concurring and dissenting:
While I concur in most of the opinion by the court, because I believe the district court properly decided, within the range of its discretion, the issue of attorneys’ fees, I respectfully dissent from Part II thereof.
The majority’s criticism of the district court’s decision focuses on its “sole reliance on the amount of monetary recovery” as the basis for formulating the amount of attorneys’ fees to be awarded,1 and the court reverses because the district court should have considered a number of other factors enunciated in Disciplinary Rule 2-106(B), ABA Code of Professional Responsibility. But, while such consideration might be proper or even advisable in the usual case, I do not believe that it should stand as an absolute prerequisite which demands reversal of the district court under these circumstances.
No one disputes that the sole basis for the award of attorneys’ fees in this case is 20 U.S.C. § 1617.2 That section gives the dis*1207trict court discretionary power to give attorneys’ fees to the prevailing party. Here, there were a number of plaintiffs with a number of claims; however, while several', plaintiffs failed, the detailed statement of hours worked failed to delineate between the time spent for the successful, as opposed to the unsuccessful, parties. For this, if for no other reason, the majority’s concern over the low hourly rate reached when the total number of hours spent is divided into the total attorneys’ fees awarded is unpersuasive.3 The fact that the United States was the principal plaintiff and carried the principal burden also should be taken into account.
I think the district court’s formulation of the amount of attorneys’ fees, linked as it was to a party’s recovery, was rationally designed to gauge the services actually rendered on behalf of the prevailing parties. I also think the district court did not fail to consider, as the majority intimates, the involvement of the issue concerning the right to reinstatement. In the case of the plaintiff Howell, for example, the only plaintiff to gain reinstatement, the court awarded fees equal to 25% of his damages, while the award for the remaining plaintiffs, who did not gain reinstatement,4 was only 20% of their damages.
. In its opinion, the district court states that “ . . . the Court is of the opinion that attorneys’ fees in the sum of twenty (20) percent of the stated settlements should now be paid to counsel for the named plaintiffs in No. 472-71-N. With respect to Howpll, who is a named plaintiff deemed entitled to recover as hereinafter stated, the Court allows" twenty-five (25) percent in addition to the damage recovery.”
. “Upon the entry of a final order by a court of the United States against a local education agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this chapter or for discrimination on the basis of race, color, or national origin in violation of title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
. The only hours which are pertinent to the award of fees under § 1617 are those worked on behalf of prevailing plaintiffs.
. The district court stated, in its opinion, “And, with the exception of Howell whose case was not settled, we assume further that the settling plaintiffs, have waived any right to reinstatement although the terms of the settlements as stated in open court make no reference to the reinstatement.”