The Demise of Fee-Shifting Statutes: Will Congress Respond?

In City of Burlington v. Dague, the United States Supreme Court settled the debate of whether contingency enhancers would be allowed under federal statutes with fee-shifting provisions. In a six to three decision, the Court unequivocally denied enhancement of attorney fees based on contingency beyond the lodestar amount under the federal statutes at issue. This holding responded to a split among the circuits that resulted from the four-one-four decision in Pennsylvania v. Delaware Valley Citizens\u27 Council for Clean Air (Delaware Valley.II). In Dague the United States Supreme Court reversed the decision of the court of appeals, which affirmed the district court\u27s ruling, enhancing the lodestar amount by twenty-five percent. At trial, the district court found that the respondent retained his attorney on a contingency basis and would have faced substantial difficulty in retaining adequate counsel without the possibility of an enhancer; therefore, the district court awarded the enhancer. However, the Supreme Court refused to award such an enhancer. By holding that enhancement for contingency beyond the lodestar amount will not be allowed in federal statutes with fee-shifting provisions, the Court rejected five of the nine justices\u27 opinions in Delaware Valley II. The Court granted certiorari in Dague to respond to its failure to reach a majority in Delaware Valley II. This Article will analyze the Court\u27s decision in Dague and articulate why this decision is contrary to established precedent and violates Congress\u27 expressed intent when passing federal fee-shifting statutes