Burlington v. Dague, 505 U.S. 557, 5 (1992)

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Cite as: 505 U. S. 557 (1992)

Opinion of the Court

if it is payable without regard to the outcome of the suit; it is contingent if the obligation to pay depends on a particular 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 contingent 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 quotation marks 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 assessment 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.


Section 7002(e) of the SWDA and 505(d) of the CWA authorize a court to "award costs of litigation (including rea-


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