entitlement to their statutory fees, ultimately denied to them by the Supreme Court.82

The experience of plaintiffs' attorneys in Flight Attendants, of being forced into extensive post-judgment litigation merely to protect the judgment, unfortunately, is not an isolated experience. And the negative effect of the majority ruling in Flight Attendants is already being felt.

The new paragraph (3) which would be added to § 706(k) by Section 9(4) of this legislation may not be the perfect answer to the majority opinion in Flight Attendants, but it is an appropriate one, and it deserves enactment.

5.

Equalizing Fees for Delay in Payment

The final necessary change affecting awards of attorneys fees is made through § 10 (2) of the Act, which amends § 717 (d) of the

Independent Federation of Flight Attendant v. Zipes, 491 U.S. 109 S.Ct. 2732, 105 L. Ed. 2d 639 (1989).

The amount of fees awarded to counsel for the prevailing plaintiffs in successfully defending the settlement the amount ultimately denied to them by the Supreme Court -- was $180,915.84. Id., 105 L. Ed. 2d at 646. The amount of fees (based again on the hundreds of billable hours expended by counsel) lost by plaintiffs' counsel in the litigation involving their entitlement to statutory fees is of course unknown given the Supreme Court's denial of all post-settlement fees.

83. See, e.g., Local 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501, 506-15 (1986) (involving five additional years of ultimately successful litigation in defense of a Title VII consent judgment remedying past discrimination).

84. See, e.g., Davis v. City and County of San Francisco, 890 F.2d 1438, 1452 (9th Cir. 1989) (upholding a favorable consent judgment challenged by a union intervenor, but denying fees to the prevailing plaintiffs under Flight Attendants).

Civil Rights Act of 1964 by expressly stating that "the same interest to compensate for delay in payment shall be available as in cases involving non-public parties. 85 The purpose of this provision is to allow interest, or delay-in-payment compensation, not only on back-pay awards for plaintiffs but also on awards of attorneys fees against the federal government the same as is and always has been available against private-sector employers.

Adhering to Congress' purpose in enacting fee-shifting

statutes

11

even

to encourage the vindication of civil rights the Supreme Court has had to agree that, in order for statutory fees to be reasonable, fee awards should include delay-in-payment compensation because of the fact that counsel for prevailing parties are paid not according to market-based 30-day billing but instead only at the end of often-lengthy and hard-fought litigation.86 For example, in approving delay-in-payment compensation against a losing state defendant despite the state's Eleventh Amendment objections, the Supreme Court last year observed:

Clearly, compensation received several years

85. S. 2104, 101st Cong., 2d Sess. § 10(2) (1990).

86.

V.

109 S.Ct. 2453, 105 Delaware Valley Citizens'

E.q., Missouri v. Jenkins, 491 U.S. L.Ed.2d 229 (1989); Pennsylvania Council, 483 U.S. 711 (1987).

the legal services are performed, as would
normally be the case with private billings.
We agree, therefore, that an appropriate
adjustment for delay in payment

whether by

the application of current rather than
historic hourly rates or otherwise

within the contemplation of the statute.87

is

88

Two years earlier, in rejecting the suggestion "that adjustments for delay are inconsistent with the typical fee-shifting statute," the Supreme Court echoed the sentiments expressed above. And, a year before that, in Library of Congress v. Shaw, the Supreme Court explained that,

87.

increasing an attorney's fee award for delay
is appropriate because the hourly rates used
for the lodestar represent the prevailing rate
for clients who typically pay their legal

Missouri v. Jenkins, 105 L.Ed.2d at 240 (footnote omitted). 88. Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. at 716. The Court explained, with regard to "the matter of delay,' as follows:

When plaintiffs entitlement to attorney's fees
depends on success, their lawyers are not paid
until a favorable decision finally eventuates,
which may be years later.... Meanwhile, their
expenses of doing business continue and must
be met. In setting fees for prevailing
counsel, the courts have regularly recognized
the delay factor, either by basing the awards
on current rates or by adjusting the fee based
on historical rates to reflect its present
value.

Id. (ellipsis added) (citations omitted).

bills promptly, whereas court-awarded fees are
normally received long after the legal
services are rendered. An increase for delay
is designed to compensate the attorney for the

money he could have earned had he been paid

earlier and invested the funds."9

Despite the Supreme Court's foregoing recognition in 1986 of the appropriateness of delay-in-payment compensation in general, the same majority of the Court in Library of Congress v. Shaw nevertheless held that delay-in-payment compensation against the federal government had to be treated differently because of the federal government's sovereign immunity. According to the majority: in although Congress 1972 did waive the government's sovereign immunity from monetary awards of attorneys fees, 90 the delay-in-payment part of an award of fees was the equivalent of an award of interest, and Congress had not expressly waived the federal government's sovereign immunity from awards of interest.91

federal

Quite frankly, "something is uniquely amiss in a society where the government, authorative oracle of community values,

the

89. 478 U.S. 310, 313 (1986).

90. See § 706 (k) of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, Pub. L. 92-261 (March 24, 1972), 86 Stat 103, 42 U.S.C. § 2000e-5(k): authorizing attorneys fees and providing that "the United States shall be liable for costs the same as a private person."

91. Library of Congress, 478 U.S. at 318-23.

involves itself in

...

discrimination."92

It is equally if not more offensive that the federal government, when found quilty of unlawful employment discrimination, cannot be subjected to the same monetary liability as are private-sector employers.

All that Section 10 (2) of this legislation seeks to accomplish is to place the federal government's liability on the same plane This is fair; it is just; it is

with that of all other employers.

commendable, they are absolutely necessary.

These substantive changes, however, will be no more than hollow pronouncements meaning little or nothing to the victims of employment discrimination unless the impecunious victims can find lawyers to vindicate their rights.

Nearly fifteen years ago, in an initially successful effort to nullify an adverse Supreme Court decision adversely affecting the recovery of attorneys fees, Congress observed in the course

93

92. Adickes v. S. H. Kress Co., 398 U.S. 144, 190-91 (1970) (Brennan, J., concurring in part and dissenting in part) (ellipsis added).

93. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).