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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
determined 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 Pennsylvania 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 enhancement, if adopted, could be restricted to fewer
than all contingent-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 rejection 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.  Blackmun, J., filed a dissenting opinion, in which
Stevens, J., joined.
O'Connor, J., filed a dissenting opinion.

[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).

/* Opinions on attorneys fees are always carefully read by
attorneys and the governments and other potential payors of these
fees. For the few uninitiated persons let's define the terms.
"Lodestar" refers to a calculation of fees as follows-- a
reasonable hourly rate multiplied by a reasonable number of
hours.
"Enhancement" is a multiplier to the lodestar calculation which
has been allowed in the past for attorneys taking cases on
contingent fees to reflect the extra risk that they take when
taking on a case in which the fee is dependent on winning. */


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- attorney'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 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
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 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.

III

  Section 7002(e) of the SWDA and Section 505(d) of the CWA
authorize a court to "award costs of litigation (including
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 feeshifting 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 reasonable 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 consequent
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 contingency 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 doublecounting.
Delaware Valley II, 483 U. S., at 726-727 (plurality opinion).

/* It is always difficult to divine exactly what the court means
in these type cases. Does this mean that the hourly rate will
always be higher for a contingent case than a non-contingent
case? Future cases will certainly rule on that question. This
case can be fairly read to indicate that the rate must always be
higher in a contingent fee case. */

  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 enhancement 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 approach 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 predominant
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 supposed 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 enhancement
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 enhancement, 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 (principal 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 determination 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 enhancement.
Contingency enhancement would make the setting of fees more
complex and arbitrary, hence more unpredictable, 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.

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 -reasonable- fee is to be a
"fully compensatory fee," Hensley v. Eckerhart, 461 U. S. 424,
435 (1983), and is to be "calculated 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 -reasonable,- and if in the
private market an attorney who assumes 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 arrangement.  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 litigation, 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 concluded
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 understand 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 controlling 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 contingency 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 argument 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 contention
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 treatment,'- except insofar as
Congress has created an -artificial- 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 particular cases.  Because under a class-based
contingency enhancement 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 circularity 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.


/* In fact the congress refers from time to time to the attorneys
who file suits to enforce such statutes as "private attorney's
general. */

I dissent.
---------------------------------------------------------------------------

  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 incorporate 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 enhancement 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 various markets would be required to make
economic calculations 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
Blackmun notes, these initial hurdles would be overcome as the
enhancements appropriate to various markets became settled 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
determination, 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 in
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 suitable enhancement for
contingency.