 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2013              Decided June 11, 2013
                          _______

                       No. 12-5106

                     KEVIN D. WEST,
                      APPELLANT

                             v.

   JOHN E. POTTER, POSTMASTER GENERAL, U.S. POSTAL
                       SERVICE,
                       APPELLEE
                       _______

        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:05-cv-01339)
                         _______

     Teresa W. Murray argued the cause and filed the briefs
for appellant.

    Richard T. Seymour, Jonathan C. Puth, and Lenore C.
Garon were on the brief of amici curiae Metropolitan
Washington Employment Lawyers Association, et al. in
support of appellant.

    Rhonda C. Fields, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence and Alan
Burch, Assistant U.S. Attorneys.
                               2
    Before: TATEL, Circuit Judge, WILLIAMS and SENTELLE,
Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

   Concurring opinion filed by Senior Circuit Judge
WILLIAMS.

     SENTELLE, Senior Circuit Judge: This case comes before
us on Appellant Kevin D. West’s appeal of the district court’s
order refusing to award him any compensation for delayed
payment of attorney’s fees after his successful Title VII
lawsuit against his employer, the United States Postal Service.
Although the district court had discretion not to compensate
for delay, it applied the wrong legal standard in exercising
that discretion. Accordingly, we vacate and remand for the
district court to determine, under the correct legal standards,
whether compensation for delay is appropriate and, if so, by
what means.

                     I.    BACKGROUND

     West sued USPS, claiming racial discrimination,
retaliation, and hostile work environment. On March 14,
2008, a jury returned a verdict in West’s favor on some of the
retaliation claims and awarded him $90,000 plus costs.
West’s attorney presumably knew when she took his case on
that she would likely not receive any attorney’s fees unless
West eventually won, which meant that there would probably
be a significant delay between the time she rendered legal
services to West and the time that she finally received
compensation for those services. Compensation received
years after services are rendered is less valuable than the same
dollar amount received promptly. Copeland v. Marshall, 641
                              3
F.2d 880, 893 (D.C. Cir. 1980) (en banc) (“[P]ayment today
for services rendered long in the past deprives the eventual
recipient of the value of the use of the money in the
meantime, which use, particularly in an inflationary era, is
valuable.”). To compensate for this lost value caused by
delayed payment, West’s motion for attorney’s fees requested
that the district court base his fee award on his attorney’s
higher current rates instead of the rates she charged at the
time legal services were rendered.

     The district court referred the attorney’s fees issue to a
United States magistrate judge, who recommended that
West’s attorney’s fees be calculated based on historic rates
and that his recovery should be limited to 75% to reflect
West’s partial success on the merits. West objected to the
magistrate judge’s Report and Recommendation, but while it
was pending, he also filed an emergency motion for interim
attorney’s fees. Ten days later, the district court adopted the
magistrate judge’s Report and Recommendation.

     The district court granted West’s emergency motion for
interim attorney’s fees in part. Although the parties still
disputed the amount of fees due to West, the district court
awarded immediate payment of the undisputed amount—
$255,915 (later increased by $23,906 to correct a math
error)—noting that under the circumstances, it was better to
require “the payment of an amount that is not disputed as
quickly as possible rather than to delay the resolution of the
parties’ dispute regarding interim fees at this time.” It added
that “there will be an opportunity to adjudicate the difference
when a final attorneys’ fee award is made.” Order 1, n.1, Jan.
13, 2010, ECF No. 132.

    On December 21, 2011, the parties filed a status report,
which provided that “there are no outstanding issues which
                              4
need to be resolved by the Court.” The district court
responded with an order “GRANT[ING] in part and
DEN[YING] in part as directed in previous orders on the
docket” West’s motion for an award of attorney’s fees. The
order stated that “the parties have informed the court that
there are no outstanding issues to be resolved in this case.”
Order, Jan. 1, 2012, ECF No. 176.

     West moved for reconsideration, requesting that the
district court allow the parties more time to finalize a
stipulated settlement agreement. After the parties filed their
stipulated settlement agreement, the district court issued a
revised supplemental judgment, which explained:

       The court retained jurisdiction of the case to resolve
       post-judgment issues related to equitable remedies and
       attorney’s fees. On December 1, 2011, the court
       resolved the remaining equitable issues and directed
       the parties to confer regarding any pending disputes.
       Order [#169] at 15-16. The parties informed the court
       that there were no outstanding issues to be resolved in
       this case and the court entered a supplemental
       judgment on January 4, 2011 [Docket No. 176].
       Although there does not appear to have been any
       impediment to timely filing a notice of appeal related
       to any pre-judgment attorney’s fees issues, Plaintiff
       moved to vacate the supplemental judgment pending
       the filing of the present agreement regarding post-
       judgment attorney’s fees issues [Docket No. 177;
       Filed January 20, 2012].          While this revised
       supplemental judgment is arguably unnecessary, IT IS
       HEREBY ORDERED as follows: (1) Plaintiff’s
       Motion for Reconsideration [Docket No. 177] is
       GRANTED. (2) Plaintiff’s Motion for an Award of
       Attorney’s Fees [Docket No. 66] is GRANTED in part
                              5
       and DENIED in part as directed in previous orders on
       the docket. Any remaining portion of the Motion is
       DENIED as moot pursuant to the parties’ agreement
       [Docket No. 178]. . . . This case shall remain closed.

Revised Supplemental J. 1, Feb. 10, 2012, ECF No. 179.
West appealed.

                       II.   DISCUSSION

                                  A.

     As always, before proceeding to the merits of this case,
we must assure ourselves that we have jurisdiction to consider
them. The Postmaster argues that we lack jurisdiction
because the district court has not yet set a final amount of
attorney’s fees to be awarded. See Gilda Marx, Inc. v.
Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996)
(holding that a decision awarding attorney’s fees is not
reviewable until the district court has set the amount to be
awarded). The district court specified that its interim
attorney’s fees award was non-final, and it never awarded any
other amount of fees. Therefore, the argument goes, no final
amount of attorney’s fees was ever set in the court below.
While appellee’s argument is certainly not frivolous, we
ultimately disagree.

     Before issuing its revised supplemental judgment, the
district court asked both parties whether any issues remained
to be resolved, and both responded that none remained. In its
revised supplemental judgment, the district court reentered the
interim attorney’s fees award as a final award of fees. It even
added a sentence denying any remaining portion of West’s
motion for attorney’s fees as moot and declared the case
closed. Accordingly, the interim attorney’s fees award
                               6
became final after the district court issued its revised
supplemental judgment, and we have jurisdiction to hear this
case.

     Given West’s representation to the district court that the
interim fees award resolved all outstanding issues pertaining
to attorney’s fees, West may well have waived any argument
regarding the proper computation of fees at historic rates, an
issue arguably left open by the interim fees award. See Order
1, n.1, Jan. 13, 2010, ECF No. 132 (noting that “there will be
an opportunity to adjudicate the difference” in the requested
fee awards “when a final attorneys’ fee award is made”). But
West’s challenge on appeal is instead to the use of historic
rather than current rates to calculate the attorney’s fee award,
an issue resolved by the district court’s adoption of the
magistrate judge’s Report and Recommendation and not
reopened by the interim fees award.

                              B.

     Proceeding to the merits, West argues that the district
court was required to award him attorney’s fees calculated at
current rates to compensate him for delayed payment. The
Postmaster argues that the district court did not abuse its
discretion by refusing to award the current rates because West
failed to meet his burden to show that his request resulted in a
reasonable attorney’s fees award. We review attorney’s fees
awards for abuse of discretion, Covington v. District of
Columbia, 57 F.3d 1101, 1110 (D.C. Cir. 1995), but we
review questions of law decided in the process of determining
an award de novo, Almerfedi v. Obama, 654 F.3d 1, 5 (D.C.
Cir. 2011).

    The reasoning supporting the district court’s decision to
use historic rates and to provide no compensation for delayed
                                  7
payment is found in the magistrate judge’s Report and
Recommendation that the district court accepted before
entering the interim fee award. The magistrate judge refused
to compensate for delay not because he believed current rates
to be an inappropriate means of compensation and the only
one West requested. Instead, he concluded that because the
delay was neither “unusually long” for a Title VII case nor
occasioned by “dilatory or stalling conduct” on the part of the
defendant, no compensation for delay was appropriate.
Report and Recommendation 16, Oct. 13, 2009, ECF No. 110.
In so concluding, the magistrate judge applied the wrong
standard for evaluating whether compensation for delayed
payment of attorney’s fees is necessary.

     Title VII provides that prevailing parties may recover a
“reasonable attorney’s fee as part of the costs.” 42 U.S.C.
§ 2000e-5(k). A reasonable fee is one that is “adequate to
attract competent counsel, but that does not produce windfalls
to attorneys.” Blum v. Stenson, 465 U.S. 886, 897 (1984).
The Supreme Court has held that there is a strong
presumption that the fee yielded by the now-ubiquitous
“lodestar” method, which bases fees on the prevailing market
rates in the relevant community, is reasonable. Perdue v.
Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010) (quoting
City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). But
in Title VII cases like this one, attorneys are often not paid
until long after services are rendered, and “payment today for
services rendered long in the past deprives the eventual
recipient of the value of the use of the money in the
meantime, which use, particularly in an inflationary era, is
valuable.” 1 Copeland, 641 F.2d at 893. Accordingly, the


1
  We recognize that the language of prior decisions referring to the
“inflationary era” is no longer applicable, which may affect the trial
                               8
Supreme Court has held that “an enhancement for delay in
payment is, where appropriate, part of a reasonable attorney’s
fee.” Missouri v. Jenkins, 491 U.S. 274, 282 (1989) (internal
quotation marks omitted). If compensation for delay is
necessary to provide a reasonable fee, it may be made “either
by basing the award on current rates or by adjusting the fee
based on historical rates to reflect its present value.” Perdue,
130 S. Ct. at 1675 (internal quotation marks omitted). For
example, instead of using current rates, courts may also
compensate for delay by adding interest to the historic rate so
that the amount paid today reflects the approximate value of
the historical rates charged at the time services were rendered.
Cf. 42 U.S.C. § 2000e-16(d) (making interest available in
Title VII litigation).

     As noted above, the magistrate judge recited as factors in
his refusal to provide compensation for delay in payment that
the delay was neither unusually long nor attributable to the
defendant’s dilatory or stalling conduct. While these may be
appropriate factors to consider in whether to award an
adjustment for delay, neither we nor the Supreme Court have
deemed them exclusive. See Action on Smoking and Health v.
Civil Aeronautics Bd., 724 F.2d 211, 219 (D.C. Cir. 1988)
(compensating for delayed payment of fees where a
significant part of the four-year delay was attributable to “the
[defendant’s] six requests for stays”). It appears that the
magistrate judge may have thought them necessary rather than
sufficient. We are not suggesting that they are inappropriate
factors, but we are returning the question to the district court
for resolution of an appropriate adjustment, if any, based on
the delay without the apparent assumption that none could be
made in the absence of the enumerated factors.


court’s determination on remand of the appropriateness or the
appropriate level of compensation for the delay in payment.
                              9

    We do not hold that compensation for delay is always
necessary in Title VII cases. The magistrate judge may have
had discretion not to compensate for delay at all. By way of
example, and not exhaustion, if he determined that West’s
counsel had anticipated the delayed payment and built
compensation for that delay into the lodestar figure, he might
have held no further compensation necessary. See Copeland,
641 F.2d at 893 n.23. Or a brief delay in payment might not
warrant any adjustment for the lost value of money. Rulings
such as these we would review for abuse of discretion. But
the magistrate judge appears to have treated the two factors
discussed above as necessary to time delay enhancement
when they were at most relevant factors.

                     III.   CONCLUSION

    Accordingly, we vacate and remand for the district court
to determine, under the correct legal standards, whether
compensation for delay is appropriate and, if so, by what
means.

                                                  So ordered.
     WILLIAMS, Senior Circuit Judge, concurring: I concur
fully in the court’s opinion, and write separately only to note
problems with the assumption that an award of current rates is
a suitable means for compensating counsel for delay in the
payment of fees.

    A number of variables are relevant. Three simple
examples will illustrate some basic problems. In two, use of
current rates may undercompensate; in the third, it may
overcompensate.

     First, suppose that over the relevant period there has been
zero general price inflation, no price inflation has been
expected,1 and lawyers’ compensation has, along with average
prices, been flat. In such a case current rates will simply be
the same as the historic rates. On these facts, use of current
rates will not in fact compensate for delay in payment.

     Second, assume now there has been general price
inflation and that lawyers’ compensation has moved exactly in
tandem with the CPI. While use of current rates would
compensate for inflation, it would not compensate for the
delay in payment. In economic substance, the results are the
same as in the first case.

     Third, assume the existence of general price inflation (in
line with expected inflation) and a considerably higher rate of
increase in lawyers’ compensation. This in fact appears to
have been the case in the 25 years from 1987 to 2012, with an
increase in lawyers’ remuneration roughly twice the increase

     1
        Long-run nominal interest rates are a function of real interest
rates and expected inflation. Of course expected inflation may
differ from realized inflation. I’m telescoping the two for
simplicity’s sake.
                              2

in prices generally. See http://metricmash.com/349k (last
visited May 29, 2013). In such a case, obviously, use of
current rates may well overcompensate the lawyer, giving him
high pay for work performed in a period of (relatively) modest
compensation.

    Further complication is added if the individual lawyer in
question is able in the later period to command higher rates
than before, in line with growing experience and reputation.
Of course the lawyer’s work will often be spread over several
years, and thus command varying rates over the periods
performed. Compensation at current rates for the entire
period would compensate a relatively junior attorney at more
than he or she would have commanded in the earlier period(s).

     Accordingly, although one can certainly construct a case
where use of current rates would yield a figure giving roughly
correct compensation for delay, there is no general principle
supporting such use. Given the complications in assessing the
suitability of using current rates, plus the improvements in
ability to secure interest rate data and to make the
computations necessary for straightforward addition of
interest, I suspect it will in most and perhaps all cases be
easier and more accurate for courts, when they believe that it
is suitable to compensate for delay, to do so simply by
awarding interest at the nominal rate(s) prevailing over the
period(s) of delay.
