ultimately one of divining Congress’ intent. “As both Blum and Laffey teach, the determination of an award of reasonable attorney fees is at bottom a question of statutory interpretation.” Maj.Op. at 1518.

It is in this respect that Laffey deserves vindication, not burial. In my view, Laffey faithfully interprets Congress’ will, especially as elucidated by recent decisions of the Supreme Court. In addition to being faithful to Congressional intent, Laffey has had the happy consequence of ushering in a rational, efficient, and sensible regime in the administration of justice in this jurisdiction. Laffey works. We should keep it.

I

From its genesis, controversy has swirled around Laffey. Shortly after Laf-fey’s birth, an effort was mounted to snuff out the decision, but the court thought the better of it at the time. We have now had the not inconsiderable benefit of several years of life with Laffey. Those have been happy years for the administration of justice in this circuit.

The criticisms, which have continued unabated, fall into two broad categories. The first is Laffey’s asserted infidelity to Congressional intent; the second is the anomalous results said to flow from its operation. These are weighty charges indeed. The first is of course the pivotal indictment, for however asymmetrical Laffey’s regime is said to be (save for the extreme circumstance, of which Laffey for all its manifold sins has never been accused, of triggering serious equal-protection questions), a conclusion that Congress ordained a different approach would perforce bring the debate to a speedy halt. And it is thus to the question of Congress’ intent that I initially turn.

II

A

The commonly-aired critique — that Laf-fey fails to comport with legislative intent —is, upon analysis, built on sand. It rests in the main, as evidenced by my colleagues’ analysis, on the fact that the pertinent Congressional Reports refer approvingly to three lower court cases, two of which the court’s opinion today discusses at length. This is, with all respect, a singularly precarious basis for divining Congress’ meaning. Quite apart from frequently voiced concerns as to the relevancy and helpfulness of legislative history, Burlington Northern Railroad Co. v. Oklahoma Tax Commission, 481 U.S. 454 , 107 S.Ct. 1855 , 95 L.Ed.2d 404 (1987); Pierce v. Underwood, - U.S. -, 108 S.Ct. 2541, 2550-51 , 101 L.Ed.2d 490 (1988); United States v. Taylor, — U.S. -, 108 S.Ct. 2413, 2423-24 , 101 L.Ed.2d 297 (1988) (Scalia, J., concurring); the Supreme Court itself has specifically indicated that caution is called for in this particular respect. By way of sobering example, one of the frequently cited cases in this field is the Fifth Circuit’s decision in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (1974), which in a jurisprudential age fond of multi-pronged tests developed one of truly enviable complexity. Articulating no fewer than twelve factors to be considered by courts in establishing fees, see Maj.Op. at 1522, Johnson found itself widely followed by other courts and referred to with approbation by both the House and Senate Reports. Yet, notwithstanding this rather impressive following by a great cloud of witnesses in both the Article I and Article III branches, *1527 the Supreme Court was recently unmoved by the legislative history’s approbation of that decision. In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 , 106 S.Ct. 3088 , 92 L.Ed.2d 439 (1986) (Delaware Valley I), the Court observed that Johnson “was cited with approval by both the House and Senate when § 1988 was enacted into law,” id. at 3097; nonetheless, in the next breath, the Court brought Johnson’s hydra-headed analysis up short:

[Johnson’s] mode of analysis ... was not without its shortcomings. Its major fault was that it gave very little actual guidance to District Courts. Setting attorney’s fees by reference to a series of sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results.

Id.

High Court departure from Johnson ian complexities was nothing new. Indeed, Delaware Valley I was only reporting on Johnson’s demise. Although the legislative history’s approbation of Johnson was unqualified, the decision’s shortcomings had not been lost on the lower federal judiciary. To the contrary, it was in large measure Johnson’s failings that led to the development of the lodestar approach by the Third Circuit. Lodestar analysis, then, represented a step forward in the evolutionary march from Johnson’s rude beginning. But certain of the lodestar methodology’s elements, in turn, eventually required refinement, as reflected in the Supreme Court’s decision in Hensley v. Eck-erhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983). 1 Surely this has been just as it should be, with Johnson’s approbation in the secondary materials emanating from Capitol Hill not arresting the law’s orderly growth and development.

Attorney’s fees jurisprudence has thus been, upon reflection, yet another evolving body of law. The law lives and learns. So too has the law governing attorney’s fees awards. The point is that attorney’s fees jurisprudence has not been placed on some Procrustean bed by the Supreme Court. To the contrary, the Court has weaved an elaborate body of law characterized by the familiar decisional-law qualities of refinement and rationalization in the same manner as other areas of adjudication. At the heart of this process has been (1) the search for the values and goals animating Congress in passing fee-shifting statutes, and (2) the evaluation and resolution of the abundant profusion of legal issues in light of those legislative goals. It especially bears noting that the evolution of the common law of attorney’s fees has not been cabined by the Three Cases highlighted so extensively by my colleagues any more than the similarly approved Johnson decision arrested the law’s development. Indeed, as the Supreme Court itself observed, the Three Cases themselves reflect a “divergence in both analysis and result.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, (Delaware Valley II), — U.S. -, 107 S.Ct. 3078, 3086 , 97 L.Ed.2d 585 (1987) (plurality opinion). 2

*1528 It is, upon reflection, odd for the court to stake so much in the interpretive exercise on such a slender reed as case cites found in the bowels of secondary materials produced in the word processors of Capitol Hill. See supra n. 2. But the oddity is all the more pronounced in the face of Supreme Court disinclination to canonize those materials, even if they had proved helpful to my colleagues. If our court is analytically on target today, then a staggering body of law, not the least of which are Supreme Court decisions that we are duty bound to obey, likewise stands condemned as unfaithful to Congress’ will. For aught that appears, obeisance has been due not only to the Three Cases but to Johnson itself, which it would now seem has been treated shabbily indeed in very high places.

B

Dwelling on the Three Cases is, ultimately, unavailing. Worse, debating the extent to which Congress carved the Three Cases (sans Davis for our present purposes) into statutory stone takes the judicial eye off the real question of Laffey’s correctness. For even if the Three Cases, like Johnson , cannot stand the weight given them by my colleagues, the question remains whether Laffey itself faithfully echoes Congress’ intent. That may have been a marginally closer question at the time Laffey was handed down. But the subsequent deci-sional law leaves me with not the slightest doubt that Laffey vindicates admirably the true Congressional purpose, as divined by the Supreme Court, in fashioning the fee-shifting statutes. Congress’ real purpose was not, in my view, to stamp its seal of approval on a particular set of Delphic (in this particular) lower court cases. Its animating purpose was to enable individuals or organizations to secure competent counsel to represent them in asserting claims under statutes which Congress has seen fit to enact. The clear message of the Supreme Court in its recent cases is precisely to that effect, and therein lies Laffey’s normative strength. What some have been tormenting as an ugly duckling has turned out to be a swan.

The clearest expression of Congress’ purpose came two years after Laffey in Delaware Valley I. It is ironic in the extreme that we today inter a decision, hard-fought at the time, which subsequently won such approbation (on other points) from the Delaware Valley I majority. And there, in the course of a careful analysis (again, of points other than the question before us today) that noted with approbation Judge Wilkey’s meticulous opinion in Laffey, the Supreme Court, speaking through Justice White, had this to say about Congress’ purposes:

[Fee-shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws.

106 S.Ct. at 3098 (emphasis added).

The same theme was evident in Delaware Valley II. There, again speaking through Justice White, a plurality of the Court articulated the enablement goal in rejecting “enhancement for risk of loss” *1529 for successful plaintiffs. “[A] fundamental aim of [fee-shifting] statutes is to make it possible for those who cannot pay a lawyer for his time and effort to obtain competent counsel, this by providing lawyers with reasonable fees to be paid by the losing defendants.” Id. at 3086 (plurality opinion).

Now let it not be thought that the plurality was blind to the possibility that, without such enhancements, some lawyers might see fit to decline a particular representation. But the bar in general, Justice White opined, would not turn its back on such representations, and that fact vindicated the enablement purposes animating Congress in crafting fee-shifting legislation.

The Court has re-articulated the enablement theme time and again. See, e.g., Marek v. Chesny, 473 U.S. 1, 10 , 105 S.Ct. 3012, 3017 , 87 L.Ed.2d 1 (1985); Blum v. Stenson, 465 U.S. 886, 893-94 , 104 S.Ct. 1541, 1546-47 , 79 L.Ed.2d 881 (1984); Hensley v. Eckerhart, 461 U.S. 424, 429 , 103 S.Ct. 1933, 1937 , 76 L.Ed.2d 40 (1988). And enablement, as the Supreme Court has described it, is a minimalist test. It does not mean access to P. Lee Bailey, Gerry Spence, Racehorse Haynes, or the leading trial lawyer in a particular locale. It means, as the Court put it in Hensley v. Eckerhart, “ ‘effective access to the judicial process.’ ” 461 U.S. at 429 , 103 S.Ct. at 1937 (quoting H.R.Rep. No. 94-1558, p. 1 (1976)). The idea is to permit plaintiffs to secure the services of a competent lawyer. Indeed, that is the very language used in the legislative history to describe the Three Cases. “These cases have resulted in fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S.Rep. No. 94-1011, p. 6 (1976), quoted in Blum v. Stenson, 465 U.S. at 893-94, 104 S.Ct. at 1546 . “Adequacy” and “competency” are the key words that give life to the “enablement” theory. Laffey itself captured the enablement goal in the following passage:

The “windfall” Congress sought to avoid is the awarding of fees in excess of the rate at which qualified counsel would be willing to represent civil rights claimants who have legitimate grievances. The congressionally-mandated inquiry is thus not into the “true value” or worth of an attorney’s services. Instead, the trial court must ascertain the fee at which competent counsel would be willing to accept meritorious civil rights cases. As this court recently stated in Murray v. Weinberger, [ 741 F.2d 1423 (D.C.Cir.1984)] “the purpose of the statute [authorizing fee shifting in Title VII cases] is to benefit meritorious claimants — not to subsidize the legal profession.”

Laffey, 746 F.2d at 16 (citations omitted).

C

Enablement, not the avoidance of billing incongruities (or apparent anomalies) is the goal against which Laffey is to be measured. Enablement, not maximization of the range of private-party choice, is the Congressionally ordained purpose.

In my view, Laffey’s approach is well crafted to serve the aims of the Article I branch. An attorney’s customary billing rate provides, by definition, a sensible, rational method of achieving enablement. Private parties with grievances against the Government can, under Laffey, enlist the services of a for-profit attorney secure in the knowledge that, if success indeed lies ahead, his or her attorney’s customary rate will be recoverable in the action. Laffey’s effectuation of enablement values seems all the more manifest in light of Congress’ imposing, in the Equal Access to Justice Act, 28 U.S.C. § 2412 (d), a $75 per hour (adjusted for inflation) cap, absent “special factors” which we now know are limited indeed, see Pierce v. Underwood, 108 S.Ct. at 2553-54. In our jurisdiction here in Washington, notorious for its high cost of living, customary billing rates are highly likely to exceed the EAJA-mandated cap, a level which Congress must have thought served the enablement purposes undergird-ing fee-shifting statutes. With EAJA’s $75 per hour cap across the board and across the Nation, Laffey’s more generous billing regime is obviously all the more attractive (and “enabling”).

*1530 True, able counsel such as Messrs. Ya-blonski and Galloway would be more receptive to taking on such matters if the ultimate fee recovery exceeded their customary billing rates. During oral argument, Mr. Yablonski poignantly represented to the court that the economics of his practice might well not permit this kind of low-yield case in the future. That would surely be unfortunate. But be that as it may, “en-ablement” should be tested systemieally, not on whether a particular attorney, no matter how able and distinguished, will see fit to take on a particular representation. As the Delaware I Court put it so succinctly: “[I]f plaintiffs, such as Delaware Valley, find it possible to engage a lawyer based on the statutory assurance that he will paid a ‘reasonable fee,’ the purpose behind the fee-shifting statute has been satisfied.” 106 S.Ct. at 3098 . It is “a lawyer,” not the lawyer of choice, that the statute seeks to provide.

Here, two of the four private attorneys who represented Save Our Cumberland Mountains (et al.) are seeking rates that are approximately 50% higher than the rates they had customarily been paid by their hourly-fee paying clients. If one is on the look-out for anomalies, this, it seems to me, could readily fall within the category of “incongruity,” if not “anomaly,” especially since Congress has set in motion a statutory fee-shifting mechanism geared to hourly rates. Indeed, upon reflection, it is evident that if a lawyer has a customary hourly rate, then that rate is at least presumptively (although not inevitably) the product of market forces, including such factors as the identity and perceived worthiness of the client and of its particular cause.

To state the obvious, it may well be (and frequently is) the case that able lawyers representing “bad” clients will charge higher rates than equally able lawyers representing “good” clients. Attorneys who make their living representing, say, organized crime chieftains, drug traffickers or socialite murderers may desire and seek the comfort and security of a premium fee to compensate for, among other things, the relative undesirability that other attorneys might discern in such representations. To bring the point closer to home, law firms that choose to represent large for-profit corporations accused, say, of violating the environmental laws or engaging in employment discrimination may (by way of example) find it congenial (if not necessary) to offer premium starting salaries, cum bonuses, to young lawyers fresh from the rigors of law school and bar exams; likewise, young lawyers in the dewy dawn of their careers may find themselves lured by large-firm provided pots of gold at the end of the law review rainbow even if these budding young talents would prefer, all things being equal, to be representing the Lands Division or a private environmental group, say Save Our Cumberland Mountains, Inc., in environmental litigation or the EEOC or private plaintiffs in employment-discrimination matters. The point, which is sufficiently obvious to members of the legal community not to warrant further belaboring on my part, is that for a wide variety of reasons a client need not pay K Street Corridor rates to secure splendid, indeed peerless representation.

I hasten to add that Laffey did not purport mechanically or slavishly to carve the customary billable rate into statutory stone. To the contrary, Laffey features built-in protections that, for whatever reason, neither Mr. Yablonski nor Mr. Galloway has seen fit to invoke, namely that the customary hourly rate is only the presumptive market rate. That rate, the Laf-fey court contemplated, might well be aber-rationally high or low. Laffey, 746 F.2d at 25. Laffey thus integrated into its carefully wrought structure an escape hatch so as to prevent a bizzare or idiosyncratic result. Laffey, in short, provided a margin of flexibility that, it seems to me, further buttresses the strength of its enablement-centered approach.

D

As the foregoing discussion suggests, the asserted gravamen of the complaint against Laffey is that it is inconsistent with Congressional intent. The legal battleground over Laffey’s correctness is, I be *1531 lieve, precisely as it should be, as opposed to what seems to me a false issue, rightly brushed aside by my colleagues, that Laf-fey is somehow inconsistent with the Supreme Court’s decision in Blum v. Stenson. Since my colleagues quite rightly examine Laffey for its fidelity to Congress’ will, as opposed to measuring it against the yardstick of a footnote in a Supreme Court case which resolves an entirely different issue than that which Laffey addressed, 3 suffice it to say that the Laffey -violates-Blum canard is but another of those frequently encountered species in the law, an argument with superficial appeal and no substance. The charge, in fact, requires more than a small dash of cheek, since Justice White, the author of both Delaware Valley I and II, has set forth his view that Blum does not resolve the question in this case. See Webb v. Maldonado, — U.S. -, 108 S.Ct. 480 , 98 L.Ed.2d 509 (1987) (White, J., dissenting from denial of certiorari). A fair reading of Blum demonstrates the force of Justice White’s view which I, for one, am singularly disinclined to contradict.

The criticism, nonetheless, is by its nature a serious one and thus merits respectful evaluation. Blum, it scarcely needs repeating, involved a recovery for attorneys’ fees under the civil rights statute, 42 U.S.C. § 1988 , by attorneys from the Legal Aid Society of New York. Like other such organizations, the Society is a nonprofit, private law office. Of venerable age, the Society “enjoys a wide reputation for the devotion of its staff and the quality of its service.” Blum, 465 U.S. at 890 n. 3, 104 S.Ct. at 1544 n. 3. Through the efforts of three able attorneys, the Society had made rather short order of a practice by New York State which terminated Medicaid eligibility automatically upon the individual’s termination of eligibility for benefits under the Supplemental Security Income program. Success on the merits was quick and complete, leaving only the question of attorney’s fees.

Although the case abounded with the underbrush that proliferates in attorney’s fees cases, the Supreme Court, speaking through Justice Powell, addressed only two issues. The one of relevance to our inquiry is “whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates.” Id. at 889, 104 S.Ct. at 1544. The case thus had nothing whatever to do with for-profit law practice, which is of course the nature of the practice of Messrs. Yablonski and Galloway. What the Court had before it was an argument, vigorously pressed by New York and supported by a veritable legion of Attorneys General from across the Nation, that “all fee awards under § 1988 [should] be calculated according to the cost of providing legal services rather than according to the prevailing market rate.” Id. at 892, 104 S.Ct. at 1546. (emphasis added) (citation omitted). The Solicitor General, as amicus curiae, argued less sweepingly that a cost-related standard should be adopted only for nonprofit legal aid organizations. Id.

Justice Powell then turned to the statute and its legislative history. He found there not the slightest support for a cost-related standard, as urged by New York and its many sovereign supporters. Canvassing the lower court decisions featured in the Senate Report, which I have previously had occasion to address see n. 2 supra, the Court found that “[i]n all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates.” Id. at 894, 104 S.Ct. at 1546. 4 The legislative history was likewise clear, the Blum Court went on, “that Congress did not intend the calculation of fee awards to vary depending on whether the plaintiff was represented by private coun *1532 sel or by a nonprofit legal services organization.” Id. at 894, 104 S.Ct. at 1547. The Court thus resolved the issue before it; no bifurcation would be created between non-profit and for-profit firms. But the Court plainly did not, as some would have it, suggest that all for-profit attorneys were to be paid the hypothesized “prevailing market rate.” The Court suggested exactly the opposite:

Market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community.

Id. at 895 n. 11, 104 S.Ct. at 1547 (emphasis added). Of course there’s not. Even within a single law firm, Justice Powell went on, the type and quality of services rendered by lawyers will vary extensively. And then the Court expressly took cognizance of the hard, cold reality which Laffey likewise recognized: “[T]he hourly rates of lawyers in private practice ... vary widely.” Id. For that simple, undebatable reason, the Court observed, reviewing courts appropriately required affidavits to confirm that the rates requested by practitioners were, in effect, not “out of line.” That sort of rate “is normally deemed to be reasonable, and is referred to — for convenience— as the prevailing market rate.” Id. at 896 n. 11, 104 S.Ct. at 1547 n. 11.

This discussion in Blum, it seems to me, in no way lends itself to the interpretation so heatedly pressed by appellees that for-profit attorneys must be paid at an hypothesized “prevailing market rate.” To the contrary, the Court took pains to recognize the abundantly obvious fact that rates among private, for-profit practitioners will vary widely. Even in an egalitarian age, Blum’s footnote 11 does not fairly support the interpretation that reviewing courts are to obliterate the manifold distinctions which abound in the legal services market and then crudely lump every practitioner of comparable experience into the same rate category. As I previously indicated, different law firms have different billing structures for a wide variety of reasons. What is more, some lawyers are actually better at lawyering than many of their colleagues of comparable experience at the bar. Everyone knows it. Clients certainly know it. And courts do too. Quite apart from billing structure, which presumably explains the lower rates charged by Messrs. Yablonski and Galloway, there is such a thing as superior skill, knowledge and ability. Rates reflect that reality of life.

All this suggests, ultimately, that the attack on Laffey revolves around deeply felt views animating much of modern-day social policy. It is the vision of equality as an ideal, equality as the watch-word to vanquish all perceived differences and disparities, that the assault on Laffey is all about; no matter that the legal world is filled with disparities that some might deem false and artificial — say, the fact that appellate judges are remunerated at higher levels than trial judges. And that brings me, at last, to the true basis of the assault on Laffey.

Ill

Upon reflection, it will be seen that the real charge laid at Laffey’s feet, and that most extensively featured by my colleagues, is that it creates anomalies. The charge is stated in the following way:

[PJrivately practicing but public interest motivated attorneys who intentionally charge their poorer clients reduced rates will receive the same reduced rates as statutory fees, even though they must depend upon the received fees for their livelihood.

Maj.Op. at 1520. Elsewhere, my colleagues put it this way: “Congress did not intend the private but public spirited rate cutting attorney to be penalized for his public spiritedness by being paid on a lower scale.” Id. at 1524.

Quite aside from my not substantial quarrel with the notions that “rate cutting” is going on here, for which there is not the slightest evidence, and that a “public spirited” attorney is being “penalized” for “public spiritedness” (when in fact the Laffey rule simply calls in even-handed fashion for the for-profit attorney presumptively to be *1533 paid at his or her customary for-profit fee), the underlying “anomaly” that so vexes my colleagues is ultimately ineradicable by the judiciary by virtue of the for-profit attorney’s decision to fix his or her fee levels at lower than those charged by large firms in the K Street Corridor representing (typically) rather different sorts of clients.

Indeed, the problem with the quixotic quest to rid attorney’s fees awards of anomalies is that, like other such quests, it is ultimately tilting at windmills. What is an “anomaly”? Here is a candidate for that sobriquet which is rather close to home. Some if not most judges may, at the close of another demanding day, find it anomalous that former colleagues in their respective former law firms are garnering several-fold the amount earned by federal judges. But judges have made a choice, which carries with it certain consequences that they will hopefully grin and bear. Indeed, the “anomaly” of public servants being paid a fraction of what private actors receive for “comparable” services is too manifestly evident in this community to require extended discussion. But there are, presumably, other (some might say loftier) compensations of a decidedly non-monetary nature that, to borrow a recent phrase, enriches and ennobles the daily labors of public servants, including judges, in carrying on their duties.

In sum, as to the overriding concern about “anomalies,” I despair of improving upon Judge Wilkey’s response, in which the wise Judge Tamm concurred:

Laffey finds anomalous the possibility that two different law firms with lawyers of similar credentials might receive different hourly rates for work on the same case. To the extent that an anomaly exists, it mirrors the anomalous situation that would exist if the same firms were hired by a fee paying client.

746 F.2d at 18 n. 94. How true. The anomaly so bewailed by my colleagues is, as Judges Wilkey and Tamm recognized, built into the very structure of the billing “system” that the various firms and practitioners have, cumulatively, erected. For judges to carve out large, upward-ratcheting exceptions to the structure erected by the interplay of numerous private actors, who are responding to a veritable sea of both internal and external factors (not the least of which is the targeted set of clients that the for-profit attorney seeks to service, which as I alluded to above builds in its own practical limitations as to billable rates), amounts, of course, to constructing a judicially mandated system of subsidy for other, less remunerative aspects of the for-profit lawyer’s practice. And this economic effect, it seems to me, comes perilously close to creating the windfall that the en-ablement theory, as elucidated so clearly of late by the High Court, was intended to avoid.

IV

That brings me to the final point in Laf-fey’s defense. It works. Just the other day, the Supreme Court reminded the lower courts, who obviously face the not insubstantial daily brunt of attorney’s fees litigation, of the abiding values of the sound administration of justice in this arena of our work. Pierce v. Underwood, 108 S.Ct. at 2547. Rational administration of the new, post-Alyeska burdens on federal courts, like the value of enablement, has been an abiding theme of Supreme Court decisions. The point was aptly made by Justice White, speaking for the plurality in Delaware Valley II:

Fee litigation occurs on a case to case basis and is often protracted, complicated and exhausting. There is little doubt that it should be simplified to the maximum extent possible.

107 S.Ct. at 3085. Hensley captured the same thought in its oft-repeated admonition: “A request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437 , 10 S.Ct. at 1941.

Of Laffey’s high marks in this particular there can be no reasonable doubt. At considerable length, Judge Wilkey, with his vast experience as a judge, canvassed the benefits that he predicted would flow from the rule which the court there crafted. He was right on target. His discussion on this *1534 point, set forth at 746 F.2d at 18-22, deserves respectful rereading, for it contains powerful and unanswered points. Indeed, the modest two paragraphs devoted by my colleagues to this vital subject, see Maj.Op. at 1524-25 wisely do not even seek to question the manifold advantages flowing from Laffey’s approach.

As I understand the court’s brief response in this particular, it is two-fold: (1) ease of administration does not justify overturning Congress’ ordained methodology (a point with which I quarrel, obviously, only by virtue of its mistaken premise); and (2) since difficulty of administration did not lead the Supreme Court in Blum to abandon the fee-setting enterprise, neither can it prevent that determination on “Laffey-type facts.” Id. at 1525. With all respect, the latter response is ipse dixit accompanied by a strain of the discredited Laffey-vio\&tes-Blum theme. It fails to take into account that in Blum the only alternative to an hypothesized “prevailing rate” was a cost-based rate and that that sort of regime was squarely foreclosed by Congress’ clear intent to the contrary. It thus behooves me to repeat that neither Congress nor the Supreme Court has resolved the precise question before us and that Laffey’s answer to that question has the highly desirable effects that Judge Wil-key promised it would. The point is well captured by the Government’s brief on rehearing en banc:

This Court in Laffey predicted that the approach that it adopted would reduce fee litigation by establishing a predictable and objective standard for setting hourly rates. That prediction was accurate. * * * * Since Laffey, ... litigation over fees has been greatly reduced because of the relative ease of determining an attorney’s customary billing rate. The Laffey standard has promoted settlements and has reduced major, second round litigation over fees.

Brief for Appellants at 25.

Even apart from our practical experience under Laffey, a decent respect for precedent should counsel restraint in this area. The mere fact we agreed to reexamine Laffey does not mean that the force of precedent is out the window — even for the court sitting en banc. More should be required before abandoning a decision that has served us so well.

* * * * * *

These have thus been, in retrospect, the halcyon years for our jurisdiction in this singularly unproductive genre of litigation. Judicial ratemaking will now be re-ushered in with gusto, with countless hours undoubtedly awaiting the court as an administrative entity, complete with the requisite and entirely appropriate consultations with the bar, on how to carry on this essentially managerial task. For either we must engage in circuit-wide ratemaking, which we will be required to adjust periodically, or we will be faced with reconciling conflicting determinations of prevailing rates by various District Judges. In short, the approach in overturning Laffey that the court adopts today will create an enormous administrative burden for this court, inconsistent with the Supreme Court’s latest pronouncement. With our increasing docket summoning us to even greater productivity, I must confess to a singular want of excitement over renewing the judicial focus on the level of income to be enjoyed by the distinguished bar of this jurisdiction. But with Laffey’s demise, the time is nigh to gird our loins, for the executive sessions of our court, conclaves with the bar, and policy pronunciamentos lie just around the corner. I respectfully dissent.

. Hensley , I hasten to add, canvassed the three lower court cases invoked by my colleagues for the distinct point that in each of them the plaintiffs substantially prevailed in the litigation. The question in Hensley , in contrast to the issue before us, was whether a partially prevailing plaintiff could recover fees for legal services on unsuccessful claims. Especially in light of Delaware Valley I, it seems odd to suggest, without qualification, that the Supreme Court "finally authoritatively approved the Johnson factors and the lodestar approach.” Maj.Op. at 1523. Indeed, in Delaware Valley I, after criticizing Johnson and noting the limitations of the three lower court cases, the Court stated that in Hensley "[we] ... adopted a hybrid approach that shared elements of both Johnson and the lodestar method of calculation.” 106 S.Ct. at 3097 .

. My colleagues devote considerable energy to parsing the results and reasoning of the Three Cases. When all is said and done, I think it fair to say that the Three Cases boil down to only one decision of significant assistance to the issue that confronts us. And that is manifestly of no help to my colleagues. Davis, as the majority rightly says, is uninstructive on the issue before us. Maj.Op. at 1524. Next, Swann seems to lend itself to the same sort of debate as that swirling around constitutional or Biblical texts. As my colleagues candidly observe before launching into an exegesis on what Swann might mean, “it is not entirely clear precisely what method the Swann Court did apply.” Id. at 1523. Just so. That leaves only Stanford Daily. For that, I simply refer the reader to *1528 Judge Wilkey’s analysis in Laffey itself, where he indicates, persuasively, that Stanford Daily actually supports the Laffey -ordained methodology. 746 F.2d at 22-23.

Tellingly, the majority does not contradict this in the slightest. Rather, the court seeks to avoid a Stanford Daily -inspired "Charybdis" of "decreasing reasonable fees because the attorneys conducted the litigation more as an act pro bono publico than as an effort of securing a large monetary return.” Maj.Op. at 1523, quoting Stanford Daily, 64 F.R.D. at 681. With all respect, this is pure mythology. Laffey can in no wise be seen as working a “decreasing of fees” when it neutrally applies (again presumptively only) the for-profit attorney's ordinary billable rate (including, on the upside, for-profit lawyers with relatively high billable rates). Upon reflection, the “Charybdis” here is, of course, but a reference to our familiar friend, the "Laffey anomaly,” which is for reasons stated later in my opinion of the for-profit attorney's own making.

. The court does say in passing that Laffey is inconsistent with Blum, Maj.Op. at 1524-25, but there is no development or argumentation on the point. As the court’s opinion stands, this is more of a glancing blow at the conclusion of its non-Blum -related analysis.

. Lest the careful reader think that I have conveniently overlooked my earlier critique of the court’s unrestrained reliance on the Three Cases, plus Johnson, sans Davis, it bears noting that the Court’s opinion in Blum v. Stenson pre-dated the Court’s own critique of those cases in Delaware Valley I.