# Petition for A Writ of Certiorari — King v. Palmer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 918

## Text

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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)

ii
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
A.

B. The Underlying Gender Discrimination Case

D. The Local Market For Legal Services

E.
F.
G.

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

18

iv

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

Vv

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 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

_

22

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)

23

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

24

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).

25

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

26

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).

27

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

28

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

29

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.

30

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

|

ii
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)

la
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
Ve

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.

ee

2a

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

3a

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 ]

4a

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.
I.

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

5a

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

6a

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

7a

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.

8a

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

9a

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.

A.

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

r

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).

B.

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.

C.

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.

a

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-
le
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.

ee

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.

I.

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

a

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-
tation,” id., © 16.03[1]fa], at 16-47 (footnotes omitted}
—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

i

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

Oe

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 — 8,787.58

Amount Due

S
ye

2,692.1

8

ll4a

Attachment A

PLAINTIFF’S SUPPLEMENTAL APPLICATION

ATTORNEYS’ FEES

March 1, 1986 through November 18, 1986

Hours Rate Total
Partner 191.75 $135 $25,886.25
Associate 106.25 100 $10,625.00
Paralegal 5.00 35 $ 175.00
TOTAL $36,686.25
Total Lodestar $ 36,686.25
Interim Payments $— 7,983.00
Amount Due $ 28,703.25
EXPENSES
Total Expenses * $ 4,796.61
Interim Payments $—1,138.50
Amount Due $ 3,658.11

* Including all amounts paid to Joel P. Bennett, Esq.

llda
Attachment B.

Law Offices
ROBERT M. ADLER
The Flour Mill, Suite 103
1000 Potomac Street, N.W.
Washington, D.C. 20007
Telephone (202) 298-8323

October 12, 1983

Metcalfe C. King, Esquire

Office of the Corporation Counsel
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Re: King v. James F. Palmer,
Director, Department of
Corrections
Dear Mr. King:

We have just received a copy of the Opinion of the
United States District Court for the District of Delaware
in Toscano v. Nimmo (C.A. No. 82-315-WKS), dated
August 31, 1983.

We are enclosing a copy of this Opinion for your in-
formation. Therein, on facts similar to the allegations
in the King matter, the court followed the EEOC regu-
lations upon which we have relied.

i believe this should be helpful in this matter in that
you previously have asserted, in your summary judg-
ment papers, that our basic legal premise lacked validity.

In view of this most recent decision, the affidavits we
recently filed in this case in opposition to your summary
judgment motion, and the Court’s almost immediate
denial of your motion, I would respectfully suggest that
the District of Columbia may wish to reconsider its’
continued defense of this case. While this may sound like

1l6a

a brash proposal, I know based upon personal experi-
ence in Bundy v. Jackson that your office has a penchant
for locking itself into a defense of individuals who in
fact are later shown not to be credible and that the basic
relief sought by the plaintiff is thereafter awarded and
substantial attorneys’ fees end up being paid by the
District of Columbia taxpayers (of which I am one).
I would, therefore, urge that, as public servants, your
office conduct an independent review of your posture in
this case.
Sincerely,

/3/ Robert M. Adler
ROBERT M. ADLER

RMA/es
Enclosure
ec: Mrs. Mabel King

117a
APPENDIX H

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-1890
MABEL A. KING,
Plaintiff,

JAMES F. PALMER, et a..
Defendants.

ORDER

For the reasons stated in the accompanying memoran-

dum, it is this 30th day of April, 1987, hereby

ORDERED and ADJUDGED: that defendants shall
pay to plaintiff the sum of $118,860.78 in fees and ex-
penses (which represents a total award of $216,431.25
in fees and $16,276.37 in expenses before deduction of
all sums previously paid in interim awards); and it is
further

ORDERED: that the Court will retain jurisdiction
over this matter in order to authorize an additional
award based on the risk of not prevailing should the
Supreme Court indicate that such an award is per-
missible.

s/ Louis F. Oberdorfer
United States District Judge

118a
APPENDIX I

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-1980

MABEL A. KING,
Plaintiff,
v.

JAMES F. PALMER, ef al.,
Defendants.

ORDER

On February 12, 1987, plaintiff moved for a second
supplemental award of interim attorneys’ fee. Plaintiff
notes statements in Defendants’ Memorandum of Points
and Authorities in Opposition to Plaintiff's Supplemental
Application filed November 10, 1986, and attachments
to that Opposition agreeing that plaintiff is entitled to
an additional $7,938.00 in legal fees and $1,138.50 in
expenses. Defendants have nevertheless opposed the
second supplemental petition. The defendants’ opposition
is not persuasive. Such a further interim fee payment is
authorized by Parker v. Lewis, 670 F.2d 249 (D.C. Cir.
1982). Accordingly, it is this 27th day of February,
1987, hereby

ORDERED and ADJUDGED: that defendants shall
pay to plaintiff a total of $9,076.50.

/s/ Louis F. Oberdorfer
United States District Judge

119a
APPENDIX J

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-1980-LFO

MABEL A. KING,
Plaintiff,

JAMES F. PALMER, ef al.,
Defendants.

ORDER
| Filed Nov. 30, 1988]

Upon consideration of plaintiff's Motion for Recon-
sideration of or in the Alternative to Alter or Amend
this Court’s Memorandum and Order Dated September
20, 1988, defendants’ Motion to Alter or Amend the Judg-
ment Dated September 20, 1988, the opposition thereto,
and the entire record in this matter, it is this 29th dav
of November, 1988 hereby

ORDERED: that plaintiff's Motion for Reconsidera-
tion of or in the Alternative to Alter or Amend this
Court’s Memorandum and Order Dated September 20,
1988, and defendants’ Motion to Alter or Amend the
Judgment Dated September 20, 1988 shall be, and are
hereby, DENIED.

s/ Louis F. Oberdorfer
United States District Judge

120a
APPENDIX K

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-1980

MABEL A. KING,
Plaintiff,
Ve

JAMES F. PALMER, et al.,
Defendants.

MEMORANDUM
{Filed Jun. 11, 1986]

Plaintiff, a nurse previously working at the District
of Columbia Jail, in this Title VII action sues various
officials of the District of Columbia Department of Cor-
rections. She seeks injunctive relief and damages on
the theory that she was denied a promotion which was
given instead to another nurse who was sexually involved
with the doctor who promoted her. By Memorandum of
September 10, 1984, the District Court (Gesell, J.), en-
tered judgment for defendants. See King v. Palmer, 598
F.Supp. 65 (D.D.C. 1984). The matter now is before
this Court on remand from the Court of Appeals. See
King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985). The
Court of Appeals stated:

we reverse the District Court’s holding regarding
the promotion and remand the matter to the District
Court to enter judgment for Ms. King and to de-
termine an appropriate remedy.

12la

778 F.2d at 882. The Court of Appeals also stated that

Ms. King also alleged in her complaint and main-
tained during her trial that she was the victim of
a discriminatory work environment and of reprisals
for having filed a complaint with the EEOC. The
District Court has yet to enter findings of fact or
conclusions of law on these allegations. We there-
fore remand these matters to the District Court for
further consideration and entry of appropriate find-
ings, conclusions and judgment.

Id. at 883. With regard to remedy the Court stated:

At a minimum it appears that the appropriate
remedy in this case should include the promotion of
Ms. King to the position in question, her receipt of
backpay, and a full consideration of any further
relief.

Id. at 882 n.7.

Presently before the Court are plaintiff’s motion for
entry of judgment and for other relief, and her applica-
tion for an interim award of attorneys’ fees. A hearing
was conducted on these motions on June 6, 1986.

I.

Plaintiff contends that, in light of the Court of Appeals
mandate, “this Court should grant Mrs. King a retro-
active promotion to the position of Supervisory Forensic/
Clinical Nurse, DS-12, effective September 20, 1981, the
date the promotion was granted to Nurse Grant.”
Memorandum of Points and Authorities in Support of
Motion for Entry of Judgment and for Other Relief
(“Plaintiff's Memorandum”) at 2 (filed April 4, 1986).
Plaintiff also contends that she is entitled to backpay
reflecting the promotion that should have been granted,
together with prejudgment interest thereon.

122a

Plaintiff’s contentions are well taken. Although defend-
ants now suggest that a new trial is necessary in order
to resolve whether plaintiff (rather than some other ap-
plicant) would have in fact received the promotion in
the absence of the unlawful, discriminatory conduct, see
Days v. Mathews, 530 F.2d 1083, 1085 (D.C. Cir. 1976),
defendants do not materially dispute that they did not
press a Mathews defense at the original trial of this
action. Indeed, it is not materially disputed that defend-
ants first attempted to press the Mathews defense in their
petition for rehearing en banc after the Court of Appeals
decision of December 13, 1985. See Petition of Appellees
for Rehearing [or], in the Alternative, for Rehearing
En Banc at 4-5 (filed January 15, 1986, in Court of
Appeals No. 84-5750). Even with the benefit of defend-
ants’ Mathews argument, the Court of Appeals denied
the petition for rehearing, stating in a per curiam order
of February 18, 1986, that:

The suggestion for rehearing en banc of appellees
has been circulated to the full Court and no member
has requested the taking of a vote thereon.

See 778 F.2d at 883. In light of the foregoing, the remand
requires entry of judgment for plaintiff and the fashion-
ing of a remedy that “at a minimum [, it appears,] ...
should include the promotion of Ms. King to the position
in question, her receipt of backpay, and a full consider-
ation of any further relief.” 778 F.2d at 882 n.7.

As discussed at the June 6 hearing, however, it appears
that the position plaintiff originally sought no longer
exists. Accordingly, the accompanying order will enter
judgment for plaintiff and require plaintiff to submit an
appropriate proposed order which will require the pro-
motion of plaintiff to a DS-12 position and the award of
backpay.

Plaintiff also claims, and is entitled to, prejudgment in-
terest on her backpay award; defendants have not con-

123a

tested a prejudgment interest award should plaintiff
receive retroactive promotion and backpay. See Defend-
ants’ Memorandum of Points and Authorities in Opposi-
tion to Plaintiff’s Motion for Entry of Judgment and for
Other Relief at 6 (filed April 18, 1986). In any event,
42 U.S.C. § 2000e-5(g) authorizes a court to grant a pre-
vailing plaintiff in a privat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0244%3A1. Public record. Not legal advice.