US SUPREME COURT DECISIONS

In 1977, the Delaware Valley Citizens' Council for Clean Air (hereafter respondent) and the United States each filed suit to compel Pennsylvania to comply with certain provisions of the Clean Air Act (Act). (See 478 U.S. 478 U. S. 546, an earlier decision in this case setting forth a detailed statement of the facts.) A consent decree, approved by the Federal District Court in 1978, obligated Pennsylvania to establish a program for the inspection and maintenance of vehicle emissions systems in certain counties by August, 1980. The State failed to do so, and protracted litigation ensued. In 1983, the parties agreed to set June 1, 1984, as the date the state would commence the program. Shortly after such agreement, respondent petitioned the District Court for attorney's fees and costs, pursuant to § 304(d) of the Act, for the work performed after the issuance of the consent decree. The court divided the work into phases and determined the lodestar amount for attorney's fees (the product of reasonable hours times a reasonable rate) for each phase. For certain phases, the court adjusted the figure upward by doubling the lodestar to reflect the risk presumably faced by respondent that it would not prevail on such phases of the litigation. The Court of Appeals affirmed the District Court's enhancement of the fee award. The issue presented here is whether, under § 304(d), when a plaintiff prevails, its attorney, under a contingent fee arrangement, should or may be awarded separate compensation for the risk of losing and not being paid.

Held: The judgment is reversed.

762 F.2d 272, reversed.

JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTlCE SCALIA, concluded that § 304(d) should be construed as not permitting enhancement of a reasonable lodestar fee to compensate for an attorney's assuming the risk of loss and of nonpayment, and that, even if § 304(d) is construed to permit such enhancement in appropriate cases, it was error to do so in this case. Pp. 483 U. S. 723-731.

JUSTICE O'CONNOR concluded that Congress did not intend to foreclose consideration of contingency in setting a reasonable fee under fee-shifting chanrobles.com-red

Page 483 U. S. 712

provisions such as § 304(d), but that the District Court erred in employing a risk multiplier in the circumstances of this case. Pp. 483 U. S. 731-734.

JUSTICE BLACKMUN, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS, concluded that Congress intended § 304(d) to allow an upward adjustment, in appropriate circumstances, for a case taken on a contingent basis, and that the award in this case should be vacated and the case should be remanded to the District Court for further findings. Pp. 483 U. S. 735-755.

WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, in which REHNQUIST, C.J.,and POWELL, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Parts III-B, IV, and V, in which REHNQUIST, C.J.,and POWELL and SCALIA, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 483 U. S. 731. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 483 U. S. 735. chanrobles.com-red

Page 483 U. S. 713