*1 BLUM, COMMISSIONER, NEW YORK STATE DEPART-
MENT OF SOCIAL SERVICES STENSON Argued January 11, No. 81-1374. 1984 Decided March *2 Powell, J., opinion delivered the Brennan, for a unanimous Court. J., concurring opinion, filed a Marshall, J., post, p. 902. joined, which
Melvyn R. Leventhal, Deputy First Assistant Attorney General of New York, argued cause for petitioner. With him on the briefs were Robert Abrams, General, Attorney Dennis H. Allee, First Assistant Attorney General, Peter George H. Schiff, D. Zuckerman, Deputy General, Solicitor and Marion R. Buchbinder and Frederick K. Mehlman, Assistant Attorneys General.
Leon Silverman argued the cause for respondent. With him on the brief were Kalman Arthur Finkel, J. Fried, John E. Kirklin, and Linda R. Blumkin.* *Briefs of amici curiae urging reversal were filed for the United States by Solicitor Lee, General Attorney McGrath, Assistant Deputy General Solicitor Getter, General Deputy Kuhl, Attorney Assistant General Joshua Schwartz, I. Ranter, William Pennak; and Mark W. for the of Ala- State bama et al. Kenneth 0. Eikenberry, Attorney Washington, General of Carr, Thomas F. Senior Attorney General, joined by Assistant the At- torneys General for their respective States as follows: Charles A. Graddick Alabama, of Norman C. Gorsuch of Robert K. Alaska, Arizona, Corbin of Duane Woodard of Colorado, Joseph Lieberman of Jim Smith Connecticut, Florida, of Michael J. Bowers of Tany Hong Hawaii, Georgia, S. Jim of delivered the of the opinion Court.
Justice Powell (1976 V) Title 42 ed., U. S. C. Supp. provides court, federal civil actions “the rights its discretion, may other prevailing party, allow than the United States, a fee as of part the costs.” The initial estimate of a reasonable attorney’s fee is properly calculated the number of hours multiplying reasonably expended on Hensley times a reasonable rate. litigation Eckerhart, U. S. Adjustments to that fee then may be made as necessary case. particular Hartigan Jones of Neil Idaho, Linley E. Illinois, Pearson of Indiana, Thomas Stephan Kansas, Guste, J. Miller Robert T. Iowa, William J. Jr., Louisiana, Stephen H. Sachs Kelley Frank J. Maryland, of Michi- *3 Hubert Humphrey H. III of gan, Minnesota, JohnD. Missouri, of Ashcroft Greely Montana, Michael T. Douglas Paul L. of Brian Nebraska, of McKay Nevada, Gregory H. Smith of New of Hampshire, Irwin I. Kim- melman of New L. Edmisten of North Jersey, Carolina, Robert 0. Rufus Dakota, Anthony Celebrezze, Jr., of North J. Ohio, Michael of Wefald Turpén Oklahoma, Frohnmayer Oregon, David B. of LeRoy S. Zimmer- of man of Dennis Pennsylvania, J. Roberts II of Rhode Mark V. Island, Meierhenry Leech, Jr., Dakota, of William M. South David Tennessee, of L. Wilkinson of John J. Easton Utah, Vermont, Gerald L. Baliles Virginia, Chauncey H. Browning Virginia, of West Bronson C. La Fol- lette Wisconsin, and Archie G. McClintock Wyoming; and for the Commonwealth of Bellotti, Attorney Francis X. by Massachusetts Gen- Kiley, Thomas R. eral, Attorney General, First Assistant and Judith S. Yogman Valvo, and Carl Attorneys Assistant General. Briefs of amici curiae urging affirmance were filed for the Alliance for Macklin; Laura by Justice for the Rights California Coalition Welfare Organizations by Mary Rothschild; S. Burdick and Rickard A. for the Legal NAACP Fund, Inc., Defense and Jack Green- by Educational et al. berg, III, James M. Nabrit Ralston, Stephen Winter, Charles L. Steven Fishman, Fred N. Redlich, Robert H. Kapp, Norman L. Robin- William son, Chachkin, Norman Larson, Neubome, J. E. Richard Burt Kenneth Kimerling, Joaquin Avila, Bailer; G. and Morris J. for the National Edu- cation Gottesman, by Association Weinberg, Michael H. et al. Robert M. Penny Clark, Julia Poltrock; Chanin, Robert H. and Lawrence A. II; New York State Bar Association et al. Haliburton Fales by and for Oliver Hill et al. Armand Stephen P. Berzon. Derfner Congress intended fee two issues this case are whether organizations nonprofit legal service to be calcu- awards to prevailing according to market rates, lated to cost or upward adjust- whether, circumstances, and under what prevailing appro- ment of an award based on market rates is § priate 1988. under
I A brought respondent This suit in 1978 on behalf of recipients pursuant a statewide class of Medicaid1 § U. S. 1983 the District Court for the C. Southern District eligible of New York. Under New York one is law, who Supplemental Security receive benefits under the Income (SSI) (1976 program, seq. Supp. 1381et U. S. C. ed. and V), automatically eligible to receive Medicaid benefits. 1976). seq. (McKinney Y.N. Soc. Serv. Law 363 et Prior persons qualified to this suit, who for Medicaid in this fashion automatically they lost if their benefits thereafter became in- eligible payments. for SSI The case was decided on cross- summary judgment only plain- motions for after one set of interrogatories tiff’s had been served and answered. On motions, these the District the class2 and Court certified judgment rendered final in favor of the class. *4 program providing needy. Medicaid is a medical to the It assistance jointly
is funded 42 State and Federal Governments. U. S. C. (1976 (Mc §§ ed., Supp. V); §§363-369 1396-1396k N. Y. Law Soc. Serv. 1976). Kinney 2The certified class consisted of: eligibility “New York State residents who due to their received Medicaid for and SSI whose of sub- Medicaid benefits have been terminated because sequent ineligibility having for more of the fol- SSI without received one or (a) parte an ex lowing: Medicaid, eligibility for determination of continued (b) independent eligibility SSI; of such timely adequate for notice (c) Blum, termination; Stenson opportunity 476 hearing.” for a (1979). 1331, Supp. F. 1336
890 enjoined court prior practice automatic termina tion of benefits, procedural for prescribed rights the cer parte an ex “(a) tified class that included determination of continued for eligibility Medicaid, independent of eligibility (b) for SSI; timely and notice adequate of such termination; (c) an hearing.” Stenson v. Blum, 476 F. for a opportunity (1979). 1335 Supp. 1331, The Court of Appeals for the Sec ond Circuit affirmed an unpublished oral from opinion bench. Affirmance order, Stenson v. Blum, F. 628 2d 1345, (1980). cert. denied, 449 U. S. Respondent’s subsequent for an request award of attorney’s fees under § 1988 the subject of the present case.
B Throughout this litigation, respondent was represented by from the attorneys Legal Aid Society New York, a private nonprofit law office.3 In November respondent filed a request fees for the period December 1978 the end through of the litigation. Her three attorneys sought for some 809 payment hours of work at rates varying from per $95 hour.4 $105 This amounted to approxi- 3 The Legal Society, Aid based in City, private, New York nonprofit is a law office dedicated since 1876 to providing legal representation persons who cannot lawyer. afford a It well formally organized be the oldest legal society aid in the United enjoys States. It a wide reputation for the devotion of its staff and quality of its service. We told that some are budget three-fourths of the of its by nongovern Civil Division is funded mental contributors. Legal See The Society Aid Report 1983 Annual 49-52. 4 Moynihan Ann billed 487 hours and 50 per minutes at hour. 512 F. $95 Supp. 680, 682 graduated She from law school and at the outset of litigation, this years she had l'/z experience practicing as a at torney. App. 320-321. Paula Galowitz billed 166 hours and minutes at per $100 hour. Supp., F. graduated at 682. She from law school in 1976 and served as a law judge clerk to a during year state her first after graduation. years She had experience practicing attorney as a at IV2 Legal Society Aid at litigation. the outset of this App. 335. Arthur Fried billed 155 hours per and 40 minutes Supp., at hour. F. $105 at (The 682. parties agree that the 115 hours noted the District Court’s *5 request, mately Respondent’s however, total fee $79,312. fee. In her brief to the Dis- reflected a 50%increase respondent explained such an increase was Court, trict necessary compensate complexity case, of the the to for the “great novelty The achieved. issues, the and the benefit” approximately requested $118,968. fee amounted total grounds opposed on the that the the fee award Petitioner charged were the number of hours exorbitant, rates were duplicative, was and and the 50% “bonus” unreasonable improper. support her claim that submitted no evidence
Petitioner charged by respondent unreason- were the hours and rates petitioner hours rested her claim that the Instead, able. duplicative on and the rates exorbitant and excessive were arguments and to the District Court contained her brief requested an eviden- discretion. Petitioner on that court’s only hearing tiary billable hours on the issue of reasonable that the discussion her brief if District found the Court charged. justify in the number of hours reductions did not requested argued Finally, petitioner that the 50% “bonus” paid improper by respondent it because would public. the expended hours that both the District Court held
The charged It also held that the rates were reasonable. the by multiplying the of hours times the number calculated requested 50% be- should be increased complexity representation, quality of the cause of the “great to a benefit success, riskiness of issues, Supp. large 512F. that was achieved. class” requested plaintiff class the Court awarded The District $118,968. fee of unpublished opinion. Appeals in an affirmed Court 1981). (CA2, order, Affirmance 81-7385 Oct.
No. error.) law in 1975and graduated from school typographical He is a table Judge the first District Court law clerk to a United States served as a practicing years experience as a attor- 17a years thereafter. He had two litigation. App. Society 308-309. ney Legal at the outset at the Aid *6 F. 2d 493 We granted certiorari to consider whether it was for proper the District Court to use market prevailing rates in awarding attorney’s fees to nonprofit legal services organizations and whether the District Court abused its discretion the fee increasing award above that based on (1983).5 market rates. 461 U. S.
I—I hH Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To this result, avoid peti- tioner urges this Court to require that all fee under awards § 1988 be calculated according to the cost of providing legal services ráther than according to the prevailing rate.6 market The Solicitor General, for the United States amicus curiae, as urges the Court to a adopt cost-related standard for only fee awards made to nonprofit aid legal organizations. He 5 Petitioner not does argument renew here her hourly that rates by respondent’s claimed counsel were out of line with the “prevailing mar ket private rate” for counsel of comparable experience, skill, reputa tion. Petitioner only claims rates for 1988fee awards should be based on cost rather than on prevailing market rates. See Brief for 12-13,15-21. Petitioner We decline to petitioner’s consider argu further ment that the charged by hours respondent’s counsel were unreasonable. As above, noted petitioner failed to submit to the any District Court evi dence challenging accuracy and reasonableness charged, of the hours see Hensley Eckerhart, 424, 461 U. S. (1983), and n. 12 or the facts asserted in the affidavits by respondent’s submitted counsel. She therefore waived right her to an evidentiary hearing in the District Court. City See Detroit v. Corp., Grinnell (CA2 1974) F. 2d 472-473 (where facts are disputed, an evidentiary hearing required before a dis trict court determines proper award). In view of the trial strategy chose, she petitioner waived her right challenge in this Court the District Court’s determination that the number of hours billed were reasonable for cases similar complexity. 6 Petitioner specifically proposes that fees be based on pro “the cost of viding [legal] plus, services appropriate, where margin profit.” Brief
for Petitioner 17. compensation argues reflect the level of that market rates attorneys, necessary profit-making but that such to attract nonprofit provide counsel. Because excessive fees operating expenses incorporate ex- market rates legal organizations, expenses nonprofit services ceed the profit unnecessary non- to attract and include an element argues profit that fee awards counsel, the Solicitor General unjustified windfall or sub- market rates “confer based on organizations.” sidy upon legal Brief for United services *7 6. as Amicus Curiae States arguments begins and ends with of these two
Resolution attorney’s interpretation The fee statute. Civil of the Attorney’s Rights of 90 42 1976, 2641, Fees Awards Act Stat. (1976 V), Supp. authorizes district courts ed., 1988 U. S. C. attorney’s prevailing rights fee to civil to a reasonable award Congress litigants.7 enacting statute, directed currently according attorney’s to standards fees be calculated fee-shifting statutes: use under other fees awarded under “It is intended that the amount of pre- governed by [§1988] which be the same standards litigation, types equally complex in other of Federal vail because the cases[,] such as antitrust and not be reduced nonpecuniary rights in nature. involved be Highway Georgia appropriate v. standards, see Johnson (5th 1974), correctly ap- Express, 488 F. are 2d 714 Cir. plied Daily 64 Zurcher, v. such cases as Stanford (N. County 1974); Los v. F. R. D. 680 D. Davis Cal. (C. 1974); ¶9444 Angeles, and Swann 8 E. P. D. D. Cal. Charlotte-Mecklenburg 66 Education, Board v. (W. 1975). have These cases F. D. 483 D. N. R. C. competent adequate to attract resulted in fees which are 7 provides part: Section 1988 relevant 1982, 1981, provision of sections any proceeding “In or to enforce a action discretion, may allow ..., court, 1983,1986, in its and 1986 of this title States, party, prevailing other than the United part
fee as of the costs.”
894 produce
counsel, but which do not windfalls to attor- (1976).8 neys.” Rep. p. No. 6 94-1011, S. Report,
In all
of the
four
cases cited
the Senate
fee awards
according
prevailing
were calculated
market rates.9 None
any
of these four cases made
mention of a cost-based stand-
argument
ard.10 Petitioner’s
that the use of market rates
congressional
flatly
violates
intent, therefore, is
contradicted
legislative history
of 1988.
legislative history
Congress
It is also clear from the
vary depending
did not intend the calculation of fee awards to
plaintiff
represented by private
on whether
counsel or
by nonprofit legal
organization.
services
The citations
(ND
Daily
1974),
Zurcher,
v.
64 F. R. D. 680
Cal.
Stanford
(CD
¶9444
County
Angeles,
and Davis v.
Los
EPD8
Cal.
94-1558,
Rep.
p.
Accord H. R.
No.
Georgia Highway Express, Inc.,
9 See Johnson v.
488 F.
2d
(CA5 1974) (“The customary
community
fee for similar work in the
should
(ND
considered”);
Daily Zurcher,
v.
64 F. R. D.
Cal.
Stanford
1974) (“[In making
award,]
the fee
the court will consider . . . the value of
[attorney’s]
light
billing
.”);
time in
County
rates . .
Davis
Los
*8
(CD
1974) (fee
¶
Angeles,
9444,
EPD
8
at 5048
Cal.
award calculated
multiplying
expended
hourly
number
hours
times the “normal
rates”
attorneys
experience);
of like
Charlotte-Mecklenburg
skill and
Swann v.
(WDNC
Education,
1975) (fee
483,
Board
F.
D.
66 R.
486
award calcu
hourly
lated with
generally charged
reference to
in
litigation).
federal
10 Congress
legislating
light
experience
in
when
the
it enacted
By
time,
1976 fee statute.
that
calculating
courts were familiar with
litigation
awards for civil
Rights
1964,
under Title VII of the Civil
42
Act of
2000e-5(k),
U.
judicially
S. C.
and under the
“private
established
attor
ney general” theory
prevailed
that
prior
had
in
to this Court’s decision
(1975).
Alyeska Pipeline Service
v.
Society,
Co. Wilderness
421 U.
240
S.
None of the cases decided at
adopted
approach
that time had
a cost-based
calculating
See,
fees. Reference to market
g.,
rate was uniform.
e.
Works,
(CA7
Waters
1309,
1974),
v. Wisconsin Steel
502 F. 2d
cert.
1322
denied,
(1976);
425
Hotel,
U. S. 997
Evans v. Sheraton Park
164 U. S.
App.
86, 96,
177,
D.
(1974);
C.
503 F. 2d
Tillman v. Wheaton-Haven
Assn., Inc.,
(CA4
Recreation
1975);
517 F. 2d
Kerr v. Screen
Guild,
(CA9
Inc.,
Extras
1975),
526 F. 2d
69-70
cert. denied sub nom.
Guild, Inc.,
Perkins v. Screen Extras
Ill We now address the second question presented: whether a 50% in upward adjustment the fee was —as ar- petitioner gues abuse of discretion by the District Court.12 Peti- —an tioner makes two but related separate arguments. First, she asserts a reasonable is calculated by the multiplying reasonable number of hours expended times a reasonable hourly rate and that any upward adjustment of that fee is the improper. alternative, she argues that the 50% in upward adjustment this case constitutes a clear abuse of discretion.
A as Where, here, resolution of question a of federal law turns on statute and the intention of Congress, we look first to the statutory language and then to the legislative if history the statutory is language unclear. In actions to enforce fed- eral civil rights, 1988 authorizes “in court, its discretion,” setting: different negotiation there is no or even pre- discussion with the vailing client, as the fee—found to be reasonable paid by court —is losing party. Nevertheless, as in above, shown the text the critical inquiry in determining reasonableness generally is now recognized as the appropriate hourly rate. charged And the private rates representations may afford comparisons. relevant In seeking some standard, basis for a properly courts required pre- have vailing attorneys to justify the requested reasonableness of the rate or rates. To inform and assist court in discretion, the exercise of its burden is applicant on the fee produce satisfactory evidence —in addition to the attorney’s own requested affidavits —that the are line with prevailing those community by lawyers similar services of rea- sonably comparable skill, experience, reputation. A rate determined way this normally reasonable, deemed and is referred to —for the prevailing convenience —as market rate.
12 TheDistrict Court characterized the 50% increase as a “bonus.” The Court of Appeals, in opinion, spoke its brief “upward adjust it as an ment.” weAs think the latter fairer, characterization is we will use it.
897 prevailing party, to “allow the other than the States, United attorney’s part legis- a reasonable fee as of the costs.” The history explains attorney’s lative that “a reasonable fee” is “adequate competent one that is to attract . . counsel, but . produce attorneys.” Rep. [that does] not windfalls to S. (1976). p. Report 94-1011, No. 6 As the Senate noted, iden- correctly tified four cases that had calculated a reasonable attorney’s fee.13 (1983), Hensley Eckerhart, v. 424 U. S. we re- legislative history
viewed the cases cited in the
of 1988and
“product
that the
reasonable hours
concluded
times a rea-
normally provides
sonable rate”
a “reasonable”
fee
meaning
Hensley
Id.,
within the
of the statute.
at 434.
exceptional
recognized
“in some cases
also
that
success
may
justified.” Id.,
be
at 435.14 In
enhanced award
view
recognition
may
justified “in
our
that an enhanced award
agree
pe-
exceptional
cannot
with
success,”
some cases of
we
argument
“upward adjustment”
titioner’s
that an
is never
permissible.
requires
fee,”
The statute
a “reasonable
in
standard of
there
be circumstances which the basic
multiplied by reasonably expended hours re-
reasonable rates
unreasonably
unreasonably
that is either
low or
sults
a fee
high.
applicant
his
for a fee has carried
When, however,
showing
hours
that
rate and number of
burden of
the claimed
presumed
resulting product
is
to be
reasonable,
are
§ contemplated
1988.
reasonable fee
Report expressly approved the 12 factors
Specifically, the Senate
calculating a fee
used in
Appeals
for the Fifth Circuit had
the Court
Inc.,
Georgia Highway
Express,
B remaining appropriateness The issue upward is the of an adjustment to the fee award this case. The burden of proving adjustment necessary such an to the deter- *11 mination of a applicant. reasonable fee is on the fee The record before us supporting contains upward no evidence an adjustment to fees calculated under the basic standard of rea- sonable rates times reasonable hours. The affidavits of re- spondent’s attorneys do not claim, or even mention, entitle- upward ment to a bonus or Respondent’s revision. brief to merely the District Court conclusory states in fashion that an upward adjustment necessary to the fee is because the issues litigation were complex, novel, the was and the results were significance far-reaching of large to a people. class of District accepted Court, without elaboration, these conclu- sory approving upward reasons for adjustment the sup- and plied awarding additional reasons of its own. In the 50% in- crease, the complexity court referred to the litigation, of the novelty the of high quality the issues, the representation, of “great the benefit” to the class, and the of “riskiness” Appeals, lawsuit. The affirming, Court of light in shed no why thought on upward it adjustment this substantial was appropriate. single simply repeated sentence, it the un- supported conclusions of the District Court. The reasons offered the District support Court to
upward adjustment do not withstand examination. The nov- elty complexity and presumably of the fully issues were re- flected in the number of billable hours recorded counsel upward thus do adjustment not an warrant in a fee based on the number of billable hours times hourly reasonable rates. There be cases, of experience course, where the special attorney skill of require expenditure will of fewer normally hours than counsel expected would be spend on particularly complex novel or issue. In those special cases, the experience skill and of counsel should be reflected complexity hourly reasonableness of the rates. Neither novelty
nor of the appro- issues, therefore, is an priate determining factor whether to increase the basic fee award. having
The District tried the in the best Court, case, was position quality representation that “the was conclude Society high.” reputation Legal In view of the of the Aid and its we have no that this was true.15 The staff, doubt “quality representation,” generally reflected however, hourly may justify in the rate. It, therefore, upward adjustment only ap in the rare case where the fee plicant specific quality offers evidence to show that the reasonably superior service rendered should to that one expect light charged of the and that the suc “exceptional.” Hensley, cess was 461 U. at 435. S., See Respondent no such and on this case, offered evidence this upward providing an record the District Court’s rationale for example adjustment representation quality is a clear *12 counting. justifying high hourly rates used to In double explained: calculate the award, fee District Court requested fee awards “The rates here are consonant with [T]hey complexity difficulty. . . . in cases of and similar experience attorneys^] are fair view of these expertise quality performed coun- .... The of work throughout high. In view of all these sel this case was requested from rates, I do not find the considerations, Supp., per per 512F. hour, hour to excessive.” $95 $105 at 683. adjustment justifying upward award, to the fee merely factors: these same two “The restated
District Court litigation high. quality representation com- was plex.” Id., at 685. scholars, records as respondent’s had admirable Each of counsel They specializing in experience. also were clerkship
two had valuable them, Yet none of at security against the Government. type social claims 1978, years’ experi than IV2 the outset of in December had more this suit supra. “experience” term practicing lawyers. ence as n. As the See used, normally is limited. quite this is only respondent
Not has failed to show that the provide rates failed quality reasonable for the representation provided, candidly but she concedes that the attorneys] [to “fees awarded her upper be at the end of market awards under . . . Brief for Re- spondent specific 42. Absent contrary, evidence to the we say per cannot from per hour to $95 $105 hour for attorneys fully these three do quality not reflect the of their representation. upward adjustment
The 50% part also was based on the District Court’s determination that the ultimate outcome of litigation great the people.” large “was of benefit to a needy class of Supp.,
512 F. at 685. explain, The court did not exactly however, how this determination affected the fee award. “Results obtained” is one of the 12 factors identified Georgia Highway Johnson v. Express, 488 F. 2d, at as relevant to the calculation of a fee. “particularly It is plaintiff crucial where a ‘prevail- is deemed ing’ though even only he succeeded on some his claims for (fee Hensley, supra, relief.” by at 434 award must be reduced spent the number claims). of hours on unsuccessful Be- acknowledgment cause of the generally “results obtained” will be subsumed within other factors used to calculate a rea- normally sonable fee, it provide should independent not an for increasing basis the fee award.16 Neither the District opinion respondent’s Court’s nor briefs have identified record evidence that shows that requires the benefit achieved upward adjustment to the fee. *13 16Nor do we believe that the persons number of benefited is a consider significance ation of in calculating § fees under 1988. Unlike the calcula tion of fees under the doctrine,” “common fund where a reason able fee is based on a percentage of the fund class, bestowed on the a reasonable § fee under reflects amount of attorney time reason ably expended on the litigation. Presumably, spend counsel will as much time and will diligent as be in litigating a case that benefits a small class of people, or, indeed, in protecting rights the civil single of a individual. among Finally, its reasons Court included the District presented upward adjustment that the “issues statement an a risky.” undertaking 512 F. therefore were novel and the any Supp., in the affidavits or briefs claim at 685. Absent seeking request, respondent’s support in fee submitted prompted adjustment, cannot be sure what such an we in submitted the affidavits Nowhere court’s statement. respondent’s request, support in her brief to the fee nor any identify respondent risks associated did Court, District nonpayment litigation re- that the risk or claim with the provide upward adjustment quired a reasonable to fee. an any upward adjustment for the therefore, record, On this unjustified.17 litigation contingent of the nature Hensley: a “Where what was said sum, In we reiterate attorney plaintiff results, his should excellent has obtained Normally fully compensatory encom- this will fee. recover pass litigation, reasonably expended in- and on the hours all exceptional an enhanced award cases of success deed some reject justified.” 435. therefore S., 461 U. at We adjustment upward argument an petitioner’s to attor- that an appropriate ney’s the record under 1988.18 On is never only respondent established us, however, before per per ranging for the full to hour from hour rates $105 $95 in a This resulted reasonable. hours billed 809.75 were Respondent charge no evidence introduced $79,312. provide necessary and reasonable fair enhancement was carry compensation. her burden failed to has She therefore risk of not whether in this case to consider have no occasion We being case, not entitled prevailing party in a 1983 and therefore being the adversary, may justify an ever attorney’s fees from one’s to an award adjustment. upward fee respect distinction with opinion, declined to draw II of this we Part offices. Simi profit law nonprofit to the use of market between presumptively upward adjustment larly, the rare case in which we draw no distinction appropriate, hours is fee of rate times profit nonprofit law offices. between *14 justifying upward adjustment.19 entitlement to an On this “fully
record, we conclude that the fee $79,312 was com- pensatory.” Accordingly, judgment below is reversed only insofar as the fee award was increased sum $39,656, and is otherwise affirmed.
It is so ordered. Justice Brennan, with whom Justice Marshall joins, concurring. join opinion.
I separately only the Court’s I write to reaf- my Congress firm clearly view that has indicated that the prevailing, risk of not recovering and therefore the risk of not any attorney’s proper is fees, a basis on which a district court upward adjustment compensa- award to an otherwise tory Hensley fee. See v. Eckerhart, U. 461 part S. 424, 448-449 (1983) concurring J., dissenting (Brennan, part).
Although
question
the Court leaves the
unresolved, see
legislative
at
ante,
901, n.
history
always
has con-
interpretation
trolled our
proves
of 1988,and that
determi-
native on
today’s
the other issues addressed
decision, also
upward adjustment
determines whether an
compensate
nonpayment may
justified.
the risk of
particular,
Con-
gress
Georgia
referred to
Highway
Express,
Johnson
Inc.,
(CA5 1974),
19 As
we stated
“request
for attorney’s fees should not re
sult in a
major
second
litigation.” Hensley,
S.,
461 U.
at 437. Parties
rights
to civil
litigation
particular
should
effort,
make
conscientious
where a fee
made,
award is to be
any
resolve
A
differences.
district
expressly
court
empowered to exercise discretion in determining
whether an award is to be made
if
so its
court,
reasonableness.
with
knowledge
its intimate
litigation,
has a responsibility to encour
age agreement.
*15
by Congress
setting
recognized
as a relevant consideration in
Congress explicitly
fee. Moreover,
a reasonable
cited Stan-
(ND
1974)(sub-
Daily v.
64 F. R. D. 680
Zurcher,
Cal.
ford
(CA9 1977),
sequently
Indeed, district courts award such justments entirely ap is consistent with the market-based today proach hourly to rates that is reaffirmed the Court. marketplace expected Lawyers operating in the can hourly charge higher compensation rate when their is con they paid, tingent promptly ir than on success when will be respective they Similarly, is nec § of whether win or lose. it essary to account for this risk fee awards under hourly by increasing appropriate rate or en either hancing the fee otherwise calculated with the use of an prevailing-.* rate that does not reflect the risk of not This § *Contingency adjustments under 1988 should not be confused with con commonly by private at tingency arrangements that are entered into adjustment torneys representing plaintiffs litigation. upward in civil An nonpayment “entirely unre compensate for the risk of under 1988 is ‘contingent arrangements typical plaintiffs’ fee’ that are tort lated to the suits, attorney might representation. In tort receive one-third cases, therefore, plaintiff In those the fee whatever amount the recovers. recovery. directly proportional to the Such is not the case contin contingency gency adjustments of the kind . . . herein. described] Th[is] by multiplying adjustment percentage in the [amount is a increase obtained will ensure that fees under pre 1988 are consistent with vailing market rates, see ante, at 893-894, and n. 9, that nonprofit legal organizations private service attorneys similarly, are treated see ante, at 894-895, and n. 18, and that the “adequate fees awarded are to attract competent represent counsel” to other clients with civil rights grievances, Rep. p. (1976); S. No. 94-1011, H. R. Rep. p. No. 94-1558, *16 expended hours by hourly rate, and designed] to reflect the risk that no fee will be Copeland obtained.” Marshall, App. U. S. D. C.
403, 641 F. (en 2d (1980) banc).