 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

CITY OF BURLINGTON v. DAGUE et al.
certiorari to the united states court of appeals for
          the second circuit
No. 91-810.   Argued April 21, 1992"Decided June 24, 1992

After ruling on the merits for respondents, the District Court deter-
mined that they were ``substantially prevailing'' parties entitled to
``reasonable'' attorney's fees under the attorney's fee provisions of the
Solid Waste Disposal Act and the Clean Water Act.  The District
Court calculated the fee award by, inter alia, enhancing the ``lode-
star'' amount by 25% on the grounds that respondents' attorneys
were retained on a contingent-fee basis and that without such
enhancement respondents would have faced substantial difficulties in
obtaining suitable counsel.  The Court of Appeals affirmed the fee
award.
Held:The fee-shifting statutes at issue do not permit enhancement of
a fee award beyond the lodestar amount to reflect the fact that a
party's attorneys were retained on a contingent-fee basis.  In Pennsyl-
vania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S.
711 (Delaware Valley II), this Court addressed, but did not resolve,
a question essentially identical to the one presented here.  The
position taken by the principal opinion in that case, id., at 723-727
(opinion of White, J.)"that the typical federal fee-shifting statute
does not permit an attorney's fee award to be enhanced on account
of contingency"is adopted.  The position advocated by Delaware
Valley II's concurrence, id., at 731, 733 (O'Connor, J., concurring in
part and concurring in judgment)"that contingency enhancement is
appropriate in defined limited circumstances"is rejected, since it is
based upon propositions that are mutually inconsistent as a practical
matter; would make enhancement turn upon a circular test for a very
large proportion of contingency-fee cases; and could not possibly
achieve its supposed goal of mirroring market incentives to attorneys
to take cases.  Beyond that approach, there is no other basis, fairly
derivable from the fee-shifting statutes, by which contingency en-
hancement, if adopted, could be restricted to fewer than all contin-
gent-fee cases.  Moreover, contingency enhancement is not compatible
with the fee-shifting statutes at issue, since such enhancement would
in effect pay for the attorney's time (or anticipated time) in cases
where his client does not prevail; is unnecessary to the determination
of a reasonable fee and inconsistent with this Court's general rejec-
tion of the contingent-fee model in favor of the lodestar model, see,
e. g., Blanchard v. Bergeron, 489 U.S. 87, 96; and would make the
setting of fees more complex and arbitrary, hence more unpredictable,
and hence more litigable.  Pp.3-9.
935 F.2d 1343, reversed in part.

Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and White, Kennedy, Souter, and Thomas, JJ., joined.  Black-
mun, J., filed a dissenting opinion, in which Stevens, J., joined.
O'Connor, J., filed a dissenting opinion.


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
           SUPREME COURT OF THE UNITED STATES--------
                       No. 91-810
                        --------
        CITY OF BURLINGTON, PETITIONER v. ERNEST
                        DAGUE, Sr., et al.
        on writ of certiorari to the united states court of
                  appeals for the second circuit
                          [June 24, 1992]

       Justice Scalia delivered the opinion of the Court.
       This case presents the question whether a court, in
determining an award of reasonable attorney's fees under
7002(e) of the Solid Waste Disposal Act (SWDA), 90 Stat.
2826, as amended, 42 U. S. C. 6972(e), or 505(d) of the
Federal Water Pollution Control Act (Clean Water Act
(CWA)), 86 Stat. 889, as amended, 33 U. S. C. 1365(d),
may enhance the fee award above the  lodestar amount in
order to reflect the fact that the party's attorneys were
retained on a contingent-fee basis and thus assumed the
risk of receiving no payment at all for their services.
Although different fee-shifting statutes are involved, the
question is essentially identical to the one we addressed,
but did not resolve, in Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 483 U. S. 711 (1987)
(Delaware Valley II).
                                 I
       Respondent Dague (whom we will refer to in place of all
the respondents) owns land in Vermont adjacent to a
landfill that was owned and operated by petitioner City of
Burlington.  Represented by attorneys retained on a
contingent-fee basis, he sued Burlington over its operation
of the landfill.  The District Court ruled, inter alia, that
Burlington had violated provisions of the SWDA and the
CWA, and ordered Burlington to close the landfill by
January 1, 1990.  It also determined that Dague was a
 substantially prevailing party entitled to an award of
attorney's fees under the Acts, see 42 U. S. C. 6972(e); 33
U. S. C. 1365(d).  732 F. Supp. 458 (Vt. 1989).
       In calculating the attorney's fees award, the District
Court first found reasonable the figures advanced by Dague
for his attorneys' hourly rates and for the number of hours
expended by them, producing a resulting  lodestar attor-
ney's fee of $198,027.50.  (What our cases have termed the
 lodestar is  the product of reasonable hours times a
reasonable rate, Pennsylvania v. Delaware Valley Citizens'
Council for Clean Air, 478 U. S. 546, 565 (1986) (Delaware
Valley I).)  Addressing Dague's request for a contingency
enhancement, the court looked to Circuit precedent, which
provided that  `the rationale that should guide the court's
discretion is whether  [w]ithout the possibility of a fee
enhancement . . . competent counsel might refuse to
represent [environmental] clients thereby denying them
effective access to the courts.'  (Quoting Friends of the
Earth v. Eastman Kodak Co., 834 F. 2d 295, 298 (CA2
1987)).  Following this guidance, the court declared that
Dague's  risk of not prevailing was substantial and that
 absent an opportunity for enhancement, [Dague] would
have faced substantial difficulty in obtaining counsel of
reasonable skill and competence in this complicated field of
law.  It concluded that  a 25% enhancement is appropriate,
but anything more would be a windfall to the attorneys.
It therefore enhanced the lodestar amount by 25%"$49,506.87.
       The Court of Appeals affirmed in all respects.  Reviewing
the various opinions in Delaware Valley II, the court
concluded that the issue whether and when a contingency
enhancement is warranted remained open, and expressly
disagreed with the position taken by some Courts of
Appeals that the concurring opinion in Delaware Valley II
was controlling.  The court stated that the District Court
had correctly relied on Circuit precedent, and, holding that
the District Court's findings were not clearly erroneous, it
upheld the 25% contingency enhancement.  935 F. 2d 1343,
1359-1360 (CA2 1991).  We granted certiorari only with
respect to the propriety of the contingency enhancement.
502 U. S. "" (1992).
                                II
       We first provide some background to the issue before us.
Fees for legal services in litigation may be either  certain
or  contingent (or some hybrid of the two).  A fee is certain
if it is payable without regard to the outcome of the suit; it
is contingent if the obligation to pay depends on a particu-
lar result's being obtained.  Under the most common
contingent-fee contract for litigation, the attorney receives
no payment for his services if his client loses.  Under this
arrangement, the attorney bears a contingent risk of
nonpayment that is the inverse of the case's prospects of
success: if his client has an 80% chance of winning, the
attorney's contingent risk is 20%.
       In Delaware Valley II, we reversed a judgment that had
affirmed enhancement of a fee award to reflect the contin-
gent risk of nonpayment.  In the process, we addressed
whether the typical federal fee-shifting statute (there,
304(d) of the Clean Air Act, 42 U. S. C. 7604(d)) permits
an attorney's fees award to be enhanced on account of
contingency.  In the principal opinion, Justice White,
joined on this point by three other Justices, determined that
such enhancement is not permitted.  483 U. S., at 723-727.
Justice O'Connor, in an opinion concurring in part and
concurring in the judgment, concluded that no enhancement
for contingency 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 733
(internal quotations omitted), and that any enhancement
 must be based on the difference in market treatment of
contingent fee cases as a class, rather than on an assess-
ment of the `riskiness' of any particular case, id., at 731
(emphasis in original).  Justice Blackmun's dissenting
opinion, joined by three other Justices, concluded that
enhancement for contingency is always statutorily required.
Id., at 737-742, 754.
       We turn again to this same issue.
                                III
       Section 7002(e) of the SWDA and Section 505(d) of the
CWA authorize a court to  award costs of litigation (includ-
ing reasonable attorney . . . fees) to a  prevailing or
substantially prevailing party.  42 U. S. C. 6972(e)
(emphasis added); 33 U. S. C. 1365(d) (emphasis added).
This language is similar to that of many other federal fee-
shifting statutes, see, e.g., 42 U. S. C. 1988, 2000e-5(k),
7604(d); our case law construing what is a  reasonable fee
applies uniformly to all of them.  Flight Attendants v. Zipes,
491 U. S. 754, 758, n. 2 (1989).
       The  lodestar figure has, as its name suggests, become
the guiding light of our fee-shifting jurisprudence.  We have
established a  strong presumption that the lodestar
represents the  reasonable fee, Delaware Valley I, supra,
at 565, and have placed upon the fee applicant who seeks
more than that the burden of showing that  such an
adjustment is necessary to the determination of a reason-
able fee.  Blum v. Stenson, 465 U. S. 886, 898 (1984)
(emphasis added).  The Court of Appeals held, and Dague
argues here, that a  reasonable fee for attorneys who have
been retained on a contingency-fee basis must go beyond
the lodestar, to compensate for risk of loss and of conse-
quent nonpayment.  Fee-shifting statutes should be
construed, he contends, to replicate the economic incentives
that operate in the private legal market, where attorneys
working on a contingency-fee basis can be expected to
charge some premium over their ordinary hourly rates.
Petitioner Burlington argues, by contrast, that the lodestar
fee may not be enhanced for contingency.
       We note at the outset that an enhancement for contin-
gency would likely duplicate in substantial part factors
already subsumed in the lodestar.  The risk of loss in a
particular case (and, therefore, the attorney's contingent
risk) is the product of two factors: (1) the legal and factual
merits of the claim, and (2) the difficulty of establishing
those merits.  The second factor, however, is ordinarily
reflected in the lodestar"either in the higher number of
hours expended to overcome the difficulty, or in the higher
hourly rate of the attorney skilled and experienced enough
to do so.  Blum, supra, at 898-899.  Taking account of it
again through lodestar enhancement amounts to double-
counting.  Delaware Valley II, 483 U. S., at 726-727
(plurality opinion).
       The first factor (relative merits of the claim) is not
reflected in the lodestar, but there are good reasons why it
should play no part in the calculation of the award.  It is,
of course, a factor that always exists (no claim has a 100%
chance of success), so that computation of the lodestar
would never end the court's inquiry in contingent-fee cases.
See id., at 740 (Blackmun, J., dissenting).  Moreover, the
consequence of awarding contingency enhancement to take
account of this  merits factor would be to provide attorneys
with the same incentive to bring relatively meritless claims
as relatively meritorious ones.  Assume, for example, two
claims, one with underlying merit of 20%, the other of 80%.
Absent any contingency enhancement, a contingent-fee
attorney would prefer to take the latter, since he is four
times more likely to be paid.  But with a contingency
enhancement, this preference will disappear: the enhance-
ment for the 20% claim would be a multiplier of 5 (100/20),
which is quadruple the 1.25 multiplier (100/80) that would
attach to the 80% claim.  Thus, enhancement for the
contingency risk posed by each case would encourage
meritorious claims to be brought, but only at the social cost
of indiscriminately encouraging nonmeritorious claims to be
brought as well.  We think that an unlikely objective of the
 reasonable fees provisions.   These statutes were not
designed as a form of economic relief to improve the
financial lot of lawyers.  Delaware Valley I, 478 U. S., at
565.
       Instead of enhancement based upon the contingency risk
posed by each case, Dague urges that we adopt the ap-
proach set forth in the Delaware Valley II concurrence.  We
decline to do so, first and foremost because we do not see
how it can intelligibly be applied.  On the one hand, it
would require the party seeking contingency enhancement
to  establish that without the adjustment for risk [he]
`would have faced substantial difficulties in finding counsel
in the local or other relevant market.'  483 U. S., at 733.
On the other hand, it would forbid enhancement based  on
an assessment of the `riskiness' of any particular case.  Id.,
at 731; see id., at 734 (no enhancement  based on `legal'
risks or risks peculiar to the case).  But since the predomi-
nant reason that a contingent-fee claimant has difficulty
finding counsel in any legal market where the winner's
attorney's fees will be paid by the loser is that attorneys
view his case as too risky (i. e., too unlikely to succeed),
these two propositions, as a practical matter, collide.  See
King v. Palmer, 292 U. S. App. D. C. 362, 371, 950 F. 2d
771, 780 (1991) (en banc), cert. pending sub nom. King v.
Ridley, No. 91-1370.
       A second difficulty with the approach taken by the
concurrence in Delaware Valley II is that it would base the
contingency enhancement on  the difference in market
treatment of contingent fee cases as a class.  483 U. S., at
731 (emphasis in original).  To begin with, for a very large
proportion of contingency-fee cases"those seeking not
monetary damages but injunctive or other equitable
relief"there is no  market treatment.  Such cases scarcely
exist, except to the extent Congress has created an artificial
 market for them by fee-shifting"and looking to that
 market for the meaning of fee-shifting is obviously
circular.  Our decrees would follow the  market, which in
turn is based on our decrees.  See King v. Palmer, 285 U. S.
App. D. C. 68, 76, 906 F. 2d 762, 770 (1990) (Williams, J.,
concurring) ( I see the judicial judgment as defining the
market, not vice versa), vacated, 292 U. S. App. D. C. 362,
950 F. 2d 771 (1991), cert. pending sub nom. King v. Ridley,
No. 91-1370.  But even apart from that difficulty, any
approach that applies uniform treatment to the entire class
of contingent-fee cases, or to any conceivable subject-
matter-based subclass, cannot possibly achieve the sup-
posed goal of mirroring market incentives.  As discussed
above, the contingent risk of a case (and hence the difficulty
of getting contingent-fee lawyers to take it) depends
principally upon its particular merits.  Contingency en-
hancement calculated on any class-wide basis, therefore,
guarantees at best (leaving aside the double-counting
problem described earlier) that those cases within the class
that have the class-average chance of success will be
compensated according to what the  market requires to
produce the services, and that all cases having above-class-
average chance of success will be overcompensated.
       Looking beyond the Delaware Valley II concurrence's
approach, we perceive no other basis, fairly derivable from
the fee-shifting statutes, by which contingency enhance-
ment, if adopted, could be restricted to fewer than all
contingent-fee cases.  And we see a number of reasons for
concluding that no contingency enhancement whatever is
compatible with the fee-shifting statutes at issue.  First,
just as the statutory language limiting fees to prevailing (or
substantially prevailing) parties bars a prevailing plaintiff
from recovering fees relating to claims on which he lost,
Hensley v. Eckerhart, 461 U. S. 424 (1983), so should it bar
a prevailing plaintiff from recovering for the risk of loss.
See Delaware Valley II, supra, at 719-720, 724-725 (prin-
cipal opinion).  An attorney operating on a contingency-fee
basis  pools  the  risks  presented  by  his  various  cases:
cases that turn out to be successful pay for the time he
gambled on those that did not.  To award a contingency
enhancement under a fee-shifting statute would in effect
pay for the attorney's time (or anticipated time) in cases
where his client does not prevail.
       Second, both before and since Delaware Valley II,  we
have generally turned away from the contingent-fee
model"which would make the fee award a percentage of
the value of the relief awarded in the primary action" to
the lodestar model.  Venegas v. Mitchell, 495 U. S. 82, 87
(1990).  We have done so, it must be noted, even though the
lodestar model often (perhaps, generally) results in a larger
fee award than the contingent-fee model.  See, e.g., Report
of the Federal Courts Study Committee 104 (Apr. 2, 1990)
(lodestar method may  give lawyers incentives to run up
hours unnecessarily, which can lead to overcompensation).
For example, in Blanchard v. Bergeron, 489 U. S. 87 (1989),
we held that the lodestar governed, even though it produced
a fee that substantially exceeded the amount provided in
the contingent-fee agreement between plaintiff and his
counsel (which was self-evidently an amount adequate to
attract the needed legal services).  Id., at 96.  Contingency
enhancement is a feature inherent in the contingent-fee
model (since attorneys factor in the particular risks of a
case in negotiating their fee and in deciding whether to
accept the case).  To engraft this feature onto the lodestar
model would be to concoct a hybrid scheme that resorts to
the contingent-fee model to increase a fee award but not to
reduce it.  Contingency enhancement is therefore not
consistent with our general rejection of the contingent-fee
model for fee awards, nor is it necessary to the determina-
tion of a reasonable fee.
       And finally, the interest in ready administrability that
has underlain our adoption of the lodestar approach, see,
e.g., Hensley, supra, at 433, and the related interest in
avoiding burdensome satellite litigation (the fee application
 should not result in a second major litigation, id., at 437),
counsel strongly against adoption of contingency enhance-
ment.  Contingency enhancement would make the setting
of fees more complex and arbitrary, hence more unpredict-
able, and hence more litigable.  It is neither necessary nor
even possible for application of the fee-shifting statutes to
mimic the intricacies of the fee-paying market in every
respect.  See Delaware Valley I, 478 U. S., at 565.

                              *  *  *
       Adopting the position set forth in Justice White's
opinion in Delaware Valley II, 483 U. S., at 715-727, we
hold that enhancement for contingency is not permitted
under the fee-shifting statutes at issue.  We reverse the
Court of Appeals' judgment insofar as it affirmed the 25%
enhancement of the lodestar.
                                           It is so ordered.



            SUPREME COURT OF THE UNITED STATES--------
                       No. 91-810
                        --------
        CITY OF BURLINGTON, PETITIONER v. ERNEST
                        DAGUE, Sr., et al.
        on writ of certiorari to the united states court of
                  appeals for the second circuit
                          [June 24, 1992]

       Justice Blackmun, with whom Justice Stevens joins,
dissenting.
       In language typical of most federal fee-shifting provisions,
the statutes involved in this case authorize courts to award
the prevailing party a  reasonable attorney's fee.  Two
principles, in my view, require the conclusion that the
 enhanced fee awarded to respondents was reasonable.
First, this Court consistently has recognized that a  reason-
able fee is to be a  fully compensatory fee, Hensley v.
Eckerhart, 461 U. S. 424, 435 (1983), and is to be  calculat-
ed on the basis of rates and practices prevailing in the
relevant market.  Missouri v. Jenkins, 491 U. S. 274, 286
(1989).  Second, it is a fact of the market that an attorney
who is paid only when his client prevails will tend to charge
a higher fee than one who is paid regardless of outcome,
and relevant professional standards long have recognized
that this practice is reasonable.
       The Court does not deny these principles.  It simply
refuses to draw the conclusion that follows ineluctably:  If
a statutory fee consistent with market practices is  reason-
able, and if in the private market an attorney who as-
sumes the risk of nonpayment can expect additional
compensation, then it follows that a statutory fee may
include additional compensation for contingency and still
qualify as reasonable.  The Court's decision to the contrary
violates the principles we have applied consistently in prior
cases and will seriously weaken the enforcement of those
statutes for which Congress has authorized fee
awards"notably, many of our Nation's civil rights laws and
environmental laws.
                                 I
       Congress' purpose in adopting fee-shifting provisions was
to strengthen the enforcement of selected federal laws by
ensuring that private persons seeking to enforce those laws
could retain competent counsel.  See S. Rep. No. 94-1011,
p. 6 (1976).  In particular, federal fee-shifting provisions
have been designed to address two related difficulties that
otherwise would prevent private persons from obtaining
counsel.  First, many potential plaintiffs lack sufficient
resources to hire attorneys.  See H. R. Rep. No. 94-1558, p.
1 (1976); S. Rep. No. 94-1011, p. 2 (1976).  Second, many of
the statutes to which Congress attached fee-shifting
provisions typically will generate either no damages or only
small recoveries; accordingly, plaintiffs bringing cases under
these statutes cannot offer attorneys a share of a recovery
sufficient to justify a standard contingent fee arrangement.
See Pennsylvania v. Delaware Valley Citizens' Council for
Clean Air ( Delaware Valley II), 483 U. S. 711, 749 (1987)
(dissenting opinion); H. R. Rep. No. 94-1558, p. 9 (1976).
The strategy of the fee-shifting provisions is to attract
competent counsel to selected federal cases by ensuring that
if they prevail, counsel will receive fees commensurable
with what they could obtain in other litigation.  If federal
fee-bearing litigation is less remunerative than private
litigation, then the only attorneys who will take such cases
will be underemployed lawyers"who likely will be less
competent than the successful, busy lawyers who would
shun federal fee-bearing litigation"and public interest
lawyers who, by any measure, are insufficiently numerous
to handle all the cases for which other competent attorneys
cannot be found.  See Delaware Valley II, 483 U. S., at
742-743 (dissenting opinion).
       In many cases brought under federal statutes that
authorize fee-shifting, plaintiffs will be unable to ensure
that their attorneys will be compensated for the risk that
they might not prevail.  This will be true in precisely those
situations targeted by the fee-shifting statutes"where
plaintiffs lack sufficient funds to hire an attorney on a win-
or-lose basis and where potential damage awards are
insufficient to justify a standard contingent fee arrange-
ment.  In these situations, unless the fee-shifting statutes
are construed to compensate attorneys for the risk of
nonpayment associated with loss, the expected return from
cases brought under federal fee-shifting provisions will be
less than could be obtained in otherwise comparable private
litigation offering guaranteed, win-or-lose compensation.
Prudent counsel, under these conditions, would tend to
avoid federal fee-bearing claims in favor of private litiga-
tion, even in the very situations for which the attorney's fee
statutes were designed.  This will be true even if the fee-
bearing claim is more likely meritorious than the competing
private claim.
       In Delaware Valley II, five Justices of this Court con-
cluded that for these reasons the broad statutory term
 reasonable attorney's fee must be construed to permit, in
some circumstances, compensation above the hourly win-or-
lose rate generally borrowed to compute the lodestar fee.
See 483 U. S., at 731, 732-733 (O'Connor, J., concurring in
part and concurring in the judgment); id., at 735 (dissenting
opinion).  Together with the three Justices who joined my
dissenting opinion in that case, I would have allowed
enhancement where, and to the extent that, the attorney's
compensation is contingent upon prevailing and receiving
a statutory award.  I indicated that if, by contrast, the
attorney and client have been able to mitigate the risk of
nonpayment"either in full, by agreeing to win-or-lose
compensation or to a contingent share of a substantial
damage recovery, or in part, by arranging for partial
payment"then to that extent enhancement should be
unavailable.  Id., at 748-749.  I made clear that the  risk
for which enhancement might be available is not the
particular factual and legal riskiness of an individual case,
but the risk of nonpayment associated with contingent cases
considered as a class.  Id., at 745-747, 752.  Congress, I
concluded, did not intend to prohibit district courts from
considering contingency in calculating a  reasonable
attorney's fee.
       Justice O'Connor's concurring opinion agreed that
 Congress did not intend to foreclose consideration of
contingency in setting a reasonable fee, id., at 731, and
that  compensation for contingency must be based on the
difference in market treatment of contingent fee cases as a
class, rather than on an assessment of the `riskiness' of any
particular case (emphasis in original).  Ibid.  As I under-
stand her opinion, Justice O'Connor further agreed that
a court considering an enhancement must determine
whether and to what extent the attorney's compensation
was contingent, as well as whether and to what extent that
contingency was, or could have been, mitigated.  Her
concurrence added, however, an additional inquiry designed
to make the market-based approach  not merely justifiable
in theory but also objective and nonarbitrary in practice.
Id., at 732.  She suggested two additional  constraints on a
court's discretion in determining whether, and how much,
enhancement is warranted.  First,  district courts and
courts of appeals should treat a determination of how a
particular market compensates for contingency as control-
ling future cases involving the same market, and varying
rates of enhancement among markets must be justifiable by
reference to real differences in those markets.  Id., at 733.
Second, the applicant bears the burden of demonstrating
that without an adjustment for risk  the prevailing party
would have faced substantial difficulties in finding counsel
in the local or other relevant market (internal quotations
omitted).  Ibid.
                                II
       After criticizing at some length an approach it admits
respondents and their amici do not advocate, see ante, at
5-6, and after rejecting the approach of the Delaware Valley
II concurrence, see ante, at 6-7, the Court states that it
 see[s] a number of reasons for concluding that no contin-
gency enhancement whatever is compatible with the fee-
shifting statutes at issue.  Ante, at 7.  I do not find any of
these arguments persuasive.
       The Court argues, first, that  [a]n attorney operating on
a contingency-fee basis pools the risks presented by his
various cases and uses the cases that were successful to
subsidize those that were not.  Ante, at 7-8.   To award a
contingency enhancement under a fee-shifting statute, the
Court concludes, would  in effect contravene the prevailing-
party limitation, by allowing the attorney to recover fees for
cases in which his client does not prevail.  Ante, at 8.  What
the words  in effect conceal, however, is the Court's
inattention to the language of the statutes:  The provisions
at issue in this case, like fee-shifting provisions generally,
authorize fee awards to prevailing parties, not their
attorneys.  See 33 U. S. C. 1365(d); 42 U. S. C. 6972(e);
see also Venegas v. Mitchell, 495 U. S. 82, 87 (1990).
Respondents simply do not advocate awarding fees to any
party who has not prevailed.  Moreover, the Court's reliance
on the  prevailing party limitation is somewhat misleading:
the Court's real objection to contingency enhancement is
that the amount of an enhanced award would be excessive,
not that parties receiving enhanced fee awards are not
prevailing parties entitled to an award.  In prior cases the
Court has been careful to distinguish between these two
issues.  See, e.g., Hensley v. Eckerhart, 461 U. S., at 433
(the  prevailing party determination only  brings the
plaintiff . . . across the statutory threshold.  It remains for
the district court to determine what fee is `reasonable.').
       Second, the Court suggests that  both before and since
Delaware Valley II, `we have generally turned away from
the contingent-fee model'"which would make the fee award
a percentage of the value of the relief awarded in the
primary action"`to the lodestar model.'  Ante, at 8,
quoting Venegas v. Mitchell, 495 U. S., at 87.  This argu-
ment simply plays on two meanings of  contingency.  Most
assuredly, respondents"who received no damages for their
fee-bearing claims"do not advocate  mak[ing] the fee
award a percentage of that amount.  Rather, they argue
that the lodestar figure must be enhanced because their
attorneys' compensation was contingent on prevailing, and
because their attorneys could not otherwise be compensated
for assuming the risk of nonpayment.
   Third, the Court suggests that allowing for contingency
enhancement  would make the setting of fees more complex
and arbitrary and would likely lead to  burdensome
satellite litigation that this Court has said should be
avoided.  Ante, at 9.  The present case is an odd one in
which to make this point:  the issue of enhancement hardly
occupied center stage in the fees portion of this litigation,
and it became a time-consuming matter only after the
Court granted certiorari, limited to this question alone.
Moreover, if Justice O'Connor's standard were adopted,
the matter of the amount by which fees should be increased
would quickly become settled in the various district courts
and courts of appeals for the different kinds of federal
litigation.  And in any event, speculation that enhancement
determinations would be  burdensome does not speak to
the issue whether they are required by the fee-shifting
statutes.
       The final objection to be considered is the Court's conten-
tion that any approach that treats contingent-fee cases as
a class is doomed to failure.  The Court's argument on this
score has two parts.  First, the Court opines that  for a very
large proportion of contingency-fee cases"cases in which
only equitable relief is sought" there is no `market treat-
ment,' except insofar as Congress has created an  artifi-
cial market with the fee-shifting statutes themselves.  It is
circular, the Court contends, to  loo[k] to that `market' for
the meaning of fee-shifting.  Ante, at 6-7.  And even
leaving that difficulty aside, the Court continues, the real
 risk to which lawyers respond is the riskiness of particu-
lar cases.  Because under a class-based contingency en-
hancement system the same enhancement will be awarded
whether the chance of prevailing was 80% or 20%,  all cases
having above-class-average chance of success will be
overcompensated (emphasis in original).  Ante, at 7.
       Both parts of this argument are mistaken.  The circular-
ity objection overlooks the fact that even under the Court's
unenhanced lodestar approach, the district court must find
a relevant private market from which to select a fee.  The
Court offers no reason why this market disappears only
when the inquiry turns to enhancement.  The second part
of the Court's argument is mistaken so far as it assumes
the only relevant incentive to which attorneys respond is
the risk of losing particular cases.  As explained above, a
proper system of contingency enhancement addresses a
different kind of incentive:  the common incentive of all
lawyers to avoid any fee-bearing claim in which the plaintiff
cannot guarantee the lawyer's compensation if he does not
prevail.  Because, as the Court observes,  no claim has a
100% chance of success, ante, at 5, any such case under a
pure lodestar system will offer a lower prospective return
per hour than one in which the lawyer will be paid at the
same lodestar rate, win or lose.  Even the least meritorious
case in which the attorney is guaranteed compensation
whether he wins or loses will be economically preferable to
the most meritorious fee-bearing claim in which the
attorney will be paid only if he prevails, so long as the cases
require the same amount of time.  Yet as noted above, this
latter kind of case"in which potential plaintiffs can neither
afford to hire attorneys on a straight hourly basis nor offer
a percentage of a substantial damage recovery"is exactly
the kind of case for which the fee-shifting statutes were
designed.
                                III
       Preventing attorneys who bring actions under fee-shifting
statutes from receiving fully compensatory fees will harm
far more than the legal profession.  Congress intended the
fee-shifting statutes to serve as an integral enforcement
mechanism in a variety of federal statutes"most notably,
civil rights and environmental statutes.  The amicus briefs
filed in this case make clear that we can expect many
meritorious actions will not be filed, or, if filed, will be
prosecuted by less experienced and able counsel.  Today's
decision weakens the protections we afford important
federal rights.
       I dissent.



          SUPREME COURT OF THE UNITED STATES--------
                       No. 91-810
                        --------
        CITY OF BURLINGTON, PETITIONER v. ERNEST
                        DAGUE, Sr., et al.
        on writ of certiorari to the united states court of
                  appeals for the second circuit
                          [June 24, 1992]

       Justice O'Connor, dissenting.
       I continue to be of the view that in certain circumstances
a  reasonable attorney's fee should not be computed by the
purely retrospective lodestar figure, but also must incorpo-
rate a reasonable incentive to an attorney contemplating
whether or not to take a case in the first place.  See
Pennsylvania v. Delaware Valley Citizens' Council for Clean
Air, 483 U. S. 711, 731-734 (1987) (Delaware Valley II)
(O'Connor, J., concurring in part and concurring in
judgment).  As Justice Blackmun cogently explains, when
an attorney must choose between two cases"one with a
client who will pay the attorney's fees win or lose and the
other who can only promise the statutory compensation if
the case is successful"the attorney will choose the fee-
paying client, unless the contingency-client can promise an
enhancement of sufficient magnitude to justify the extra
risk of nonpayment.  Ante, at 2-3.  Thus, a reasonable fee
should be one that would  attract competent counsel,
Delaware Valley II, supra, at 733 (O'Connor, J., concurring
in part and concurring in judgment), and in some markets
this must include the assurance of a contingency enhance-
ment if the plaintiff should prevail.  I therefore dissent
from the Court's holding that a  reasonable attorney's
fee can never include an enhancement for cases taken on
contingency.
      In my view the promised enhancement should be  based
on the difference in market treatment of contingent fee
cases as a class, rather than on an assessment of the
`riskiness' of any particular case.  Id., at 731 (emphasis
omitted).  As Justice Blackmun has shown, the Court's
reasons for rejecting a market-based approach do not stand
up to scrutiny.  Ante, at 8.  Admittedly, the courts called
upon to determine the enhancements appropriate for vari-
ous markets would be required to make economic calcula-
tions based on less-than-perfect data.  Yet that is also the
case, for example, in inverse condemnation and antitrust
cases, and the Court has never suggested that the difficulty
of the task or possible inexactitude of the result justifies
forgoing those calculations altogether.  As Justice Black-
mun notes, these initial hurdles would be overcome as the
enhancements appropriate to various markets became set-
tled in the district courts and courts of appeals.  Ante,
at 7.
       In this case, the District Court determined that a 25%
contingency enhancement was appropriate by reliance on
the likelihood of success in the individual case.  App. to Pet.
for Cert. 132-133.  The Court of Appeals affirmed on the
basis of its holding in Friends of the Earth v. Eastman
Kodak Co., 834 F. 2d 295 (CA2 1987), which asks simply
whether, without the possibility of a fee enhancement, the
prevailing party would not have been able to obtain
competent counsel.  935 F. 2d 1343, 1360 (CA2 1991) (citing
Friends of the Earth, supra).  Although I believe that
inquiry is part of the contingency enhancement determina-
tion, see Delaware Valley II, supra, at 733 (O'Connor, J.,
concurring in part and concurring in judgment), I also
believe that it was error to base the degree of enhancement
on case-specific factors.  Because I can find no market-
specific support for the 25% enhancement figure in the
affidavits submitted by respondents in support of the fee
request, I would vacate the judgment affirming the fee
award and remand for a market-based assessment of a suit-
able enhancement for contingency.


