BLUM v. STENSON(1984) - LawCareNigeria (2022)

No. 81-1374

Argued: January 11, 1984Decided: March 21, 1984

Respondent – who was represented by attorneys from the Legal Aid Society of New York, a private nonprofit law office – filed a civil rights action in Federal District Court on behalf of a statewide class of Medicaid recipients. The complaint challenged certain procedures utilized for termination of Medicaid benefits. The District Court certified the class and entered summary judgment for it. After the Court of Appeals affirmed, respondent filed in the District Court a request for an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, which provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The total requested fee amounted to $118,968, consisting of $79,312 based on some 809 hours of work at rates varying from $95 to $105 per hour, plus a 50% “bonus” of $39,656 to compensate for the complexity of the case, the novelty of the issues, and the “great benefit” achieved. The District Court awarded the full amount requested, holding that the hours expended and the rates charged, in view of prevailing market rates, were reasonable, and that the 50% bonus was proper because of the quality of representation, the complexity of the issues, the riskiness of success, and the “great benefit to the large class” that was achieved. The Court of Appeals affirmed.

Held:

    1. The statute and its legislative history establish that “reasonable fees” are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profitmaking attorneys or nonprofit legal aid organizations. Policy arguments in favor of a cost-based standard should be addressed to Congress rather than to this Court. Pp. 892-896.
    2. The District Court abused its discretion in awarding the 50% upward adjustment in the fee in this case. Pp. 896-902.
    • (a) There is no merit to the argument that an “upward adjustment” of a reasonable fee – calculated by multiplying the reasonable number of hours expended times a reasonable hourly fee – is never permissible. The statute and its legislative history establish that the “product of reasonable

[465 U.S. 886, 887]

    hours times a reasonable rate” normally provides a “reasonable” attorney’s fee, but “in some cases of exceptional success an enhanced award may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 435 . Pp. 896-897.
    (b) However, respondent failed to carry her burden of proving that an upward adjustment was necessary to the determination of a reasonable fee in this case. The record contains no evidence supporting the District Court’s conclusions that the upward adjustment was proper because of the complexity of the litigation, the novelty of the issues, the high quality of representation, and the “great benefit” to the class. These factors generally are reflected in the reasonableness of the number of billable hours or the hourly rates. Moreover, the record does not justify the District Court’s upward adjustment on the basis of the “riskiness” of the law suit. Respondent established only that the hourly rates and the hours billed were reasonable. Pp. 898-902.

671 F.2d 493, affirmed in part and reversed in part.

POWELL, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 902.

Melvyn R. Leventhal, Deputy First Assistant Attorney General of New York, argued the cause for petitioner. With him on the briefs were Robert Abrams, Attorney General, Dennis H. Allee, First Assistant Attorney General, Peter H. Schiff, George D. Zuckerman, Deputy Solicitor General, and Marion R. Buchbinder and Frederick K. Mehlman, Assistant Attorneys General.

Leon Silverman argued the cause for respondent. With him on the brief were Kalman Finkel, Arthur J. Fried, John E. Kirklin, and Linda R. Blumkin.*

[Footnote *] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, Deputy Assistant Attorney General Kuhl, Joshua I. Schwartz, William Kanter, and Mark W. Pennak; for the State of Alabama et al. by Kenneth O. Eikenberry, Attorney General of Washington, and Thomas F. Carr, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim[465 U.S. 886, 888]Jones of Idaho, Neil Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, John D. Ashcroft of Missouri, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kimmelman of New Jersey, Rufus L. Edmisten of North Carolina, Robert O. Wefald of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Michael Turpen of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Judith S. Yogman and Carl Valvo, Assistant Attorneys General. Briefs of amici curiae urging affirmance were filed for the Alliance for Justice by Laura Macklin; for the California Coalition of Welfare Rights Organizations by Mary S. Burdick and Richard A. Rothschild; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Steven L. Winter, Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, Norman J. Chachkin, E. Richard Larson, Burt Neuborne, Kenneth Kimerling, Joaquin G. Avila, and Morris J. Baller; for the National Education Association et al. by Michael H. Gottesman, Robert M. Weinberg, Julia Penny Clark, Robert H. Chanin, and Lawrence A. Poltrock; for the New York State Bar Association et al. by Haliburton Fales II; and for Oliver Hill et al. by Armand Derfner and Stephen P. Berzon.[465 U.S. 886, 888]

JUSTICE POWELL delivered the opinion of the Court.

Title 42 U.S.C. 1988 (1976 ed., Supp. V) provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983). Adjustments to that fee then may be made as necessary in the particular case. The[465 U.S. 886, 889]two issues in this case are whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates, and whether, and under what circumstances, an upward adjustment of an award based on prevailing market rates is appropriate under 1988.

I

A

This suit was brought in 1978 by respondent on behalf of a statewide class of Medicaid1recipients pursuant to 42 U.S.C. 1983 in the District Court for the Southern District of New York. Under New York law, one who is eligible to receive benefits under the Supplemental Security Income (SSI) program, 42 U.S.C. 1381 et seq. (1976 ed. and Supp. V), automatically is eligible to receive Medicaid benefits. N. Y. Soc. Serv. Law 363 et seq. (McKinney 1976). Prior to this suit, persons who qualified for Medicaid in this fashion automatically lost their benefits if they thereafter became ineligible for SSI payments. The case was decided on cross-motions for summary judgment after only one set of plaintiff’s interrogatories had been served and answered. On these motions, the District Court certified the class2and rendered final judgment in favor of the class.[465 U.S. 886, 890]

The court enjoined the prior practice of automatic termination of benefits, and prescribed procedural rights for the certified class that included “(a) an ex parte determination of continued eligibility for Medicaid, independent of eligibility for SSI; (b) timely and adequate notice of such termination; (c) an opportunity for a hearing.” Stenson v. Blum, 476 F. Supp. 1331, 1335 (1979). The Court of Appeals for the Second Circuit affirmed in an unpublished oral opinion from the bench. Affirmance order, Stenson v. Blum, 628 F.2d 1345, cert. denied, 449 U.S. 885 (1980). Respondent’s subsequent request for an award of reasonable attorney’s fees under 1988 is the subject of the present case.

B

Throughout this litigation, respondent was represented by attorneys from the Legal Aid Society of New York, a private nonprofit law office.3In November 1980, respondent filed a request for attorney’s fees for the period December 1978 through the end of the litigation. Her three attorneys sought payment for some 809 hours of work at rates varying from $95 to $105 per hour.4This amounted to approximately[465 U.S. 886, 891]$79,312. Respondent’s total fee request, however, reflected a 50% increase in that fee. In her brief to the District Court, respondent explained that such an increase was necessary to compensate for the complexity of the case, the novelty of the issues, and the “great benefit” achieved. The total requested fee amounted to approximately $118,968. Petitioner opposed the fee award on the grounds that the rates were exorbitant, the number of hours charged were unreasonable and duplicative, and the 50% “bonus” was improper.

Petitioner submitted no evidence to support her claim that the hours and rates charged by respondent were unreasonable. Instead, petitioner rested her claim that the hours were duplicative and excessive and the rates exorbitant on arguments contained in her brief to the District Court and on that court’s discretion. Petitioner requested an evidentiary hearing on the issue of reasonable billable hours only if the District Court found that the discussion in her brief did not justify reductions in the number of hours charged. Finally, petitioner argued that the 50% “bonus” requested by respondent was improper because it would be paid by the public.

The District Court held that both the hours expended and the rates charged were reasonable. It also held that the fee calculated by multiplying the number of hours times the hourly rates should be increased by the requested 50% because of the quality of representation, the complexity of the issues, the riskiness of success, and the “great benefit to a large class” that was achieved. 512 F. Supp. 680, 685 (1981). The District Court awarded the plaintiff class the requested fee of $118,968.

The Court of Appeals affirmed in an unpublished opinion. No. 81-7385 (CA2, Oct. 19, 1981). Affirmance order, 671 F.{4)d 493[465 U.S. 886, 892](1981). We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney’s fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates. 461 U.S. 956 (1983).5

II

Petitioner argues that the use of prevailing market rates to calculate attorney’s fees under 1988 leads to exorbitant fee awards and provides windfalls to civil rights counsel contrary to the express intent of Congress. To avoid this result, petitioner urges this Court to require that all fee awards under 1988 be calculated according to the cost of providing legal services rather than according to the prevailing market rate.6The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations. He[465 U.S. 886, 893]argues that market rates reflect the level of compensation necessary to attract profit-making attorneys, but that such rates provide excessive fees to nonprofit counsel. Because market rates incorporate operating expenses that may exceed the expenses of nonprofit legal services organizations, and include an element of profit unnecessary to attract nonprofit counsel, the Solicitor General argues that fee awards based on market rates “confer an unjustified windfall or subsidy upon legal services organizations.” Brief for United States as Amicus Curiae 6.

Resolution of these two arguments begins and ends with an interpretation of the attorney’s fee statute. The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney’s fee to prevailing civil rights litigants.7In enacting the statute, Congress directed that attorney’s fees be calculated according to standards currently in use under other fee-shifting statutes:

    • “It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D. § 9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent

[465 U.S. 886, 894]

    • counsel, but which do not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976).

8

    In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates.9None of these four cases made any mention of a cost-based standard.10Petitioner’s argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

    It is also clear from the 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. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD § 9444 (CD Cal.[465 U.S. 886, 895]1974), make this explicit. In Stanford Daily, the court held that it “must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return.” 64 F. R. D., at 681. In Davis, the court held:

      “In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs’ counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney’s fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” 8 EPD, at 5048-5049.

    We cannot assume that Congress would endorse the standards used in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (CA5 1974), Stanford Daily, Davis, and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (WDNC 1975), if fee awards based on market rates were viewed as the kind of “windfall profits” it expressly intended to prohibit.

    The statute and legislative history establish that “reasonable fees” under 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel.11The policy arguments advanced in favor of a[465 U.S. 886, 896]cost-based standard should be addressed to Congress rather than to this Court.

    III

    We address now the second question presented: whether a 50% upward adjustment in the fee was – as petitioner argues – an abuse of discretion by the District Court.12Petitioner makes two separate but related arguments. First, she asserts that a reasonable attorney’s fee is calculated by multiplying the reasonable number of hours expended times a reasonable hourly rate and that any upward adjustment of that fee is improper. In the alternative, she argues that the 50% upward adjustment in this case constitutes a clear abuse of discretion.

    A

    Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear. In actions to enforce federal civil rights, 1988 authorizes a court, “in its discretion,”[465 U.S. 886, 897]to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The legislative history explains that “a reasonable attorney’s fee” is one that is “adequate to attract competent counsel, but . . . [that does] not produce windfalls to attorneys.” S. Rep. No. 94-1011, p. 6 (1976). As noted, the Senate Report identified four cases that had calculated correctly a reasonable attorney’s fee.13

    In Hensley v. Eckerhart, 461 U.S. 424 (1983), we reviewed the cases cited in the legislative history of 1988 and concluded that the “product of reasonable hours times a reasonable rate” normally provides a “reasonable” attorney’s fee within the meaning of the statute. Id., at 434. Hensley also recognized that “in some cases of exceptional success an enhanced award may be justified.” Id., at 435.14In view of our recognition that an enhanced award may be justified “in some cases of exceptional success,” we cannot agree with petitioner’s argument that an “upward adjustment” is never permissible. The statute requires a “reasonable fee,” and there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high. When, however, the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee contemplated by 1988.[465 U.S. 886, 898]

    B

    The issue remaining is the appropriateness of an upward adjustment to the fee award in this case. The burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant. The record before us contains no evidence supporting an upward adjustment to fees calculated under the basic standard of reasonable rates times reasonable hours. The affidavits of respondent’s attorneys do not claim, or even mention, entitlement to a bonus or upward revision. Respondent’s brief to the District Court merely states in conclusory fashion that an upward adjustment to the fee is necessary because the issues were novel, the litigation was complex, and the results were of far-reaching significance to a large class of people. The District Court, without elaboration, accepted these conclusory reasons for approving the upward adjustment and supplied additional reasons of its own. In awarding the 50% increase, the court referred to the complexity of the litigation, the novelty of the issues, the high quality of representation, the “great benefit” to the class, and the “riskiness” of the lawsuit. The Court of Appeals, in affirming, shed no light on why it thought this substantial upward adjustment was appropriate. In a single sentence, it simply repeated the unsupported conclusions of the District Court.

    The reasons offered by the District Court to support the upward adjustment do not withstand examination. The novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded by counsel and thus do not warrant an upward adjustment in a fee based on the number of billable hours times reasonable hourly rates. There may be cases, of course, where the experience and special skill of the attorney will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue. In those cases, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates. Neither complexity nor novelty of the issues, therefore, is an appropriate[465 U.S. 886, 899]factor in determining whether to increase the basic fee award.

    The District Court, having tried the case, was in the best position to conclude that “the quality of representation was high.” In view of the reputation of the Legal Aid Society and its staff, we have no doubt that this was true.15The “quality of representation,” however, generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.” See Hensley, 461 U.S., at 435 . Respondent offered no such evidence in this case, and on this record the District Court’s rationale for providing an upward adjustment for quality of representation is a clear example of double counting. In justifying the high hourly rates used to calculate the fee award, the District Court explained:

      “The rates requested here are consonant with fee awards in cases of similar complexity and difficulty. . . . [T]hey are fair in view of these attorneys[‘] experience and expertise . . . . The quality of work performed by counsel throughout this case was high. In view of all these considerations, I do not find the requested rates, from $95 per hour to $105 per hour, excessive.” 512 F. Supp., at 683.

    In justifying the upward adjustment to the fee award, the District Court merely restated these same two factors: “The quality of representation was high. The litigation was complex.” Id., at 685.[465 U.S. 886, 900]

    Not only has respondent failed to show that the hourly rates failed to provide a reasonable fee for the quality of representation provided, but she candidly concedes that the “fees awarded [to her attorneys] may be at the upper end of the market for awards under 1988 . . . .” Brief for Respondent 42. Absent specific evidence to the contrary, we cannot say that rates from $95 per hour to $105 per hour for these three attorneys do not fully reflect the quality of their representation.

    The 50% upward adjustment also was based in part on the District Court’s determination that the ultimate outcome of the litigation “was of great benefit to a large class of needy people.” 512 F. Supp., at 685. The court did not explain, however, exactly how this determination affected the fee award. “Results obtained” is one of the 12 factors identified in Johnson v. Georgia Highway Express, 488 F.2d, at 718, as relevant to the calculation of a reasonable attorney’s fee. It is “particularly crucial where a plaintiff is deemed `prevailing’ even though he succeeded on only some of his claims for relief.” Hensley, supra, at 434 (fee award must be reduced by the number of hours spent on unsuccessful claims). Because acknowledgment of the “results obtained” generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award.16Neither the District Court’s opinion nor respondent’s briefs have identified record evidence that shows that the benefit achieved requires an upward adjustment to the fee.[465 U.S. 886, 901]

    Finally, the District Court included among its reasons for an upward adjustment a statement that the “issues presented were novel and the undertaking therefore risky.” 512 F. Supp., at 685. Absent any claim in the affidavits or briefs submitted in support of respondent’s fee request, seeking such an adjustment, we cannot be sure what prompted the court’s statement. Nowhere in the affidavits submitted in support of respondent’s fee request, nor in her brief to the District Court, did respondent identify any risks associated with the litigation or claim that the risk of nonpayment required an upward adjustment to provide a reasonable fee. On this record, therefore, any upward adjustment for the contingent nature of the litigation was unjustified.17

    In sum, we reiterate what was said in Hensley: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” 461 U.S., at 435 . We therefore reject petitioner’s argument that an upward adjustment to an attorney’s fee is never appropriate under 1988.18On the record before us, however, respondent established only that hourly rates ranging from $95 per hour to $105 per hour for the full 809.75 hours billed were reasonable. This resulted in a charge of $79,312. Respondent introduced no evidence that enhancement was necessary to provide fair and reasonable compensation. She therefore has failed to carry her burden[465 U.S. 886, 902]of justifying entitlement to an upward adjustment.19On this record, we conclude that the fee of $79,312 was “fully compensatory.” Accordingly, the judgment below is reversed only insofar as the fee award was increased by the sum of $39,656, and is otherwise affirmed.

    Blum v. Stenson — In resolving question of Congress's intent, "we look first to the statutory language and then to the legislative history if the statutory language is unclear"

    The District Court awarded the plaintiff class the requested fee of $118,968.. We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney's fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates.. V), authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants.. In Stanford Daily, the District Court concluded that a court may "increase the fees award obtained by multiplying the number of hours by the average billing rate to reflect the fact that the attorneys' compensation, at least in part, was contingent in nature.". 1974) (fee award calculated by multiplying number of hours expended times the "normal hourly rates" for attorneys of like skill and experience); Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483, 486 (WDNC 1975) (fee award calculated with reference to hourly rates generally charged in federal litigation).

    Research the case of BLUM v. STENSON, from the Supreme Court, 03-21-1984. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data.

    two issues in this case are whether Congress intended fee awards to nonprofit legal service organizations to be calculated according to cost or to prevailing market rates, and whether, and under what circumstances, an upward adjustment of an award based on prevailing market rates is appropriate under § 1988.. We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney's fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates.. To avoid this result, petitioner urges this Court to require that all fee awards under § 1988 be calculated according to the cost of providing legal services rather than according to the prevailing market rate.6 The Solicitor General, for the United States as amicus curiae, urges the Court to adopt a cost-related standard only for fee awards made to nonprofit legal aid organizations.. V), authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants.7 In enacting the statute, Congress directed that attorney's fees be calculated according to standards currently in use under other fee-shifting statutes:. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees.". First, she asserts that a reasonable attorney's fee is calculated by multiplying the reasonable number of hours expended times a reasonable hourly rate and that any upward adjustment of that fee is improper.. Not only has respondent failed to show that the hourly rates failed to provide a reasonable fee for the quality of representation provided, but she candidly concedes that the "fees awarded [to her attorneys] may be at the upper end of the market for awards under § 1988 . . . ." Brief for Respondent 42.. Because acknowledgment of the "results obtained" generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award.16 Neither the District Court's opinion nor respondent's briefs have identified record evidence that shows that the benefit achieved requires an upward adjustment to the fee.. Nowhere in the affidavits submitted in support of respondent's fee request, nor in her brief to the District Court, did respondent identify any risks associated with the litigation or claim that the risk of nonpayment required an upward adjustment to provide a reasonable fee.. We therefore reject petitioner's argument that an upward adjustment to an attorney's fee is never appropriate under § 1988.18 On the record before us, however, respondent established only that hourly rates ranging from $95 per hour to $105 per hour for the full 809.75 hours billed were reasonable.. In Stanford Daily, the District Court concluded that a court may "increase the fees award obtained by multiplying the number of hours by the average billing rate to reflect the fact that the attorneys' compensation, at least in part, was contingent in nature.". Similarly, it is necessary to account for this risk in fee awards under § 1988, either by increasing the appropriate hourly rate or by enhancing the fee otherwise calculated with the use of an hourly rate that does not reflect the risk of not prevailing.. will ensure that fees under § 1988 are consistent with prevailing market rates, see ante, at 893-894, and n. 9, that nonprofit legal service organizations and private attorneys are treated similarly, see ante, at 894-895, and n. 18, and that the attorney's fees awarded are "adequate to attract competent counsel" to represent other clients with civil rights grievances, S. Rep. No.. * Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, Deputy Assistant Attorney General Kuhl, Joshua I. Schwartz, William Kanter, and Mark W. Pennak ; for the State of Alabama et al. by Kenneth O. Eikenberry, Attorney General of Washington, and Thomas F. Carr, Senior Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Charles A. Graddick of Alabama, Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Jim Smith of Florida, Michael J. Bowers of Georgia, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, John D. Ashcroft of Missouri, Michael T. Greely of Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kimmelman of New Jersey, Rufus L. Edmisten of North Carolina, Robert O. Wefald of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Michael Turpen of Oklahoma, David B. Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, Mark V. Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee, David L. Wilkinson of Utah, John J. Easton of Vermont, Gerald L. Baliles of Virginia, Chauncey H. Browning of West Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming; and for the Commonwealth of Massachusetts by Francis X. Bellotti, Attorney General, Thomas R. Kiley, First Assistant Attorney General, and Judith S. Yogman and Carl Valvo, Assistant Attorneys General.. Unlike the calculation of attorney's fees under the "common fund doctrine," where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under § 1988 reflects the amount of attorney time reasonably expended on the litigation.

    Judgment of the Court of 3 July 1986. - Deborah Lawrie-Blum v Land Baden-Württemberg. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Worder - Trainee teacher. - Case 66/85. European Court reports 1986 Page 02121 Swedish special edition Page 00661 Finnish special edition Page 00687

    THEREFORE , A TRAINEE TEACHER WHO , UNDER THE DIRECTION AND SUPERVISION OF THE SCHOOL AUTHORITIES , IS UNDERGOING A PERIOD OF SERVICE IN PREPARATION FOR THE TEACHING PROFESSION DURING WHICH HE PROVIDES SERVICES BY GIVING LESSONS AND RECEIVES REMUNERATION MUST BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 48 ( 1 ) OF THE EEC TREATY , IRRESPECTIVE OF THE LEGAL NATURE OF THE EMPLOYMENT RELATIONSHIP .. THE EXPRESSION ' EMPLOYMENT IN THE PUBLIC SERVICE ' WITHIN THE MEANING OF ARTICLE 48 ( 4 ), WHICH IS EXCLUDED FROM THE AMBIT OF ARTICLE 48 ( 1 ), ( 2 ) AND ( 3 ), MUST BE UNDERSTOOD AS MEANING THOSE POSTS WHICH INVOLVE DIRECT OR INDIRECT PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND IN THE DISCHARGE OF FUNCTIONS WHOSE PURPOSE IS TO SAFEGUARD THE GENERAL INTERESTS OF THE STATE OR OF OTHER PUBLIC AUTHORITIES AND WHICH THEREFORE REQUIRE A SPECIAL RELATIONSHIP OF ALLEGIANCE TO THE STATE ON THE PART OF PERSONS OCCUPYING THEM AND RECIPROCITY OF RIGHTS AND DUTIES WHICH FORM THE FOUNDATION OF THE BOND OF NATIONALITY .. 1 BY A JUDGMENT OF 24 JANUARY 1985 , WHICH WAS RECEIVED AT THE COURT ON 14 MARCH 1985 , THE BUNDESVERWALTUNGSGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY AND ARTICLE 1 OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ).. ' DO THE RULES OF EUROPEAN LAW ON THE FREE MOVEMENT OF PERSONS ( ARTICLE 48 OF THE EEC TREATY ) AND ARTICLE 1 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 , LATER AMENDED ) GIVE NATIONALS OF A MEMBER STATE THE RIGHT TO BE APPOINTED TRAINEE TEACHERS IN THE STATE SCHOOL SYSTEM OF ANOTHER MEMBER STATE UNDER THE SAME CONDITIONS AS NATIONALS OF THAT MEMBER STATE , EVEN WHERE SUCH TRAINEE TEACHERS , ACCORDING TO NATIONAL LAW , HAVE CIVIL SERVICE STATUS ( IN THIS CASE , AS TEMPORARY CIVIL SERVANTS ( BEAMTEN AUF WIDERRUF ) UNDER GERMAN LAW ) AND CONDUCT CLASSES INDEPENDENTLY , AND WHERE NATIONAL LAW REQUIRES THAT PERSONS APPOINTED TO THE CIVIL SERVICE MUST IN PRINCIPLE BE NATIONALS OF THE MEMBER STATE CONCERNED?. 10 THE NATIONAL COURT IS ESSENTIALLY ASKING IN THE FIRST PLACE WHETHER A TRAINEE TEACHER UNDERGOING A PERIOD OF SERVICE AS PREPARATION FOR THE TEACHING PROFESSION DURING WHICH HE ENJOYS CIVIL SERVICE STATUS AND PROVIDES SERVICES BY CONDUCTING CLASSES FOR WHICH HE RECEIVES REMUNERATION MUST BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 48 OF THE EEC TREATY AND SECONDLY WHETHER SUCH PREPARATORY SERVICE MUST BE REGARDED AS EMPLOYMENT IN THE PUBLIC SERVICE WITHIN THE MEANING OF ARTICLE 48 ( 4 ) TO WHICH NATIONALS OF OTHER MEMBER STATES MAY BE REFUSED ADMISSION .. 11 IN ITS CAREFULLY REASONED ORDER FOR REFERENCE THE BUNDESVERWALTUNGSGERICHT STATES THAT , IN ITS VIEW , A TRAINEE TEACHER APPOINTED AS A TEMPORARY CIVIL SERVANT MAY NOT BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 48 OF THE EEC TREATY AND THAT IN ANY EVENT HE COMES WITHIN THE EXCEPTION IN ARTICLE 48 ( 4 ) SINCE HE EXERCISES POWERS CONFERRED BY PUBLIC LAW OR CONTRIBUTES TOWARDS THE SAFEGUARDING OF THE GENERAL INTERESTS OF THE STATE .. THE TERM ' WORKER ' WITHIN THE MEANING OF ARTICLE 48 OF THE TREATY AND REGULATION NO 1612/68 COVERS ONLY PERSONS WHOSE RELATIONSHIP TO THEIR EMPLOYER IS GOVERNED BY A CONTRACT SUBJECT TO PRIVATE LAW AND NOT PERSONS WHOSE EMPLOYMENT RELATIONSHIP IS SUBJECT TO PUBLIC LAW .. THE FACT THAT THE PERIOD OF PREPARATORY SERVICE IS A COMPULSORY STAGE IN THE PREPARATION FOR THE PRACTICE OF A PROFESSION AND THAT IT IS SPENT IN THE PUBLIC SERVICE IS IRRELEVANT IF THE OBJECTIVE CRITERIA FOR DEFINING THE TERM ' WORKER ' , NAMELY THE EXISTENCE OF A RELATIONSHIP OF SUBORDINATION VIS-A-VIS THE EMPLOYER , IRRESPECTIVE OF THE NATURE OF THAT RELATIONSHIP , THE ACTUAL PROVISION OF SERVICES AND THE PAYMENT OF REMUNERATION , ARE SATISFIED .. NOR MAY THE ECONOMIC NATURE OF THOSE ACTIVITIES BE DENIED ON THE GROUND THAT THEY ARE PERFORMED BY PERSONS WHOSE STATUS IS GOVERNED BY PUBLIC LAW SINCE , AS THE COURT POINTED OUT IN ITS JUDGMENT OF 12 FEBRUARY 1974 IN CASE 152/73 ( SOTGIU V DEUTSCHE BUNDESPOST ( 1974 ) ECR 153 ), THE NATURE OF THE LEGAL RELATIONSHIP BETWEEN EMPLOYEE AND EMPLOYER , WHETHER INVOLVING PUBLIC LAW STATUS OR A PRIVATE LAW CONTRACT , IS IMMATERIAL AS REGARDS THE APPLICATION OF ARTICLE 48 .. 22 CONSEQUENTLY , THE REPLY TO THE FIRST PART OF THE QUESTION MUST BE THAT A TRAINEE TEACHER WHO , UNDER THE DIRECTION AND SUPERVISION OF THE SCHOOL AUTHORITIES , IS UNDERGOING A PERIOD OF SERVICE IN PREPARATION FOR THE TEACHING PROFESSION DURING WHICH HE PROVIDES SERVICES BY GIVING LESSONS AND RECEIVES REMUNERATION MUST BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 48 ( 1 ) OF THE EEC TREATY , IRRESPECTIVE OF THE LEGAL NATURE OF THE EMPLOYMENT RELATIONSHIP .. ON THE MEANING OF ' EMPLOYMENT IN THE PUBLIC SERVICE ' IN ARTICLE 48 ( 4 ). 27 AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 17 DECEMBER 1980 IN CASE 149/79 COMMISSION V BELGIUM ( 1980 ) ECR 3881 AND OF 26 MAY 1982 IN CASE 149/79 COMMISSION V BELGIUM ( 1982 ) ECR 1845 , ' EMPLOYMENT IN THE PUBLIC SERVICE ' WITHIN THE MEANING OF ARTICLE 48 ( 4 ), WHICH IS EXCLUDED FROM THE AMBIT OF ARTICLE 48 ( 1 ), ( 2 ) AND ( 3 ), MUST BE UNDERSTOOD AS MEANING THOSE POSTS WHICH INVOLVE DIRECT OR INDIRECT PARTICIPATION IN THE EXERCISE OF POWERS CONFERRED BY PUBLIC LAW AND IN THE DISCHARGE OF FUNCTIONS WHOSE PURPOSE IS TO SAFEGUARD THE GENERAL INTERESTS OF THE STATE OR OF OTHER PUBLIC AUTHORITIES AND WHICH THEREFORE REQUIRE A SPECIAL RELATIONSHIP OF ALLEGIANCE TO THE STATE ON THE PART OF PERSONS OCCUPYING THEM AND RECIPROCITY OF RIGHTS AND DUTIES WHICH FORM THE FOUNDATION OF THE BOND OF NATIONALITY .. ( 1 ) A TRAINEE TEACHER WHO , UNDER THE DIRECTION AND SUPERVISION OF THE SCHOOL AUTHORITIES , IS UNDERGOING A PERIOD OF SERVICE IN PREPARATION FOR THE TEACHING PROFESSION DURING WHICH HE PROVIDES SERVICES BY GIVING LESSONS AND RECEIVES REMUNERATION MUST BE REGARDED AS A WORKER WITHIN THE MEANING OF ARTICLE 48 ( 1 ) OF THE EEC TREATY , IRRESPECTIVE OF THE LEGAL NATURE OF THE EMPLOYMENT RELATIONSHIP .

    0: [object Object]. 1: [object Object]. 2: [object Object]. 3: [object Object]. 4: [object Object]. 5: [object Object]

    After the Court of Appeals affirmed, respondent filed in the District Court a request for an award of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, which provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.". The District Court awarded the full amount requested, holding that the hours expended and the rates charged, in view of prevailing market rates, were reasonable, and that the 50% bonus was proper because of the quality of representation, the complexity of the issues, the riskiness of success, and the "great benefit to the large class" that was achieved.. The statute and its legislative history establish that "reasonable fees" are to be calculated according to the prevailing market rates in the relevant community, not according to the cost of providing legal services, regardless of whether the prevailing party is represented by private profit-making attorneys or nonprofit legal aid organizations.. The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.. The District Court awarded respondents the requested fee of $118,968.. We granted certiorari to consider whether it was proper for the District Court to use prevailing market rates in awarding attorney's fees to nonprofit legal services organizations and whether the District Court abused its discretion in increasing the fee award above that based on market rates.

    The meaning of the term 'worker' is a matter of European Community law and holds the same meaning in all EU Member States. The primary feature ...

    The right to free movement among workers applies within Member States regardless of the purpose of the worker taking up employment in another Member State as long it is not as a means of rehabilitation of the worker into society.. In the case of Sotgiu the ECJ held that Art 45(4) does not apply to all employment within the public service only certain activities involving the exercise of official authority.. It was then in the case of Commission v Belgium the ECJ laid down the test in determining whether a worker was employed in the public service.. It was stated , “Classification depends on whether or not the posts in question are typical of the specific activities of the public service in so far as the exercise of powers conferred by public law and responsibility for safeguarding the general interests of the State are vested in it.” The ECJ has held that this exception covers posts which involve direct or indirect participation in the exercise of powers within public law which include duties designed to safeguard the general interests of the State.. Some of the posts which were accepted were stated during Case 149/79 and included local authority posts for architects, supervisors and some night watchmen, however it is not clear on what basis these posts were so excluded and as a result are these posts really needed to be protected by a public service exception.. In 2010 the Commission made the decision to investigate the current state of play in the national legislation as well as the reforms which have been undertaken and the way the legislation is applied to ensure the right to free movement of workers in the public sector of EU Member States.. The criteria established by the ECJ in order to determine if a post may be reserved to nationals are that a post involves: i) direct or indirect participation in the exercise of public authority and ii) duties designed to safeguard the general interests of the state or of other public authorities .. It should be noted that in most Member States there have been reforms of public sector employment rules in order to ensure compliance with free movement of workers in the public sector.. The report goes on to suggests a system where the Member States monitor compliance with EU law with regards to the free movement of workers in the public sector .

    Stenson v. Blum — Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information.

    The Legal Aid Society Civil Division, Civil Appeals & Law Reform Unit, New York City, for plaintiff; Kalman Finkel, Attorney in Charge, Civil Division, John E. Kirklin, Director of Litigation, Arthur J.. Fried, Civil Appeals & Law Reform Unit, New York City, Joan Mangones, Attorney in Charge, Ann Moynihan, Staten Island, N. Y., Paula Galowitz, New York City, of counsel.. However, she does object to the specific fee request made, claiming, first, that the rates sought are exorbitant, second, that plaintiff's counsel failed to differentiate between time spent on issues involving the state defendant and those involving the federal and city defendants, third, that the claim unjustifiably asks reimbursement for time spent on issues on which plaintiff did not prevail, fourth, that the hours spent were excessive, fifth, that plaintiff's request is inflated by duplication of attorneys' labor, and, finally, that plaintiff should not be awarded a bonus.. First, the number of hours expended by each attorney involved in the case is multiplied by the hourly rate normally charged for similar work by attorneys of like skill in the area, to obtain a "lodestar" figure.. This process is applied to the calculation of attorneys' fees in actions under the civil rights statutes just as it is applied to other types of actions, see Cohen, supra, at 505, n.15; Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578F.2d34 (2d Cir.. Although plaintiff's fee request initially encompassed time spent on issues involving only the city defendants, it has been modified to exclude hours spent on those issues.. The legal issues involving the federal and state defendants were intermingled in such a fashion in this case that such differentiation would not be possible, and, indeed, would not accurately reflect time spent on issues of importance to the claims against the state.. Defendants' third objection is that plaintiffs' ask reimbursement for time spent on issues on which plaintiff did not prevail.. Fee awards are appropriate for time spent on efforts to secure compliance with court decrees, no less than for time spent securing those decrees.. In Northcross the circuit court rejected the approach of the court below, which had declined to award fees for those issues on which plaintiff had not prevailed, saying that once it is determined that plaintiffs prevailed on the action as a whole, they are entitled to attorneys' fees for all time reasonably spent on the matter.. 1978) (fees awarded only for hours spent on issues on which plaintiff prevailed).. See Cohen v. West Haven Board of Police Commissioners, supra (factors include risk, complexity, and quality of representation); Population Services International v. Carey, supra (social benefits of the action a factor in upward adjustment of lodestar amount); Beazer v. New York City Transit Authority, 558F.2d97 (2d Cir.. See Population Services International v. Carey, supra (50% bonus awarded); City of New York v. Darling-Delaware, supra (bonus awards of 60% to 200% granted); Blank v. Talley, supra (50% bonus awarded).

    Download free MRL3701 Insolvency law study notes for Unisa students. This study notes illustrates all of the relevant content for the examinations.

    i) committed an act of insolvency in terms of Section 8(g) of the Insolvency Act; and ii) was insolvent in any event.. There had been sufficient service of the papers on the trustee of the trust and the one provisional liquidator of the applicant company had locus standi to apply for the provisional sequestration of the trust estate.. In an application for the surrender of the applicant’s estate, it appeared that his wife, to whom he was married out of community of property, made a monthly contribution from her salary to pay his creditors.. i) that the application didn’t comply with the requirements of Section 6(1) because the applicant’s assets didn’t cover costs of sequestration payable from the free residue; ii) that the respondent would be much better off if the application for voluntary surrender were refused and the applicant were compelled to continue paying the respondent for 9 years;. That is why the courts pay special attention to the requirement of advantage to creditors when it appears that the applicant’s primary motivation in bringing the application is to assist the debtor.. Even if it were assumed that sequestration would have been to the advantage of the creditors, it was clear that the applicant had brought the application with the exclusive aim of preventing the debtor from enforcing his claim against the applicant’s son.

    The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

    2.5 The author's. allegation, that the decision not to grant him public assistance was in. violation of article 26 of the Covenant, is based on the argument that he. was subjected to discrimination as a pupil of a private school.. As far as is relevant for the consideration of the present case, chapter 1,. section 1, of the Decree provides that financial support may be granted to. pupils attending public schools or schools subject to State supervision.. 4.3 On 5 November 1984, the. National Board for Educational Assistance informed the author that financial. support for his studies could not be granted on the ground that the school. was not at that time subject to State supervision with respect to the. educational programme of grade 10.. 5.1 As to the alleged. violations of the International Covenant on Civil and Political Rights, the. State party submits the following:. "Blom further alleges that. article 2, paragraph 3, has been violated since the decision not to grant. him public financial support could not be appealed.. He further states that at the time of. application in October 1981 the Rudolf Steiner School was already complying. with the five administrative requirements imposed on private schools subject. to State supervision.. The Committee noted that consideration by the European. Commission of Human Rights of applications submitted by other students at. the same school relating to other or similar facts did not, within the. meaning of article 5, paragraph 2 (a), of the Optional Protocol, constitute. an examination of the same matter.. On 9 April 1987, the. Committee therefore decided that the communication was admissible in so far. as it related to alleged violations of the International Covenant on Civil. and Political Rights and requested the State party, should it not intend to. make a further submission in the case under article 4, paragraph 2, of the. Optional Protocol, so to inform the Committee, so as to permit an early. decision on the merits.. In deciding whether or not the State party violated article 26 by. refusing to grant the author, as a pupil of a private school, an education. allowance for the school year 1981/82, whereas pupils of public schools were. entitled to education allowances for that period, the Committee bases its. findings on the following observations.. 10.3 The State party's. educational system provides for both private and public education.. The Human Rights. Committee, acting under article 5, paragraph 4, of the Optional Protocol to. the International Covenant on Civil and Political Rights, is of the view. that the facts as submitted do not sustain the author's claim that he is a. victim of a violation of article 26 of the International Covenant on Civil. and Political Rights.

    A Section 1983 lawsuit is a lawsuit to recover damages when someone's constitutional rights are violated. Call us now to protect your rights

    Individuals whose constitutional and other federal rights have been violated by federal and state government officers may bring a Section 1983 lawsuit or Bivens claim against those officers to recover damages.. A Section 1983 lawsuit is the right way to sue an official who works for a state or local government, and a Bivens claim is the way someone can pursue a federal official when that official has violated the person’s constitutional rights.. Because states are immune from lawsuits, Section 1983 claims have to be brought against the specific government officials or employees who violated your civil rights.. Sometimes this means suing a police officer for violating your rights; sometimes it means suing the state’s elected officials to block an unconstitutional law from taking effect.. There are far fewer Bivens claims than Section 1983 claims.. It allows a police officer or other official to escape liability if the constitutional right the officer is accused of violating was not “clearly established under federal law” at the time the right was allegedly violated.. We know how to pursue police officers and other government officials who violate people’s constitutional rights from our decades of work in serious criminal defense cases.

    There are 3 main aspects of agency that affect the principal's legal relationships: 1) Actual Authority 2) Apparent Authority 3) ...

    If a principal appoint's an agent in such a market, they can expect to have certain actual authority (although this can be negated by the contract), and may assume the principal is happy to abide by these customs.. In Waugh v Clifford & Sons Brightman LJ explained that the purpose underlying the concepts of apparent authority and implied actual authority are different: the former protects the expectations of third parties whereas the latter concerns the legal relationship between the agent and the principal.. Apparent authority is a representation of the agent's authority by the principal, which the third party acts upon, creating a legal relationship between the principal and the third party to which the agent is a stranger.. An agent acting in the 'usual authority' of an agent of that type binds the principal without an external representation limiting their authority: United Bank of Kuwait v Hammoud .. However, if a principal clearly represents the agent's absence of authority, estoppel cannot operate: Overbrooke Estates v Glencombe Properties - in this case an auction catalogue stated that the auctioneer had no authority to make representations regarding the auctioned property.. Only the principal or an agent with authority to speak on their behalf (on this matter) may make a representation to as to an agent's authority.. But, post-formation statements or conduct will be admissible evidence in determining the scope of the agent's authority, due to the principal's power to vary an agent's authority at any given moment: James Miller v Whitworth Street Estates .. However, an agent cannot make representations as to their own level of authority - apparent authority must be traced back to the principal: AG for Ceylon v Silva (PC).. A principal represent to a third party that his agent will communicate his decision for a particular transaction (specific authority) but this doesn't confer a general authority for future transactions.. He also referred to the Privy Council case Russo-Chinese Bank v Li Yau Sam where Lord Atkinson stated that a principal cannot be bound where the third party knows that the agent doesn't have specific authority for contracts of the type in question.. In this case Steyn LJ said that the Senior Manager had general authority to communicate decisions of the bank when granting specific authority (i.e. to make representations of fact), otherwise the reasonable expectations of the parties would be defeated, and would fly in the face of the way negotiations are conducted between banks and customers negotiate loans.. More recently however, it has been said that First Energy reflects the realities of modern commerce: companies need officers to warrant that particular procedures have been complied with and that the documents the third party receives are in fact genuine (per Davis J Lovett v Carson Country Homes ), and that some agents have apparent authority to make representations of fact, rather than a representation of their own authority (per Mance LJ Primus Telecommunications v MCI WorldCom accepting Steyn LJ's proposition).. There are circumstances which the third party cannot be said to have relied: where the third party knew the agent didn't have authority, or if the principal qualified the agent's representation.

    A free research and knowledge platform on transnational law, the New Lex Mercatoria.

    [...]ROBINSON v . HARMAN Jan. 18, 1848.–Where a party agrees to grant a good and valid lease, having full knowledge that he has no title, the plaintiff, in an action for the breach of such agreement, may recover, beyond his expenses, damages resulting from the loss of his bargain; and the defendant cannot, under a plea of payment of money into court, give evidence that the plaintiff was aware of the defect of title.. Assumpsit on an agreement in writing, dated the 15th April, 1846, whereby the defendant agreed "to grant and deliver to the plaintiff a good and valid lease of a certain dwelling-house, &c., and other hereditaments and premises in the agreement mentioned, for a term of twenty-one years from the 29th day of September then next ensuing, at the yearly rent of £110," &c. The declaration set out the agreement in terms, and, after alleging mutual promises, averred that, although the plaintiff had always been ready and willing to accept a lease, yet the defendant did not nor would grant a good and valid lease of the said dwelling-house, &c., and discharged the plaintiff from preparing and tendering such lease, and wholly neglected and refused to grant or deliver the said or any lease whatever of the said hereditaments and premises; "whereby the plaintiff lost and was deprived of great gains and profits, which would otherwise have accrued to him, and paid, expended, and incurred liability to pay divers sums of money, in and about the preparation of the said agreement and lease, &c., amounting, to wit, to £20.". At the trial, before Lord Deuman, C. J., at the Surrey Spring Assizes, 1847, it was proved that the plaintiff and defendant had entered into the agreement set out in the declaration, by which the defendant agreed to grant to the plaintiff a good and valid lease of a dwelling-house and premises, situate in High-street, Croydon, for a term of twenty-one years from the 29th September, 1846, at a yearly rent of £110.. On the part of the defendant, evidence was tendered to show that the plaintiff, when he entered into the agreement, had full knowledge of the defendant's incapacity to grant the lease, but the learned judge ruled that such evidence was inadmissible.. It was urged, on the part of the defendant, that the plaintiff could not recover damages for the loss of his bargain, and that, as the sum paid into court exceeded the expenses which he had been put to, the defendant was entitled to the verdict.. On looking into the title, the defendant could not make it out, but offered the plaintiff his election, either to take the title with all its faults, or to receive back the deposit with interest and costs, but the plaintiff insisted on a further sum for damages in the loss of so good a bargain.. Upon a contract for a purchase, if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think that the purchaser can be entitled to any damages for the fancied goodness of the bargain which he supposes he has lost".. In contracts of that description there is no warranty of title, but merely a condition annexed, that, if the vendor is not able to make a good title, the contract shall be at an end".. Upon a subsequent examination of the abstract with the deeds, the vendee discovered that the title was defective, and thereupon the sub-purchasers refused to complete their purchases, and he also refused to complete his purchase, and brought an action, wherein he claimed as damages the expense which he had incurred in the investigation of the title, the profit which would have accrued from the resale of the property, the expense attending the resale, and the sums he was liable to pay to the sub-contractors for the expenses incurred by them in examining the title.. There is a broad distinction between the case of a party who contracts to sell an estate, subject to an inquiry as to title, and the case of a person who, having no title whatever, sells with warranty of title.. & C. 31), the defendant, who had contracted for the purchase of an estate, but had not obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a conveyance to him; and it was held, that a purchaser of certain lots at the auction, might, in an action for not making a good title, recover not only the expenses which he had incurred, but also damages for the loss which he sustained by not having the contract carried into effect.. In all cases of vendor and purchaser, there is an implied agreement that the vendor will take his chance of the title turning out good, and for that reason damages are not recoverable.. It was there held, that contracts for the sale of real estate are merely on condition that the vendor has a good title; so that, when a person contracts to sell real property, there is an implied understanding that, if he fail to make a good title, the only damages recoverable are the expenses which the vendee may be put to in investigating the title.. Therefore the defendant, having undertaken to grant a valid lease, not having any colour of title, must pay the loss which the plaintiff has sustained by not having that for which he contracted.

    Blomgren v. Blomgren - 386 N.W.2d 378

    OPINION. This appeal is from the trial court's findings of fact issued after the remand ordered in Blomgren v. Blomgren, 367 N.W.2d 918 (Minn.Ct.App.1985).. there were no facts presented to this Court justifying any increase of support because of increased needs of the child, such increase to be * * * determined from the prior Court order of 1980 * *.. The financial resources and needs of the child are under present circumstances much improved from the date of the dissolution because at that time the gross income of [Donald Blomgren] was about $10,000 and of [Judith Blomgren] about $4,800, and the homestead valued at $16,000, and as of 1984 the gross income of [Judith Blomgren] is $20,100 and the home of [Judith Blomgren] is valued at $62,000.. We ordered the trial court on remand to make findings as to the cost-of-living adjustments in Donald Blomgren's income and to make an order that complies with the statute.. The trial court found a substantial change in circumstances and granted the mother's motion increasing child support and alimony obligations.. [2] The special concurrence interprets Kiesow v. Kiesow, 270 Minn. 374, 133 N.W.2d 652 (1965), to mean that in certain fact situations the change of circumstances may be measured from the time of the last order denying modification.. In Kiesow the court was presented with motions to modify child support and alimony.. annotation quoted in the special concurrence, all support the rule that the change of circumstances is to be measured from the time of the last modification.

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