Opposition Brief — Jenkins v. Missouri

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In the Supreme Court of the United States

OCTOBER TERM, 1988

KALIMA JENKINS, et al.,

Petitioners,

vs,

\ STATE OF MISSOURI, et al.,

Respondents.

Ow Perrrion ror a Writ or CERT?ORARI TO THE UNITED

Srates Court or AprEALs ror THe EIGHTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Wr11am L. WEBSTER

Attorney General

Terry C. ALLEN

Deputy Attorney General

Micuagt L. Borcourt

(Counsel of Record)

Assistant Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

314-751-3321

Counsel for Respondents

—ooEEEE===E===E=EeEEeEeEeESES=E———e—————

B. L. Muwpewmatt, bro., 886 Cherry Street, Kancas City, Mo. 64106, (816) 421-8030

QUESTION PRESENTED

Whether 42 U.S.C. § 1988 entitles counsel for plaintiffs

who prevail on certain claims against certain defendants

in a public school desegregation case to a “contingency

enhancement” as a separate element in an award of attor-

neys’ fees, over and above the hourly rate that the district

court found to be reasonable under the circumstances, after

an evidentiary hearing that included expert testimony on

the manner in which the local and national markets in

attorneys’ rates reflect compensation for the risk of non-

recovery, as well as testimony relevant to the likelihood

that other counsel would have been available to the plain-

tiffs.

LIST OF PARTIES

Respondents accept the petitioners’ list of parties.

III

TABLE OF CONTENTS

> > RE

LIST OF PARTIES ..................... tac eotrerecebedsnbaceneos

In its opinion resolving the “contingency en-

hancement” issue against the petitioners, the

court of appeals took account of this Court’s

decision in Delaware Valley II, and found

that under none of the theories espoused by

this Court would the petitioners’ counsel be

entitled to a bonus, multiplier, or enhance-

ment over and above the lodestar fee on

account of any pretended “risk of nonpay-

ment” in the underlying case ~.........................

A. Plaintiffs were not prejudiced by the

intervention in time of this Court’s de-

cision in Delaware Valley II between the

district court’s hearing and initial order

concerning attorneys’ fees, on the one

hand, and its denial of reconsideration

and the appeal of its fee orders, on the

other, because they cannot meet a nec-

essary condition of any “contingency en-

hancement” under Delaware Valley II,

i.e., a showing that without the en-

hancement they seek, they would have

been unable to attract counsel ...............

B. The market approach suggested in the

Delaware Valley II concurrence does not

II.

require an equation of awards of attor-

neys’ fees under federal fee-shifting stat-

utes to hypothetical hourly rates recov-

ered by attorneys handling private-law

cases on a contingent-fee basis ...............

That the district court heard various

contingent-fee attorneys and law-practice

economists testify about their fee-setting

practices and those they believed to be

common in the Kansas City area and

throughout the nation, and subsequently

found that its lodestar rates for Mr. Ben-

son and his staff adequately compen-

sated him for the risk of nonpayment in

the underlying case, provides a sufficient

basis for leaving undisturbed the judg-

ment of the district court and the opinion

of the court of appeals in respect to the

denial of a separate contingency en-

DI oitiien tscnsccscsoneseacentetsemnbiniapreinenininiiaes

Petitioners exaggerate the uncertainty, if

any, created by this Court’s Delaware Val-

ley II decision in respect to the means by

which risk of nonpayment may be consid-

ered, in appropriate cases, in setting statutory

attorneys’ fees for prevailing parties

Assuming arguendo the existence of any

conflict between certain circuits con-

cerning the issue on which the petitioners

seek a writ of certiorari, this case would

not provide an appropriate vehicle for

“resolving” the alleged differences, be-

cause the court of appeals panel that

heard their appeal and affirmed the judg-

ment of the district court was in one of

the circuits whose general position on

this issue the petitioners endorse ............ 15

B. The cases cited by the petitioners as

evidence of a conflict among the circuits

on this issue do not in fact reflect con-

flicts between decisions, only a variety

in the expression of the rationales of the

“minority” courts of appeals, as well as

differences of fact between the cases de-

cided by them after this Court’s decision

in DOR Vee TE ei ee 17

ONIN | a ianconsnssidahccbswlnnsiciqsslitiosetighubiaiibismdictiec al bikes 21

TABLE OF AUTHORITIES

Cases

‘

Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987) ............ 20

Friends of the Earth v. Eastman Kodak Co., 834 F.2d

Se Cae i RES ac icoindicadeckes ete cache nitions 19

Jacobs v. Mancuso, 825 F.2d 559 (1st Cir. 1987) ....18, 19, 20

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo.), aff’d,

807 F.2d 657 (8th Cir. 1986), cert. denied, 108 S.Ct.

Bh Pea i eR REI MRN MRE MESES SERA INE sp Per oe SELLA Sa ultee RED RA 2

Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986), cert.

COREE, Te Te Fe Ce Riser 1-2

Jenkins v. Missouri, No. 77-0420-CV-W-4 (W.D. Mo.) .... 2

Lewis v. Coughlin, 801 F.2d 570 (2d Cir. 1986) _.......... 7,19

Northcross v. Board of Education, 611 F.2d 624 (6th

Cir. 1979), cert. denied, 447 U.S. 911 (1980) 000... 20

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 107 S.Ct. 3078 (1987) (Delaware Valley

IT) . si | 4, 5 et passim

School District of Kansas City, et al. v. Missouri, et al

460 F. Supp. 421 (W.D. Mo. 1978) 8,9

Statutes

33 U.S.C. § 1365(d) ss 19

42 U.S.C. § 1983 q

42 U.S.C. § 1988 1,2

42 U.S.C. § 7604(d) 6

Rules

Fed. R. Civ. P. 26-37 10

Treatise

Harvard Law Review Association, A Uniform System

of Citation (14th ed. 1986) 18

RESPONDENTS’ BRIEF IN OPPOSITION

The State of Missouri; the Hon. John D. Ashcroft.

Governor; Robert Bartman, Commissioner of Education:

and the State Board of Education, Roseann Bentley, Dan

Blackwell, Terry A. Bond, Roger L. Tolliver, Raymond

McCallister, Jr., Susan D. Finke, Thomas R. Davis. and

Cynthia B. Thompson, Members—the respondents herein—

respectfully request that this Court deny the petition

for writ of certiorari filed by the plaintiffs below, seek-

ing review of that portion of the opinion of the United

States Court of Appeals for the Eighth Circuit deny-

ing the plaintiffs’ appeal from the district court’s denial

of a “contingency enhancement” to the fees awarded to

their counsel and his staff. The opinion of the Court of

Appeals is reported at 838 F..d 260.

STATEMENT OF THE CASE

In 1977 the Kansas City, Missouri, School District

(hereinafter “KCMSD”) and certain of its students filed

a civil action in the United States District Court for the

Western District of Missouri, alleging unlawful segrega-

tion according to color in the public schools of the greater

Kansas City area. Their complaint alleged that officials.

officers, and agencies of the federal government, the

States of Missouri and Kansas, and various suburban

school districts “had caused or had been part of a system

of racial segregation among Kansas City metropolitan area

school districts.” Jenkins v. Missouri, 807 F.2d 657. 661

(8th Cir. 1986), cert. denied, 108 S.Ct. 70 (1987). In

October 1978 the district court dismissed the action as

against the Kansas defendants for want of jurisdiction,

and realigned KCMSD—one of the parties that brought

the action—as a defendant. Ibid. Subsequently KCMSD

filed a crossclaim against the State defendants. Peti-

tioners’ Appendix (hereinafter “Pet. App.”) 75a.

Plaintiffs’ present local counsel, Arthur A. Benson II,

began representing the plaintiffs no later than March 15,

1979. Pet. App. 12a; Jenkins v. Missouri, No. 77-0420-

CV-W-4 (W.D. Mo.), Docket Sheet at 29, Doc. No. 1

(entry of appearance). On May 20, 1979, the plaintiffs

filed an amended complaint against the suburban and

federal defendants as well as the State defendants, al-

leging both an interdistrict violation and an intradistrict

violation, and seeking an interdistrict remedy. Id., Doc.

No. 22. In March 1982 the Legal Defense Fund of the

National Association for the Advancement of Colored

People (hereinafter the “Fund”) joined Mr. Benson as

counsel for the plaintiffs. Pet. App. 65a. In June 1985,

the district court found that the federal and suburban

defendants were not liable, and denied an interdistrict

remedy; it found KCMSD and the State defendants liable

on the basis of past acts and omissions, and began the

process of formulating and implementing an intradistrict

remedy. Jenkins ~ Missouri, 639 F. Supp. 19 (W.D.

Mo.), aff'd, 807 F.2d 657 (8th Cir. 1986), cert denied,

108 S.Ct. 70 (1987).

Plaintiffs’ counsel moved for attorneys’ fees and ex-

penses pursuant to 42 U.S.C. § 1988. On behalf of him-

self and his staff, Mr. Benson sought $3,310,587.00, Pet

App. 43a, which he later increased by $52,781.45, Pet

App. 93a, for a total of $3,363,368.45. Of this sum, Mr.

Benson claimed $1,135,800.00 for himself, Pet. App. 54a,

$319,328 and $287,912 for two associates, Pet. App. 58a-

59a, and additional sums in respect to other staff, Pet.

App. 59a-6la—an amount in excess of $1,743,040.00—as

an “enhancement” of his fees under section 1988 for the

“risk of nonpayment” associated with his representation

of the plaintiffs. (By contrast, the NAACP Legal De-

fense Fund, Inc., sought a contingency enhancement of

$688,874.30, Pet. App. 7la, out of a total request of

$3,170,600.20, Pet. App. 65a. Thus, whereas both Mr.

Benson and the Fund, Inc., requested about the same

amount overall, Mr. Benson requested over $1.7 million

as a risk enhancement, whereas the Fund, Inc., requested

less than $700,000.) KCMSD also sought attorneys’ fees

on the basis of its having prevailed in its crossclaim

against the State defendants. Pet. App. 75a. On Feb-

ruary 27, 1987, the district court held an evidentiary

hearing on the plaintiffs’ and their ally’s motions for

attorneys’ fees, at which several attorneys and economists

testified concerning the market value of Mr. Benson's

services, in light of the billing practices in the Kansas

City area at the time of the litigation on the merits

Petition at 9, 11-16 (citing and quoting transcript

In an unpublished Order dated May 11, 1987, the

district court rejected Mr. Benson's claim of a separate “en-

hancement” for himself and his staff, finding that the

“small risk of nonpayment” for their services was “fully re-

lected in the reasonable attorney's fee calculated by thé

Court.” Pet. App. 57a, 59a & 60a. This rate was tw

hundred dollars ($200) per hour. Pet. App 53a By

its Order of Mav 11, 1987, therefore, the district irt

awarded Mr. Benson and his staff $1,614,437.43 in fees

and expenses, Pet. App. 85a, which it augmented in its

unpublished Order of July 14, 1987, by $42,090.45, Pet.

App. 95a, for a total of $1,656,527.88. The district court

denied attorneys’ fees to KCMSD, Pet. App. 79a and 86a,

noting that the District had been adjudicated a consti-

tutional violator in the same action, Pet. App. 78a; that

KCMSD had originally been a plaintiff in the action,

was only involuntarily made a defendant, “cooperated

closely [with the plaintiff class] in the development and

prosecution of the litigation,” and “actually acknowledged

prior to trial that it had violated the constitutional rights

of the plaintiffs,’ Pet. App. 83a; and that in its cross-

claim, KCMSD “simply reiterated the allegations of the

plaintiffs ... ,” Pet. App. 75a.

Plaintiffs requested reconsideration of the district

court’s order insofar as it denied the separate “enhance-

ment” in question, and the district court denied recon-

sideration by an Order dated July 14, 1987—after this

Court’s announcement of its decision on June 26, 1987,

of Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 107 S.Ct. 3078 (1987) (hereinafter “Delaware

Valley II’).

Most parties to the action in the district court ap-

pealed this resolution of the attorneys’ fees issues. Both

the plaintiffs below and the respondents addressed the

issue whether Delaware Valley II required any re-exam-

ination of the district court’s fee orders. On the issue

before this Court in the plaintiffs’ petition—as on all

others—the United States Court of Appeals for the Eighth

Circuit affirmed the judgment of the district court. Pet.

App. 42a. It observed that this Court had rendered its

decision in Delaware Valley II after the district court

had issued its opinion on the attorneys’ fees. Pet. App.

38a. The court of appeals resolved this specious diffi-

culty by finding—based on its review of the record below

—that under none of the theories advanced in the opin-

ions of this Court in Delaware Valley II would Mr. Ben-

son and his staff be entitled to a “contingency enhance-

ment.” Pet. App. 38a-42a.

This petition followed.

ARGUMENT

I. In its opinion resolving the ‘‘contingency enhance-

ment”’ issue against the petitioners, the court of

appeals took account of this Court’s decision in

Delaware Valley II, and found that under none of

the theories espoused by this Court would the

petitioners’ counsel be entitled to a bonus, multi-

plier, or enhancement over and above the lode-

star fee on account of any pretended ‘‘risk of non-

payment”’ in the underlying case.

In the instant case, one of the attorneys for the plain-

tiff class in a school desegregation case—having received

an award of over $1.7 million in attorneys’ fees—appeals

from the decision of the court of appeals affirming the

trial court’s judgment denying him an additional $1.7 as

a “contingency enhancement.”

A unique circumstance in this case is that the district

court made the contested decision on attorneys’ fees on

June 14, 1987, twelve days before this Court announced

its opinion in Delaware Valley II, setting forth certain

criteria for the grant or denial of contingency enhance-

ments under federal fee-shifting statutes. On July 14,

1987, however—eighteen days after this Court’s decision in

Delaware Valley II—the district court denied in pertinent

part the plaintiffs’ motion to alter or amend. Respon-

dents assume that at some point during this eighteen-day

period, the petitioners’ counsel must have learned of this

Court’s decision and could have brought to the district

court’s attention any argument based on it that he believed

would support he motion to alter or amend. In the briefs

on the subsequent appeal, the parties addressed the ap-

plication of Delaware Valley II to the instant case at scme

length, and the court of appeals discussed it explicitly in

its decision affirming the judgment of the district court.

In Delaware Valley II, plaintiff had obtained an award

of attorneys’ fees under 42 U.S.C. § 7604(d), i.e., section

304(d) of the Clean Air Act, for the work of their at-

torneys in securing the implementation of a consent decree

between the plaintiffs and the Commonwealth of Pennsyl-

vania. In calculating the award, the district court had

doubled the lodestar for certain phases of the attorneys’

work as a “contingency enhancement,” and the court of

appeals had affirmed.

This Court reversed the decision of the court of ap-

peals. In the opinion of the Court on some points and a

plurality opinion on others, Justice White stated (for the

plurality ):

Before adjusting for risk assumption, there should

be evidence in the record, and the trial court should

so find, that without risk-enhancement plaintiff would

have faced substantial difficulties in finding counsel

in the local or other relevant market. Here there

were no such findings.

Accordingly, the judgment of the Court of Appeals is

Reversed.

107 S.Ct. at 3089 (footnote, citing Lewis v. Coughlin, 801

F.2d 570, 576 (2d Cir. 1986), omitted).

Justice O’Connor delivered a separate opinion, con-

curring in part and concurring in the judgment. In

common with the plurality, she stated that “a court may

not enhance a fee award any more than necessary to bring

the fee within the range that would attract competent

counsel.” Id. at 3091 (concurring in part and concurring

in the judgment). Four Justices dissented, believing

that the plurality “ignore[d] the fact that a fee that may

be appropriate in amount when paid promptly and regard-

less of the outcome of the case may be inadequate and

inappropriate when its payment is contingent upon winning

the case.” Ibid. (Blackmun, J., dissenting). Justice

O’Connor agreed with the dissenters that a contingency

enhancement should sometimes be awarded, and that

“compensation for contingency must be based on the dif-

ference in market treatment of contingent fee cases as a

class, rather than on an assessment of the ‘riskiness’ of any

particular case,” id. at 3089; but because she found that

the district court had not made findings which would

support an award of a contingency enhancement, she

agreed with the plurality that the judgment in the case

before the Court should be reversed.

A. Plaintiffs were not prejudiced by the inter-

vention in time of this Court’s decision in

Delaware Valley II between the district court’s

hearing and initial order concerning attorneys’

fees, on the one hand, and its denial of re-

consideration and the appeal of its fee orders,

on the other, because they cannot meet a

necessary condition of any ‘‘contingency en-

hancement”’ under Delaware Valley II, i.e., a

showing that without the enhancement they

seek, they would have been unable to attract

counsel.

In the concurring opinion of Justice O’Connor and in

the plurality opinion of Justice White in Delaware Valley

II, the Court established as a necessary condition of award-

ing a risk enhancement the requirement that the party

seeking fees must show “that without the adjustment for

risk the prevailing party ‘would have faced substantial

difficulties in finding counsel in the local or other rele-

vant market.’” 107 S.Ct. at 3091 (concurring opinion),

quoting id. at 3089 (plurality opinion).

Petitioners cannot credibly argue that they could

not have obtained counsel without such an adjustment,

because other counsel was in fact representing the plain-

tiffs—not the same individuals, to be sure, but plaintiffs

nonetheless—from before Mr. Benson’s entry of appear-

ance. School District of Kansas City, et al. v. Missouri,

et al., 460 F. Supp. 421, 426 (W.D. Mo. 1978). Mr. Benson

came on the scene after KCMSD had been involuntarily

and formally realigned as a defendant—when it was one

of the parties that had initially sought to have the State

of Missouri and various other entities and persons held

liable for interdistrict segregation and ordered to provide

an interdistrict remedy for it. Id. at 442, 445. It strains

credulity to argue that no one—no zealous or ambitious

attorney whose existing commitments did not preclude

such a task—would have undertaken to serve as “co-

operating counsel’ for the NAACP, Petition at 13-14, in

{ this case.

What is even more unlikely is that no attorney would

have come forward without the assurance of a bounty of

the proportions now sought by Mr. Benson, when the stat-

utes and case law in force at the time made no such com-

mitment. Mr. Benson went into this litigation without a

legislative or judicial promise of any “contingency en-

hancement” at all—only a “reasonable” fee if his clients

prevailed. There was no evidence at the fees hearing or

otherwise in the record that the plaintiffs—let alone Con-

gress or the federal courts—induced Mr. Benson to pros-

ecute this litigation by any offer of a $1.7 million premium

over and above the “reasonable” fees and expenses pro-

vided for prevailing parties under 42 U.S.C. § 1983. State

respondents are unaware of record evidence of any reliance,

reasonable or otherwise, on such a bounty.

It is impossible to evaluate the asserted difficulty that

the plaintiffs would have had in obtaining counsel in this

case but for the bait of a contingency enhancement with-

out considering their strategic and tactical position at the

time Mr. Benson entered his appearance. Consequently,

a consideration of this factor in Delaware Valley II neces-

sarily entails inquiry concerning the alleged “risk” in-

volved in the particular underlying case, whether or not

such alleged risk is to be taken into account as a separate

factor. Such an inquiry deals with the practical risk that

would be entailed by an attorney’s taking the case, as

distinguished from the “legal” risk of nonrecovery in the

abstract.

In arguing that the district court and the court of

appeals erred in not ordering the State to pay Mr. Benson

an extra $1.7 million, the plaintiffs exaggerate the practical

“risk” of receiving no payment at all that he undertook in

prosecuting their case. From the first stages of the litiga-

tion—before he came on as counsel for the plaintiffs—the

baseline constitutional violator, KCMSD, had effectively

admitted that there was unconstitutional discrimination

against the children it was charged to educate. It had both

physical control and working knowledge of the documents,

tangible things, and other evidence that a plaintiff’s lawyer

would ordinarily have a difficult time obtaining through

the normal operation of Fed. R. Civ. P. 26-37. Rather than

resisting the plaintiffs’ claims, KCMSD filed a crossclaim

against the State defendants—seeking to cast the blame

for violations within its jurisdiction on the State and on

the suburbs surrounding Kansas City, in an unsuccessful

attempt to obtain an interdistrict remedy. In light of the

open collaboration of this key player, it is a wonder that

Mr. Benson could have spent as much as he did—and could

have taken as long as he has taken—to achieve the partial

success which he would have this Court regard as so

“exceptional.” Petition at 31.

In making their argument for another $1.7 million, the

plaintiffs say that Mr. Benson went into debt by more

than $730,000 in order to finance the underlying litigation.

Petition at 32. As is true of any other aspect of the case,

of course, no one forced him to go to this extreme. But

with respect to the allegation that other counsel would

not have come forward but for the promise of a “con-

tingency enhancement” of over 100% of the amount the

district court and the court of appeals found reasonable

taking into account the risk of nonpayment, one must

wonder how risky Mr. Benson’s creditors considered the

underlying case.

Although the record is scant on the indebtedness

allegedly incurred, it is reasonable to assume that the

average person or institution with three-quarters of a

million dollars to lend will have the means and motive to

check out the enterprise which is supposed to provide the

repayment of the principal. If Mr. Benson could obtain

such a large loan using his expectancy of a fee award in

the underlying case as collateral, it stands to reason that

other counsel could also have been obtained—perhaps

counsel who would have sought and obtained the support

of the NAACP Legal Defense Fund, Inc., sooner and to a

greater degree. Although some of the plaintiffs’ experts

testified that they would not have taken the case them-

selves, or that it is generally difficult to find attorneys

to handle school desegregation cases, Petition at 12-14

(citing transcript), there was no evidence that a single

attorney turned down the plaintiffs in this case.

Consequently, no such bounty was necessary to attract

counsel in this case. There is therefore no proximate cause

between the district court’s decision not to award a con-

tingency enhancement separate from the fees and expenses

it found to be reasonable and any hypothetical inability of

these plaintiffs or future plaintiffs to obtain counsel. To

award one now would be to give Mr. Benson a windfall

profit of more than $1.7 million over and above the $1.7

million already found to be “reasonable” by the district

court and the court of appeals.

B. The market approach suggested in the

Delaware Valley II concurrence does not re-

quire an equation of awards of attorneys’ fees

under federal fee-shifting statutes to hypo-

thetical hourly rates recovered by attorneys

handling private-law cases on a contingent-fee

basis.

Justice O’Connor’s concurrence observes that “|t]he

private market commonly compensates for contingency

through arrangements in which the attorney receives a per-

centage of the damages awarded to the plaintiff,” but in

the next sentence recognizes that “[i]n most fee-shifting

cases ... the private market model of contingency com-

pensation will provide very little guidance.” 107 S.Ct. at

3089-90. One of the ways in which the analogy between

contingent-fee personal injury cases and public law actions

in which fee-shifting provisions are common breaks down

is that in many of the latter cases, the plaintiffs’ “goal is to

secure injunctive relief to the exclusion of any claim for

damages.” Id. at 3087 (plurality opinion). In such cases,

the amount that must be spent by one or more defendants

to fund a remedy may overstate or understate the degree

of benefit received by the plaintiffs as a result of their

attorneys’ efforts, and would therefore be a misleading

basis for calculating fees under the appropriate statute.

The concurrence proceeds to suggest that the district

courts and courts of appeals “treat a determination of

how a particular market compensates for contingency as

controlling future cases involving the same market.” Id.

at 3090 (O’Connor, J., concurring in part and concurring in

the judgment). This point is perfectly consistent with the

treatment of cases under federal fee-shifting statutes as

sui generis—i.e., a class of cases analogous to but not the

same as contingent-fee cases handled independently of

these statutes. It would indicate that the contingency

enhancement, if any, in one case should not vary sub-

stantially from that in previous fee-shifting cases before

the same court or other courts.

Under this analysis, the relevant “market” for at-

torneys’ fees under federal fee-shifting statutes would

be reflected in the federal judiciary itself—in a manner

analogous to a stock exchange—rather than by an attempt

to replicate the operation of contingent-fee contracts freely

entered into between willing clients and willing attorneys

in private-law matters: litigants before the federal trial

courts would determine the “going rate” by negotiation in

light of earlier awards of attorneys’ fees, and the dis-

trict and appellate courts would determine the “going

rate” when the parties could not agree. Such a flexible

notion of the relevant “market” is appropriate to this

calculation, in light of the concurrence’s acknowledgment

that it would be impossible to mimic the model of con-

tingent-fee practice in the private market.

C. That the district court heard various contin-

gent-fee attorneys and law-practice econo-

mists testify about their fee-setting practices

and those they believed to be common in the

Kansas City area and throughout the nation.

and subsequently found that its lodestar rates

for Mr. Benson and his staff adequately com-

pensated him for the risk of nonpayment in

the underlying case, provides a_ sufficient

basis for leaving undisturbed the judgment

of the district court and the opinion of the

court of appeals in respect to the denial of

a separate contingency enhancement.

In its evidentiary hearing of February 27, 1987, the

district court heard testimony from Kansas City attorneys

who handle plaintiffs’ cases on a contingent-fee basis, as

well as from “the leading civil rights private practitioner

in Iowa” and two economists, concerning the amount by

which the private market recognizes risk of nonrecovery

and consequent nonpayment under contingent-fee con-

tracts. Petition at 12-13, 14-16 (citing transcript). Con-

sequently, the plaintiffs had—and exercised—the opportu-

nity to put on the very kind of evidence that would be

relevant to the district court’s determination of the fees

for Mr. Benson and his staff under the reading of the

Delaware Valley II concurrence which is most favorable to

them

Both initially, without the benefit of this Court’s

opinions in Delaware Valley II, and on the plaintiffs’

motion for reconsideration—which was overruled after the

announcement of the latter decision—the district court

which had heard the underlying case declined to enhance

Mr. Benson’s fees above and beyond the enhancement re-

flected in its lodestar calculation. Consequently, Mr.

Benson has not been prejudiced by the unique interven-

tion in time of the Delaware Valley II decision between

the fees hearing and initial order on the one hand and the

motion to reconsider, the order denying it, and the fees

litigation in the court of appeals, on the other.

Il. Petitioners exaggerate the uncertainty, if any,

created by this Court’s Delaware Valley II deci-

sion in respect to the means by which risk of non-

payment may be considered, in appropriate cases,

in setting statutory attorneys’ fees for prevailing

parties.

Petitioners contend that there is a conflict among the

circuits concerning the propriety of a district court’s con-

sidering the risks of nonrecovery in the particular case

before it when evaluating a prevailing party’s claim for

a contingency enhancement under a federal fee-shifting

statute. Petition at 38-41.

A. Assuming arguendo the existence of any con-

flict between certain circuits concerning the

issue on which the petitioners seek a writ of

certiorari, this case would not provide an ap-

propriate vehicle for ‘‘resolving’’ the alleged

differences, because the court of appeais

panel that heard their appeal and affirmed

the judgment of the district court was in one

of the circuits whose general position on this

issue the petitioners endorse.

First of all, even assuming that such a conflict existed,

the petitioners themselves have not been prejudiced there-

by, because they include the Eighth Circuit—which de-

cided their case—as one of the six (6) that have adopted

a reading of the Delaware Valley II opinion substantially

consistent with theirs on the issue whether the relevance

of the “legal” risk of nonrecovery per se in a particular

case. Petition at 34, 40-41. Indeed, in its opinion, the

court of appeals made explicit its reliance on Justice

O’Connor’s concurrence as stating the views of a majority

of the Court, and that this majority “disapproved enhance

ment decisions based on ‘legal risks’ peculiar to a particular

case.” Pet. App. 39a-40a

Petitioners are in the unique position of having re-

ceived less than they desire in attorneys’ fees in an order

of the district court issued shortly before this Court’s

Delaware Valley il decision, which order was reaffirmed

in a subsequent order issued shortly after that decision

Although the court of appeals took account of Delaware

Valley II and agreed with the petitioners concerning the

issue on which they allege there to be conflict among the

circuits, the petitioners disagree with the court of appeals’

resolution of the factual question whether they “would

have faced substantial difficulties in finding counsel in

the local or other relevant market.” 107 S.Ct. at 3089

O’Connor, J.. concurring in part and concurring in the

judgment

Any alleged con. among the circuits is therefore

beside the point. Even if there were a conflict, and tris

Court were to resolve it in the manner urged by the peti

tioners. the result in this case would be the same

B. The cases cited by the petitioners as evidence

of a conflict among the circuits on this issue

do not in fact reflect conflicts between de-

cisions, only a variety in the expression of

the rationales of the ‘‘minority’’ courts of ap-

peals, as well as differences of fact between

the cases decided by them after this Court’s

decision in Delaware Valley II.

In arguing that there is “Confusion And Conflict

Among The Circuits” on the propriety of considering the

prevailing party’s likelihood of success on the merits at

any stage in the decision whether to award an enhanced

fee tc compensate counsel for assuming the risk of non-

recovery and nonpayment, the petitioners rely on three

(3) decisions subsequent to Delaware Valley II as cre-

ating a conflict by not identifying the position of Justice

O’Connor as reflecting a majority of the Court on this

issue. Whereas the Third, Fourth, Fifth, Eighth, Dis-

trict of Columbia, and Federal Circuits interpret the de-

cision as relying on the criteria articulated by Justice

O’Connor in concurrence, Pet. App. 34, the petitioners

say that the First, Second, and Sixth Circuits “take a

different tack,” and “have not adopted Justice O’Con-

nor’s standard [but] have continued to base post-Dela-

ware Valley II contingency enhancement decisions in part

on their evaluation of the particular risks posed by the

case, Pet. App. 39. Following this assertion is a string

citation of one decision from each of the allegedly errant

circuits, on the basis of which the petitioners urge this

Court to exercise its certiorari jurisdiction to resolve

this horrendous conflict.

A reading of the three cases indicates that there is

no conflict between these three decisions, on the one

hand, and the position of the Eighth Circuit in general

or its resolution of the issue on which the petitioners

seek certiorari, on the other. The earliest of these de-

cisions is Jacobs v. Mancuso, 825 F.2d 559 (1st Cir. 1987).

It was decided on July 24, 1987—less than one month

after Delaware Valley II. In Jacobs, the First Circuit

did not ignore this Court’s decision, however, but dis-

tinguished it, by pointing out that in the underlying

case before it, there was no basis for a contingency mul-

tiplier. Respondents do not understand the petitioners

to contend that prevailing parties’ attorneys are always

entitled to a “contingency enhancement” even in the

absence of contingency. In the part of the Jacobs opin-

ion that appears to trouble the petitioners, however, the

First Circuit says nothing more remarkable than that:

From the standpoint of contingency, liability here

was so plain .. . that, as a practical matter, the risk

of not recovering a fee was all but eliminated. Cf.

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, ........ A ~ chic , 107 S.Ct. 3078, 97

L.Ed.2d 585 (1987).

Id. at 561. By using the signal “Cf.,” the court of ap-

peals indicated that Delaware Valley II “supports a prop-

Osition different from the main proposition but suffi-

ciently analogous to lend support.” Harvard Law Review

Association, A Uniform System of Citation 9 (14th ed.

1986). Here, the proposition for which Delaware Valley

II stands is that a prevailing party’s attorney may be

entitled to some enhancement if there was a risk of non-

recovery, as further articulated by this Court. That was

“different from” the situation before the First Circuit

in Jacobs, where the district court had found that there

was no practical risk of nonrecovery, and hence, no con-

tingency.

Jacobs is not in conflict with the “majority” deci-

sions—including the Eighth Circuit’s denying the peti-

tioners’ local attorney an extra $1.7 million for a partial

success—because it does not clash with the proposition

for which the petitioners cited the other six circuits’

opinions. It is simply beside the point. One may agree

with all six of these circuits’ opinions on how to mea-

sure a contingency enhancement while maintaining that

an attorney is not entitled to such an enhancement in

a case where no contingency was present.

Next, the petitioners cite Friends of the Earth v.

Eastman Kodak Co., 834 F.2d 295 (2d Cir. 1987). This

case was, like Delaware Valley II itself, an environ-

mental case; counsel were seeking fees under 33 U.S.C.

§ 1365(d). In Friends of the Earth, the Second Circuit

applied Delaware Valley II to deny a contingency en-

hancement on the ground that “it does not appear that

a bonus was necessary to attract competent counsel.”

Id. at 298. It explained the linkage between the risk

of nonrecovery and the difficulty vel non of attracting

counsel by citing one of its earlier decisions, Lewis v.

Coughlin, 801 F.2d 570, 576 (2d Cir. 1986). In Lewis

it had said, “the rationale that should guide the court’s

discretion is whether ‘[w]ithout the possibility of a fee

enhancement . . . competent counsel might refuse to

represent [environmental] clients thereby denying them

effective access to the courts.” It noted that “[t]his

position is similar to that taken by the plurality and

Justice O’Connor” in Delaware Valley II. 834 F.2d at

298. This decision is indeed in harmony with Delaware

Valley Il—having been cited by the plurality on this

very point, with which Justice O’Connor explicitly con-

curred, 107 S.Ct. at 3089 & n.12 (plurality opinion), 3091

(concurring in part and concurring in the judgment)—

and with the “majority” circuits identified in the Petition.

Finally, the petitioners cite Conklin v. Lovely, 834 F.2d

543 (6th Cir. 1987). In Conklin, the Sixth Circuit set

forth the respective positions of the Members of this Court

in Delaware Valley II, and remanded the case before it

for “specific factual findings” in light of its opinion. Id.

at 553. Petitioners seem to find Conklin offensive in that

it also cited and quoted at length from another Sixth Cir-

cuit opinion, Northcross v. Board of Education, 611 F.2d

624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980),

which—like Jacobs v. Mancuso—had the temerity to sug-

gest that there are some cases so strong that the attorney

who takes them has not assumed the risk for which con-

tingency enhancements exist to compensate counsel. 611

F.2d at 638.

Such a suggestion is not in conflict with the decisions

of the other six circuits, unless they are to be interpreted

to read “contingency” out of “contingency adjustment,”

and to mandate an automatic bonus for attorneys who take

cases for which Congress has provided that attorneys’ fees

may be available. But that position would be absurd. It

is certainly not the one taken by the Eighth Circuit in the

instant case or by this Court in Delaware Valley II. Peti-

tioners may find Conklin less than a full-throated expres-

sion of their deepest jurisprudential longings, but it is not

in conflict with the position they attribute to the six cir-

cuits with which they align themselves on the proper

construction of Delaware Valley II. Petition at 39-40.

None of the three cases cited as creating a conflict

among the circuits—nor the group of three in the aggre-

gate—comes close to doing so. Petitioners’ claim of “con-

fusion” merely reflects the differences between fact-situa-

tions arising before the panels that have applied Delaware

Valley II. Petitioners have utterly failed to demonstrate

the existence of a conflict at all, let alone one that would

be resolved by a re-examination of their local counsel’s

claim for an additional $1.7 million over and above the

$1.7 million already awarded him.

CONCLUSION

Wherefore, the petition of the plaintiffs below for a

writ of certiorari should be denied.

Respectfully submitted,

WILLIAM L. WEBSTER