account where it will accumulate interest, and be held until the decision in King v. Palmer, en banc.
In light of the Court of Appeals' decision to vacate King v. Palmer, this Court finds that a 100-percent enhancement of plaintiff Allen's fees is no longer appropriate. Therefore, the Court vacates the portion of its October 25, 1990 Order awarding the plaintiff a 100-percent enhancement.
Nonetheless, the case law in this circuit still supports a contingency enhancement award. In McKenzie v. Kennickell, 277 U.S. App. D.C. 297, 875 F.2d 330 (D.C. Cir. 1989), the Court of Appeals upheld a 50-percent contingency enhancement in a Title VII action against the government. The Court adopted Justice O'Connor's two part test in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 97 L. Ed. 2d 585, 107 S. Ct. 3078 (1987), as the standard to determine whether a contingency enhancement is appropriate. This Court has determined previously that under the Delaware Valley II test, plaintiff Allen is entitled to a contingency enhancement. Therefore, under McKenzie v. Kennickell, 277 U.S. App. D.C. 297, 875 F.2d 330 (D.C. Cir. 1989), a 50-percent enhancement is appropriate at this time.
The defendants suggest that the Court of Appeals notice of rehearing in King en banc evinces an intention to revisit the McKenzie decision. It may be the Court of Appeals' intent to reexamine some of the issues decided in McKenzie, id. However, this Court cannot divine the outcome of such reexamination, and the Court, therefore, is guided by the law as it stands presently.
This Court also denies the defendants' request to stay any determination of the contingency enhancement issue until after the Court of Appeals' determination in King en banc. Delay in payment of the award injures the plaintiff because interest on the award is not recoverable from the government. A final determination of King en banc may take several months. The plaintiff will be robbed of the investment value of the contingency award for this time period if this Court stays the determination of the contingency enhancement issue.
Furthermore, the Court refuses the suggestion of placing the contingency enhancement award in an interest-earning escrow account. To do so would deny the plaintiff immediate access and use of the award; and the plaintiff's attorney has demonstrated an immediate need of payment. The Court believes that under the circumstances, a delay in payment would be inequitable.
Finally, in making this award, the Court notes that neither party is without future recourse. If the Court of Appeals' determination in King en banc changes the law of contingency enhancement awards as applied in this circuit, either party may motion this Court to reconsider this Order.
Therefore, upon consideration of the defendants' Motion For Reconsideration of Order and Partial Stay of Proceedings; the plaintiff's Opposition; the defendants' Reply; and the entire record, this Court vacates its earlier award of a 100-percent contingency enhancement of attorney's fees, and awards the plaintiff a 50-percent enhancement, or $ 8,762.75.
ORDER - December 11, 1990, Filed
Upon consideration of the defendants' Motion For Reconsideration of Order and Partial Stay of Proceedings; the plaintiff's Opposition; the defendants' Reply; the entire record; and for the reasons set forth in the accompanying memorandum, it is by the Court this 11th day of December 1990,
ORDERED that the portion of this Court's Order dated October 25, 1990, awarding plaintiff Mark Allen a 100-percent contingency enhancement of a portion of the attorney's fees award is vacated; it is further
ORDERED that the plaintiff is awarded a 50-percent contingency enhancement of the same portion of the attorney's fees award, in the amount of $ 8,762.75; and it is further
ORDERED that the defendants pay this amount to the plaintiff within the 60 days specified in the Court's October 25, 1990 Order.
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