Amicus Curiae Brief — Burlington v. Dague

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

Sepreoe Cour, US. |

FILED

MAR 10 t992

OFFICE CF THE CLERK

No. 91-810

In the Supreme Court of the Wn

OCTOBER TERM, 1991

CITY OF BURLINGTON, PETITIONER

Vv.

ERNEST DAGUE, SR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

Barry M. HARTMAN

Acting Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

ANNE S. ALMY

MARK R. HAAG

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

The petition for a writ of certiorari was granted

only as to the following question: May a court, in

determining a reasonable attorney’s fee award under

Section 7002(e) of the Solid Waste Disposal Act, 42

U.S.C. 6972(e), or Section 505(d) of the Federal

Water Pollution Control Act (Clean Water Act), 33

U.S.C. 1365(d), enhance the fee award above the

lodestar amount in order to reflect the fact that the

attorneys had taken the case on a contingent-fee

basis, thus assuming the risk of receiving no attor-

ney’s fees at all?

(I)

TABLE OF CONTENTS

Interest of the United States ........................-------..--..-.- ae

Statement

IIIT... scnsressentsenvenscnssonsevearsssassooscsossess

Argument:

Statutes requiring reasonable attorney’s fees to be

paid to a prevailing party do not authorize the

award of contingency fee enhancements over and

A. This Court has established a presumption that

the lodestar ordinarily represents a reasonable

B. The statutory language should not be inter-

preted to authorize the award of enhancements

because the lodestar establishes the reasonable

attorney’s fee necessary to compensate a pre-

rac iacessnpninmnenenrecaneesssnsseseccess

1. Contingency enhancements conflict with the

statutory language by improperly compen-

sating persons who were not “prevailing

Std is cateecendonhesponsevensedenseceunccanecesocecsee:

. Contingency enhancements are not necessary

to ensure that parties will be able to obtain

II vicneinddeicatiaininermiasevencsumeaectanccescceoeces

. The test of the Delaware Valley II concur-

rence has proven to be unworkable ..............

. The legislative history of Section 1988 does

not support the lower court’s conclusion that

contingency fee enhancements were author-

—

a nnseseusgoecseoasasess ans

TABLE OF AUTHORITIES

Alyeska Pipeline Service Co. v. Wilderness Soci-

I ED IED ccncscccccsncesecceeosserssosess Aw

(111)

Cases—Continued : Page

Blanchard v. Bergeron, 489 U.S. 87 (1989) 0.0.0... 9,17

Blum v. Stenson, 465 U.S. 886 (1984) ......9, 10, 12, 23, 25

Blum v. Witco Chem. Corp., 829 F.2d 367 (3d Cir.

RSET EISLER IED Moon oy nD 11, 21

City of Riverside V. Rivera, 477 U.S. 561 (1986)... 20

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.

STITIITEEY sesstssinscinecscinesiteiniandiinihhadaniitasaahiniiialiiiaiiaaaitas 14

Craig Vv. Secretary, HHS, 864 F.2d 324 (4th Cir

RE Pee ener ee ee ee ae 11

Davis v. County of Los Angeles, 8 Empl. Prac.

Dec. (CCH) * 9444 (C.D. Cal. June 5, 1974)... 24

D’Emanuele v. Montgomery Ward & Co., 904 F.2d

a 11

Department of Labor v. Triplett, 494 U.S. 715

NRE Se SSR EE? As SEES A 21

Eastern Transportation Co. v. United States, 272

ARERR IR Bt 2 REESE SNe Ne aS 26

Fadhl v. City of San Francisco, 859 F.2d 649 (9th

Es: STII arnhshcneeisiehbantinnieansceninaiathieieadbieiaiibaaabtiaddiinal anions 11,12

Friends of the Earth v. Eastman Kodak Co., 834

i. 4) fh UL. Dl Re 2

Hendrickson Vv. Branstad, 934 F.2d 158 (8th Cir.

SIT atencopsiineccsiasnihiashiiesntaeadiatieamsestmmaniataii citadel 11

Hensley Vv. Eckerhart, 461 U.S. 424 (1983) ...... 4-5, 6, 7, 8,

15, 16

Hewitt v. Helms, 482 U.S. 755 (1987)... 7

Johnson V. Georgia Highway Express, Inc., 488

sf £, F | & | ee 6, 7, 23, 24, 25

Jones V. Diamond, 636 F.2d 1364 (5th Cir.), cert.

granted, 452 U.S. 959, dismissed by agreement,

453 U.S. 950 (1981) ........... Ee eee ae 14

King V. Palmer:

906 F.2d 762 (1990), rev’d, 950 F.2d 771

I 25-26

950 F.2d 771 (D.C. Cir. 1991) ews 11, 12, 21, 22, 24

Laffey Vv. Northwest Airlines, Inc., 746 F.2d 4

(D.C. Cir. 1984), cert. denied, 472 U.S. 1021

IS PE See OS Pe een 15

Lehman Vv. Nakshian, 453 U.S. 156 (1981)... 26

Leroy Vv. City of Houston, 831 F.2d 576 (5th Cir.

1987), cert. denied, 486 U.S. 1008 (1988) 11

Cases—Continued : Page

Lewis Vv. Coughlin, 801 F.2d 570 (2d Cir. 1986)... 2

Library of Congress V. Shaw, 478 U.S. 310 (1986).. 26

Lindy Bros. Builders, Inc. V. American Radiator

& Standard Sanitary Corp., 487 F.2d 161 (3d

BR, SI inca ists oni ioniainssdals asaeniacaasidemmatenialianeiabitcebhishaan 14

McKenzie v. Kennickell, 875 F.2d 330 (D.C. Cir.

a a alate lela 11, 12, 23

McKinnon Vv. City of Berwyn, 750 F.2d 1383 (7th

SEES SEI scssnnscisstsniieniinedbssaiensinnhianbicninemnesieantbiiabinbinasiannionness 15, 21

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) —................. 20

Murray V. Weinberger, 741 F.2d 1423 (D.C. Cir.

ES I a em es en ee 14, 15

Nadeau Vv. Helgemoe, 581 F.2d 275 (1st Cir.

TTI sci inceieciiiiieaniesiehiaidiitlandasaiiibdiaaisibdistainaldiiddinaada 7-8

Norman V. Housing Auth., 836 F.2d 1292 (11th

Gt SIT :cssciincsceiiciaplepiitclactiicidtihanintaieecaddiahtmiaientitnnitadionaee 12, 21

Pennsylvania V. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986)... 5, 7,9, 12, 24

Pennsylvania V. Delaware Valley Citizens’ Council

for Clean Air, 483 U.S. 711 (1987) —.................. passim

Public Interest Research Group Vv. Powell Duffryn

Terminals, Inc., 913 F.2d 64 (3d Cir. 1990),

cert. denied, 111 S. Ct. 1018 (1991) 00. 17

Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir.

1990) .. = 11

Ruckelshaus \ v. . Sierra Club, 463 U. S. 681 (1983) .. . 15, 16,

Sierra Club v. Union Oil Co., 813 F.2d 1480 (9th

Cir. 1987), remanded, 485 U.S. 931 (1988) ........ 17

Skelton v. General Motors Corp., 860 F.2d 250

I, ll

Smith v. Freeman, 921 F.2d 1120 (10th Cir.

ETRE a BES So SEEN SR 11-12

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987),

cert. denied, 484 U.S. 1027 (1988) —..... 11

Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.

Cal. 1974), aff'd, 550 F.2d 464 (9th Cir. 1977),

rev'd, 436 U.S. 547 (1978) ........................... 14, 15, 24, 25

Student Pub. Interest Research Group v. AT&T

Bell Laboratories, 842 F.2d 1436 (3d Cir. 1988) .. 11

Cases—Continued : Page

Swann Vv. Charlotte-Mecklenburg Bd. of Edue.,

F.R.D. 483 (W.D.N.C. 1975) _.... a aro 24

Texas State Teachers Ass'n V. Garland Independ-

ent School District, 489 U.S. 782 (1989).............. 7,17

Venegas V. Mitchell, 495 U.S. 82 (1990) _.... Foo 9,10, 17

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir.

ITI ccsinsdl diehatindaabdtanndamiebsdemenmnagianendapaieansentitédmassndeniaie 12

Statutes:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e-

| aie SE RET ae ee ee OR 1, 5, 20

Civil Rights Attorney’s Fees Awards Act of 1976,

42 U.S.C. 1988 ........... erste aN oa At Rn aieataill ...5, 6, 7, 15, 23

Clayton Act, 15 U.S.C. 15 .......................... me i 5

Clean Air Act, 42 U.S.C. 7401 et seq.:

EEE 5

43 U.S.C. 7604(d) § 304 (4) ................................ 5, 15

42 U.S.C. 7607 (f) (§ 307(f)) -........................... 5

i, Se csenmastueneunesanee 5

Consumer Product Safety Act, 15 U.S.C. 2051 et

seq.:

15 U.S.C. 2060(¢) ...... a aaa 5

SI ART reece kee 5

ET RS EE Se ea 5

EEL ee 5

Federal Water Pollution Control Act (Clean Water

Act), 33 U.S.C. 1251 et seq.:

en 17

TL 17

I cerns 17

§ 505(a), 33 U.S.C. 1365(a) _.... SARE re 20

§ 505 (d), 33 U.S.C. 1865(d) _............................. 1, 6, 20

Hart-Scott-Rodino Antitrust Improvements Act

of 1976, 15 U.S.C. 15c et seq.:

EE re 5

15 U.S.C. 15¢ (d) (2) -...... a Se 5

SEITE cinshinessiecisncniichchiansdinttinmnndaitishiahintidetiattniinde 5

VII

Statutes—Continued: Page

Solid Waste Disposal Act:

§ 7002 (a), 42 U.S.C. 6972 (a) ......00 ee. wats 20

§ 7002 (e), 42 U.S.C. 6972 (e) ...... 1, 6, 20

Trademark Act, 15 U.S.C. 1117 .......0.00000000000... 5

Truth in Lending Act, § 130(a), 15 U.S.C. 1640

(a) . iceeislatilkabishbiasiaaiidadaiaiieiaiadiiendaiiasnatiesiiaiammaies 5

Miscellaneous:

Awarding of Attorneys’ Fees: Hearings Before

the Subcomm. on Courts, Civil Liberties, and

the Administration of Justice of the House

Comm. on the Judiciary, 94th Cong., Ist Sess.

SEER REE 5 Re ERED A ae 15

Berger, Court Awarded Attorneys’ Fees: What is

“Reasonable”’?, 126 U. Pa. L. Rev. 281

AE TA EEE SRNR R ee OD ASS TOO 14

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976)... 5, 6,7

Leubsdorf, The Contingency Factor in Attorney

Fee Awards, 90 Yale L.J. 473 (1981) 0000000... 23

H. Newberg, Attorney Fee Awards (1986 & Supp.

mE YR MEE Se SS RNa SE ae te a 18

S. Rep. No. 1196, 91st Cong., 2d Sess. RPE 5

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) .......... 6, 7,24

Ju the Suprene Court of the Wuited States

OCTOBER TERM, 1991

No. 91-810

CITY OF BURLINGTON, PETITIONER

Vv.

) ERNEST DAGUE, SR., ET At.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

) BRIEF FOR THE UNITED STATES AS

| AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The United States is frequently a defendant sub-

ject to liability for attorney’s fees in cases brought

under Section 7002(e) of the Solid Waste Disposal

Act, 42 U.S.C. 6972(e) and Section 505(d) of the

Federal Water Pollution Control Act (Clean Water

| Act), 33 U.S.C. 1865(d). The United States has sim-

ilar exposure to fee awards under more than 100

other statutes, including Title VII and other anti-

discrimination statutes. Given the large number of

such awards annuaily, a decision concerning the

availability of contingency enhancements carries

enormous fiscal consequences to the United States.

On the other hand, the government is also concerned

that fees available for private enforcement of federal

(1)

statutes be adequate to ensure that meritorious suits

will be pursued.

STATEMENT

This litigation concerned environmental challenges

to petitioner’s operation of a municipal landfill on

property adjacent to property owned by respondents.

Respondents’ complaint alleged violations of the Solid

Waste Disposal Act (SWDA), the Clean Water Act,

and state law, and sought a variety of relief, includ-

ing costs and attorney’s fees. After a bench trial, the

district court found that petitioner had violated cer-

tain provisions of SWDA, the Clean Water Act, and

state law, and ordered injunctive relief. Pet. App.

59-115.

With regard to the fee petition, the district court

found that respondents had substantially prevailed

and awarded them $247,534.37 in attorney’s fees.

This award included a “lodestar” amount of $198,-

027.50, plus a 25% contingency enhancement of

$49,506.87. Pet. App. 133-134. Following applicable

Second Circuit precedent, the district court reasoned

that “[w]ithout the possibility of a fee enhancement

. .. competent counsel might refuse to represent [en-

vironmental] clients thereby denying them effective

access to the courts.” Pet. App. 132 (quoting Friends

of the Earth vy. Eastman Kodak Co., 834 F.2d 295,

298 (1987), and Lewis v. Coughlin, 801 F.2d 570,

576 (1986) ).

The court of appeals affirmed. In its analysis of

the contingency fee enhancement issue, the court con-

cluded that none of the three separate opinions in

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 483 U.S. 711 (1987) (Delaware Val-

ley II) was dispositive, and that “the issues of

whether and when a contingency enhancement is war-

ranted are open issues for the Supreme Court yet to

decide.” Pet. App. 36. On that basis, the Second Cir-

cuit reasoned that its own prior decisions remained

the controlling precedent, which the district court had

properly applied in determining that a 25% enhance-

ment was appropriate. Pet. App. 37.

The City of Burlington then filed a petition for a

writ of certiorari. The petition presented a number

of questions, but this Court limited its grant of the

writ to the question of whether the contingency fee

enhancement was permissible under the statute.’

SUMMARY OF ARGUMENT

Under the typical fee-shifting statute, a prevailing

party is entitled to a reasonable attorney’s fee. This

Court has adopted a presumption that the fee award

should generally be based on the lodestar amount: a

reasonable hourly rate times the number of hours

reasonably expended on the case. Although the Court

in Delaware Valley II considered whether the lode-

star may be enhanced to reflect the risk of loss, the

opinions in that case leave the issue unsettled.

We submit that no such enhancements should be

permitted, Neither the statutory language nor the

limited legislative history indicates that Congress in-

tended to permit them. The lodestar amount repre-

sents, by definition, a “reasonable fee’ for services

rendered, and the statute makes no provision for

other types of charges, to create still greater induce-

ments for counsel to bring such actions. Indeed, since

such awards serve to subsidize counsel for unsuccess-

ful litigation, they are inconsistent with the statu-

'Tssues concerning the merits of the litigation are accord-

ingly not before this Court, and we express no views as to

those issues.

tory directive that fee awards be made only to pre-

vailing parties.

Judicial attempts to formulate practical standards

to identify the circumstances in which a contingency

enhancement would be appropriate and to provide

guidance to the district courts concerning the meth-

ods for calculating such awards have not been suc-

cessful, and there is no persuasive evidence that such

awards are necessary to serve the purposes of fee-

shifting statutes by assuring the availability of com-

petent counsel to litigate meritorious cases. If Con-

gress nevertheless concludes as a matter of policy

that contingency enhancements are an appropriate

part of a reasonable attorney’s fee, it is free to so

specify, and to provide standards for their assess-

ment. In the absence of such congressional guidance,

the statutory authority to award a reasonable attor-

ney’s fee should not be interpreted to include the au-

thority to use a contingency enhancement in calcu-

lating that fee.

ARGUMENT

STATUTES REQUIRING REASONABLE ATTOR-

NEY’S FEES TO BE PAID TO A PREVAILING PARTY

DO NOT AUTHORIZE THE AWARD OF CONTIN-

GENCY FEE ENHANCEMENTS OVER AND ABOVE

THE LODESTAR

A. This Court Has Established A Presumption That The

Lodestar Represents a Reasonable Fee

1. Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240, 269 (1975), reaffirmed the

“American Rule” requiring each litigating party to

pay its own attorney’s fees; fee-shifting is generallv

not permitted in the absence of an express statutory

provision authorizing it. See Hensley v. Eckerhart,

461 U.S. 424, 429 (1983).* But Congress_ has often

provided such authorization, to encourage citizens to

vindicate important public rights (e.g., S. Rep. No.

1196, 91st Cong., 2d Sess. 36 (1970) (fee-shifting

under Clean Air Act)), or to ensure effective access

to the judicial process for persons who might not

otherwise be able to obtain legal counsel (e.g., H.R.

Rep. No. 1558, (94th Cong., 2d Sess. 1 (1976) (fee-

shifting under Civil Rights Attorney’s Fees Awards

Act of 1976, 42 U.S.C. 1988)). See Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478

U.S. 546, 560, 565 (1986) (Delaware Valley /);

Hensley, 461 U.S. at 429.

Congress has accordingly authorized courts to

award attorney’s fees in litigation arising under a

wide variety of statutes. See Alyeska, 421 U.S. at

260-262 & n.33.° The statutory language of these

provisions typically authorizes the court to award

“reasonable attorney’s fees” to the “prevailing” or

2 Absent statutory authorization, there are three limited

situations in which fee-shifting is permitted notwithstanding

the American Rule. Courts may use their equitable powers

to award fees under the common fund, common benefit, and

bad faith exceptions to the no-fee rule. Alyeska, 421 U.S. at

257-260; Pennsylvania Vv. Delaware Valley Citizens Council

for Clean Air, 478 U.S. 546, 562 n.6 (1986) (Delaware Valley

I). None of these exceptions is at issue in the present case.

®* These statutes include, inter alia, Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e-5(k); the Civil Rights

Attorney’s Fees Awards Act of 1976, 42 U.S.C. 1988: the

Clean Air Act, 42 U.S.C. 7413(b), 7604(d), 7607(f), 7622

(b) (2) (B): the Consumer Product Safety Act, 15 U.S.C.

2060(c), 2060(f), 2072(a), 2073; the Truth in Lending Act,

15 U.S.C. 1640(a); the Clayton Act, 15 U.S.C. 15; the Hart-

Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C.

15e(a)(2) and (d) (2), 26; the Copyright Act, 17 U.S.C.

505; and the Trademark Act, 15 U.S.C. 1117.

“substantially prevailing” party.* Thus, faced with a

fee request under a fee-shifting statute, a court must

determine whether the party has “substantially pre-

vailfed],” and if so, what fee amount is “reason-

able.”

2. The language of the standard fee-shifting pro-

visions provides no real guidance as to what is “rea-

sonable” or what it means to be “substantially pre-

vailing.” The legislative histories of most fee-

shifting statutes are likewise silent on these ques-

tions. Congress did, however, briefly address these

issues in enacting the attorney’s fee provision of the

Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.

1988 (Section 1988).° There, Congress stated that

“fees [should be] adequate to attract competent coun-

sel, but [should] not produce windfalls to attorneys.”’

S. Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976). See

also H.R. Rep. No. 1158, 94th Cong., 2d Sess. 9

(1976) (same). The Committee Reports cite Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714, 717-

719 (5th Cir. 1974), as listing the factors to be con-

4 See, e.g., Clean Water Act § 505(d), 33 U.S.C. 1365(d)

(“The court * * * may award costs of litigation (including

reasonable attorney and expert witness fees) to any prevail-

ing or substantially prevailing party, whenever the court de-

termines such award is appropriate.”) ; Solid Waste Disposal

Act § 7002(e), 42 U.S.C. 6972(e) (identical provision) ; Civil

Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. 1988

(“the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as

part of the costs.’’).

5In Hensley, 461 U.S. at 433 n.7, the Court observed that

the standards for determining “reasonable” fees under Sec-

tion 1988 apply equally to other federal statutes awarding

such fees.

sidered in fixing a fee award.’ H.R. Rep. No. 1558,

supra, at 8; S. Rep. No. 1011, supra, at 6."

3. In its decisions since Alyeska and the enact-

ment of Section 1988, this Court has gradually re-

fined and clarified the standards for awarding attor-

ney’s fees. See Delaware Valley I, 478 U.S. at 561-

566 (describing the Court’s evolving views on “rea-

sonable” attorney’s fees).* As the Court observed in

° The Johnson factors are (488 F.2d at 717-719) :

(1) The time and labor required; (2) The novelty and

difficulty of the questions; (3) The skill requisite to per-

form the legal service properly; (4) The preclusion of

other 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 in-

volved and the results obtained; (9) The experience,

reputation, and ability of the attorneys; (10) The “un-

desirability” of the case; (11) The nature and length of

the professional relationship with the client; and (12)

Awards in similar cases.

7 In addition, the Senate Report cites three district court

decisions as examples of the correct application of the Johnson

standards in setting a fee award. S. Rep. No. 1011, supra,

quoted in Hensley v. Eckerhart, 461 U.S. at 430 n.4. See dis-

cussion infra at 24-25.

* With respect to the requirement that the party seeking

fees “prevail[]” or “substantially prevail[],” the Court has

held that while a party cannot be considered “prevailing”

unless he or she receives “at least some relief on the merits of

his claim,” Hewitt v. Helms, 482 U.S. 755, 759-760 (1987),

substantial success is not required. If a party succeeds on

“ “any significant issue in litigation which achieve[d] some of

the benefit the parties sought in bringing suit’ the plaintiff has

crossed the threshold to a fee award.of some kind.” Teras

State Teachers Ass'n V. Garland Independent School District,

489 U.S. 782, 791-792 (1989) (quoting Nadeau v. Helgemoe,

that case (id. at 563), the Johnson factors actually

provide little guidance to district courts: “[s]etting

attorney’s fees by reference to a series of sometimes

subjective factors placed unlimited discretion in trial

judges and produced disparate results.”

a. The Court first addressed the question of what

constitutes a “reasonable” fee in Hensley. The Court

identified the “lodestar’—a reasonable number of

hours multiplied by a reasonable hourly rate—as the

“most useful starting point” for determining the

amount of fees. 461 U.S. at 433. While the Court

indicated that the lodestar could be adjusted upward

or downward on the basis of other considerations, in-

cluding the “results obtained” and other Johnson fac-

tors, it noted that many of the Johnson factors are

subsumed within the lodestar calculation. /d. at 434

& n.9.°

581 F.2d 275, 278-279 (1st Cir. 1978)). But meeting this

standard gets plaintiff only across the threshold; the court

must still determine what fee is reasonable under the circum-

stances.

* With respect to adjustment for the “results obtained,” the

Court observed (461 U.S. at 435-436) that:

Where a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee. Nor-

mally this will encompass all hours reasonably expended

*** and indeed in some cases of exceptional success an

enhanced award may be justified. * * *

If, on the other hand, a plaintiff has achieved only

partial or limited success, the [lodestar] may be an ex-

cessive amount. * * *

The Court acknowledged that it was providing only limited

guidance in this regard: “There is no precise rule or formula

for making these determinations” (461 U.S. at 436), but the

court’s exercise of its discretion must take account of these

considerations. /d. at 436-437.

In Blum vy. Stenson, 465 U.S. 886 (1984), the next

case to address the issue, the Court placed added em-

phasis on the lodestar. It announced that the lodestar

amount is “presumed to be the reasonable fee,” é¢. at

897, and limited the use of the Johnson factors. As

subsequently explained in Delaware Valley 1 (478

U.S. at 565), the Court in Blum

specifically held * * * that the “novelty [and]

complexity of the issues,” “the special skill and

experience of counsel,” the “quality of represen-

tation,” and the “results obtained” from the liti-

gation are presumably fully reflected in the lode-

star amount, and thus cannot serve as inde-

pendent bases for increasing the basic fee award.

Blum specifically left open the question of whether

enhancement of the lodestar to compensate for the

risk of not prevailing is ever permissible. 465 U.S. at

901 n.17."

' The Court has also considered the significance of a con-

tingent fee arrangement between the prevailing party and

his lawyer in the calculation of a fee award. It concluded that

a plaintiff may make any appropriate contingency fee ar-

rangements he chooses with his attorney to govern the dam-

ages to be recovered in his suit, notwithstanding the avail-

ability of statutory fees; such arrangements will not prejudice

the fee award. In Blanchard v. Bergeron, 489 U.S. 87, 93

(1989), the Court held that “a contingent-fee contract does

not impose an automatic ceiling on an award of attorney's

fees.” As the Court further explained in Venegas v. Mitchell,

495 U.S. 82, 90 (1990):

§ 1988 controls what the losing defendant must pay [to

the plaintiff], not what the prevailing plaintiff must pay

his lawyer. What a plaintiff may be bound to pay and

what an attorney is free to collect under a fee agreement

are not necessarily measured by the “reasonable attor-

b. In Delaware Valley IJ, the Court first ad-

dressed the precise issue presented in this case—

whether the typical fee-shifting statute permits the

award of a contingency enhancement to compensate

the plaintiff (or more precisely his lawyer) for as-

suming the risk of not prevailing, and of thus receiv-

ing no fee award. The Court there reversed an

award of a 100% contingency enhancement, but could

not reach agreement on the issues of whether and

when a contingency enhancement may be allowed

under fee shifting statutes. Justice White, writing

for a plurality of four Justices, concluded that “en-

hancement of a reasonable lodestar fee to compensate

for assuming the risk of loss is impermissible under

the usual fee-shifting statutes” (483 U.S. at 727).

But even if enhancement were ever permitted, the

plurality found that the facts at issue did not jus-

tify such an award, which “should be reserved for

exceptional cases where the need and justification for

such enhancement are readily apparent and are sup-

ported by evidence in the record and specific findings

by the courts.” Jd. at 728 (citing Blum y. Stenson,

465 U.S. at 898-901). Justice Blackmun, in a dissent

joined by three other Justices, took the opposite view,

asserting that “[a]n adjustment for contingency is

necessary if statutory fees are to be competitive with

the private market” (id. at 740).

Justice O’Connor, in a separate concurrence, joined

in the plurality’s judgment that a contingency en-

hancement was not justified in the case before the

ney’s fee” that a defendant must pay pursuant to a court

order.

In reaching this conclusion, the Court observed in passing

that “in construing § 1988, we have generally turned away

from the contingent-fee model to the lodestar model” (495

U.S. at 87).

Court (483 U.S. at 731). But she also agreed with

the dissent that “Congress did not intend to foreclose

consideration of contingency in setting a reasonable

fee under [typical] fee-shifting provisions” (ibid.).

Emphasizing that “compensation for contingency

must be based on the difference in [the] market

treatment of contingent fee cases as a class, rather

than on an assessment of the ‘riskiness’ of any par-

ticular case” (ibid.), she observed that courts “should

treat a determination of how a particular market

compensates for contingency as controlling future

cases involving the same market” (id. at 733).

Nevertheless, she also agreed with the plurality’s

conclusion that “no enhancement for risk is appro-

priate unless the applicant can establish that with-

out an adjustment for risk the prevailing party

‘would have faced substantial difficulties in finding

counsel in the local or other relevant market,’ ” ibid.

(quoting plurality opinion at 731)."

' The courts of appeals have sought to apply Delaware

Valley 11 in numerous cases under the various federal fee-

shifting statutes when prevailing plaintiffs have sought con-

tingency enhancements. See, e.g., McKenzie v. Kennickell,

875 F.2d 330 (D.C. Cir. 1989), overruled by King v. Palmer,

950 F.2d 771 (D.C. Cir. 1991); Rode v. Dellarciprete, 892

F.2d 1177, 1184-1185 (3d Cir. 1990); Student Pub. Interest

Research Group V. AT & T Bell Laboratories, 842 F.2d 1436,

1451 (3d Cir. 1988); Blum v. Witco Chem. Corp., 829 F.2d

367, 379-382 (3d Cir. 1987); Craig v. Secretary, HHS, 864

F.2d 324, 327-328 (4th Cir. 1989); Spell v. McDaniel, 824

F.2d 1380, 1403-1405 (4th Cir. 1987), cert. denied, 484 U.S.

1027 (1988) ; Leroy v. City of Houston, 831 F.2d 576, 583-584

(5th Cir. 1987), cert. denied, 486 U.S. 1008 (1988) ; Skelton

v. General Motors Corp., 860 F.2d 250, 254 (7th Cir. 1988) ;

Hendrickson V. Branstad, 934 F.2d 158, 162-163 (8th Cir.

1991); D’Emanuele Vv. Montgomery Ward & Co., 904 F.2d

1379, 1384 (9th Cir. 1990); Fadhl v. City of San Francisco,

859 F.2d 649, 650-651 (9th Cir. 1988); Smith v. Freeman,

B. The Statutory Language Should Not Be Interpreted

To Authorize The Award of Enhancements Because

The Lodestar Establishes The Reasonable Attorney's

Fee Necessary To Compensate A Prevailing Party

Although this Court has previously established a

presumption that the lodestar amount is fully com-

pensatory, we submit that it is now appropriate for

this Court further to hold that this presumption is

conclusive, because the lodestar is the definitive mea-

sure of “reasonable” attorney’s fees authorized by

the statutory language.’ No upward adjustments

to the lodestar should be permitted, and downward

adjustments should be made where the prevailing

921 F.2d 1120, 1122-1123 (10th Cir. 1990); Wulf v. City of

Witchita, 883 F.2d 842, 876 (10th Cir. 1989); Norman Vv.

Housing Auth., 836 F.2d 1292, 1302 (11th Cir. 1988).

Most of these decisions have assumed that Justice

O’Connor’s concurrence states the controlling rule, and have

followed her view that contingency fee enhancement may be

allowed in certain limited circumstances. See, e.g., Fadhl v.

City of San Francisco, 859 F.2d 649, 650 n.1 (9th Cir. 1988) ;

McKenzie v. Kennickell, 875 F.2d 330 (D.C. Cir. 1989). But

in King Vv. Palmer, 950 F.2d 771 (1991), the D.C. Circuit,

sitting en banc, reconsidered its McKenzie interpretation of

Delaware Valley 11. Like the Second Circuit in this case (Pet.

App. 36), the D.C. Circuit in King concluded that the opin-

ions in Delaware Valley II involve “three distinct approaches

to the issue of contingency enhancements in fee-shifting stat-

utes, none of which enjoys the support of five Justices” (950

F.2d at 782). In the absence of a controlling opinion of this

Court, the D.C. Circuit determined that “the appropriate

course is to hold that contingency enhancements will not be

available in this Circuit.” 950 F.2d at 784.

2 The court below correctly noted (Pet. App. 34-35) that

this Court’s rulings have already established that all the

Johnson factors except contingency enhancements are sub-

sumed in the lodestar. See Blum, 465 U.S. at 898-900; Dela-

ware Valley I, 478 U.S. at 565.

party is only partially successful. This interpretation

best conforms to the statutory language, minimizes

unnecessary litigation, and produces predictable, fair

results and is consistent with the legislative history."

1. Contingency Enhancements Conflict With The Stat-

utory Language By Improperly Compensating Per-

sons Who Were Not “Prevailing Parties”

Enhancing fees to compensate for risk of loss re-

quires the losing party to compensate the prevailing

party for both the successful claim and for other, un-

successful claims in other lawsuits. Since the typical

fee-shifting statute provides that only “prevailing

parties” are entitled to fees, this result is inconsistent

with the scheme established by Congress.

Courts and commentators have traditionally viewed

contingency multipliers as compensating the attor-

ney for bearing an appreciable risk of nonpayment

as a result of lack of success on the merits. Under

this view, because the lodestar is calculated on the

basis of a reasonable hourly rate for litigation in

which the attorney is paid regardless of the outcome,

additional compensation is thought to be necessary

in order to induce attorneys to take on a case in

which there is a chance they will receive no fee. See,

e.4., Delaware Valley Il, 483 U.S. at 737 (dissenting

opinion) (“[T]he market-based fee or hourly rate

that is contingent on success is necessarily higher

than the hourly rate charged when payment is cur-

rent and certain. This fee enhancement ensures that

Although there may be disagreements as to the market

rate or the reasonableness of the total number of hours

claimed by the prevailing party, these are basic factual deter-

minations that do not present any fundamental conceptual

difficulties.

accepting cases on a contingent basis remains an eco-

nomically attractive and feasible enterprise for law-

yers.”). Accord Lindy Bros. Builders, Ine. v. Amer-

ican Radiator & Standard Sanitary Corp., 487 F.2d

161, 168 (3d Cir. 1973); Copeland y. Marshall, 641

F.2d 880, 893 (D.C. Cir. 1980); Jones vy. Diamond,

636 F.2d 1364, 1382 (5th Cir.), cert. granted, 452

U.S. 959, dismissed by agreement, 453 U.S. 950

(1981); Berger, Court Awarded Attorneys’ Fees:

What is “Reasonable”?, 126 U.Pa. L. Rev. 281, 324-

326 (1977).

In effect, contingency awards compensate attor-

neys for their unsuccessful efforts. As the court

stated in Stanford Daily v. Zurcher, 64 F.R.D. 680,

685 (N.D. Cal. 1974), aff’d, 550 F.2d 464 (9th Cir.

1977), rev’d on other grounds, 436 U.S, 547 (1978):

From the attorneys’ standpoint, the contingent

fee insures that counsel are compensated not

only for their successful efforts but also for un-

successful litigation. Its use allows attorneys—

including attorneys who could not otherwise ab-

sorb the costs of lost cases—to take the financial

gamble of representing penurious clients, since

over the long run, substantial fees awards in suc-

cessful cases will provide full and fair compen-

sation for all legal services rendered to all

clients.

That is precisely why contingency awards are in-

consistent with statutory provisions allowing fees

only to prevailing parties. See, e.g., Murray v. Wein-

berger, 741 F.2d 1423, 1481 (D.C. Cir. 1984);

(“Awarding an upward adjustment to the lodestar

for the risk of losing and the concomitant risk of not

obtaining an award of attorney’s fees is not unlike

compensating an attorney for unsuccessful claims; it

hedges the statute’s requirement that only prevailing

parties may recover attorney’s fees.”); cf. Delaware

Valley 11, 483 U.S. at 724-725 (plurality opinion) ;

McKinnon vy. City of Berwyn, 750 F.2d 1383, 1392

(7th Cir. 1984); Laffey v. Northwest Airlines, Inc.,

746 F.2d 4, 27 (D.C. Cir. 1984), cert. denied, 472

U.S. 1021 (1985)."

The rationale for contingency multipliers as ex-

pressed in Stanford Daily is inconsistent with the

Court’s decision in Hensley v. Eckerhart, supra. See

Laffey, 746 F.2d at 27; Murray, 741 F.2d at 1431.

The award of a contingency multiplier in eect com-

pensates a prevailing party’s counsel for the risk that

he might have lost the case and, thus, subsidizes coun-

sel for unsuccessful litigation.” But the Court held

'’ There is direct evidence that Congress did not intend

fee-shifting statutes to operate in this fashion. During the

House hearings on the Civil Rights Attorney’s Fees Awards

Act of 1976, 42 U.S.C. 1988, Representative Sieberling stated:

[S]ome people may conclude that the [fee provision is]

intended to promote the special interests of lawyers.

Perhaps that is so to the extent it promotes the interests

of successful lawyers who make the right judgment or

who handle the case properly so that they win.

But it certainly is not calculated to promote the inter-

ests of lawyers who make the wrong judgment * * *.

Awarding of Attorneys’ Fees: Hearings Before the Subcomm.

on Courts, Civil Liberties, and the Administration of Justice

of the House Comm. on the Judiciary, 94th Cong., 1st Sess. 8

(1975). See also Ruckelshaus vy. Sierra Club, 463 U.S. 681,

692-693 & n.13 (1983) (“central purpose” of § 304(d) of

Clean Air Act (42 U.S.C. 7604(d)) was to “check the ‘mul-

tiplicity of [potentially meritless] suits’ ”’).

’ For example, if the chance of success in a particular case

in which a party actually prevails were adjudged (with hind-

sight) to have been 50 percent at the time the complaint was

in Hensley (461 U.S. at 434-436) that Congress did

not intend to saddle a losing defeadant with attor-

ney’s fees incurred by a partially successful plaintiff

in the pursuit of discrete claims on which the plain-

tiff did not prevail. A fortiori, it did not intend to

require a defendant to pay the attorney’s fees of a

totally unrelated plaintiff whom the defendant has

not harmed in any way. Accord Ruckelshaus v.

Sierra Club, 463 U.S. at 691-692 (prohibition of fee

awards to nonprevailing parties).

In sum, enhancing fees to compensate for risk of

loss “is not consistent with Congress’ decision to

adopt the rule that only prevailing parties are en-

titled to fees.” Delaware Valley II, 483 U.S. at 725

(plurality opinion).

2. Contingency Enhancements Are Not Necessary To

Ensure That Parties Will Be Able To Obtain

Representation

The purpose of fee-shifting statutes is to encour-

age and enable private parties to obtain counsel. See,

e.g., Delaware Valley II, 483 U.S. at 725 (plurality

opinion). Awards limited to the lodestar amount

fully satisfy that purpose, however. Potential! for

reimbursement will cause many persons who would

not otherwise be willing to file suit to advance fees

to their lawyers in anticipation of a fee award at the

conclusion of the litigation.

filed, a risk multiplier of two might be employed. Assuming

the risk assessment were accurate, it could be expected that

counsel would succeed in one out of every two similar cases

filed. The effect of doubling counsel’s fee recovery for pre-

vailing in the first case is indistinguishable from paying for

the time counsel devotes to its hypothetical unsuccessful twin.

Even plaintiffs financially unable to make such ad-

vances will nevertheless still be able to retain coun-

sel under the lodestar interpretation. Contingent fee

representation would still be available in cases where

the potential for damages provides a source of fees,

since the normal market for contingency operates.

See, e.g., Blanchard, 489 U.S. at 87; Venegas v. Mit-

chell, 495 U.S. at 82. Similarly, contingency enhance-

ments would also be unnecessary where the defen-

dant’s liability is clear, because in those cases some

fee award is virtually certain and counsel would have

adequate incentive to take the case in expectation of

future payment. See Texas State Teachers Ass’i v.

Garland Independent School District, 489 U.S. at

791-792." Thus, the only cases where contingency

enhancements might be necessary to attract competent

counsel to represent plaintiffs who are unable to pay

fees are cases where liability is uncertain and dam-

ages are not a possibility.

Even in this limited class of cases, we submit that

a contingency enhancement over the lodestar is not

necessary to enable a plaintiff with a case involving

a fair chance of success to obtain competent counsel."

‘6 This is often the case under federal environmental stat-

utes. Under the Clean Water Act, for instance, sources are

subject to strict numerical limitations on their discharges,

and are required to monitor and report their discharge levels.

See Clean Water Act $§ 301, 308, 402, 33 U.S.C. 1311, 1318,

1342. In a suit to enforce these provisions, the discharge

monitoring reports provide virtually irrefutable evidence of

liability. Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491-

1492 (9th Cir. 1987), remanded on other grounds, 485

U.S. 931 (1988); Public Interest Research Group v. Powell

Duffryn Terminals, Inc., 913 F.2d 64, 68 (3d Cir. 1990), cert.

denied, 111 S. Ct. 1018 (1991).

As the plurality opinion in Delaware Valley Il ob-

served (483 U.S. at 726-727) :

[fee enhancement for risk is unnecessary] in

those cases where plaintiffs secure help from or-

ganizations whose very purpose is to provide

legal help through salaried counsel to those who

themselves cannot afford to pay a lawyer. It is

also unlikely to be [necessary] in any market

where there are competent lawyers whose time is

not fully occupied by other matters.

* * * * *

It may be that without the promise of risk

enhancement some lawyers will decline to take

cases; but we doubt that the bar in general will

so often be unable to respond that the goal of the

fee-shifting statutes will not be achieved.

This analysis is confirmed by the fact that such cases

continue to be brought, although it does not appear

that contingency enhancements have been so gener-

ally awarded that counsel in any particular case can

reasonably base the decision to accept the case on the

expectation of such an award. See H. Newberg, Af-

torney Fee Awards § 31.01 (1986 & Supp. 1991)

(listing cases in which multipliers allowed after

Blum).

3. The Test Of The Delaware Valley II Concurrence

Has Proven To Be Unworkable

Justice O’Connor’s concurrence, which has been

generally accepted as the holding of Delaware Val-

ley II (note 11, supra), requires a two-step analysis:

17 We do not believe that it is consistent with the purposes

of these statutes to encourage the bringing of truly marginal

cases. See note 18, infra.

the court must consider first, how the relevant market

compensates for contingency, and second, whether the

fee applicant would have faced “substantial difficul-

ties” in attracting counsel to handle the case without

the prospect of enhancement. Delaware Valley 11,

483 U.S. at 733. Experience now demonstrates that

there are serious practical difficulties with both steps.

a. The “market based” inquiry is designed to

avoid the serious theoretical and practical objections

to basing a contingency enhancement on an assess-

ment of the risk of prevailing in the particular case

in which the fee is sought.’* But this approach itself

creates another difficulty: the identification of the

relevant market. As the concurrence recognized,

[ijn most fee-shifting cases * * * the private market

model of contingency compensation will provide very

'* That approach was eschewed by all nine Justices in

Delaware Valley II (483 U.S. at 719-723 (plurality opinion),

731 (concurring), 745-746 (dissenting). The plurality opin-

ion summarized the objections to it. Under an “individual

riskiness” regime, the riskier the case, the greater the “need”

for enhancement. This penalizes the losing parties with the

strongest and most reasonable defenses, “creating a perverse

penalty for those least culpable.” 483 U.S. at 719. In addi-

tion, “‘[e] valuation of the risk of loss creates a potential con-

flict of interest between an attorney and his client, for in

order to increase a fee award, a plaintiff’s lawyer must expose

all of the weaknesses and inconsistencies in his client’s case”

(id. at 721-722); it is inherently difficult and unreliable to

require a court to estimate retroactively the prevailing par-

ty’s chances of success in order to calculate the proper amount

of enhancement (id. at 722); “because the contingency

bonus cannot be determined with either certainty or accu-

racy, it ‘cannot be justified on the ground that it provides an

appropriate incentive for litigation’” (ibid.); and individ-

ualized contingency fee enhancement further complicates the

already protracted and complex task of setting fees under the

fee-shifting statutes (id. at 483-484).

little guidance.” 483 U.S. at 731 (citing City of

Riverside v. Rivera, 477 U.S. 561, 573-576 (1986) ).”

Considering the relevant market to be comprised of

cases concerning similar subject matter—for example

discrimination cases for Title VII awards, and en-

vironmental eases for SWDA and Clean Water Act

awards—does not resolve the difficulty. In these areas,

and for many, if not most, fee-shifting statutes, there

does not appear to be a significant comparable pri-

vate market (i.e., one in which a prevailing party

may not recover under a fee shifting provision).

Where a fee shifting statute assures that the pre-

vailing party’s fee will be paid by his opponent, there

is no market incentive to control the size of the fee;

instead, judicial awards determine the amount of any

fee award. Thus, if fee enhancements are routinely

awarded, attorneys can be expected to seek (and their

1” Contingency fees are typically used in private tort law,

where the fee is paid out of the successful plaintiff's damage

award. In that context, it is at least roughly equitable to tie

the attorney’s fee to the size of the damage award obtained

through his efforts. But many statutes with fee-shifting pro-

visions—including the SWDA and the Clean Water Act—do

not allow plaintiffs to recover monetary damage awards from

defendants. Under the Clean Water Act and SWDA, only

three forms of relief are available to private plaintiffs—

injunctions, civil penalties payable to the United States Treas-

ury, and litigation costs. 33 U.S.C. 1365(a) and (d) (Clean

Water Act); 42 U.S.C. 6972(a) and (e) (SWDA). See

Middlesex County Sewerage Authority v. National Sea Clam-

mers Ass’n, 453 U.S. 1, 14-15 (1981). Similarly, as Riverside

demonstrates, many Title VII cases produce little or no mone-

tary recovery, and therefore do not provide a basis for per-

centaye-based contingency fees. The rationale applicable to

the situation in which the fee is paid out of the recovery

obtained by the plaintiff is simply inapplicable where there

is no such fund, and the award is paid directly by the de-

fendant.

clients will have no reason to oppose) fee agreements

that include contingency enhancements, and ultimately

to decline to accept cases under fee-shifting statutes

on any lesser basis. Judicial determinations of how

the “market” compensates for contingency would

then have become a self-fulfilling prophecy, rather

than any true indication that enhancement is in fact

— o attract competent counsel.

- As the court in King v. Palmer recognize

F.2d at 779-780), the “substantial difficaltien” aspect

of the concurrence’s test is also problematic. The

court first concluded that both the Delaware Valley I]

concurrence and the plurality “envisioned a particu-

larized factual inquiry into the plaintiff’s actual dif-

ficulties in retaining counsel.” Jd. at 778. It

then identified three critical problems with the sub-

stantial difficulties test. First, “focusing on actual

difficulties will encourage ‘a charade in which clients

seeking representation under fee shifting statutes

would be steered to several attorneys whose pre-

arranged role it would be to “refuse” the case, know-

ing that such refusals were necessary to permit the

eventual award of fees.’” Jd. at 780. Second, em-

*” The King court correctly concluded (950 F.2d at 779

that self-serving, post hoc affidavits by counsel, who had

never been approached by plaintiff, that they would not take

cases: like hers without a contingency enhancement were in-

sufficient to meet the “substantial difficulties” test. Cf. De-

partment of Labor v. Triplett, 494 U.S. 715, 723-724 (1990)

(rejecting “anecdotal evidence” in the form of attorney affi-

davits asserting the inadequacy of available attorney fees)

But see Norman V. Housing Authority, 8836 F.2d 1292 (11th

( ir. 1988) (proper to rely on such affidavits); cf. Blum v

Witco Chemical Corp., 829 F.2d 267, 381 (3d Cir. 1987) (sug-

gesting appointment of special master to consider comments

of bar and litigants, and make findings regarding need for

contingency enhancements).

phasizing the actual difficulties will “create perverse

incentives” by discouraging reference services that

make it easier for litigants to find legal representa-

tion. /bid,

Third, the court recognized the close relation be-

tween the difficulty in obtaining counsel and the merits

of the claim to be asserted. 950 F.2d at 780.

Risk of loss is surely the principal reason a law-

yer will turn down a case under a fee-shifting

statute. Yet under both the plurality and concurring

opinions in Delaware Valley II, the risk of loss in a

particular case is not a factor that courts may look

at in determining whether a contingency enhance-

ment is appropriate. 483 U.S. at 724 (concurring

opinion) ; id. at 726-727 (plurality opinion) ; see also

id. at 745-746 (dissenting opinion, noting that con-

tingency enhancement not designed primarily to re-

flect risk of loss in particular case). In other words,

the “substantial difficulties” test largely measures

the “riskiness” of the case—precisely the factor that

both the plurality and the concurrence in Delaware

Valley II agree may not be considered.” Faced with

these problems, the King court correctly concluded

that the “substantial difficulties” test is unworkable

(950 F.2d at 780):

The more we struggle with this problem, the

more we are convinced that it is virtually im-

possible to determine whether a given plaintiff

would have had “substantial difficulties” in ob-

taining counsel without a contingency enhance-

ment. The inquiry is quite artificial because, by

21 As the King court observed (950 F.2d at 780): “[ijf

the courts cannot [consider legal risk] directly, how can it be

appropriate to do so vicariously through the eyes of the

lawyers who declined the case?”

definition, the plaintiff stands before the court

with counsel. And since counsel could not possibly

know whether a risk enhancement was in the off-

ing until a court decides the question years later,

our Inquiry is circular.

4. The Legislative History Of Section 1988 Does Not

Support The Lower Court's Conclusion That Con-

tingency Fee Enhancements Were Authorized By

Congress

_ Despite the absence of any statutory language in-

dicating that contingency fee enhancements may be

added to lodestar fees that are otherwise reasonable,

it has been suggested (Delaware Valley II, 483 U.S.

at 738-739 (dissenting opinion) ) that the legislative

history of Section 1988 nevertheless requires this in-

terpretation. A fair reading of Johnson and the three

cases cited in the Senate Report on Section 1988,

however, does not support the conclusion that Con-

gress intended contingency multipliers to be an ele-

ment of “reasonable” attorney’s fees.

Although the Johnson factors include consideration

of “[w]hether the fee is fixed or contingent” (488

F.2d at 718), “a careful reading of Johnson shows

that the contingency factor was meant to focus ju-

dicial scrutiny solely on the existence of any contract

for attorney’s fees which may have been executed

between the party and his attorney.” Delaware Val-

ley II, 483 U.S. at 723 (plurality opinion). Accord

Leubsdorf, The Contingency Factor in Attorney Fee

Awards, 90 Yale L.J. 473, 479 n.38 (1981). Appar-

ently, therefore, the Fifth Circuit meant only that the

nature of the parties’ fee arrangements should be

taken into account in determining the reasonableness

of a particular fee award; “there is nothing in

Johnson to show that this factor was meant to reflect

the contingent nature of prevailing in the lawsuit as

a whole.” Delaware Valley II, 483 U.S. at 723 (plur-

ality opinion) .”

The cases cited with approval in S. Rep. No. 1011,

supra, confirm this analysis. No bonus of any kind

was awarded in Swann v. Charlotte-Mecklenburg Bd.

of Edue., 66 F.R.D. 483 (W.D.N.C. 1975). There,

the court simply reviewed nine factors, similar

to those listed in Johnson, and reduced the prevailing

party’s fee request by roughly 15%. In Davis v.

County of Los Angeles, 8 Empl. Prac. Dee. (CCH)

a “Result Charge” to the basic award for “Attor-

neys’ Time” at the “normal hourly rates.” As the

label used suggests, the fee was enhanced not as

compensation for the risk of nonpayment due to fail-

ure on the merits, but because the court believed that

counsel had “achieved excellent results” and that

“tlhe nature of the case made it difficult to litigate”

(8 Empl. Prac. Dec. (CCH) { 9444, at 5048). In

Stanford Daily v. Zurcher, 64 F.R.D. 680, 688 (N.D.

Cal. 1974), the district court did consider the con-

tingency factor. It ruled that “the contingent nature

of compensation, the quality of the attorneys’ work,

and the results obtained by the litigation warrant[ed]

increasing the base fees figure (hours worked times

average billing rate).” ” The Stanford Daily court’s

22 Moreover, this Court has rejected the position that each

separately listed Johnson factor identifies an appropriate en-

hancement to the lodestar. Blum v. Stenson, 465 U.S. at 898-

899: Delaware Valley I, 478 U.S. at 564, 566. Accord King

v. Palmer, 950 F.2d at 784 n.8.

23 Although the district court did not explain how it had

translated these factors into a specific dollar amount, it em-

phasized that the various Johnson factors overlap and that

“recognition of their overlap [is needed to avoid] unnecessary

inflation of the attorneys’ fees award” (64 F.R.D. at 682).

approach was thus consistent with the one used in

Johnson; it evaluated whether the base fee adequately

reflected not only the contingent nature of the com-

pensation, but also the quality of the work product

and the results obtained. In Blum, the Court recog-

nized that the latter two factors—like those relied on

in Davis—are subsumed within a properly calculated

lodestar fee. 465 U.S. at 898-900. The citation to

Stanford Daily in the Senate Report does not require

that the “contingency” factor is to be treated any

differently.

As the plurality of this Court concluded in Dela-

ware Valley II, 483 U.S. at 724, “[g]iven the diver-

gence in both analysis and result between these three

cases, the legislative history is, at best, inconclusive

in determining whether Congress endorsed the con-

cept of increasing the lodestar amount to reflect the

risk of not prevailing on the merits.” There is ac-

cordingly no basis to depart from the interpretation

most consistent with the language of the statute.

CONCLUSION

In light of the serious practical and theoretical dif-

ficulties inherent in determining whether a contin-

gency enhancement of the lodestar fee may be appro-

priate in a particular case or in a class of cases, we

submit that the statutory directive to award a “rea-

sonable” fee to a prevailing party should not be in-

terpreted as a congressional authorization to include

such enhancements. The determinaticn of when, if at

all, such an enhancement is appropriate involves

questions of policy for Congress, which is better

equipped than the judiciary to develop systematic,

equitable rules to govern the award of such enhance-

ments without providing windfalls. King v. Palmer,

906 F.2d 762, 770 (1990) (Williams, J., dissenting),

rev'd, 950 F.2d 771 (D.C. Cir. 1991) (en banc). Ac-

cordingly, in the absence of definitive direction from

Congress, upward adjustments to the lodestar to com-

pensate for the contingency of loss should not be al-

lowed.* The judgment of the court of appeals should

accordingly be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

ANNE S. ALMY

MARK R. HAAG

Attorneys

MARCH 1992

** The absence of express congressional authorization for

contingency enhancements is particularly important where

the fee-paying defendant is a governmental entity. Fee shift-

ing statutes represent a limited waiver of sovereign immunity.

Ruckelshaus v. Sierra Club, 463 U.S. at 685-686. Waivers of

immunity must be strictly construed and may not be “en-

large[d] * * * beyond what the language requires.” Eastern

Transportation Co. Vv. United States, 272 U.S. 675, 686

(1927); Library of Congress v. Shaw, 478 U.S. 310, 314

(1986). Accordingly, in determining whether a “reasonable”

attorney’s fee award may properly include a contingency

enhancement, the court should be guided by the statutory

language and by what Congress “clearly and unequivocally”

intended. See Lehman v. Nakshian, 453 U.S. 156, 162 (1981).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.