Burlington v. Dague, 505 U.S. 557, 14 (1992)

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Blackmun, J., dissenting

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 damages 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.4

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 understand her opinion,

4 A number of bills introduced in Congress would have done just this, by prohibiting "bonuses and multipliers" where a suit is against the United States, a State, or a local government. These bills failed to receive congressional approval. See Delaware Valley II, 483 U. S., at 739, n. 3 (dissenting opinion).

Moreover, in some instances Congress explicitly has prohibited enhancements, as in the 1986 amendments to the Education of the Handicapped Act. See 20 U. S. C. 1415(e)(4)(C) ("[n]o bonus or multiplier may be used in calculating the fees awarded under this subsection"). Congress' express prohibition on enhancement in this statute suggests that it did not understand the standard fee-shifting language used elsewhere to bar enhancement. Cf. West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 92-97 (1991) (relying, in part, on express authorization of expert-witness fees in subsequently passed fee-shifting statutes to infer that such fees could not have been included in unsupplemented references to "attorney's fees").

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