Alfred U. McKenzie v. Ralph Kennickell, Jr., Public Printer

875 F.2d 330, 277 U.S. App. D.C. 297, 1989 U.S. App. LEXIS 7136, 50 Empl. Prac. Dec. (CCH) 39,050, 55 Fair Empl. Prac. Cas. (BNA) 1037, 1989 WL 53267
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 23, 1989
Docket88-5155
StatusPublished
Cited by49 cases

This text of 875 F.2d 330 (Alfred U. McKenzie v. Ralph Kennickell, Jr., Public Printer) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alfred U. McKenzie v. Ralph Kennickell, Jr., Public Printer, 875 F.2d 330, 277 U.S. App. D.C. 297, 1989 U.S. App. LEXIS 7136, 50 Empl. Prac. Dec. (CCH) 39,050, 55 Fair Empl. Prac. Cas. (BNA) 1037, 1989 WL 53267 (D.C. Cir. 1989).

Opinions

Opinion for the court filed by Circuit Judge MIKVA.

Opinion concurring in part and dissenting in part filed by Circuit Judge BUCKLEY.

MIKVA, Circuit Judge:

This attorney’s fee dispute presents the question whether the district court abused its discretion in awarding an enhancement of attorney’s fees and costs based on the risk of nonpayment (i.e., the contingent nature of the case) and the quality of representation. Following Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (“Delaware Valley I”), and Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (“Delaware Valley II”), we affirm the district court’s award.

I. Inteoduction

This case involves the fees and costs of counsel for a class of black employees at the Government Printing Office (“GPO”), whose legal odyssey has stretched over the better part of two decades. In 1973, the employees (“plaintiffs”) filed an action alleging racial discrimination in hiring, training, and promotion practices, in violation of Title VII of the Civil Rights Act of 1964, which had been extended in 1973 to cover federal workers, see 42 U.S.C. § 2000e-16. In 1977, the district court granted plaintiffs’ motion for summary judgment on all claims of liability under Title VII, see McKenzie v. McCormick, 425 F.Supp. 137, 142 (D.D.C.1977), and four years later, the district court issued its remedial decree, see McKenzie v. Saylor, 508 F.Supp. 641, 647-59 (D.D.C.1981). On appeal, this court affirmed the district court in large part, see McKenzie v. Sawyer, 684 F.2d 62, 80 (D.C.Cir.1982).

Although the suit was both a class and an individual action, only the claims of counsel for the class are involved in this appeal. Class counsel include the Institute for Public Representation (“Institute”), [332]*332part of the clinical education program of the Georgetown University Law Center; the Washington Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”), a non-profit, tax-exempt organization affiliated with the National Lawyers Committee for Civil Rights; and the law firm of Hogan & Hartson. Class counsel (collectively “applicants”) first filed a petition requesting attorney’s fees and costs in April 1981, pursuant to 42 U.S.C. §§ 2000e-5(k), 2000e-16(d). Applicants were granted an interim award covering the period from the outset of the case until January 30, 1981, the date of the final relief order. See McKenzie v. Kennickell, 645 F.Supp. 437, 441 (D.D.C.1986). After some considerable delay, the government eventually complied with the district court’s order, see McKenzie v. Kennickell, 669 F.Supp. 529, 530-31, 535 (D.D.C.1987).

Following the resolution of the litigation on the merits, applicants again petitioned the district court for an interim award of attorney’s fees (for services since 1981) pending a final determination of fees. On August 10, 1987, the district court ordered the government to identify an amount that in its opinion represented the “irreducible minimum lodestar fee” to which applicants were entitled, see 669 F.Supp. at 531. Under this order, the government ultimately paid applicants some $200,000, see 669 F.Supp. at 536.

On April 8, 1988, the district court approved a final stipulation in which the government agreed to a lodestar fee of $740,000 that covered the total fee claims of counsel for the individual plaintiffs and counsel handling all fee claims, and the lodestar claims of counsel for the class. This sum was paid on April 28, 1988. See McKenzie v. Kennickell, 684 F.Supp. 1097, 1098 (D.D.C.1988).

On April 18, 1988, the district judge granted counsel for the class two enhancements of the lodestar award: a 50 percent enhancement to reflect the contingent nature of the claim and the resulting risk of nonpayment, and a 25 percent enhancement on the basis of quality of representation. See McKenzie, 684 F.Supp. at 1099. The government appeals these enhancements.

II. Discussion

A. The Contingency Enhancement

In Delaware Valley II, the Supreme Court specifically addressed the legal standard for contingency enhancements under fee-shifting statutes. A majority of the Court reversed a 100 percent risk enhancement before it, and a plurality of four contended that contingency enhancements “should be reserved for exceptional cases.” 107 S.Ct. at 3088. But Justice O’Connor, in a controlling opinion, concluded that “Congress did not intend to foreclose consideration of contingency in setting a reasonable fee under fee-shifting provisions,” 107 S.Ct. at 3089 (O’Connor, J., concurring in part and concurring in the judgment). Four Justices in dissent agreed, see 107 S.Ct. at 3091 (Blackmun, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.).

Justice O’Connor’s opinion in Delaware Valley II is currently the effective legal standard for contingency enhancements, see Weisberg v. U.S. Dep’t of Justice, 848 F.2d 1265, 1272 (D.C.Cir.1988); Thompson v. Kennickell, 836 F.2d 616, 621 (D.C.Cir.1988). Her test was twofold. First, she urged lower courts to view contingency cases “as a class” and “treat a determination of how a particular market compensates for contingency as controlling future cases involving the same market.” 107 S.Ct. at 3090. Justice O’Connor recommended that “courts strive for consistency from one fee determination to the next.” Id. She emphasized that “at all times a fee applicant bears the burden of proving the degree to which the relevant market compensates for contingency.” Id. Second, Justice O’Connor agreed with the plurality that “no enhancement for risk is appropriate unless the applicant can establish that without an adjustment for risk the prevailing party ‘would have faced substantial difficulties in finding counsel in the local or other relevant market.’ ” Id. at 3091 (quoting plurality opinion, 107 S.Ct. at 3089).

Justice O’Connor’s opinion must be understood with reference to the overall pro[333]*333cess by which attorney’s fees are awarded, because she recognized that contingency is but one factor that a district court may consider in setting a “reasonable fee,” 107 S.Ct. at 3089. As the Supreme Court recently reaffirmed, “reasonableness” is the overarching standard by which a fee award is to be measured, and it is to be determined by a district court “in light of all the circumstances” of a case. Blanchard v. Bergeron, — U.S. -, 109 S.Ct. 939, 944, 103 L.Ed.2d 67 (1989).

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875 F.2d 330, 277 U.S. App. D.C. 297, 1989 U.S. App. LEXIS 7136, 50 Empl. Prac. Dec. (CCH) 39,050, 55 Fair Empl. Prac. Cas. (BNA) 1037, 1989 WL 53267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alfred-u-mckenzie-v-ralph-kennickell-jr-public-printer-cadc-1989.