King v. Palmer
| Decision Date | 13 December 1991 |
| Docket Number | 89-7028,Nos. 89-7027,s. 89-7027 |
| Citation | 292 U.S.App.D.C. 362,950 F.2d 771 |
| Parties | 60 Fair Empl.Prac.Cas. (BNA) 525, 57 Empl. Prac. Dec. P 41,137, 292 U.S.App.D.C. 362, 60 USLW 2405 Mabel A. KING, Appellant, v. James F. PALMER, Director, D.C. Department of Corrections, et al. Mabel A. KING v. James F. PALMER, Director, D.C. Department of Corrections, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-1980).
Roger E. Warin, with whom Bryan T. Veis and Jerald S. Howe, Jr., Washington, D.C., were on the brief, for appellant in 89-7027 and appellee in 89-7028. Robert M. Adler and Joel P. Bennett, Washington, D.C., also entered appearances for appellants.
Donna M. Murasky, Asst. Corp. Counsel, with whom Herbert O. Reid, Sr., Corp. Counsel, John Payton, Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees in 89-7027 and appellants in 89-7028. Susan S. McDonald, Asst. Corp. Counsel, Washington, D.C., also entered an appearance for appellees in 89-7027 and appellants in 89-7028.
Michael J. Ryan, Asst. U.S. Atty., with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., John Oliver Birch and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for amicus curiae the U.S. of America in 89-7027 and 89-7028 urging reversal.
John J. Curtin, Jr., Boston, Mass., Rex E. Lee, Carter G. Phillips, and Joseph R. Guerra, Washington, D.C., were on the brief for amicus curiae The American Bar Ass'n in 89-7027 and 89-7028 urging that the panel's decision be reinstated without modification.
Daniel B. Edelman, Washington, D.C., Barry Goldstein, and Mari Mayeda, Oakland, Cal., were on the brief for amici curiae Joel P. Bennett, et al. in 89-7027 and 89-7028 urging that the panel's decision be reinstated without modification.
Blair G. Brown, Brenda V. Smith, and Richard S. Seligman, Washington, D.C., were on the brief for amicus curiae the District of Columbia Bar in 89-7027 and 89-7028 urging that the panel's decision be reinstated.
Charles Stephen Ralston, New York City, for NAACP Legal Defense Fund and Educational Fund; E. Richard Larson, New York City, for Mexican American Legal Defense and Educational Fund, Joseph M. Sellers, Washington, D.C., for Washington Lawyers' Committee for Civil Rights under Law, Gregory O'Duden, Elaine Kaplan, and Timothy Hannapel, Washington, D.C., for National Treasury Employees Union, and Paul M. Smith, Washington, D.C., for Washington Council of Lawyers, were on the joint brief for amici curiae in 89-7027 and 89-7028 urging that the panel's opinion be reinstated.
Daniel J. Popeo, New York City, entered an appearance for amicus curiae The Washington Legal Foundation and the Allied Educational Foundation in 89-7027 and 89-7028 urging reversal.
Before MIKVA, Chief Judge, WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, * HENDERSON, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by SILBERMAN, Circuit Judge, in which BUCKLEY, STEPHEN F. WILLIAMS, D.H. GINSBURG, SENTELLE, KAREN LeCRAFT HENDERSON, and RANDOLPH, Circuit Judges, concur.
This case concerns the circumstances in which a court making an award of reasonable attorney's fees under federal fee-shifting statutes may augment the lodestar with a contingency enhancement designed to compensate the prevailing party's attorney for the risk of losing the case. The panel opinion in this case, King v. Palmer, 906 F.2d 762 (D.C.Cir.1990), reviewed a district court award of attorney's fees and costs made to the plaintiff, Mabel King, pursuant to the fee-shifting provisions of Title VII. See 42 U.S.C. §§ 2000e-5(k), 2000e-16(d). 1 The panel rejected the District of Columbia's contention that no enhancement for the risk of nonpayment was proper but set aside the district court's award of an enhancement of 50% of attorney's fees subject to contingency, holding instead that Ms. King was entitled to a full 100% enhancement of those fees, relying on this court's decision in McKenzie v. Kennickell, 875 F.2d 330 (D.C.Cir.1989). On September 12, 1990, we granted the District of Columbia's petition suggesting rehearing en banc to reconsider the holding on contingency enhancements in McKenzie. Having reviewed the issue en banc, we overrule McKenzie and reverse the award of a contingency enhancement to Ms. King.
Mabel King brought a gender discrimination claim against her employer, the District of Columbia, and ultimately received an award of back pay and retroactive promotion. See King v. Palmer, 778 F.2d 878, 882 n. 7 (D.C.Cir.1985), on remand, 641 F.Supp. 186, 187-89 (D.D.C.1986). The history of the substantive litigation underlying the dispute over attorney's fees is summarized in the panel opinion. See King, 906 F.2d at 764.
Ms. King experienced no difficulty in securing an attorney. She was represented throughout the litigation by the first attorney she contacted, Robert Adler, who took the case on a partial contingency basis. Ms. King contacted Mr. Adler as a result of his successful representation of a colleague of hers in another Title VII case, for which he had received a 10% contingency enhancement. Ms. King and Mr. Adler agreed that she would be responsible for litigation costs and expenses, as well as for fees of up to $5000, and that she would receive any award of damages, while Mr. Adler would receive any statutory attorney's fees that might be awarded, should Ms. King prevail. See id.
Mr. Adler averred that he took the case expecting that a contingency enhancement would be available. In his applications for attorney's fees following Ms. King's success on the merits, Mr. Adler twice requested a 35% fee bonus to compensate him for the risk of nonpayment he had borne during the litigation, but the district court held this request in abeyance pending the Supreme Court's decision concerning the availability of contingency enhancements in 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 ). In the interim, the district court awarded a lodestar fee totaling $232,707.62, which comprised the reasonable number of hours Mr. Adler spent on the case multiplied by a reasonable hourly rate, and noted that a "15 [percent] bonus for the risk of not prevailing would ... be appropriate in the event that such an award is authorized by the Supreme Court." King v. Palmer, Civ. No. 83-1980, Rev.Mem. at 13, 1987 WL 12794 (D.D.C. June 10, 1987) (Mem.Op.I ).
After the Court issued its fragmented decision in Delaware Valley II, Mr. Adler reapplied for a contingency enhancement, increasing his request to 100%. Reading Justice O'Connor's concurrence in Delaware Valley II as controlling the availability and degree of contingency enhancement, the district court held that the plaintiff must establish how the market compensates for contingent cases on a class-wide basis and then show that without such enhancement she would have had substantial difficulty attracting competent counsel to her case. See King v. Palmer, Civ. No. 83-1980-LFO, Mem. at 2, 1988 WL 104970 (D.D.C. Sept. 20, 1988) (Mem.Op.II ). In the district court's view, Ms. King met these requirements by introducing affidavits from a number of local attorneys experienced in Title VII work asserting that they would not accept fee-shifting cases where fees were available only if the case was won, absent the prospect of contingency enhancements. See id. at 3. Since Ms. King had agreed to pay all costs and expenses and the first $5000 of fees, however, the district court found that Mr. Adler's representation of her was only partially contingent and awarded a 50% enhancement instead of the 100% requested, on the authority of an earlier district court opinion in Palmer v. Shultz, 679 F.Supp. 68 (D.D.C.1988), appeal dismissed, No. 88-5108 (D.C.Cir.1988). See Mem.Op.II at 3-4. Both parties appealed.
The panel, following our previous opinion in McKenzie v. Kennickell, 875 F.2d 330 (D.C.Cir.1989), affirmed the district court's award of a contingency enhancement but increased it from 50% of the lodestar to 100%. McKenzie established a regime in which contingency enhancements would be routinely available in statutory fee-shifting cases. In reaching this result, the McKenzie panel treated Justice O'Connor's concurring opinion in Delaware Valley II as controlling and explicitly applied her admonition 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.' " Delaware Valley II, 483 U.S. at 733, 107 S.Ct. at 3091 (O'Connor, J., concurring in part and concurring in the judgment) (). The McKenzie majority described the inquiry to be conducted under this test as "counterfactual," meaning that plaintiffs "need not show that [they] actually experienced difficulty in obtaining representation," but merely that, "absent a contingency enhancement, plaintiffs would have encountered substantial difficulties in finding counsel ... [at the time] they commenced their lawsuit." McKenzie, 875 F.2d at 337 (). Thus, the majority concluded that a prevailing plaintiff under the typical fee shifting-statute could gain a contingency enhancement by producing affidavits...
To continue reading
Request your trial
- United States v. Burwell, No. 06-3070
-
Am. Coll. of Obstetricians & Gynecologists v. U.S. Food & Drug Admin.
...of our precedents today evinces that our abortion jurisprudence remains in a state of utter entropy."); King v. Palmer , 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc) (noting that the majority view under Marks does not include the reasoning of dissenting Justices). Indeed, the Chief Justice ......
-
Rappa v. New Castle County
...reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment. King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc); see also Casey, 947 F.2d at 694 (recognizing that the opinions considered had "a common denominator standard"). The court ......
-
Anker Energy Corp. v. Consolidation Coal Co.
...than another" and can "represent a common denominator of the Court's reasoning." Rappa, 18 F.3d at 1057 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc)). Thus, in cases where approaches differ, no particular standard is binding on an inferior court because none has recei......
-
Table of Cases null
...Kilroy v. State of California, 119 Cal. App. 4th 140, 14 Cal. Rptr. 3d 109 (3d Dist. 2004)—Ch. 3-B, §21.2.1 King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991)—Ch. 5-E, §3.2.1(1)(c)[2] Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972)—Ch. 5-D, §1; §2.1.1 K.J., In re, 18 Cal......
-
Chapter 5 - §3. Right of confrontation & out-of-court statements
...produces a determinate holding only when one opinion is a logical subset of the other, broader opinions. King v. Palmer (D.C. Cir.1991) 950 F.2d 771, 781. When the plurality and the concurring opinions take distinct approaches, and there is no narrowest opinion representing the common denom......
-
Plurality decisions in the Supreme Court of the United States: a reexamination of the Marks doctrine after Rapanos v. United States.
...concurring Justices in Furman implicitly or explicitly supported the position that Justices Stewart and White adopted. See King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (observing Justices Brennan, Douglas, and Marshall implicitly supported Justices Stewart and White's positi......
-
STARE DECISIS AND INTERSYSTEMIC ADJUDICATION.
...which relies on the 'least' doctrinally 'farreaching-common ground' among the Justices in the majority") (emphasis added); King v. Palmer, 950 F.2d 771, 783-84 (D.C. Cir. (53) See, e.g.. In re Kozeny, 236 F.3d 615, 620-21 (10th Cir. 2000) (treating the view expressed in the plurality opinio......