SAVE OUR CUMBERLAND MOUNTAINS, INC., et al. v. Donald P. HODEL, Secretary of the Interior, et al., Appellants.
No. 85-5984.
United States Court of Appeals, District of Columbia Circuit.
Argued March 2, 1988.
Decided Sept. 16, 1988.
John A. Bryson, Attorney, Dept, of Justice, with whom Roger J. Marzulla, Acting Asst. Atty. Gen., and Robert L. Klarquist, Attorney, Dept, of Justice, Washington, D.C., were on the brief, for appellants.
Joseph A. Yablonski, with whom L. Thomas Galloway, Washington, D.C., was on the brief, for appellees. Daniel B. Edel-man, Washington, D.C., also entered an appearance for appellees.
Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting Opinion filed by Circuit Judge STARR, in which Circuit Judges SILBERMAN and BUCKLEY concur.
SENTELLE, Circuit Judge:
The panel opinion in this case, Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43 (D.C.Cir.1987), reviewed an attorneys’ fee award entered pursuant to § 520(d) of the Surface Mining Control and Reclamation Act (“SMCRA”), 30 U.S.C. § 1270(d) (1982 & Supp.1986). In addition to making other modifications, generally not pertinent to this decision, the panel, based on the precedent of Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.Cir.1984), determined that the District Court had improperly computed the hourly rate for plaintiffs’ attorneys, and accordingly ordered a remand for recalculation of that rate consistent with Laffey and the panel opinion. Thereafter, we accepted the case for rehearing en banc, Save Our Cumberland Mountains, Inc. v. Hodel, 830 F.2d 1182 (D.C.Cir.1987), and ordered briefing of the single question:
Should Laffey v. Northwest Airlines, Inc. ... be overruled to the extent that it holds that in awarding attorneys’ fees to a private law firm, that customarily charges below the prevailing community rate in order to serve a particular type of client, courts should calculate the “reasonable hourly rate” according to the hourly rates charged in similar cases by that firm, as opposed to rates that reflect the prevailing community rate for similar legal services?
Id. Having reviewed the question en banc, we now answer that question in the affirmative and overrule Laffey.
I. Background
The factual background of the substantive litigation underlying this attorneys’ fee dispute is set forth in both the panel opinion and the District Court opinion, Save Our Cumberland Mountains, Inc. v. Hodel, 622 F.Supp. 1160 (D.D.C.1985). We will revisit only those facts directly relating to the fee petition and the question before us. The District Court had awarded fees for work performed by plaintiffs’ four attorneys, Joseph A. Yablonski, L. Thomas Galloway, Daniel B. Edelman, and Lee Bishop. As the panel noted, the District Court applied the correct three-part analysis to determine the appropriate award: (1) determination of the number of hours reasonably expanded in litigation; (2) determination of a reasonable hourly rate or “lodestar”; and (3) the use of multipliers as merited. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). As to the second of these steps, the panel ruled that the District Court had erred as to the appropriate “reasonable hourly rate” for Yablonski and Galloway.
The District Court, in attempting to determine the reasonable hourly rate, first noted the Supreme Court’s determination in Blum v. Stenson that “[s]uch a reasonable hourly rate is that ‘prevailing in the community for similar work.’ ” Save Our Cumberland Mountains, 622 F.Supp. at 1165 (citation omitted). He further noted this Circuit’s prior holding that “[f]or an attorney who has a customary rate at which he or she bills fee-paying clients, the prevailing community rate has been said to be that customarily charged rate.” Id. (citing Laffey, 746 F.2d 4 (D.C.Cir.1984)). He then held, following Blum v. Stenson, that “for an attorney who has no customary hourly rate, the Court must look to the prevailing community rates in order to determine the appropriate hourly rate.” Save Our Cumberland Mountains, 622 F.Supp. at 1165.
The panel opinion noted that under Laf-fey, this case is factually distinct from Blum v. Stenson. In Blum, the attorneys seeking the fee awards were salaried employees of the Legal Aid Society of New York, a private, non-profit law office. The District Court had applied prevailing market rates for attorneys of like competence and experience in the same area doing similar work during the relevant period. Stenson v. Blum, 512 F.Supp. 680, 683 (S.D.N.Y.1981). The government argued to the Supreme Court for the adoption of a cost-based standard for fee awards to non-profit, legal aid attorneys, while recognizing that prevailing market rates were the proper standard attorneys in private for-profit practices. The Court rejected that theory and applied the same test for non-profit legal services organizations as the government had conceded was applicable to private attorneys.
The panel opinion of this Court reviewed Blum and Laffey and determined this case to be controlled by Laffey. Plaintiffs’ attorneys in Laffey, like SOCM’s attorney in the case at bar, charged some clients at hourly rates less than the prevailing average, from motives of subsidizing what they perceived to be “good" clients or clients with good causes. Laffey, 746 F.2d at 14 n. 69. We held in Laffey that the Blum treatment of public interest legal organizations was inapplicable to a quasi-public interest law firm practicing for profit, but reducing rates from non-economic motives, and that the most “relevant comparison” was the rate charged in private representation by the attorneys seeking the awards. Laffey, 746 F.2d at 24.
In the present case, the panel applied Laffey and determined that Yablonski’s average rate, for the 20 to 50 percent of his clients whom he charged on an hourly basis, was $100 per hour and that Galloway charged a “reduced rate” for “national environmental and conservation groups” of from $75 to $100 per hour. Applying the Laffey rule to those facts, the panel determined that $100 was the proper hourly rate for the determination of the lodestar as to Yablonski and Galloway.
It is in this posture that we now consider plaintiffs’ contention that Laffey must be overruled.
II. Analysis
As both Blum and Laffey teach, the determination of an award of reasonable attorney fees is at bottom a question of statutory interpretation. In Blum, the Supreme Court construed the Civil Rights Attorney’s Fee Award Act of 1976, 42 U.S.C. § 1988 (1976 & Supp. V), which expressly authorized the award of a reasonable attorney’s fee to prevailing civil rights litigants other than the United States. In determining the intent of Congress as to the meaning of the phrase “reasonable attorneys fees” (emphasis supplied), the Court looked in large part to the Senate Report which approved the method employed in four cases, Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974); Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974); Davis v. County of Los Angeles, 8 Empl.Prac.Dec. (CCH) ¶ 9444 (C.D.Cal.1974); and Swann v. Charlotte Mecklenburg Bd. of Educ., 66 F.R.D. 483 (W.D.N.C.1975). The Senate Report plainly expresses the intent of Congress that the Johnson case lays down the “appropriate standards,” and that the standards are “correctly applied” in the other three cited cases which “ ‘resulted in fees which are adequate to attract competent counsel but which do not produce windfalls to attorneys.’ ” Blum, 465 U.S. at 893-94, 104 S.Ct. at 1546. (quoting S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976) U.S.Code Cong. & Admin.News pp. 5909, 5913).
The Blum Court then went on to determine from this legislative history that “Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.” Id. at 894, 104 S.Ct. at 1547.
Later that same year, we faced in Laffey the question of applying that statutory analysis to a fact situation, like the one at bar, in which the plaintiff’s attorney did not fall neatly into either of the categories “private counsel” or “nonprofit legal services organization.” The Laffey counsel, like SOCM’s counsel, was literally engaged in private for-profit practice, but adjusted fee schedules downward from pro bono or quasi public interest motives to reflect the reduced ability of the client to pay or what the attorney saw as the importance and justice of the client’s cause. The Laffey Court noted that the Supreme Court has interpreted “a reasonable attorney’s fee” to be one that is “adequate” to attract competent legal advice, but does not produce “windfalls” to attorneys. Laffey, 746 F.2d at 16 (quoting Blum, 465 U.S. at 897, 104 S.Ct. at 1548). Starting from this point of reference, the Laffey Court determined that Blum’s teaching with reference to the use of prevailing market rates applies only where, as in the case of the public interest nonprofit law firm, the attorneys have no billing histories, and a “proxy for the market must be found in order to set a reasonable hourly rate.” Laffey, 746 F.2d at 16 n. 74. The Laffey Court then reasoned that the willingness of counsel to undertake the representation at his stated rate proved the adequacy of that rate to attract competent counsel. To award higher rates based on the prevailing market, the Court reasoned, “would produce the very windfall Congress and the Supreme Court have said should be avoided.” Id. at 25 (footnote omitted).
It was against this background of Blum and Laffey that the panel opinion in the present case attempted to determine a reasonable hourly rate for Yablonski and Galloway. Thus the panel found that Laffey bound it to determination of the rates of the for-profit but public interest motivated attorneys that began with “relevant comparison” of the rates charged in similar private representation by the law firm itself. Next the panel held, obedient to the teachings of Laffey, that the Court should bracket that rate by establishing that it falls within the rates charged by other firms for similar work in the community. Then, “[s]o long as the firm’s own rate falls within the rate brackets, it is the market rate, for the purposes of calculating the lodestar.” Laffey, 746 F.2d at 25 (emphasis in original).
Since Galloway and Yablonski did in fact have hourly billing histories, the panel started with those rates, applied the Laffey brackets and concluded that the lower than prevailing market rate of $100 per hour was the appropriate rate and that the District Court had erred in using higher rates based upon its determination of the prevailing market.
The members of the panel spoke in three separate opinions expressing varying degrees of dissatisfaction with the Laffey rule. Judge Bork’s opinion announced the decision of the Court but did so noting that “[wjhether or not Laffey’s position on this point is correct — and the dissent presents a serious argument that it may not be — this panel is bound by that position as the law of the circuit.” Save Our Cumberland Mountains, 826 F.2d at 49.
Judge Ruth B. Ginsburg separately concurred but joined the dissent’s conclusion that Laffey “is of questionable consistency with Blum v. Stenson ... and bears reexamination.” Id. at 54 (citation omitted) (Ginsburg, Ruth B., J., concurring). Chief Judge Wald dissented in part, finding Galloway’s rate policy to be distinguishable from that of the law firm in Laffey, but conceded the controlling precedent of Laf-fey as to Yablonski’s fees. She then criticized Laffey as being inconsistent with Blum, producing anomalous results, and being a far distance from the congressional intent. As she put it “[i]f this is what Laffey has wrought, it is time that we or Congress took a harder look.” Save Our Cumberland Mountains, 826 F.2d at 60 (Wald, C.J., dissenting in part).
Therefore, each member of the panel in differing terms and to differing degrees, questioned the correctness of the Laffey holding, but concluded that “Laffey ... is the law of the Circuit ... and binds us unless and until overturned by the court en banc or by Higher Authority.” Id. at 54 (Ginsburg, Ruth B., J., concurring). This the Court en banc now does.
A. The Anomalous Result
As Chief Judge Wald and Judge Ruth B. Ginsburg note in their separate opinions, the Laffey application of the Blum rule produces an anomaly. The highly paid commercial, for-profit law firm can receive awards equal to its usual handsome rates. The legal aid attorney, tied to the prevailing market rate analysis of Blum, can look to the purely for-profit firm for evidence supporting a market rate calculation and receive the awards consistent with those of “[t]he highest paid law firm in town.” Save Our Cumberland Mountains, 826 F.2d at 60 (Wald, C.J., dissenting in part). But, attorneys whose practice partakes of some elements of each of those two entities will receive fee awards often significantly smaller than those calculated on the common basis of the other two. That is, privately practicing but public interest motivated attorneys who intentionally charge their poorer clients reduced rates will receive the same reduced rates as statutory fees, even though they must depend upon the received fees for their livelihood.
To describe the result of the Laffey holding, and to observe it in the context of the present facts, is to reveal its anomalous nature. If the public spirited attorney is in a position, either by devoting the vast bulk of his time to other profit making representation or because of independent means, to represent the public interest group for free, then he can be awarded at high market rates for his pro bono efforts. That is, if he becomes a traditional for-profit practitioner using the market or higher fees charged to his commercial clients as subsidies for his pro bono clients during the course of their litigation, then his market rates will entitle him to the higher fee awards. On the other hand, if he always represents all clients free (whether or not they be deserving and impecunious), then his non-economic choices will result in the economic boon that Blum and Laffey provide for the attorney without a billing history. However, if either his own economic circumstances or the available but limited means of the client make it advisable to charge the client at rates providing some compensation but below the market rate, then those rates create a cap for his services. Thus, the practitioner outside the large or established firm may either eschew pro bono representation, directing those potential clients of the Laffey or SO CM mold to the established firm or legal aid societies if either of those entities is available and willing to undertake the representation, or quote fictitious but market-based rates, which neither he nor the client have any intention of actually seeing collected in toto unless court-awarded fees are ultimately available. Neither of these alternatives seems consistent with the policies behind fee shifting statutes or accepted principles of legal ethics.
The effect of the anomaly upon the client has an even more negative impact. As this case illustrates, reduced profit public interest lawyers often acquire particular experience and expertise in specific public interest areas. The District Court’s finding that “Mr. Galloway has had a coal-related practice for over ten years, and is considered on [sic] of the leading experts on the Surface Mining Act” stands unchallenged. Save Our Cumberland Mountains, 622 F.Supp. at 1164. If practitioners of his sort are unavailable, expertise in a specific area is likely to be found only in the firms which customarily represent coal companies and others who regularly litigate against public interest groups. Obviously, the possibility of conflict is so pervasive as to render this a less than desirable source of expertise. Of course “attorneys may ... [leave] the area of their professional expertise in taking on pro bono publi-co litigation Stanford Daily, 64 F.R.D. at 684, but then the benefit of expertise is lost.
Of course, if Congress, in enacting the statutes which we now construe, expressed an intent to compel these results, we would have no choice but to accept them. It is not the function of this Court to rewrite statutes. Thus, if the Laffey construction of the fee shifting statutes is correct, the panel opinion would stand. However, as we demonstrate below, this is not the case.
B. The Congressional Intent
The result sought by plaintiffs, that is a fee award based on prevailing market rates rather than the actual rates of Yablonski and Galloway, is not only not inconsistent with the express intent of Congress, but rather accomplishes Congress’ express goals. As noted above, the very Senate Report relied on by the Supreme Court in Blum v. Stenson reveals the goal to be “fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.” S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976) (emphasis supplied). By striking down the anomalous result of the Laffey rule, we in fact achieve the situation which one commentator has described as follows:
[P]ublic interest lawyers will continue to provide the specialization, freedom from conflicts with private clients, readiness to take on unpopular cases, and willingness to carry the cost of protracted cases that is indispensable to full enforcement.
Berger, S., Court Awarded Attorneys’ Fees: What Is “Reasonable”?, 126 U.Pa.L. Rev. 281, 323 (1977).
Congress after all did not simply express its intent that the fees would attract counsel, but rather that they would be “adequate to attract competent coun-sel_” S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976) (emphasis supplied).
Nor should the congressional desire to avoid windfalls to attorneys deter this result. Cf. S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976). It is not inconsistent with the avoidance of windfalls to pay attorneys at rates commensurate with prevailing community standards of attorneys of like expertise doing the same sort of work in the same area. In fact, the Senate Report supports this conclusion. That Report, as noted above, was relied on by the Supreme Court in Blum as authoritative on the question of congressional intent in defining “reasonable counsel fees.” As also noted above, the Report cited three cases as correctly applying the appropriate standards in the lodestar analysis drawn from Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). Examination of these cases supports the result we reach, as noted by the dissent in Laffey, 746 F.2d at 32-33 (Wright, J., dissenting).
The Johnson case itself is now often referred to as if it were the genesis of the lodestar method. That opinion did not in fact set forth the three steps described above of first determining the reasonable number of hours, then determining the reasonable hourly rate or lodestar, and then using multipliers as merited. What it actually did was set forth twelve “guidelines,” now commonly referred to as the “Johnson factors,” which the Fifth Circuit deemed appropriate for use in fee award calculations “consistent with those recommended by the American Bar Association’s Code of Professional Responsibility, Ethical Consideration 2-18, Disciplinary Rule 2-106.” Johnson, 488 F.2d at 719. Those factors, which are now familiar in the jurisprudence of attorneys’ fee awards, are:
(1) The time and labor required.
(2) The novelty and difficulty of the question.
(3) The skill requisite to perform the legal service properly.
(4) The preclusion of other employment by the attorney due to acceptance of the case.
(5) The customary fee.
(6) Whether the fee is fixed or contingent.
(7) Time limitations imposed by the client or the circumstances.
(8) The amount involved and the result attained.
(9) The experience, reputation, and ability of the attorney.
(10) The “undesirability” of the case.
(11) The nature and length of the professional relationship with the client.
(12) Awards in similar cases.
Johnson, 488 F.2d at 717-19. The full lodestar approach was developed only over time. Much dispute has occurred, and some still exists, as to which, if any, of the Johnson factors may be considered for purposes of multiplication rather than in the original lodestar computation. See, e.g., Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (Delaware Valley I); Pennsylvania v. Delaware Valley Citizens Council for Clean Air, — U.S. -, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II) and authorities collected therein. Therefore, when the Senate Report expressed congressional approval of the Johnson factors, it was not approving the lodestar method, but rather the use of the factors that the Johnson Court employed.
The lineage of the lodestar as such is more properly traceable to Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir.1973), which did in fact describe the product of a reasonable hourly rate and hours actually worked as being the “lodestar of the court’s fee determination,” subject to adjustment for “the contingent nature of success” and “the quality of [the] attorney’s work.” Thus, when the Senate Report expressed congressional approval of the Johnson case as “setting the appropriate standards” it was approving not the lodestar method per se but rather the use of the twelve Johnson factors in some fashion in arriving at the fee. It is the Senate Report’s approval and the Supreme Court’s adoption of that approval of the application of those factors in the other three cases that may be instructive to us in the present dispute.
In Stanford Daily, the District Court expressly sought to
avoid the Scylla of simply accepting the attorneys’ account of the value of the legal services which they have provided[, and] the Charybdis of decreasing reasonable fees because the attorneys conducted the litigation more as an act pro bono publico than as an effort of securing a large monetary return.
64 F.R.D. at 681 (citations omitted). It is the avoidance of the very Charybdis seen by the District Judge in that congressionally-approved application of the appropriate standards that we seek to accomplish by overruling Laffey. Since both the Senate and the Supreme Court by adoption have expressly approved that case, we are satisfied that our present decision not only avoids an undesirable anomaly but comports with the intent of Congress and the precedent of the highest court. Lest we be seen as reading too much into a single sentence of a single opinion adopted by a single reference in a Senate Report, examination of the other two approved decisions offers considerable support and no inconsistency to our conclusion.
Swann v. Charlotte Mecklenburg Bd. of Educ., 66 F.R.D. 483 (W.D.N.C.1975), actually offers significant support. As noted by the dissent in Laffey, “[i]n Swann the court, in determining the amount of the fee award, looked to the rate charged by opposing counsel. Like Stanford Daily, Swann makes clear that Congress did not intend to use historical billing rates as a cap on fee awards.” Laffey, 746 F.2d at 32 n. 3 (citations omitted) (Wright, J., dissenting). The Laffey majority concedes that “the district judge [in Swann ] may have based his award on the ‘[f]ees paid to opposing counsel,’ as the dissent suggests. But we will never know, because he also listed eight other factors, including ... surrogates for historical billing rates....” Laffey, 746 F.2d at 23 (footnote omitted). As the majority in Laffey suggests, it is not entirely clear precisely what method the Swann Court did apply. This, however, does nothing to change the fact that the Senate Report and the Supreme Court have approved the Swann Court’s application of the appropriate standards, nor does that criticism, of the Swann case lessen its persuasiveness. At the time of the Swann fee award in 1975, the Lindy Bros, decision was less than two years old and was from the Third Circuit, while the Swann District Court was in the Fourth Circuit. Johnson, a Fifth Circuit decision, was less than one year old at that time. The Swann Judge had no reason to consider either decision binding upon him. The Fourth Circuit, the only Circuit which could authoritatively bind the Swann Court, did approve Lindy Bros, and Johnson in Walston v. School Bd., 566 F.2d 1201 (4th Cir.1977), but not until two years after the Swann order and even then they did not require express obedience to either the Johnson factors or the Lindy lodestar method. It was not until 1982 that the Supreme Court finally authoritatively approved the Johnson factors and the lodestar approach in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1982). That decision, as noted, left open the appropriate stage for the use of several Johnson factors, a dispute largely resolved in Delaware Valley I, supra, and Delaware Valley II, supra, but still not totally foreclosed. Thus it would be most surprising if the District Court’s opinion in Swann were a prescient application of the exact factors in the exact fashion subsequently approved. Indeed, Hensley v. Eckerhart also quotes the above referenced Senate Report and briefly analyzes with approval Johnson, Stanford Daily, Davis, and Swann.
Thus, despite the criticism by the majority in Laffey, we find Swann to be instructive on the point we consider today. We note first that it is by no means certain that the Swann Judge did not use something at least akin to the lodestar method. His published order runs less than three pages in total length and plainly reflects only the conclusion of an extended fee controversy. The opinion refers to extensive documentation including affidavits reflecting that plaintiffs counsel had expended more than 2,700 hours on the case. Swann, 66 F.R.D. at 485. The order expressly finds that “hourly rates in federal courts run from $30 to $35 an hour up to two or three times that figure.” Id. at 486. He finally awarded fees of $175,000 which divided by 2,700 hours yields an apparent hourly rate of $64.81, well within the broad range (or “brackets”) earlier referenced by the Court. In setting the fee at the referenced figure, he explicitly expresses a preference to “err on the conservative side in dealing with any fee question....” Id. Also in the order, he finds plaintiffs counsel to be exceptional in “reputation, experience and ability.” Id. So it would appear that the Swann award is at least not inconsistent with the lodestar approach.
More significantly for our purposes, as noted above, the Swann Court expressly considered “[f]ees customarily charged for similar services.” Id. He also considered as one factor the “[f]ees paid to opposing counsel.” Id. at 485. The opposing counsel were conventional for-profit law firms. The Swann fee award order expressly finds that plaintiffs counsel had been “compensated ... on a nominal basis.” Id. at 486. As is apparent, the Swann Court based the fee award on the other factors it listed inclusive of “[f]ees customarily charged for similar services” and “[f]ees paid to opposing counsel” (for-profit firms) without any cap constructed from the lower or “nominal” fees which had been adequate to attract counsel not only competent but exceptional as to “reputation, experience, and ability_” Id. at 485-86. In short, the Senate and the Supreme Court, by approving the application of the appropriate standards in Swann, evidence an intent consistent with our decision and inconsistent with that of Laffey.
The third case eongressionally approved as properly applying the appropriate standards, Davis v. County of Los Angeles, supra, is not on point. That case involved a true public interest legal organization with no ascertainable billing history. That decision therefore presages the exact question answered in Blum v. Stenson. Nonetheless, Davis is in no sense inconsistent with our conclusion that Congress did not intend the private but public-spirited rate-cutting attorney to be penalized for his public spiritedness by being paid on a lower scale than either his higher priced fellow barrister from a more established firm or his salaried neighbor at a legal services clinic.
In short, we conclude that our prior decision in Laffey v. Northwest Airlines, Inc., and the panel decision in this case, which it compelled, are both inconsistent with the intent of Congress in enacting fee award statutes and with the Supreme Court’s decision in Blum v. Stenson which construed those statutes. We therefore expressly overrule Laffey to the extent that it imposes the above discussed different method of determining reasonable attorney fees on attorneys situated as Yablonski and Galloway are here. Henceforth, the prevailing market rate method heretofore used in awarding fees to traditional for-profit firms and public interest legal services organizations shall apply as well to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals.
C. Second Litigation
The Secretary argues here, as Northwest Airlines did in Laffey, that the approach used by the District Court in the fee calculation in each case, which we today adopt, is inconsistent with the Supreme Court’s admonition that “a request for attorneys fees should not result in a second major litigation.” The argument proceeds from there that “determining an appropriate ‘market rate’ for the services of a lawyer is inherently difficult.” Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11. Therefore, the Secretary contends, it must engender more fee litigation than the more easily applied Laffey method. However, the difficulty of application of the method Congress intended does not justify our abandoning it. Neither does it justify the anomaly that resulted from the Laffey rule.
Indeed, defendants’ argument on this subject defeats itself. The very language from Blum argued by the defense here, as quoted by us above, comes from the Blum Court’s analysis of the proper methodology for applying fee award statutes to public service legal organizations. The very paragraph cited by the Secretary goes on to say “[nevertheless ... the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons.” Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11. Plainly the difficulty of determining market rate, though recognized by the Supreme Court in Blum, did not prevent that determination from being the proper basis for fee awards on Blum -type facts. Neither can it on Laffey -type facts.
D. The Remaining Remand
Despite the fact that we vacate so much of the panel opinion as is inconsistent with this opinion (that is so much of that opinion as relied on Laffey), and adopt the reasoning of the District Court on the basic method of determining a reasonable hourly rate, a limited remand is necessary. In arriving at the “prevailing community rates” applicable to Yablonski’s and Galloway’s fee award determination, the District Court relied, at least in part, on the schedule of prevailing community rates compiled by the District Court in Laffey. Save Our Cumberland Mountains, 662 F.Supp. at 1165. The difficulty of that reliance is that, since the time of the District Court’s opinion, the Supreme Court has made it plain that “absent an explicit waiver of sovereign immunity, attorneys’ fees awarded against the federal government must be based on historical rates.” Save Our Cumberland Mountains, 826 F.2d at 59 (Wald, C.J., separate opinion) (citing Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986)). Thus, we must remand this matter for the limited purpose of new findings as to reasonable hourly rates at the time the services were performed consistent with this opinion.
We do not intend, by this remand, to diminish the value of the fee schedule compiled by the District Court in Laffey. Indeed, we commend its use for the year to which it applies. Perhaps the most desirable result of the present litigation would be the compiling of a similar schedule of prevailing community rates for other relevant years.
In making this remand we encourage the parties to act reasonably in pursuit of any possible settlement. Already this case has occupied the time of the Courts and the attorneys since 1981. Since 1985, the litigation has concerned attorneys’ fees. Consistent with the admonitions of the Supreme Court in Hensley v. Eckerhart, we would urge the parties not to unduly prolong what is already “a second major litigation.”
VACATED AND REMANDED.
. As the panel noted, the attorneys’ fee provision applicable to this case does not "require that the award be ‘reasonable’; instead, it simply empowers the court to award fees to 'any party, whenever the court determines such award is appropriate.’ 30 U.S.C. § 1270(d) (1982). Nonetheless, the Supreme Court has found that an identically worded fee statute in the Clean Air Act, 42 U.S.C. § 7604(d) (1982), should be interpreted in accord with the more abundant jurisprudence addressing the attorney’s fee provision in the Civil Rights Act, 42 U.S.C. § 1988 (1982), and other statutes that award a ‘reasonable’ attorney’s fee_’’ Save Our Cumberland Mountains, 826 F.2d at 47. Therefore the analysis is the same as that pursued in Blum and Laffey.
. Provided, of course, these do not exceed the Laffey brackets.
. See American Bar Ass'n, Model Rules of Professional Conduct (1984), Rules 3.3, 4.1 (Candor and Truthfulness), and Rule 6.1 (Pro Bono Pub-lico Service).
. Again we note that the Supreme Court was construing a different fee awards statute, but again the analysis applies. See supra note 1. While the dissent accuses us of tilting at windmills, the dissent's consistent theme of tilting at windfalls challenges opponents that are not even there. We do not propose, as the dissent suggests, that all attorneys be remunerated at the same rate, regardless of their competence, experience, and marketability. We only aim to provide that their experience, competence, and marketability will be reflected in the rate at which they are in fact remunerated.
. Now embodied in the ABA Model Code, Rule 1.5. See supra note 3.
. The Johnson Court discussed each factor in a separate paragraph. See Johnson, 488 F.2d at 717-19.
. The modifications in the District Court’s opinion ordered by the panel in the present litigation, other than those brought before this court en banc, involved adjustments to the District Court’s calculation based on later developments drawn from the cited Supreme Court cases in the jurisprudence of fee awards applying the Johnson factors to the lodestar rather than as multipliers.
. The dissent's enshrinement of enablement as "the Congressionally ordained purpose," p. 1529, infra, unduly emphasizes a single aspect. We do not deny the primacy of that goal but as we have demonstrated both Congress and the Supreme Court have made the congressional aims of “adequacy” and "competency” part and parcel of the statutory fee award computation. The dissent’s reliance on the $75 per hour (with adjustments) cap in the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1982), is particularly ill-advised. That statute can as easily be read as demonstrating that Congress knew how to cap a rate when it wished to do so. Since it did not apply this cap to the statute before us, we can then conclude the cap of the EAJA does not apply nor is it instructive. We note that no such capping intent appears in the Civil Rights Act, 42 U.S.C. § 1988 (1982), which is in fact instructive to our analysis. See supra note 1.
. The cited Swann decision does not expressly relate this fact. However, reference to the earlier reported decisions, in the underlying substantive controversy, Swann v. Charlotte Mecklenberg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970), Swann v. Charlotte Mecklen-berg Bd. of Educ., 431 F.2d 138 (4th Cir.1970), and Swann v. Charlotte Mecklenberg Bd. of Educ., 311 F.Supp. 265 (W.D.N.C.1970) reveals the names of defense counsel. Reference to any then current legal directory will confirm the nature of those firms.