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

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring.

I join the Court’s opinion. I write separately only to reaffirm my view that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee. See Hensley v. Eckerhart, 461 U.S. 424, 448-449 (1983) (BRENNAN, J., concurring in part and dissenting in part).

Although the Court leaves the question unresolved, see ante at 901, n. 17, the legislative history that always has controlled our interpretation of § 1988, and that proves determinative on the other issues addressed by today’s decision, also determines whether an upward adjustment to compensate for the risk of nonpayment may be justified. In particular, Congress referred to Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), for the appropriate standards to be applied by courts awarding attorney’s fees under § 1988. See ante at 893-896. "Whether the fee is fixed or contingent," 488 F.2d at 718 (emphasis in original), was consequently recognized by Congress as a relevant consideration in setting a reasonable fee. Moreover, Congress explicitly cited Stanford Daily v. Zurcher, 64 F.R.D. 680 (ND Cal.1974) (subsequently aff’d, 550 F.2d 464 (CA9 1977), rev’d on other grounds, 436 U.S. 547 (1978)), as one of several cases that had "correctly applied" the appropriate standards. S.Rep. No. 94-1011, p. 6 (1976). In Stanford Daily, the District Court concluded that a court may

increase the fees award obtained by multiplying the number of hours by the average billing rate to reflect the fact that the attorneys’ compensation, at least in part, was contingent in nature.

64 F.R.D. at 685-686. It is clear, therefore, that Congress authorized district courts to award upward adjustments to compensate for the contingent nature of success, and thus for the risk of nonpayment in a particular case.

Indeed, allowing district courts to award such upward adjustments is entirely consistent with the market-based approach to hourly rates that is today reaffirmed by the Court. Lawyers operating in the marketplace can be expected to charge a higher hourly rate when their compensation is contingent on success than when they will be promptly paid, irrespective of whether they win or lose. Similarly, it is necessary to account for this risk in fee awards under § 1988, either by increasing the appropriate hourly rate or by enhancing the fee otherwise calculated with the use of an hourly rate that does not reflect the risk of not prevailing.

* Contingency adjustments under § 1988 should not be confused with contingency fee arrangements that are commonly entered into by private attorneys representing plaintiffs in civil litigation. An upward adjustment to compensate for the risk of nonpayment under § 1988 is

entirely unrelated to the "contingent fee" arrangements that are typical in plaintiffs’ tort representation. In tort suits, an attorney might receive one-third of whatever amount the plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery. Such is not the case in contingency adjustments of the kind . . . describe[d] herein. Th[is] contingency adjustment is a percentage increase in the [amount obtained by multiplying hours expended by hourly rate, and is designed] to reflect the risk that no fee will be obtained.

Copeland v. Marshall, 205 U.S.App.D.C. 390, 403, 641 F.2d 880, 893 (1980) (en banc).