Chisholm v. United States Postal Service Brief for Appellee

    No. 91-810

In The

Supreme Court of the United States
October Term, 1991

-----------------♦-----------------
CITY OF BURLINGTON,

v . Petitioner,

ERNEST DAGUE, SR., ERNEST DAGUE, JR., 
BETTY DAGUE, AND ROSE A. BESSETTE,

♦
Respondents.

On Writ Of Certiorari To The United States 
Court Of Appeals For The Second Circuit 

--------------- ♦---------------
BRIEF AMICUS CURIAE OF 

ALABAMA EMPLOYMENT LAWYERS ASSOCIATION; 
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; 
JOAQUIN G. AVILA; COOPER, MITCH, CRAWFORD, 

KUYKENDALL & WHATLEY; DISABILITY RIGHTS 
EDUCATION AND DEFENSE FUND, INC.; JAY-ALLEN 

EISEN LAW CORPORATION; ERICKSON, BEASLEY, 
HEWITT & WILSON; LAW OFFICE OF ALAN B. 

EXELROD; LAW OFFICES OF RICHARD B. FIELDS; 
FERGUSON, STEIN, WATT, WALLAS, ADKINS & 

GRESHAM, P.A.; JULIAN, OLSON & LASKER, S.C.; 
LEGAL SERVICES FOR PRISONERS WITH 

CHILDREN; LEGAL SERVICES OF NORTHERN 
CALIFORNIA; MEXICAN AMERICAN LEGAL 

DEFENSE AND EDUCATIONAL FUND; NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.; 

(Amici Continued on Inside Cover) 
---------------♦---------------

Rosen, Bien & A saro
Sanford Jay Rosen
Counsel of Record
A ndrea G. A saro
A dela B. Karliner
Stephen M. Liacouras
155 M ontgomery Street, 8th Floor
San Francisco, California 94104
Telephone: (415) 433-6830

(Additional Counsel Inside Cover)



NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; 
PATTERSON, HARKAVY, LAWRENCE, VAN NOPPEN 

& OKUN; RICHARD M. PEARL; PRISON LAW 
OFFICE; PLANNED PARENTHOOD AFFILIATES OF 

CALIFORNIA; PUERTO RICAN LEGAL DEFENSE 
AND EDUCATION FUND, INC.; PUBLIC ADVOCATES, 

INC.; AND ROSEN, BIEN & ASARO
IN SUPPORT OF RESPONDENTS 

--------------- ♦---------------
Steven R. Shapiro 
John  A. P owell
American Civil Liberties Union Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800
Leon Friedman
Co-counsel for the American Civil Liberties 

Union Foundation 
148 East 78th Street 
New York, NY 10021
(212) 737-0400
Richard Larson
Mexican American Legal Defense 

and Educational Fund 
634 South Spring Street, 11th Floor 
Los Angeles, CA 90014
(213) 629-2512
Julius L. C hambers 
C harles Stephen Ralston
NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900
T erisa E. C haw
National Employment Lawyers Association
535 Pacific Avenue
San Francisco, CA 94133
(415) 397-6335



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TABLE OF CONTENTS

TABLE OF CONTENTS . ................................................. i

TABLE OF AUTHORITIES .........................................  ii

INTEREST OF AMICI C U R IA E ...................................  1

SUMMARY OF A RG U M EN T...................................... 1

ARGUMENT ...................................................................  3

I. In Enacting Fee-shifting Statutes, Congress has
Mandated that the Amount of Attorney’s Fees 
Awarded to Prevailing Plaintiffs be Determined in 
Accordance with Relevant Private Markets for 
Legal S e rv ic e s .......................................................

II. Application of Market Principles and Practices
Mandates that Prevailing Parties in Actions 
Brought Under Fee-shifting Statutes be Awarded 
Contingent Risk Enhancers ................................

III. Justice O’Connor’s Approach in Delaware Valley
II is a Fair and Workable Way to Determine 
When Risk Enhancement is Necessary to Assure 
that the Prevailing Plaintiff is Awarded a 
Reasonable Attorney’s Fee in a Fee-Shifting 
C a s e .......................... .. ...................... ....................

CONCLUSION ............................... ............................

APPENDIX



TABLE OF AUTHORITIES

Cases Page

Arens on v. Board o f  Trade,
372 F.Supp. 1349 (N.D. 111. 1974) . . . . . . . . .  14

Bemardi v. Yeutter,
951 F.2d 971 (9th Cir. 1 9 9 1 ) ................. .. ........... 20

Blanchard v. Bergeron,
489 U.S. 87 (1 9 8 9 ) .................................................  6

Blank v. Talley Indus.,
390 F.Supp. 1 (S.D.N.Y. 1 9 7 5 ) ..........................  13

Blum v. Stenson,
465 U.S. 886 (1984) ...................................... 4, 5, 6

Bouman v. Block,
940 F.2d 1211 (9th Cir. 1 9 9 1 ) ............................. 20

Brandon v. Holt,
469 U.S. 464 (1985) ..............................................  5

In re Cenco, Inc. Sec. Litig.,
519 F.Supp. 322 (N.D. 111. 1981) ....................... 14

Chemer v. Transitron Elec. Corp.,
221 F.Supp. 55 (D.Mass. 1963), modified on 
other grounds, 326 F.2d 492 (1st Cir.
1964) ....................................................... ..  ...............  14

City o f  Detroit v. Grinnell Corp.,
495 F.2d 448 (2nd Cir. 1974) ............................. .1 3



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City o f Riverside v. Rivera,
477 U.S. 561 (1986) ..............................................  6

Conklin v. Lovely,
834 F.2d 543 (6th Cir. 1 9 8 7 ) ................................  18

In re Coordinated Pretrial Proceedings,
410 F.Supp. 680 (D. Minn. 1 9 7 5 ) .......................  13

County o f  Suffolk v. L1LCO,
710 F.Supp. 1477 (E.D.N.Y. 1989), afffd in 
part, rev’d  in part on other grounds,
907 F.2d 1296 (2d Cir. 1990)................................  14

Crawford Fittings Co. v. J. T. Gibbons, Inc.,
482 U.S. 437 (1987) ..............................................  6

Davis v. County o f Los Angeles,
8 EPD 1 9444 (C.D. Cal. 1 9 7 4 ) ..........................  4

D ’Emanuele v. Montgomery Ward & Co. Inc.,
904 F.2d 1379 (9th Cir. 1990) .............................  21

Dayton Board o f Education v. Brinkman,
443 U.S. 526 (1979) ..............................................  5

Department o f  Labor v. Triplett,
494 U.S. 715 (1990) ..............................................  10

Evans v. Je ff D,
475 U.S. 717 (1986) ..............................................  6

Fadhl v. City and County o f  San Francisco, 
859 F.2d 649 (9th Cir. 1 9 8 8 ) ............ 19, 20



Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561 (1984) .....................................  5

In re General Pub. Utils. Sec. Litig.,
[1983-1984 Transfer Binder] Fed. Sec. L.
Rep. (CCH) 199,566 (D. N.J. Nov. 16, 1983) . 14

Green v. Transitron Elec. Corp.,
326 F,2d 492 (1st Cir. 1 9 6 4 ) ................. ..  14

In re Gypsum Cases,
386 F.Supp. 959 (N.D. Cal. 1974), a f f  d,
565 F.2d 1123 (9th Cir. 1977) .............................  13

Hasbrouck v. Texaco, Inc.,
879 F.2d 632 (9th Cir. 1 9 8 9 ) ..........................  5, 20

Hendrickson v. Brendstad,
934 F.2d 158 (8th Cir. 1 9 9 1 ) ................................ 19

Hidle v. Geneva County Bd. ofEduc.,
681 F.Supp. 752 (M.D. Ala. 1 9 8 8 ) ....................  15

Islamic Center o f  Miss. v. Starkville,
876 F.2d 465 (5th Cir. 1 9 8 9 ) ................................  18

Jackson v. Rheem M fg.,
904 F.2d 15 (8th Cir. 1990 )................................... 19

Johnson v. Georgia Highway Express,
488 F.2d 714 (5th Cir. 1 9 7 4 ) ..........................  4, 5

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Keith v. Volpe,
86 F.R.D. 565 (C.D. Cal. 1980) 14



-V-

King v. Board o f Regents,
748 F.Supp. 686 (E.D. Wis. 1990) ....................  19

Lapina v. Williams,
232 U.S. 78 (1 9 1 4 ) .................................................  7

Lattimore v. Oman Constr. Co.,
714 F.Supp. 1178 (N.D. Ala. 1989), a ffd ,
868 F.2d 437 (11th Cir. 1 9 8 9 ) ....................  15,21

Leigh v. Eagle,
714 F.Supp. 1465 (N.D. 111. 1989).......................  19

Leroy v. City o f Houston,
831 F.2d 576 (5th Cir. 1987), cert.
denied, 486 U.S. 1008 (1988)................................ 18

Li nay Bros. Bldrs., Inc. o f  Phila. v. American 
Radiator & Standard Sanitary Corp.,

487 F.2d 161 (3rd Cir. 1 9 7 3 )................................ 13

McGuire v. Sullivan,
873 F.2d 974 (7th Cir. 1 9 8 9 ) ................................ 19

Merritt v. Mackey,
932 F.2d 1317 (9th Cir. 1991) .............................21

Missouri v. Jenkins,
491 U.S. 274 (1989) ........................................  5, 6

Morris v. American National Can Corp.,
952 F.2d 200 (8th Cir. 1 9 9 1 ) ................................19

Municipal Auth. o f Bloomsburg v. Pennsylvania,
527 F.Supp. 982 (M.D. Pa. 1 9 8 1 )....................... 14



-VI-

Oviatt v. Pearce,
92 D.A.R. 723, 728 (9th Cir. Jan. 16, 1992) . . 20

Pennsylvania v. Delaware Valley Citizens’
Council fo r  Clean Air,

478 U.S. 546 (1986) ....................... .. ...................  3

Pennsylvania v. Delaware Valley Citizens’
Council fo r  Clean Air,

483 U.S. 711 (1987) ......................................passim

Perlman v. Feldmann,
160 F.Supp 310 (D. Conn. 1958) .......................  14

Purdy v. Security Sav. and Loan Assoc.,
727 F.Supp. 1266 (E.D. Wis. 1989)....................  15

Richardson v. Alabama State Bd. ofEduc.,
935 F.2d 1240 (11th Cir. 1991) .......................... 21

Rievman v. Burlington N. Ry. Co.,
118 F.R.D. 29 (S.D. N.Y. 1987) .................... .1 5

Skelton v. General Motors Corp.,
860 F.2d 250 (7th Cir. 1988), cert.
denied, 493 U.S. 810 (1989) ................................  19

Soto v. Adams Elevator Equipment Co.,
941 F.2d 543 (7th Cir. 1 9 9 1 ) ................................ 19

Stanford Daily v. Zurcher,
64 F.R.D. 680 (N.D. Cal. 1974)..............  4

Steinberg v. Hardy,
93 F.Supp. 873 (D. Conn. 1950)..........................  14



Swann v. Charlotte-Mecklenburg Board o f  
Education,

66 F.R.D. 483 (W.D. N.C. 1 9 7 5 ) .......................  4

In re Union Carbide,
724 F.Supp. 160, 169 (S.D.N.Y. 1989)............... 16

U.S. v. City and County o f  San Francisco,
748 F.Supp. 1416 (N.D. Cal. 1 9 9 0 )....................  12

United States v. Great N. R. Co.,
287 U.S. 144 (1932) ..............................................  7

Venegas v. Mitchell,
495 U.S. 82 (1 9 9 0 ) .................................................  6

Wolf v. Planned Property Management,
735 F.Supp. 882 (N.D. 111. 1990) .......................  19

STATUTES

15 U.S.C. § 13(a) (1988) ..............................................  20

20 U.S.C. §§ 1400-1485 (1988) . ................................  7

22 U.S.C. § 277d-21 (1988) .....................................  . 8

28 U.S.C. §§ 2412(d)(1)(A) and (2)(A) ( 1 9 8 8 )____  7

28 U.S.C. § 2678 (1988) ..............................................  8

30 U.S.C. § 901 etseq  (1 9 8 8 ) .....................................  10

33 U.S.C. 1365(d) (1 9 8 8 ) ................. .. ....................... 1 ,3

42 U.S.C. § 300aa-15(b) (1 9 8 8 ) ................................... 8

-vii-



42 U.S.C. §406(b)(l) (1988) ......................................... 8

42 U.S.C. § 1988 (1988) ......................................passim

42 U.S.C. § 6972(e) (1 9 8 8 ).................... .. ..............  1, 3

48 U.S.C. § 1424c(f) (1988) ......................................... 8

50 U.S.C. app. § 1985 (1990) ......................................  8

OTHER AUTHORITY

Class Action Reports
July-Aug., Sept.-Oct., 1990, 249 .......................  14

S. Rep. No. 94-1011 (1976)...........................................  4

H.R. 5757, 98th Cong. 2d Sess. (1984).......................  7

H.R. 3181, 99th Cong. 1st Sess. (1985) ....................  7

Stemlight, The Supreme Court’s Denial o f  
Reasonable Attorney’s Fees to Prevailing 
Civil Rights Plaintiffs, 17 N.Y.U.
Review of Law & Social Change
535, 537-38 (1990) .......................... ..  12

Terry, Eliminating the Plaintiff’s Attorney in 
Equal Employment Litigation: A 
Shakespearean Tragedy,
5 Lab. Law. 63 (1 9 8 9 ) ...........................................  12

Model Code of Professional Responsibility
D R -2-106(B ).................... ..  ...................................  9

Model Rules of Professional Responsibility, Rule 15 . 9

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INTEREST OF AM ICI CURIAE1'

Amici are not-for-profit legal services organizations, 
private law firms and sole practitioners from throughout the 
United States. The legal services organizations engage in 
a wide variety of public interest litigation. They depend on 
reasonable attorney’s fees awards, pursuant to fee-shifting 
statutes, to finance their litigation. The enhancement of 
their attorney’s fees to compensate for the risk of taking 
matters on a contingency basis enables them to attract 
cooperating counsel from private law firms. Without the 
ability to attract private counsel, they would be unable to 
obtain representation for many of the prospective clients 
who seek their legal assistance.

The private law firm and sole practitioner amici 
devote a substantial portion, if not all, of their practices to 
public interest litigation under a variety of fee-shifting 
statutes. This litigation is virtually always undertaken on 
a contingency basis. If contingent risk enhancers were not 
available to compensate these private attorneys when they 
prevail, economic necessity would force many of them to 
turn down meritorious cases in favor of hourly-fee paying 
clients.

More detailed Statements of Interest for each amicus 
are contained in the Appendix attached to the Brief.

SUMMARY OF ARGUMENT

Many public interest statutes, including the Solid 
Waste Disposal Act, the Clean Water Act and a host of 
others, contain "fee-shifting" provisions that entitle

- Letters of consent to the filing of this Brief have been lodged 
with the Clerk of the Court, pursuant to Rule 37.3.



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prevailing plaintiffs to recover their reasonable attorney’s 
fees, in addition to whatever other relief they may be 
awarded in the course of litigation. The determination that 
a "reasonable" attorney’s fees award in a case brought 
under a fee-shifting statute includes an enhancement for 
contingent risk reflects the recognition by many courts that 
legal services, like other services, are priced in accordance 
with the principles and practices of the marketplace.

The legislative history of Section 1988 of the Federal 
Civil Rights Attorney’s Fee Award Act of 1976 — which 
sets the standard for attorney’s fees awards to prevailing 
parties in cases brought under federal fee-shifting statutes 
— reveals Congress’ intent that the marketplace determine 
the amount of a reasonable attorney’s fees award. Market 
analysis, in turn, dictates that an attorney who prevails on 
behalf of a plaintiff in an action brought under a fee- 
shifting statute should be compensated not only for the time 
expended prosecuting the action but also for the risk 
associated with bringing the litigation. Without the 
prospect of contingent risk enhancement, competent 
attorneys, operating in accordance with market principles, 
will decline to undertake such litigation, and those persons 
intended to be benefited by the statutes containing the fee- 
shifting provisions will be disserved.

Five Justices of this Court have acknowledged the 
crucial role that contingent risk enhancement plays in the 
legal services market. Pennsylvania v. Delaware Valley 
Citizens’ Council fo r  Clean Air, 483 U.S. 711 (1987) 
(Delaware Valley II) (O’Connor, J. concurring; Blackmun, 
J. dissenting). In the five years that have elapsed since 
Delaware Valley II, the two-part test set out in Justice 
O’Connor’s concurring opinion has proved both workable 
and fair. As applied by numerous lower courts, it has 
yielded reasonable attorney’s fees awards, while furthering 
Congress’ essential purpose: that those persons intended to



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be benefitted by fee-shifting legislation have access to 
competent counsel willing and able to represent them.

The principal concern of the plurality in Delaware 
Valley II — that an enhancement for a contingent risk 
undermines the "prevailing party" requirement by 
compensating counsel who prevail in one case for other 
cases in which they do not prevail — is dispelled both by 
sound economic analysis and by the post -Delaware Valley 
II experiences and findings of federal courts in a number of 
jurisdictions. These decisions fully validate what the 
legislative history of Section 1988 teaches: when the
market is the measure of a reasonable attorney’s fees 
award, a contingent risk enhancer is necessary and 
appropriate to fulfill Congress’ intent that the public 
interest statutes it enacts be enforced, and that competent 
counsel be reasonably and fairly compensated for their 
efforts to that end.

ARGUMENT

I. In Enacting Fee-shifting Statutes, Congress has 
M andated that the Amount of Attorney’s Fees 
Awarded to Prevailing Plaintiffs be Determined in 
Accordance with Relevant Private M arkets for 
Legal Services.

Although the instant case arises under the attorney’s 
fee provisions of Section 7002 of the Solid Waste Disposal 
Act, 42 U.S.C. § 6972(e), and Section 505 of the Clean 
Water Act, 33 U.S.C. § 1365(d), this Court has determined 
that the fee-shifting standards applicable to those statutes 
are the same as those applicable under Section 1988 of the 
Federal Civil Rights Attorney’s Fee Award Act of 1976, 42 
U.S.C. § 1988. See, e,g., Pennsylvania v. Delaware 
Valley Citizens’ Council fo r  Clean Air, 478 U.S. 546, 560- 
62 (1986) {Delaware Valley I). Central to the inter­



pretation of all public interest attorney’s fees statutes, 
therefore, is Senate Report No. 94-1011 (1976), which sets 
out the legislative history of Section 1988. See, e .g ., Blum 
v. Stens on, 465 U.S. 886, 893-95 (1984). Senate Report 
No. 94-1011 bears on all facets of fee setting under 
Congress’ fee-shifting statutes, including risk enhancement. 
See, e.g., Delaware Valley 11, 483 U.S. at 723-24. The 
most relevant portion of Senate Report No. 94-1011 states:

It is intended that the amount of fees awarded 
under [§ 1988] be governed by the same standards 
which prevail in other types of equally complex 
Federal litigation, such as antitrust cases[,] and not be 
reduced because the rights involved may be non- 
pecuniary in nature. The appropriate standards, see 
Johnson v. Georgia Highway Express, 488 F.2d 714 
(5th Cir. 1974), are correctly applied in such cases as 
Stanford Daily v. Zurcher, 64 FRD 680 (N.D. Cal. 
1974); Davis v. County o f Los Angeles, 8 EPD f  9444 
(C.D. Cal. 1974); and Swann v. Charlotte- 
Mecklenburg Board o f  Education, 66 FRD 483 (W.D. 
N.C. 1975). These cases have resulted in fees which 
are adequate to attract competent counsel, but which 
do not produce windfalls to attorneys. S.

S. Rep. No. 94-1011 at 6 (1976). The standard set out in 
Johnson v. Georgia Highway Express is stated in terms of 
twelve factors: (1) The time and labor required; (2) the 
novelty and difficulty of the questions; (3) the skill 
requisite to perform the legal service properly; (4) the 
preclusion of other employment by the attorney due to 
acceptance of the case; (5) the customary fee; (6) whether 
the fee is fixed or contingent; (7) time limitations imposed 
by the client or the circumstances; (8) the amount involved 
and the results obtained; (9) the experience, reputation, and 
ability of the attorneys; (10) the "undesirability" of the 
case; (11) the nature and length of the professional relation-



- 5-

ship with the client; and (12) awards in similar cases. 488 
F.2d at 717-719. The legislative history of Section 1988 
thus embraces a standard that includes risk enhancement.

It is noteworthy that in enacting Section 1988 
Congress used as a reference point the highly contingent 
field (for plaintiffs’ counsel) of federal antitrust litigation. 
Given that reference, the antitrust field’s market model 
should guide "the amount of fees awarded under" Section 
1988 and similar statutes, absent express statutory language 
or clear legislative history to the contrary. See, e.g., 
Hasbrouck v. Texaco, Inc., 879 F.2d 632, 636-37 (9th Cir. 
1989) (applying the analysis of Justice O’Connor, concur­
ring, in Delaware Valley II to fee enhancement under the 
Clayton Act in a Robinson-Patman case).

Consistent with the legislative history of Section 1988, 
this Court has repeatedly ruled, with rare exclusively 
statutory exceptions, that the principles and practices of the 
market determine both the amount and the components of 
attorney’s fees awards under fee-shifting statutes. Missouri 
v. Jenkins, 491 U.S. 274, 285 (1989) (in determining how 
certain attorney’s fees award are to be calculated, this 
Court has "consistently looked to the marketplace as [its] 
guide to what is reasonable"). Thus, under Section 1988 
this Court has held that private market practices mandate 
that the prevailing party be awarded compensation for the 
work of salaried attorneys and paralegals at their market 
hourly billing rates, rather than on an actual cost basis. 
See Blum v. Stenson, 465 U.S. at 894-895; Missouri v. 
Jenkins, 491 U.S. at 287-89. This Court has also held that 
both hourly rates and compensable time are determined 
essentially as the market determines them, subject to 
adjustment on the basis of considerations such as the 
complexity and novelty of the legal issues and the quality 
of the services rendered. See, e.g., Missouri v. Jenkins, 
491 U.S. at 285-289, Blum v. Stenson, 465 U.S. at 894-95.



-6-

In addition, this Court has recognized that market 
considerations mandate an upward adjustment of fees to 
compensate for delay. Jenkins v. Missouri, 491 U.S. at 
283-84. Furthermore, the Court has validated market 
practices that permit attorneys to be awarded fees that 
exceed the amount provided in contingency fees contracts, 
Blanchard v. Bergeron, 489 U.S. 87, 96 (1989); that 
permit attorneys to collect fees from damages, in addition 
to court awards of fees, Venegas v. Mitchell, 495 U.S. 82 
(1990); and that permit plaintiffs in certain class actions to 
enter into settlements that include waivers of attorney’s 
fees, Evans v. Je ffD , 475 U.S. 717 (1986). Finally, the 
Court has held that full attorney’s fees are to be awarded 
to prevailing plaintiffs even when their fees exceed by 
multiples the amount of the damages award. See City o f  
Riverside v. Rivera, A l l  U.S. 561, 575 (1986).

With respect to contingent risk enhancement, Justice 
White’s plurality opinion in Delaware Valley II, while 
limiting the availability and the amount of contingent risk 
enhancers, acknowledges the relevance of the market. 483 
U.S, at 726-27. The plurality’s only real concern with full 
contingent risk enhancement is that an award enhanced to 
take account of risk might compensate prevailing plaintiffs’ 
attorneys for work they performed in other cases in which 
their clients did not prevail. Id. at 724-25. As argued 
more fully in Section II, however, the contingent risk 
enhancer is the price that the market dictates plaintiffs 
counsel should be paid for the services he or she rendered 
in the case in which the plaintiff prevailed.

Congress is fully able, if it wishes, to delineate an 
approach other than that of market analysis. See Crawford 
Fittings Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 
(1987). Notably, Congress has demonstrated its ability 
explicitly to preclude the award of contingent risk enhan­
cers, if it so intends, as it did in the Individuals with



- 7-

Disabilities Education Act, ("IDEA"), 20 U.S.C. §§ MOO- 
MSS (1988). As provided by Sections 1415(e)(4)(B) and 
(C), a court may award "reasonable attorneys’ fees" to 
prevailing plaintiffs, but "[n]o bonus or multiplier may be 
used in calculating the fees awarded . . .

Further, it is relevant that Congress has considered 
and rejected several attempts to eliminate enhancers, at 
least against government defendants. In 1982, Senator 
Hatch proposed an amendment to Section 1988 that would 
have prohibited "awards based on contingency factors or 
enhancers." S. 585, 97th Cong. 2d Sess. § 722A (1982). 
In addition, four bills were introduced that would have 
imposed a $75 per hour cap on attorney’s fees awarded to 
plaintiffs who prevailed against government defendants, and 
eliminated enhancers under all federal fee-shifting 
provisions. Neither Senator Hatch’s amendment nor any of 
the proposed bills passed. See S. 2802, 98th Cong., 2d 
Sess. (1984); H.R. 5757, 98th Cong. 2d Sess. (1984); S. 
1580, 99th Cong. 1st Sess. (1985); and H.R. 3181, 99th 
Cong. 1st Sess. (1985). As recently as last year, an 
amendment that would have limited attorney’s fees to 20% 
of the total award was proposed as part of the Civil Rights 
Act of 1991. 137 Cong. Rec. S 15338-39 (daily ed. Oct. 
29, 1991). That proposed amendment also failed.-7

Congress has also set limits or caps on attorney’s fees 
awards under specific statutory schemes. See e.g., 28 
U.S.C. §§ 2412(d)(1)(A) and (2)(A)(1988) (fee awards 
under the Equal Access to Justice Act "shall be based upon 
prevailing market rates . . . except that . . . attorney fees 
shall not be awarded in excess of $75 per hour . . .); 42

- Congress’ rejection of proposed amendments indicates that it 
does not intend the law to include the provisions embodied in the 
rejected amendments. C.f. Lapina v. Williams. 232 U.S. 78 (1914); 
United States v. Great Northern R. Co. . 287 U.S. 144, 155 (1932).



- 8-

U.S.C. § 300aa-15(b) (1988) (fee awards under the 
National Vaccine Injury Compensation Act of 1986 limited 
to $30,000); 28 U.8.C. § 2678 (1988) (fees under Federal 
Tort Claims Act limited to 20% of administrative 
settlement; 25% of judgment or settlement); 42 U.S.C. 
§406(b)(l) (1988) (fees under Social Security Act limited 
to 25% of award); 22 U.S.C. § 277d-21 (1988) (fees under 
American-Mexican Chamizal Convention Act of 1964 
limited to 10%); 48 U.S.C. § 1424c(f) (1988) (fees for 
claims regarding land under Organic Act of Guam limited 
to 5% of award); 50 U.S.C. app. § 1985 (1990) (fees 
under Japanese-American Evacuation Claims Act of 1948 
limited to 10% of award).

Because Section 1988 and the statutes at issue here do 
not by their terms preclude the use of contingent risk 
enhancers, market practices are controlling. As described 
more fully below, those practices are plainly consistent 
with the award of attorney’s fee enhancers, at the courts’ 
discretion and under appropriate circumstances.

II. Application of M arket Principles and Practices 
M andates that Prevailing Parties in Actions 
Brought Under Fee-shifting Statutes be Awarded 
Contingent Risk Enhancers.

The difficulty in determining appropriate attorney’s 
fees awards in statutory fee-shifting cases is in part attribut­
able to the confusion over the nomenclature used. Many 
of the cases refer to "windfalls," "bonuses" or 
"multipliers." The impression that this language conveys 
is that a lawyer who seeks an enhancement for contingent 
risk after prevailing in a fee-shifting case is somehow 
seeking more than is properly due.



- 9 -

But that impression is false and misleading. As five 
Justices in Delaware Valley II recognized, lawyers who 
bring actions under fee-shifting statutes are simply operat­
ing under the normal rules of the market in which they 
operate. Ail practicing litigation attorneys know that they 
charge a different rate depending on whether they will be 
paid on a regular hourly basis or only if they win. 
Whether the case is an antitrust case in Seattle, a personal 
injury case in Boston, a securities fraud case in New York, 
a patent infringement case in Philadelphia, an employment 
discrimination case in San Francisco, a breach of contract 
case in St. Louis or an environmental case in Vermont, 
lawyers who are not assured of being compensated for their 
efforts must, and do, negotiate their fees accordingly.

It is not a question of getting a "windfall" or a 
"bonus" if one succeeds. Rather, the business and econom­
ic reality is that statutory fee-shifting cases must be treated 
differently, from a fees perspective, from cases for which 
counsel is compensated on a risk-free hourly basis. In the 
unregulated market for legal services, virtually all lawyers 
charge either hourly rates that must be paid regardless of 
outcome, or contingency fees that are paid only if the 
lawyer succeeds. Contingency fees inevitably are higher, 
so that prevailing lawyers are compensated for the 
additional risk of a negative outcome. The American Bar 
Association ("ABA") which monitors and enforces fee­
setting practices in the legal profession, fully authorizes 
attorneys to seek compensation for contingent risk. 
Disciplinary Rule No. 2-106(B) of the ABA Model Code 
and Rule 15 of the ABA Model Rules list the following 
eight factors for determining the reasonableness of 
attorney’s fee awards, including contingent risk:

(1) The time and labor required, the novelty and 
difficulty of the questions involved, and the skill 
requisite to perform the legal service properly;



- 10-

(2) The likelihood, if apparent to the client, that the 
acceptance of the particular employment will 
preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for 
similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by 
the circumstances;

(6) The nature and length of the professional relation­
ship with the client;

(7) The experience, reputation, and ability of the 
lawyer or lawyers performing the services;

(8) Whether the fee  is fixed or contingent. . . .

(Emphasis supplied.) Lawyers thus reasonably and 
properly demand, and the market dictates, that in fee- 
shifting litigation they be compensated for the contingent 
risk inherent in plaintiff s-side fee-shifting litigation.

This Court has recognized that a "reasonable" 
attorney’s fee award may provide contingent risk enhance­
ment. In Department o f Labor v. Triplett, 494 U.S. 715 
(1990), this Court upheld the attorney’s fees provision of 
the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et 
seq., which limits and regulates both the type of fee 
arrangements available and the amount of fees 
compensable, against the due process challenge of a 
prevailing claimant’s attorney. The Court reasoned, inter 
alia, that the statute by its terms provides for the award of 
"reasonable" attorney’s fees, and that the Benefits Review 
Board, which reviews challenged fee awards, "has con­
strued the regulations of the Secretary of Labor governing 
the award of attorney’s fees to permit consideration of the



-ll-

attorney’s risk in going unpaid." 494 U.S. a t ___, 108
L.Ed.2d at 717 (emphasis supplied).

The plurality in Delaware Valley 11 admitted that 
"without the promise of risk enhancement some lawyers 
will decline to take cases[,j" but the plurality nonetheless 
remained confident that "the goal of the fee-shifting 
statutes" will be achieved. The plurality in fact underes­
timated the role of contingent risk enhancers in attracting 
counsel "in any market where there are competent lawyers 
whose time is not fully occupied by other matters." 483 
U.S. at 725. In reality, virtually no contracts are made for 
contingent representation at noncontingent hourly rates. To 
restrict the use of enhancers — in the belief that plaintiffs 
will always be able to find representation from lawyers 
who do not place a higher "opportunity cost" on their time 
— ignores the economic reality that even those clients who 
are more empowered are unable to find such bargains. It 
is unreasonable to impose a condition on compensation that 
is virtually never accepted in voluntary agreements between 
lawyers and their clients.

The plurality’s ultimate concern in Delaware Valley 11 
was that contingent risk enhancement necessarily would 
compensate "plaintiffs lawyers for not prevailing against 
defendants in other cases." 483 U.S. at 725. But this is 
simply not the case. The award of enhancers does not 
compensate plaintiffs’ counsel for cases they may have lost; 
rather, enhancers compensate for the risk associated with 
the case or cases in which they prevail. The defendant 
who loses a case brought under a fee-shifting statute thus 
is not paying for plaintiffs counsel’s "losing" cases, any 
more than a plaintiff in a personal injury case, who must 
pay a contingency fee out of a damages award, is paying 
for his or her lawyer’s losing cases. In each case the 
contingency risk factor is simply a component of the 
attorney’s reasonable compensation. Thus, if Dague were



-12-

the only case ever to arise under the Solid Waste Disposal 
Act, the market would still drive respondents5 attorneys to 
demand an appropriate risk-adjusted rate.

If the attorney’s fees provisions were interpreted to 
limit fees awards to risk-free rates, then attorneys would 
work on other cases that paid the market rate on a current, 
risk-free hourly basis. Indeed, the dearth of attorneys 
willing to take on certain types of public interest litigation, 
as a result of the associated financial risk, is well 
documented. See, e.g., Stemlight, The Supreme Court’s 
Denial o f  Reasonable Attorney’s Fees to Prevailing Civil 
Rights Plaintiffs, 17 N.Y.U. Review of Law & Social 
Change 535, 537-38 (1990) ("numerous attorneys have 
been forced to withdraw from civil rights practice for 
financial reasons. . . . The shortage of competent civil 
rights attorneys has reached crisis proportions, a fact which 
has been recognized by several state and federal courts," 
citing authorities); Terry, Eliminating the Plaintiff’s 
Attorney in Equal Employment Litigation: A Shakespearean 
Tragedy, 5 Lab. Law. 63 (1989) ("private counsel 
representing plaintiffs in equal employment cases have 
become an endangered species, in many places extinct"); 
U.S. v. City and County o f San Francisco, 748 F.Supp. 
1416, 1434 (N.D. Cal. 1990) (documenting shortage of 
employment discrimination counsel in San Francisco Bay 
Area).

Of course some attorneys might still be willing to 
provide what would amount to pro bono services by 
working at less than the prevailing risk-adjusted rate. 
Justice White has thus suggested in Delaware Valley II that 
enhancers are not needed "in those cases where plaintiffs 
secure help from organizations whose very purpose is to 
provide legal help through salaried counsel to those who 
themselves cannot afford to pay a lawyer." 483 U.S. at 
726. Yet this argument ignores the fact that adequate



- 13-

attomey’s fees awards are a prerequisite to the continued 
existence of these organizations. The argument is also 
empirically refuted by the scant number of such 
organizations. Delaware Valley II, 483 U.S. at 743 
(Blackmun, J. dissenting). Further, if not-for-profit 
organizations are not awarded fees commensurate with the 
amounts attainable in the private market, they will not be 
able to compensate as many attorneys at market rates.-

Moreover, in enacting fee-shifting statutes Congress 
surely intended to do more than merely supplement the 
eleemosynary efforts of the private bar. By including fee- 
shifting provisions in Section 1988 and in the statutes at 
issue here — and by not including limitations or prohibi­
tions against contingent risk enhancers — Congress 
expressed its intent that prevailing plaintiffs’ counsel be 
compensated for assuming the risk of embarking on 
complex federal fee-shifting litigation.

This approach has been followed in a variety of cases, 
including antitrust cases, which set the model for statutory 
fee-shifting litigation. As earlier noted, Section 1988 was 
enacted against a backdrop of attorney’s fees enhancement 
in the antitrust field. See City o f  Detroit v. Grinnell Corp. , 
495 F.2d 448, 471 (2nd Cir. 1974) (antitrust: contingent 
risk enhancer available because "despite the most vigorous 
and competent of efforts, success [in litigation] is never 
guaranteed"); Lindy Bros. Bldrs. v. American Radiator & 
Standard Sanitary Corp., 487 F.2d 161, 168 (3rd Cir. 
1973) (antitrust: lodestar may be enhanced to reflect
contingent nature); In re Coordinated Pretrial Proceedings,

- This Court has consistently held that the calculation of 
attorney’s fees awards should not vary depending upon whether the 
prevailing party was represented by a not-for-profit organization or 
by private counsel. See Blum v. Stenson, 465 U.S. at 894; 
Blanchard v. Bergeron, 489 U.S. at 95.



- 14-

410 F.Supp. 680, 691 (D. Minn. 1975) (antitrust: 
enhancers awarded to "take the contingent nature of this 
litigation . . . into consideration when awarding fees"); 
Blank v. Talley Indus., 390 F.Supp. 1, 5-6 (S.D.N.Y. 
1975) (antitrust: fee award based in part on contingent 
risk); In re Gypsum Cases, 386 F.Supp. 959, 961 (N.D. 
Cal. 1974) (enhancer over normal hourly rates awarded in 
seven-year antitrust case "in which, probably more than in 
any other such litigation, the congressional objective of 
private antitrust enforcement was realized"), a ff’d, 565 
F.2d 1123 (9th Cir. 1977); Arenson v. Board o f  Trade, 372 
F.Supp. 1349, 1357-58 (N.D. 111. 1974) (enhancer over 
normal hourly rate awarded in landmark antitrust case); 
Chemer v. Transitron Elec. Corp., 221 F.Supp. 55, 61 
(D.Mass, 1963) (antitrust: contingent risk enhancer
awarded because "[n]o one expects a lawyer whose com­
pensation is contingent upon his success to charge, when 
successful, as little as he would charge a client who in 
advance had agreed to pay for his services, regardless of 
success") modified on other grounds, 326 F.2d 492 (1st 
Cir. 1964).

Contingent risk enhancers have also been awarded in 
security fraud cases. See In re General Pub. Utils. Sec. 
Litig., [1983-1984 Transfer Binder] Fed. Sec. L. Rep. 
(CCH) 199,566, at 97,233-34 (D. N.J. Nov. 16, 1983) 
(enhancer of 3.45); Steinberg v. Hardy, 93 F.Supp. 873, 
873-74 (D. Conn. 1950) (securities: contingent risk enhan­
cer awarded, with court noting: that "actions, even when 
well-founded, will seldom be brought unless counsel can be 
found" on a contingent basis; that "obviously a retainer on 
a contingency basis is distinctly less attractive" than a 
guaranteed hourly rate; and that "unless the courts recog­
nize the need to fix [contingent case] compensation on a 
more liberal basis," lawyers will not take these cases). See 
also Class Action Reports, July-Aug., Sept.-Oct., 1990, 
249 at 548 (surveying over 400 securities and antitrust class



- 15-

action cases from 1974 to 1990 and finding that, on 
average, enhancers of 1.83 were awarded).

Contingent risk enhancers have been awarded in a host 
of other areas governed by fee-shifting statutes. See Green 
v. Transitron Elec. Corp., 326 F.2d 492, 496-97 (1st Cir. 
1964) (stockholder’s derivative action affirming fee award 
in part on contingent risk); County o f  Suffolk v. LILCO, 
710 F.Supp. 1477, 1481 (E.D.N.Y. 1989) (RICO case: 
doubling of counsels’ hourly rate), a ffd  in part, rev’d in 
part on other grounds, 907 F.2d 1295 (2d Cir. 1990); 
Municipal Audi, o f  Bloomsburg v. Pennsylvania, 527 
F.Supp. 982, 999-1000 (M.D. Pa. 1981) (enhancer, 
characterized by court as "extremely high" and "probably 
without precedent," awarded in case brought under Water 
Pollution Control Act Amendments of 1972, 33 U.S.C. 
§1251, et seq., because of "peculiar facts of this case"); In 
re Cenco, Inc. Sec. Litig., 519 F.Supp. 322, 326-28 (N.D. 
111. 1981) (enhancer awarded to lead counsel, whom court 
praised for "very lean" staffing; other firms awarded lower 
enhancer); Keith v. Volpe, 86 F.R.D. 565 , 575-77 (C.D. 
Cal. 1980) (enhancer awarded in environmental protection 
and civil rights action during period of high inflation); 
Perlman v. Feldmann, 160 F.Supp 310, (D. Conn. 1958) 
(attorney’s fees award in stockholder’s derivative action 
giving "great weight" to contingent nature of case).

Post -Delaware Valley II cases are to the same effect. 
See Purdy v. Security Savings and Loan Association, 727 
F.Supp. 1266, 1279 (E.D. Wis. 1989) (enhancer over 
normal hourly rate awarded in securities fraud case); 
Lattimore v. Oman Const. Co., 714 F.Supp. 1178,1179 
(N.D. Ala. 1989), a ffd , 868 F.2d 437 (11th Cir. 1989); 
Hidle v. Geneva County Bd. o f  Educ., 681 F.Supp. 752, 
756-58 (M.D. Ala. 1988); Rievman v. Burlington Northern 
Railway Co., 118 F.R.D. 29, 35 (S.D. N.Y. 1987) 
(enhancer for complexity, risk and benefit to class).



- 16-

It is obvious that without the prospect of contingent 
risk enhancers, lawyers are more likely to behave as the 
market dictates they should — they will decline to take on 
public interest litigation, in a variety of fields, to the detri­
ment of the public intended by Congress to be benefitted by 
the legislation containing the fee-shifting provisions. Judge 
Brieant noted this economic fact of life in In re Union 
Carbide, regarding securities fraud cases:

The award of attorneys’ fees in complex securities 
class action litigation is informed by the public policy 
that individuals damaged by violation of the federal 
securities laws should have reasonable access to 
counsel with the ability and experience necessary to 
analyze and litigate complex cases. Enforcement of 
the federal securities laws should be encouraged in 
order to carry out the statutory purpose of protecting 
investors and assuring compliance. . . .  A large 
segment of the public might be denied a remedy for 
violations of the securities laws if contingent fees 
awarded by the courts did not fairly compensate 
counsel for the services provided and the risks under­
taken. These policies further support the award of a 
multiplier of counsel’s lodestar fee.

724 F.Supp. at 169 (emphasis supplied). The award of 
contingent risk enhancers assures the enforcement of 
federal public interest fee-shifting legislation — be it 
antitrust, securities, environmental or civil rights legislation 
— by reasonably and fairly compensating counsel who 
prevail in actions brought under such statutes.



- 17-

III. Justice O ’Connor’s Approach in Delaware Valley I I  
is a Fair and W orkable Way to Determine When 
Risk Enhancement is Necessary to Assure that the 
Prevailing Plaintiff is Awarded a Reasonable 
A ttorney’s Fee in a Fee-Shifting Case.

Counting the four dissenting Justices and Justice 
O’Connor, a majority of the Court in Delaware Valley II 
deemed that contingent risk enhancement is appropriate at 
least if the two prerequisites identified in Justice 
O’Connor’s concurrence are met. First, the prevailing 
party must 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.’" 
483 U.S. at 733 (citation omitted). Second, any en­
hancement for contingency must reflect "the difference in 
market treatment of contingent fee cases as a class, rather 
than . . .  the ‘riskiness’ of any particular case." Id. at 731 
(emphasis in original).

Justice O’Connor stated that:

[Djistrict courts and courts of appeals should treat 
a determination of how a particular market compen­
sates for contingency as controlling future cases 
involving the same market. Haphazard and widely 
divergent compensation for risk can be avoided only 
if contingency cases are treated as a class; and contin­
gency cases can be treated as a class only if courts 
strive for consistency from one fee determination to 
the next. Determinations involving different markets 
should also comport with each other. Thus, if a fee 
applicant attempts to prove that the relevant market 
provides greater compensation for contingency than 
the markets involved in previous cases, the applicant



-18-

should be able to point to differences in the markets
that would justify die different rates of compensation,

483 U.S. at 733.

Tying the amount of the enhancement to the market’s 
treatment of similar contingent cases as a class eliminates 
the parade of horribles postulated by the Delaware Valley 
II plurality. Because the size of the enhancer would be 
insensitive to the riskiness of any particular case, plaintiffs’ 
lawyers would still retain an incentive to take only those 
cases which have the highest probability of success. 
Conversely, class-based enhancement would not penalize 
defendants who have the strongest cases, because the high 
risk of plaintiffs’ loss in such cases would not increase the 
enhancer. Consistent application of a class-based standard 
would also reduce the amount of ex ante risk bom by the 
attorneys, who would not need to worry that a court might 
conclude ex post facto  that the risk in a particular case did 
not justify the normal enhancer. Application of the class- 
based standard also ties the determination of a reasonable 
attorney’s fee directly to Congress’ purpose: to create and 
maintain a bar of competent counsel willing and able to 
represent plaintiffs in public interest litigation.

Justice O’Connor’s approach is also eminently work­
able. It places the burden on the petitioning attorney to 
demonstrate that but for an enhancer the plaintiff would 
have had substantial difficulty retaining competent counsel. 
This burden can be fulfilled by looking to the voluntary 
bargains struck in the marketplace by attorneys and their 
clients. If the Delaware Valley II plurality’s "doubt” 
proves valid, i.e., if enhancers are not necessary to attract 
competent representation, then petitioning attorneys will 
simply fail to meet their burden under Justice O’Connor’s 
analysis.



- 19-

Since Delaware Valley II, a number of courts review­
ing requests for fee enhancements have applied Justice 
O Connor’s analysis fairly and without obvious admin­
istrative difficulty. For example, in Islamic Center o f  
Miss. v. Starkville, 876 F.2d 465, 472 (5th Cir. 1989), the 
Fifth Circuit remanded the District Court’s denial of the 
requested contingent risk enhancer because the court had 
failed to make findings concerning the two prongs of 
Justice O ’Connor’s test. The Fifth Circuit stated:

Justice O’Connor’s instructions in Delaware Valley 
Citizens’ Council 11 are explicit: the district court 
must consider whether a contingent enhancement 
would have been necessary to induce competent 
counsel to accept such cases at the time the case was 
undertaken and whether contingency cases as a class 
were treated differently from noncontingency cases.

Id. at 472. See also Leroy v. City o f Houston, 831 F.2d 
576, 583-84 (5th Cir. 1987), cert, denied, 486 U.S. 1008 
(1988) (trial court record and findings must support award 
of enhancer).

The Sixth Circuit has also applied Justice O’Connor’s 
test. See Conklin v. Lovely, 834 F.2d 543, 553-554 (6th 
Cir. 1987) (remand where District Court failed to make 
specific finding of fact as to amount and necessity of 
enhancer awarded).

The Seventh Circuit has clearly adopted Justice 
O’Connor’s test for awarding contingent risk enhancers in 
cases where the evidence shows that without the enhance­
ment plaintiffs would have faced substantial difficulties in 
finding counsel in the local or other relevant market, and 
that the relevant market compensates for contingent risk. 
See Skelton v. General Motors Corp., 860 F.2d 250, 254 
n.3 (7th Cir. 1988), cert, denied, 493 U.S. 810, (1989);



- 20-

Soto v. Adams Elevator Equipment Co., 941 F.2d 543, 553 
(7th Cir. 1991); McGuire v. Sullivan, 873 F.2d 974, 978- 
79 (7th Cir. 1989). Thus, in King v. Board o f  Regents, 
748 F.Supp. 686, 691-93 (E.D. Wis. 1990), a contingent 
risk enhancer was awarded based on the testimony of 
Milwaukee attorneys and the District Court’s observations 
regarding the difficulty for plaintiffs in his court of finding 
competent counsel to accept civil rights cases on a contin­
gency fee basis. However, the District Courts in the 
Seventh Circuit have not awarded contingent risk enhancers 
when Justice O’Connor’s test was not found to have been 
met. See Wolf v. Planned Property Management, 735 
F.Supp. 882, 887 (N.D. 111. 1990); Leigh v. Eagle, 714 
F.Supp. 1465, 1475-76 (N.D. 111. 1989).

The Eighth Circuit has applied Justice O’Connor’s 
analysis in three cases. See Morris v. American National 
Can Corp., 952 F.2d 200,204-07 (8th Cir. 1991); 
Hendrickson v. Brendstad, 934 F.2d 158,162 (8th Cir. 
1991); Jackson v. Rheem Manufacturing Co., 904 F.2d 15, 
16-17 (8th Cir. 1990).

The Ninth Circuit first applied Justice O’Connor’s test 
in Fadhl v. City and County o f San Francisco, 859 F.2d 
649 (9th Cir. 1988), a case brought under Title VII. The 
Ninth Circuit sustained the District Court’s award of a 
contingent risk enhancer. The Ninth Circuit determined, 
on unrebutted evidence concerning both the market and 
plaintiffs difficulty in securing counsel, that within the 
relevant market an enhancer was necessary to attract 
competent counsel. Id. at 650-51.

In Hasbrouck v. Texaco, Inc., 879 F.2d 632 (9th Cir. 
1989), a case arising under the Robinson-Patman Act, 15 
U.S.C. § 13(a), and analogous Washington State law, the 
Ninth Circuit sustained the District Courts’ pre-Delaware



- 21-

Valley II award of a contingent risk enhancer. The Court 
specifically found:

In this case there is strong uncontroverted evi­
dence on permissible factors to support the district 
court’s award. We conclude that the district court did 
not ‘enhance [the] fee award any more than necessary 
to bring the fee within the range that would attract 
competent counsel.’ Fadhl, 859 F.2d at 651 (quoting 
Delaware Valley II, 483 U.S. at 733, 107 S.Ct. at 
3091 (O’Connor, J. concurring)). We are also satis­
fied that the evidence shows why the lodestar amount 
would not be reasonable.

879 F.2d at 637. See also Oviatt v. Pearce, 92 D.A.R. 
723, 728 (9th Cir. Jan. 16, 1992) (denial of enhancer ap­
propriate where District Court had found that plaintiff had 
failed  to show, in the relevant Oregon market for the class 
of cases involved, that "without an enhancement, plaintiffs 
in similar [relatively simple damages cases] will face 
substantial difficulties in finding counsel"); Bemardi v. 
Yeutter, 951 F.2d 971, 975 (9th Cir. 1991) (reversal of 
denial of enhancer and award of 2.0 enhancer, where 
District Court had failed to "address whether sufficient 
independent evidence had been presented that demonstrated 
that San Francisco no longer has a ‘manifest need . . .  for 
fee enhancements in civil rights cases’ Fadhl, 859 F.2d at 
651"); Bouman v. Block, 940 F.2d 1211, 1236 (9th Cir. 
1991) (case remanded to the District Court "to consider 
evidence of the market conditions in Los Angeles and 
determine whether [plaintiff] is entitled to the 2.0 multiplier 
she has requested or some other multiplier in excess of the 
one and one third figure the district court judge used"); 
Merritt v. Mackey, 932 F.2d 1317 (9th Cir. 1991) (reversal 
of a District Court’s enhancement of an attorney’s fee that 
was itself based on the contingent risk inherent in bringing 
the action); D ’Emanuele v. Montgomery Ward & Co. Inc.,



- 22-

904 F.2d 1379, 1384, 1387 (9th Cir. 1990) (reversal of 
District Court’s denial of enhancer in ERISA action),

The Eleventh Circuit has also relied on Justice 
O’Connor’s analysis in approving the award of contingent 
risk enhancers, Lattimore v. Oman Construction, 868 F.2d 
437, 439 (11th Cir. 1989) (per curiam). The Court 
concluded that ”[a] fees award may be increased by 100% 
to compensate attorneys for the risk of accepting a case on 
a contingency basis and to attract competent counsel." 
Richardson v. Alabama State Bd. ofEduc . , 935 F.2d 1240, 
1248 (11th Cir. 1991).

These decisions fully validate Justice O’Connor’s 
approach to contingent risk enhancement in federal fee- 
shifting litigation. The courts applying Justice O’Connor’s 
analysis have demonstrated their ability to elicit and 
examine the relevant evidence and, on that basis, fairly 
exercise their discretion to compensate prevailing counsel 
for the market factor of contingent risk. This approach 
thus is workable in practice and consistent in principle with 
Congress’ intent that counsel be reasonably compensated 
for their efforts in enforcing public interest legislation.



- 23-

CONCLUSION

For the forgoing reasons, the decision beiow should be 
affirmed.

Rosen, Bien & Asaro 
Sanford Jay Rosen 

Counsel o f  Record 
Andrea G. Asaro 
Adela B. Karliner 
Stephen M. Liacouras 

155 Montgomery Street, 8th Floor 
San Francisco, California 94104 
Telephone: (415) 433-6830

Steven R. Shapiro 
John A. Powell
American Civil Liberties Union Foundation 

132 West 43rd Street 
New York, NY 10036 
(212) 944-9800

Leon Friedman
Co-counsel for the American Civil Liberties 
Union Foundation 

148 East 78th Street 
New York, NY 10021
(212) 737-0400

Richard Larson
Mexican American Legal Defense and 
Educational Fund

634 South Spring Street, 11th Floor 
Los Angeles, CA 90014
(213) 629-2512



- 24-

Julius L. Chambers
Charles Stephen Ralston
NAACP Legal Defense and Educational
Fund, Inc.

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

Terisa E. Chaw
National Employment Lawyers Association 

535 Pacific Avenue 
San Francisco, CA 94133 
(415) 397-6335

Dated: April 10, 1992



A PPENDIX



A-l

STATEMENTS OF INTEREST OF AMICI CURIAE

Alabama Employment Lawyers Association 
714 South 29th Street 
Birmingham, AL 35233-2845 
(205) 322-6631

The Alabama Employment Lawyers Association 
(AELA) is a non-profit organization consisting of ap­
proximately 25 lawyers who concentrate on the represen­
tation of individual employees in employment and labor 
matters. Some members of AELA are active in represen­
ting employees in federal employment discrimination 
matters, while others represent clients under the National 
Labor Relations Act or state causes of action.

Members of AELA who handle individual employment 
discrimination cases usually do so on a contingency fee 
basis. Because the judges in the federal courts of Alabama 
are inconsistent in the awarding of contingency enhancers, 
those members find it difficult to devote much time to such 
cases. If the Supreme Court eliminates the possibility of 
recovering fees similar to what AELA’s members could 
expect in the market place for other contingent work, they 
will be forced to devote their time and resources to other 
kinds of cases and to clients with federal employment 
discrimination claims who can afford to pay fees on an 
non-contingent basis.

American Civil Liberties Union Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800

The American Civil Liberties Union Foundation 
(ACLU) is a nationwide, nonprofit, nonpartisan organiza­
tion with nearly 300,000 members dedicated to the princi­
ples embodied in the Bill of Rights and this nation’s civil 
rights laws. Based on the experience of the ACLU, it is



A-2

clear that the availability of statutory attorney’s fees 
calculated at fair market rates is critical in recruiting 
private attorneys to undertake civil rights litigation and 
thereby promote the values of the ACLU. In addition, the 
ACLU’s own entitlement to attorney’s fees is a function of 
market rates and, thus, any change in the way those rates 
are calculated for attorney’s fee purposes directly affects 
the work of the ACLU and its affiliates throughout the 
country. For both of these reasons, the ACLU has a vital 
interest in the outcome of this case.

Joaquin G. Avila, Esq.
1774 Clear Lake Avenue 
Milpitas, CA 95035-7014 
(408) 263-1317

Joaquin G. Avila is a solo practitioner. His entire 
practice consists of representing plaintiffs in challenges to 
electoral systems at various governmental and quasi- 
govemmental levels. These challenges are based primarily 
on the Voting Rights Act, 42 U.S.C. § 1973, and/or the 
United States Constitution. Mr. Avila takes all of these 
cases on a pure contingency basis, and depends on court- 
awarded attorney’s fees for a substantial portion of his 
compensation. Without substantial enhancers to 
compensate for the contingency of not being paid at all, he 
would be forced to limit his practice and take on either 
hourly-rate paying clients or contingency cases with the 
promise of large monetary damages awards. Substantial 
fee enhancements are necessary to make a contingency- 
based practice such as Mr. Avila’s economically feasible.



A-3

Cooper, Mitch, Crawford, Kuykendall & Whatley
1100 Financial Center
505 Twentieth Street North
Birmingham, AL 35203
(205) 328-9576

Cooper, Mitch, Crawford, Kuykendall & Whatley, a 
law firm of thirteen lawyers in Birmingham, Alabama, 
represents labor unions throughout the Southeast. It also 
has an active plaintiffs’ tort practice and represents the City 
of Birmingham and historically black colleges in civil rights 
matters.

In recent years, the firm has represented a large 
number of individuals in employment discrimination cases. 
Almost all of these cases are by necessity contingency fee 
cases. Even with the contingency enhancers approved by 
the Eleventh Circuit, it is difficult to make this part of the 
practice financially productive. If the Supreme Court 
eliminates the possibility of recovering enhanced fees, then 
the firm will cease handling employment discrimination 
cases on a contingency basis; instead, the firm will devote 
its time and resources to other kinds of cases and to clients 
who can afford to pay fees on a non-contingent basis.

Disability Rights Education and Defense Fund, Inc. 
2216 Sixth Street 
Berkeley, CA 94710 
(510) 644-2555

The Disability Rights Education and Defense Fund, 
Inc. (DREDF) is a national disability civil rights 
organization dedicated to securing equal citizenship for 
Americans with disabilities. DREDF pursues its mission 
through education, advocacy and law reform efforts. In its 
efforts to promote the full integration of citizens with 
disabilities into the American mainstream, DREDF has 
represented and/or assisted hundreds of people with 
disabilities who have been denied their rights and excluded



A-4

from opportunities because of false and demeaning 
stereotypes.

DREDF’s efforts to enforce federal statutes protecting 
the rights of people with disabilities depend in large part on 
its ability to work with the private bar in both individual 
and class action lawsuits and to refer such cases to private 
counsel. This ability would be seriously affected if there 
were no possibility of enhancers to attorney’s fees awards 
for contingent risk.

Jay-Alien Eisen Law Corporation 
1000 G Street, Suite 300 
Sacramento, CA 95814 
(916) 444-6171

Jay-Allen Eisen Law Corporation is a private law firm 
that does a significant amount of public interest work and 
depends in part on fees recovered in these cases as a means 
of financing these activities. The firm’s interest in this 
case is to ensure that counsel performing legal services 
which benefit the public are adequately compensated, and 
will therefore be encouraged to continue performing these 
legal services.

Erickson, Beasley, Hewitt & Wilson 
12 Geary Street, 8th Floor 
San Francisco, CA 94108 
(415) 781-3040

Erickson, Beasley, Hewitt & Wilson is a twelve 
lawyer firm with an active civil rights docket. This docket 
has consisted primarily of the representation of plaintiffs 
and plaintiff classes in complex civil rights matters in the 
federal courts, often against the federal government.

All of these complex civil rights cases have been 
contingency fee cases. Such cases are too complicated and 
too time consuming — in summary, too expensive — for



A-5

any individual plaintiff or plaintiff class to pay the firm’s 
billings. It has always been difficult to make this area of 
the practice financially feasible. Without the possibility of 
a fee award enhancement, the firm’s civil rights docket 
would become financially impossible, and the firm would 
have to drastically curtail its representation in this area of 
the law.

Law Office of Alan B, Exelrod 
660 M arket Street, Suite 300 
San Francisco, CA 94104 
(415) 392-2800

Alan B. Exelrod is a solo practitioner representing 
plaintiffs in litigation involving employment and civil 
rights. He has been engaged in this practice as a solo 
practitioner for ten years and has been involved in civil 
rights law since graduating from law school in 1968.

None of the plaintiffs Mr. Exelrod represents can 
afford to pay him his full hourly rate. He therefore 
assumes the risk of losing money every time he files a 
lawsuit. Many of these cases are hard fought over a long 
period of time. In calculating the economics of his prac­
tice, enhancement of fees is central to his being able to 
represent clients who cannot pay hourly fees. He generally 
does not work with civil rights organizations but litigates 
such cases on his own or with other private counsel.

Ferguson, Stein, W att, Wallas, Adkins 
& Gresham, P.A.
700 East Stonewall Street, Suite 730 
Charlotte, NC 28202 
(704) 375-8461

Ferguson, Stein, Watt, Wallas, Adkins & Gresham, 
P.A ., a 14-lawyer law firm, has devoted a substantial 
portion of its practice to representing plaintiffs in civil 
rights cases including school desegregation litigation,



A-6

voting rights litigation, and employment discrimination 
litigation on a contingency basis. Most civil rights 
plaintiffs do not have funds to hire attorneys on an hourly 
basis. Very few lawyers in North Carolina are willing to 
represent plaintiffs in civil rights cases when their fee will 
be contingent. Because of the firm’s difficulty in obtaining 
reasonable fees, the firm has decreased its civil rights 
caseload over the past few years. If the Supreme Court 
eliminates the opportunity to obtain fee enhancements in 
cases that are contingent, it is likely that the firm will 
continue to take fewer civil rights cases. Substantial fee 
enhancements are necessary to make a contingency civil 
rights practice viable.

The Law Offices of R ichard B. Fields 
The W right Carriage House 
688 Jefferson Ave.
Memphis, TN 38105 
(901) 529-8503

Mr. Fields and his former partners have practiced civil 
rights law in Memphis for over 20 years. His predecessor 
firm, Ratner & Sugarmon, was the first integrated law firm 
in Memphis and was involved in landmark civil rights 
litigation involving school desegregation, employment 
discrimination, police misconduct, and housing 
discrimination. The firm served as counsel in landmark 
civil rights cases before this Court, including Firefighters 
Local Union 1784 v. Stotts, 467 U.S. 561 (1984), Brandon 
v. Hold, 469 U.S. 464 (1985), and Dayton Board o f  
Education v. Brinkman, 443 U.S. 526 (1979). All of this 
work was undertaken on a contingency basis with the 
expectation of court-awarded attorney’s fees. Enhanced 
attorney’s fees awards are necessary to enable private law 
firms to undertake civil rights litigation.



A-7

Julian, Olson & Lasker, S.C.
330 East Wilson Street 
P.O . Box 2206 
M adison, W I 53701-2206 
(608) 255-6400

Julian, Olson & Lasker, S.C., is a three lawyer firm 
that enjoys a reputation for cutting-edge constitutional and 
civil rights litigation on behalf of plaintiffs. Its attorneys 
have handled voting rights, school desegregation, 
employment housing discrimination and other civil rights 
cases across the country, many in cooperation with the 
NAACP Legal Defense and Educational Fund, Inc. 
Almost all of the firm’s plaintiffs’ cases are taken pursuant 
to contingent fee arrangements, but because attorney’s fees 
awards have not been adequate, the firm has been forced in 
recent years to avoid cases in which its compensation will 
be wholly derived from court-awarded attorney’s fees. The 
firm has actively sought defense work and has begun to 
require substantial retainers in contingent fee cases for 
plaintiffs. Low income clients whose claims appear 
meritorious but which lack substantial monetary damages 
components are regularly turned away, and many of these 
clients simply do not find lawyers to represent them at all.

Legal Services for Prisoners with Children 
1535 Mission Street 
San Francisco, CA 94103 
(415) 255-7036

Legal Services for Prisoners with Children (LSPC) is 
a legal services organization focusing on the needs of 
prisoners, their children, and family members. Founded in 
1978, LSPC provides litigation assistance to lawyers and 
legal advocates working with prisoners and their families 
on a wide range of civil legal issues. LSPC attorneys are 
currently co-counsel in several class actions on behalf of 
prisoners, parolees, and family members. LSPC joins this 
amicus brief because it is deeply concerned about the



A-8

ability of prisoners and their families to obtain legal 
counsel to represent them. There are few lawyers willing 
to represent indigent prisoners, and eliminating the poten­
tial for prevailing parties to recover enhanced attorney’s 
fees awards would make it even harder for prisoners and 
their families to obtain representation.

Legal Services of Northern California 
515 Twelfth Street 
Sacramento, CA 95814 
(916) 444-6760

Legal Services of Northern California (LSNC) is a 
private non-profit corporation organized and existing under 
the laws of the State of California for the purpose of 
delivering free legal assistance to individuals and groups 
who meet income eligibility requirements. Founded thirty- 
five years ago, LSNC maintains offices in five cities 
serving 18 counties in northern California. Last year 
alone, LSNC attorneys served more than 17,000 impover­
ished citizens with critical legal problems.

In cooperation with local bar associations, LSNC 
operates Voluntary Legal Services Program of Northern 
California, providing legal assistance in civil law matters 
through referrals to private attorneys. LSNC’s interest in 
this case is to preserve its ability to refer cases to the 
private bar, and to attract competent counsel for such 
referrals.

Mexican American Legal Defense and Educational Fund 
634 South Spring Street, 11th Floor 
Los Angeles, CA 90014 
(213) 629-2612

The Mexican American Legal Defense and Educational 
Fund (MALDEF) is a national civil rights organization 
established in 1967. Its principal objective is to secure, 
through litigation and education, the civil rights of His-



A-9

panics living in the United States. In order to pursue this 
objective — particularly with regard to vindicating the 
rights of Hispanics to be free from discrimination in 
education, employment, and full political participation — 
MALDEF relies heavily on private practitioners acting as 
cooperating attorneys to represent Hispanics who have been 
the victims of discrimination. These private attorneys, who 
are paid neither by MALDEF nor by their impecunious 
clients, undertake such legal representation in reliance on 
market-based statutory fee awards paid only at the conclu­
sion of cases in which their clients have prevailed. Only 
through fee awards which take into account the manner in 
which contingency risk operates in the marketplace can 
Hispanics have any chance of vindicating their statutory 
and constitutional rights in court.

NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 219-1900

The NAACP Legal Defense and Educational Fund, 
Inc. (LDF) is a non-profit organization organized as a legal 
aid society under the laws of the State of New York. It 
was formed to assist African Americans in securing their 
constitutional rights by the prosecution of lawsuits. LDF 
depends on members of the private bar, most of whom are 
single practitioners or in small firms, to associate with it as 
co-counsel in order to carry out its work. These attorneys, 
in turn, depend on the availability of attorney’s fees under 
the various civil rights statutes to be able to participate in 
complex and time-consuming federal litigation. LDF has 
participated as counsel and as amicus curiae in most of the 
leading attorney’s fees cases in this and other courts. For 
the above reasons, LDF has a vital interest in the outcome 
of this case.



A-10

National Employment Lawyers Association 
535 Pacific Avenue 
San Francisco, CA 94133 
(415) 397-6335

The National Employment Lawyers Association 
(NELA) (Advocates for Employee Rights) is a non-profit 
corporation with over 1100 lawyer members in 49 states. 
Its members specialize in representing individual employees 
in employment rights cases. Most NELA members 
regularly handle discrimination cases under various civil 
rights statutes that provide for attorney’s fees for the 
prevailing plaintiff. NELA and its members are constantly 
litigating "multiplier" fee enhancement issues in federal 
court and are deeply concerned about the necessity of 
obtaining a reasonable enhancement as ail incentive to 
ensure that lawyers are available for victims of discriminat­
ion.

Patterson, Harkavy, Lawrence, Van Noppen & Okun
206 New Bern Place
P .O . Box 27927
Raleigh, NC 27611
(919) 755-1812

Patterson, Harkavy, Lawrence, Van Noppen & Okun 
is an eight lawyer firm with offices in Raleigh and 
Greensboro, North Carolina. Historically, a significant 
part of the firm’s practice has involved the representation 
of plaintiffs in employment discrimination and 
constitutional tort litigation. The vast majority of these 
plaintiffs are unable to pay hourly fees and hence, if they 
are to pursue their claims, representation must be on a 
contingent basis.

Firms such as Patterson, Harkavy, can take such cases 
only if the compensation we receive for successful public 
interest litigation exceeds fees generated by other work 
where compensation is non-contingent. The firm cannot



A -n

continue to turn away clients who will pay on an hourly 
basis at market rates in favor of cases where the firm risks 
spending hundreds of hours without compensation, and 
then, if it prevails, can expect to receive only the same 
hourly fee it would have received, without risk, from other 
clients. Nor can public interest litigation compete with 
other traditional contingent cases where success normally 
results in fees substantially in excess of the firm’s non­
contingent hourly rate. Unless fees awarded by courts for 
successful public interest litigation reflect the market 
practice of enhanced compensation for contingent work, 
access to the courts for clients with claims of constitutional 
violations and discrimination will effectively be denied.

R ichard M . Pearl 
685 M arket Street, #370 
San Francisco, CA 94105 
(415) 243-9912

Richard M. Pearl is a sole practitioner. He is the 
author of California Continuing Education of the Bar’s 
California Attorney’s Fee Awards Practice and its annual 
supplements, and is a member of the California State Bar’s 
Attorney’s Fees Task Force. In his practice, he has 
represented numerous profit and non-profit law firms 
claiming court awarded attorney’s fees, and also has served 
as an expert witness for both fee claimants and opponents. 
Through that experience, he has seen first hand the monu­
mental risk and commitment undertaken by attorneys who 
are willing to represent victims of civil rights and 
environmental law violations. The prospect of receiving a 
fee that will recognize that risk, as the private market does, 
is crucial to permitting and encouraging those attorneys to 
continue in this field. Without a fee that recognizes risk, 
the simple demands of the market will drive even the most 
committed attorneys out of the field, undermining 
Congress’s purpose in providing fee-shifting statutes.



A-12

Planned Parenthood Affiliates of California 
1029 K Street, Suite 24 
Sacramento, CA 95814 
(916) 446-5247

Planned Parenthood Affiliates of California (PPAC) is 
a non-profit corporation organized and existing under the 
laws of the State of California. PPAC’s members are 16 
local Planned Parenthood affiliate agencies throughout 
California that provide comprehensive family planning 
services in their various communities. PPAC advocates in 
the Legislature, before administrative agencies, and in the 
courts for provision of comprehensive family planning 
services on behalf of approximately 160 public and private 
family planning agencies, as well as individuals.

PPAC is interested in this case because PPAC depends 
heavily on the private bar to represent its member affiliates 
in cases involving family planning services. The possibility 
of recovering fee enhancers attracts a larger pool of skilled 
attorneys who are willing to undertake representation at 
reduced rates or on a pro born basis in the expectation that 
if they prevail they may recover attorney’s fees at market 
rates.

Prison Law Office 
General Delivery 
San Quentin, CA 94964 
(415) 457-9144

The Prison Law Office (PLO) is a non-profit legal 
services organization dedicated to providing civil legal 
services to California state prisoners. This office devotes 
a major portion of its practice to class action civil rights 
litigation seeking exclusively injunctive relief. The office 
does not charge clients a fee and obtains approximately 
75% of its funding from attorney’s fees. The issue of 
contingency risk enhancement is particularly important to



A-13

this organization because it is crucial to its efforts to attract 
private firms to assist with large institutional litigation.

Public Advocates, Inc.
1535 Mission Street 
San Francisco, CA 94103 
(415) 431-7430

Public Advocates, Inc. is a non-profit organization 
devoted to representing plaintiffs in a wide variety of 
public interest litigation. Public Advocates receives no 
payment from any of its clients, and does not receive 
sufficient funding from charitable contributors to finance its 
work. Thus, Public Advocates depends for its existence in 
large part on court-awarded attorney’s fees. All of Public 
Advocates’ cases are taken on a contingency basis, with the 
expectation that if plaintiffs prevail, they will be entitled to 
attorney’s fees at market rates. Public Advocates often 
requires outside cooperating counsel to assist it in its most 
complex cases. Without the prospect of recovering 
attorney’s fees, including enhancers to compensate for 
contingent risk, it would be difficult for this firm to attract 
outside counsel. Public Advocates is thus vitally interested 
in the outcome of this case.

Puerto Rican Legal Defense and Education Fund, Inc. 
99 Hudson Street, 14th Floor 
New York, NY 10013 
(212) 219-3360

The Puerto Rican Legal Defense & Education Fund 
(PRLDEF) is a not-for-profit civil rights organization 
dedicated to protecting and furthering the rights of Puerto 
Ricans and other Latinos. PRLDEF receives approxi­
mately 10 calls every day from persons who are seeking 
legal assistance in pursuing civil rights claims. Many of 
these individuals have already unsuccessfully sought to 
retain attorneys in private practice to take their cases. 
Similarly, PRLDEF has been unable to find attorneys who



A-14

are willing to serve as cooperating co-counsel on these 
matters. The almost universal response from the private 
bar is that they cannot afford to take civil rights cases 
because the likelihood of success is too risky and the 
amount of attorney’s fees too small. PRLDEF believes that 
in order for an award of attorney’s fees to be an enticement 
to attorneys to handle these matters, there must be a 
contingency enhancement.

Rosen, Bien & Asaro 
155 Montgomery Street, 8th Floor 
San Francisco, CA 94104 
(415) 433-6830

Rosen, Bien and Asaro, a seven lawyer firm, devotes 
a substantial part of its practice to complex litigation under 
federal fee-shifting statutes, including state-wide prisoner 
class actions and employment discrimination litigation. 
The firm’s clients in these cases invariably are unable to 
afford legal representation except on a contingency basis. 
Particularly in prisoner class actions, where the relief 
sought is injunctive or declaratory only, and where 
typically no monetary damages are sought, the only basis 
for the firm’s compensation, if plaintiffs prevail, is an 
award of reasonable attorney’s fees pursuant to the 
applicable fee-shifting statutes. It is the availability of 
contingency risk enhancers that makes it economically 
feasible for a small firm like ours to take on such cases. 
If no such enhancers were available, the firm would be 
forced substantially to limit its representation of clients 
whose civil rights have been violated in favor of clients 
willing and able to pay on an hourly basis, or in favor of 
contingency cases with the promise of a large monetary 
damages award.