Perdue v. Kenny A - Amicus (Merits)

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No. 08-970

In the Supreme Court of the United States

SONNY PERDUE, GOVERNOR OF THE STATE OF GEORGIA, ET AL., PETITIONERS

v.

KENNY A., BY HIS NEXT FRIEND LINDA WINN, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONERS

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
MICHAEL JAY SINGER
JEFFRICA JENKINS LEE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

The petition for a writ of certiorari was granted limi ted to the following question: "Can a reasonable attor ney's fee award under a federal fee-shifting statute ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation?"

In the Supreme Court of the United States

No. 08-970

SONNY PERDUE, GOVERNOR OF THE STATE OF GEORGIA, ET AL., PETITIONERS

v.

KENNY A., BY HIS NEXT FRIEND LINDA WINN, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns whether a court, in determining an award for reasonable attorney's fees under a federal fee-shifting statute, may enhance the award above the lodestar amount based on the quality of representation and results obtained. The United States has a substan tial interest in the resolution of this issue. The availabil ity of adequate attorney's fees is important to ensure the pursuit of meritorious private actions that complement the government's own enforcement efforts. At the same time, the United States itself may be liable for attor ney's fees under more than 100 statutes that allow pre vailing parties to recover reasonable attorney's fees. The interpretation of a "reasonable" attorney's fee in 42 U.S.C. 1988(b), at issue in this case, is likely to govern the interpretation of those numerous other fee-shifting provisions. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983).

STATEMENT

1. In June 2002, respondents filed this class action against petitioners, the Governor of Georgia and various other state officials, on behalf of 3,000 children in foster care. The complaint alleged that petitioners violated federal and state constitutional and statutory provisions in their administration of the foster care system in two metropolitan Atlanta counties. Several of the federal law claims were brought under 42 U.S.C. 1983. The suit sought declaratory and injunctive relief, along with attor ney's fees and expenses. Pet. App. 3a-5a. After discov ery, denial of petitioners' motion for summary judgment, and four months of mediation, the parties entered into a consent decree-approved by the district court in Oc tober 2005-that resolved all pending issues, except the amount of attorney's fees owed respondents as the "pre vailing party" under 42 U.S.C. 1988(b). Id. at 6a-8a.

Respondents thereafter filed an application request ing nearly $15 million ($14,342,860 to be exact) in attor ney's fees for nearly 30,000 hours claimed to have been worked by their legal team. Pet. App. 104a-105a. Half of the amount requested ($7,171,430) represented the proposed "lodestar" amount, which is "the product of reasonable hours times a reasonable rate." Pennsylva nia v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986) (Delaware Valley I). That fig ure included payment for work by respondents' attor neys at hourly rates ranging from $215 to $495, and by paralegals and interns at hourly rates ranging from $75 to $150. Pet. App. 105a. Those rates, according to the attorney affidavits submitted by respondents them selves, were "fair, reasonable, and consistent with hour ly rates in the Atlanta market for the price of legal ser vices of comparable quality rendered in cases demand ing similar skill, judgment and performance." J.A. 41 (Lowry Dec.), 56-57 (Bramlett Dec.). According to one of the lead trial counsel for respondents, a partner at a prestigious Atlanta litigation boutique, the rates re quested "correctly reflect the hourly rates my law firm currently charges and collects from clients who hire us to perform legal services on a Standard Hourly Rate basis." J.A. 47 (Bramlett Dec.).

The other half of the amount requested (an addi tional $7,171,430) was sought as an enhancement of the fee award based on several grounds. See Resp. Dist. Ct. Br. in Support of Award of Atty's Fees & Expenses of Litig. 1-36. Respondents relied, in part, on the quality of representation provided by their counsel and the suc cessful results that they achieved. Id. at 2-3, 29-31. In addition, respondents relied on the contention that the lodestar did not account for contingency risk in the case or delayed payment of attorney's fees and expenses. Id. at 3-9, 31-34. According to respondents, this latter set of factors meant that the proposed hourly rates were lower than true market rates for the services provided. J.A. 41 (Lowry Dec.), 57 (Bramlett Dec.).

Petitioners objected to the amount of fees requested. Petitioners argued that the number of hours claimed and some of the hourly rates proposed were excessive. Pet. App. 9a. They also argued that an enhancement for the quality of representation and the results obtained was not appropriate because those factors were already taken into consideration in setting the lodestar amount. Ibid.

The district court partially sustained petitioners' objections to the number of hours claimed. It made a 15% across-the-board reduction to non-travel hours, which resulted in a monetary reduction of the lodestar to $6,012,803. Pet. App. 145a. The court based the re duction on "(1) the vague and noncompensable entries in counsel's billing records; (2) the excessive number of hours spent on pre-suit investigation and drafting the complaint and mandatory disclosures; (3) overstaffing at the preliminary injunction hearing; (4) the excessive number of hours spent on document production and analysis; (5) the excessive number of hours spent re sponding to a motion to compel and overstaffing of dis covery and status conferences; (6) the excessive number of hours spent in intra- and inter-officer [sic] confer ences and correspondence; (7) noncompensable time spent on expert witnesses and reports; (8) the excessive number of hours spent responding to the motion for summary judgment; and (9) the excessive number of hours spent on trial preparation." Ibid. (internal cita tions omitted).

The district court, however, rejected petitioners' ob jections to the hourly rates. It found that, in light of "the stellar performance of plaintiffs' counsel through out this long and difficult case," the requested hourly rates-including a rate "near the high end of the Atlanta market" for one of the lead trial counsel-all were "fair and reasonable." Pet. App. 143a-144a.

The district court also rejected petitioners' objec tions to the requested fee enhancement. The court re lied first on evidence of respondents' counsel's "extraor dinary commitment of capital resources" to the case, without any guarantee of fees or reimbursement. Pet. App. 151a. In particular, the court found:

the evidence shows that the hourly rates used in the lodestar calculation do not take into account (1) the fact that class counsel were required to advance case expenses of $1.7 million over a three-year period with no ongoing reimbursement, (2) the fact that class counsel were not paid on an ongoing basis as the work was being performed, and (3) the fact that class counsel's ability to recover a fee and expense reimbursement were completely contingent on the outcome of the case.

Ibid.

The district court also found, based on its "personal observation of plaintiffs' counsel's performance through out this litigation," that "the superb quality of their rep resentation far exceeded what could reasonably be ex pected for the standard hourly rates used to calculate the lodestar." Pet. App. 151a; see id. at 151a-152a ("Quite simply, plaintiffs' counsel brought a higher de gree of skill, commitment, dedication, and professional ism to this litigation than the Court has seen displayed by the attorneys in any other case during its 27 years on the bench."). Finally, the court stated that "the evi dence establishes that plaintiffs' success in this case was truly exceptional." Id. at 152a.

For those reasons, the district court increased the $6,012,803 attorney's fee award by a multiplier of 1.75, resulting in an additional $4,509,602, which boosted the total fee award to $10,522,405. Pet. App. 154a-155a.

2. Both petitioners and respondents appealed.1 The court of appeals affirmed the district court's fee award in a unanimous judgment with three separate opinions. Pet. App. 1a-93a.

Judge Carnes concluded that the panel was bound by prior circuit precedent holding that superior quality of representation coupled with superior results is a permis sible basis for an enhancement of the lodestar amount. Pet. App. 57a-63a (citing NAACP v. City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), and Norman v. Housing Auth., 836 F.2d 1292 (11th Cir. 1988)). In Judge Carnes' view, however, NAACP and Norman appeared to con flict with this Court's precedent establishing a strong presumption that the lodestar reflects a reasonable attor ney's fee. Id. at 61a-69a. Judge Carnes further rea soned that such enhancements constitute double count ing and are unnecessary to further the statutory pur pose of attracting capable counsel. Id. at 38a-57a.

Judge Wilson concluded that NAACP and Norman were not inconsistent with this Court's teachings, and found that record evidence of superior performance sup ported the district court's finding that the lodestar was insufficient to provide a reasonable attorney's fee in this case. Pet. App. 71a-93a. Judge Hill observed only that "[t]he enhancement by the district court is due to be affirmed because we are bound by the prior cases of our court." Id. at 93a.

In the separate opinions, the court of appeals also addressed the other set of factors-i.e., contingency risk, delayed payment of attorney's fees, and counsel's advancement of expenses-on which the district court based the fee enhancement. The panel rejected the dis trict court's reliance on the contingency-fee arrange ment. Judge Carnes explained that "[e]nhancing a lode star based on contingency is flatly forbidden by the [City of Burlington v. Dague, 505 U.S. 557 (1992)] deci sion." Pet. App. 35a. Judge Wilson agreed. Id. at 85a. Judge Carnes and Judge Wilson, however, disagreed as to whether the delayed payment of fees and expenses was a permissible basis for an enhancement. See id. at 33a-35a, 85a. Judge Hill expressed no position on those issues. See id. at 93a.

Notwithstanding its conclusion that the district court improperly relied on the contingency risk and its inter nal division on whether the district court properly relied on the delayed payment of fees and expenses, the court of appeals affirmed the full amount of the district court's award. Pet. App. 70a-71a. Judge Carnes ex plained that "our reading of the district court's opinion leaves us convinced that it would be pointless to remand to that court with instructions that it reconsider whether to give an enhancement, or the amount of one, free of those improper considerations. * * * So long as our NAACP and Norman decisions stand, the district court can, and would again on remand, reach the same result that we have before us and rest it on the basis of quality of representation and superior results." Id. at 70a.

3. The court of appeals denied rehearing en banc. Pet. App. 173a-216a.

In an opinion concurring in the denial of rehearing (Pet. App. 174a-180a), Judge Wilson reiterated the views stated in his panel opinion-i.e., that "the Supreme Court has consistently indicated that, in the 'rare' and 'exceptional' case, the district court has the discretion to grant an enhancement." Id. at 177a. In a dissenting opinion (id. at 180a-202a), Judge Tjoflat concluded that an enhancement based on "exceptional" or "superior" results can never be appropriate in a class action seek ing injunctive relief, especially where "a lodestar al ready reflect[s] an hourly rate prevailing at the top of the relevant market." Id. at 193a, 200a. Judge Carnes, in a separate dissenting opinion joined by Judges Tjoflat and Dubina (id. at 202a-216a), reiterated his views and noted that none of the Supreme Court precedents cited by Judge Wilson had upheld a fee enhancement based on the quality of representation or the results obtained.

SUMMARY OF ARGUMENT

Federal fee-shifting statutes do not authorize en hancement above the lodestar amount based on the qual ity of representation or the results obtained for a simple reason-because both factors are already incorporated into the lodestar calculation. The rule adopted by the Eleventh Circuit would result in impermissible double counting. Accordingly, the district court's award of a 75% performance bonus-a $4.5 million increase over the $6 million lodestar amount-should be reversed.

A. This Court has instructed that most factors rele vant to the determination of a reasonable attorney's fee, including the quality of representation and the results obtained, are presumed to be reflected in the calculation of the lodestar and therefore cannot serve as independ ent bases for enhancing the fee award beyond the lode star amount. See City of Burlington v. Dague, 505 U.S. 557, 562-563 (1992); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564-565 (1986). Notwithstanding dicta in some cases that en hancements based on the quality of representation and results obtained "may" be justified in "rare" and "excep tional" cases, this Court has never upheld a fee enhance ment based on those criteria.

B. This Court should hold that the lodestar pre sumption is conclusive with respect to the quality of rep resentation and results obtained because any enhance ment on those grounds would amount to double count ing. The reasonable hourly rates for the particular at torneys handling a case already reflect their experience, qualifications, and abilities. Rates set near the top of the prevailing market contemplate high quality repre sentation and optimal results, and so those factors war rant no further enhancement in a case like this one. Re spondents' counsel themselves acknowledge that their proposed rates were "reasonable" in light of rates charged by counsel "of comparable quality rendered in cases demanding similar skill, judgment and perfor mance." J.A. 41 (Lowry Dec.), 56-57 (Bramlett Dec.). That other factors (contingency risk and delayed pay ment) may have placed them in a different position than attorneys in the private market is beside the point: those are not permissible grounds for enhancement and, in any event, are beyond the scope of the question pre sented.

C. Enhancements based on the quality of represen tation or the results obtained are not necessary to sat isfy the aim of fee-shifting statutes. Congress de signed these statutes to enable private parties to attract competent counsel to help vindicate important feder al rights, but Congress also cautioned that attorney's fee awards should not produce windfalls. Discretion ary, performance-based enhancements of lodestar fee awards that already reflect market rates-especially where, as here, the rates used are near the top of the prevailing market-are unnecessary to attract counsel and result in such a windfall. In the rare case in which representation of an unpopular or otherwise highly con troversial client causes counsel to suffer professional or financial harm, the lodestar amount may be insufficient and an enhancement appropriate. But no such special circumstances are present in this case, and the lodestar is the reasonable measure of compensation.

ARGUMENT

FEE-SHIFTING STATUTES THAT PERMIT AN AWARD OF "REASONABLE" ATTORNEY'S FEES DO NOT AUTHORIZE ENHANCEMENT ABOVE THE LODESTAR AMOUNT BASED ON QUALITY OF REPRESENTATION OR RESULTS OB TAINED BECAUSE BOTH FACTORS ARE ACCOUNTED FOR IN DETERMINING THE LODESTAR

Under the "American Rule," a "prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser"-at least "without legislative guid ance." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975); see Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001) (American Rule governs "absent explicit statutory authority."). Congress has provided that guidance through numerous federal statutes autho rizing an award of a reasonable attorney's fee to a pre vailing party to encourage private citizens to vindicate important public rights.2 E.g., 42 U.S.C. 1988(b) ("In any action or proceeding to enforce [enumerated civil rights laws], the court, in its discretion, may allow the prevailing party, other than the United States, a reason able attorney's fee as part of the costs."); see Pennsyl vania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 562 (1986) ("There are over 100 sepa rate statutes providing for the award of attorney's fees."). Regardless of the underlying claim or context, "the benchmark for the awards under nearly all of these statutes is that the attorney's fee must be 'reasonable.'" Ibid. Like other fee-shifting statutes, however, Section 1988(b) is silent on what constitutes a "reasonable" attor ney's fee.

As this Court's precedents indicate, the lodestar- the product of the reasonable hourly rate and the num ber of hours reasonably expended-is presumed to rep resent a reasonable attorney's fee. Because the quality of representation and results obtained are both reflected in the lodestar calculation, no enhancement based on those factors is necessary to make a lodestar award rea sonable or to fulfill the statutory purpose of attracting competent counsel. The facts of this case, in which the district court accepted respondents' proffered high-end market rates for counsel of high-end quality and accord ingly awarded a lodestar of over $6 million, well illus trate the redundancy of any enhancement of attorney's fees based on the quality and success of representation.

A. This Court Has Established A Strong Presumption That The Lodestar Calculation Yields A Reasonable Attor ney's Fee And Has Never Upheld An Enhancement Based On Attorney Performance

Over the past quarter century, this Court has articu lated the standards for determining the amount of a rea sonable attorney's fee award under Section 1988(b)- with an ever-increasing emphasis on the lodestar calcu lation as providing the correct amount, exclusive of any additional quality or results-related enhancements.

In 1983, the Court addressed "whether a partially prevailing plaintiff may recover an attorney's fee for legal services on unsuccessful claims." Hensley v. Ec kerhart, 461 U.S. 424, 426 (1983). The Court in Hensley identified the "lodestar," i.e., the "number of hours rea sonably expended on the litigation multiplied by a rea sonable hourly rate," as the "most useful starting point" for determining a reasonable attorney's fee award. Id. at 433. The Court commented that the lodestar could be adjusted upward or downward on the basis of other con siderations, including the "results obtained" and other factors set forth in Johnson v. Georgia Highway Ex press, Inc., 488 F.2d 714 (5th Cir. 1974), but cautioned district courts to keep in mind that "many of these fac tors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate."3 Hensley, 461 U.S. at 434 n.9; see id. at 435 ("in some cases of exceptional success an enhanced award may be justified"). Hensley itself presented only the question of when a downward departure was appropri ate based on limited success, not the converse. Id. at 436-440.

The next year, in Blum v. Stenson, 465 U.S. 886 (1984), the Court attached even more significance to the lodestar calculation and limited the factors that a dis trict court could consider in determining whether to en hance the lodestar amount. In Blum, the district court had awarded a 50% enhancement to the lodestar, based on "the complexity of the litigation, the novelty of the issues, the high quality of representation, the 'great ben efit' to the class, and the 'riskiness' of the lawsuit." Id. at 898. This Court held that "[t]he reasons offered by the District Court to support the upward adjustment do not withstand examination." Ibid. The Court explained:

The novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel. * * * There may be cases, of course, where the experience and special skill of the attorney will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue. In those cases, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates. Neither complexity nor novelty of the issues, there fore, is an appropriate factor in determining whether to increase the basic fee award.

Id. at 898-899.

The Court also explained that the quality of repre sentation "generally is reflected in the reasonable hour ly rate," and that "[i]t, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of ser vice rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was 'exceptional.'" Blum, 465 U.S. at 899 (citing Hensley, 461 U.S. at 435). The Court elabo rated that "[b]ecause acknowledgment of the 'results obtained' generally will be subsumed within other fac tors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award"-even when the results obtained benefit a large class of people. Id. at 900 & n.16. Applying those principles to the record before it, the Court con cluded that no enhancement above the lodestar amount was necessary to provide reasonable compensation. Id. at 900-902.

Two years later, in Delaware Valley I, supra, the Court further restricted whatever room remained to enhance an attorney's fee award above the lodestar amount based on quality and results of representation. In characterizing its holding in Blum, the Court ex plained:

Blum also limited the factors which a district court may consider in determining whether to make ad justments to the lodestar amount. Expanding on our earlier finding in Hensley that many of the Johnson factors "are subsumed within the initial calculation" of the lodestar, we specifically held in Blum that the * * * "quality of representation" and the "results obtained" from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.

Delaware Valley I, 478 U.S. at 564-565 (citing Blum, 465 U.S. at 898-900).

Although acknowledging the possibility of an en hancement in "rare" and "exceptional" cases, the Court in Delaware Valley I emphasized that "[a] strong pre sumption that the lodestar figure-the product of rea sonable hours times a reasonable rate-represents a 'rea sonable' fee is wholly consistent with the rationale be hind the usual fee-shifting statute." 478 U.S. at 565. The Court reasoned that federal fee-shifting statutes "were not designed as a form of economic relief to im prove the financial lot of attorneys, nor were they in tended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client." Ibid. The Court explained that if a plaintiff is able to retain counsel "based on the statutory assurance that he will be paid a 'reasonable fee,' the purpose behind the fee-shifting statute has been satisfied." Ibid.

Applying those principles, the Court again rejected a district court's enhancement of a fee award for excep tional quality of representation and results obtained. Delaware Valley I, 478 U.S. at 566-568. The Court no ted that the district court's elimination of a large num ber of hours on the grounds that they were unnecessary, unreasonable, or unproductive "is not supportive of the court's later conclusion that the remaining hours repre sented work of 'superior quality.'" Id. at 567.

In its last case concerning fee enhancements, City of Burlington v. Dague, 505 U.S. 557 (1992), the Court ad dressed the question, left open in Delaware Valley I,4 whether a contingency-fee arrangement may serve as a basis for enhancement of an attorney's fee award be cause the attorneys "assumed the risk of receiving no payment at all for their services." Id. at 559. The Court "note[d] at the outset that an enhancement for contin gency would likely duplicate in substantial part factors already subsumed in the lodestar." Id. at 562. The Court explained that the difficulty of establishing the merits of a claim "is ordinarily reflected in the lode star-either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so." Ibid. Taking account of this factor again through lode star enhancement amounts to "double counting." Id. at 563.

The Court in Dague further explained that it was im permissible to increase the award based on risk of loss because the fee-shifting statute was designed to com pensate a "prevailing plaintiff" for successful claims, not to subsidize the litigation of unsuccessful ones. 505 U.S. at 565. Because a contingency-based enhancement is not "necessary to the determination of a reasonable fee," the Court concluded that such an enhancement "is not permitted under the fee-shifting statutes." Id. at 566- 567.

In sum, this Court has steadily distanced itself from the notion that an enhancement above the lodestar amount may be based on quality of representation or results obtained, even in "exceptional" cases. The Court's analysis in Delaware Valley I and Dague in par ticular focused on the way the lodestar calculation al ready incorporates considerations that lower courts had mistakenly viewed as justifying a premium. And this Court has never upheld an enhancement to an attorney's fee award based on these criteria. Accordingly, any sug gestion that such enhancements are possible has always been dicta. In its actual holdings, the Court has per ceived enhancements for quality and results as superflu ous in light of the basic lodestar calculation.

B. No Enhancement To The Lodestar Is Justified Based On The "Quality Of Representation" Or The "Results Ob tained" Because Both Factors Are Already Reflected In The Lodestar Calculation

As demonstrated above, the lodestar figure has "be come the guiding light" of this Court's "fee-shifting ju risprudence." Dague, 505 U.S. at 562. The lodestar "is more than a mere 'rough guess' or initial approximation of the final award to [be] made." Delaware Valley I, 478 U.S. at 564. Instead, when "'the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee' to which counsel is entitled," and "the 'quality of representation,' and the 'results obtained' * * * thus cannot serve as independ ent bases for increasing the basic fee award." Ibid. (quoting Blum, 465 U.S. at 897). Fee awards must be "reasonable as to billing rates and reasonable as to the number of hours spent in advancing the successful claims. Accordingly, fee awards, properly calculated, by definition will represent the reasonable worth of the services rendered in vindication of a plaintiff's * * * claim." Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (emphasis added).

This Court should hold what the logic of its prece dents dictate and make conclusive the presumption that the lodestar (assuming its components are properly set) represents a reasonable attorney's fee, such that en hancements based on quality of representation or re sults obtained are not permissible. See Dague, 505 U.S. at 559-567 (stating that contingency cannot alter the presumption that the lodestar constitutes a reasonable fee). The correctness of that conclusion is most evident where, as here, the accepted hourly rates are already near the top of the market.5

1. An enhancement based on attorney performance would result in double counting

The quality of representation and results obtained are accounted for in the lodestar calculation. The rea sonable hourly rates for the particular attorneys han dling a case will reflect their experience, qualifications, and abilities. See Blum, 465 U.S. at 895-896 n.11 (defin ing "prevailing market rate" as the rate "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation"); Model Rules of Prof'l Conduct Rule 1.5(a)(7) (2007) (Model Rule) ("The factors to be consid ered in determining the reasonableness of a fee include * * * the experience, reputation, and ability of the law yer or lawyers performing the services."). Rates at or near the top of the prevailing market contemplate that an attorney will provide high quality representation and produce optimal results. See Pierce v. Underwood, 487 U.S. 552, 573 (1988) ("the 'work and ability of counsel,' and 'the results obtained' * * * are little more than rou tine reasons why market rates are what they are") (cita tion omitted); Delaware Valley I, 478 U.S. at 565 ("when an attorney first accepts a case and agrees to represent the client, he obligates himself to perform to the best of his ability and to produce the best possible results"). A bonus on top of those rates for quality of representation or results obtained, therefore, would be "double count ing." Id. at 566.

The risk of double counting in fee-shifting cases is particularly great because the hourly rates are deter mined after the requesting party has prevailed. A dis trict court thus has the opportunity, when setting the reasonable hourly rate, to take into account not only the attorney's prior experience and qualifications, but also his performance in the very case at hand. That process allows even inexperienced or unheralded attorneys- whose hourly rates might otherwise be at the low end of the prevailing market-to obtain an hourly rate nearer to the high end of the market. By this means, the lode star itself reflects exceptional skill or ability not only in the attorney's prior work, but in his handling of the case at issue. The circumstance articulated by the Court in Blum as possibly justifying an enhancement-where "the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged," 465 U.S. at 899-therefore simply does not arise when the lodestar rate has been properly deter mined.

Even if that hypothetical circumstance arose, it would not be a proper basis for an enhancement. To the extent a prevailing party's attorney commanded a rela tively low market rate, that attorney by definition would not have received higher compensation had he spent his time litigating another case instead. And the attorney's success in that hypothetical case would justify an in crease in his market rate for future cases-an important economic benefit itself. In any event, as discussed below (pp. 23-25, infra), the dicta from Blum is not relevant to this case: respondents' lead trial counsel were highly experienced and accomplished attorneys whose prevail ing market rates already reflected those characteristics and the accompanying high expectations of their perfor mance.

Similarly, to the extent a prevailing party's counsel persevered through particularly difficult litigation, the greater number of hours deemed reasonable for pur poses of the lodestar calculation will reflect those cir cumstances. See Dague, 505 U.S. at 562 (difficulty of establishing the merits of a claim "is ordinarily reflected in the lodestar-either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so"); Blum, 465 U.S. at 898 ("The novelty and complexity of the issues presumably were fully re flected in the number of billable hours recorded by coun sel," and, to the extent "the experience and special skill of the attorney will require the expenditure of fewer hours," that "should be reflected in the reasonableness of the hourly rates."). Lodestar enhancement for suc cess in the face of challenging obstacles thus also amounts to "double counting." Dague, 505 U.S. at 563.

Enhancements for improbable success also implicate the Court's concern (expressed in the context of consid ering the relevance of contingency risk to fees) about "encouraging nonmeritorious claims." Dague, 505 U.S. at 563. An attorney might be more likely to bring a mar ginal claim than he otherwise would-"an unlikely objec tive of the 'reasonable fees' provisions," ibid.-if he har bored the hope of an enhancement for "exceptional" suc cess in the event he prevailed. And as the Court prev iously has recognized, the size of the class benefitting from success should not justify an enhancement either. See Blum, 465 U.S. at 900 n.16 ("Nor do we believe that the number of persons benefited is a consideration of significance in calculating fees under _ 1988. * * * 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.").

As compared with the method of simply setting the lodestar correctly, enhancements based on quality of representation or results obtained also lack clear, objec tive standards. The lodestar methodology was devel oped in part to provide greater regularity in the deter mination of a reasonable attorney's fee than could be achieved under the 12-factor analysis suggested by the Fifth Circuit's 1974 decision in Johnson (see note 3, su pra). See Delaware Valley I, 478 U.S. at 562-563. This Court has explained that Johnson's "major fault was that it gave very little actual guidance to district courts. Setting attorney's fees by reference to a series of some times subjective factors placed unlimited discretion in trial judges and produced disparate results." Id. at 563. The Johnson factors at issue in this case are no less sub jective or acceptable when they are used to enhance, rather than to set in the first instance, the lodestar award. Indeed, the Court's development of the lodestar methodology to enhance clarity and objectivity in deter mining attorney's fees would be seriously compromised if lower courts felt free to superimpose on the lodestar calculation factors long excluded from it.6

2. The lodestar in this case reflects a reasonable attor ney's fee

a. Examination of the lodestar calculation in this case illustrates how quality of performance and results obtained are reflected in a district court's determination of reasonable hourly rates and billable hours.

The district court here apparently used hourly rates up to the high end of the relevant market for the type and quality of legal services performed. See Pet. App. 144a (district court's acceptance of lead trial counsel's hourly rate "near the high end of the Atlanta market"); id. at 200a ("the district court used hourly rates already at the top of the relevant market") (Tjoflat, J., dissent ing from denial of rehearing en banc). Indeed, those hourly rates were the ones proposed by respondents themselves. Id. at 140a-144a. Respondents had two lead trial counsel. Both attorneys submitted affidavits stat ing that the rates were "fair, reasonable, and consistent with hourly rates in the Atlanta market for the price of legal services of comparable quality rendered in cases demanding similar skill, judgment and performance." J.A. 41 (Lowry Dec.), 56-57 (Bramlett Dec.). One of these attorneys, a respected partner at "[t]he state's premiere litigation boutique,"7 explained that the rates requested "correctly reflect the hourly rates my law firm currently charges and collects from clients who hire us to perform legal services on a Standard Hourly Rate basis." J.A. 47 (Bramlett Dec.).

Similarly, the district court here recognized the sheer amount of work necessary to conduct this litiga tion. Respondents refer to the labor- and time-intensive investigation and the contentious and burdensome dis covery process required to litigate this case. Br. in Opp. 2-3. But such factors are accounted for in the large number of billable hours-over 25,000 hours in total- that the district court used in the lodestar calculation. Pet. App. 144a-149a.8

Respondents have already conceded that "a reason able fee cannot be enhanced; rather, an upward adjust ment is only appropriate where the fee as initially calcu lated by the lodestar would otherwise be unreasonable." Br. in Opp. 26. But their own affidavits confirm that the hourly rates used for the lodestar calculation were "rea sonable." J.A. 41 (Lowry Dec.), 56-57 (Bramlett Dec.). That reasonableness determination was expressly based on the market rate for legal services that they them selves thought were "of comparable quality rendered in cases demanding similar skill, judgment and perfor mance." Ibid. And the district court accounted for the laborious nature of the case by accepting some 25,000 billable hours of work (but deeming additional hours excessive). Therefore, by respondents' own standard, no enhancement for quality of representation or results obtained would be appropriate in this case.

In sum, the district court impermissibly "double counted" the quality of representation and results ob tained: once in accepting near top-of-the-market hourly rates and the vast majority of billable hours claimed by respondents, and again in adding a sum to reward coun sel's commensurate top-of-the-market performance. Few lawyers, performing any kind of work on behalf of any kind of client, receive both top-of-the-line base pay and gigantic bonuses. The district court's 75% perfor mance bonus-a $4.5 million increase over the $6 million lodestar amount-is unnecessary to make the attorney's fee award reasonable in this case.

b. According to respondents' attorney affidavits, the lodestar amount was less than what a private-fee ar rangement might have produced not because of any fail ure to reward the quality of representation or results obtained, but rather because the hourly rates did not account for contingency risk and delayed payment of attorney's fees and expenses. J.A. 41 (Lowry Dec.), 57 (Bramlett Dec.). But whether those separate factors may support an enhancement appears to be outside the question presented in this case. See Pet. i ("Can a rea sonable attorney's fee award under a federal fee-shifting statute ever be enhanced based solely on quality of per formance and results obtained when these factors al ready are included in the lodestar calculation?") (empha sis added). Nor did respondents appear to raise those separate factors as independent support for the district court's judgment in their brief in opposition at the cer tiorari stage.

In any event, none of those factors would justify an enhancement. This Court has squarely held that "no contingency enhancement whatever is compatible with the fee-shifting statutes." Dague, 505 U.S. at 565. And the Court has implicitly rejected the notion that delayed payment of attorney's fees and delayed reimbursement for advanced expenses could justify an enhancement. These delays, after all, are common-the rule rather than the exception-in the type of class action at issue, and thus would require an enhancement in almost every such case. See Pet. App. 34a. That would mean the cal culation of the lodestar would rarely end the inquiry on attorney's fees-an outcome this Court has found unac ceptable. See Dague, 505 U.S. at 563. Moreover, the delay in payment is offset (at least in significant part) by use in the lodestar calculation of the hourly rates pre vailing at the completion of a case, rather than the usu ally lower rates in effect at the time the work was done. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 716 (1987) (Delaware II) ("In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value."). Ac cordingly, assuming this Court decides that the en hancement cannot be supported solely on the basis of quality of representation and results obtained, the court of appeals judgment should be reversed.9

C. Enhancement Of The Lodestar Award For Quality Of Representation Or Results Obtained Is Not Necessary To Satisfy The Statutory Objectives

The purpose of federal fee-shifting statutes is to en able private parties to obtain legal representation in order to vindicate important rights under federal law. See, e.g., S. Rep. No. 1011, supra, at 2 (The "purpose and effect" of Section 1988(b) is "to allow courts to pro vide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866."); Delaware Val ley I, 478 U.S. at 565 ("[T]he aim of [fee-shifting] stat utes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws."); Hensley, 461 U.S. at 429 (Section 1988(b) was enacted "to ensure 'effective access to the judicial process' for persons with civil rights grievances.").

While Congress intended that "fees [be] adequate to attract competent counsel," it also cautioned that fee awards should "not produce windfalls to attorneys." S. Rep. No. 1011, supra, at 6; accord H.R. Rep. No. 1558, supra, at 9; see Delaware Valley I, 478 U.S. at 565 (fee- shifting statutes "were not designed as a form of eco nomic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attor ney could earn through a private fee arrangement with his client"). The statutory purpose is fully satisfied if plaintiffs, like the respondents in this case, are able to retain qualified counsel "based on the statutory assur ance that he will be paid a 'reasonable fee.'" Ibid.10

1. As this Court has recognized, fee enhancement for quality of representation or results obtained is not necessary to attract counsel in fee-shifting cases. See Delaware Valley I, 478 U.S. at 566 ("[I]t is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to se cure legal assistance."). Even accepting a generous con struction of this Court's past dicta, fee enhancements are allowable only in "rare" and "exceptional" cases. Blum, 465 U.S. at 898 The small chance that an attor ney's post-retention performance will be deemed so "ex ceptional"-above and beyond the quality of service that market rates contemplate-is highly unlikely to factor into the attorney's ex ante decision whether to take a fee-shifting case.

Nothing in the record here, for example, indicates that Children's Rights, Inc.-a public interest law firm dedicated to improving child welfare systems through litigation (Pet. App. 54a)-had received an enhancement in a prior case or expected to receive an enhancement in this one. Likewise, nothing in the record indicates that the private firm factored in the remote possibility of an enhancement beyond the lodestar amount in deciding to bring this litigation. To the contrary, Children's Rights, Inc. and its private co-counsel have an impressive record of bringing such impact litigation without the promise of higher-than-market monetary rewards. J.A. 27-31 (Lowry Dec.); Pet. App. 53a-56a. It is right and neces sary that lawyers of this demonstrated quality receive reasonable attorney's fees, including hourly fees at or near the top of the market, for bringing successful ac tions. But the possibility of an enhancement beyond those fees based on quality of representation or results obtained goes beyond what is needed to attract counsel in this or other similar cases. See Delaware Valley I, 478 U.S. at 567 ("Clearly, [plaintiff] was able to obtain counsel without any promise of reward for extraordinary performance.").

Nor is a performance-based enhancement necessary to encourage retained counsel's best efforts. An attor ney who accepts a case arising under a fee-shifting stat ute is ethically obligated, as is any attorney in any case, to represent her client to the best of her legal ability. See, e.g., Model Rule 1.1 ("A lawyer shall provide com petent representation to a client," which "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."); Model Rule 1.3 cmt. (A lawyer should "take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor" and "must * * * act with commit ment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf."). Pursu ant to these professional norms, lawyers every day pro vide best efforts for fees similar to what respondents' counsel would receive under the lodestar award, without any prospect of substantial monetary bonuses.

2. That enhancements based on quality of represen tation and results obtained are not necessary to fulfill the statutory objectives does not mean enhancements are never proper. In particular, enhancements may be necessary where (unlike here) the client or case is so unpopular or otherwise controversial that the attorney suffers professional or financial damage from the repre sentation. In such a case, the lodestar amount may be unreasonable because it does not compensate the attor ney for the extent of his loss. See Delaware Valley I, 478 U.S. at 565 (enhancement proper only in "rare and exceptional" cases) (citation omitted).

Judge Carnes acknowledged this possibility in refer ring to cases in which an attorney's "representation vin dicates the federal rights of an unpopular client and as a result that attorney suffers a loss of standing in the community which damages his practice and income." Pet. App. 49a; see id. at 206a-207a n.2 (Carnes, J., dis senting from denial of rehearing en banc); see also Guam Soc'y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 697-699 (9th Cir. 1996) (enhancement ap propriate where representation "was deemed extremely undesirable in the community" and "local counsel faced unusual and trying personal and professional pres sures," including death threats), cert. denied, 522 U.S. 949 (1997); cf. NAACP v. Allen, 340 F. Supp. 703, 710 (M.D. Ala. 1972) (noting, in support of attorney's fees award, that at that time "a lawyer representing black plaintiffs in an employment discrimination case, or in any civil rights litigation, is likely to suffer social, politi cal and community ostracism"), aff'd in relevant part, 493 F.2d 614 (5th Cir. 1974). In that scenario, not en countered here, the lodestar amount likely would not provide adequate compensation because market rates do not incorporate such dramatic harms to an attorney's practice and income. Accordingly, an enhancement may be necessary to fulfill the statutory purpose of ensuring access to counsel in such cases.

CONCLUSION

The judgment of the court of appeals should be re versed.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
MICHAEL JAY SINGER
JEFFRICA JENKINS LEE
Attorneys

JUNE 2009

1 Respondents argued in their cross-appeal that the district court abused its discretion by not applying the "common fund" and "common benefit" doctrines to enhance the fee award. They also challenged the district court's ruling denying them $801,864 in expert witness expens es. The court of appeals affirmed the district court's rulings on those claims for the reasons explained in the district court's opinion. Pet. App. 14a; see id. at 106a-111a, 157a-159a. Respondents have not sought further review of the appeals court's decision on those issues.

2 The statutes include, inter alia, the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988(b); Equal Access to Justice Act, 28 U.S.C. 2412(b) and (d); Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k); Clean Air Act, 42 U.S.C. 7413(b), 7604(d), 7607(f), 7622(b)(2)(B); Consumer Product Safety Act, 15 U.S.C. 2060(c) and (f), 2072(a), 2073; Truth in Lending Act, 15 U.S.C. 1640(a)(3); Clayton Act, 15 U.S.C. 15; Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 928(a); Copyright Act, 17 U.S.C. 505; Trademark Act of 1946, 15 U.S.C. 1117; Endangered Species Act of 1973, 16 U.S.C. 1540; National Historic Preservation Act, 16 U.S.C. 470w; Toxic Substances Control Act, 15 U.S.C. 2618(d), 2619(c); Surface Mining Control and Reclama tion Act of 1977, 30 U.S.C. 1275(e); Federal Oil and Gas Royalty Man agement Act of 1982, 30 U.S.C. 1734; Clean Water Act, 33 U.S.C. 1365(d); Act to Prevent Pollution from Ships, 33 U.S.C. 1910(d); Safe Drinking Water Act, 42 U.S.C. 300j-8(d); Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415; Energy Policy and Con servation Act, 42 U.S.C. 6305(d); and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4654(a). See Pet. App. 217a-223a (listing over 80 statutes).

3 The legislative history to Section 1988(b) identifies Johnson as listing the "appropriate standards" to be considered in determining a reasonable attorney's fee award. S. Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976); H.R. Rep. No. 1558, 94th Cong., 2d Sess. 8 (1976). The John son factors are (1) the time and labor required; (2) the novelty and dif ficulty of the questions; (3) the skill requisite to perform the legal ser vice 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 "undesir ability" of the case; (11) the nature and length of the professional rela tionship with the client; and (12) awards in similar cases. 488 F.2d at 717-719.

4 The Court in Delaware Valley I ordered reargument on the ques tion whether an attorney's fee award may be enhanced based on the risk of loss. 478 U.S. at 568. That question was addressed in an ensuing decision, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987) (Delaware Valley II), but the Court did not garner a majority to resolve the issue conclusively.

5 As discussed below (pp. 30-31, infra), the government's position would not preclude an enhancement on the distinct ground that an at torney's representation of an unpopular or highly controversial client causes the attorney to suffer some ancillary harm that renders the lodestar amount insufficient to provide adequate compensation or incentive to take on the representation.

6 The legislative history to Section 1988(b) approvingly cites, in ad dition to Johnson, three district court cases applying Johnson to deter mine fee awards. See S. Rep. No. 1011, supra, at 6. One of those three involved a downward adjustment, and the other two involved an en hancement. See Swann v. Charlotte-Mecklenberg Bd. of Educ., 66 F.R.D. 483, 486 (W.D.N.C. 1975) (14% less than requested amount); Stanford Daily v. Zurcher, 64 F.R.D. 680, 688 (N.D. Cal. 1974) (27% enhancement based on contingency risk, quality of representation, and results obtained); Van Davis v. County of Los Angeles, No. 73-63-WPG, 1974 WL 180, at *2-3 (C.D. Cal. 1974) (14% enhancement based on re sults obtained). This Court nonetheless has since precluded enhance ments on one of the very bases-contingency-for the enhancement in Stanford Daily. See Dague, 505 U.S. at 566-567. This snippet of legis lative history does not support enhancements based on quality of repre sentation or results obtained any more than it supported enhancements based on contingency. See Delaware Valley II, 483 U.S. at 724 ("[T]he legislative history is, at best, inconclusive in determining whether Con gress endorsed the concept of increasing the lodestar amount to reflect the risk of not prevailing on the merits.") (White, J.).

7 Bondurant, Mixson & Elmore, LLP, Firm Overview (2009) <http:// www.atlantageorgiatriallawyers.com/bondurant_mixson_elmore_ overview.html>

8 As noted above (pp. 3-4, supra), the district court reduced by 15% the total number of non-travel hours claimed by respondents because the hours claimed were excessive. Pet. App. 145a. But such a reduction cannot justify a lodestar enhancement. To the contrary, this Court has suggested that when a district court reduces the number of hours claimed for reasons such as given here, that reduction weighs against an enhancement for superior performance. See Delaware Valley I, 478 U.S. at 566-567.

9 Respondents were denied reimbursement of expert fees by the courts below, pursuant to this Court's decision in West Virginia Uni versity Hospitals, Inc. v. Casey, 499 U.S. 83 (1991) (holding that Section 1988(b) does not permit recovery of expert fees). Pet. App. 14a; see note 1, supra. District courts should not be permitted, when awarding reasonable attorney's fees, to use an enhancement as a mechanism to circumvent Casey's limitation that the statutory term "attorney's fees" does not include expert fees, or to circumvent any other limitation on fees imposed by statute or decisions of this Court.

10 The absence of express congressional authorization for quality-re lated enhancements is especially important when the fee-paying defen dant is the federal government. Fee-shifting statutes represent a lim ited waiver of sovereign immunity, Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-686 (1983), and, as such, must be strictly construed, Li brary of Congress v. Shaw, 478 U.S. 310, 314 (1986). Thus, in determin ing whether a "reasonable" attorney's fee may include an enhancement for the quality of representation or results obtained, courts should be guided by the statutory language and what Congress "clearly and une quivocally" intended. Lehman v. Nakshian, 453 U.S. 156, 162 (1981).

APPENDIX

42 U.S.C. 1988 provides in pertinent part:

Proceedings in vindication of civil rights

* * * * *

(b) Attorney's Fees

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attor ney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.

(c) Expert Fees

In awarding an attorney's fee under subsection (b) of this section in any action or proceeding to enforce a pro vision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the at torney's fee.