Petition for A Writ of Certiorari — King v. Palmer

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IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1991

MABEL A. KING,

Petitioner,

¥.

JAMES F. PALMER, DIRECTOR,

D.C. DEPARTMENT OF CORRECTIONS, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

ROGER E. WARIN

(Counsel of Record)

JERALD S. HOWE, JR.

SHARON I. BLOCK

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

. (202) 429-6280

February 21, 1992 Attorneys for Petitioners

CORTE SSRI | pI NEE NOE ORT RN BES TR

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether, in determining the amount of a reasonable

attorney’s fee under a federal fee-shifting statute, a court

may increase the fee award above the lodestar amount in

order to reflect the fact that the attorney took the case

on a contingent fee basis.

(i)

PARTIES TO THE PROCEEDING BELOW

The following parties appeared below:

Plaintiff : Mabel A. King

Defendants: James F. Palmer, Director

D.C. Department of Corrections

The District of Columbia

TABLE OF CONTENTS

QUESTION PRESENTED .............------------------- ee

PARTIES TO THE PROCEEDING BELOW

TABLE OF AUTHORITIES ...........-.-----------------------0000"

OPINIONS BELOW ............------------::e--eeeeteete

JURISDICTION ...........-.-.0-0-----s:--cecceeneeceescestennneesseceennecssennes

STATUTORY PROVISION INVOLVED

STATEMENT OF THE CASE

B. The Underlying Gender Discrimination Case

D. The Local Market For Legal Services

REASONS FOR GRANTING THE WRIT

The Legal Framework Under Which The Issue Was

Litigated .............--.--..---0s.-cssoseceeeeessseeseeennnnenensosenneneneees

Background of Representation by Counsel

1. The Availability of Other Counsel ....................----

2. The Amount of Risk Enhancement

The District Court Decision on Risk Enhancement....

The Panel Decision of the Court of Appeals

The Decision of the Court of Appeals En Banc

I. THE QUESTION OF CONTINGENCY EN-

HANCEMENT IN STATUTORY ATTOR-

NEY’S FEES AWARDS IS AN IMPORTANT

ONE

TABLE OF CONTENTS—Continued

Page

Il. THIS CASE PRESENTS THE CONTIN-

GENCY ENHANCEMENT ISSUE IN THE

CONTEXT OF A FULLY DEVELOPED FAC-

TUAL RECORD, EXTENSIVELY RELECT-

ING THE REALITIES OF CONTINGENCY

gt EE Lae CONT TU REET. “eee ane 23

Ill. THE DECISION BELOW IS INCORRECT

BOTH AS TO THE STATUTORY UNAVAIL-

ABILITY OF RISK ENHANCEMENT, AND

IN THE MANNER IN WHICH IT RE-

VIEWED THE FACTS FOUND BY THE DIS-

RE: SITE evi chains nintacanapapaedahees 25

APPENDIX tusidsete ieee taiaenmyiasanenteanebantkeL pipiens ates la

TABLE OF AUTHORITIES

Cases: Page

Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.

| | ne cee 20, 22

Blum v. Stenson, 465 U.S. 886 CRD nnecceiescsinsc 19, 26, 29

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991) -... 20, 22

Broderick v. Ruder, Civ. A. No. 86-1834, slip op.

(D.D.C. Sept. 13, 1989) -.....-.----------------rrerr" 5, 6

City of Burlington v. Dague, No. 91-810, cert.

granted (U.S. Jan. 27, BID cick 2, 24, 25

Craig v. Department of Health & Human Services,

864 F.2d 324 (4th Cir. 1989) .........--------------------~ 20, 22

Crumbaker v. Merit Systems Protection Board, 827

F.2d 761 (Fed. Cir. 1987) ......--------------------000077 20, 22

Dague v. City of Burlington, 935 F.2d 1343 (2d

Cir. 1991), cert. granted (U.S. Jan. 27, 1992) .....passim

Delaware Valley Citizens’ Council for Clean Air v.

Pennsylvania, 762 F.2d 272 (3d Cir. 1985) --... 19

Evans v. Jeff D., 475 U.S. 717 (1986), reh’g de-

nied, 476 U.S. 1179 (1986) .......------------------- 29

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

OED 3k oe MS PS eS nan 29

Hendrickson v. Branstad, 740 F. Supp. 636 (N.D.

Tow 1900) a. .---c0c<cces0-cecsenannnneres-vsnnoncnnernnnaencnewsnsonns 28

Hensley v. Eckerhart, 461 U.S. 424 (1988) ....------.-- 26, 29

Jacobs v. Mancuso, 825 F.2d 559 (ist Cir. 1987) ..... 21

Kelly v. Matlack, Inc., 903 F.2d 978 (3d Cir.

DODO) aca enn cs ccnccennniisennnasnsensncnsoensnnsinannnerssererenninnnnne ss 20, 21

Lattimore v. Oman Construction, 868 F.2d 437

(11th Cir.), reh’g denied en banc, 875 F.2d 874

(Lith Cir. 1989) -........---------------ess-ssesessoreen tte 28, 29

Martin v. University of South Alabama, 911 F.2d

604 (11th Cir. 1990) .............---------------es-n-ecererrr ere 20, 22

McKenzie v. Kennickell, 684 F. Supp. 1097 (D.D.C.

1988), aff'd, 875 F.2d 330 (D.C. Cir.), reh’g

denied en banc, 884 F.2d 1405 (D.C. Cir.

| eae en concramne=cagprecar™ ea 5, 6, 14

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

reh’g denied en bane, 884 F.2d 1405 (D.C. Cir.

TABLE OF AUTHORITIES—Continued

Morris v. American National Can Corp., 941 F.2d

Taee Tie CI SEED kien cae eet

Norwood v. Charlotte Memorial Hospital & Medi-

cal Center, 720 F. Supp. 548 (W.D.N.C. 1989) ....

Palmer v. Shultz, 679 F. Supp. 68 (D.D.C. 1988) .....

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986) .....0000002022

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 483 U.S. 711 (1987) ........00..........--

Perotti v. Seiter, 935 F.2d 761 (6tin Cir. 1991) ........

Rabin v. Concord Assets Group, Inc., 1991 WL

Reeeee CsA ec ds PEe wuticmdncmanindeean

Robinson v. Alabama State Department of Educa-

tion, 727 F. Supp. 1422 (M.D. Ala. 1989) _...........

Rode v. Dellarciprete, 892 F.2d 11 (3d Cir. 1990)..

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

BOD nis:scsscanhansechinaasacesaneataaditons eee ieee

Soto v. Adams Elevator Equipment Co., 941 F.2d

See CeGee CAR. SED ices rencncnacedeee eee

Stokes v. Montgomery, 706 F. Supp. 811 (M.D.

pS | Re er PRE EN Tot.

Student Public Interest Research Group v. AT&T

Bell Laboratories, 842 F.2d 1486 (3d Cir.

pS | EE TE TIE SPAM ees

Thompson v. Kennickell, 836 F.2d 616 (D. C. Cir.

FIED cisinac:sesssnicsednieecspmnsnamilasiteskchanmaauiinmn iim naam eae

Thompson v. Kennickell, 710 F. Supp. 1 (D.D.C.

RIND sncscvsnsssasainsiaenscaanass aomnaiaenaeilie teeta

Weisberg v. United States Department of Justice,

TO Fr. CR, 2 CRs TIED nicsecccscassrcescsivbisnencens

Weisberg v. United States Department of Justice,

848 F.2d 12665 (D.C. Cir. 1988) ............................

Statutes:

33 USC. 6 SOURS CR bce

Clean Water Act, 33 U.S.C. § 1251, et seq. .................

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-16(d),

OEE hasisinessbncscc sane

Solid Waste Disposal Act, 42 U.S.C. § 6901, et seq...

Page

28, 29

5, 6, 14

passim

21, 22

20, 22

Vil

TABLE OF AUTHORITIES—Continued

Miscellaneous: Page

Model Code of Professional Responsibility DR 2-

106(B) (8) (1980) ......-.-------------eeeeseer roe 26

Canons of Ethics, § 12, 33 A.B.A. Rep. 575, 578

|, ) ne ana aeereaEar meee 26

Model Rules of Professional Conduct Rule 1.5

(a) (8B) (1988) ......-------------n--nseneersnnsenecsentenremenseen 26

Petition for Certiorari and Appendix, City of Bur-

lington v. Dague, No. 91-810 (U.S. filed Nov. 18,

REED ces cniccnracagvesainéonenss Ltn seed uastehaneinranins 24

IN THE

Suprenve Court of the Munited States

OCTOBER TERM, 1991

No.

MABEL A. KING,

. Petitioner,

JAMES F. PALMER, DIRECTOR,

D.C. DEPARTMENT OF CORRECTIONS, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CER‘ IORARI

Petitioner Mabel A. King respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

District of Columbia Circuit, entered in this case on

December 138, 1991.

OPINIONS BELOW

The opinion of the Court of Appeals for the District

of Columbia Circuit en bane is reported at 950 F.2d 771

(D.C. Cir. 1991), and is reproduced in the Appendix

(“App.”) at App. la-50a. The panel opinion of the Court

of Appeals is reported at 906 F.2d 762 (D.C. Cir. 1990),

and is reproduced at App. 5la. The unreported memo-

randum opinions of the United States District Court for

the District of Columbia are reproduced at App. 72a,

77a, and 96a.

JURISDICTION

The judgment of the Court of Appeals en bane was

entered o11 December 13, 1991. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1) (1988).

STATUTORY PROVISION INVOLVED

Title Vil of the Civil Rights Act of 1964, as amended,

provides in its pertinent section that:

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

party, other than the Commission or the United

States, a reasonable attorney’s fee as part of the

costs, and the Commission and the United States shall

be liable for costs the same as a private person.

42 U.S.C. § 2000e-5(k) (1988). Section 2000e-16(d) ex-

tends the provisions of section 2000e-5(k) to actions by

employees of the District of Columbia. These statutory

provisions are referred to below as “Title VII.”

STATEMENT OF THE CASE

The question presented in this case is essentially the

same as in another case now before this Court on the

merits:

May a court, in determining a reasonable attorney’s

fee award under [two environmental protection stat-

utes}, 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 as-

suming the risk of receiving no attorney’s fees at all?

City of Burlington v. Dague, No. 91-810, cert. granted

(U.S. Jan. 27, 1992) (“Dague’’). In this case, the opera-

tive fee-shifting statute is Title VII, which employs the

same statutory standard of “a reasonable attorney’s fee.”

The D.C. Cireuit concluded in this case, as did the Sec-

ond Circuit in Daguwe, that this Court’s 4-1-4 decision in

Pennsylvania v. Delaware Valley Cttizens’ Council for

Clean Air, 483 U.S. 711 (1987) (“Delaware Valley II’),

provides no legal rule for the risk enhancement of at-

torney’s fees awards in cases taken on a contingent fee

basis. App. 22a-25a; Dague v. City of Burlington, 935

F.2d 1343. 1360 (2d Cir. 1991). Believing itself free to

decide the issue on its own, the D.C. Circuit ruled that

contingency enhancement is never appropriate, App. 26a,

making itself the only court of appeals to so hold since

this Court’s decision in Delaware Valley II. The decision

below creates a clear split among the circuits, one that

did not exist after the Second Circuit’s decision in Dague.

The extensive record in this case presents the con-

tingency enhancement issue in a far more developed

factual context than in Dague. Risk enhancement was

vigorously litigated as a central issue below, based on

dozens of affidavits, and was thoroughly examined in

opinions of the district court, the court of appeals panel,

and the court of appeals en banc. The record includes

detailed evidence of many attorneys’ billing practices in

contingency cases, in a wide variety of legal practice

fields in the District of Columbia. Particularly in view

of the difficulty experienced in the past by this Court and

the lower federal courts in developing and applying man-

ageable rules for contingency enhancement of attorney’s

fees awards, the next—and hopefully definitive—step

should be taken only based on the fullest available factual

record. Petitioner respectfully requests that review be

granted and that this case be consolidated with Dague

for further briefing and consideration.

1 The relevant affidavits from the record below were all compiled

into a single volume in the Join Appendix submitted to the D.C.

Circuit. Copies of that appendix have been lodged with the Court,

and the affidavits will be cited as “Rec.” with the page number(s)

shown therein.

A. The Legal Framework Under Which The Issue Was

Litigated

There were three opinions in Delaware Valley II: one

by Justice White, joined by three other justices; one by

Justice O’Connor, concurring in part and concurring in

the judgment; and a dissenting opinion by Justice

Blackmun, joined by three other justices. The plurality

Opinion expressed skepticism regarding risk enhancement,

stating that it should be available if at all, only in “ex-

ceptional cases,” and then in an amount no greater than

one-third of the lodestar amount. 483 U.S. at 728-30

(White, J., joined by Rehnquist, C.J., Powell, J., and

Sealia, J.). Justice O’Connor declined to join the plural-

ity’s ‘“‘exceptional cases” standard, but concurred in the

judgment on grounds discussed in detail below. Jd. at

731-35 (O’Connor, J., concurring in part and concurring

in the judgment). Justice Blackmun’s dissent articulated

other circumstances, broader than those stated by Justice

O’Connor, under which risk enhancement should be avail-

able. Jd. at 735-55 (Blackmun, J., dissenting, joined by

Brennan, J., Marshall, J., and Stevens, J.).

In this ease, the D.C. Cireuit concluded en banc that

the 4-1-4 Delaware Valley II decision did not establish

any legal] rule for the contingency enhancement of at-

torney’s fees awards. App. 25a. In at least three previ-

ous Opinions, the concurring opinion of Justice O’Connor

had been held by the D.C. Circuit to state the controlling

law on the enhancement of fee awards for the risk of

non-payment.” Because this case was litigated in the trial

court on the basis of the then-prevailing interpretation of

Justice O’Connor’s opinion as controlling, that opinion

2 See, McKenzie v. Kennickell, 875 F.2d 330, 332 (D.C. Cir.),

reh’g denied en banc, 884 F.2d 1405 (D.C. Cir. 1989); Weisberg

v. U.S. Dep't of Justice, 848 F.2d 1265, 1272 (D.C. Cir. 1988) ;

Thompson v. Kennickell, 836 F.2d 616, 621 (D.C. Cir. 1988); see

- also cases cited infra at 20 and n.20 (treating Justice O’Connor’s

concurrence as controlling).

serves as a vital backdrop to the factual development of

this case.

Justice O’Connor prescribed a two-part standard for

enhancement. First, the availability of risk enhancement

depends upon “how a particular market compensates for

contingency” across a class of cases. 483 U.S. at 7383.

Second, “no enhancement for risk ‘s appropriate unless

the applicant can establish that without an adjustment

for risk the prevailing party “would have faced substan-

tial difficulties in finding counsel in the local or other

relevant market.’” Id. (citation omitted). If these two

tests are met, then enhancement shall be granted in an

amount sufficient “to bring the fee within the range that

would attract competent counsel.” Jd. Justice O’Connor

also stated that the lower courts should “treat a determi-

nation of how a particular market compensates for con-

tingency as controlling future cases involving the same

market,” and “strive for consistency from one fee de-

termination to the next.” Id.

Before this case, Justice O’Connor’s two-pronged ap-

proach in Delaware Valley II had been applied in a series

of cases in the D.C. Circuit. Thus, in the last three years,

a number of district court judges for the District of

Columbia have had occasion to evaluate the local market

for legal services.* In these cases, there has been a sub-

stantial and growing body of evidence consisting of affi-

davits from local private practitioners, representatives of

lega! services organizations, and. others with knowledge

of the market for legal services.‘ The United States Dis-

3In addition to the case at bar, the other cases are: Broderick

»y. Ruder, Civ. A. No. 86-1834, slip op. (D.D.C. Sept. 13, 1989)

(Pratt, J.); Weisberg v. US. Dep’t of Justice, 720 F. Supp. 1

(D.D.C. 1989) (Green, J.L., J.); Thompson v. Kennickell, 710

F. Supp. 1 (D.D.C. 1989) (Richey, J.); McKenzie v. Kennickell,

684 F. Supp. 1097 (D.D.C. 1988) (Parker, J.), aff'd, 875 F.2d 330

(D.C. Cir.), reh’g denied en banc, 884 F.2d 1405 (D.C. Cir. 1989) ;

Palmer v. Shultz, 679 F. Supp. 68 (D.D.C. 1988) (Smith, J.).

4 See, e.g., Broderick, slip op. at 3 n.1:; Thompson, 710 F. Supp.

at 5 n.9; McKenzie, 684 F. Supp. at 1100 n.11.

trict Court for the District of Columbia has consistently

concluded that the prevailing threshold for acceptance of

contingent cases was and is risk enhancement of 100 per-

cent or more.°

B. The Underlying Gender Discrimination Case

This case was originally brought in 1983 by Mabel

King as an individual action pursuant to Title VII of

the Civil Rights Act. An employee of the District of

Columbia Department of Corrections, Mrs. King sought

relief from discriminatory employment practices based

upon sex.® After a bench trial, the district court entered

judgment for the District.

Mrs. King appealed. The Court of Appeals reversed

and remanded in December 1985, with instructions for

the district court to enter judgment for Mrs. King and

to determine an appropriate remedy. King v. Palmer, 778

F.2d 878 (D.C. Cir. 1985). On remand, the district court

awarded Mrs. King a retroactive promotion and back

pay. App. 120a-128a.

C. Background of Representation by Counsel

Throughout the underlying Title VII litigation, Mrs.

King was represented by Robert M. Adler, a sole practi-

tioner. Mrs. King was aware of Mr. Adler thrgugh a

5 Broderick, slip op. (100% enhancement); Weisberg, 720 F.

Supp. 1 (100% enhancement found warranted by market, 50%

granted); Thompson, 710 F. Supp. 1 (100%); McKenzie, 684 F.

Supp. at 1101 (50% enhancement granted because only 50% re-

quested, but finding the relevant market to require 100° enhance-

ment or more); Palmer, 679 F. Supp. 68 (100°% enhancement of

fees at risk). In the case at bar, the district court found appro-

priate a rule of 100 percent enhancement for contingent cases, and

50 percent enhancement for partially contingent cases. See infra

at 13-14.

® Defendants James F. Palmer, the District of Columbia Depart-

ment of Corrections, et al., will be referred to collectively as the

“District.”

colleague who had earlier vetained his services. App. 4a.

Mr. Adler was assisted at times by an associate and a

law clerk or paralegal.

The fee arrangement between Mrs. King and Mr.

Adler was memorialized in a retainer letter. Mrs. King

agreed to be responsible for all out-of-pocket expenses,

and for hourly fees up to $5,000, with an immediate

retainer of $1,500; in addition, should Mrs. King prevail,

Mr. Adler would be paid whatever fees might in the future

be awarded under the fee-shifting provisions of Title VII.

App. 4a-5a, 129a-30a. Thus, Mr. Adler shouldered a

substantial risk that he would never be paid for most

of his work in the case. App. 87a.

When Mr. Adler took the case, he was aware of and

relied on the possibility that if Mrs. King prevailed in

her case, the district court might award a reasonable

enhancement for the risk of non-payment undertaken by

counsel. Rec. 74 (Decl. of Robert Adler). Because of the

significant risk of non-payment, Mr. Adler would not

have accepted the representation without the prospect of

risk enhancement of a fee award. Rec. 75 (Decl. of

Robert Adler).

D. The Local Market For Legal Services

During the attorney’s fees phase of this litigation |

before the district court, an extensive record was devel-

oped concerning the Washington, D.C., market for legal

services. The District was unable to identify a single

attorney who would have accepted this case without the

prospect of risk enhancement. The record establishes that

District of Columbia lawyers would take cases like Mrs.

King’s only if they were to be paid win or lose—or if the

fee were to be contingent on winning, only with the

prospect of risk enhancement of at least 100 percent of

their normal hourly rates.

1. The Availability of Other Counsel

The record shows that since the early 1980’s, many

Title VII lawyers in the District of Columbia who once

took contingent fee cases have stopped doing so, as a

direct result of the economic disadvantages they experi-

enced in this practice.’ When the District responded by

attempting to show that a number of Title VII cases

continued to be brought with the assistance of counsel,

plaintiff rebutted this with affidavits that these cases had

been taken on a straight hourly basis and not on a con- |

tingency basis.*

Around 19838, there were a few lawyers competent in

Title VII practice who would occasionally take cases on

a contingent fee basis, but only with the expectation of

risk enhancement in the event of success. More specifi-

cally, as the record reflects, experienced local Title VII

lawyers would not have taken Mrs. King’s case in 1983

on a contingent fee basis absent the reasonable prospect

of risk enhancement. For instance, six private practi-

tioners stated that:

George Chuzi. Mr. Chuzi is a partner in a small

Washington, D.C., firm which since 1975 has pri-

marily represented plaintiffs in employment-related

litigation. He would have personally declined to ac-

cept this particular case in 1983 on a contingent fee

basis, even if Mrs. King had agreed to pay up to

7™This holds not only for veterans of Title VII practice, e.g.,

Rec. 92 (Decl. of Joel Bennett: stopped in 1981); Rec. 265-66

(Decl. of Gary Simpson); Rec. 274 (Decl. of Larry Speiser); Rec.

296 (Decl. of Robert Weinberg), but also for relative newcomers

to the field, e.g., Rec. 272 (Decl. of Lisa Sinrod); Rec. 184 (Decl.

of Richard Hirn).

8 Rec. 84 (Decl. of Alan Banov); Rec. 107 (Decl. of William

Bransford); Rec. 109 (Decl. of Gary Brown); Rec. 113 (Decl. of

William Causey); Rec. 173 (Decl. of Louis Fireison); Rec. 182

(Decl. of Clarence Harper); Rec. 220 (Decl. of Thomas Mauro) ;

Rec. 231 (Decl. of Lynn Miller); Rec. 236 (Decl. of Courts

Oulahan); Rec. 238-39 (Decl. of Edward Passman).

ee CDULU

$5,000 in fees. He also stated that “(djuring 1983,

I was personally familiar with most of the attorneys

regularly bringing Title VII suits in the District of

Columbia on behalf of plaintiffs. Had Mr. Adler not

agreed to represent Mrs. King in this case, I am

unaware of any other Title VII attorney who would

have agreed in 1983 to represent her on a contingency

fee basis (even had she agreed to pay up to $5,000 in

legal fees}. The only way in which I believe that a

competent Title VII attorney would have been con-

vinced to seriously consider this representation was

if there was a reasonable possibility of receiving an

enhanced fee for risk (over and above hourly rates)

if Mrs. King prevailed.” Rec. 124b, 130-31.

David Cashden. Mr. Cashden has over 20 years’ ex-

perience in civil rights litigation and has been ac-

tively involved in employment discrimination matters.

With respect to Mrs. King’s case in 1983, he stated

that it was “not likely that I would have accepted

the case on a contingent basis.” Rec. 112d.

Robert Fitzpatrick, Mr. Fitzpatrick is a partner in

a local firm, and over the years he and his firm have

undertaken a number of large Title VII cases, some

on a fee-shifting basis where the firm’s fees were

fully contingent. However, his firm would not have

accepted Mrs. King’s case in 1983 on a contingent

fee basis. Rec. 173b-173¢.

Lawrence Lapidus. Mr. Lapidus was actively in-

volved in the representation of aggrieved federal em-

ployees from 1974 until 1986. Neither he nor his

firm would have taken Mrs. King’s case in 1983

without some reasonable possibility of risk enhance-

ment. In addition, he was familiar with the Title

VII plaintiffs bar during 1983 and viewed the pos-

sibility that some other firm would have taken the

case on a pro bono basis as “remote.” He thought it

doubtful that any competent local Title VII lawyer

other than Mr. Adler would have taken the case.

Rec. 209-10, 214-15.

Barry Gottfried. Mr. Gottfried has been actively

involved in Title VII cases since 1979. He would not

have accepted Mrs. King’s case in 1983, absent a

reasonable prospect of a fee enhancement for the

risk of nonpayment. Rec. 177-78.

Joel Bennett. Mr. Bennett is a sole practitioner with

a local practice primarily devoted to plaintiffs’ em-

ployment litigation. Until 1981, he accepted cases

on a contingent basis, but stopped doing so at that

time, adding that a “contingency enhancement of

100% above my hourly rate would be necessary be-

fore I would consider accepting a contingent case

even from an individual plaintiff.” He also stated

that “the vast majority of the attorneys in the Wash-

ington metropolitan area doing Title VII work will

not do so on a contingency fee arrangement” and

that prospective Title VII plaintiffs often speak to

him of having had difficulties obtaining counsel on a

contingency basis. Rec. 92-93, 94, 98.

The record below consists of similar uncontradicted evi-

dence of the unavailability of lawyers to take Mrs. King’s

case without the prospect of risk enhancement. In addi-

tion, the record includes the affidavits of a dozen local

Title VII plaintiffs, each of whom sought but could not

retain counsel on a contingency basis, and who then pro-

ceeded pro se.°

Representatives of public interest legal orgarizations

and referral services also confirmed the general unavail-

ability of counsel for this case. For instance, the Director

of the Equal Employment Program of the Washington

Lawyers’ Committee for Civil Rights Under Law ex-

®Rec. 90 (turned down by 5 lawyers); Rec. 111 (“a few”

turndowns); Rec. 123 (unable to locate attorney through D.C. Bar

Association); Rec. 142 (4 turndowns); Rec. 150 (a “few” turn-

downs); Rec. 152 (unable to locate attorney through D.C. Bar As-

sociation); Rec. 174 (6 turndowns); Rec. 179 (3 turndowns);

Rec. 187 (3 turndowns); Rec. 216 (7 turndowns); Rec. 251 (4

turndowns); Rec. 257 (8 turndowns).

plained that if Mr. Adler had not taken the case, it is

very likely that no other competent Title VII attorney in

the Washington, D.C., area would have done so. Rec. 256

(Decl. of Joseph Sellers). For this legal services organi-

zation, the “only hope” of finding competent counsel

would have been at one of the larger firms on a pro bono

basis, but those firms “only accept a limited number of

cases” and it was doubtful that Mrs. King’s case could

have been placed at all. Jd.

According to the individual who was the Director of

the District of Columbia Bar’s Public Service Activities

Program from 1984 through 1987, it was “impossible”

for her to find legal representation for many callers com-

plaining of employment discrimination, in large part be-

cause of the limited number of attorneys willing to accept

such cases on a contingent fee basis. Rec. 87 (Decl. of

Ann Barker). Similarly, the Director-Counsel of the

NAACP Legal Defense and Educational Fund, with

twenty years of relevant litigation and bar activity ex-

perience, explained that “many meritorious Title VII

employment discrimination cases will not be brought”

absent fee enhancement for contingency, and that because

of the risks involved, “it has been and remains difficult

to staff Title VII cases with experienced and competent

lawyers.” Ree. 115-18 (Decl. of Julius Chambers).

2. The Amount of Risk Enhancement

Among competent local Title VII lawyers, the general

practice was and is to accept a contingent case such as

Mrs. King’s, if at all, only with the expectation of a

contingency enhancement of 100 percent or more of the

amount at risk. On this point, the following statement is

typical of the record:

At one time I did accept employment discrimina-

tion clients based on a reduced rate with the intent

of recovering court-awarded fees based on my full

rate if I prevailed, but I stopped this practice in

1981.

I do not accept cases wherein my only compensation

will be court-awarded fees in the event I prevail

because of the risk of nonpayment and the delay in

receipt of any payment.

A contingency enhancement of 100% above my

hourly rate would be necessary before I would con-

sider accepting a contingent case even from an in-

dividual plaintiff.”

With respect to the broader class of all contingency

eases within the District of Columbia, the established

practice of local lawyers, both in the early 1980’s and

since, has been to accept contingent cases only if there

is a reasonable prospect of at least doubling their stand-

ard hourly fees in the event of a favorable outcome.”

Title VII cases are not treated differently from others

with respect to such risk analysis. For instance, one

attorney explained:

10 Rec, 92-93 (Decl. of Joel Bennett) (emphasis added); see also

Rec. 168-69 (Decl. of John Erickson: at least 100 percent enhance-

ment); Rec. 266 (Decl. of Gary Simpson: would accept a discrim-

ination case on a contingent basis only with a 100 percent con-

tingency bonus).

11 Rec, 82-83 (Decl. of Nora Bailey: tax disputes; multiple of

two or three); Rec. 133 (Decl: of John Clifford: general practice,

including employment and personal injury cases; accepts contin-

gency case only when there is a prospect of recovering triple the

normal fees, if successful); Rec. 146-49 (Decl. of Vincent Curtis,

Jr.: comparative license proceedings before the FCC); Rec. 165-

66 (Decl. of Steven Engleberg: civil litigation, including personal

injury, commercial, and malpractice cases); Rec. 191-92 (Decl.

of Peter Kadzik: various types of complex federal litigation) ;

Rec. 193-200 (Decl. of Chester Kamin: partial contingent fee

arrangement in antitrust case); Rec. 276-77 (Decl. of Arnold

Spevak: representation of tenant associations in condominium

conversions, and representation of a commercial client in con-

testing a local tax assessment); Rec. 296-98 (Decl. of Robert

Weinberg: firm’s contingent practice in tort cases); Rec. 300-01

(Decl. of Kirkwood White: rezoning cases); Rec. 303-06 (Decl.

of Henry Zapruder: tax disputes and litigation).

I have become quite familiar with the practices used

by law firms in the setting of hourly rates for legal

fees, as well as the economic considerations under-

lying the acceptance of a case on a contingency (or

fee shifting) basis.

In deciding whether to undertake a Title VII case

where collection of the legal fee is partially or totally

contingent on a successful outcome, it is my experi-

ence that attorneys consider the same economic fac-

tors as they would in other types of claims, such as

contract, ecmmercial, real estate or personal injury,

where the legal fees are to be paid on a contingent

basis. The underlying nature of the claim does not

generally affect the analysis.

Thus, among members of the local bar, the prevailing

threshold for accepting contingent cases has been and

remains risk enhancement of 100 percent or greater.

E. The District Court Decision on Risk Enhancement

In March 1986, following the D.C. Circuit’s decision

on the merits, Mr. Adler submitted an application for an

interim award of attorney’s fees and costs. Several

rounds of interim awards and further submissions then

followed, including a request for contingency enhance-

ment. After this Court’s decision in Delaware Valley

IT, with its focus on the marketplace for legal services,

Mr. Adler again applied for a contingency enhancement,

this time supporting the request with affidavits regarding

the market and seeking a market-based adjustment of 100

percent.

On September 20, 1988, the district court awarded plain-

tiff a fifty percent enhancement for the risk of nonpay-

12 Rec, 229-30 (Decl. of Jane Lang McGrew) (emphasis added) ;

see also Rec. 96 (Supp. Decl. of Joel Bennett); Rec. 136 (Supp.

Decl. of John Clifford); Ree. 159-60 (Supp. Decl. of David Dor-

sen); Rec. 168, 170 (Decl. of John Erickson); Rec. 191 (Deel.

of Peter Kadzik) ; Rec. 269 (Decl. of Gary Simpson).

ment. App. 75a.'* The district court applied the stand-

ards established by Justice O’Connor’s concurrence in

Delaware Valley IJ. The court held that Mrs. King had

offered evidence that “many lawyers in the civil rights

employment discrimination market would not accept em-

ployment in a case like this on a purely contingency fee

basis.”” App. 73a. Previously, the district court had given

weight to the ‘affidavits of several attorneys who repre-

sent plaintiffs in employment litigation which indicate

that their firms would not have agreed to represent Mrs.

King on a contingent basis.” App. 87a."

F. The Panel Decision of the Court of Appeals

Both Mrs. King and the District appealed. Regarding

the level of risk compensation found in the relevant mar-

ket, the panel determined that “the bulk of the evidence

supports a 100 percent enhancement as to both the cur-

rent and the 1983 markets.” App. 58a (omitting record

citations). As to the “substantial difficulty” standard,

the panel found abundant support in the district court

13 This led to a total award of $113,858.31, based on the entire

contingent portion of the previcusly awarded lodestar fee

($232,707.62—$5,000 = $227,707.62).

14 The district court found, however, that because the fee ar-

rangement in the instant case was only partially contingent, there

was a “crucial distinction” between it and the fee arrangement in

McKenzie, 684 F. Supp. 1097. App. 74a. Instead, the district court

relied on Palmer, 679 F. Supp. 68, which involved a partially con-

tingent arrangement. App. 74a. In that case, the court had de-

termined that ‘“ ‘attorneys in the Washington, D.C., community

will only accept a fully contingent case if their recovery will be

at least double their normal hourly billing rate and will accept

a partially contingent case only if their recovery is enhanced by at

least 50 percent.’’’ App. 74a (quoting Palmer, 679 F. Supp. at

74). Noting that it was adhering to Justice O’Connor’s suggestion

in Delaware Valley II that “each court let a determination such

as Judge Smith’s [in Palmer v. Shultz) control future cases such

as this one,” the district court ordered a fifty percent enhance-

ment. App. 74a-75a.

record for such a showing. App. 61la-62a. The panel

pointed to Mr. Adler’s own statement “that he would not

have accepted the case without the possibility of risk

enhancement.”’ App. 62a.'° The panel also found that

the requisite finding “was implicit in the [district] court’s

citation to the |Palmer v. Shultz] court’s findings that

attorneys in the District would not accept contingent cases

without some risk enhancement.” App. 6la (record cita-

tion omitted).

Based on both the record evidence and on prior cases,

the panel concluded that “the same percentage enhance-

ment should be applied to the contingent portion of a fee

regardless whether the case is fully or partially contin-

gent.” App. 58a. As a result, the panel ordered that

except as to the $5000 amount not at risk in this case, the

attorney’s fees should be enhanced by 100 percent. App.

64a.

G. The Decision of the Court of Appeals En Banc

Upon rehearing en banc, the D.C. Circuit overruled the

panel and reversed “the contingency enhancement por-

tion of the attorney’s fees allowed to appellant.” App.

27a. The seven-judge majority held that the 4-1-4 deci-

sion in Delaware Valley II ‘“‘provides no controlling legal

holding’ and that the result there precluded a contin-

gency enhancement in this case. App. 25a. Having freed

itself from Delaware Valley II, the court then decided—

without any statutory analysis—that “contingency en-

hancements will not be available in this Circuit.” App.

26a. The court below concluded :

We have done our best to apply Delaware Valley

II but have been unable to derive a governing rule

from the opinion. Considering our struggle to un-

15 The panel also explained that the ‘substantial difficulty” test

is a counterfactual one, and that applicants “‘are not required to

App. 6la (quot-

show that plaintiffs actually did face difficulty.’

ing McKenzie, 875 F.2d at 332-33, 337).

derstand and apply Delaware Valley II as well as

the difficulties our sister circuits have experienced,

we urge the Supreme Court to clarify its position.

App. 27a.

The rationale of the majority opinion en banc appears

to consist of several elements. Primarily, the court found

that “Delaware Valley II involves three distinct ap-

proaches to the issue of contingency enhancements in fee-

shifting statutes, none of which enjoys the support of five

Justices.” App. 22a. After reviewing various methods of

analyzing split Supreme Court decisions, the majority

opinion concluded that there was no way to deduce a rule

of law from Delaware Valley IJ. In particular, the court

concluded that Justice O’Connor’s lone concurrence could

not be joined with the broader approach expressed in the

four-justice dissent, in order to provide a majority rule

for future contingency enhancement cases. App. 24a-25a.

In addition, the majority spoke of the difficulties it

found in applying certain aspects of Justice O’Connor’s

approach: its “trouble determining the content of that

‘substantial difficulties’ label—that is, determining just

how ‘substantial’ the ‘difficulties’ in attracting counsel

have to be, and how they must be proven.” App. 12a.

The majority also claimed that “there simply is no prac-

tical middle ground between providing [risk] enhance-

ments routinely and not providing them at all.” App.

26a. This led to the decision to bar risk enhancement in

all cases. App. 26a.

Furthermore, in dicta, the court below reviewed the

evidence before the trial court and found it to be not

sufficiently “weighty” to satisfy the tests set forth in

Justice O’Connor’s concurrence, even assuming it to be

the controlling authority. App. 15a-17a."* The majority

'6 The majority also construed Justice O’Connor’s concurrence

to require a showing of “actual difficulties” by the plaintiff in

locating counsel. But the “would have faced substantial difficul-

ties” test is plainly a counterfactual one. See infra at n.21 (citing

eases).

opinion gave no indication that the factual findings of

the district court were entitled to any deference upon

appeal, and never stated what standard of review it was

employing to reverse those findings.

Four judges dissented from the decision en banc. The

dissent emphasized the statutory standard of a “reasonable

attorney’s fee’ and this Court’s pronouncement that the

trial court should enjoy wide discretion and considerable

deference upon appeal as to “ ‘what essentially are factual

matters.’”’ App. 28a-29a (quoting Hensley v. Eckerhart,

461 U.S. 424, 437 (1983)). The dissent also observed

that “the majority’s new rule, that contingency awards

are never justified, is completely without foundation.

Twelve other circuits have reviewed the question at hand,

and not one other circuit has adopted a rule that com-

pletely bars contingency enhancement.” App. 28a. Fi-

nally, the dissent argued as a matter of statutory inter-

pretation that a “reasonable” attorney’s fee must neces-

sarily encompass an appropriate adjustment for the risk

of non-payment in contingency cases, in that lawyers

customarily and reasonably required some such enhance-

ment. App. 33a-35a, 40a.

REASONS FOR GRANTING THE WRIT

The issue of contingency enhancement presented in this

case is one of major national importance, as confirmed by

this Court’s recent decision to review the issue in another

case. The availability of risk enhancement in contingent

fee cases is essential to the purpose of Congress in enact-

ing federal fee-shifting statutes: ensuring competent legal

representation to private claimants in selected areas of

special public importance. The decision of the D.C. Circuit

creates, for the first time since Delaware Valley II, a

split among the circuits on the basic availability of risk

enhancement. In addition, the decision below—holding

(like Dague) that Delaware Valley II provices no rule

of law, but (‘unlike Dague) that risk enhancement is

never available—presents the perfect legal complement to

the case already before the Court. The two cases should

be consolidated for further briefing and consideration on

the merits.

The record in this case lays out the contingency en-

hancement issue in a factual depth and breadth not avail-

able in the case already before the Court, and thus offers

the better vehicle for resolution of the question presented.

The difficulty this Court and others have had with con-

tingency enhancement appears to have been more practical

than analytical. The record here reflects the actual con-

tingent fee practices of a host of lawyers and law firms

in the District of Columbia—a record of the kind missing

in both Delaware Valley IJ and Dague. The special need

to craft realistic and manageable rules in this area de-

mands the richest available factual context as the back-

drop for judicial decisionmaking.

Review should also be granted because the decision of

the D.C. Circuit is fundamentally wrong in at least two

respects. First, as a matter of plain language, common-

sense interpretation of the statutory term “a reasonable

attorney’s fee,” risk enhancement cannot be absolutely

precluded in all cases. Second, the D.C. Circuit exceeded

its appellate role in this case when it reversed the factual

findings made by the district court without articulating

any recognized legal basis for doing so.

I. THE QUESTION OF CONTINGENCY ENHANCE-

MENT IN STATUTORY ATTORNEY’S'’ FEES

AWARDS IS AN IMPORTANT ONE

The question presented—whether and when risk en-

hancement is available for statutory attorney’s fees

awards in contingency cases—is plainly an important

issue of federal statutory law. The question is common

to attorney’s fees litigation in over one hundred federal

statutes in which Congress has allowed the payment of

a “reasonable attorney’s fee” to a prevailing party, in

order to encourage private party vindication of selected

publie rights."" In a number of areas of federal litiga-

tion covered by fee-shifting statutes, contingency practice

is significant. As shown by the record below, a categorical

rule against risk enhancement would leave many poorer

plaintiffs unrepresented, and would thus defeat the intent

of Congress to put them on equal footing in the market-

place for legal services.

This Court specifically reserved the question of con-

tingency enhancement twice: first in Blum v. Stenson,

465 U.S. 886, 897-902 (1984), and again in Pennsylvania

v. Delaware Vulley Citizens’ Council for Clean Air, 478

U.S. at 564-66 (1986) (“Delaware Valley I’). Then, in

Delaware Valley IJ, the Court addressed the question

directly, but in the resulting decision no one opinion was

able to command the votes of five justices. See supra,

at 4-6 (discussing the three opinions). Notably, the

record was extremely sparse in Delaware Valley as to

the circumstances and market context under which the

prevailing party and counsel entered into their contin-

gency agreement."*

The lower federal courts have been left to grapple with

the diverse implications of Delaware Valley Ii, A num-

ber of courts have expressed uncertainty, even frustra-

tion, in practical application of this Court’s decision. The

court below, for instance, spoke of its “quandary” and its

17 See Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546, 562 (1986).

18 See Delaware Valley II, 483 U.S. at 714-15 (statement of

background facts noting the existence of a contingent fee agree-

ment but providing no further details); Delaware Valley 1, 478 |

U.S. at 555 (same!; Delaware Valley Citizens’ Council For Clean

Air v. Pennsylvania, 762 F.2d 272, 280-82 (3d Cir. 1985) (same).

Outside counsel for the prevailing party was a public interest law

firm.

“difficulties” in attempting to apply various elements of

Delaware Valley Il°

In addition, there have been differences over which

parts of the Delaware Valley II decision are legally au-

thoritative. Justice O’Connor’s concurring opinion has

been held by the plurality of the courts of appeals, five

in all, to be the controlling authority for risk enhance-

ment.” Four other courts of appeals have also found

contingency enhancement to be available under Delaware

Valley lI, but based on the narrower grounds afforded

by the plurality opinion.*!

19 App. 17a-18a; see also Smith v. Freeman, 921 F.2d 1120, 1123

(10th Cir. 1990) (court finds it problematic to apply Delaware

Valley IJ in a way which will not result in attorney’s fee litigation

in every case); Kelly v. Matlack, Inc., 903 F.2d 976, 986 (3d Cir.

1990) (describing the application of Delaware Valley II as “the

elusive task of deciding when to augment a lodestar with a multi-

plier”); Rode v. Dellarciprete, 892 F.2d 1177, 1184 (3d Cir. 1990)

(in order for the court to apply Delaware Valley II standards, fee

applicant may be required to produce the testimony of an econo-

mist) ; Student Public Interest Res. Group v. AT&T Bell Lab, 842

F.2d 1436, 1451-52 (3d Cir. 1988) (court lists various problems

applying Delaware Valley IJ including determining the weight, if

any, to be given the likelihood of success in the case and the scope of

market research evidence required).

“0 See Kelly, 903 F.2d at 986-87; Alberti v. Klevenhagen, 896

F.2d 927, 936 (5th Cir.), reh’g granted in part, 903 F.2d 352 (5th

Cir. 1990); Morris v. American Nat’l Can Corp., 941 F.2d 710, 715

(8th Cir. 1991); Bowman v. Block, 940 F.2d 1211, 1235-36 (9th

Cir.), cert. denied, 112 S. Ct. 640 (1991): Crumbaker v. Merit

Sys. Protection Bd., 827 F.2d 761, 761 (Fed. Cir. 1987).

“1 Soto v. Adams Elevator Equip. Co., 941 F.2d 543, 553 (7th Cir.

1991) (following that part of the plurality’s opinion with which

Justice O’Connor agrees as the Delaware Valley II “holding’’) ;

Smith, 921 F.2d at 1123 (quoting the Delaware Valley II plurality

that “enhancement for the risk of nonpayment should be reserved

for exceptional cases where the need and justification for such en-

hancement are readily apparent and are supported by evidence in

the record and specific findings by the courts”); Martin v. Uni-

versity of S. Alabama, 911 F.2d 604, 610-12 (llth Cir. 1990)

The D.C. Circuit has now joined the Second Circuit in

Dague v. City of Burlington, 935 F.2d 1348, 1360 (2d

Cir, 1991), and the Sixth Circuit in Perotti v. Seiter, 935

F.2d 761, 765 (6th Cir. 1991), in concluding not only

that Justice O’Connor’s concurrence is not controlling,

but that Delaware Valley IJ states no rule of law what-

ever. App. 22a-25a.22 But whereas the Second and Sixth

Cireuits held that contingency enhancement was still

available under the law of those circuits,** the D.C. Cir-

cuit held categorically that contingency enhancement is

never available. App. 26a.2t In implicit recognition of

the legislative fiat involved in this decision, the court

below expressly “urge[d] the Supreme Court to clarify

its position.” App. 27a.

The decision below creates a clear conflict among the

circuits. The Second, Third, Fifth, Sixth, Seventh, Eighth,

Ninth, Tenth, Eleventh, and Federal Circuits have held

that contingency enhancements may be granted in ap-

propriate cases, and the First and Fourth Circuits have

so indicated.2> Although the court below is alone, this is

(adopting the Delaware Valley II plurality’s requirement that a

fee applicant prove that without a contingency enhancement the

plaintiff “would have faced substantial difficulties in finding coun-

sel”); Craig v. Dep't of Health & Human Servs., 864 F.2d 324, 528

(4th Cir. 1989) (dicta) (reading Delaware Valley II to permit

enhancement in “exceptional circumstances”).

22 The decision below did not cite Dague or Perotti.

23 Dague, 935 F.2d at 1360; Perotti, 935 F.2d at 765.

24In Dague, the Second Circuit proceeded to decide the case

based on its own pre-Delaware Valley I] standards, and affirmed

the contingency enhancement on that basis. 935 F.2d at 1360.

25 In numerical order by circuit: Jacobs v. Mancuso, 825 F.2d

559, 561 (1st Cir. 1987) (disallowing contingency, not because of

per se rule, but because “liability here was so plain .. . that, as a

practical matter, the risk of not recovering a fee was all but elim-

inated”): Dague, 985 F.2d at 1860 (2d Cir. 1991); Kelly, 903

F.2d at 986-87 (3d Cir. 1990) (mandatory prerequisite to award

still a significant circuit split since a disproportionate

amount of litigation under federal fee-shifting statutes is

conducted within the District of Columbia.

Most important, since the decision below and its call

for Supreme Court review, the Court has granted review

in Dague, framing essentially the same question as pre-

sented here:

May a court, in determining a reasonable attorney’s

fee award . . . 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 at-

torney’s fees at all?

Dagque, No. 91-810, cert. granted (U.S., Jan. 27, 1992) .°

Thus, the issue has already been adjudged to be an im-

of an enhancement is that plaintiff “establish that without adjust-

ment: it would have faced substantial difficulties in finding counsel

in the... relevant market’) (citations omitted); Craig, 864 F.2d

at 328 (4th Cir. 1989) (dicta); Alberti, 896 F.2d at 936 (en-

hancement available when district court ‘“make[s]| the findings re-

quired by Justice O’Connor’s concurrence in Delaware Valley II”

which is considered “the authoritative pronouncement of the

Court’), reh’g granted in part, 903 F.2d 352 (5th Cir. 1990);

Perotti, 935 F.2d at 765 (6th Cir. 1991); Soto, 941 F.2d at 553

(7th Cir. 1991); Morris, 941 F.2d at 715 (8th Cir. 1991) (“Jus-

tice O’Connor’s opinion in Delaware Valley II is the current legal

standard for awarding contingency enhancements.”); Bowman,

940 F.2d at 1235-36 (9th Cir. 1991) (upholding fee on the basis

of district court’s findings matching Justice O’Connor’s test);

Smith, 921 F.2d at 1123 (10th Cir. 1990); Martin, 911 F.2d at

612 (11th Cir. 19590); Crumbaker, 827 F.2d at 761 (Fed. Cir.

1987) (‘the Board on remand shall consider the degree to which

the relevant market compensates for contingency and whether any

enhancement is necessary to bring the fee within a range that

would attract competent counsel”). See also supra at 20 & nn.20-21.

“6 The statutes at issue in Dague are environmental statutes:

the Solid Waste Disposal Act, 42 U.S.C. § 6901, et seq. and the

Clean Water Act, 33 U.S.C. $1251, et seq. However, the attor-

ney’s fees provisions are essentially identical to the Title VII

attorney’s fees provision at issue here. See 42 U.S.C. § 6972(e)

portant one, and the conflict created by the decision be-

low heightens that importance.

Il. THIS CASE PRESENTS THE CONTINGENCY EN-

HANCEMENT ISSUE IN THE CONTEXT OF A

FULLY DEVELOPED FACTUAL RECORD, EXTEN-

SIVELY REFLECTING THE REALITIES OF CON-

TINGENCY PRACTICE

This case presents an exceptionally well suited vehicle

for resolution of the issue presented. As indicated above

at 19-20 and note 19, the courts’ handling of contingency

enhancement seems to have suffered from a lack of prac-

ticality as well as from a lack of unanimity. There seems

to be a gap between present law and the day-to-day world

of contingent fee practice—a gap that argues strongly

for devising future rules for risk enhancement based

only on the fullest possible understanding of the market-

place.

The record in this case reflects in great depth the

background, evolution, and context of contingent fee prac-

tice in the District of Columbia in the early to mid-1980’s.

Thus, the record contains a wealth of insights into why,

how, and when litigating lawyers are willing to take

cases on a contingent fee basis—and with what expecta-

tions of their added compensation in the event of success

on the merits. This contrasts markedly with Dague, in

which the risk enhancement issue was a peripheral one,

and in which the record was thin. Scores of affidavits are

found in the record below, including from: (1) counsel in

the underlying case; (2) other lawyers, specifically re-

earding this case; (3) local lawyers who generally prac-

tice Title VII and employment law; (4) lawyers who

practice in other areas of complex federal litigation in

the District of Columbia, sometimes on a contingent fee

basis; and (5) pro se plaintiffs in similar cases, who

(allowing for an award of reasonable attorney’s fees); 33 U.S.C.

$1365(d) (same); 42 U.S.C. § 20000e-5(k) (providing for the

award of reasonable attorney’s fees to the prevailing party).

——————_e

were turned down in seeking competent counsel on a con-

tingency basis.

The attorney affidavits cover the billing practices not

just of individual lawyers, but of law firms, some sub-

stantial in size—accounting in all for hundreds of, per-

haps over a thousand, lawyers. The record also covers

an impressive cross-section of the District of Columbia

bar—sole practitioners to large law firms, junior lawyers

to experienced Title VII specialists, public interest and

for-profit lawyers. Moreover, the record evidence also

goes to both of the two critical factual issues under

Justice O’Connor’s concurrence in Delaware Valley IT:

(1) “how a particular market compensates for contin-

gency” in a category of cases; and (2) whether the in-

dividual plaintiff “ ‘would have faced substantial difficul-

ties in finding counsel in the local or other relevant

market.’” °* Thus, the record covers both the general

and the specific, and in so doing demonstrates graphically

why contingency enhancement is a necessary component

of a “reasonable attorney’s fee.” In a straightforward,

empirical way, the record underscores the point that with-

out contingency enhancement, many plaintiffs—the most

economically disadvantaged—will be left entirely without

lawyers to advance their claims.

In Daque, by contrast, the record on contingency en-

hancement appears to be quite meager. Contingency en-

hancement was a side issue in Dague, incompletely de-

veloped. The appendix to the petition for writ of certio-

rari in that case, although lengthy, contains no affidavits

or other evidentiary material of any kind on the issue on

which the writ was granted.**

“7 483 U.S. at 733 (citation omitted). See supra at 11-13 (thresh-

old of contingency enhancement of 100 percent or greater), at

8-11 (substantial difficulties that would have been encountered

absent the prospect of risk enhancement).

*8 Petition for Writ of Certiorari and Appendix, City of Burl-

ington v. Dague, No. 91-810 (U.S. filed Nov. 18, 1991).

The decisions below are also far sparser on risk en-

hancement in Dague than in this case. Less than two

pages of the Second Circuit’s opinion were directed to the

issue, with only the most cursory analysis of the facts.

Dague, 935 F.2d at 1359-60. The order of the district

court awarding attorney’s fees contains only about two

pages on contingency enhancement—again with only very

summary references to the record, and with nothing at

all quantifying the degree of risk enhancement prevail-

ing in the marketplace.” In this case, the extensive

opinions below are devoted almost exclusively to the risk

enhancement issue. App. la-128a.

After a decade of uncertainty on the question of risk

enhancement, what is needed now is a set of definitive

standards that effectuate the statutory mandate of rea-

sonableness in attorney’s fees awards, recognize the

realities of contingency practice within the greater con-

text of the market for legal services, and are readily

administrable by district courts in the kinds of factual

scenarios they actually encounter. This case offers the

best opportunity and context for the Court to develop

effective standards in this area.

Ill. THE DECISION BELOW IS INCORRECT BOTH AS

TO THE STATUTORY UNAVAILABILITY OF RISK

ENHANCEMENT, AND IN THE MANNER IN

WHICH IT REVIEWED THE FACTS FOUND BY

THE DISTRICT COURT

The decision of the D.C. Circuit is fundamentally in-

correct on the unavailability of contingency enhancement.

The court below offered no explanation of how the statu-

tory term, “a reasonable attorney’s fee,’ could entirely

exclude something so thoroughly reasonable as the risk

enhancement of an attorney’s fee in a case taken on a

2” Petition for Writ of Certiorari and Appendix, City of Burling-

ton v. Dague, No. 91-810 at App. 131la-33 (reproducing district

court order dated April 2, 1990).

ED ————— LS

contingency basis. Common sense and all of the empirical

evidence dictate that attorneys who take cases on a con-

tingent basis demand, in the event of success, compensa-

tion greater than the rates they normally charge and are

paid in non-contingent cases where they run no risk of

non-payment. See supra at 7-13, infra at 29 (evidence

of contingency practice in the District of Columbia) .*°

The legal services market has determined that a rea-

sonable fee for a case where payment is contingent on

Winning includes risk enhancement. Justice O’Connor’s

concurrence was correct to recognize this reality, and to

take a market-based approach to fixing the amount of

the contingency enhancement. Delaware Valley II, 4838

U.S. at 732-34.*' There is no reason why attorney’s fees

awards-—which are required by statute to be reasonable—

should not reflect the economic reality of the general mar-

ketplace for legal services. The decision below is particu-

larly radical in that it would deny risk enhancement in

all cases, even where all the evidence establishes and the

30 See also Canons of Ethics, § 12, 33 A.B.A. Rep. 575, 578 (1908)

(whether the payment of a fee is contingent on success is a proper

consideration in assessing the reasonableness of a fee) ; Model Code

of Professional Responsibility DR 2-106(B)(8) (1980) (same) ;

Model Rules of Professional’ Conduct Rule 1.5(a)(8) (1983)

(same). The A.B.A. filed a brief in the case below, expressing its

continuing view that contingency enhancement is fully appropriate

under federal fee-shifting statutes. King v. Palmer, Nos. 89-7027,

87-7028, Brief of American Bar Association As Amicus Curiae in

Support of Appellant (D.C. Cir. filed Nov. 14, 1990).

31 A market-oriented approach makes sense because it permits

judges to make their decisions on risk enhancement based on the

economic evidence available, rather than substituting their own

values for the private valuations that markets exist to balance out.

For other issues arising under fee-shifting statutes, a market-

oriented approach has predominated. See, e.g., Blum, 465 U.S. at

895-96 (reasonable hourly rate is the prevailing market rate in the

relevant legal community); Hensley, 461 U.S. at 437 (number of

hours reasonably expended determinable by reference to “billing

judgment” common in private practice).

trial court concludes that no counsel would take a meri-

torious case on a contingency basis without a_ risk

enhancement.

The majority opinion of the D.C. Circuit not only

ignores statutory text and market economics, but also

misconstrues this Court’s decision in Delaware Valley II.

Justice O’Connor wrote only for herself, but was far from

alone in substance when she stated that “Congress did

not intend to foreclose consideration of contingency in

setting a reasonable fee under fee shifting provisions.”

483 U.S. at 731. This position was obviously joined by

the four justices in dissent. Jd. at 755. The plurality

acknowledged in Part V of its opinion that a majority

of justices were in favor of risk enhancement in certain

circumstances: there is little other explanation for the

plurality’s elaboration that if it is to be given at all,

“enhancement for the risk of non-payment should be re-

served for exceptional cases where the need and justifica-

tion... are readily apparent and are supported by evi-

dence in the record and specific findings by the courts.”

Id. at 728.

Thus, the court below converted a set of three different

rules from Delaware Valley II, each conditional, into a

single categorical rule. Faced with the three separate

opinions in Delaware Valley IJ]—which might be best

summarized in one word each as “Seldom,” ‘Sometimes,”’

and “Often”’—-the D.C. Circuit came up with a rule of

“Never.” This makes no sense. Contrary to the decision

below, a majority of this Court has expressed the view

that risk enhancement is appropriate under certain cir-

cumstances, and there is no reason now to reverse that

fundamental decision.*”

32 Plainly, the court below was not free, as invited by the Dis-

trict, to revisit that decision based on subsequent changes in the

composition of this Court. See Brief for Appellees/Cross-

Appellants, at 21 & n.32 (Dec. 20, 1990) (questioning the prece-

dential value of Delaware Valley II, in part because “[njow, of

The Court of Appeals was also wrong, even in dicta,

to override the factual conclusions that the district court

made in the course of awarding contingency enhancement

under the standards of Justice O’Connor’s concurrence.

App. 15a-17a."* This was done without any deference to

the trial court, without any articulation of a standard of

review, and with minimal attention to the actual record.

The evidence before the district court, and on which it

ruled in favor of risk enhancement, strongly established

that Mrs. King would have faced substantial difficulties

in locating counsel in the absence of risk enhancement,

and that the prevailing market threshold was 100 percent

risk enhancement in contingent fee cases.*

course, a Delaware Valley II dissenter (as well as a member of

the plurality) has retired and has been replaced’); see also Dague,

935 F.2d at 1360 (noting change in justices). The lower federal

courts should not be encouraged or permitted to speculate on how

changes in the membership of this Court might cause it to modify

its past decisions.

33 The majority’s conversion of the counterfactual “substantial

difficulties” test into ‘‘actual difficulties” test was equally unwar-

ranted. A number of other lower federal courts have rejected such

an “actual difficulties” test. 2.g., Lattimore v. Oman Constr., 868

F.2d 437 (11th Cir.), reh’g denied en banc, 875 F.2d 874 (11th Cir.

1989) (basing risk enhancement, inter alia, on difficulties experienced

by local bar association and the court itself in finding counsel for

employment discrimination cases); Hendrickson v. Branstad, 740

F. Supp. 636, 646 (N.D. Iowa 1990), aff’d in part, rev’d in part, 934

F.2d 158 (8th Cir. 1991); Robinson v. Alabama State Dep’t of Educ.,

727 F. Supp. 1422, 1432 & n.29 (M.D. Ala. 1989), aff’d without

op., 918 F.2d 183 (11th Cir. 1990), reh’g denied en banc, 930 F.2d

925 (11th Cir. 1991); Norwood v. Charlotte Memorial Hosp. &

Medical Center, 720 F. Supp. 543, 554-56 (W.D.N.C. 1989) (his-

torical and current difficulties: ‘prospective plaintiffs with what

appear to be good cases are being turned away’’).

34 See supra, at 7-13. This conclusion is consistent with the

results of the other post-Delaware Vulley IJ fee enhancement cases

in the D.C. Circuit, which were also based on substantial evidence

regarding the local market for contingent legal services. See cases

cited supra, at nn. 3 & 4.In other parts of the nation, risk enhance-

ments of 100 percent have been granted and affirmed based on

As a matter of law, the district court’s findings of

fact as to attorney’s fees may be overturned only if they

amount to an abuse of discretion.** As this Court has

observed, deference is due to the trial court both “in view

of the district court’s superior understanding of the liti-

gation and the desirability of avoiding frequent appellate

review of what essentially are factual matters.” Hens-

ley, 461 U.S. at 437. Thus, the comments in the majority

opinion below that the uncontradicted attorney affidavits

are self-interested and should not be considered

“weighty” (even when taken from lawyers practicing en-

tirely outside the Title VII field and other areas of law

involving fee-shifting statutes) hardly suffice to justify

appellate reversal on the facts. See App. 15a-17a. The

trial court ruled properly on all the evidence before it.”

Perhaps the majority’s view of the facts in this case

was infected by its dissatisfaction with the law applied

Delaware Valley I] market analysis, given the shortage of attor-

neys willing to take on relevant cases absent such an inducement.

E.g., Lattimore v. Oman Constr., 868 F.2d at 439; Fadhl v. San

Francisco, 859 F.2d 649, 651 (9th Cir. 1988) (per curiam); Nor-

wood v. Charlotte Memorial Hosp. & Medical Center, 720 F. Supp.

at 554-56 (W.D.N.C. 1989) ; Stokes v. Montgomery, 706 F. Supp. 811,

817-18 (M.D. Ala. 1988); see also Rabin v. Concord Assets Group,

Inc., 1991 WL 275757 (S.D.N.Y. 1991) (common fund case:

granting a multiplier of 4.4 in part based on risk enhancement,

finding that multipliers ‘“ ‘between 38 and 4.5 have been com-

mon.’”). Naturally, lesser enhancements have been granted in

other relevant markets. The experience in the District of Colum-

bia, however, cannot be viewed as aberrant.

35 See Evans v. Jeff D., 475 U.S. 717, 742-43, reh’g denied, 476

U.S. 1179 (1986) ; Blum, 465 U.S. at 896.

36 See supra at 7-13 (summarizing the record). The District,

with every incentive to identify competent practitioners who would

have taken the case on a contingent basis without the prospect of

risk enhancement, failed to name even one. One affiant introduced

by petitioner indicated that his firm would accept a case on a con-

tingency, with a risk enhancement of at least 3307. Rec. 224 (Decl.

of Bradley McDonald). In the end, Mrs. King’s extensive showing

went unrebutted.

by the district court. In any event, if this Court ulti-

mately concludes that Justice O’Connor’s concurrence

does constitute the controlling authority for risk enhance-

ment, then the decision of the D.C. Circuit en bane should

be reversed and the contingency enhancement of 100 per-

cent reinstated.

CONCLUSION

For these reasons a writ of certiorari should issue to

review the decision of the United States Court of Appeals

for the District of Columbia Circuit, and this case should

be consolidated with City of Burlington v. Dague, No.

91-810, for briefing and consideration on the merits.

Respectfully submitted,

ROGER E. WARIN

(Counsel of Record)

JERALD 8S. HOWE, JR.

SHARON I. BLOCK

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-6280

February 21, 1992 Attorneys for Petitioners

APPENDICES

rere Pdi t # . 6 DEN OSL IIE AL GEG AAD erram ie RG RAle IO OPE ASAE LI PEND AP te Oe YS OR eg Ue a _ rege ee OE ee be Beat

INDEX TO APPENDIX

APPENDIX A

King v. Palmer, No. 89-7027, slip op. (D.C. Cir.

Dec. 138, 1991) (en banc)

APPENDIX B

King v. Palmer, 906 F.2d 762 (D.C. Cir. 1990),

vacated for reh’g en bane .........

APPENDIX C

King v. Palmer, Civ. A. No. 83-1980, Mem. Op.

(D.D.C. September 20, 1988)

APPENDIX D

King v. Paimer, Civ. A. No. 83-1980, Order (D.D.C.

September 20, 1988)

APPENDIX E

King v. Palmer, Civ. A. No. 83-1980, Revised Mem.

Op. (D.D.C. June 10, 1987)

APPENDIX F

King v. Palmer, Civ. A. No. 83-1980, Order (D.D.C.

June 10, 1987)

APPENDIX G

King v. Palmer, Civ. A. No. 83-1980, Mem. Op.

(D.D.C. April 30, 1987)

APPENDIX H

King v. Palmer, Civ. A. No. 83-1980, Order (D.D.C.

April 30, 1987)

APPENDIX I

King v. Paimer, Civ. A. No. 83-1980, Order (D.D.C.

February 27, 1987)

Page

5la

76a

95a

96a

117a

118a

INDE X—Continued

APPENDIX J

King v. Palmer, Civ. A. No. 83-1980, Order (D.D.C.

November 30, 1988) .............................. saamenlasaseieasale 119a

APPENDIX K

King v. Palmer, Civ. A. No. 83-1980, Mem. Op.

(DDG. Fame Ui, FS cee oon noe

APPENDIX L

King v. Palmer, Civ. A. No. 83-1980, Order (D.D.C.

SUM 12, BD) encvcnincsinisscccceeneeeaan tee 127a

APPENDIX M

Letter from Robert M. Adler to Mabel King

(March 16, 1983)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc February 27, 1991

Decided December 13, 1991

No. 89-7027

MABEL A. KING,

Appellant

JAMES F.. PALMER, DIRECTOR,

D.C. DEPARTMENT OF CORRECTIONS, ef al.

No. 89-7028

MABEL A. KING

JAMES F. PALMER, DIRECTOR,

D.C. DEPARTMENT OF CORRECTIONS, et al

Appellants

Appeals from the United States District Court

for the District of Columbia

(Civil Action No. 83-1980)

Roger E. Warin, with whom Bryan T. Veis was on the

brief, for appellant in 89-7027 and appellee in 89-7028.

Robert M. Adler and Joel P. Bennett also entered appear-

ances for appellants.

Donna M. Murasky, Assistant Corporation Counsel,

with whom Herbert O. Reid, Sr., Corporation Counsel,

John Payton, Acting Corporation Counsel, and Charles L.

Reischel, Deputy Corporation Counsel, were on the brief,

for appellees in 89-7027 and appellants in 89-7028. Susan

S. McDonald, Assistant Corporation Counsel, also entered

an appearance for appellees in 89-7027 and appellants in

89-7028.

Michael J. Ryan, Assistant United States Attorney,

with whom Stuart M. Gerson, Assistant Attorney Gen-

eral, Jay B. Stephens, United States Attorney, John

Oliver Birch and R. Craig Lawrence, Assistant United

States Attorneys, were on the brief, for amicus curiae

the United States of America in 89-7027 and 89-7028

urging reversal.

John J. Curtin, Jr., Rex E. Lee, Carter G. Phillips, and

Joseph R. Guerra were on the brief for amicus curiae

The American Bar Association in 89-7027 and 89-7028

urging that the panel’s decision be reinstated without

modification.

Daniel B. Edelman, Barry Goldstein, and Mari Mayeda

were on the brief for amici curiae Joel P. Bennett, et al.

in 89-7027 and 89-7028 urging that the panel’s decision

be reinstated without modification.

Blair G. Brown, Brenda V. Smith, and Richard S.

Seligman were on the brief for amicus curiae the District

of Columbia Bar in 89-7027 and 89-7028 urging that the

panel’s decision be reinstated.

Charles Setphen Ralston for NAACP Legal Defense

Fund and Educational Fund; E. Richard Larson for

Mexican American Legal Defense and Educational Fund;

Joseph M. Sellers for Washington Lawyers’ Committee

for Civil Rights under Law; Gregory O’Duden, Elaine

Kaplan, and Timothy Hannapel for National Treasury

Employees Union; and Paul M. Smith for Washington

Council of Lawyers, were on the joint brief for amici

curiae in 89-7027 and 89-7028 urging that the panel’s

opinion be reinstated.

Daniel J. Popeo entered an appearance for amicus

curiae The Washington Legal Foundation and the Allied

Educational Foundation in 89-7027 and 89-7028 urging

reversal.

Before: MIkvA, Chief Judge, WALD, EDWARDS, RUTH

B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H.

GINSBURG, SENTELLE, THOMAS,* HENDERSON, and RAN-

DOLPH, Circuit Judges.

Opinion for the Court filed by SILBERMAN, Circuit

Judge, in which BUCKLEY, WILLIAMS, D.H. GINSBURG,

SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges,

concur.

Dissenting opinion filed by Epwarps, Circuit Judge,

with whom MIkvaA, Chief Judge, WALD and RuTH B.

GINSBURG, Circuit Judges, join.

SILBERMAN, Circuit Judge, in which BUCKLEY, WIL-

LIAMS, D.H. GINSBURG, SENTELLE, HENDERSON, and

RANDOLPH, Circuit Judges, concur: This case concerns

the circumstances in which a court making an award of

reasonable attorney’s fees under federal fee-shifting stat-

utes may augment the lodestar with a contingency en-

hancement designed to compensate the prevailing party’s

attorney for the risk of losing the case. The panel opin-

ion in this case, King v. Palmer, 906 F.2d 762 (D.C. Cir.

1990), reviewed a district court award of attorney’s fees

and costs made to the plaintiff, Mabel King, pursuant to

the fee-shifting provisions of Title VII. See 42 U.S.C.

$$ 2000e-5(k), 2000e-16(d).' The panel rejected the Dis-

* Shortly after oral argument, Judge (now Justice) Thomes re-

cused himself and has not participated in this decision.

"42 U.S.C. § 2000e-5(k) provides in pertinent part:

In any action or proceeding under this subchapter the court,

in its discretion, may allow the prevailing party . . . a reasonable

attorney’s fee as part of the costs....

[ Continued ]

trict of Columbia’s contention that no enhancement for

the risk of nonpayment was proper but set aside the

district court’s award of an enhancement of 50% of at-

torney’s fees subject to contingency, holding instead that

Ms. King was entitled to a full 100% enhancement of

those fees, relying on this court’s decision in McKenzie v.

Kennickell, 875 F.2d 330 (D.C. Cir. 1989). On Septem-

ber 12, 1990, we granted the District of Columbia’s peti-

tion suggesting rehearing en banc to reconsider the hold-

ing on contingency enhancements in McKenzie. Having

reviewed the issue en banc, we overrule McKenzie and

reverse the award of a contingency enhancement to Ms.

King.

Mabel King brought a gender discrimination claim

against her employer, the District of Columbia, and ulti-

mately received an award of back pay and retroactive

promotion. See King v. Palmer, 778 F.2d 878, 882 n.7

(D.C. Cir. 1985), on remand, Civ. No. 83-1980, Mem. at

1-5 (D.D.C. June 11, 1986). The history of the substan-

tive litigation underlying the dispute over attorney’s fees

is summarized in the panel opinion. See King, 906 F.2d

at 764.

Ms. King experienced no difficulty in securing an attor-

noy. She was represented throughout the litigation by

the first attorney she contacted, Robert Adler, who took

the case on a partial contingency basis. Ms. King con-

tacted Mr. Adler as a result of his successful representa-

tion of a colleague of hers in another Title VII case, for

which he had received a 10% contingency enhancement.

Ms. King and Mr. Adler agreed that she would be re-

1 [Continued ]

Section 2000e-16(d) extends the provisions of § 2000e-5(k) to actions

by employees of the District of Columbia. Congress has made clear

that it intends the courts to resolve the policy questions inherent in

determining what is “reasonable.” See H.R. REP. No. 1558, 94th

Cong., 2d Sess. 8 (1976).

LS LULL

sponsible for litigation costs and expenses, as well as for

fees of up to $5000, and that she would receive any

award of damages, while Mr. Adler would receive any

statutory attorney’s fees that might be awarded, should

Ms. King prevail. See id.

Mr. Adler averred that he took the case expecting that

a contingency enhancement would be available. In his

applications for attorney’s fees following Ms. King’s suc-

cess on the merits, Mr. Adler twice requested a 35% fee

bonus to compensate him for the risk of nonpayment he

had borne during the litigation, but the district court

held this request in abeyance pending the Supreme

Court’s decision concerning the availability of contingency

enhancements in Pennsylvania v. Delaware Valley Citi-

zens’ Council for Clean Air, 483 U.S. 711 (1987) (Dela-

ware Valley II). In the interim, the district court

awarded a lodestar fee totaling $232,707.62, which com-

prised the reasonable number of hours Mr. Adler spent

on the case multiplied by a reasonable hourly rate, and

noted that a “15 [percent] bonus for the risk of not pre-

vailing would... be appropriate in the event that such

an award is authorized by the Supreme Court.” King v.

Palmer, Civ. No. 83-1980, Rev. Mem. at 13 (D.D.C. June

10,1987) (Mem. Op. I).

After the Court issued its fragmented decision in

Delaware Valley II, Mr. Adler reapplied for a contin-

gency enhancement, increasing his request to 100%.

Reading Justice O’Connor’s concurrence in Delaware Val-

ley II as controlling the availability and degree of con-

tingency enhancement, the district court held that the

plaintiff must establish how the market compensates for

contingent cases on a class-wide basis and then show

that without such enhancement she would have had sub-

stantial difficulty attracting competent counsel to her

case. See King v. Palmer, Civ. No. 83-1980-LFO, Mem.

at 2 (D.D.C. Sept. 20, 1988) (Mem. Op. II). In the

district court’s view, Ms. King met these requirements

by introducing affidavits from a number of local attorneys

experienced in Title VII work asserting that they would

not accept fee-shifting cases where fees were available

only if the case was won, absent the prospect of con-

tingency enhancements. See id. at 3. Since Ms. King

had agreed to pay all costs and expenses and the first

$5000 of fees, however, the district court found that Mr.

Adler’s representation of her was only partially contin-

gent and awarded a 50% enhancement instead of the

100% requested, on the authority of an earlier district

court opinion in Palmer v. Schultz, 679 F.. Supp. 68

(D.D.C. 1988), appeal dismissed, No. 88-5108 .(D.C. Cir.

1988). See Mem. Op. II at 3-4. Both parties appealed.

The panel, following our previous opinion in McKenzie

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

the district court’s award of a contingency enhancement

but increased it from 50% of the lodestar to 100%. Mc-

Kenzie established a regime in which contingency en-

hancements would be routinely available in statutory fee-

shifting cases. In reaching this result, the McKenzie

panel treated Justice O’Connor’s concurring opinion in

Delaware Valley II as controlling and explicitly applied

her admonition that ‘no enhancement for risk is appro-

priate unless the applicant can establish that without an

adjustment for risk the prevailing party ‘would have

faced substantial difficulties in finding counsel in the local

or other relevant market.’” Delaware Valley II, 483

U.S. at 733 (O’Connor, J., concurring in part and con-

curring in the judgment) (quoting plurality opinion at

731). The McKenzie majority described the inquiry to be

conducted under this test as “counterfactual,” meaning

that plaintiffs “need not show that [they] actually ex-

perienced difficulty in obtaining representation,” but

merely that, “absent a contingency enhancement, plain-

tiffs would have encountered substantial difficulties in

finding counsel ... [at the time] they commenced their

lawsuit.” McKenzie, 875 F.2d at 337 (first emphasis

added, second in original). Thus, the majority concluded

that a prevailing plaintiff under the typical fee-shifting

statute could gain a contingency enhancement by produc-

ing affidavits from lawyers in the District of Columbia

stating that those lawyers would not normally take a case

on contingency unless they were paid more than their

normal hourly fees if they won. Indeed, according to the

majority, it was entirely irrelevant whether counsel in

the case had been “attracted by the possibility of a con-

tingency enhancement”; the panel dismissed as _ beside

the point the fact that one of the lawyers who took the

case, the head of the pro bono section of a major Wash-

ington law firm, candidly stated that his firm would have

taken the case even without the prospect of a contingency

enhancement. Jd. at 338. The majority reasoned that

were it to deny a contingency enhancement on an “actual

difficulty” basis, it would simply encourage a “charade”

in which “public interest lawyers would accept a case

only after announcing loudly that they were doing so on

the assumption of a contingency enhancement.” Jd. at

337-38. In short, under the McKenzie holding, even a

plaintiff who easily found counsel and whose counsel

presumably expected no contingency bonus could satisfy

the “substantial difficulties” test.

Judge Buckley, dissenting on this issue, thought the

McKenzie majority misread Delaware Valley II. He

pointed out that “Justice O’Connor joined the plurality in

requiring proof that the prevailing party ‘would have

faced substantial difficulties’ in obtaining competent coun-

sel... absent an upward fee adjustment for contingency

risks.” /d. at 340-41 (Buckley, J., concurring in part and

dissenting in part) (quoting Delaware Valley II, 483

U.S. at 733 (emphasis in original). That meant, accord-

ing to Judge Buckley, that we were required to pursue an

“individualized approach” in which evidence of actual

difficulties would be extremely important. 7d. at 341.

Because the record establishes that McKenzie and

his fellow plaintiffs had in fact located qualified law-

yers willing to represent them in Washington, D.C.

in the early 1970’s, I conciude that under Delaware

Valley II these fee applicants have fatled to prove

that the prevailing party “would have faced substan-

tial difficulties” in securing competent attorneys ab-

sent the incentive of an enhanced fee.

Id. ‘emphasis added).

In accordance with McKenzie, the panel in this case

thought the failure of the district court to make a specific

finding that Ms. King would have faced substantial diffi-

culties in obtaining counsel without a risk enhancement

was of no real significance. See King, 906 F.2d at 768.

The district court had instead relied on Ms. King’s attor-

ney affidavits and on a case in which a different district

judge had made a blanket finding “that attorneys in the

District would not accept contingent cases without some

risk enhancement.” /d. (citing Mem. Op. II at 2, 4 (cit-

ing Palmer v. Schultz, 679 F. Supp. 68 (D.D.C. 1988),

appeal dismissed, No. 88-5108 (D.C. Cir. 1988))). The

panel held that the cross-citation to the other district

judge’s finding in conjunction with the affidavits filed in

the case was sufficient to satisfy McKenzie’s reading of

Justice O’Connor’s opinion.

We decided to rehear the case en banc in order to re-

consider the interpretation of Delaware Valley I] that the

panel in WeKenzte adopted. It is our view that the

approach followed by the majority in McKenzie is, as

Judge Buckley argued, a misreading of Justice O’Con-

nor’s concurring opinion. Moreover, we do not think that

Justice O’Cennor’s concurring opinion in Delaware Valley

II controls the issue of the circumstances under which

contingency enhancements are permitted. We conclude

that the fragmented decision in Delaware Valley II pro-

vides no test for determining the availability, much less

the calculation, of contingency enhancements under fee-

shifting statutes and that we are therefore obliged to

continue the search for the most sensible rule to govern

contingency enhancements. The rule we adopt is that of

the Delaware Valley II plurality: a reasonable lodestar

fee awarded under federal] fee-shifting statutes may not

be enhanced to compensate a prevailing party for his

initial risk of loss.

Il.

Delaware Valley II has given rise to a spate of circuit

court opinions that attempt—with varying degrees of con-

fidence—to interpret the Supreme Court’s position. See,

é.q., Rode ». Dellarciprete, 892 F.2d 1177, 1184-85 (3qd

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, 379-82

(3d Cir. 1987); Craiq v, Secretary, Dep’t of Health and

Human Servs., 864 F.2d 324, 327-28 (4th Cir. 1989) ;

Spell v. McDaniel, 824 F.2d 1380, 1403-05 (4th Cir.

1987) ; cert. denied, 484 U.S. 1027 (1988); Leroy v. City

of Houston, 831 F.2d 976, 583-84 (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, 162-63 (8th Cir. 1991) ;

D’Emanuele v. Montgomery Ward & Co., 904 F.2d 1379,

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

809 F.2d 649, 650-51 (9th Cir. 1988) (per curiam) ;

Smith v. Freeman, 921 F.2d 1120, 1122-23 (10th Cir.

1990); Wulf v. City of Wichita, 883 F.2d 842, 876 (10th

Cir. 1989); Norman v, Housing Auth., 836 F.2d 1292,

1302 (11th Cir. 1988). We, like our sister courts of

appeal, have struggled to take from the case a rule of

law that defines the circumstances in which contingency

enhancements may be awarded to the lawyers who rep-

resent prevailing plaintiffs under the myriad of federal

fee-shifting statutes. See McKenzie v. Kennickell, 875

F.2d 330, 332-88 (D.C. Cir. 1989): id. at 340-43 ( Buck-

ley, J., dissenting) ; Weisberg v. U.S. Dep’t of Justice, 848

F.2d 1265, 1272-73 (D.C. Cir. 1988); Thompson v. Ken-

nickell, 836 F.2d 616, 621 (D.C. Cir. 1988); Save Our

10a

Cumberland Mountains, Inc. v. Hodel, 826 F.2d 438, 538

n.6 (D.C. Cir. 1987), vacated on other grounds, 857 F.2d

1516 (D.C. Cir. 1988) (en bane).

The Supreme Court’s decisions on attorney’s fees prior

to Delaware Valley II had established the lodestar—a

measure of fees defined by the number of hours reason-

ably expended on a case multiplied by a reasonable mar-

ket rate per hour—as the presumptively reasonable

award, steadily subsuming most other factors into that

single calculation. See Hensley v. Eckerhart, 461 USS.

424, 433 (19838); Blum v. Steison, 465 U.S. 886, 897-

902 (1984); Pennsylvania v, Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546, 564-66 (1986)

(Delaware Valley I). Twice, however, the Supreme Court

had specifically reserved the question whether the lodestar

could ever be enhanced to reflect the risk of nonpayment

assumed by an attorney accepting a case under a statute

that authorized fees only to the prevailing party. See

Blum, 465 U.S. at 901 n.17; Delaware Valley I, 478 U.S.

at 568. Delaware Valley II attempted to resolve this issue.”

The judgment in Delaware Valley IJ reversed an award

of a 100% contingency enhancement.’ Justice White,

2 We do not understand how, as the dissent suggests, the discrete

question presented in this case—whether a contingency enhance-

ment is properly included within an award of attorney’s fees—can

possibly be thought a matter for the discretion of the trial judge.

If the overall reasonableness of a statutory attorney’s fee award

were always a matter for the trial judge’s discretion, unguided

by a legal structure, the Supreme Court certainly has wasted a good

deal of time and effort attempting to develop uniform rules. See

Blanchard v. Bergeron, 489 U.S. 87 (1989) ; Delaware Valley II, 483

U.S. 711 (1987); Delaware Valley I, 478 U.S. 546 (1986); Blum,

465 U.S. 886 (1984); Hensley, 461 U.S. 424 (1983).

3 Delaware Valley II interpreted the fee-shifting provision of the

Clean Air Act, 42 U.S.C. § 7604(d). However, the Court has said

that its standards for determining “reasonable” fees apply to all

federal statutes awarding “reasonable” attorney’s fees to a “‘pre-

vailing party,

n.7.

”

including Title VII. See Hensley, 461 U.S. at 433

lla

writing for a plurality of four Justices, concluded in Part

IV of his opinion that contingency enhancements under

fee-shifting statutes are simply “impermissible.” Dela-

ware Valley II, 483 U.S. at 727 (plurality opinion), Nev-

ertheless, the plurality went on in Part V to suggest

that if contingency bonuses were to be made available at

all, they “should be reserved for exceptional cases.” Jd.

at 728. Four Justices in dissent would have allowed a

contingency enhancement in any case in which “an attor-

ney and client have been unable to mitigate the risk of

nonpayment,” id. at 749 (Blackmun, J., dissenting), as

well as ‘additional enhancement” in those cases posing

great “ ‘legal’ risks.” Jd. at 751. Under the dissent’s test,

contingency enhancements would be “appropriate in most

circumstances.” Jd. at 3741.

Justice O’Connor concurred in part and concurred in

the judgment reversing the award. She agreed with the

dissenters that “Congress did not intend to foreclose con-

sideration of contingency in setting a reasonable fee.” /d.

at 731 (O’Connor, J., concurring in part and concurring

in the judgment). But she joined in the plurality’s judg-

ment that the record before the Court did not justify a

contingency enhancement. See id. at 734. She also agreed

with the plurality that no enhancement could be awarded

for the “legal” risks peculiar to the specific case. See id.

at 731, 734. Finally, Justice O’Connor agreed with the

Statement in Part V of the plurality opinion “that- no

enhancement for risk is appropriate unless the applicant

can establish that without an adjustment for risk the pre-

vailing party ‘would have faced substantia] difficulties in

finding counsel in the local or other relevant market.’ ”

Id. at 733 (quoting plurality opinion at 731).

In our prior opinions interpreting Delaware Valley IT,

we, like other circuit courts, have assumed that Justice

O’Connor’s eencurrence controls, See McKenzie v. Ken-

12a

nickell, 875 F.2d 330, 382-38 (D.C. Cir. 1989); id. at

340-43 (Buckley, J., dissenting); Weisberg v. U.S. Dep’t

of Justice, 848 F.2d 1265, 1272-73 (D.C. Cir. 1988) ;

Thompson v. Kennickell, 836 F.2d 616, 621 (D.C. Cir.

1988); Save Our Cumberland Mountains, Inc. v. Hodel,

826 F.2d 43, 53 n.6 (D.C. Cir. 1987), vacated on other

grounds, 857 F.2d 1516 (D.C. Cir. 1988) (en banc).

But we have not focused on the fact that there are two

analytically distinct questions involved in awarding a

contingency enhancement. First, a court must decide

whether an enhancement is available at all. Then, as-

suming an enhancement is warranted, the court must

calculate its amount. Virtually all of Justice O’Connor’s

relatively brief opinion deals with the second question.

But the question of availability of enhancements logically

precedes the question of their calculation.

To ascertain when contingency enhancements should be

made available under Delaware Valley II, we have looked

for some common ground between Justice O’Connor’s con-

currence and the plurality opinion. We have had little

difficulty placing a label on that common ground, since

Justice O’Connor expressly joined the plurality’s state-

ment in Part V that enhancements should be available

only when a plaintiff would have faced “substantial diffi-

culties” in attracting counsel to his case without the

prospect of an enhancement. However, we and the other

courts of appeals have had considerable trouble deter-

mining the content of that “substantial difficulties” label

—that is, determining just how “substantial” the “diffi-

culties” in attracting counsel have to be, and how they

must be proven.

In this search for content, several of our sister cir-

cuits have rend Justice O’Connor’s concurrence as im-

plicitly agreeing with the plurality’s statement, Delaware

Valley 11, 483 U.S. at 727 (plurality opinion), that con-

tingency bonuses should be available only in “exceptional

cases.” See, e.g., Student Pub. Interest Research Group

iitanienecnecnieaaeaiienmaeliii eae

l3a

v. AT & T Bell Laboratories, 842 F.2d 14386, 1451-52

(3d Cir. 1988) (“|C]ontingency multipliers should be

granted only rarely.”); Norman v. Housing Auth., 836

F.2d 1292, 1302 (11th Cir. 1988) (“[I]n the rare case

enhancement may be appropriate ... .”). Appellant

presses this position upon us here. And in Thom Upson. v.

Kennickell, we made a_ similar suggestion, describing

Deleware » Valley vl in Gilbert and Sullivan terms: “What.

never? No, never!” for the plurality, and “What, never?

Hardly ever!” for » Justice O’Connor. Thompson, 836 F.

2d at 621 ‘emphasis in original).

To be sure, Justice O’Connor does not Say at any point

that she disagrees with the plurality’s “exceptional cases”

position. And she does endorse the plurality’s view that

the lodestar is a apr ganges adequate fee. See Dela-

ware Valley II, 483 U.S. at 733-3 (O’Connor, J., concur-

ring in part and concurring in the judgment). Moreover,

Justice O’Counor joined the reversal of the award of

contingency enhancement without a remand. notwith-

standing the dissenters’ powerful argument that the

applicant should be given an opportunity to develop the

record to meet the Supreme Court’s standard. See id. at

794-55 (Blackmun, J., dissenting) : cf. Thompson, 836

F.2d at 621 ‘remanding for application of Delaware

Valley II). This at least suggests that Justice O’Connor

believed that contingency enhancements should be avail-

able only in those presumably rare situations in which the

need was readily apparent. Still, she did not join Part

V of the plurality opinion, so we cannot be sure that she

accepted the “exceptional cases” limitation.

There is only one point con cerning the availability of

contingency enhancements that a fair reading of Justice

O’Connor’s concurrence clearly supports. This point is

that evidence of actual difficulties is highly probative of

the “substantial difficulties” Delaware Valley II describes.

In adopting the plurality’s “substantial difficulties” test,

Justice O’Connor quotes from Part V of. the plurality

l4a

opinion. The passage she quotes concludes with a footnote

that we presume Justice O’Connor adopted along with the

textual language she cited. The footnote states: “ ‘an

attorney’s fee award should be only as large as necessary

to attract competent counsel,’ and ‘one relevant factor

bearing on high-risk 1s whether other counsel had declined

to take the case because there was little or no prospect of

earning a fee.’” Id. at 731 n.12 (plurality opinion) (quot-

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

(emphasis added). And, as Judge Buckley noted in Mc-

Kenzie, “Justice O’Connor joined the plurality in requir-

ing proof that the prevailing party ‘would have faced

substantial difficulties’ obtaining competent counsel ‘in

the relevant market,’ absent an upward fee adjustment

for contingency risks.” McKenzie, 875 F.2d at 340-41

(Buckley, J., concurring in part and dissenting in part)

(quoting Delaware Valley II, 483 U.S. at 733 (O’Connor,

J., concurring in part and concurring in the judgment) )

(emphasis in original). We thus believe that five Justices

envisioned a particularized factual inquiry into the plain-

tiff’s actual difficulties in retaining counsel—the kind of

inquiry that Judge Buckley thought necessary but the

majority in McKenzie eschewed. But see Morris v. Amer?-

can Nat’l Can Corp., Nos. 90-1235, 90-2289, 1991 WL

15315, *5 (8th Cir. Aug. 14, 1991) (stating no actual

difficulties need be shown) (citing McKenzie, 875 F.2d

at 337).

This is, we recognize, a hard standard to meet. Indeed,

if evidence that other counsel actually refused the case is

only “one relevant factor” in determining whether the

plaintiff would have had “substantial difficulties” in ob-

taining counsel without a risk enhancement—a factor

insufficient by itself to justify awarding an enhancement

—the plaintiff’s burden in producing sufficient evidence to

meet the test must be quite daunting. And it also follows

that a plaintiff’s failure to put on any evidence of actual

difficulties in attracting counsel without extra compensa-

l5a

tion would severely undermine a claim for a contingency

enhancement.

The district court here made no finding that Ms. King

would have faced substantial difficulties in attracting

counsel without a contingency bonus. Nor was there any

evidence that Ms. King faced actual difficulties in secur-

ing representation. As it happened, Robert Adler was the

first attorney the plaintiff contacted. and, although he

later stated that he would not have accepted representa-

tion without the “definite possibility” of a contingency

enhancement, his fee award in a previous case had been

enhanced by only 10%. Given the uncertain state of the

law at the time he took this case (which is not to say that

it is particularly clear today) and his previous experience,

the “definite possibility” to which he referred does not

Seem very weighty. In his engagement letter to Ms. King,

Mr. Adler referred only to charging his “hourly rates”

and stated that he would “seek an award of attorneys’

fees from the defendants with respect to those amounts,

should we be the prevailing party.” Joint Appendix (J.A.)

at 73a (emphasis added). It does not seem to us that Mr.

Adler’s testimony goes very far to meet the plaintiff’s

burden under the “substantial difficulties” test.

Before the district court and again before us, Ms. King

has also sought to rely on the affidavits of attorneys who

were not approached by Ms. King and were never involved

in the case.‘ These affidavits—some from Title VII prac-

*Of these numerous affidavits. only five addressed the facts of

Ms. King’s particular case or expressed any opinion at all about

whether Ms. King herself would have faced substantial difficulties

in attracting competent counsel absent the availability of a con-

tingency enhancement. Two of these described the weakness and

difficulty of her case as the principal reason the affiants would

have been unwilling to assume representation. See J.A. at 112d

(Cashdan) ; 173b (Fitzpatrick). Another attorney allowed that his

firm would possibly have represented Ms. King if she had an “ex-

ceptionally strong claim.” J.A. at 124b (Chuzi). The fourth ad-

mitted there was at least a possibility, although “remote.” of finding

l6a

titioners, some from practitioners from other areas—

contend that lawyers would not take cases on a non-fee-

paying basis without contingency enhancements. We do

not think that we can accept such evidence as meeting the

substantial difficulties test. Without in any way denigrat-

ing the bona fides of these lawyers, we cannot blink the

fact that they are obviously self-interested. We think it is

indisputable that if such evidence were treated as deter-

minative, or even weighty, the substantial difficulties test

would be met so easily as to become a mere formality.

The Supreme Court has itself recently disparaged such

anecdotal evidence from attorneys unconnected with the

case in the context of attorney’s fees disputes. See United

States Dep’t of Labor v. Triplett, 110 S.Ct. 1428, 1433-34

(1990) (holding such evidence to be “blatantly insuffi-

cient” to raise a constitutional doubt about federal limits

on attorney’s fees, “even if entirely unrebutted’’).

Nor do we believe the few affidavits presented that

expressed a view as to whether the affiant lawyer would

or would not have taken Ms. King’s case add much to her

claim for an enhancement. Insofar as they seek to hypoth-

esize whether the affiants would have taken her case, they

focus (inevitably it seems to us) on the strength or

weakness of her claim. See supra note 3. But in Dela-

ware Valley IJ, it will be recalled, both the plurality and

Justice O’Connor regarded that factor as inappropriate.

See Delaware Valley II, 483 U.S. at 726 (plurality opin-

ion); id. at 734 (O’Connor, J., concurring in part and

concurring in the judgment).

In sum, even if we were to apply Justice O’Connor’s

concurrence as the holding of Delaware Valley II, we

think Ms. King’s evidence does not paint a picture of a

Situation where a contingency enhancement is necessary

pro bono representation for Ms. King. See J.A. at 214 (Lapidus).

Only a single affidavit stated flatly that the affiant would not take

Ms. King’s case because of the unavailability of contingency en-

hancements. See J.A. at 177 (Gottfried).

17a

to “mak[e] it possible for poor clients with good claims

to secure competent help.” Jd. at 730-31.

Although we have determined that Ms. King failed to

carry her burden under Justice O’Connor’s opinion in

Delaware Valley II, candor obliges us to concede that we

are unable to set forth a conceptual framework that would

govern further litigation on the subject of contingency

enhancements. We have certainly suggested, in accord-

ance with our understanding of the substantial difficul-

ties test, that actual evidence that attorneys did refuse a

case is of greater probative value than the hypothetical

testimony of non-involved and self-interested lawyers. But

we are sorely troubled by, and indeed we have no answer

to, the McKenzie majority’s argument that 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, knowing that such

refusals were necessary to permit the eventual award of

fees.” McKenzie, 875 F.2d at 337. We think the McKenzie

majority was also correct in suggesting that emphasizing

the actual difficulties a plaintiff had in obtaining counsel

will create perverse incentives by discouraging those very

“reference services ... that make it easier for litigants

to find legal representation.” Jd.

To add to our quandary, even if we did have evidence

that several lawyers had declined Ms. King’s case, we

think it would be impossible to separate out from their

decision not to represent her the strength or weakness of

her claim as it appeared to them at the time. After all,

this is surely the principal reason a lawyer will turn down

a case under a fee-shifting statute. Delaware Valley I,

however, tells us unequivocally that the risk of loss in a

particular case is not a factor that courts may look at in

determining whether a contingency enhancement is ap-

propriate. “|A] court should not award any enhance-

18a

ment based on ‘legal’ risks or risks peculiar to the case.”

Delaware Valley II, 468 U.S. at 734 (O’Connor, J., con-

curring in part and concurring in the judgment) ; see also

id. at 726-27 (plurality opinion).® If the courts cannot

do so directly, how can it be appropriate to do so vicari-

ously through the eyes of lawyers who declined the case?

The more we struggle with this problem, the more we

are convinced that it is virtually impossible to determine

whether a given plaintiff would have had “substantial

difficulties” in obtaining counsel without a contingency

enhancement. The inquiry is quite artificial, because, by

definition, the plaintiff stands before the court with coun-

sel. And since counsel could not possibly know whether

a risk enhancement was in the offing until a court decides

the question years later, our inquiry is circular. As Judge

Wiiliams noted in his coneurrence in the panel opinion in

this case, whether a plaintiff would have faced substantial

difficulties absent the possibility of a contingency enhance-

ment is essentially unknowable when the most critical

assumption necessary to make such a counterfactual judg-

ment is itself the issue before the court. See King, 906

F.2d at 770 (Wiiliams, J., concurring) (“I view causa-

tion as running in the opposite direction from that sup-

posed by the controlling precedents: I see the judicial

judgment as defining the market, not vice versa.”’).

As Judge Buckley correctly observed in McKenzie, if

Justice O’Connor’s opinion controls the holding of Dela-

ware Valley Il, we would be obliged to apply the “sub-

stantial difficulties” test, notwithstanding these analytical

difficulties, “like it or not.” McKenzie, 875 F.2d at 342

(Buckley, J., concurring in part and dissenting in part).

5 The dissent, nevertheless, would calculate the amount of con-

tingency enhancement based cn the degree of risk faced by the

plaintiff’s lawyer in each case. As the plurality in Delaware Valley

II noted, that approach would provide incentives to bring the weak-

est cases to court, and it would put the district judge who had to

make that determination in a difficult psychological posture. See

Delaware Valley II, 483 U.S. at 722; id. at 725 (plurality opinion).

: 19a

But the difficulties we have described have prompted us

to think harder about what the controlling principles of

Delaware Valley II really are; specifically, we have re-

considered whether we have been correct in assuming

that Justice O’Connor’s concurring opinion governs the

subject of contingency enhancements. We have regarded

her concurrence as controlling largely in reliance on the

Supreme Court’s admonition in Marks v. United States,

430 U.S. 188 (1977), that when the Court issues frag-

mented opinions, the opinion of the Justices concurring

in the judgment on the “ ‘narrowest grounds’ ” should be

regarded as the Court’s holding. Jd. at 193 (quoting

Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion

of Stewart, Powell, and Stevens, JJ.)). But Marks is

workable—one opinion can be meaningfully regarded as

“narrower” than another only when one opinion is a

logical subset of other, broader opinions. In essence, the

narrowest opinion must represent a common denominator

of the Court’s reasoning; it must embody a position im-

plicitly approved by at least five Justices who support

the judgment.

In Gregg v. Georgia, 428 U.S. 153 (1976), for example,

the Court interpreted its earlier nine-way split in Furman

v. Georgia, 408 U.S. 238 (1972) (per curiam). In Fur-

man, the five Justices who supported the judgment that

Georgia’s death penalty statute was unconstitutional pro-

duced five separate opinions. Two Justices concluded that

the death penalty was unconstitutional in all cireum-

stances. See id. at 305-06 (Brennan, J.. concurring) ; id.

at 370-71 (Marshall, J.. concurring). Three others found

specific defects in the Georgia statute but declined to

decide whether capital punishment might be constitu-

tional under other circumstances. Of these, Justices Stew-

art and White felt that the Georgia death penalty was

unconstitutional because it was applied in an arbitrary

and capricious manner, see id. at 309-10 (Stewart, J.,

concurring); id. at 313 (White, J.. concurring), while

Justice Douglas stated that it was unconstitutional be-

20a

cause it was “pregnant with discrimination,” falling more

harshly on minorities and the poor both because its ap-

plication was discretionary rather than mandatory and

because wealthy defendants could afford better counsel.

See id. at 255-57 (Douglas, J., concurring).

In Gregg, the Court— in another fragmented opinion—

treated the opinions of Justices Stewart and White as

controlling. See Gregg, 428 U.S. at 169 n.15 (plurality

opinion). Justices Marshall and Brennan, who believed

the death penalty unconstitutional in all circumstances,

surely agreed with Justices Stewart and White that it was

unconstitutional when administered in an arbitrary and

capricious manner. By the same token, Justice Douglas,

who insisted that any discretion in the judge or jury to

decide when to impose capital punishment rendered the

arrangement unconstitutional, would certainly have sub-

scribed to Justice Stewart’s notion that the death penalty

could not be administered constitutionally to “a capri-

ciously selected random handful” of criminals. Furman,

408 U.S. at 309-10 (Stewart, J., concurring). Selecting

the opinions of Justices Stewart and White as the holding

of Furman in Gregg was thus unproblematic.

Similarly, in Marks itself, the Court adopted as the gov-

erning definition of obscenity the position of the plurality

from the earlier case of A Book Named “John Cleland’s

Memoirs of a Woman of Pleasure” v. Attorney General of

Massachusetts, 383 U.S. 413 (1966) (Fanny Hill). In

Fanny Hill, three separate views supported the judgment

that the book was not obscene: the view expressed in the

plurality opinion, which said that a book had to be

“utterly without redeeming social value” to be considered

obscene, see id. at 419 (opinion of Brennan and Fortas,

JJ., and Warren, C.J.) (emphasis omitted); the view of

Justice Stewart that only “hardcore” pornography could

be banned as obscene, see id. at 421 (opinion of Stewart,

J.); and the view of Justices Black and Douglas, who"

believed that obscenity could never be banned. See id. at

21a

421 (opinion of Black, J.) ; id. at 433 ‘opinion of Douglas,

J.). Because Justices Black and Douglas had to agree, as

a logical consequence of their own position, with the plu-

rality’s view that anything with redeeming social value is

not obscene, the plurality of three in effect spoke for five

Justices: Marks’ “narrowest grounds” approach yielded a

logical result.®

When, however, one opinion supporting the judgment

does not fit entirely within a broader circle drawn by the

others, Maris is problematic. If applied in situations

where the various opinions supporting the judgment are

mutually exclusive, Marks will turn a single opinion that

lacks majority support into national law. When eight of

nine Justices do not subscribe to a given approach to a

legal question, it surely cannot be proper to endow that

approach with controlling force, no matter how persuasive

it may be.

The Court itself appears not to apply Marks in cases

of this type. To take one example, in Coolidge v. New

Hampshire, 403 U.S. 443 (1971), a plurality of four

Justices held that only when evidence was discovered

“inadvertently” could it be seized pursuant to the plain

view exception to the Fourth Amendment’s warrant. re-

quirement. See id. at 469 (plurality opinion). Four other

Justices believed that inadvertence was not necessary for

a valid seizure of evidence in plain view. See id. at 492

(Burger, C.J., concurring in part and dissenting in part) ;

id. at 506 (Black, J., concurring in part and dissenting in

part); 7d. at 510 (Blackmun, J.. concurring in part and

dissenting in part); id. at 516 (White. J., concurring in

part and dissenting in part). Justice Harlan concurred

in the judgment that the search in question was uncon-

stitutional but provided no reasoning by which one could

discern his position on the inadvertence requirement. See

® Justice Stewart’s “hardcore” test, though it was also a logical

subset of Justice Black. and Douglas’ opinion, would only have

spoken for three Justices and could therefore not have been the

controlling rationale.

22a

id. at 490 (Harlan, J., concurring in the judgment). The

Court subsequently stated that the inadvertence require-

ment was “not a binding precedent” and was merely “the

considered opinion of four Members of this Court” that

should be “the point of reference for further discussion of

the issue.” Texas v. Brown, 460 U.S. 730, 737 (1983)

(plurality opinion). The Court eventually disavowed the

inadvertence requirement entirely. See Horton v. Cali-

fornia, 110 S. Ct. 2301, 2308-10 (1990).

It seems to us that Delaware Valley II is one of the

fragmented opinion cases that cannot be resolved satis-

factorily by Marks. Unlike Furman or Fanny Hill, Dela-

ware Valley II is not a case in which the concurrence

posits a narrow test to which the plurality must neces-

sarily agree as a logical consequence of its own, broader

position. In other words, it is not a case in which there

is an implicit majority of the Court. Rather, Delaware

Valley II involves three distinct approaches to the issue

of contingency enhancements in fee-shifting statutes, none

of which enjoys the support of five Justices.

Superficially, to be sure, there is a common link be-

tween the plurality opinion and Justice O’Connor’s con-

currence; both Part V of the plurality opinion and Justice

O’Connor seem to endorse the substantial difficulties test

we sought to apply earlier in this opinion. But the plu-

rality quite clearly indicated in Part IV that it did not

believe that contingency enhancements were ever avail-

able. See Delaware Valley II, 483 U.S. at 727 (plurality

opinion). Therefore, Part V appears to have been com-

posed not as an alternative holding but rather as a fall-

back position, an invitation, as it were, to Justice O’Con-

nor to reach common ground. Since Justice O’Connor did

not accept the plurality’s invitation, explicitly declining

to join Part V, the plurality’s true position remains that

expressed in Part IV.

Justice O’Connor does appear to accept the bare con-

cept that contingency enhancements should not be awarded

’

23a

unless the plaintiff shows substantia] difficulties, but it is

far from clear, as we noted earlier, what content she

would give to the “substantial difficulties” test the plu-

rality articulates in Part V. Her concurrence does not

contain enough independent reasoning on the question of

availability to allow us to compare her position analyti-

cally to that of the plurality. In that sense, her opinion

on that issue approaches Justice Harlan’s in Coolidge.

Even if it were possible to determine from Justice

O’Connor’s opinion when to apply a contingency enhance-

ment and to conclude that her views on that subject were

somehow narrower than the plurality’s, it is quite clear

that one could not say in the Marks sense that her care-

fully explained view of how the contingency enhancement

Should be caleulated is narrower than the plurality’s

answer to that question. The plurality in Part IV stated

that if an upward adjustment for contingency risk were

applied, the amount should be based on the “real risk-of-

not-prevailing” in the case—but as a general rule should

be “no more than one-third of the lodestar.” Jd. at 730.

Justice O’Connor, on the other hand, takes a different

approach altogether, one that does not va ry with the riski-

ness of the individual case but rather js based on a class

determination of the amount of contingency enhancement

usually paid in the relevant market, with no explicit ceil-

ing. See id. at 731-34 (O’Connor, J., concurring in part

and concurring in the judgment). We do not see how

either approach can be thought “narrower” than the

other; they are simply different. -

To apply Marks to Delaware Valley IT, we would have

to conclude that Justice O’Connor’s answers to both the

“when” and the “how” questions were “narrower” than-

the plurality’s in Part V. Without implicit agreement on

both, it is simply impossible to regard the substantial

difficulties test as controlling. Of course, as we have

recognized, how one calculates a contingency enhancement

could be thought to be a separate analytic issue from the

24a

question whether and under what circumstances a con-

tingency enhancement is available. But as the panel opin-

ion and other cases demonstrate, the two questions tend

to run together. See King, 906 F.2d at 765-68; McKenzie

875 F.2d at 334-37; Student Pub. Interest Research

Group v. AT & T Bell Laboratories, 842 F.2d 1436, 14151

(3d Cir. 1988). It is very difficult to consider the cir-

cumstances under which a contingency enhancement is

“necessary” to attract counsel without contemplating the

amount of the enhancement; each part of the inquiry has

inevitable ramifications for the other. This may be the

reason Justice O’Connor’s opinion focuses so heavily on

the “how” question. Because her answer to that question

is so clearly at odds with that of the plurality, however,

we are left without a controlling opinion or a governing

test for awarding contingency enhancements under Dela-

ware Valley II.

The Third Circuit, taking a different approach, has

reasoned that Justice O’Connor’s opinion can be regarded

as a subset of the dissent if not the plurality. As such,

Justice O’Connor’s concurrence would speak for a major-

ity of the Court. See id. (“Because the four dissenters

would allow contingency multipliers in all cases in which

Justice O’Connor would allow them, her position com-

mands a majority of the Court.”). The Third Circuit

appears to apply the Marks methodology to reach this

result, but it does not explicitly rely on Marks. See id.

at 1451 n.16 (citing Marks as a “see also” in a footnote

appended to the citation of a circuit opinion). This is

understandable, because Marks has never been so applied

by the Supreme Court, and we do not think we are free

to combine a dissent with a concurrence to form a Marks

majority. As the Court said in Marks itself, “When a

fragmented Court decides a case and no single rationale

explaining the result enjoys the assent of five Justices,

‘the holding of the Court may be viewed as that position

taken by those members who concurred in the judqments

on the narrowest grounds.’” Marks, 480 U.S. at 193

25a

(quoting Gregg, 428 U.S. at 169 n.15 (opinion of Stew-

art, Powell, and Stevens, JJ.) ).

To be sure, in Vasquez v. Hillery, 474 U.S. 254 (1986),

the Supreme Court, in interpreting Rose v. Mitchell, 443

U.S. 545 (1979), emphasized that an opinion that com-

bines shifting majorities in various portions is no less

binding than would be an opinion in which the same Jus-

tices formed the majority for all the sections. See Vas-

quez, 474 U.S. at 261-62 n.4; see also Arizona v. Ful-

minante, 111 S. Ct. 1246 (1991) (employing two distinct

majorities to arrive at a judgment, both of which there-

fore constitute binding law). That, however, is quite a

different situation than the one that the Maris meth-

odology addresses, where there is no explicit majority

agreement on all the analytically necessary portions of a

Supreme Court opinion. Under these latter circumstances,

if the application of Marks will not yield a majority hold-

ing, nothing will.

To say that Delaware Valley II provides no controlling

legal holding is not to say that it has no binding impact

on us. Because the Court’s result was to deny a contin-

gency enhancement without even a remand, we think we

could not authorize the routine awarding of contingency

enhancements of whatever size. Cf. National Mut. Ins.

Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1949)

(Frankfurter, J., dissenting) (noting that the result is

binding even when the Court fails to agree on reasoning).

We furthermore believe, as this opinion and the dissent

7In our view, even applying the Third Circuit's reasoning, we

do not think Justice O’Connor’s concurrence constitutes a control-

ling opinion in Delaware Valley II. For similar reasons to those

we outlined in our discussion as to whether her opinion could he

thought narrower than the plurality opinion, Justice O’Connor’s

thoughtful answer to the question of how to calculate a contin-

gency enhancement should it be available cannot possibly be thought

a subset of the dissent’s approach to the same issue. She herself

recognizes this. See Delaware Vali, y IT, 483 U.S. at 732 (O’Connor,

J., concurring in part and concurring in the judgment).

26a

make clear, that there simply is no practical middle

ground between providing enhancements routinely and

not providing them at all. Keeping in mind that a major-

ity of the Supreme Court clearly agrees that the question

of attorney’s fees must not turn into major litigation in

itself, see Delaware Valley II, 488 U.S. at 722, we think

the appropriate course is to hold that contingency en-

hancements will not be available in this Circuit... We

note that although other circuit courts have set forth

various tests for awarding contingency enhancements

under Delaware Valley II, most of the tests appear to be

difficult, if not impossible, to meet in practice. See, e.g.,

Student Pub. Interest Research Group v. AT & T Bell

Laboratories, 842 F.2d 1486, 1451-52 (8d Cir. 1988)

(“{[C]ontingency multipliers should be granted only

rarely.”); Craig v. Secretary, Dep’t of Health and Hu-

man Servs., 864 F.2d 324, 327 (4th Cir. 1989) (no con-

tingency enhancement available “in the absence of excep-

tional circumstances”); Leroy v. City of Houston, 831

F.2d 576, 583 (5th Cir. 1987) (contingency enhancements

should be “reserved for ‘exceptional cases’” (citation

omitted)); Skelton v. General Motors Corp., 860 F.2d

250, 254 (7th Cir. 1988) (contingency enhancements

available only if plaintiffs meet “stringent require-

ments”); Hendrickson v. Branstad, 934 F.2d 158, 162

(8th Cir. 1991) (“[E]nhancement is reserved for ‘rare’

and ‘exceptional’ cases... .”); Smith v. Freeman, 921

8 The dissent’s reliance on the legislative history of 42 U.S.C.

§ 1988—particularly citations to Johnson v. Georgia Highway Ev-

press, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)—comes too late.

The Supreme Court has, on several occasions, indicated that it does

not regard factors listed separately in Johnson as appropriate en-

hancements to the lodestar. See Blum v. Stenson, 465 U.S. 886,

898-99 (1984); Delaware Valley I, 478 U.S. 546, 564, 566 (1986).

And the dissent’s citation of Blanchard v. Bergeron, 489 U.S. 87

(1989), is also misplaced. There the Supreme Court was dealing

with an entirely different issue—the question whether an actual,

private contingency fee arrangement limited a statutory award,

not whether a contingency factor should be added to the lodestar.

27a

F.2d 1120, 1123 (10th Cir. 1990) (quoting plurality’s

view that “enhancement for the risk of nonpayment

Should be reserved for exceptional cases”); Norman v.

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

(“[I]n the rare case enhancement may be appropriate

-...). But cf. D’Emanuele v. Montgomery Ward &

Co., 904 F.2d 13879, 1383 (9th Cir. 1990) (implying that

routine contingency enhancements might be justified).

We have done our best to apply Delaware Valley II

but have been unable to derive a governing rule from

the opinion. Considering our struggle to understand and

apply Delaware Valley II as well as the difficulties our

sister circuits have experienced, we urge the Supreme

Court to clarify its position.

* ~ ~ *

For the foregoing reasons. we overrule McKenzie v.

Kennickell, 875 F.2d 330 (D.C. Cir. 1989), and those

portions cf our other previous opinions inconsistent with

our current disposition, and reverse the contingency en-

hancement portion of the attorney's fees allowed to apel-

lant.

It is SO ordered.

28a

Epwarps, Circuit Judge, with whom MIkvA, Chief

Judge, WALD and RUTH B. GINSBURG, Circuit Judges,

join, dissenting: In deciding this appeal, we are con-

strained to apply a specific statutory provision, section

706(k) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-5(k) (1988), under which the District

Court has broad authority to assess the reasonableness

of a fee request. In the absence of legal error, the trial

judge’s determination as to reasonableness may not be dis-

turbed unless it is an abuse of discretion. Given this

highly deferential standard of review, there is no legiti-

mate basis whatsoever for this court to overturn the

judgment of the trial judge on the facts of this case.

Furthermore, the majority’s new rule, that contingency

awards are never justified, is completely without founda-

tion. Twelve other circuits have reviewed the question

at hand, and not one other circuit has adopted a rule

that completely bars contingency enhancements.

The plaintiff, Mable King, was awarded an attorney’s

fee pursuant to section 706(k), which reads, in pertinent

part, as follows:

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

party ...a@ reasonable attorney’s fee as part of the

costs [of bringing the action] ....

42 U.S.C. § 2000e-5(k) (1988) (emphasis added). As

may be seen from the clear terms of the statute, the

“district court is expressly empowered to exercise dis-

cretion in determining whether an award is to be made

and if so its reasonableness.” Blum v. Stenson, 465 U.S.

886, 902 n.19 (1984). The Supreme Court has empha-

sized that it is entirely “appropriate” that the trial judge

have broad authority in determining the amount of a

fee award “in view of the district court’s superior under-

standing of the litigation and the desirability of avoiding

frequelt appellate review of what essentially are factual

sere cereeerrnsenemeesimseiiiiiiiiiiiaiiieiaiiiiiimmeiael

29a

matters.” Hensley v. Eckerhart, 461 U.S. 424, 437

(1983)

In this case, the District Court awarded an attorney’s

fee that compensates Ms. King’s counsel for the risk of

having taken the case on a contingent-fee basis. In reach-

ing its conclusion that a 50% enhancement over normal

hourly rates was “reasonable” compensation in this case,

the District Court properly looked to evidence of prevail-

ing market practices to ensure that the fee award was

roughly commensurable with what counsel could obtain

on the open market. There is no doubt, given the lan-

guage of the statute, that the District Court’s judgment

in this regard is to be reviewed under a highly deferen-

tial, abuse-of-discretion standard. See Blum, 465 U.S. at

896; Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546, 569 (1986) (“Delaware

Valley 1”) (Blackmun, J.. concurring in part and dis-

senting in part): City of Riverside v. Rivera, 477 U.S.

561, 586 (1986) (Powell, J.. concurring in the judg-

ment). Under this standard of review, we are not to

Substitute our judgment of what is “reasonable” for that

of the District Court; rather, we are to review the trial

court’s judgment only to ensure that it is not founded

upon an error of law or a clearly erroneous finding of

fact and that there is some evidence in the record upon

which the court “rationally could have based its decision.”’

Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d

1 See also Blanchard v. Bergeron, 489 U.S. 87. 96 (1989) (“It is

central to the awarding of attorney’s fees . . . that the district

court judge, in his or her good judgment, make the assessment

of what is a reasonable fee under the circumstances of the case.’’).

Although some of these precedents focus upon the parallel fee-

shifting provision set out in the Civil Rights Attorney’s Fee

Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641, codified

at 42 U.S.C. § 1988 (1988), Congress and the Supreme Court have

made clear that the fee-shifting provisions of that statute and

Title VII are to be interpreted alike. Se; Hensley, 461 U.S. at 433

n.7; S. REP. No. 1011, 94th Cong., 2d Sess. 4 (1976).

30a

1017, 1022 (Fed. Cir. 1986); see also Founding Church

of Scientology of Washington, D.C., Inc. v. Webster, 802

F.2d 1448, 1457 (D.C. Cir. 1986) (“The abuse-of-discre-

tion standard calls on the appellate department, in a

spirit of humility occasioned by not having participated

in what has gone before, not just to scrutinize the con-

clusion but to examine with care and respect the process

that led up to it.”), cert. denied, 484 U.S. 871 (1987) ;

Gomez v. Chody, 867 F.2d 395, 405 (7th Cir. 1989)

(“*To find an abuse of discretion, we must conclude

that “no reasonable [person] . . . could agree with the

district court.”’”) (quoting Mumford v. Bowen, 814

F.2d 328, 329 (7th Cir. 1986) ).

Notwithstanding the latitude vested by Congress in

trial courts to craft “reasonable” fee awards, the District

of Columbia (“‘Government’’) defendants in this case urge

this court to substitute its judgment for that of the trial

judge in overturning the award of fees. In following this

suggestion, the majority seizes upon the “substantial dif-

ficulties” test found in Pennsylvania v. Delaware Valley

Citizens’ Council fer Clear Air, 483 U.S. 711, 731 (1987)

(“Delaware Valley II’); id. at 733 (O’Connor, J., con-

curring in part and concurring in the judgment), which

purports to measure risk enhancement pursuant to pre-

vailing “market” rates in the relevant legal community.

The majority, however, turns the test on its head by con-

verting it to a test whereby an individual plaintiff must

establish that she personally encountered difficulty secur-

ing competent representation without the promise of a

contingency enhancement. The problem with this result,

however, is that it defies the premise -upon which it is

based. If there is a “substantial difficulties” requirement

under section 706(k), it does not seek to determine

whether a particular plaintiff “actually faced substantial

difficulty in retaining counsel.” Morris v. American Nat’l

Can Corp., 941 F.2d 710, 715 (8th Cir. 1991) (citing Mc-

Kenzie v. Kennickell, 875 F.2d 3380, 387-38 (D.C. Cir.

3la

1989) ; see 875 F.2d at 338 (“Justice O’Connor’s opinion

instructs us to adopt a class-wide view of contingent

cases; 1f the unavailebility of risk enhancements would

have caused plaintiffs to have experienced ‘substantial

difficulty’ in locating counsel, then, notwithstanding the

particular circumstances of their case, such an enhance-

ment may be granted.”)). Therefore, the trial judge

surely did not ebuse his discretion in failing to apply the

majority’s distorted construction of the so-called “sub-

stantial difficulties” test. There is no “actual difficulties”

requirement ‘under section 706(k), and this court has no

authority to amend the statute to include such a restric-

tion.

Just recently, in rejecting a claim for expert fees as a

part of a claim for attorney’s fees, the Supreme Court

reminded us that we must enforce fee statutes as written.

On this point, Justice Scalia, borrowing a well-known

passage from an opinion by Justice Brandeis. said:

|The statute’s|] language is plain and unambiguous.

What the Government asks is not a construction of

a Statute, but, in effect, an enlargement of it by the

court, so that what was omitted, presumably by inad-

vertence, may be included within its scope. To sup-

ply omissions transcends the judicial function.

West Va. Univ. Hosps., Ine. v. Casey, 111 S. Ct. 1138,

1148 (1991) (quoting Jselin v. United States, 270 U.S.

245, 250-51 (1926)). In first utilizing an actual diffi-

culties gloss to section 706(k), and then completely bar-

ring contingency enhancements, the majority opinion in

this case “transcends the judicial function.” Because

there is nothing in the statute or the relevant Supreme

Court case law that would support the majority’s con-

clusion, we dissent.

By now, it should be b yond dispute that the fee-

shifting provision of Title VII permits district courts to

82a

enhance time-based fee awards to take account of the

fact that an attorney has’ taken a case on a contingent-

fee basis. It is, of course, true that, in determining

what is “a reasonable attorney’s fee’ in any given case,

the trial judge normally begins by calculating the pre-

vailing attorney’s so-called “lodestar” fee. As the Su-

preme Court has explained:

The most usefu! starting point for determining the

amount of a reasonable fee is the number of hours

reasonably expended on the litigation multiplied by

a reasonable hourly rate. This calculation provides

an objective basis on which to make an initial esti-

nate of the value of a lawyer’s services.

Hensley, 461 U.S. at 433 (emphasis added). This calcu-

lation, however, is only a “starting point” and “does not

end the inquiry. There remain other considerations that

may lead the district court to adjust the fee upward or

downward... .” Jd. at 434; see also Blanchard v. Ber-

geron, 489 U.S. 87, 94 (1989); Blum, 465 U.S. at 888

(““{aldjustments to that [lodestar] fee then may be made

as necessary in the particular case’).

Among these “other considerations,” it appears quite

certain that Congress intended that the courts would take

into account whether a lawyer had taken a case on a

fixed- or contingent-fee basis. This can be inferred from

Congress’ approving citation of a 1974 Fifth Circuit deci-

sion, Johnson v. Georgia Highway Express, Inc., 488 F.2d

714 (5th Cir. 1974), which included the contingent nature

of payment among 12 factors that trial courts should con-

sider in calculating fee awards. See S. Rep. No. 1011,

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

94th Cong., 2d Sess. 8-9 (1976) ; see also Blum, 465, U.S.

at 902-03 (Brennan, J., concurring) (Congress’ approval

of Johnson and related cases makes it “clear .. . that

Congress authorized district courts to award upward ad-

justments to compensate for the contingent nature of

success”), “Johnson’s ‘list of 12,’” the Supreme Court

38a

has often observed, “provides a useful catalog of the many

factors to be considered in assessing the reasonableness of

an award of attorney’s fees... .” Blanchard, 489 U.S.

at 93; see also Hensley, 461 U.S. at 429-30, 434 n.9

(looking to Fifth Cireuit’s Johnson opinion in determining

congressional intent with regard to fee awards) : Blum,

465 U.S. at 893-95 (same); id. at 902-03 (Brennan, J.,

concurring) (same).

Apart from these indications of congressional intent,

the Supreme Court also has acknowledged the propriety

of considering the uncertainty of payment in calculating

a fee award. Five Justices undoubtedly agreed in Dela-

ware Valley II that “Congress did not intend to fore-

close consideration of contingency in setting a reasonable

fee under fee-shifting provisions” such as that found in

Title VII. 483 U.S. at 731 (O’Connor, J., concurring

in part and concurring in the judgment); see also id. at

739 (Blackmun, J.. dissenting, joined by Brennan, Mar-

shall & Stevens, JJ.) (“Congress envisioned that district

courts would take the fact of contingency into account

When calculating a reasonable attorney’s fee’). Two

years later, in Blanchard, the Court held that, while a

plaintiff’s contingent-fee contract with her attorney is by

no means (lispositive of a subsequent judicial assessment

of “a reasonable-attorney’s fee” in a case, “(t]he Johnson

contingency-fee factor is... a factor.” 489 U.S. at 93

‘emphasis added).

Moreover, perhaps the one rule that has emerged more

clearly than any other from the Supreme Court’s pro-

houncements in this area is that court-ordered attorney’s

fees are to reflect prevailing market rates and practices,

See, e.g., Missouri v. Jenkins, 491 U.S. 274, 283 (1989)

(“Our cases have repeatedly stressed that attorney’s fees

awarded [by a court] ... are to be based on market

rates for the services rendered.”); Blum, 465 U.S. at

8°95 (“The statute and legislative history establish that

‘reasonable fees’... are to be calculated according to the

34a

prevailing market rates in the relevant community

...)3 Delaware Valley II, 483 U.S. at 733 (O’Connor,

J., concurring in part and concurring in the judgment) ;

id, at 754 (Blackmun, J., dissenting). In this way, court-

ordered fees will track market forces, fulfilling the con-

gressional purpose of ensuring that attorneys will be

available to prosecute Title VII cases and vindicate the

fundamental national policies embodied in that statute.

See Jenkins, 491 U.S. at 283 n.6; Blum, 465 U.S. at 903-

04 (Brennan, J., concurring); Hensley, 461 U.S. at 447

(Brennan, J., concurring in part and dissenting in part).

There should be no controversy in the observation that

attorneys in the private legal-services market ordinarily

demand somewhat greater compensation in exchange for

taking a case on a contingent-fee basis. It appears indis-

putable that “|{]]awyers operating in the marketplace can

be expected to charge a higher hourly rate when their

compensation is contingent on success than when they

will be promptly paid|] irrespective of whether they win

or lose.” Blum, 465 U.S. at 903 (Brennan, J., concur-

ring); see also Berger, Court Awarded Attorneys’ Fees:

What Is “Reasonable’?, 126 U. Pa. L. REV. 281, 324-25

(1977) (“The experience of the marketplace indicates

that lawyers generally will not provide legal representa-

tion on a contingent basis unless they receive a premium

for taking that risk.”). Thus, commentators and courts

have long and widely agreed that, in assessing the fair

market value of legal services, both inside and outside the

court-ordered fee context, some enhancement is required

to compensate for the attorney’s assumption of risk in a

contingent-fee case. See, e.g., Copeland v. Marshall, 641

F.2d 880, 892-93 (D.C. Cir. 1980) (en bane); id. at 927

(Wilkey, J., aissenting) ; Evans v. Sheraton Park Hotel,

503 F.2d 177, 188 (D.C. Cir. 1974) (adopting Johnson’s

“list of 12”); 2 M. DERFNER & A. WOLF, COURT ORDERED

ATTORNEY FEES € 15.01[2|[c], at 15-16 (rev. ed. 1990)

(“Most courts realize that where payment of a fee is con-

tingent on success an attorney should receive a larger

35a

overall fee than where payment is guaranteed regardless

of outcome... .”) (footnote omitted) ; id., | 16.04/4]: S.

SPEISER, ATTORNEYS’ FEES $ 8:10, at 319 (1973) (“The

fact that an attorney’s employment is undertaken on a

contingent basis is a proper factor to be considered in

assessing a reasonable compensation for his services, the

courts generaily taking the view that a larger fee will be

authorized where its payment depends upon the attorney’s

success than where he is to be paid whether or not his

efforts are successful.” ) (footnote omitted) : Leubsdorf,

The Contingency Factor in Attorney Fee Awards, 90

YALE L.J. 473, 501 (1981) ; Berger, supra, at 324-26.

Furthermore, it is absolutely clear that the lodestar is

not the sole measure of a reasonable attorney’s fee. It is

true that the Supreme Court has said that “many of the

Johnson factors,” such as “ ‘novelty [and] complexity of

the issues,’ ‘the special skill and experience of counsel,’

the ‘quality of representation,’ and the ‘results obtained’

from the litigation[,] are presumably fully reflected in

the lodestar amount, and thus cannot serve as_ inde-

pendent bases for increasing the basic fee award,” see

Delaware Valley 1, 478 U.S. at 565 (quoting Blum, 465

U.S. at 898-900); but, in making this observation, the

Court has excluded the consideration of “enhancement of

the lodestar|| based on the likelihood of success|] or

. the risk of loss” from any presumption that the lode-

star represents a reasonable fee, id. at 568.2 indeed, in

Delaware Valley I, the Court reserved until Delaware

Valley II the question of when and to what extent con-

tingency enhancements might be awarded. As indicated

earlier, a majority of the Court in Delawaye Valley Il

“The Court reiterated the presumptive reasonableness of the

lodestar fee in Blanchard, but did so there only to rebut the sug-

gestion that a fee arrangement set in a contingent-fee contract

should govern as a strict ceiling on a court-ordered fee in the same

case. See 489 U.S. at 95.

36a

agreed that contingency enhancements may be awarded

as a part of a reasonable attorney’s fee. In other words,

a majority of the Court in Delaware Valley II declined to

apply any “presumption” that the lodestar normally rep-

resents a reasonable fee so as to defeat claims of enhance-

ment based on the likelihood-of-success risk-of-loss factor.*

We recognize that the contingency factor could be

accounted for within the initial lodestar calculation. A

court could simply enhance the “reasonable” hourly rate

used in calculating the lodestar and forgo post-lodestar

adjustments. See, e.g., Copeland, 641 F.2d at 893 (“To

the extent ... that an hourly rate underlying the ‘lode-

star’ fee itself comprehends an allowance for the contin-

gent nature of the availability of fees in Title VII litiga-

tion... , no further adjustment duplicating that allowance

will be made.”) ; Berger, supra, at 325-26. This approach

is problematic because there really is “no such thing as a

market hourly rate in contingent litigation.” 2 M. DrrRF-

NER & A. WOLF, supra, § 16.04[4] [a], at 16-100.15. Ac-

cordingly, most courts choose to employ “real” hourly

rates in the lodestar caleulation—z.e., “the normal hourly

charge in the community for noncontingent, contempo-

raneous payment in litigation of similar complexity and

difficulty, by a lawyer with similar experience and repu-

—and only later adjust the product upward to account

“The majority’s extended discussion of whether the five votes

that adopt this position constitute a binding majority of the Court

seems to us overly pedantic, and mostly irrelevant. It is axiomatic

that lower court judges routinely consider and* weigh the diverse

statements in Supreme Court opinions, especially those propositions

garnering a majority, to seek guidance in the disposition of subse-

quent cases. Indeed, that is precisely what our sister circuits have

done in construing Delaware Valley 11.

4The Supreme Court acknowledged as much in Blanchard when

it stated that the lodestar figure is to be derived by “applying

prevailing billing rates to the hours reasonably expended on suc-

cessful claims.”” 489 U.S. at 94 (emphasis added).

37a

for the contingency factor. See id., 1 16.04[4] [a], at 16-

100.15-.16. The difference in the mathematical formulas

makes no difference in the result, of course, so long as

the court is careful to avoid “double-counting” by blend-

ing the two approaches. See Copeland, 641 F.2d at 893.

The point here is, however, that under the approach fol-

lowed by most courts—and followed by the District Court

in this case—the contingency factor is not subsumed

within the initial lodestar calculation; consequently, if

the lodestar is not itself adjusted upward, the lawyer’s

economic risk will go uncompensated.

The majority rejects the prevailing view that enhance-

ments are available because it can find no governing prin-

ciple in Delaware Valley 11. With no precedent or logic

to support its opinion, the majority simply decides that

contingency enhancements never should be permitted.

This rule is created completely out of new cloth. Neither

the plurality, concurring, nor dissenting opinion in Dela-

ware Valley II holds that contingency enhancements are

never available. In a sweep of reasoning that defies com-

prehension, the majority attempts to dismiss Part V of

Justice White’s plurality opinion because Justice O’Con«

nor declined to join this portion of the plurality. But, of

course, as is clear from the Court’s opinion, Part V re-

mains as written and means what it says: see, €.9., 483

U.S. at 728 (“enhancement for the risk of nonpayment

should be reserved for exceptional cases where the need

and justification . .. are readily apparent and are sup-

ported by evidence in the record and specific findings by

the courts”); id. at 731 (“[A] fee award should be in-

formed by the Statutory purpose of making it possible

for poor clients with good claims to secure competent help.

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.”). Whatever substantive criteria

38a

these statements may stand for, they certainly do not re-

flect a per se rule against contingency enhancements. In

any event, the one thing that is absolutely clear from

Delaware Valley IJ is that the Supreme Court declined to

reject the possibility of contingency enhancements.

Furthermore, the majority in this case, having decided

that Delaware Valley II does not control interpretation

of the fees statute, does absolutely no work to interpret

the statute. Rather, the majority relies on the utterly

irrelevant proposition that “the question of attorney’s

fees must not turn into major litigation itself,” see Dela-

ware Valley II, 483 U.S. at 722, to reach a per se rule

barring all contingency enhancements. Of course, the ma-

jority’s fear could be avoided equally well by routinely

granting contingency enhancements. Even a test which

looks to whether, in the relevant market, contingency fees

are needed to induce attorneys to represent plaintiffs in

these actions, will not create much hardship after district

and circuit courts establish precedent regarding the major

markets. Given that the contingency enhancement ques-

tion merely asks the court to decide the prevailing market

for legal services, it is no more onerous than any other

fee inquiry.

The majority’s result also flies in the face of the deci-

sions from every circuit that has considered the issue since

Delaware Valley II. In creating a split in the circuits, the

majority now causes the D.C. Circuit to stand oddly alone

on this question. Of the thirteen circuits applying Dela-

ware Valley II, none—save the D.C. Cireuit—has com-

pletely ruled out contingency enhancements. See. e.g.,

-Jacobs v. Mancuso, 825 F.2d 559, 561 (1st Cir. 1987)

(disallowing contingency, not because of per se rule, but

because “liability here was so plain... that, as a practi-

cal matter, the risk of not recovering a fee was all but

eliminated”); Friends of the Earth v. Eastman Kodak

Co., 834 F.2d 295, 298 (2d Cir. 1987) (fee enhancement

available when “| w|ithout the possibility of a fee enhance-

39a

ment . . . competent counsel might refuse to represent

. clients thereby denying them effective access to the

courts”) (quoting Lewis v. Coughlin, 801 F.2d 570, 576

(2d Cir. 1986)); Kelly v. Matlack, 903 F.2d 978 (3d

Cir. 1990) (“in order to qualify for an enhancement, a

plaintiff must establish that without adjustment it would

have faced substantial difficulties in finding counsel in

the... relevant market”) (citations omitted); Craiq v.

Dep’t of Health & Human Servs.. 864 F.2d 324, 327 (4th

Cir. 1989) (dicta) (reading Delaware Valley II to per-

mit fees in “exceptional circumstances”) ; Albert v. Klev-

enhagen, 896 F.2d 927, 936 (5th Cir.) (enhancement

available when district court “make[s] the findings re-

quired by Justice O’Connor’s concurrence in Delaware

Valley II”), reh’g granted in part, 903 F.2d 352 (5th

Cir. 1990) ; Perotti v. Seiter, 985 F.2d 761, 765 (6th Cir.

1991) (“This court has upheld multipliers for the risk of

non-compensation in contingent-fee cases subsequent to

Delaware Valley.” ) (citing Fite v. First Tennessee Pro-

duction Credit Ass’n, 861 F.2d 884 (6th Cir. 1988) ):

Soto v. Adams Elevator Equip. Co., 941 F.2d 543, 553

(7th Cir. 1991) (following Justice O’Connor’s test as

the Delaware Valley I] “holding”) ; Morris v. Americcn

Nat’l Can Corp., 941 F.2d 710. 715 (8th Cir. 1991)

(“Justice O’Connor’s opinion in Delaware Valley II is the

current legal standard for awarding contingency enhance-

ments. . . . We are persuaded that the district court

abused its discretion in concluding that [plaintiff] failed

to establish that she would have faced substantial diffi-

culties in retaining counsel absent risk enhancement.”’) :

Bouman v. Block, 940 F.2d 1211, 1235-36 (9th Cir. 1991)

(upholding fee on the basis of district court’s findings

matching Justice O’Connor’s test). petition for cert. filed,

60 U.S.L.W. 3344 (Nov. 5, 1991): Smith v. Freeman, 921

F.2d 1120, 1123 (10th Cir. 1990) (quoting the Delaware

Valley II plurality that “enhancement for the risk of non-

payment should be reserved for exceptional cases where

the need and justification for such enhancement are readily

40a

apparent and are supported by evidence in the record

and specific findings by the courts”) ; Martin v. University

of South Alabama, 911 F.2d 604, 610-12 (11th Cir. 1990)

(following Justice O’Connor’s test) ; Crumbaker v. Merit

Systems Protection Board, 827 F.2d 761, 761 (Fed. Cir.

1987) (“the Board on remand shall consider the degree to

which the relevant market compensates for contingency

and whether any enhancement is necessary to bring the

fee within a range that would attract competent coun-

el”).

Additionally, despite the majority’s assertion that the

tests developed in many circuits are “difficult, if not

impossible, to meet,” even courts of those circuits have

continued to award contingency enhancements in some

circumstances. See, e.g., Morris v. American Nat’l Can

Corp., 941 F.2d 710, 716 n.2 (8th Cir. 1991); Curry v.

Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d

842s 849-50 (11th Cir. 1990); Shirley v. Chrysler First,

Inc., 763 F. Supp. 856, 860 (N.D. Miss. 1991); Vargas v.

Calabrese, 750 F. Supp. 677 (D.N.J. 1990); Bauman v.

Jacobs Suchard, Inc., No. 89 C 5452, 1991 U.S. Dist.

LEXIS 8847 (N.D. Ill. 1991).

Thus, setting aside the more contentious question of

what degree of enhancement is appropriate, there ought

to be no dispute that some upward adjustment of the

lodestar fee is permissible where the prevailing attorney

assumed the greater risk inherent in contingent-fee cases.

There is simply no justification—in the staute, in the

case law or in common sense—for the -suggestion that

contingent-fee lawyers may not be fully compensated for

their services.

II.

With regard to the particular facts of this case, there

is no basis under the abuse-of-discretion standard of

review to overturn the District Court’s decision to allow

a 50% enhancement of the lodestar fee submitted by Ms.

King’s counsel. Although the Supreme Court’s guidance

4la

concerning the appropriate method for calculating a con-

tingency adjustment has been regrettably uncertain, the

trial court’s decision in this case is consistent with what

standards can be gleaned from recent cases.

The clearest instruction found in the Supreme Court’s

cases is that fee awards must be tied to evidence of the

fee practices prevailing in the local legal market. See,

é.g., Jenkins, 491 U.S. at 283, 285; Blum, 465 U.S. at 894-

95; Delaware Valley II, 483 U.S. at 733 (O’Connor, J..

concurring in part and concurring in the judgment) : id.

at 754 (Blackmun, J.. dissenting). That was done in this

case. In reaching its determination, the District Court

expressly relied upon attorney affidavits filed by the plain-

tiff and an earlier decision in the Same district ‘in which

another trial judge had found that “attorneys in the

Washington|!,] D.C.!.] community will only accept a fully

contingent case if their recovery will be at least double

their normal hourly billing rate and will only accept a

partially contingent case if their recovery is enhanced by

at least 50 percent.” See Palmer v. Shultz, 679 F. Supp.

68, 74 (D.D.C. 1988). quoted in King v. Palmer, Civ.

Action No. 83-1980, mem. op. at 4 (D.D.C. Sept. 20,

1988).

Another way to assess the reasonableness of the fee

amount awarded by the District Court is pursuant to the

two-prong test set forth in Justice O’Connor’s concurring

opinion in Delaware Valley II. Although it is unclear

what precedential force that opinion should be given, cf.

Marks v. United States. 430 U.S. 188, 193 (1977) it is

nonetheless a source of some guidance and it is further

indication that the judgment of the District Court should

be affirmed in this case. Under the first prong of Justice

O’Connor’s test, lower courts would be required to “treat

a determination of how a particular market compensates

for contingency as controlling future cases involving the

Same market.” 483 U.S. at 733 (O’Connor, J.. concurring

in part and concurring in the judgment). Under the

second prong, “the fee applicant bears the burden of prov-

42a

ing the degree to which the relevant market compensates

for contingency.” Jd. Under this second prong, “no en-

hancement for risk is appropriate unless the applicant

can establish that without an adjustment for risk the

prevailing party ‘would have faced substantia] difficulties

in finding counsel in the local or other relevant market.’ ”

Id. (quoting from plurality opinion, 483 U.S. at 731).

Under the first prong of Justice O’Connor’s test. the

District- Court here reasonably concluded that “the rele-

vant market” does in fact compensate lawyers for assum-

ing the risk of contingent payment. In addition to the

evidence cited in Palmer v. Shultz, which went directly to

the degree to which the Washington, D.C., legal market

customarily compensates for contingency, the court had

before it several dozen affidavits from local attorneys

swearing either that they generally demand an enhance-

ment over normal hourly rates in order to accept con-

tingent-fee cases or that they refuse such cases altogether

because of the risk involved.

Under the second prong of Justice U’Connor’s test, Ms.

King was required to show that she “would have faced

substantial difficulties in finding counsel” had contingency

enhancements not been customarily available in the Wash-

ington, D.C., legal market. This proposition, of course,

turning as it does on a counterfactual supposition, is

difficult to prove. Nonetheless, Ms. King produced an

affidavit from her attorney stating that he would not have

taken her case without the prospect of a fee enhancement.

See Declaration of Robert M. Adler at 2 (Sept. 11, 1987),

reprinted in Joint Appendix (“J.A.”) 74, 75. In addi-

tion, she produced further affidavits from several Wash-

ington, D.C., Title VII plaintiffs’ attorneys corroborating

that Ms. King likely would have faced substantial diffi-

culties securing counsel without the promise of a con-

tingency premium.* These attestations were reinforced

5In one affidavit, attorney George Chuzi stated:

During 1983, I was personally familiar with most of the

attorneys regularly bringing Title VII suits in the District of

43a

by others documenting the general unwillingness of local

attorneys to accept such cases absent some likelihood of

receiving an enhancement for risk. On this record, we

believe that Ms. King carred her burden under both

prongs of Justice O’Connor’s test.

Because Title VII and the governing case law clearly

permit trial courts to enhance attorney’s fees to compen-

sate for the risk of contingent payment, and because the

facts of the instant case satisfy whatever standards ean

be gleaned from recent Supreme Court cases, it cannot be

found that the District Court abused its discretion in

Shaping the fee award in this case. As we noted at the

outset, the standard of review in this case is abuse of dis-

cretion. The majority, however, has simply ignored the

constraints of appellate review in second-guessing the

findings of the trial judge. Indeed, the majority’s ap-

proach in this case borders on de novo review, in flat

defiance of the Supreme Court’s instruction that “i]t

is central to the awarding of attorney’s fees ... that the

Celumbia on behalf of plaintiffs. Had Mr. Adler not agreed

to represent Mrs. King in this case, I am unaware of any other

Title VIT attorney who would have agreed in 1983 to represent

her on a contingency fee basis (even had she agreed to pay up

to »0,000 in legal fees). The only way in which I believe that a

competent Title VII attorney would have been convinced to seri-

ously consider this representation was if there was a reasonable

possibility of receiving an enhanced fee for risk (over and above

hourly rates) if Mrs. King prevailed.

Supplemental Declaration of George M. Chuzi at 2 (Dee, 21. 1987),

reprinted in J.A. 130, 131: see also Declaration of David R. Cashdan

at 4 <Apr. 25, 1986) (“I believe that it is highly unlikely that I

would have agreed to act as sole counsel in this case.”), reprinted in

J.A. 112a, 112d; Declaration of Robert B. Fitzpatrick at 2 (Apr. 24,

1986) (“I believe that the chances of prevailing in this case .. .

were so remote that my firm would not have accepted representation

of Mrs. King.”), reprinted in J.A. 173a, 173b; Declaration of Barry

H. Gottfried at 2 (July 31, 1987) (“Had the plaintiff sought to

retain me to represent her by filing a suit fer the claims involved

herein I do not believe that I would have accepted representation.” ),

reprinted in J.A. 176, 177.

44a

district court judge, in his or her good judgment, make

the assessment of what is a reasonable fee under the cir-

cumstances of the case.” Blanchard, 489 U.S. at 96.

ITI.

The fundamental problem with this case, as with other

fee cases, is that the Supreme Court has yet to give us

coherent guidance about how to determine the reasonable-

ness of fee awards under Title VII and similar fee-

shifting statutes. In this, we share the majority’s frustra-

tion, if not its solution. In particular, we do not yet

know under what circumstances to award a contingency

enhancement, nor do we know whether the degree of en-

hancement allowed by the courts merely reflects prevail-

ing market rates‘or actually creates the relevant market

forces by defining the extent to which economic risk will

be compensated.® In our view, the proper answers to

these questions ultimately must come from Congress.

Logically, of course, the size of a contingency enhance-

ment should be determined in each case according to the

degree of risk actually incurred by the prevailing attor-

ney. It is impossible to determine with any confidence

what a “reasonable fee’ would be in any particular con-

tingency case without first assessing just how much risk

the plaintiff's lawyer actually assumed.’? See, e.g., S.

® For example, as Judge Williams has pointed out, if courts gen-

erally allow a contingency enhancement of 50%, lawyers will have

an economic incentive to bring only those cases in which the odds

of succeeding on the merits are at least two-to-one; if the court-

ordered enhancement figure rises to 100%, lawyers will presum-

ably bring any case in which the chances of winning are at least

50%. See King v. Palmer, 906 F.2d 762, 770 (D.C. Cir.) (Williams,

J., concurring in panel decision), vacated-& reh’g en banc granted,

906 F.2d 772 (D.C. Cir. 1990).

7In this respect, a risk enhancement arguably should not encom-

pass hours of labor for which compensation was secure. In the

instant case, the argument could well be made that the risk of non-

payment incurred by Ms. King’s counsel virtually vanished after

45a

SPEISER, supra, $ 8:10, at 320; Berger, supra, at 326.

In this regard, the Court’s apparent disapproval of case-

by-case risk assessment. see Delaware Valley II, 483 U.S.

at 731 ‘O’Connor, J., concurring in part and concurring

in the judgment); id. at 745-46 (Blackmun, J., dissent-

ing’), serves only to frustrate the lower courts as they

struggle to shape fee awards that, consistent with legis-

lative purpose, will be “adequate to attract competent

counsel” while stopping short of “produe[ing] windfalls”

for plaintiffs’ lawyers, see Blum, 465 U.S. at 897 (quot-

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

Although we share Justice O’Connor’s concern that

risk enhancements not be calculated or awarded in “an

arbitrary or unjust” manner, Delawaye Valley IJ, 483

U.S. at 732 (O’Connor, J., concurring in part and con-

curring in the judgment), our experience suggests that

the two-prong test enunciated in the concurring opinion

in Delaware Valle y 11 cannot be applied without difficulty.

The panel opinions in this case and in McKenzie v. Ken-

this court decided the merits in Ms. King’s favor in 1985. In King

v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), this court reversed the

District Court’s entry of judgment for the defendants and remanded

the matter with instructions “to enter judgment for Ms. King and to

determine an appropriate remedy.” Jd. at 882 (footnote omitted).

“At a minimum,” we noted, “it appears that the appropriate remedy

in this case should include the promotion of Ms. King .. . , her receipt

of back pay, and a full consideration of any further relief.” Jd. at

882 n.7. Once Ms. King prevailed on the merits of her main Claim,

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