Purdue v. Kenny Brief Amicus Curiae

    No. 08-970

In The

#upnmtL' (Omul of tbi' Imtrft Stairs

SONNY Perdue, Governor of Georgia, et al.,
Petitioners,

v.

KENNY A., By His Next Friend Linda Winn, et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Eleventh Circuit

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC. 

IN SUPPORT OF RESPONDENTS

Joshua Civin 
Kristen Clarke 
N A A C P  Legal Defense & 

Educational Fund, Inc. 
1444 I Street, N W , 10th FI. 
W ashington, DC 20005  
(202) 682 -1300

John Payton 
Director-Counsel 

Debo P. Adegbile 
Counsel o f Record  

Matthew Colangelo 
Kimberly Liu 
N A A C P  Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th FI. 
New York, N Y  10013  
(212) 965 -2200

August 28, 2009



QUESTION PRESENTED
Can an attorney’s fees award under a federal fee- 

shifting statute ever be enhanced based on quality of 
performance and results obtained?



TABLE OF CONTENTS

QUESTION PRESENTED.......................................i
TABLE OF CONTENTS............................................ii
TABLE OF AUTHORITIES.....................................iv
INTEREST OF AMICI CURIAE...............................1
SUMMARY OF ARGUMENT....................................2
ARGUMENT............................................... .............. 4
I. Section 1988’s legislative history demon­

strates that Congress intended to permit 
enhancements for extraordinary perform­
ance and results that vindicate civil rights....4
A. It was Congress’s well-considered

judgment that Section 1988 should 
provide significant incentives for 
vigorous and effective civil rights 
enforcement.................................................. 5

B. Congress intended for the same
standards to govern civil rights fees 
awards as apply in antitrust cases, 
where courts have long awarded 
enhancements for extraordinary per­
formance and results...................................8

C. Congress has repeatedly rejected pro­
posals that would have expressly pro­
hibited enhancements................................ 11



Ill

II. Federal courts have developed workable 
criteria that reserve enhancements for liti­
gation that substantially furthers Con­
gress’s objective of vigorous civil rights en­
forcement............................................................ 16
A. Courts have properly limited en­

hancements to those cases that estab­
lish important precedents or achieve 
broad relief that roots out entrenched 
inequities.....................................................16

B. The criteria that courts have used to 
award enhancements for extraordi­
nary performance and results are con­
sistent with Supreme Court precedent... 28

CONCLUSION..........................................................31



IV

TABLE OF AUTHORITIES
Cases

Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240 (1975)......................passim

Arenson v. Board of Trade,
372 F. Supp. 1349 (N.D. 111. 1974).........  9, 10, 27

Baty v. Willamette Industries, Inc.,
985 F. Supp. 1002 (D. Kan. 1997).................... 27

Blanchard v. Bergeron, 489 U.S. 87 (1989).............7
Blum v. Stenson, 465 U.S. 886 (1984)........... passim
Bolden v. Pennsylvania State Police,

491 F. Supp. 958 (E.D. Pa. 1980).....................23
Chrapliwy v. Uniroyal, Inc.,

670 F.2d 760 (7th Cir. 1982)........................ 20-21
Chrapliwy v. Uniroyal, Inc.,

583 F. Supp. 40 (N.D. Ind. 1983)................. 19-21
Chrapliwy v. Uniroyal, Inc.,

509 F. Supp. 442 (N.D. Ind. 1981)....................20
Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978)............................................  11
City of Burlington v Dague,

505 U.S. 557 (1992).................................  1, 16, 29
City of Riverside v. Rivera,

477 U.S. 561 (1986)............................................... 7
County of Los Angeles v. Davis,

440 U.S. 625 (1979)............................................  26
Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437 (1987)............................................  12



Davis v. County of Los Angeles,
566 F.2d 1334 (9th Cir. 1977)...........................  26

Davis v. County of Los Angeles,
No. 73-63-WPG, 1974 WL 180
(C.D. Cal. June 5, 1974)........................... 7, 25-26

DeHoyos v. Allstate Corp.,
240 F.R.D. 269 (W.D. Tex. 2007)......................  24

Geier v. Sundquist,
372 F.3d 784 (6th Cir. 2004)........................  18-19

Geier v. Sundquist, No. 5077,
slip op. (M.D. Tenn. Jan. 21, 2005) ................. 19

Geier v. University of Tennessee,
597 F.2d 1056 (6th Cir. 1979)...........................  18

Graves v. Barnes, 700 F.2d 220 (5th Cir. 1983).... 30
Hensley v. Eckerhart, 461 U.S. 424 (1983).........  1, 7
Herman & MacLean v. Huddleston,

459 U.S. 375 (1983)............................................  13
Hughes v. Repko,

578 F.2d 483 (3rd Cir. 1978)............................  17
Hyatt v. Apfel, 195 F.3d 188 (4th Cir. 1999)........  24
INS v. Cardoza-Fonseca,

480 U.S. 421 (1987)....................................... 11-12
Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974)...........................  1, 7
Kirksey v. Danks,

608 F. Supp. 1448 (S.D. Miss. 1985)................24
Lynch v. City of Milwaukee,

747 F.2d 423 (7th Cir. 1984) 27-28



VI

Meredith v. Jefferson County Board of Educa­
tion, No. 3:02CV-620-H, 2007 WL 3342282 
(W.D. Ky. Nov. 9, 2007)..................................... 25

Morales Feliciano v. Hernandez Colon,
697 F. Supp. 51 (D.P.R. 1988).......................... 24

Nachman Corp. v. Pension Benefit Guaranty
Corp., 446 U.S. 359 (1980)................................  12

Newman u. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)........................................ 1, 22

Parents Involved in Community Schools v.
Seattle School District No. 1, 551 U.S. 701 
(2007)...............................................................24-25

Pennsylvania v. Delaware Valley Citizens’
Council for Clean Air, 478 U.S. 546 (1986).....  29

Rajender v. University of Minnesota,
546 F. Supp. 158 (D. Minn. 1982).................... 21

Reynolds v. Abbeville County School District 
No. 60, No. 72-1209, 1978 WL 64 
(D.S.C. Mar. 16, 1978)...................................21-22

Shakman v. Democratic Organization of Cook
County, 677 F. Supp. 933 (N.D. 111. 1987).......  21

Sims v. Amos,
340 F. Supp. 691 (M.D. Ala. 1972)....................  30

Stanford Daily v. Zurcher,
64 F.R.D. 680 (N.D. Cal. 1974).....................  7, 26

Stanford Daily v. Zurcher,
353 F. Supp. 124 (N.D. Cal. 1972).................... 26

Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971)............................. 27



Swann v. Charlotte-Mecklenburg Board of 
Education, 66 F.R.D. 483 
(W.D.N.C. 1975).........................................  1, 7, 27

United States v. Fordice, 505 U.S. 717 (1992).....  19
Vulcan Society of Westchester County, Inc. v.

Fire Department of City of White Plains,
533 F. Supp. 1054 (S.D.N.Y. 1982).................. 28

West v. Tyson Foods, Inc., No. 4:05-cv-183M,
2008 WL 5110954 (W.D. Ky. Dec. 3, 2008).....  27

White v. City of Richmond,
713 F.2d 458 (9th Cir. 1983)........................ 23-24

White v. City of Richmond,
559 F. Supp. 127 (N.D. Cal. 1982)................23-24

Zurcher v. Stanford Daily, 436 U.S. 547 (1978).... 26

Statutes

15U.S.C. § 15.............................................................. 9
15U.S.C. § 2 6 .............................................................. 3
20 U.S.C. § 1415(i)(3)(C).......................................... 15
22 U.S.C. § 277d-21...................................................15
28 U.S.C. § 2412(d)(1)(A)....................................14-15
28 U.S.C. § 2412(d)(2)(A)....................................14-15
28 U.S.C. § 2678....................................................... 15
42 U.S.C. § 406(b)(1).................................................15
42 U.S.C. § 1981..........................................................2
42 U.S.C. § 1982.................................................. 2, 17
42 U.S.C. § 1983..........................................................2

vii



V l l l

42 U.S.C. § 1988............................................... passim
42 U.S.C. § 2000a-3(b)............................................. 11
42 U.S.C. § 2000e-5(k).......................................11, 19
48 U.S.C. § 1424c(f)...................................................15
50 U.S.C. App. § 1985.............................................. 15

Legislative Materials

Civil Rights Attorney’s Fees Awards Act of
1976, Pub. L. No. 94-559, 90 Stat. 2641 ...passim

Clayton Antitrust Act, ch. 323, 38 Stat. 731
(1914).....................................................................9

Federal Courts Improvement Act of 1996, Pub.
L. No. 104-317, § 309(b), 110 Stat. 3853.........  13

Hart-Scott-Rodino Antitrust Improvements 
Act of 1976, Pub. L. No. 94-435, § 302(3),
90 Stat. 1396..............................................3, 9, 10

Religious Freedom Restoration Act of 1993,
Pub. L. No. 103-141, § 4(a), 107 Stat. 1489.... 13

H.R. Rep. No. 94-499(1) (1976), as reprinted in
1976 U.S.C.C.A.N. 2572.......................................9

H.R. Rep. No. 94-1558 (1976)........................  6, 7, 22
H.R. Rep. No. 99-687 (1986) (Conf. Rep.), as

reprinted in 1986 U.S.C.C.A.N. 1807............... 15
S. Rep. No. 94-1011 (1976), as reprinted in

1976 U.S.C.C.A.N. 5908............................ passim
122 Cong. Rec. 31471 (1976)......................................5
122 Cong. Rec. 31472 (1976)......................................6



IX

122 Cong. Rec. 31477 (1976).................................  11
122 Cong. Rec. 31478 (1976).................................  11
122 Cong. Rec. 31480-81 (1976)............................  11
122 Cong. Rec. 32172 (1976).....................................5
122 Cong. Rec. 33314 (1976).....................................6
122 Cong. Rec. 33315 (1976).....................................5
122 Cong. Rec. 35118 (1976)................................  5, 9
122 Cong. Rec. 35119 (1976).....................................5
122 Cong. Rec. 35129 (1976).....................................6
122 Cong. Rec. 35130 (1976).....................................5
131 Cong. Rec. 22346-67 (1985)............................  14
133 Cong. Rec. 13556-63 (1987)............................  14
137 Cong. Rec. 28871-80 (1991)............................  14
Legal Fees Equity Act, S. 2802, 98th Cong.

§ 6(a)(2) (1984)...................................................  13
Legal Fees Equity Act, S. 1580, 99th Cong.

§ 6(a)(2) (1985)...................................................  13
Legal Fees Equity Act, S. 1253, 100th Cong.

§ 6(a)(2) (1987)...................................................  13
Legal Fees Equity Act, S. 90, 101st Cong.

§ 6(a)(2) (1989)..............................................  13-14
Legal Fees Equity Act, S. 133, 102nd Cong.

§ 6(a)(2) (1991).....................................................14
S.585, 97th Cong. § 722A(e) (1982).......................  13
Attorney’s Fees Awards: Hearings on S. 585 

(and on Amendments to Be Proposed by 
Senator Orrin G. Hatch) Before the Sub-



X

committee on the Constitution of the Senate 
Committee on the Judiciary, 97th Cong.
(1982)...................................................................  14

Awarding of Attorneys’ Fees: Hearings Before 
the Subcommittee on Courts, Civil Liberties 
and the Administration of Justice of the 
House Committee on the Judiciary, 94th 
Cong. (1975)............................................  1, 6, 9-10

The Legal Fee Equity Act: Hearing on S. 2802 
Before the Subcommittee on the Constitu­
tion of the Senate Committee on the Judici­
ary, 98th Cong. (1985)....................................... 13

Legal Fees Equity Act: Hearings on S. 1580, S.
1794, and S. 1795 Before the Subcommittee 
on the Constitution of the Senate Committee 
on the Judiciary, 99th Cong. (1986)................  14

Legal Fees: Hearings Before the Subcommittee 
on Representation of Citizen Interests of the 
Senate Committee on the Judiciary, 93rd 
Cong. (1974)...........................................................7

Municipal Liability Under 42 U.S.C. 1983:
Hearings on S. 584, S. 585, and S. 990 Be­
fore the Subcommittee on the Constitution 
of the Senate Committee on the Judiciary,
97th Cong. (1981)................................................14

Other Authorities

Executive Order No. 11246, 30 Fed. Reg.
12,319 (1965), reprinted as subsequently 
amended in 42 U.S.C. § 2000e app...................20



X I

Louis Kaplow, Rules Versus Standards: An 
Economic Analysis, 42 Duke L. J. 557 
(1992)...................................................................  17

Pamela S. Karlan, Disarming the Private At­
torney General, 2003 U. 111. L. Rev. 183........... 17

William Trombley, Campuses Optimistic That 
Calm Will Prevail, L.A. Times, Apr. 12,
1971, at D 1...........................................................26



1

INTEREST OF AMICUS CURIAE i
The NAACP Legal Defense & Educational Fund, 

Inc. (LDF) is a non-profit legal organization that has 
assisted African Americans and other people of color 
in securing their civil and constitutional rights for 
more than six decades. LDF litigated key cases that 
developed the legal framework for attorney’s fees 
awards in civil rights cases, and that were incorpo­
rated into the legislative history of the Civil Rights 
Attorney’s Fees Awards Act of 1976, Pub. L. No. 94- 
559, 90 Stat. 2641 (codified as amended at 42 U.S.C. 
§ 1988). See, e.g., Newman v. Piggie Park Enters., 
Inc., 390 U.S. 400 (1968); Johnson v. Georgia High­
way Express, Inc., 488 F.2d 714 (5th Cir. 1974); 
Swann v. Charlotte-Mecklenburg Bd. of Educ., 66 
F.R.D. 483 (W.D.N.C. 1975); see also Awarding of 
Attorneys’ Fees: Hearings Before the Subcomm. on 
Courts, Civil Liberties and the Admin, of Justice of 
the H. Comm, on the Judiciary, 94th Cong. 54 (1975) 
(statement of Rep. Drinan) (citing LDF’s reliance on 
the availability of attorney’s fees awards to litigate 
civil rights cases).

LDF has also participated as an amicus in cases 
before this Court interpreting the scope of reason­
able attorney’s fees provisions in various federal 
statutes. See, e.g., City of Burlington v. Hague, 505 
U.S. 557 (1992); Blum v. Stenson, 465 U.S. 886 
(1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).

1 Pursuant to Rule 37.6, counsel for the amicus states that 
no counsel for a party authored this brief in whole or in part, 
and that no person other than the amicus, its members, or its 
counsel made a monetary contribution to the preparation or 
submission of this brief. Letters of consent from the parties are 
lodged with the Clerk of the Court pursuant to Rule 37.3.



2

SUMMARY OF ARGUMENT
Effective civil rights laws are vital to the health 

of our democracy. But even the best statute is es­
sentially a dead letter without vigorous enforcement. 
Congress was well aware of the dangers of under­
enforcement when it passed the Civil Rights Attor­
ney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 
90 Stat. 2641 (codified as amended at 42 U.S.C. 
§ 1988) [hereinafter Section 1988]. It was Congress’s 
reasoned determination that robust attorney’s fees 
awards, including enhancements for extraordinary 
performance and results, would provide a much- 
needed catalyst to encourage citizens to pursue the 
types of litigation that most boldly defend and en­
hance civil rights. This case presents no occasion for 
the Court to displace Congress’s well-considered 
judgment.

Section 1988 was Congress’s swift and decisive 
response to a decision of this Court that prohibited 
attorney’s fees awards absent express statutory au­
thorization. See Alyeska Pipeline Serv. Co. v. Wil­
derness Soc’y, 421 U.S. 240 (1975). A little over a 
year after Alyeska was decided, Congress overcame a 
Senate filibuster and enacted Section 1988, which 
authorizes “a reasonable attorney’s fee” for prevail­
ing litigants under an array of civil rights laws, in­
cluding 42 U.S.C. §§ 1981, 1982, and 1983.

This brief supplements Respondents’ analysis of 
Section 1988’s legislative history in three distinctive 
ways. First, Section 1988 does more than simply 
provide access to the courts for plaintiffs seeking re­
dress for individual wrongs. Congress also sought to 
promote vigorous and effective civil rights enforce­



3

ment. To achieve this broad-reaching objective, 
Congress adopted an expansive view of what consti­
tutes a reasonable attorney’s fee. In no way did 
Congress intend to restrict fees awards to the “lode­
star” calculation that results from multiplying the 
number of hours an attorney worked by a reasonable 
rate for his or her services. Rather, Congress gave 
clear direction that enhancements above the lodestar 
are permitted in exceptional circumstances for ex­
traordinary performance and results that forcefully 
advance civil rights.

Second, the legislative history emphasizes the 
symmetry between Section 1988 and Congress’s si­
multaneous enactment of a statute that filled an­
other gap created by Alyeska. The Hart-Scott- 
Rodino Antitrust Improvements Act of 1976, Pub. L. 
No. 94-435, § 302(3), 90 Stat. 1396 (codified as 
amended at 15 U.S.C. § 26) [hereinafter Antitrust 
Improvements Act], provided for reasonable attor­
ney’s fees in certain antitrust cases. Congress de­
termined that courts should have the same power to 
grant enhancements to promote vigorous civil rights 
enforcement and to encourage the efficacious imple­
mentation of antitrust policy.

Third, in 1976, when Congress was considering 
Section 1988, it rejected an amendment that would 
have done exactly what Petitioners urge. It is an es­
tablished principle of statutory construction that 
Congress does not intend sub silentio to enact statu­
tory language that it has earlier discarded. More­
over, subsequent Congresses have confirmed the im­
portance of enhancements by repeatedly rebuffing 
legislation to curtail or ban them.



4

After highlighting these distinctive features of 
the legislative history, this brief surveys cases de­
cided after the enactment of Section 1988. Contrary 
to the assertions of Petitioners and their amici, 
courts have proved adept at crafting workable 
criteria for determining the rare circumstances in 
which enhancements for extraordinary performance 
and results are warranted to promote vigorous en­
forcement of civil rights. Courts have found it rea­
sonable to enhance fees in cases that set important 
precedents or otherwise pave the way for future fed­
eral and private enforcement, recognizing that these 
cases require the greatest degree of ingenuity, and 
thus the number of hours an attorney works are less 
likely to reflect the true value of his or her services. 
In addition, courts have granted enhancements in 
cases that do not merely remedy violations of an in­
dividual’s rights, but provide broad-reaching relief 
that roots out entrenched discrimination or eradi­
cates systemic inequities.

ARGUMENT
!• Section 1988’s legislative history demon­

strates that Congress intended to permit 
enhancements for extraordinary perform­
ance and results that vindicate civil rights.
This Court has repeatedly relied upon legislative 

history in the interpretation of statutory terms that 
are not clear on their face. The “reasonable attor­
ney’s fee” language in Section 1988 is no exception. 
See, e.g., Blum v. Stenson, 465 U.S. 886, 893-97 
(1984). This section highlights three distinctive as­
pects of Section 1988’s legislative history that are



5

not addressed in Respondents’ brief. Close review of 
the legislative history confirms that the availability 
of enhancements was part of a deliberate congres­
sional determination that civil rights enforcement 
should be vigorous, incentivized, and compensated 
on terms no less favorable than in other substantive 
areas where enhancements have long been granted 
to further key national priorities.

A. It was Congress’s well-considered judg­
ment that Section 1988 should provide 
significant incentives for vigorous and 
effective civil rights enforcement.

1. While Section 1988 ultimately passed by broad 
margins in both the House and Senate, see 122 Cong. 
Rec. 33315, 35130 (1976), the process preceding the 
vote reveals significant deliberation and intense de­
bate—an illustration of Congress’s carefully consid­
ered judgment. Indeed, proponents had to devote 
extraordinary resources to bring the legislation to a 
vote. The Senate approved Section 1988 after a clo­
ture vote ended an unusually hard-fought filibuster. 
Id. at 32172. In the House, proponents utilized a 
procedural maneuver reserved for “emergency” legis­
lation to ensure prompt consideration. Id. at 35118, 
35119.

Congress thought these emergency measures 
were necessary because this Court’s decision in Aly- 
eska “dealt a serious blow to the effective enforce­
ment of our civil rights laws.” 122 Cong. Rec. 31471 
(1976) (statement of Sen. Mathias). Fresh from the 
battles of the initial decades of modern civil rights 
enforcement, Congress intended its authorization of 
reasonable attorney’s fees awards to do more than



6

simply provide access to the courts for those seeking 
redress for individual wrongs. It provided for robust 
attorney’s fees awards as a catalyst for citizens to 
pursue “vigorous enforcement” of civil rights laws. 
S. Rep. No. 94-1011, at 4 (1976), as reprinted in 1976 
U.S.C.C.A.N. 5908, 5911 [hereinafter Senate Re­
port]; H.R. Rep. No. 94-1558, at 2-3 (1976) [hereinaf­
ter House Report].

Senator Tunney, the Senate bill’s sponsor, re­
minded his colleagues that “ [w]e cannot hope for vig­
orous enforcement of our civil rights laws unless we 
. . . remove the burden from the shoulders of the 
plaintiff seeking to vindicate the public right.” 122 
Cong. Rec. 33314 (1976) (emphasis added) (internal 
quotation marks omitted); see also id. at 31472 
(statement of Sen. Kennedy) (Section 1988 will “as­
sure all the citizens of this Nation . . . that Congress 
firmly intends that all our civil rights laws be vigor­
ously enforced.” (emphasis added)).2 A key House 
proponent aptly summed up Section 1988’s broad- 
reaching objectives: “A vote for the bill is a vote for 
effective civil rights laws.” Id. at 35129 (statement 
of Rep. Seiberling).

2. To achieve these far-reaching objectives, Con­
gress repeatedly recognized the multi-factor test set

2 References to the importance of “vigorous enforcement” 
also feature prominently in subcommittee hearings. See, e.g., 
Awarding of Attorneys’ Fees: Hearings Before the Subcomm. on 
Courts, Civil Liberties and the Admin, of Justice of the H. 
Comm, on the Judiciary, 94th Cong. 85 (1975) (statement of 
Armand Derfner, Lawyers’ Committee for Civil Rights); id. at 
122 (statement of Charles R. Halpern, Executive Director, 
Council for Public Interest Law); id. at 285 (recommendation of 
American Bar Association).



7

forth in a pre-Alyeska employment discrimination 
case litigated by amicus LDF—Johnson v. Georgia 
Highway Express, Inc., 488 F.2d 714 (5th Cir. 
1974)—as establishing “ [t]he appropriate standards” 
for determining reasonable attorney’s fees awards. 
Senate Report 6; see also House Report 8. The Sen­
ate Judiciary Committee further explained that the 
Johnson factors “are correctly applied” in three 
cases: Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. 
Cal. 1974); Davis v. County of Los Angeles, No. 73-63- 
WPG, 1974 WL 180 (C.D. Cal. June 5, 1974); and 
Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 66 F.R.D. 483 (W.D.N.C. 1975). See Senate Re­
port 6.

Congress deliberately chose this trilogy to em­
phasize its commitment to vigorous and effective 
civil rights enforcement. As detailed in Part II.A.3 
infra, all three cases substantially advanced the 
state of civil rights law. Davis and Stanford Daily 
expressly granted enhancements for extraordinary 
performance and results, and the fees awards in all 
three cases were among the most robust of the pre- 
Alyeska era. See Legal Fees: Hearings Before the 
Subcomm. on Representation of Citizen Interests of 
the S. Comm, on the Judiciary, 93rd Cong. 862-1107 
(1974) (collecting cases). Because these cases are 
particularly instructive with respect to the question 
presented, they merit the same close attention that 
the Court has devoted to them in prior interpreta­
tions of Section 1988. See, e.g., Blanchard v. 
Bergeron, 489 U.S. 87, 92-93 (1989); City of Riverside 
v. Rivera, 477 U.S. 561, 576 (1986) (plurality opin­
ion); Blum, 465 U.S. at 893-95; Hensley v. Eckerhart, 
461 U.S. 424, 430-32 (1983).



8

The legislative history thus refutes Petitioners’ 
assertions that enhancements are unnecessary to 
achieve the “the clear purpose” of Section 1988. Pet. 
Br. 19-20. Their view that Section 1988 simply en­
sures that aggrieved individuals are able to attract 
the services of “competent counsel” is too narrow. Id. 
at 20. While Congress sought to eliminate unfair­
ness to individuals deprived of their rights who do 
not have resources to hire an attorney, it also en­
dorsed “the broadest and most effective remedies 
available to achieve the goals of our civil rights 
laws.” Senate Report 3. Enhanced fees awards for 
extraordinary representation and results further 
Congress’s broad-reaching objectives by encouraging 
attorneys to seek cases that will not simply apply 
well-settled precedents to remedy garden-variety 
statutory or constitutional violations, but that will 
also advance the state of civil rights law, dismantle 
entrenched institutional discrimination, or eradicate 
other systemic injustices.

B. Congress intended for the same stan­
dards to govern civil rights fees awards 
as apply in antitrust cases, where courts 
have long awarded enhancements for ex­
traordinary performance and results.

Enhancements for extraordinary performance 
and results are also consistent with Congress’s in­
tent that “the amount of fees awarded under [Section 
1988] be governed by the same standards which pre­
vail in other types of equally complex Federal litiga­
tion, such as antitrust cases.” Senate Report 6. Re­
spondents aptly demonstrate that, during the period 
preceding enactment of Section 1988, courts en­
dorsed enhancements for extroardinary performance



9

and results in antitrust and securities cases, espe­
cially those with substantial public benefits. See Re­
spondents’ Br. 27-31 & n.3 (collecting cases).

For this reason, it is particularly significant that, 
on the day before Section 1988 passed the House, 
President Ford signed into law the Antitrust Im­
provements Act. Like Section 1988, the Antitrust 
Improvements Act filled a void created by Alyeska. 
As pertinent here, it authorized the award of rea­
sonable attorney’s fees for antitrust claims for in­
junctive relief.3 H.R. Rep. No. 94-499(1), at 18-20 
(1976), as reprinted in 1976 U.S.C.C.A.N. 2572, 
2588-90. As with Section 1988, Congress concluded 
that reasonable attorney’s fees in antitrust cases 
seeking injunctive relief were “an effective enforce­
ment tool” to advance an important congressional 
policy objective. Id. at 2589.

In the House floor debates regarding Section 
1988, Representative Seiberling expressly noted 
parallels to the Antitrust Improvements Act and ob­
served that “certainly the laws protecting people’s 
civil and constitutional rights are at least as impor­
tant as are antitrust laws.” 122 Cong. Rec. 35118 
(1976).

Section 1988’s legislative history also contains 
express reference to Arenson v. Board of Trade, 372 
F. Supp. 1349 (N.D. 111. 1974), a significant pre- 
Alyeska antitrust case that awarded an enhance­
ment for extraordinary performance and results. See

3 Congress had previously authorized the award of reason­
able attorney’s fees for damages claims in antitrust cases. 
Clayton Antitrust Act, ch. 323, 38 Stat. 731 (1914) (codified as 
amended at 15 U.S.C. § 15).



10

Awarding of Attorneys’ Fees: Hearings Before the 
Subcomm. on Courts, Civil Liberties and the Admin, 
of Justice of the H. Comm, on the Judiciary, 94th 
Cong. 421 (1975) (reprinting law review article dis­
cussing Arenson); Respondent’s Br. 27 (citing 
Arenson).

The enhancement in Arenson was explicitly 
geared to ensuring vigorous enforcement of key con­
gressional policy objectives in the antitrust context. 
The district court recognized “the social effect of 
th[e] litigation,” 372 F. Supp. at 1352, noting that: 
“[a]n entire industry has been restructured” as a re­
sult of the suit, id.) “[t]his achievement could well be 
of great instructive precedent in subsequent litiga­
tion,” id. at 1358; and the litigation was “fought out 
at a legal frontier where no lawyer knew all the an­
swers,” with plaintiffs’ attorneys “blazing new legal 
trails,” id. at 1352-53. The court further observed 
that “[t]he value of a lawyer’s services is not merely 
measured by time or labor” because “ [t]he practice of 
law is an art in which success depends as much as in 
any other art on the application of imagination—and 
sometimes inspiration—to the subject matter.” Id. 
at 1356.

The enactment of the Antitrust Improvements 
Act nearly simultaneously with Section 1988 under­
scores Congress’s considered judgment that Section 
1988 should permit courts to award adjustments 
above the lodestar for vigorous enforcement of fed­
eral civil rights laws using the same standards ap­
plied in other complex federal litigation, particularly 
antitrust cases. It would be wholly inconsistent with 
Congress’s intent for courts to remain free to grant 
enhancements for successful antitrust litigation but



11

not for vigorous civil rights enforcement, which Con­
gress has long considered an equally critical national 
priority.

C. Congress has repeatedly rejected 
proposals that would have expressly 
prohibited enhancements.

1. In 1976, as Congress was debating Section 
1988, it considered and rejected alternative language 
that would have made explicit the factors for setting 
a fees award and would have precluded enhance­
ments for extraordinary performance and results. 
122 Cong. Rec. 31477 (Amendment 470 to S. 2278). 
Specifically, an amendment from Senator Helms pro­
posed that an attorney’s fees award be “based upon 
the actual time expended by [an] attorney or agent 
and his or her staff in advising or representing a 
party (at prevailing rates for such services, including 
any reasonable risk factor component).” Id. at 
31477-78.

After careful consideration, Congress rejected the 
Helms amendment. Id. at 31480-81. Instead, Con­
gress adopted the “reasonable attorney’s fee” lan­
guage that it had previously used to ensure vigorous 
and effective enforcement of other civil rights stat­
utes, including Titles II and VII of the Civil Rights 
Act of 1964. See 42 U.S.C. §§ 2000a-3(b), 2000e-5(k); 
see also Christiansburg Garment Co. v. EEOC, 434 
U.S. 412, 422 (1978) (interpreting the attorney’s fees 
provision of Title VII so as not to “undercut the ef­
forts of Congress to promote the vigorous enforce­
ment” of that key employment antidiscrimination 
statute). The rejection of the Helms amendment is 
significant because, as this Court has held, “[f]ew



12

principles of statutory construction are more compel­
ling than the proposition that Congress does not in­
tend sub silentio to enact statutory language that it 
has earlier discarded in favor of other language.” 
INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) 
(quoting Nachman Corp. v. Pension Benefit Guar. 
Corp., 446 U.S. 359, 392-93 (1980) (Stewart, J., dis­
senting)).

Petitioners’ claim that “the plain statutory lan­
guage” does not “permit [ ] any type of enhancement 
to an attorney’s fee award,” Pet. Br. 13, is therefore 
incorrect. Section 1988 adopted the “reasonable at­
torney’s fee” language that Congress had long used 
in prior statutes authorizing fee-shifting for civil 
rights enforcement, because that language had al­
ready been interpreted in a manner that Congress 
sought to affirm. See Senate Report 4 (“It is in­
tended that the standards for awarding fees be gen­
erally the same as under the fee provisions of the 
1964 Civil Rights Act.”); Blum, 465 U.S. at 894 n.10 
(“Congress was legislating in light of experience 
when it enacted the 1976 fee statute.”). Indeed, 
Congress deliberately chose to reinstate the court- 
created regime employed prior to Alyeska, which 
permitted courts to enhance fee awards for extraor­
dinary performance and results in appropriate cir­
cumstances. See Crawford Fitting Co. v. J.T. Gib­
bons, Inc., 482 U.S. 437, 442 (1987) (“It is therefore 
clear that when Congress meant to set a limit on 
fees, it knew how to do so.”).

2. Post-enactment legislative activity confirms 
that Congress did not intend for Section 1988 to pre­
clude enhancements for extraordinary performance 
and results. Congress has adopted several amend-



13

merits to expand and revise Section 1988’s coverage. 
See, e.g., Federal Courts Improvement Act of 1996, 
Pub. L. No. 104-317, § 309(b), 110 Stat. 3853; Reli­
gious Freedom Restoration Act of 1993, Pub. L. No. 
103-141, § 4(a), 107 Stat. 1489. Yet Congress has 
never acted to restrict enhancements for extraordi­
nary performance and results, even though courts, 
as discussed in Part II.A infra, have granted such 
enhancements during the decades since Section 1988 
was enacted. See Herman & MacLean v. Huddle­
ston, 459 U.S. 375, 385-86 (1983) (holding that Con­
gress can be assumed to have endorsed—by failing to 
overturn—a “well-established judicial interpreta­
tion”).

Moreover, Congress has repeatedly rejected pro­
posals to proscribe enhancements to attorney’s fees 
awards. For instance, as Respondents point out, the 
Senate considered but opted not to act on legislation 
introduced in 1984 that would have amended Section 
1988 to prohibit enhancements. See Legal Fees Eq­
uity Act, S. 2802, 98th Cong. § 6(a)(2) (1984); The 
Legal Fee Equity Act: Hearing on S. 2802 Before the 
Subcomm. on the Constitution of the S. Comm, on the 
Judiciary, 98th Cong. 4-5 (1985); Respondent’s Br. 
45-46.

This 1984 effort to ban enhancements is only the 
tip of the iceberg. From 1982 through 1991, similar 
proposals were repeatedly introduced in the Senate, 
and at least two subcommittee hearings were held, 
but none of these bills was ever even voted out of 
committee. See S. 585, 97th Cong. § 722A(e) (1982); 
Legal Fees Equity Act, S. 1580, 99th Cong. § 6(a)(2) 
(1985); Legal Fees Equity Act, S. 1253, 100th Cong. 
§ 6(a)(2) (1987); Legal Fees Equity Act, S. 90, 101st



14

Cong. § 6(a)(2) (1989); Legal Fees Equity Act, S. 133, 
102nd Cong. § 6(a)(2) (1991); 131 Cong. Rec. 22346- 
67 (1985); 133 Cong. Rec. 13556-63 (1987); see also 
Attorney’s Fees Awards: Hearings on S. 585 (and on 
Amendments to Be Proposed by Senator Orrin G. 
Hatch) Before the Subcomm. on the Constitution of 
the S. Comm, on the Judiciary, 97th Cong. 8 (1982); 
Legal Fees Equity Act: Hearings on S. 1580, S. 1794, 
and S. 1795 Before the Subcomm. on the Constitution 
of the S. Comm, on the Judiciary, 99th Cong. 2 
(1986).4

Opponents of enhancements tried a different tac­
tic in 1991. They proposed an amendment to the 
Civil Rights Act of 1991 that would have limited at­
torneys’ fees to 20% of monetary awards. See 137 
Cong. Rec. 28871-80 (1991). This approach also 
failed.

By contrast, Congress has explicitly proscribed 
enhancements in other contexts. In numerous statu­
tory schemes, Congress has capped fees awards.5

4 In other contexts, Congress has resisted aggressive lobby­
ing by state and local officials to limit enhancements. See, e.g., 
Municipal Liability Under 42 U.S.C. 1983: Hearings on S. 584, 
S. 585, and S. 990 Before the Subcomm. on the Constitution of 
the S. Comm, on the Judiciary, 97th Cong. 550 (1981) (report of 
National Association of Attorneys General) (proposing that 
“amounts awarded as attorneys’ fees should be limited by Con­
gress to a reasonable hourly rate” and not “awarded based on 
some ‘benefit to the class’ or private attorney general theory”); 
id. at 104 (prepared statement on behalf of the National Insti­
tute of Municipal Law Officers) (proposing a ban on enhance­
ments).

5 See, e.g., 28 U.S.C. § 2412(d)(1)(A) and (2)(A) (capping fees 
under the Equal Access to Justice Act at $125 per hour “unless 
the court determines that an increase in the cost of living or a



15

Moreover, a provision enacted by Congress in 1986 
to govern attorney’s fees for claims brought under 
the Individuals with Disabilities Education Act ex­
plicitly states that “[n]o bonus or multiplier may be 
used in calculating the fees awarded.” 20 U.S.C. 
§ 1415(i)(3)(C). Legislative history reveals that this 
statutory language was intended to adopt a more re­
strictive approach than permitted under Section 
1988. See H.R. Rep. No. 99-687, at 6 (1986) (Conf. 
Rep.), as reprinted in 1986 U.S.C.C.A.N. 1807, 1808; 
Respondents’ Br. 18, 45.

Congress’s repeated consideration and rejection 
of efforts to eliminate enhancements during the 
thirty-two years that Section 1988 has been in force 
confirms that Congress intended to authorize these 
incentives to encourage vigorous enforcement, and 
that it has never chosen to abandon this approach.

special factor, such as the limited availability of qualified at­
torneys for the proceedings involved, justifies a higher fee”); 28 
U.S.C. § 2678 (fees under the Federal Tort Claims Act limited 
to 20% of an administrative settlement and 25% for fees in 
cases that are litigated); 42 U.S.C. § 406(b)(1) (fees under the 
Social Security Act for past-due benefits capped at the lesser of 
25% of the award or $4,000); 22 U.S.C. § 277d-21 (fees under 
the American-Mexican Chamizal Convention Act limited to 
10% of the award); 48 U.S.C. § 1424c(f) (fees in claims regard­
ing land under the Guam Organic Act capped at 5% of the 
award); 50 U.S.C. App. § 1985 (fees under the Japanese- 
American Evacuation Claims Act limited to 10% of the award).



16

II. Federal courts have developed workable 
criteria that reserve enhancements for liti­
gation that substantially furthers Con­
gress’s objective of vigorous civil rights en­
forcement.
Cases that obtain far-reaching results or break 

new ground for civil rights further the purposes of 
Section 1988 described in Part I.A supra by making 
a significant contribution to the vigorous enforce­
ment scheme envisioned by Congress. Enhance­
ments for extraordinary performance and results 
recognize that if private attorneys do not have ap­
propriate incentives to bring such cases, civil rights 
laws may be under-enforced. Contrary to the argu­
ments of Petitioners and the United States, see Pet. 
Br. 50-51; U.S. Br. 22, courts have developed man­
ageable standards to distinguish the exceptional 
cases warranting enhancements for extraordinary 
performance and results that further Congress’s 
broad-reaching goals.6

A. Courts have properly limited enhance­
ments to those cases that establish im­
portant precedents or achieve broad re­
lief that roots out entrenched inequities.

Courts have developed workable criteria to limit 
enhancements to the rare and exceptional cases

6 Some of the cases discussed below were decided prior to 
this Court’s decisions proscribing enhancements for contin­
gency and certain other factors. See, e.g., City of Burlington v. 
Dague, 505 U.S. 557 (1992). Nevertheless, the reasoning in 
these cases supporting enhancements awarded for extraordi­
nary performance and results is still valid because the courts 
considered these factors independently.



17

where attorneys have achieved results that further 
the purposes of Section 1988 by promoting vigorous 
civil rights enforcement. See, e.g., Hughes u. 
Repko, 578 F.2d 483, 488-489 (3rd Cir. 1978) (“We 
emphasize, as did the Congress that enacted [Section 
1988], that the district court should evaluate the fee 
to be awarded in light of the important substantive 
purposes of the Civil Rights Act, 42 U.S.C. § 1982 
(1970), upon which plaintiffs relied.”). Courts have 
found it reasonable to enhance fees in cases that set 
important civil rights precedents or otherwise pave 
the way for future effective federal and private en­
forcement; or cases that do not merely remedy an in­
dividual case of discrimination, but also obtain sub­
stantial relief that ends discriminatory policies of 
large institutions or roots out entrenched inequities.

1. When a civil rights lawsuit resolves unsettled 
legal questions or creates a new cause of action, the 
effect of the decision extends beyond that case 
through the creation of precedent, which furthers 
the development of the law, creates a foundation for 
future litigation, and increases voluntary compli­
ance. See Pamela S. Karlan, Disarming the Private 
Attorney General, 2003 U. 111. L. Rev. 183, 201 (“A 
private attorney general whose activities produce 
precedent is thus in some important ways more ef­
fective than a private attorney general whose activi­
ties produce only local change.”); Louis Kaplow, 
Rules Versus Standards: An Economic Analysis, 42 
Duke L.J. 557, 611-15 (1992) (describing the costs to 
the legal system when judicial interpretation is de­
layed). When attorneys succeed in obtaining such 
groundbreaking decisions, they have advanced Sec­
tion 1988’s goal of vigorous civil rights enforcement.



18

In these limited instances, courts have awarded en­
hancements above the lodestar, recognizing that 
these cases require the greatest degree of ingenuity, 
and thus the hours that an attorney works are less 
likely to reflect the value of his or her services.7

For example, the Sixth Circuit found that a suc­
cessful challenge to entrenched segregation in Ten­
nessee’s university system was a “rare and excep­
tional” case that could meet the high standard for an 
enhancement. Geier v. Sundquist, 372 F.3d 784, 
796 (6th Cir. 2004). The Geier litigation included the 
first holding by a federal appellate court that there 
is “an affirmative duty to remove all vestiges of 
state-imposed segregation in institutions of public 
higher education, just as there [is] such an obligation 
at lower educational levels.” Id. at 795; see also 
Geier v. Univ. ofTenn., 597 F.2d 1056, 1065 (6th Cir. 
1979).

In its 2004 decision regarding attorney’s fees for 
co-counsel who litigated Geier with LDF, the Sixth 
Circuit determined that the district court had failed 
to consider sufficiently whether the results obtained 
in a particular phase of the litigation warranted an 
enhancement. The Sixth Circuit observed that “[t]he

7 Enhancements for precedent-setting results are different 
from enhancements based on novelty or complexity, which this 
Court criticized in Blum, 465 U.S. at 898-99, on the ground 
that such factors increase either the number of hours a lawyer 
must spend on the case or the lawyer’s hourly rate and thus are 
reflected in the lodestar. In some cases, the lodestar figure 
might fully account for extraordinary performance and results, 
but truly precedent-setting cases like Geier v. Sundquist, dis­
cussed infra, are often not merely the result of additional hours 
or higher fees.



19

legal principles advanced by the Geier Plaintiffs 
were pathbreaking and of great social import.” 
Geier, 372 F.3d at 795. The court further empha­
sized the “exceptional nature and national signifi­
cance of this case” insofar as it “steered the jurispru­
dence in a different direction” and provided the im­
petus for “concerted” federal enforcement efforts, in­
cluding litigation to desegregate the systems of pub­
lic higher education in four other states. Id. at 796. 
Moreover, the groundbreaking legal principles estab­
lished in Geier were subsequently affirmed by this 
Court in United States v. Fordice, 505 U.S. 717 
(1992).

Geier thus contributed significantly to the en­
forcement of civil rights law by clarifying the consti­
tutional obligations of state higher education sys­
tems and spurring additional enforcement efforts. 
On remand, the district court took these factors into 
account and concluded that a 25% enhancement was 
“justified and reasonable” given the “overall result 
obtained and the rare and exceptional nature of the 
case.” Geier v. Sundquist, No. 5077, slip op. at 10 
(M.D. Tenn. Jan. 21, 2005).

In a similarly pathmarking case that provided 
significant guidance regarding compliance with 
antidiscrimination law, the district court in Chrap- 
liwy v. Uniroyal, Inc., 583 F. Supp. 40, 45 (N.D. Ind. 
1983), awarded an enhancement for “exceptional” 
performance and results under Title VII’s attorney’s 
fees provision, 42 U.S.C. § 2000e-5(k), which served 
as a template for Section 1988. In Chrapliwy, the 
plaintiff class of over 500 female workers at an Indi­
ana factory obtained a substantial settlement in a



20

Title VII action challenging gender-segregated hir­
ing and seniority policies. 583 F. Supp. at 42.

The settlement was prompted by the plaintiffs’ 
separate administrative action, in which the U.S. 
Department of Labor threatened to bar the factory’s 
corporate owner, then one of the federal govern­
ment’s largest contractors, from future contracts, 
pursuant to Executive Order No. 11246, 30 Fed. Reg. 
12,319 (1965), reprinted as subsequently amended in 
42 U.S.C. § 2000e app. (prohibiting discrimination by 
federal contractors). Chrapliwy, 583 F. Supp. at 42- 
43; see also Chrapliwy v. Uniroyal, Inc., 509 F. Supp. 
442, 444-48 (N.D. Ind. 1981). In awarding an en­
hancement, the district court emphasized the “im­
pact of this lawsuit on the Department of Labor”:

The actions by the plaintiffs’ attorneys forced 
the Labor Department to create a working 
enforcement system to implement Executive 
Order 11246, and police other federal con­
tractors in their compliance with its proce­
dures. This mechanism will continue to op­
erate, vindicating the rights of other employ­
ees and effectuating the congressional intent 
behind both Title VII and the Executive Or­
der.

Chrapliwy, 583 F. Supp. at 45 (quoting Chrapliwy, 
509 F. Supp. at 462).8

8 The district court originally approved a larger enhance­
ment. See Chrapliwy, 509 F. Supp. at 462. The Seventh Cir­
cuit held that the district court “carefully evaluated its reasons 
for allowing” the enhancement. Chrapliwy v. Uniroyal, Inc., 
670 F.2d 760, 770 (7th Cir. 1982). But the Seventh Circuit de­
termined that the district court’s lodestar calculation was too



21

Also illustrative of this category of cases is 
Shakman v. Democratic Organization of Cook 
County, 677 F. Supp. 933 (N.D. 111. 1987), in which 
the district court granted an enhancement equal to 
one-third of the lodestar because it had “never pre­
sided over a case with greater significance or more 
widefelt impact in the area of civil rights.” Id. at 
944-48. Counsel was able to “invoke judicial protec­
tion of constitutional rights which previously had not 
been clearly recognized by the courts”; and the litiga­
tion gave “rise to a new class of equitable actions” to 
protect the “constitutional right[ ] to be free from po­
litical coercion in public employment” and “resulted 
in substantial political, social and economic benefits 
not only for members of the plaintiff classes, but also 
for all who are affected by the public officers and en­
tities named as defendants in this action.” Id. at 
945, 947.9

low and ordered increases. Id. Due to this alteration, the Sev­
enth Circuit remanded for the district court to check for “possi­
ble overlaps” between the factors encompassed in the new lode­
star figure and the enhancement. Id. On remand, the district 
court reduced the amount of the enhancement to account for 
overlap. Chrapliwy, 583 F. Supp. at 45.

9 See also Rajender v. Univ. of Minn., 546 F. Supp. 158, 
171 (D. Minn. 1982) (granting an enhancement in a case that 
resulted in comprehensive policy reforms “to ensure that the 
University of Minnesota is purged of discriminatory employ­
ment practices”); Reynolds v. Abbeville County Sch. Dist. No. 
60, No. 72-1209, 1978 WL 64, at *8 (D.S.C. Mar. 16, 1978) 
(granting a 10% enhancement because the case contributed to 
“the elimination of discrimination by the Edgefield public 
schools in faculty employment and assignment [which] will 
produce benefits for all teachers, principals and residents of the 
county,” and “[t]he case also established precedent which will



22

2. Courts have also found it appropriate to en­
hance fees in civil rights cases that achieve far- 
reaching policy changes and root out entrenched 
statutory or constitutional violations. As this Court 
has recognized, Congress intended for fee-shifting 
provisions to promote broad, rather than piecemeal, 
civil rights compliance. See Newman v. Piggie Park 
Enters., Inc., 390 U.S. 400, 401 (1968) (“When the 
Civil Rights Act of 1964 was passed, it was evident 
that enforcement would prove difficult and that the 
Nation would have to rely in part upon private liti­
gation as a means of securing broad compliance with 
the law.” (emphasis added)).

This Court’s observations in Piggie Park—a case 
that was cited favorably in the legislative history of 
Section 1988, see Senate Report 3; House Report 6— 
remain relevant today given the central role that 
private litigants continue to play in the enforcement 
of civil rights laws. Cases that establish broad-based 
relief vindicate the public interest by bringing large 
institutions or government agencies into full compli­
ance with the law, which benefits similarly-situated 
plaintiffs and the public generally.

Awarding an enhancement on this basis does not 
conflict with this Court’s admonition in Blum that 
the “number of persons benefited” should not be a 
significant consideration in calculating fees. 465 
U.S. at 900 n.16 (emphasis omitted). In the context 
of a class action, Blum held that an attorney should 
not need enhanced compensation merely because the 
class includes a large number of individuals. Id.

benefit faculty members, present and future, in the jurisdiction 
of the Fourth Circuit”).



23

(“Presumably, counsel will spend as much time and 
will be as diligent in litigating a case that benefits a 
small class of people, or, indeed, in protecting the 
civil rights of a single individual.”). Blum did not, 
however, consider the incentives that may be neces­
sary to attract attorneys to cases with sweeping pub­
lic benefits; it addressed only the level of lawyerly 
diligence required once a case has been filed.

For example, a district court awarded a 50% en­
hancement for exceptional performance and results 
in a class action that successfully challenged the hir­
ing and promotion practices of the Pennsylvania 
State Police, where racial discrimination “was so en­
trenched that the Governor of the Commonwealth 
conceded he could not eliminate it—and he had 
failed in the attempt.” Bolden u. Pa. State Police, 
491 F. Supp. 958, 966 (E.D. Pa. 1980). The court 
recognized that the lawsuit resulted in “tangible 
benefits flowing directly to the citizenry of the Com­
monwealth.” Id. As a consequence of the case, “mi­
norities have access to employment in the Pennsyl­
vania State Police on a nondiscriminatory basis, and 
the citizens of Pennsylvania will have a representa­
tive law enforcement agency that is not tainted by 
constitutional illegality.” Id.

An equally far-reaching outcome was one of the 
key factors justifying the enhancement in White v. 
City of Richmond, 559 F. Supp. 127 (N.D. Cal. 1982), 
aff’d, 713 F.2d 458 (9th Cir. 1983). The plaintiffs in 
White alleged that Richmond, California police offi­
cers routinely beat, harassed, and then filed ground­
less charges against African-American residents. 
The lawsuit resulted in a consent decree that re­
quired the police department to overhaul its policies



24

on the use of deadly and non-deadly force, establish 
training programs and counseling for all officers, 
permit an independent monitor to inspect the de­
partment’s internal affairs and citizen complaint 
files, and provide an affirmative action program for 
minority officers. White, 559 F. Supp. at 130, 134. 
The Ninth Circuit upheld the district court’s conclu­
sion that the comprehensive remedial scheme repre­
sented the type of “exceptional success” warranting 
an enhancement. White, 713 F.2d. at 462.

Similar considerations have guided other courts 
in awarding enhancements for outcomes that con­
tributed exceptionally to civil rights enforcement, 
and especially those that precipitated “fundamental 
change to a recalcitrant agency” or institution. 
Hyatt v. Apfel, 195 F.3d 188, 192 (4th Cir. 1999). i° 
This criterion has also been applied in cases in which 
LDF opposed the substantive result for which the 
enhancement was awarded. See, e.g., Parents In- 10

10 See also, e.g., DeHoyos v. Allstate Corp., 240 F.R.D. 269, 
330-31, 334 (W.D. Tex. 2007) (awarding an enhancement for a 
successful challenge to a racially discriminatory credit-scoring 
system where attorneys achieved “extraordinary results,” in­
cluding a “change in the credit scoring formula, an educational 
outreach program, multi-cultural marketing, [and] an improved 
appeals process”); Morales Feliciano v. Hernandez Colon, 697 F. 
Supp. 51, 61 (D.P.R. 1988) (granting an enhancement because, 
inter alia, plaintiffs’ attorneys were “pioneers of the prisoners’ 
rights movement in Puerto Rico” and “[wjithout their initiative, 
more than 8,000 citizens would probably still be held under 
custody in violation of their basic constitutional rights”); Kirk- 
sey v. Danks, 608 F. Supp. 1448, 1458 (S.D. Miss. 1985) (award­
ing an enhancement where, inter alia, “this lawsuit was the one 
major factor causing the petition drive and referendum election 
ultimately changing the form of government for the City of 
Jackson”).



25

volved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 
U.S. 701 (2007); Meredith v. Jefferson County Bd. of 
Educ., No. 3:02CV-620-H, 2007 WL 3342282, at *4 
(W.D. Ky. Nov. 9, 2007) (“Regardless of one’s view of 
the law or educational policy, this case has changed 
the face of American jurisprudence.”).

The instant case squarely meets this second cri­
terion for awarding an enhancement for extraordi­
nary performance and results. As the district court 
recognized, Respondents secured “sweeping relief to 
the plaintiff class” of 3,000 foster care children who 
alleged widespread constitutional and statutory vio­
lations, and they did so through a consent decree 
that is both “comprehensive in its scope and detailed 
in its coverage.” Pet. App. 152-54 (reviewing the de­
cree’s thirty-one outcome measures that seek im­
provement in different areas of the foster care sys­
tem). The district judge further concluded: “After 58 
years as a practicing attorney and federal judge, the 
Court is unaware of any other case in which a plain­
tiff class has achieved such a favorable result on 
such a comprehensive scale.” Id. at 154.

3. The three attorney’s fees cases cited in the leg­
islative history of Section 1988, see Part I.A supra, 
are also consistent with the criteria outlined above:

Davis v. County of Los Angeles. In Davis, a class 
of Latino and African-American plaintiffs prevailed 
on their claim that the Los Angeles County Fire De­
partment’s hiring practices were racially discrimina­
tory. A sweeping remedial order provided “substan­
tial and significant benefits” to the class, including 
fair and equitable hiring procedures. Davis, 1974 
WL 180, at *1. On a motion for attorney’s fees, the



26

district court enhanced the lodestar figure by more 
than 13%, after considering the “excellent results” 
achieved by the plaintiffs’ attorneys. Id. at *2.11

Stanford Daily v. Zurcher. After demonstrators 
injured several police officers during a protest 
against Stanford University Hospital’s firing of an 
African-American employee, the Stanford Daily pub­
lished photographs of the incident. See William 
Trombley, Campuses Optimistic That Calm Will 
Prevail, L.A. Times, Apr. 12, 1971, at Dl. A federal 
district court held that the police violated the Fourth 
Amendment when they searched the newspaper’s 
office for negatives of unpublished photographs in an 
effort to identify the assailants. Stanford Daily v. 
Zurcher, 353 F. Supp. 124, 126-27 (N.D. Cal. 1972). 
On a motion for attorney’s fees, the district court 
granted an enhancement based in part on the ex­
traordinary “results obtained by the litigation,” 
which set a new constitutional standard for searches 
of individuals who are not themselves suspected of a 
crime. Stanford Daily, 64 F.R.D. at 687-88.12

11 The Ninth Circuit affirmed in part the liability and re­
medial rulings. See Davis v. County of Los Angeles, 566 F.2d 
1334 (9th Cir. 1977). This Court granted certiorari, but subse­
quently dismissed the case as moot. County of Los Angeles v. 
Davis, 440 U.S. 625 (1979).

12 Although this Court acknowledged that the district 
court’s constitutional analysis was pathmarking, it ultimately 
rejected such a “sweeping revision of the Fourth Amendment.” 
Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). In doing 
so, however, the Court did “not consider the propriety of [the 
fees] award,” id. at 553 n.3, and its decision does not disavow 
Congress’s intent to authorize Section 1988 enhancements 
where a similarly precedent-setting result is obtained.



27

Swann v. Charlotte-Mecklenburg Board of Educa­
tion. This case, which was litigated by amicus LDF 
and local co-counsel, involved “the largest metropoli­
tan school system which at that time had ever been 
completely desegregated by order of court.” Swann, 
66 F.R.D. at 485. Ruling on a motion from LDF’s lo­
cal co-counsel for attorney’s fees after years of litiga­
tion including a victory in this Court, see Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 
(1971), the district court did not expressly award an 
enhancement; but, relying in part on the attorneys’ 
“excellent” results in the face of significant obstacles, 
the district court granted them more than double the 
rate it identified as the minimum hourly fee charged 
by counsel appearing in federal courts. Swann, 66 
F.R.D. at 484, 486.

Enhancements in antitrust cases, including 
Arenson described in Part I.B supra, also are consis­
tent with these criteria. See 372 F. Supp. at 1352, 
1358 (awarding an enhancement where “[a]n entire 
industry has been restructured” as a result of the 
suit and the case “could well be of great instructive 
precedent in subsequent litigation”).

4. Federal courts have been careful to respect 
this Court’s mandate that enhancements for ex­
traordinary performance and results should only be 
granted in exceptional circumstances. Enhance­
ments are uncommon, and courts have consistently 
denied them for garden-variety discrimination 
claims brought by individual plaintiffs. See, e.g., 
West v. Tyson Foods, Inc., No. 4:05-cv-183M, 2008 
WL 5110954, at *3 (W.D. Ky. Dec. 3, 2008); Baty v. 
Willamette Indus., Inc., 985 F. Supp. 1002, 1008 (D. 
Kan. 1997); see also Lynch v. City of Milwaukee, 747



28

F.2d 423, 428 (7th Cir. 1984) (“[P]ositive multipliers 
should be given only in cases that are significant and 
where the quality of the attorney’s work is consid­
erably above average. . . (internal citations and 
quotation marks omitted)).

Federal courts have thus consistently recognized 
the link between achievement of the important ob­
jectives set out by Congress in federal civil rights 
statutes and the practical reality that lawyers need 
incentives to choose cases that challenge entrenched 
inequities and have the potential to produce ground­
breaking results, and then to advocate for appropri­
ately wide-ranging relief. See Vulcan Soc’y of West­
chester County, Inc. v. Fire Dep’t of City of White 
Plains, 533 F. Supp. 1054, 1065-66 (S.D.N.Y. 1982) 
(finding an enhancement justified to encourage pri­
vate attorneys to take “cases such as the present 
one, which succeed in accomplishing major changes 
in the hiring policies and practices of municipal 
agencies, and which open up significant employment 
opportunities to minorities”).

B. The criteria that courts have used to 
award enhancements for extraordinary 
performance and results are consistent 
with Supreme Court precedent.

The criteria outlined in Part II.A supra are con­
sistent with the guidelines set forth by this Court’s 
interpretations of Section 1988 and similar attor­
ney’s fees provisions in other federal statutes.

In Blum, this Court rejected a categorical rule 
that enhancements are never permissible in cases of 
“exceptional success.” 465 U.S. at 897, 901. Blum 
stressed that it was not precluding consideration of



29

“results obtained” but rather establishing a strong 
presumption that results are factored into the lode­
star calculation. Id. at 900-01. That presumption 
may be rebutted, but “only in certain ‘rare’ and ‘ex­
ceptional’ cases, supported by both ‘specific evidence’ 
on the record and detailed findings by the lower 
court.” Pennsylvania v. Del. Valley Citizens’ Council 
for Clean Air, 478 U.S. 546, 565 (1986) (quoting 
Blum, 465 U.S. at 898-901). As discussed in Part 
II.A supra, federal courts have appropriately applied 
these instructions to distinguish those rare and ex­
ceptional cases for which results-based enhance­
ments are justified.

Federal courts’ awards of enhancements for ex­
traordinary performance and results are also consis­
tent with City of Burlington v. Dague, 505 U.S. 557 
(1992) (denying an enhancement on the ground that 
the case was taken on a contingency basis). In 
Dague, the Court was concerned that awarding con­
tingency enhancements would create incentives for 
attorneys to bring “relatively meritless claims,” 
which is “an unlikely objective of the ‘reasonable 
fees’ provisions.” Id. at 563. In sharp contrast, en­
hancements for extraordinary performance and re­
sults create exactly the sort of incentives that Con­
gress contemplated: They encourage attorneys to 
choose and pursue cases with strong factual bases 
that significantly further equality of opportunity and 
other critical civil rights.

The Court in Dague also worried that contingency 
enhancements would already be reflected in the 
lodestar calculation. Id. at 562-63. But in the rare 
cases warranting enhancements for exceptional per­
formance and results, the lodestar does not always



30

provide the appropriate incentives to attract compe­
tent counsel to assert bold legal theories in chal­
lenges to entrenched discrimination and other ineq­
uities. See, e.g., Sims v. Amos, 340 F. Supp. 691, 694 
(M.D. Ala. 1972) (noting that a voting discrimination 
case, where “plaintiffs have benefited their class and 
have effectuated a strong congressional policy,” 
“clearly falls among those meant to be encouraged 
under the principles articulated in [Supreme Court 
precedents endorsing attorney’s fees for citizens act­
ing as private attorneys general]” (emphasis added)), 
cited with approval in Senate Report 4 n. 3. Without 
incentives for attorneys to take on these types of 
cases, civil rights laws will not always be vigorously 
and effectively enforced, contrary to the intent of 
Congress.

Moreover, while the lodestar calculation typically 
reflects the skills and experience that a lawyer 
brings to bear on a case, it is not determined based 
on the type of case and relief the lawyer chooses to 
pursue. Cf. Graves v. Barnes, 700 F.2d 220, 223 (5th 
Cir. 1983). The proper inquiry in determining an 
enhancement for extraordinary performance and re­
sults is the value of the legal services provided— 
more value is provided through broad-reaching re­
lief. For example, where a civil rights litigant se­
cures an order or consent decree that results in 
groundbreaking policy reforms, the outcome affects 
not only the plaintiffs but also numerous other indi­
viduals who do not have to sue to obtain relief on 
their own.

In sum, Petitioners urge—without any basis in 
text, precedent, or legislative history—a new Court- 
made rule that would structurally under-compensate



31

civil rights litigants in key cases yielding the most 
extraordinary results that significantly safeguard 
and enhance critical civil rights. The Court should 
reject Petitioners’ unsupported attempt to ignore 
Congress’s considered judgment that the full avail­
ability of reasonable attorney’s fees is crucial to the 
vigorous and effective enforcement of federal civil 
rights laws.

CONCLUSION
For the foregoing reasons, as well as those out­

lined by Respondents, the decision below should be 
affirmed.

Joshua Civin 
Kristen  Clarke 
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300

Respectfully submitted,
John Payton 

Director- Counsel 
D ebo P. Adegbile 

Counsel of Record 
Matthew  Colangelo 
Kimberly Liu 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 965-2200

August 28, 2009