Page:Baker Botts L.L.P. v. ASARCO LLC.pdf/16

136 represent or assist the trustee in carrying out the trustee’s duties.” 11 U. S. C. §§327(a), 330(a) (emphasis added). I agree with the Court that a professional’s defense of a fee application is not a “service” within the meaning of the Code. See. But I agree with the Government that compensation for fee-defense work “is properly viewed as part of the compensation for the underlying services in [a] bankruptcy proceeding.” Brief for United States as Amicus Curiae 25. In my view, when a bankruptcy court determines “reasonable compensation,” it may take into account the expenses that a professional has incurred in defending his or her application for fees.

The Bankruptcy Code affords courts broad discretion to decide what constitutes “reasonable compensation.” The Code provides that a “court shall consider the nature, the extent, and the value of … services [rendered], taking into account all relevant factors.” §330(a)(3) (emphasis added). Cf. Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) (“re-emphasiz[ing a trial court’s] discretion in determining the amount of a fee award,” which “is appropriate in view of the [trial] court’s superior understanding of the litigation”). I would hold that it is within a bankruptcy court’s discretion to consider as “relevant factors” the cost and effort that a professional has reasonably expended in order to recover his or her fees.

Where a statute provides for reasonable fees, a court may take into account factors other than hours and hourly rates. Perdue v. Kenny A., 559 U. S. 542, 551–557 (2010). For instance, “an enhancement” to attorney’s fees “may be appropriate if the attorney’s performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted.” Id., at 555. And “there may be extraordinary circumstances in which an attorney’s performance involves exceptional delay in the payment of fees” that justify addi-