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Dague v. Burlington, City of

ELR Citation: 22 ELR 21497
Nos. No. 90-7544, 976 F.2d 801/35 ERC 1971/(2d Cir., 10/02/1992) On remand

On remand from the U.S. Supreme Court, which ruled that the fee-shifting provisions of the Federal Water Pollution Control Act and the Resource Conservation and Recovery Act do not permit a 25 percent contingency risk enhancement to the lodestar amount in calculating the plaintiffs' reasonable attorney fees, the circuit court holds that the district court is the proper forum for disposition of the remaining fee issues. The circuit court holds that determining the amount of a reasonable attorney fee, a decision that may combine extensive fact finding with a large amount of discretion, is a process well-suited to the usual functions of the trial court. The evidence may include voluminous and detailed records of attorney and staff hours spent on various projects, affidavits regarding reasonable billing rates in the relevant communities at various times during the pendency of a suit, as well as other data and arguments concerning whether a claimed fee is reasonable. In remanding the case, the court declines to suggest whether the district court should recalculate its original award to eliminate any time spent by the plaintiffs in obtaining the now-disallowed contingency enhancement; whether the plaintiffs may now be awarded an additional sum for work done in opposing the writ of certiorari; and whether the plaintiffs are entitled to a delay enhancement to reflect the time during which their counsel has remained unremunerated. The court also holds that the district court's order of September 3, 1992, purporting to grant the plaintiffs' application for a delay enhancement, is null because it was entered at a stage of the appeal when the district court lacked jurisdiction.

[The U.S. Supreme Court's decision is published at 22 ELR 21099. Prior decisions are published at 20 ELR 21001 and 21012, and 21 ELR 21133.]

Counsel are listed at 22 ELR 21099.

Before Newman and Griesa, JJ.