Lloyd N. Cutler, Washington, D. C., also entered an appearance for appellees.

Lutz A. Prager, Washington, D. C., for amicus curiae, Equal Employment Opportunity Commission.

Charles R. Halpern, Washington, D. C., was on brief for amici curiae, American Civil Liberties Union, et al.

David M. Dorsen, Richard Seymour, Richard S. Kohn, Roderic V. O. Boggs, and Ann K. Macrory, Washington, D. C., were on brief for amicus curiae, Lawyers' Committee for Civil Rights Under Law.

James M. Nabrit III, Charles Stephen Ralston, Bill Lann Lee, and Eric Schnapper, New York City, were on brief for amicus curiae, NAACP Legal Defense and Educational Fund, Inc.

Bruce J. Terris, Washington, D. C., was on brief for amicus curiae, Law Office of Bruce J. Terris.

James R. Richards, Washington, D. C., was on brief for amicus curiae, Capital Legal Foundation.

Before WRIGHT, Chief Judge, and McGOWAN, TAMM, LEVENTHAL,* ROBINSON, MacKINNON, ROBB, WILKEY and MIKVA, Circuit Judges.

Opinion filed by Circuit Judge McGOWAN, in which Chief Judge WRIGHT and Circuit Judges SPOTTSWOOD W. ROBINSON, III, MacKINNON, ROBB and MIKVA join.

Opinion concurring filed by Circuit Judge MacKINNON, in which Circuit Judge ROBB joins.

Opinion dissenting filed by Circuit Judge WILKEY, in which Circuit Judge TAMM joins.

The court en banc has before it for review an order of the District Court awarding an attorney's fee of $160,000 for the successful prosecution of a gender-discrimination class suit against the United States Department of Labor.1 A panel of this court earlier reversed the District Court's award and remanded for reconsideration under the novel standards described in its opinion (Copeland I ).2 The panel denied rehearing, but issued a second opinion (Copeland II )3 clarifying the first. We granted rehearing en banc.4

At issue in this appeal are (1) the standards to be applied in awarding attorney's fees in Title VII suits against the government, and (2) the reasonableness of the District Court's fee award in this case. For the reasons set forth below, we affirm the District Court's award.

* We cannot determine whether the District Court's fee award was reasonable without examining in some detail the history of this employment discrimination litigation. This chronicle is necessarily lengthy because the lawsuit involved numerous and complex proceedings and maneuverings. We think the very intricacy of the litigation-which was a product, in part, of the government's vigorous and long-continued resistance to the claim asserted against it-is highly relevant to the reasonableness of the fee award.

Appellee Dolores Copeland, a black woman trained in data processing, joined the Department of Labor (the Department) in 1967. She worked for several years in the Department's Directorate of Data Automation and its predecessor unit (the Directorate) as a GS-13 computer specialist. Copeland thought that her supervisors were unfairly denying her training, promotions, and interesting work. Moreover, she believed that other female Directorate employees were treated similarly.

Pursuant to regulations, Copeland explained her suspicions to a Department Equal Employment Opportunity (EEO) counselor in April, 1973, but no action was taken. She therefore formally complained of discrimination in June. Between July and September, 1973, the Department investigated her complaint. Copeland filed comments and criticisms with respect to the investigation and report.

The Department reopened its investigation in November, and submitted supplemental reports in January and February, 1974. Copeland thought that this supplemental investigation also was inadequate, and therefore began her own investigation. She interviewed numerous current and former Directorate employees, and sought affidavits that would support her allegations of discrimination. In April, 1974, Copeland submitted her findings, and her comments on the Department's supplemental investigation, to the EEO Director.

Assistant Secretary Fred G. Clark submitted his proposed disposition of the complaint in June, 1974. That disposition would have removed all adverse references from her personnel file, but it proposed no other significant relief.

Copeland, still dissatisfied, requested a formal hearing. Her file was sent to the Civil Service Commission for that purpose, but no hearing was held. The file was returned to the Labor Department without explanation.

Assistant Secretary Clark resubmitted his proposed disposition of Copeland's complaint in September, 1974. According to Copeland, she was assured that because she had already requested a hearing, she need not repeat that request.

No hearing was held, however, and the Department issued its final decision on November 7, 1974. The final decision conceded "that a pattern of sex discrimination exists" in the Directorate, and that such discrimination "manifests itself in the lack of leadership responsibility assignments given to qualified women professionals." The decision, however, denied that the Department's refusal to promote Copeland resulted from sex discrimination and asserted that Copeland's personal disagreements with her supervisors were the true cause of her grievances.

The Department in its decision agreed, inter alia, to (1) consider her fairly for future work assignments; (2) clarify her responsibilities and objectively assess her performance of them, (3) expunge adverse evaluations from her personnel file, and (4) monitor future promotion decisions to insure fair treatment for her and other minority employees and women. The Department did not, however, offer retroactive promotion and back pay, or priority consideration for future promotions.

The Department sent Copeland a copy of its decision. However, Copeland's attorneys were not served with a copy, in violation of Department regulations.

Copeland filed this class suit in the District Court on December 13, 1974. The complaint, as amended, alleged three gender discrimination counts, namely, violations of (1) Title VII of the Civil Rights Act of 1964, (2) Executive Order 11478, and (3) rights under the first and fifth amendments to the constitution and 42 U.S.C. section 1985. The complaint also alleged a count of race discrimination under the first and fifth amendments and 42 U.S.C. sections 1981 and 1985.

1. The Government's Motion for Judgment on the Pleadings

The government promptly moved for judgment on the pleadings under a variety of theories. Judgment on the Title VII count was sought because the suit was filed 31 days after Copeland received notice of the final agency decision, not within the 30-day period established by statute. See 42 U.S.C. § 2000e-16(c) (1976). The District Court held, however, that the government's failure to serve Copeland's attorneys with the agency decision tolled the running of the 30-day period.5

2. The Government's Opposition to Class Certification

Copeland next moved that she represent a class of all past, present, and future female data processing employees in the Directorate. The government, however, moved to remand the case to the Civil Service Commission for additional hearings and, in the alternative, opposed class certification for a variety of reasons.

The District Court denied the motion to remand. The court also certified the case as a class suit, covering all females employed by the Directorate in data processing positions after June 11, 1971.

Copeland's attorneys meanwhile had propounded a congeries of discovery requests, including interrogatories and requests for production of documents. These discovery requests prompted an acrimonious flurry between the plaintiff class (plaintiff) and the defendant.

The government initially did not comply with these requests. Plaintiff moved to compel discovery. The government then answered some of the interrogatories, but objected to certain others that it thought called for privileged information. The government, accordingly, opposed the motion to compel.

Plaintiff pointed out to the court that the Department had destroyed certain relevant documents6 and that, in any event, the government's responses to many interrogatories were inadequate. The question of the adequacy of the government's response to discovery requests generally was ultimately resolved by negotiation.

Meanwhile, the government had initiated discovery of its own. The government propounded interrogatories, requested documents, and took depositions. Plaintiff continued the discovery battle by noticing the deposition of an Assistant Secretary of Labor. The government moved for a protective order; this motion was denied.

Discovery continued for several additional weeks. Plaintiff answered defendant's numerous interrogatories, served additional interrogatories of its own, and noticed further depositions. The government again sought a protective order; the District Court ordered the government to supply any requested documents and information that were relevant and nonprivileged.

The District Court all along had envisioned that discovery would be completed in time for the liability trial to begin February 16, 1976. The government, however, asked in January for a one-month delay in trial, in part "due to the extreme complexity of the issues and evidence in the case."7 The District Judge, however, insisted that parties promptly finish discovery and prepare for the liability trial on February 16 as originally planned.

Plaintiff orally complained to the court on January 26 about additional discovery difficulties. Plaintiff alleged that the government failed to identify and produce certain highly relevant documents, and requested that the court grant judgment on the merits as the sanction for nondisclosure.

Plaintiff has ample ground to complain. Her systematic discovery efforts initiated months ago have been impeded unnecessarily and she has been forced to expend time and effort to fill in gaps in the proof which the documents would have largely avoided had they been produced as they should have been.

The court nevertheless denied the motion for sanctions, without prejudice, "as representing too extreme a sanction on the basis of facts presently available." The parties at this point continued to plan for a February 16 trial.

Instead of going to trial, however, the parties settled the liability issue. Now three years after Copeland first complained of discrimination, the government finally conceded that the Directorate had

subjected (Copeland) and the other members of the class to sex-based discrimination in assignments, training, performance evaluations, promotions and working conditions, all in violation of Title VII ....8

The government also agreed to develop and put into effect a court-approved affirmative action program.9

The stipulation provided for a trial on relief to each of the individual plaintiffs. In those trials, the government would carry the burden of proving that the conceded sex discrimination had not "monetarily or otherwise" affected the particular plaintiff.

5. Trial on Copeland's Claim for Retroactive Promotion and Back Pay

Shortly after the government stipulated it had discriminated on the basis of sex, a six-day trial ensued on the relief vel non due plaintiff Copeland. The government contended that Copeland in any event would not have been promoted to GS-14, because Copeland's failure to receive promotions and training was attributable to her poor work, lack of qualifications, and personality problems.

The District Court found, however, that the government had failed to prove that sex discrimination did not play a part in Copeland's lack of advancement. The court, accordingly, awarded her a promotion to GS-14 and $6,169.80 in back pay. The court also ordered the Department to provide Copeland with training and assignments commensurate with her position.

6. Litigation Before a Special Master on Retroactive Promotion and Back Pay for Other Class Members

The parties stipulated to the appointment of a Special Master to receive evidence and report to the District Court on the relief due the other members of the class.

Each side initiated a new round of discovery on the issues presented to the Special Master. Plaintiff propounded additional interrogatories, requested admissions from defendant, and noticed further depositions. Defendant also propounded more interrogatories, requested admissions, and sought more documents.

After this substantial additional discovery, the parties settled the remaining individual claims. The settlements generally required promotions, back pay, the opportunity to participate in a training program, or some combination of the above. Approximately $33,000 in back pay was obtained.

Meanwhile, the parties haggled over the terms of the affirmative action program. The government proposed a plan; plaintiff criticized it as inadequate. The District Court held a hearing to discuss problems with the government's plan.10

Plaintiff later proposed its own affirmative action program. The government criticized it, and the District Court held another hearing.11 The following day, the District Court ordered the parties to negotiate a mutually satisfactory plan, using defendant's draft as the starting point, but incorporating various modifications sought by plaintiff.12 On August 1, 1976, the District Court approved a 36-page affirmative action plan negotiated by the parties.

8. Plaintiff's Application for an Attorney's Fee

On November 30, plaintiff filed a documented request for costs and an attorney's fee. The documentation revealed that plaintiff's attorneys had spent 3,602 hours on the case and that, if that time were billed at the law firm's customary hourly rates, the legal fee would be about $206,000. In papers filed December 20, 1976, the government opposed "an(y) award even approaching" $206,000. Apparently content to submit the attorney's fee issue to the judge on the papers, the government did not ask the District Court to hold a hearing.

On January 6, 1977, the District Court entered an order awarding a $160,000 fee, an amount approximately 22% less than that envisioned by plaintiff's papers. The order was accompanied by a four-page memorandum analyzing the fee request. The District Court wrote, in pertinent part:

The Secretary apparently believes a fee award in a case of this type should be based primarily upon the monetary results achieved. This is an erroneous approach to the fee problem. While the actual cash awards to individual members of the class were in this instance relatively small in relation to the total fee claim, this was basically an equity action which was intended to and did achieve benefits that cannot be measured solely in monetary terms. The judgment, which has not been appealed, among other things established an entirely new pattern of training and promotion for female employees in an important segment of the Department of Labor which had blatantly discriminated against women. The benefits of the litigation will be felt for many years to come.

While the Secretary now suggests that there were really no serious issues at stake, this is not borne out by the facts. The litigation went forward in a relatively civilized manner but it was hard fought. The Government offered firm, persistent resistance throughout the litigation and concessions developed only as it became apparent there was little prospect of Government success. Indeed, the Government moved to dismiss at the outset, and it opposed discovery. There were many difficulties encountered during the discovery process which were caused, in part, by the Department's inadvertent destruction of certain records contrary to Court direction and the intentional withholding of other documents by some officials of the Department of Labor, as well as by the complexity of the issues.

The 3,602 hours were logged almost entirely by associates of the firm with varying degrees of experience. The average rate of $57.17 an hour is well within the local range for associates of larger firms .... What plaintiffs' counsel lacked in seasoned trial experience was offset by other factors. They were always well prepared, effective and knowledgeable. No time was deliberately wasted and counsel proceeded with full recognition of the congressional directive to expedite litigation of this type.

Billing for legal services, however, should not be a merely mechanical exercise. Where a fee is sought from the United States, which has infinite ability to pay, the Court must scrutinize the claim with particular care. When an application such as this is filed by a large law firm computing a proposed award by use of "customary rates," the firm has obviously made little, if any, effort to exercise billing judgment. Thus an important ingredient is lacking. A reasonable fee can only be fixed by the exercise of judgment, using the mechanical computations simply as a starting point to reach a higher or lower figure. The Court must perform this function.

In considering what is a reasonable fee in this instance a number of factors deserve special mention. The proposed fee absorbs not only expensive overhead such as rent and secretarial services, but no charge has been made for what was undoubtedly a substantial amount of time spent by paralegals who play such a useful role in large documentary cases. On the other hand, there was practically no partner time expended on this case and the associates lacked experienced trial direction. The Court must also take into account the fact that not all of the work proved productive. Some issues which were joined in the complaint were dropped, as were some individual defendants. Taking into account each of the factors itemized in Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C.Cir.1974), including the matters specifically mentioned, the Court has concluded that a reasonable fee in this litigation, weighing the results achieved, the novelty of the issues, the difficulties encountered and the effectiveness of the excellent representation given is $160,000.II

Title VII of the Civil Rights Act of 1964 allows the prevailing party to receive from the loser a reasonable attorney's fee in addition to other relief. The statute provides:

In any action or proceeding under ... (Title VII) the court, in its discretion, may allow the prevailing party, other than the (Equal Employment Opportunity) Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

42 U.S.C. § 2000e-5(k) (1976).

The availability of an attorney's fee encourages individuals injured by discrimination to seek judicial redress.13 As the Supreme Court explained:

When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only.... If (a plaintiff) obtains an injunction, he does so not for himself alone but also as a "private attorney general," vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees not simply to penalize litigants who advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief ....

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02, 88 S.Ct. 964, 966-67, 19 L.Ed.2d 1263 (1968) (footnotes omitted)14; accord, New York Gaslight Club, Inc., v. Carey, 447 U.S. 54, 60-66, 100 S.Ct. 2024, 2029-2032, 64 L.Ed.2d 723 (1980).

Confronted by the explicit language of the statute and its accompanying legislative history, the government in the instant case concedes that plaintiff is entitled to an attorney's fee. Indeed, the parties so stipulated during the course of the lawsuit. At issue in this appeal is whether the District Court's fee award was reasonable.

The Court of Appeals for the Fifth Circuit explained, in general terms, how the fee should be calculated under Title VII in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (1974). In Johnson, the court suggested that district courts base fee awards on the following criteria: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment; (5) the customary fee in the community for similar work; (6) the fixed or contingent nature of the fee; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 717-19.

We recognized the importance of considering the twelve Johnson factors in awarding fees in Evans v. Sheraton Park Hotel, 503 F.2d 177, 187-88 (1974). Many other courts have applied the Johnson factors in subsequent cases, and those factors remain central to any fee award.15

Simply to articulate those twelve factors, however, does not itself conjure up a reasonable dollar figure in the mind of a district court judge. A formula is necessary to translate the relevant factors into terms of dollars and cents. This is particularly true because the twelve factors overlap considerably. For example, largely subsumed under the factor "time and labor required" is an assessment of the "difficulty of the questions." That is so because the more difficult the problem, the longer it will take adequately to solve it. Similarly, the customary hourly fee (Johnson factor # 5) is likely to be influenced by (# 3) the level of skill necessary to perform the services, (# 6) whether the fee is fixed or contingent, (# 7) time limitations, (# 8) the amount to be obtained, (# 9) the reputation of the attorneys, and (# 10) the undesirability of the case.

For these reasons, scholars have noted that the twelve Johnson factors, without more, cannot guarantee a rational setting of fees. One commented:

The fundamental problem with an approach that does no more than assure that the lower courts will consider a plethora of conflicting and at least partially redundant factors is that it provides no analytical framework for their application. It offers no guidance on the relative importance of each factor, whether they are to be applied differently in different contexts, or, indeed, how they are to be applied at all.

Berger, Court Awarded Attorneys' Fees: What is "Reasonable" ?, 126 U.Pa.L.Rev. 281, 286-87 (1977) (footnotes omitted); accord, Dawson, Lawyers and Involuntary Clients in Public Interest Litigation, 88 Harv.L.Rev. 849, 927 & n.327 (1975); Note, Promoting the Vindication of Civil Rights Through the Attorney's Fees Awards Act, 80 Colum.L.Rev. 346, 372-73 & nn. 164-69 (1980).

District court judges for this reason have had difficulty applying the Johnson factors. A common, yet understandable, fault is for the trial judge to make the conclusory statement, "After considering each of the twelve factors in Johnson, I find that a reasonable fee is X dollars." This very often leads to reversal and remand. See, e. g., Gay v. Board of Trustees, 608 F.2d 127, 128 (5th Cir. 1979); Davis v. Fletcher, 598 F.2d 469, 470-71 (5th Cir. 1979).

Appellate courts have recognized that the Johnson factors, despite their substantial conceptual value, also are imprecise.16 Some courts, therefore, have incorporated the twelve factors into an analytical framework that can be easily applied by trial courts and that will make possible meaningful appellate review.

Any fee-setting formula must produce an award sufficient to fulfill the primary purpose of awarding fees in Title VII cases, namely, "to encourage individuals injured by ... discrimination to seek judicial relief." Piggie Park, 390 U.S. at 402, 88 S.Ct. at 966. An award of fees provides an incentive to competent lawyers to undertake Title VII work only if the award adequately compensates attorneys for the amount of work performed. The Court of Appeals for the Third Circuit was the first to develop a fee-setting formula that reflects this principle. In Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (1973) (Lindy I), and its successor case, Lindy II, 540 F.2d 102 (1976) (en banc), the Third Circuit articulated a formula that considered all the relevant factors but eliminated the redundancy and imprecision that many have identified in other fee-setting schemes.

Lindy recognized that the starting point in fee setting-what it characterized as the "lodestar" fee-should be computed by multiplying a reasonable hourly rate by the number of hours reasonably expended on the lawsuit. 487 F.2d at 167. Adjustments in this figure are appropriate, the court recognized, but the "lodestar" provides "the only reasonably objective" starting point for awarding a fee. Id.

In National Treasury Employees Union v. Nixon, 521 F.2d 317 (D.C.Cir. 1975), this court had occasion again to consider fee calculation. We recognized Lindy's important analytical contribution to the inquiry, and we adopted its framework for use in this circuit. We said:

The inquiry begins with a determination of the time devoted to the litigation. This figure in turn is multiplied by an hourly rate for each attorney's work component, a rate which presumably would take into account the attorney's legal reputation and experience. The resulting figure represents an important starting point because it "provides the only objective basis for valuing an attorney's services" (citing Lindy ).

Id. at 322 (footnote omitted).

Myriad cases involving court-awarded fees continue to come before the district court judges and, ultimately, before this court.17 We therefore take this opportunity en banc to elaborate, to a greater extent than we have in the past, on the appropriate mechanism for calculating an attorney's fee pursuant to statutes like Title VII.

A. The "Lodestar"

Any fee-setting inquiry begins with the "lodestar": the number of hours reasonably expended multiplied by a reasonable hourly rate. The figure generated by that computation is the basic fee from which a trial court judge should work. We examine below some of the problems that arise in calculating the "lodestar."

The fundamental purpose of the fee award is to compensate the attorney for his efforts. The first task for the trial court judge, therefore, is determining the amount of time reasonably expended.

When a law firm seeks a fee, it should document the amount of work performed. The District Court then will be able to do more than merely lump together all the hours spent by the various attorneys associated with the enterprise; the judge instead can segregate into categories the kinds of work performed by each participating attorney. This project need not be unduly burdensome:

It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e. g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e. g., senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought.

Lindy I, 487 F.2d at 167.

Compiling raw totals of hours spent, however, does not complete the inquiry. It does not follow that the amount of time actually expended is the amount of time reasonably expended. In the private sector, "billing judgment" is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority. Thus, no compensation is due for nonproductive time. For example, where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time. Similarly, no compensation should be paid for time spent litigating claims upon which the party seeking the fee did not ultimately prevail.18

At this point in the computation, the District Judge might usefully construct a table that looks something like this example.

Attorney & Type of Work                 Hours
-----------------------                 -----
Senior Partner: Court Appearances       17.3
Senior Partner: Review of pleadings     39.2
Junior Associate: Research & drafting   87.6
Junior Associate: Depositions           35.5

The remaining element in fixing a "lodestar" fee is the reasonable hourly rate.

The reasonable hourly rate is that prevailing in the community for similar work.19 As we noted a reasonable hourly rate is the product of a multiplicity of factors. Evans itself listed several of the relevant considerations: the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney's reputation, and the undesirability of the case. See Evans, 503 F.2d at 187-88. It follows that there may be more than one reasonable hourly rate for each of the attorneys, and for each of the kinds of work, involved in the litigation. After receiving documentation and other submissions,20 and perhaps holding a hearing,21 the trial judge might complete the fee table in the following manner.

Thus, the "lodestar" fee in this hypothetical is $9,899.50.

B. Adjustments to the "Lodestar"

The "lodestar" fee may be adjusted to reflect other factors. We discuss herein those applicable in Title VII and similar fee-setting cases.22 The burden of justifying any deviation from the "lodestar" rests on the party proposing the deviation. Lindy II, 540 F.2d at 118.

Under statutes like Title VII, only the prevailing party is eligible for a court-awarded fee. An attorney contemplating representation of a Title VII plaintiff must recognize that no fee will be forthcoming unless the litigation is successful. An adjustment in the lodestar, therefore, may be appropriate to compensate for the risk that the lawsuit would be unsuccessful and that no fee at all would be obtained.

It is important to recognize that the contingency adjustment is designed solely to compensate for the possibility at the outset that the litigation would be unsuccessful and that no fee would be obtained. Contingency adjustments of this sort are entirely unrelated to the "contingent fee" arrangements that are typical in plaintiffs' tort representation. In tort suits, an attorney might receive one-third of whatever amount the plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery. Such is not the case in contingency adjustments of the kind we describe herein. The contingency adjustment is a percentage increase in the "lodestar" to reflect the risk that no fee will be obtained. The contingency adjustment is not a percentage increase based on the amount of recovery. Merola v. Atlantic Richfield Co., 515 F.2d 165, 169 (3d Cir. 1975).

To the extent, of course, that an hourly rate underlying the "lodestar" fee itself comprehends an allowance for the contingent nature of the availability of fees in Title VII litigation against the Government, no further adjustment duplicating that allowance will be made. The district judge has ample powers of inquiry into the make-up of hourly rates to assure that the Government will not suffer from any such duplication or, indeed, from any excessive allowance for this purpose.

The delay in receipt of payment for services rendered is an additional factor that may be incorporated into a contingency adjustment. The hourly rates used in the "lodestar" represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, 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. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate. Lindy II, 540 F.2d at 117.23

To the district court judge falls the task of calculating as closely as possible a contingency adjustment with which fairly to compensate the successful attorney. We have not, however, lost sight of the fact that this adjustment is inherently imprecise and that certain estimations must be made. For example, it is difficult in hindsight to determine the risk of failure at the commencement of a lawsuit that ultimately proved to be successful. Thus, we ask only that the district court judges exercise their discretion as conscientiously as possible, and state their reasons as clearly as possible.24

Next, the "lodestar" may be adjusted up or down to reflect "the quality of representation." It is important to make clear precisely the analysis that must accompany such an adjustment. A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the "lodestar." In other words,

the court must recognize that a consideration of "quality" inheres in the "lodestar" award: counsel who possess or who are reputed to possess more experience, knowledge and legal talent generally command hourly rates superior to those who are less endowed. Thus, the quality of an attorney's work in general is a component of the reasonabl(e) hourly rate; this aspect of "quality" is reflected in the "lodestar" and should not be utilized to augment or diminish the basic award under the rubric of "the quality of an attorney's work."

Lindy I, then permits an adjustment to the "lodestar"-up or down-based on the all-around performance of counsel in the specific case: "Any increase or decrease in fees to adjust for the quality of work is designed to take account of an unusual degree of skill, be it unusually poor or unusually good." 487 F.2d at 168. By this is meant simply that the district court may determine that the lawyer discharged the professional burden undertaken with a degree of skill above or below that expected for lawyers of the caliber reflected in the hourly rates.

Lindy II, 540 F.2d at 117-18 (emphasis in original).

Until now the calculations have entirely ignored the results of the litigation. Success was a threshold inquiry relevant to the entitlement vel non to a fee, but the amount or nature of recovery was not considered in setting the "lodestar." These latter factors should be considered now, under the rubric of "quality of representation."

Where exceptional results are obtained-taking into account the hourly rate commanded and number of hours expended-an increase in fee is justifiable. However, it is important again to emphasize that a huge dollar recovery does not itself justify a huge fee award. The "lodestar" itself generally compensates lawyers adequately for their time. An upward adjustment for quality is appropriate only when the attorney performed exceptionally well, or obtained an exceptional result for the client. For example, if a substantial monetary judgment was to be expected, that expectation normally is reflected in the hourly rate used to compute the "lodestar," and no further adjustment would be necessary.

Quality adjustments may be upward or downward. Thus, if a high-priced attorney performs in a competent but undistinguished manner, a decrease in the "lodestar" may be necessary under the "quality of representation" rubric because the hourly rate used to calculate the "lodestar" proved to be overly generous.

Copeland I and Copeland II, however, took an entirely different view from that expressed in this opinion. The fee approach we have described rests on compensating attorneys for the market value of services rendered. The panel had the notion that, at least where the government is the losing defendant, the fee should be the amount representing the "actual cost to the law firm plus a reasonable and controllable profit" for the legal work done. Copeland II, slip op. at 5 (emphasis deleted).

We think, however, that the approach articulated earlier in this opinion represents the proper formula for the setting of fees regardless of the defendant's identity. We explain below why we think that fees should be calculated no differently when the government (rather than a private party) is the losing defendant. We then explain the difficulties we have, in any event, with the panel's "cost-plus" approach.

The panel opinions suggested that, where the government is the losing defendant, a fee award should be subject to greater scrutiny-i. e., the fee should be lower-than one against a private defendant. E. g., Copeland II, slip op. at 3. We agree that a judge setting any award should scrutinize the amount with care. But we do not think that the amount of the fee should depend on the identity of the losing party. Our conclusion is based on both the language of the statute and the policies that underlie it.

Our starting point, of course, is the statutory text. The attorney's fee section provides that, in any Title VII action,

the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs, and the ... United States shall be liable for costs the same as a private person.

42 U.S.C. § 2000e-5(k) (1976) (emphasis added).25

The language of the statute indicates that the calculation of the fee should not vary with the identity of the losing defendant, and the policies underlying the attorney's fee provision are fully consistent with this plain language. Those policies, as we have seen, are two. The primary purpose is to help persons obtain competent counsel with which to vindicate civil rights through litigation. E. g., Piggie Park, 390 U.S. at 402, 88 S.Ct. at 966. Nothing in the statute suggests that the incentive to ferret out discrimination, provided by the prospect of an attorney's fee, should be any less when the government is the defendant. If anything, it is even more important to provide adequate fees to employment discrimination litigants who prevail against the government. In Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977), this court observed that Title VII litigants against the government face greater obstacles than litigants against private defendants. We noted:

Unlike private sector employees, federal employee complainants are not merely private attorneys general; they are the only attorneys general under the enforcement scheme adopted in Section 717, 42 U.S.C. § 2000e-16 (Supp. V 1975). Suits in behalf of federal employees by the Attorney General or EEOC are not authorized against federal agencies. Indeed, the Attorney General is frequently counsel for the other side. Also unlike private sector employees, federal employees must first bring their employment discrimination grievances, not to an independent state or local administrative body or to EEOC, but to the very agency about whose practices they are complaining.

Id. at 331 (footnotes omitted).

A second policy also underlies fee awards. As we have noted, the prospect of liability for an attorney's fee may help deter discrimination26 and thereby obviate litigation. We do not think that the incentive for the government to refrain from discrimination should be any less than for private employers.

Finally, we note that various courts have expressed views consistent with those we express today. For example, in an age discrimination suit against the City of Philadelphia, the Court of Appeals for the Third Circuit observed:

The fact that the City of Philadelphia's tax revenues must pay the fees award does not warrant special standards for public and private employers. The reasonable value of an attorney's time does not depend on who his or her adversary is.

Rodriguez v. Taylor, 569 F.2d 1231, 1249 n.32 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); see Dennis v. Chang, 611 F.2d 1302, 1304-07 (9th Cir. 1980); King v. Greenblatt, 560 F.2d 1024, 1025-26 n.2 (1st Cir. 1977), cert. denied, 438 U.S. 916, 91 S.Ct. 3146, 57 L.Ed.2d 1161 (1978).27

In sum, we agree with the panel opinions that the government has a "deep pocket" and that any fee request should be examined with care. But we think, for the reasons stated above, that fees should be neither lower, nor calculated differently, when the losing defendant is the government.

B. Difficulties with the "Cost-Plus" Approach

The panel opinions in any event suggested that the "cost-plus" method of calculating fees might usefully be applied in all cases, regardless of the identity of the defendant. See Copeland II, slip op. at 18-19. The panel opinions, in brief, thought that a fee should be based on "the sums paid out to (the) attorneys as personal income and to defray overhead costs attributable to the maintenance of the attorneys in the firm," plus a "reasonable and controllable margin for profit." Copeland I, 594 F.2d at 251.

We think, however, that the standards we discussed earlier in this opinion are those that should govern all fee-setting cases under the statute. The "lodestar," or "market value," method of fee setting has the virtue of being relatively easy to administer. We do not want

a district court, in setting an attorneys' fee, (to) become enmeshed in a meticulous analysis of every detailed facet of the professional representation. It ... is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps even dwarfing the case in chief.

Lindy II, 540 F.2d at 116. We fear that the proposed "cost-plus" method of calculating fees would indeed become the inquiry of "massive proportions" that we strive to avoid. The problems associated with administering a "cost-plus" calculus are multifarious. How might a firm allocate its overhead costs to a particular piece of litigation? In what manner does one calculate the costs associated with the "imputed salaries" of firm partners? What is a "reasonable" profit to be awarded?28 The necessity, under "cost-plus," of answering these and other questions creates the specter of a monumental inquiry on an issue wholly ancillary to the substance of the lawsuit.

To address questions like these, considerable discovery would be necessary to obtain documentary evidence. A law firm's financial structure is highly relevant to a "cost-plus" inquiry, so the firm's financial records would be discoverable. Third-party and expert testimony would have to be proffered. Because time spent litigating the fee request is itself compensable,29 the depth of the inquiry ironically might lead to an increase, rather than a diminution, in fee awards.30

The prospect of enduring an inquiry of this scope might discourage competent counsel from undertaking Title VII representation at all. This possibility cannot be tolerated in light of Title VII's purpose "to encourage individuals injured by ... discrimination to seek judicial relief." Piggie Park, 390 U.S. at 402, 88 S.Ct. at 966.

In sum, the "cost-plus" system poses considerable administrative difficulties. But our rejection of its thesis does not depend on administrative inconvenience alone. We think the theoretical basis of "cost-plus" is fundamentally inconsistent with Congress' purpose in providing for statutory fee-shifting. A fee should be based on the market value of services rendered, not on some notion of "cost" incurred by the law firm. That is the conclusion both of the courts that have spoken on the issue, and also Congress itself.

As we have seen, courts attempting to be faithful to Congress' wishes have taken as the starting point in fee calculation the prevailing hourly rate multiplied by the number of hours reasonably expended. An amount calculated in that manner is adequate to entice competent counsel to undertake representation.

Courts had articulated this principle often, and consistently, when Congress passed the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976). That Act was passed in the wake of the Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), which sharply restricted courts' ability, in the absence of statutory authority, to award an attorney's fee to the prevailing party.31 Congress understood and noted with approval that in the Title VII context courts used a "market value" approach to the award of fees. According to the Senate Report accompanying the 1976 Act, that approach provides the "appropriate standards" for awarding fees. S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976), U.S.Code Cong. & Admin.News 1976, p. 5908. See H.R.Rep. No. 1558, 94th Cong., 2d Sess. 8 & n.16 (1976), U.S.Code Cong. & Admin.News 1976, p. 5908.

Even if we were free to ignore Congress' intent, we see no reason now to abandon the "market value" approach to fee calculation in favor of "cost-plus." In the instant case, for example, nothing in the record suggests that "cost-plus" would be a preferable method of setting fees. The government's primary contention all along in this case has been simply that too many hours were spent by plaintiff's attorneys. The District Court judge agreed that too much time had indeed been spent, and he reduced the requested award accordingly.32 The panel opinions are fraught with concern that too many hours were spent on this case; ironically, however, nothing in the "cost-plus" scheme is more effective than the "market value" approach in reducing the fee to reflect such wasted hours. As the government recognizes, "cost-plus" in effect is simply a new method for setting the rate of compensation.33 Nothing in it is of any value to trial judges in determining the number of hours properly spent.34

More fundamentally, nothing in the panel opinions explains why, in the typical case, rates established by the pressures of the market mechanism will differ from those resulting under "cost-plus."35 If "cost-plus" is simply another method of reaching the same result as under "market value" calculations, the added administrative burden seems not worth the candle. On the other hand, if "cost-plus" somehow produces different results from those obtaining under "market value" calculations, "cost-plus" is inconsistent with the wishes of Congress and the overwhelming view of courts that have considered the matter.

The one circumstance in which "cost-plus" almost certainly will yield a different fee from that under "market value" is where the successful plaintiff was represented by a "public interest" law firm. Such groups often represent their clients for low fees, or for no fee at all. Consequently, the individual attorneys at those organizations typically are compensated at rates far below those prevailing in the marketplace. "Cost-plus" calculations, focusing as they do on lawyers' salaries rather than on the value of services rendered, in this instance will yield lower fee awards than those under a "market value" system.

Copeland II argued that this result was entirely reasonable. The opinion pointed out that a fee-setting mechanism that awarded a firm its costs, plus a reasonable profit, could not be condemned as penurious because any such amount, almost by definition, provided the attorneys the same compensation that they normally received. Copeland II, slip op. at 14, 15. We think, nevertheless, that the proper focus is the market value of services rendered, regardless of the notion of "costs" that the panel seemed to think so important.

We should have thought this issue resolved in this circuit as far back as the seminal decision in Evans. In that case, we agreed with the Fifth Circuit that the applicable rate was that prevailing "for similar work in the community." Johnson, 488 F.2d at 718; see Evans, 503 F.2d at 187-88. Nowhere in Johnson or Evans are salaries mentioned as relevant to the calculus. Moreover, this court en banc had earlier explained:

It may well be that counsel serve organizations like appellants for compensation below that obtainable in the market because they believe the organizations further a public interest. Litigation of this sort should not have to rely on the charity of counsel .... The attorneys who worked on this case should be reimbursed the reasonable value of their services ....

Wilderness Society v. Morton, 495 F.2d 1026, 1037 (1974), rev'd on other grounds sub nom. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); accord, National Treasury Employees Union v. Nixon, 521 F.2d 317, 322-23 (D.C.Cir. 1975). Indeed, to appraise the reasonable value of an attorney's time by

(r)eference to absolute salary levels is about as reasonable as deriving the reasonable value of a federal judge's time from his or her salary.

Rodriguez v. Taylor, 569 F.2d 1231, 1248 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978).

Despite this precedent, the panel opinions contended that the market value of time expended should be irrelevant. Because the purpose of the fee award is to provide a sufficient incentive to counsel to litigate, a formula based on "cost plus reasonable profit will guarantee (public interest practitioners) a return that will be at least equal to that received in their usual practice." Copeland II, slip op. at 15. (emphasis in original). Thus, the panel correctly concluded that paying low-salaried attorneys the prevailing market rate normally will yield a larger fee than that to which they are accustomed.

For a variety of reasons, we see this as no flaw. First, Congress has indicated that public interest lawyers in these sorts of cases should be compensated by using a market value approach. The Senate Judiciary Committee, in its report endorsing the 1976 fees act, draws no distinction in awarding fees between public interest law firms and private attorneys. S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976). That report cites with approval Davis v. County of Los Angeles, 8 Empl.Prac.Dec. 5047 (C.D.Cal.1974), a Title VII case in which the court said:

(I)t is not legally relevant that plaintiffs' counsel ... are employed by the Center for Law In The Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner ....

Id. at 5048-49. Similarly, the House Report endorsed other cases that said awards of fees to civil rights law firms should be equal to those awarded to members of the private bar. See H.R.Rep. No. 1558, 94th Cong., 2d Sess. 8 n. 16 (1976), and cases cited therein.

Second, the purpose of the legislative scheme of the Civil Rights Act of 1964 will be served by computing fees based on a "market value" approach. The purpose of Title VII's fee award provision, as we have seen, is to encourage the private enforcement of the civil rights laws. While some lawyers would assist in the private enforcement of Title VII for a reduced fee, Congress has recognized that payment of full fees will provide greater enforcement incentives. Full fee awards to public interest law firms help finance their work, both in the instant case, and in others. Indeed, fee awards (paid by proven discriminators) may help reduce the subsidies (paid from the public fisc) that some of these organizations receive.

Third, to compute fees differently depending on the identity of the successful plaintiff's attorney might result in two kinds of windfalls to defendants. The incentive to employers not to discriminate is reduced if diminished fee awards are assessed when discrimination is established. Moreover, where a public interest law firm serves as plaintiff's counsel (a law firm that, under the panel's approach, will not obtain the full value of its services from the losing defendant) the defendant will be subject to a lesser incentive to settle a suit without litigation than would be the case if a high-priced private firm undertook plaintiff's representation. Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir. 1980). That is so because the marginal cost of each hour of continued litigation would be reduced. Defendant's counsel could inundate the plaintiff with discovery requests without fear of paying the full value of the legal resources wasted in response. We do not think that Title VII intended that defendants should have an incentive to litigate imprudently simply because of the fortuity of the identity of plaintiff's counsel.

Fourth, we note that the vast majority of courts that have considered this issue agrees with us that attorney's fees should not be based on the costs of the successful party. Instead, fees should be based on the market value of the legal services rendered. Oldham v. Ehrlich, at 168-169 (8th Cir. March 12, 1980); Palmigiano v. Garrahy, at 599-603 (1st Cir. 1980); Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir. 1980); Carey v. New York Gaslight Club, Inc., 598 F.2d 1253, 1255 n. 1 (2d Cir. 1979), aff'd, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980); Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231, 1248 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed. 414 (1978); Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976); Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974), disapproved on other grounds, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 270 n. 46, 95 S.Ct. 1612, 1628, 44 L.Ed.2d 141 (1975); Meisel v. Kremens, 80 F.R.D. 419, 422-23 (E.D.Pa.1978).36 Indeed, the Supreme Court very recently commented:

We also reject petitioners' argument, not suggested in the petition for certiorari, that respondent's representation by a public interest group is a "special circumstance" that should result in denial of counsel fees. Federal Courts of Appeals' decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978); Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988, which is legislation similar in purpose and design to Title VII's fee provision. See H.R.Rep. No. 94-1558, pp. 5 and 8, n.16 (1976).

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70 n.9, 100 S.Ct. 2024, 2034, 64 L.Ed.2d 723 (1980). This passage is significant not only for its discussion of the public interest lawyer's entitlement vel non to a fee; the approving reference to Reynolds and Torres, both cited supra, is highly relevant also to the calculation of the fee. The Second Circuit opinion in Torres, for example, stated:

Litigation to secure the law's protection has frequently depended on the exertions of organizations dedicated to the enforcement of the Civil Rights Acts. We agree with the Courts which have held that the "allowable fees and expenses may not be reduced because (the prevailing party's) attorney was employed ... by a civil rights organization or because the attorney does not exact a fee."

538 F.2d at 13 (ellipsis and brackets in original) (emphasis added) (citations omitted).

Nor is it relevant that a law firm, as in this case, originally undertook representation pro bono publico. We see "nothing inconsistent in prosecuting a case in the public interest, agreeing not to charge one's own client a fee and thereafter seeking fees" from the losing defendant. Keyes v. School Dist. No. 1, 439 F.Supp. 393, 406-07 (D.Colo.1977) (emphasis in original); see National Treasury Employees Union v. Nixon, 521 F.2d 317, 322-23 (D.C. Cir. 1975), quoting Wilderness Society v. Morton, 495 F.2d 1026, 1037 (D.C. Cir. 1974) (en banc). Similarly, the fee calculus does not change simply because the law firm representing plaintiff in this case, see note 1 supra, may choose to donate its fee to a "public interest" law entity. See, e. g., Tillman v. Wheaton-Haven Recreation Ass'n, 517 F.2d 1141, 1148 (4th Cir. 1975).

For all these reasons, we decline to adopt the panel's "cost-plus" method of calculating fees.

The preceding explication of the proper criteria for awarding an attorney's fee permits us now to consider the District Court's award in this case.

It is common learning that an attorney's fee award by the District Court will be upset on appeal only if it represents an abuse of discretion.37 We customarily defer to the District Court's judgment because an appellate court is not well situated to assess the course of litigation and the quality of counsel. The District Court judge, by contrast, closely monitors the litigation on a day-to-day basis. The Supreme Court long ago observed that a trial judge "has far better means of knowing what is just and reasonable than an appellate court can have." Trustees v. Greenough, 105 U.S. 527, 537, 26 L.Ed. 1157 (1882). Accordingly, we think "it is better to have th(e) discretion (to award fees) exercised by the court which has been most intimately connected with case."38

In this case, for example, the District Court Judge was intimately familiar with the barrage of pleadings, memoranda, and documents filed, and he observed the proficiency of counsel in court. Our inspection of the cold record cannot substitute for his first-hand scrutiny. Under these circumstances, we are most hesitant to upset the product of his judgment.39

It is readily apparent that the District Court's fee-setting calculations do not precisely conform to the procedures identified in earlier cases and elaborated upon in this opinion.40 We do not believe, however, that it would be productive now to remand this case for new computations. It was more than seven years ago that Dolores Copeland alleged the gender discrimination that resulted in this lawsuit.41 This very opinion, regretably, for clarity must be identified as Copeland III. However, the end of this protracted litigation finally is in sight, and we do not wish unnecessarily to prolong it when the only remaining issue is that of the attorney's fee. The Court of Appeals for the Third Circuit, en banc, commented in a similar fee-award situation:

(I)n the interest of terminating the lengthy proceedings at bar-now in their fifth year-we will not require the district court here to reconsider its determination. Although we do not disturb the district court's treatment ..., it should be apparent that we do not necessarily endorse the methods or the reasoning employed to reach its result.

Lindy II, 540 F.2d at 118.

Moreover, the time spent litigating the fee award normally is itself compensable, see note 29 supra, so it would be anomalous to require plaintiff's lawyers to spend additional time unless the remand were likely to be productive.42 For the reasons set forth below, we do not think that a remand in this case now would be useful. The fee award appears to us to be a reasonable one. Other circuit courts of appeals have observed that appellate judges are themselves experts in assessing the reasonableness of an attorney's fee award,43 and that the appellate court, in a pinch, may independently review the record,44 or itself set the fee.45

Our own examination of the fee award in this case leads us to believe that the award is fully justifiable and that affirmance of the award, under the special circumstances of this case, therefore would not be inappropriate.46 Accordingly, we affirm.

1. Calculation of the "Lodestar"

Plaintiff's attorneys submitted the following materials documenting their fee request:

(1) a memorandum reviewing the history of the litigation;

(2) affidavits revealing that they spent 3,602 hours on the case;

(3) statistics revealing that the firm's normal hourly rates for these attorneys ranged from about $52 per hour to about $90 per hour;

(4) a letter from the Lawyers' Committee for Civil Rights Under Law stating that the typical fee charged by large Washington firms on employment discrimination cases ranged from $35 to $100 per hour; and

(5) an itemization of the back pay awards obtained by the lawsuit.

The average hourly rate, weighted for the number of hours spent by each attorney, was $57.17. A "lodestar" fee, computed by multiplying $57.17 by the 3,602 hours spent, would be $205,916.50.

The District Court properly inquired whether that hourly rate was reasonable, and whether all the hours were reasonably expended. It found that, although the rate was indeed reasonable, some of the hours were nonproductive. The District Court noted that "the firm has obviously made little, if any, effort to exercise billing judgment.... (T)here was practically no partner time expended on this case and the associates lacked experienced trial direction."

With this analysis we can find no fault. Our review of myriad attorney's fee cases demonstrates that the $57 average hourly rate certainly is within the bounds of reasonableness.47 We think, also, that the District Court properly refused compensation for nonproductive hours. Hours may be disallowed as nonproductive for at least two reasons. First, no compensation should be given for hours spent litigating issues upon which plaintiff did not ultimately prevail.48 Also not allowable are hours that simply should not have been spent at all,49 such as where attorneys' efforts are unorganized or duplicative. This may occur, for example, when young associates' labors are inadequately organized by supervising partners.50

It is true that the District Court in this case did not identify precisely the hours, or types of work, for which no compensation could be paid. Compare section II-A-1 of this opinion supra. Instead, it simply decreased the "lodestar" by a substantial fixed amount from the $206,000 proposed starting point. Under the special circumstances of this case, this practice cannot be condemned. The reduction in fee resulted primarily from the expenditure of unnecessary time by relatively inexperienced lawyers. It is neither practical nor desirable to expect the trial court judge to have reviewed each paper in this massive case file to decide, for example, whether a particular motion could have been done in 9.6 hours instead of 14.3 hours. In Lindy II, the en banc Court of Appeals for the Third Circuit observed that an appellate court does not

intend that a district court, in setting an attorneys' fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation. It ... is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps even dwarfing the case in chief. Once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel's work.

540 F.2d at 116 (emphasis added).

This approach is particularly appropriate in a case such as this. A pleading-by-pleading examination of the copious files in this case would be unnecessarily burdensome. We think that the District Court Judge in this case-recognizing, as he did, that some duplication or waste of effort had occurred-did not err in simply reducing the proposed "lodestar" fee by a reasonable amount without performing an item-by-item accounting.51

The government in the District Court characterized the number of hours as "litigious overkill" by "relatively junior attorneys." Such vast numbers of hours were wholly unnecessary, according to the government, because the lawsuit was a "mutually cooperative effort" to ferret out and remedy discrimination in the Labor Department. The government points out, for example, that it stipulated that the Labor Department had discriminated, settled virtually all of the individual claims for relief, and developed an affirmative action program. (The government's account of the litigation was proffered, of course, after the heat of battle had cooled.)

The District Court, however, closely monitored the course of this litigation, and therefore is more aware than anyone of the manner in which it was conducted. The court commented:The litigation went forward in a relatively civilized manner but it was hard fought. The Government offered firm, persistent resistance throughout the litigation and concessions developed only as it became apparent there was little prospect of Government success. Indeed, the Government moved to dismiss at the outset, and it opposed discovery. There were many difficulties encountered during the discovery process which were caused, in part, by the Department's inadvertent destruction of certain records contrary to Court direction and the intentional withholding of other documents by some officials of the Department of Labor, as well as by the complexity of the issues.

Our review of the record demonstrates that the District Court's description of the litigation is accurate. The tenor of the case can be sensed simply by examining the District Court docket. Its entries abstract the history of the lawsuit, which was chronicled in detail in section 1 of this opinion, and reflect the truly adversarial attitude with which it was waged. Some of the docket entries, couched in the cryptic argot of that genre, are:

MOTION of defts. for judgment on the pleadings; P & A's; ....

MOTION of defts. to remand; P & A's; ....

OPPOSITION of defts. to motion for certification ....

MEMORANDUM by pltffs relating to defts destruction (of) documents ....

POST-HEARING brief by defts in opposition to pltffs claim for retroactive promotion and back pay; ....

and the like. Under these circumstances, the government's characterization of this litigation as a "mutually cooperative effort" is startling.52 It is true, as we noted above, that the government conceded at the administrative level that the Directorate had discriminated against women "in the lack of leadership responsibility assignments given to qualified women professionals." That was no major concession for purposes of this lawsuit, however, because the concession did not encompass discrimination in treatment of nonprofessional women, or discrimination in promotions and training of professional women. The lawsuit proved to be necessary to resolve those issues.

We do not, of course, criticize the defendant's attorneys for skillful and thorough representation of their client. The government's defense of this suit may well have been a model of effective advocacy. That, however, is not the point. The government's contentious litigation strategy forced the plaintiff to respond in kind. The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.53

Nor does it help the government that it eventually conceded, or settled, many of the important issues before trial. That judgment is by stipulation, concession, or consent decree normally is irrelevant to the entitlement vel non to an attorney's fee,54 and in this case it also is irrelevant to the calculation of the fee. Where "developments made it apparent that the judge was about to rule for the complainant," a defendant cannot hope to ameliorate the burden of the attorney's fee by making eleventh-hour concessions. Cuneo v. Rumsfeld, 553 F.2d 1360, 1362, 1364 (D.C.Cir.1977). Because the starting point in setting an attorney's fee is the "lodestar"-hours reasonably spent multiplied by a reasonably hourly rate-a last-ditch concession does not prevent compensation for hours spent litigating before the concession was offered.

In its appellate brief, the government argues that its version of the litigation would have been portrayed more fully if the District Court had conducted a hearing on the issue of the fee. Such a hearing in some circumstances may be useful.55 In this case, however, the District Court ruled on the fee question after witnessing the conduct of the entire case, and with the benefit of substantial briefs from both sides.56 We cannot say that failure to hold a hearing under these circumstances was error.57 Moreover, the government never took the elementary step of asking the District Court to hold a hearing.58 We think that "having sought no hearing on (the attorney's fee) motion, counsel could hardly have been surprised when none was held." Kargman v. Sullivan, 589 F.2d 63, 67 (1st Cir. 1978).

The government next contends that the fee request was inadequately documented. Specifically, the government asserts that the District Court erred in awarding the fee because it had before it affidavits that only roughly itemized the hours spent. The District Court should have consulted the original time logs kept by the firm, we are told.

It may, on occasion, be necessary for the District Court to examine the original time logs. See Pete v. UMW Welfare & Retirement Fund, 517 F.2d 1275, 1292 (D.C.Cir.1975) (en banc ). In this case, however, there is no allegation that the affidavits summarizing the time logs are in any respect inaccurate.59 Moreover, although plaintiff's attorneys apparently were willing to produce the time logs,60 the government never requested that they do so. Nor did the government ever object in the District Court that the itemization of the hours was in any respect deficient. We think that objections to documentation, like requests for evidentiary hearings, must be made to the District Court; one cannot, after receiving an unfavorable ruling from the trial judge, concoct objections for use on appeal.

2. Adjustments to the "Lodestar"

A "lodestar" fee may be adjusted, as we have seen, to compensate for the possible contingent nature of success, and in recognition of the quality of representation.

a. Contingency

The "lodestar" fee may be increased to reflect the possibility that the litigation would not be successful and that no fee ultimately would be obtained. The District Court in this case made no contingency adjustment, nor was it requested to do so.61

b. Quality

None of the factors that we must consider under this rubric suggests that the District Court's fee award need be disturbed.

The District Court recognized that plaintiff's attorneys were inexperienced. It found, though, that they were "excellent"; what they "lacked in seasoned trial experience was offset by other factors. They were always well prepared, effective and knowledgeable." Our examination of the record in this case confirms the appraisal of the trial judge.62

Another of the important elements in assessing the quality of counsel is the benefit of counsel's efforts: the success of the litigation. The government points out that the fee award was vastly disproportionate to the monetary relief obtained, and contends that the fee award should be reduced accordingly.

The District Court, however, observed that where, as here, the primary purpose of a lawsuit is to obtain equitable relief, the fee award should not necessarily be reduced simply because monetary relief was small. Moreover, the court found that the nonmonetary relief achieved in this case-an affirmative action program for training and promoting women-was important, and "will be felt for many years to come."

We think that the District Court has accurately summarized both the benefits produced by this lawsuit and the law governing the award of fees in cases that produce primarily nonmonetary relief.

Title VII provides various sorts of remedies once discrimination has been found. Relief can be in form of back pay,63 promotion,64 and other prospective equitable relief such as affirmative action programs.65 This case involved each category of relief. Some $33,000 in back pay for 13 of the plaintiffs was paid. That amount is not insubstantial, but it does not represent the principal relief obtained. Some class members received promotions to the GS-14 level. Others received specialized training and guaranteed promotions upon completion of that training. The prospective value of this kind of relief far exceeds the back pay awarded.

Probably the most important relief obtained by this litigation was the affirmative action plan. The plan, which was broadly aimed at eliminating the "blatant discrimination" the District Court found to have existed in the Directorate, offers substantial prospective relief for the class. The plan provides significant training opportunities for women, including accelerated training for management positions. It requires that work assignments be made on a nondiscriminatory basis. It also establishes goals, timetables, and an annual reporting system to measure the Directorate's progress in remedying the effects of past discrimination.66

Plaintiff's efforts also produced intangible benefits that flow from the elimination of discrimination. Since women no longer should be denied advancement because of their gender, the sense of inferiority resulting from the discrimination will be eliminated.67 Moreover, the exposure of discrimination in one portion of the Department of Labor may lead to heightened awareness of, and intensified efforts to eradicate, possibly discriminatory treatment throughout the Department.

The government insists, nevertheless, that the absence of a substantial monetary recovery ought to preclude a fee award on the order of magnitude of that given by the District Court. The panel agreed, concluding that the existence of a $160,000 fee to obtain about $33,000 in back pay establishes "at least a prima facie case that something is wrong with the previously constructed standards." Copeland II, slip op. at 20. (emphasis in original).

We disagree. That this litigation sought and obtained substantial equitable relief is highly relevant to the award of a large fee. We have noted that the primary purpose of the fee provision is to give persons victimized by discrimination the resources to vindicate their rights through litigation. Where, as here, the relief sought is generally nonmonetary, a substantial fee is particularly important if that statutory purpose is to be fulfilled. It is relatively easy to obtain competent counsel when the litigation is likely to produce a substantial monetary award. It is more difficult to attract counsel where the relief sought is primarily nonmonetary. For this reason, fee awards in cases that produce substantial nonmonetary benefits must not be reduced simply because the litigation produced little cash.68 The Court of Appeals for the Second Circuit approved payment of a substantial fee where, as here,

(t)he plaintiff sought and obtained broad equitable relief which will benefit (persons) in addition to the plaintiff. Although the size of the group affected by this litigation may not be large, the claim involved significant federal rights. Because the plaintiff's claim did not involve substantial monetary damages ... it is highly unlikely that the plaintiff could have retained other counsel to act on her behalf. The cost of this litigation and the time and effort required by plaintiff's counsel in order to bring the case to its conclusion ... plainly were disproportionate to any sum the plaintiff might reasonably have expected to recover on her own behalf.

Holley v. Lavine, 605 F.2d 638, 646 (2d Cir. 1979), quoting and aff'g 464 F.Supp. 718, 725 (W.D.N.Y.1979).

For these reasons, no reduction in fee was appropriate after considering the relevant factors in the category of "quality of representation."

The District Court considered all the relevant factors in awarding an attorney's fee. Although its discount of the proposed "lodestar" amount could perhaps have been computed with greater specificity, that discount was quite substantial however it may have been measured. It was an exercise of judgment informed by both experience and direct observation of what had transpired in the course of the litigation.

We therefore find it unnecessary now to remand the matter for further inquiry, and affirm the District Court's attorney's fee award.

It is so ordered.

MacKINNON, Circuit Judge.

I join in the court's opinion. In my view both the market value and the cost-plus standard can at times lead to exorbitant fees; but I view the market value approach as being more time honored and hence easier of application nationwide where all lawyers do not keep detailed records of overhead costs and other relevant expenditures. The bench and the bar are accustomed to market value in the area as representing reasonable attorney's fees and I believe that standard, when properly applied, includes within it its own elements of reasonableness. The only admonition I would include would be the caveat that the attorney's fee in the ordinary case must bear some reasonable relationship to the amount of money and equitable benefits that are involved. Attorneys in such cases should be forced to be mindful of the monetary and equitable benefits that are being sought and should not be permitted to run up bills that are greatly disproportionate to the ultimate benefits that may be reasonably attainable.

Circuit Judge ROBB concurs in the foregoing opinion.

WILKEY, Circuit Judge, joined by TAMM, Circuit Judge, dissenting:

In our colleagues' "lodestar" opinion, the path of attorney's fees in Title VII litigation is easy to discern. It is Up, Up, and Away! It is Per Calculos Ad Astra.1

Before going to the extraordinary calculos of the majority opinion, it would be well to point out the areas in which we have no disagreement and what precisely we think the issue is. We have no quarrel, of course, with the findings of the trial court, reiterated in exquisite detail by the majority opinion, regarding the labors of the young attorneys who worked for the plaintiff on this case. We have no quarrel with the regular hourly rates charged by this distinguished law firm to its regular corporate clients for the labors of its senior partners, its junior associates, or these particular junior associates. The issue is not whether they shall be paid; as attorneys for the prevailing party, they are rightly entitled to be paid. The issue is not, on this appellate level, even how much they shall be paid. The issue here is only-but unfortunately not simply-the formula by which these attorney's fees should be calculated by the trial court.

This question has required much time and effort on the part of this court to attempt to resolve. All members should have come to grips with the obvious fact, as we analyzed and dissected this particular case, that previous precedents in the field, even in our own circuit, rested on contradictory, overlapping, disharmonious, even spurious and irrelevant "factors." This incoherent melange provides no consistent rationale for a conscientious trial judge to apply, at least in a case in which the Government is the paying defendant; the effort to do so here has highlighted the inadequacies and inapplicability of previous precedents.

Judge McGowan's opinion for the majority is the most strenuous effort so far to pull a basically incoherent rationale (even if of some service in the private sector) together, to smooth putty into the visibly widening cracks of logic and to cover with the lacquer of a polished style. We in the dissent cannot buy the product. Over many months of pondering the arguments for importing the market value hourly rate fee into government Title VII litigation-this is the first case in this circuit-we are more than ever convinced that the market value concept is unworkable where there is no true market, that the effort to apply it inevitably leads to distortions and excesses, far away from the "reasonable attorney's fee" which was Congress's only avowed standard and intent.

First we delineate the differences which, on thoughtful analysis, are necessarily implicit in the setting of a "reasonable attorney's fee" according to the statute, where the Government as contrasted with a private party is the paying defendant and no true market exists. Next we take up the obvious flaws in the applicability of the majority's private sector theory to this case of the Government as defendant-the redundant contingency factor, the care and feeding of lawyers rather than injured plaintiffs, and the evasion of testing the majority formula in this case. Finally we describe the actual cost plus a reasonable and controllable profit method of determining a "reasonable attorney's fee."

                   Outline of Opinion
                                                     Page
  I.  Differences in the Role of the Government
      and Private Parties as Defendants in Title
      VII Litigation ............................... 909
      A. Past Precedents in This Circuit ........... 909
      B. Result When Past Precedents Applied
          to Copeland .............................. 910
      C. How the Attorney's Fee Incentive
          Operates in Government Litigation ........ 911
      D. Failure of Attorney's Fees to Deter
          Discrimination by the Government ......... 912
      E. "Reasonable" Private and Government
          Attorney's Fees in Government
          Litigation ............................... 912
      F. The Majority's "Market Value" Fee
          Where No Market Exists ................... 913
      G. The Statute and the Legislative
          History .................................. 915
 II.  The Majority Opinion Formula--Faulty
      Analysis Produces Skewed Results ............. 917
      A. The Redundant Contingency Factor .......... 917
      B. Encouraging Injured Plaintiffs or
          Encouraging Lawyers? ..................... 920
      C. Quality of Representation ................. 921
      D. Majority Failure to Apply New Formula
          to this Case ............................. 922
III.  "A Reasonable Attorney's Fee"--Actual Cost
      Plus a Reasonable and Controllable Profit .... 923
      A. The Need for Additional Guidelines for
          the District Court ....................... 923
      B. Rationale ................................. 924
      C. Application ............................... 925
      D. Substantive Inequities Feared from the
          New Method ............................... 926
          1. Special Problems with Small Firms
              and Solo Practitioners
          2. Similar Problems for the Public
              Interest and Civil Rights Bar
          3. Contingent Fees
          4. Class Action Practitioners
          5. Counsel Representing Poor Clients
              Generally
          6. Counsel Who Work Long Hours
          7. Requirement of Public Disclosure of
              Financial Information
      E. Fear of Deterring Representation in
          Title VII Cases .......................... 928

I. DIFFERENCES IN THE ROLE OF THE GOVERNMENT AND PRIVATE

The proper method for determination of attorney's fees awards is a recent and developing area of the law, in which courts are still grasping for exact standards consistent with congressional intent. Over the past half dozen years this court has addressed the attorney's fees issue in several cases, each successive case attempting to systematize and sometimes modify the previous precedents.

In Evans v. Sheraton Park Hotel2 we listed twelve factors that should be included in a district court determination of appropriate attorney's fees in Title VII cases. The twelve factors were taken from the Fifth Circuit's decision in Johnson v. Georgia Highway Express, Inc.3 which had in turn drawn the standards from guidelines recommended by the American Bar Association's Code of Professional Responsibility, Ethical Consideration 2-18 and Disciplinary Rule 2-106.

In Kiser v. Huge4 we endorsed these same standards taken from the Code of Professional Responsibility as well as the Manual for Complex Litigation, section 1.47.5 And in Pete v. United Mine Workers6 we incorporated the attorney's fees section of the panel opinion in Kiser.

Our opinion in National Treasury Employees Union v. Nixon, summarizing the analysis of Pete and Huge, listed the primary factors for consideration: hourly rate multiplied by hours, adjusted upward if there is a risk of noncompensation or partial compensation, and adjusted upward or downward on the basis of the quality of work performed as judged by the district court.7

B. Result When Past Precedents Applied to Copeland

In any developing area of the law such as this, courts setting forth general principles must attempt to design them to produce just results in various fact situations to which they will logically apply in the future. The specific situations which arise in future cases will sometimes bring to light deficiencies in the general rules laid down in the past, and will thus require greater elaboration or modification of the standards. The present case illustrates how a mechanical application of the hourly rate times hours formula, which appeared advisable as a general rule in past cases, can actually lead to unreasonable fees entirely out of line with what would happen in private litigation.8

The litigation effort in this case concerned a claim of sex discrimination brought by approximately twenty-four females employed in branches of the Directorate of Data Automation in the Department of Labor. The extensive discovery and numerous pretrial motions in the case were directed at the issue whether the Department of Labor had discriminated in the past against the plaintiff class in assignments, training, performance evaluations, promotions, and working conditions. In compensation for the effects of discrimination found in this case, the Department of Labor paid a sum total of $31,345 in back pay for thirteen of the plaintiffs. In contrast, the legal fee requested by plaintiffs' attorneys was $206,000, and the amount awarded by the district court was $160,000. Plaintiffs' attorneys spent 3,602 hours on the case.

Whether this gross disproportion between the monetary stake of plaintiffs' claim and the cost of litigating that claim is justified by the amount of equitable relief awarded, as the majority apparently believes, does not resolve the problem presented by these facts. It is true that some of the plaintiffs received promotions and prospective future promotions, and that the Department agreed to adopt an affirmative action plan for female employees in positions requiring knowledge of data processing. But the fact remains that this Title VII suit involved only twenty-four class members in a very limited sector of a government agency, and concerned acts of discrimination whose sum total monetary value over a several year period was $31,345; yet plaintiffs managed to throw such resources into the legal battle that they could claim a legal fee of $206,000 and receive from the district court a fee of $160,000. Even if the equitable relief here was worth five times the monetary award, the total amount of relief would never make a $160,000 fee appear reasonable in private litigation. When fees of this magnitude begin to appear in suits against the Government, it is time to ask some serious questions about the reasonableness of the attorney's fees judges are awarding.

This case illustrates the potential result when a large private firm, with high rates customarily charged to wealthy corporate clients, brings a suit against a Government defendant with an unlimited deep pocket, and then proceeds to engage in extensive discovery and numerous pretrial motions, while being assured from the outset that all hours spent on the case will be reimbursed at the firm's customary rate so long as its efforts are relevant to issues on which it ultimately prevails. It is of little use to quibble over whether the amount of equitable relief involved in this particular case can possibly justify the high fee, because the situation in this case foreshadows and points the way toward far greater potential abuses in the future, if the hourly rate times hours formula continues to be mechanically applied.

Though past cases in this area, including those on which we ourselves have sat, have not given specific attention to these potential abuses, it is clearly time to do so now. The reason perhaps why those earlier cases did not consider the great potential for abuse is that they did not involve the Government in Title VII litigation and did not anticipate the possible effect when the resources of a large private law firm are brought to bear against the Government in an employment discrimination suit. We have that case for the first time now. It illustrates how these suits can diverge drastically from the commonly known patterns of private litigation.

C. How the Attorney's Fee Incentive Operates in Government Litigation

When a large firm knows that eventual success will bring it compensation at its customary rate for all relevant hours of work, the firm has a tremendous incentive to expand the pretrial stages of the case to the point where it becomes overwhelmingly in the Government's interest to settle, whether the Government is in the wrong or not. In private litigation the incentive to expand the discovery and pretrial motion stages is counterbalanced by the high cost that this will inflict on the client, because victory does not normally bring a recovery of the litigant's own attorney's fees from the other side. Not so in a case of this sort against the Government, where the law deliberately encourages the litigation by holding out the carrot of attorney's fees-but only to successful plaintiffs.

Furthermore, in private litigation the high cost of extensive discovery serves as an incentive for both sides to settle. But in Title VII cases against the Government, the incentives become entirely lopsided, because expanded litigation costs for plaintiff not only increase his chance of winning, but also greatly increase the sum his lawyer stands to gain if he does win. At the same time, each expansion of the litigation effort will pose a risk of higher and higher liability for the Government. The end result is that the Government faces overwhelming incentives to give in to claims, however unjust, before expanded litigation doubles or triples or quadruples the size of eventual Government liability. When attorney's fee levels come to dwarf the actual monetary amount in controversy, as in the present case, the structure of these incentives is magnified further. In deciding whether to settle a case like this one, the Government is not primarily considering whether its case is strong enough that it should risk an eventual $31,345 judgment to plaintiffs; instead, if Government attorneys are rational they must primarily consider whether their case is strong enough to risk the much greater possibility of a $200,000 plus eventual attorney's fee award.

D. Failure of Attorney's Fees to Deter Discrimination by the Government

Attorney's fees are meant to serve some purpose of deterring discrimination. They doubtless do in the private sector.9 But when attorney's fees come straight out of the United States Treasury, as in the present case, they exert no deterrent effect whatsoever against the persons responsible for the discrimination. In the private sector there is a justifiable punitive element. Attorney's fees impact on the profit picture of the corporation; the same executive management which is responsible for tolerating or encouraging discrimination are the same executives who are responsible for the profit of the corporation, so they are penalized in the pocketbook. No such deterrence applies to the Government, i. e., the Labor Department budget was never touched, will never be touched, by the award of Judge Gesell in this case. Both the back pay and the attorney's fee come out of the general taxpayer contributed funds of the U. S. Treasury. By their strict analogy to the private sector, the majority has validated deterrent or punitive action against the U. S. taxpayer.

E. "Reasonable" Private and Government Attorney's Fees in Government Litigation

The Government operates in a universe of attorney's fees lower than that prevailing in the world of wealthy corporate clients. If the Government were pressing the Title VII case rather than defending, its legal costs would not approximate private "market value." Government legal counsel, whether on the plaintiff or defendant side, traditionally simply have never been compensated at the same scale as in private practice. The young associate makes slightly more than the young Government attorney; the margin becomes really vast when partner status in a prestigious law firm is compared even with the Attorney General of the United States. Since the Government willy-nilly is financing these Title VII suits both by plaintiffs who succeed and do not succeed (giving effect to a contingency factor), Government counsel defending and plaintiffs' counsel bringing the suits should have compensation of roughly the same amplitude.

There is a logical symmetry in this principle. When the Government as a defendant prevails, it has asked for and received only its actual costs, the salaries of the attorneys working on the case plus overhead costs attributable to their work-not the market value going hourly rate of the private sector.10 It is undeniably the same litigation, vindicating the rights of employees discriminated against, whether the Government wins or loses. The work on the facts and the legal issues is of the same complexity on both sides. Indeed, if the Government were not the defendant employer, the private attorneys would not be bringing a pro bono publico lawsuit as private attorneys general. What the private attorneys are doing is essentially Government legal work. Recognizing this, why should the private attorneys be compensated on a scale other than actual costs (salary and overhead) plus a reasonable profit to encourage them to continue accepting employment in this type of litigation? The purpose of Title VII attorney's fees would be fully vindicated by such a policy.

F. The Majority's "Market Value" Fee Where No Market Exists

With reference to attorney's fees in Title VII litigation against the Government, the fundamental verities overlooked by our colleagues are these: first, there is no market in which fees are set by market value forces; second, whatever fee-paying mechanism there is exists as the total creation of the Government itself.

To the latter point, we must remember that the Government need not consent to be sued by its own employees or anyone else. No lawsuit, no lawyer's fee. In almost any other country in the world government employee complaints are adjudicated through the administrative process, as indeed was thought perfectly proper in the United States until 1972, when Congress decided it was more just to give government employees the same rights in court as private employees. Our role is not to choose between administrative or judicial relief; it is to give effect to that selected by Congress. And so we point out that if the majority's pathway to the stars formula for attorney's fees is applied often enough, there may be a popular demand to take government employee Title VII litigation out of the court system altogether and limit employees to administrative relief as previously.

As matters stand now, the Government as defendant pays the cost of its own lawyers in court, the Government pays attorney's fees for those plaintiffs who prevail, and the Government-because it pays not only the true cost of the specific suit but also a contingent factor for attorney's costs in other suits in which the plaintiff does not prevail-pays attorney's fees indirectly for plaintiff lawyers who lose. The Government-the American taxpayer-is financing BOTH sides of ALL Title VII litigation against the Government. This is the chosen mechanism; the court's role is to determine how the fees are to be calculated.

So we now return to the first point above: the Government is financing this litigation under circumstances in which there are no market value forces to restrict or to set "reasonable attorney's fees" ; fundamentally, because there is no market. We all recognize that the government employees who become plaintiffs in Title VII cases do not have the financial resources to bid in the marketplace for attorney's services. Copeland and fellow plaintiffs could never have contemplated this litigation, resulting in a suggested fee of $206,000, and an award of $160,000 plus $12,000 expenses. To vindicate the rights of persons discriminated against, Congress has realistically appraised the situation and recognized that attorney's fees must be taxed to the losing defendant, if there is to be any Title VII litigation brought by the injured persons. We in dissent obviously have no quarrel with this whatsoever; we realistically recognize, however, as our colleagues do not, that here there is no market, and that necessarily there must be a different method of setting a "reasonable attorney's fee" if there are no market forces to determine a "market value" fee.

Whatever the usual merit of "market value," it is anomalous where Congress has specifically sought to complement the market for legal services in Title VII cases with an alternative mechanism for allocating attorney's fees. Rather than relying on the parties in privity-the client and his or her lawyer-to agree among themselves to the value of the services to be rendered, Congress has provided that a trial court, in its discret