# Respondents Brief — Burlington v. Dague > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0215%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1992 - **Citation:** 505 U.S. 557 ## Text No. 91-810 ay In The k _ Supreme Court of the United States ’ ‘October Term, 1991 s wy CITY OF BURLINGTON, Petitioner, ; vs. ¥. * 2 . ERNEST DAGUE, SR., ERNEST DAGUE, JR., BETTY DAGUE, AND ROSE A. BESSETTE, Respondents. ie S On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit ¢ BRIEF FOR RESPONDENTS . é Guy T. SAPERSsTEIN Wiuam W. Pearson” e. Mari Mayepa Mo toy, Jones & Donanue, P.C. Barry GoupsTEIn 33 North Stone Avenue Saperstein, Mayepa, Suite 2100 Larkin & GOLpsTEIN Tucson, Arizona 85701 1300 Clay Street (602) 620-5520 i: 11 | se ps aay CA 94612 Counsel for Respondents (510) 763-9800 *Counsel of Record — . —~ - ~- u " - . * 7 ; - “x 4 ° me oe — . ee . a i > . P - , os Be hens Shut § —_ > 4 ~ “=. r » we we ’ 23e , 7 =e hee Nees, RY eee - a ~ sr 4 e 7 - —e* “ : nil ,. ; t = 4 > = hs > .. ax ™! ¥ ctl. | eae a P A = ~ * “> 2 Hensley, 461 U.S. at 437. The Washington Legal Foundation claims that Justice O'Connor's test would defeat the “rare and exceptional cir- cumstances” rule. No Supreme Court case, including Dela- ware Valley II, has applied the “rare and exceptional” test to contingency adjustments. Were contingency adjustments available only in “rare and exceptional” cases, it would be contrary to legal marketplace treatment of risk, and would require a particularized, post-hoc analysis to determine if the es undertaken in that case greatly exceeded normal risk evels. This amicus argues that accounting for contingent risk will result in “nonmeritorious civil rights and environmental law complaints.” Wash. Legal Found.'s Brief at 18. Congress responded to this concern by providing fees for prevailing defendants where the case was “frivolous, unreasonable, or without foundation,” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), not by limiting the calculation of an otherwise reasonable fee as it has done in numerous other Statutes. See Section II.A. The amicus further contends that if contingency can be reflected in a fee, “[t)here is no limiting principle” on contin- gency adjustments. That obviously has not happened under Delaware Valley 11. See Section U1.A. Moreover, it could not *2 The level of proof of unavailability of counsel required in Department of Labor v. Triplett, 494 U.S. 715 (1990), is not applicable here. In Triplett, the anecdotal evidence submitted sought to attack the consututionality of the implementation of the Black Lung Benefit Act, 30 U.S.C. §§901 et. seq. This Court noted “the heavy presumption of constitutionality” and held, as it had in Walters v. National Assn. of Radiation Survivors, 473 U.S. 305 (1985), that anyone challenging the law on constitutional grounds had to make “an extraordinarily strong showing . . . t© warrant a holding that the fee limitation denies claimants due process of law.” Triplett, 494 U.S. at 722. 48 happen. The “limiting principle” of the O'Connor concur- rence is the class-based assessment of risk and the directive that any contingency enhancement be no “more than neces- sary to bring the fee within the range that would attract competent counsel.” Delaware Valley //, at 733. E. Determination of the Appropriate Market-Based Con- tingency Adjustment is a Judicial, Not Legislative, Task The Solicitor General and the District of Columbia sug- gest that Congress should sit as a legislative price control board that directs the appropriate payment for legal services on a nationwide basis. Solicitor General's Brief at 25-26; District of Columbia's Brief at 24-26. These amici assert that Congress is better able to direct a fair payment for legal work involving compensation for risk than the courts are able to evaluate how the free market compensates such work, despite this Court's emphasis that the district court has “superior understanding” of such factual matters. Hensley, 461 U.S. at 437. The short answer is that when Congress decides to inter- vene wits the market and set the level of attorney compensa- tion, it says so in the statute. See supra at pp. 17-19. However, where Congress does not impose such restrictions, it relies upon the courts to evaluate the operation of the legal marketplace. The market for legal services is not monolithic: it is not a uniform, national market that applies in the same manner to all the various types of cases brought pursuant to statutes that contain fees provisions. Nor is the free market static. District courts are well suited to making specific fact- finding decisions about the operation of the legal market at specific locations and at particular times with respect to a certain type of case, just as courts are relied upon to make other complex decisions regarding the market. See note 24, supra. The courts make these kinds of findings regarding hourly rates and other matters related to the determination of the lodestar. The City and amici do not, and cannot, contest this. 49 There is no basis for concluding that courts are able to determine some aspects of the market, but not the market for risk compensation. IV. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT AWARDED AN ENHANCE- MENT OF THE LODESTAR FEE BASED UPON CON- TINGENT RISK The district court properly held that a “reasonable attor- ney’s fee” under the applicable federal fee-shifting statutes may include an enhancement of the lodestar fee to compen- sate for contingent risk. App. I at 130-33. Based on the evidence submitted, the district court found that the Dagucs were entitled to a 25% contingent risk enhancement. App. I at 133. The Second Circuit agreed with the district court's deter- mination that contingent risk may be taken into account in calculating a reasonable attorney's fee. App. I at 35-37. It concluded that the district court’s award of a 25% enhance- ment was supported by its findings and affirmed it. App. I at 34-37. Because it was within the authority of the lower court to adjust the lodestar fee to compensate for contingent risk, the district court's ruling should be affirmed. The City criticizes the adequacy of the affidavits the Dagues submitted to support their enhancement request. How- ever, the City did not raise the sufficiency of the evidence supporting the fee enhancement in its appeal to the Second Circuit nor in its petition for certiorari. Moreover, this Court’s grant of certiorari does not encompass this inquiry. The Court's order granting certiorari is limited to the issue of whether a court may, in determining a reasonable attorney's fee under the environmental statutes, enhance the lodestar fee to account for contingent risk.33 %8 The City urges this Court to remand the fee award to the district court not only to vacate the risk enhancement but also to reduce the (Conunued on following page) Vv oo” ——— ———— -_ =-—_ = 50 Even if the issue were properly before this Court, this Court need not, and indeed should not, address it. Instead, the case should be remanded to the district court for reconsidera- tion of the risk enhancement calculation, consistent with Justice O’Connor’s test. As discussed in Section III.E, supra, the district court is keenly familiar with the facts relevant to the inquiry. It is in the best position to evaluate the unique evidence of the local Burlington legal market's treatment of contingent risk and the availability of counsel to take complex cases such as this one. CONCLUSION Respondents request that this Court affirm the fee enhan- cement for contingent risk awarded by the district court. Guy T. Saperrein Wituam W. Pearson* Mari Mayvepa Mo..oy, Jones & Donanue, P.C. Barry GOLDSTEIN 33 North Stone Avenue, Jocetyn D. Larkin Suite 2100 Donna Ryu Tucson, Arizona 85701 JeREMY FRIEDMAN (602) 620-5520 Linpa M. DarpDarian SAPERSTEIN, Mayepa, Larkin & GoLpsTEIN 1300 Clay Street, lith Floor Oakland, CA 94612 (510) 763-9800 *Counsel of Record for Respondents (Continued from previous page) lodestar figure. Pet. Brief at 24-26. The City argues that the results obtained in the litigation were limited and do not justify the lodestar amount, citing Hensley, 461 U.S. at 429. The district court rejected this same argument below, as did the Second Circuit. As stated above, certiorari was granted only on the issue of the availability of contingent risk enhancements. Accordingly, the issue of the propriety of the lodestar figure under Hensley is not before this Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0215%3A08. Public record. Not legal advice.