Unpublished Dispositionleonard J. Brooks, M.c., Plaintiff-appellant, v. Lamar Alexander, Governor of the State of Tennessee, Andwilliam Leech, Attorney General of the State Oftennessee, Defendants-appellees, 829 F.2d 38 (6th Cir. 1987)

This case is remanded by the Supreme Court for further consideration in light of Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. ---- (1987). This Court had affirmed the District Court's award of attorney fees except with respect to its failure to apply an upward adjustment because the fee was contingent on plaintiff's success, and its failure to consider whether there should be an adjustment in hourly rates because of the unpopularity of the cause.

In Delaware Valley the Court held that Section 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d), did not permit an enhancement to compensate for contingency. The Court's ruling applies to other fee-shifting statutes including 42 U.S.C. § 1988, which both the majority and dissenters discuss.

We, therefore, affirm the District Court's failure or refusal to adjust the fee upwards because of its contingent nature. We again affirm the District Court in all other respects except for its failure to consider, or if it did consider, to state that it had done so, the unpopularity of plaintiff's cause. The case is remanded to the District Court for consideration of the unpopularity factor. The judgment is affirmed in all other respects.