Before WRIGHT, Chief Judge, and McGOWAN, TAMM, LEVENTHAL,* ROBINSON, MacKINNON, ROBB, WILKEY, and MIKVA, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
McGOWN, C.J.: 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 above, we affirm the District Court's award. I
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 resistence to the claim asserted against it -- is highly relevant to the reasonableness of the fee award.
A. Copeland's Administrative Complaint
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 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 snet Copeland a copy of its decision. However, Copeland's attorneys were not served with a copy, in violation of Department regulations.
B. Litigation in the District Court
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.
3. Discovery Skirmishes
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 the 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 non-privileged.
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.
The District Court noted:
Plaintiff has ample ground to complain. Her systematic discovery efforts initiated months ago have been impeded unnecessarily and she has been forced to expand 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.
4. The Government's Concession of Liability
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 of 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.
7.The Affirmative Action Program
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 plaintiff12 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 "[any] 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 (1968) (footnotes omitted)14; accord, New York Gaslight Club, Inc., v. Carey
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., Gan 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 concepual 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. 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 feesetting formula that reflects this principle. In Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp ., 487 F.2d 161 (1971) (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 feesetting 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."
1. Hours Reasonably Expended
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 Houus
Senior Partner: Court Appearances 17.3
Senior Partner: Review of pleadings 39.2
Junior Associate: Research & drafting
Junior Associate: Depositions 35.5
2. A Reasonable Hourly Rate
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.
Attorney & Type of Work Hours Rate Total
Senior Partner: Court
appearances 17.3 $95 $1,643.50
Senior Partner: Review
of pleadings 39.2 $85 $3,332.00
Junior Associate: Research
& drafting 87.6 $40 $3,504.00
Depositions 35.5 $40 $1,420.00
Thus, the "lodestar" fee in the 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.
1. The Contingent Nature of Success
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
It is important to recognize that the contingency adjustment is designed solely to compensate for the possibility that 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 makeup 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
1. Quality of Representation
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 [reasonable] 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-round performance of counsel in the specific case: "Any increase or decreas 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 resul 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. III [Formula for Fees ]
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.
A. Fee Awards Against the Government
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. 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.
1. The representation of plaintiff Copeland was undertaken pro bono publico by the Washington, D.C., law firm of Wilmer, Cutler & Pickering (now Wilmer & Pickering). In prior cases in which this firm sought and obtained a fee as the prevailing party in a pro bono case such as this, the firm has contributed the fee to a public interest organization "committed to furthering the kind of public interest involved in the particular litigation." Petition of Appellee for Rehearing & Suggestion for Rehearing En Banc at 12 n.15.
2. 594 F.2d 244 (1978).
3. No. 77-1351, slip op. (June 29, 1979).
4. Id ., Order of June 29, 1979, vacating the panel's judgment.
5. The District Court granted the government judgment on the pleadings for the count based on Executive Order 11478, and also ordered that the Title VII count be tried before the constitutional counts. The government also moved for judgment on the pleadings on various counts, asserting the (1) exclusiveness of Title VII as a remedy for federal employees who allege discrimination on the basis of race or sex, (2) absence of jurisdiction over all individual defendants except the Secretary of Labor, (3) failure to exhaust administrative remedies, and (4) primary jurisdiction of the Department of Labor and Civil Service Commission. The District Court did not address any of these theories in its order.
6. The government conceded that it inadvertently had destroyed some documents, but argued that any relevant information contained therein could be obtained from other sources.
7. The continuance was sought because the government's principal attorney had a military service obligation that made trial preparation difficult. The government contended that the case was too complex to substitute new counsel.
8. The stipulation noted that "Defendant asserts that he is not presently violating Title VII."
9. In exchange for the government's concessions, plaintiff stipulated to the dismissal, with prejudice, of the counts of the complaint that had been held in abeyance pending litigation of the Title VII claim. See note 5 supra .
10. Among topics discussed at the hearing were the need for an effective enforcement mechanism, potential collective bargaining difficulties, the need for quotas in promotions, record keeping, appropriations for training programs, and the composition of promotion panels.
11. At issue in this hearing was the necessity of (1) hiring and promotion quotas, and (2) the court's retention of jurisdiction over the case to ensure compliance by the Department.
12. Some of the plaintiff's proposed changes that the District Court ordered incorporated into the plan concerned (1) reporting, (2) training programs, (3) employee notification, (4) composition of evaluation panels, and (5) retention of jurisdiction by the court to insure compliance.
13. A secondary purpose of the fee provision is to deter discrimination, e.g ., Palmigiano v. Garrahy, No. 79-1183, slip op. at 3 (1st Cir March 3, 1980); Dennis v. Chang, 611 F.2d 1302, 1306 (9th Cir. 1980); Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3d Cir. 1977), cert. denied, 436 U.S. 913 (1978), and thereby obviate litigation.
14. Piggie Park was brought under Title II of the Civil Rights Act of 1964. It is, nevertheless, also the guide to the award of fees under Title VII. E.g ., Albermarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975); Parker v. Califano, 561 F.2d 320, 327-28 (D.C. Cir. 1977).
15. See generally B. Schlei & P. Grossman, Employment Discrimination Law 1291 & n.26 (1976); id . at 345 & n.22 (Supp. 1979), and cases cited therein. In its recently promulgated interim regulations regarding fee awards for work performed during administrative processing of Title VII claims, the Equal Employment Opportunity Commission adopted the same factors. 45 Fed. Reg. 24,130 (1980).
16. The panel opinion in this case, perceptively we think, also identified these difficulties with the Johnson factors. Copeland II, slip op. at 4-5 & n.2. See also Northcross v. Board of Educ., 611 F.2d 624, 642-43 (6th Cir. 1979).
17. One law review article counted at least seventy-five statutory grants of authority to award an attorney's fee. Berger, Court Awarded Attorneys' Fees: What is "Reasonable "?, 126 U. Pa. L. Rev. 281, 303 & n.104 (1977).
18. E.g ., Oldham v. Ehrlich, No. 79-1938, slip op. at 10 n.9 (8th Cir. March 12, 1980); Dillon v. AFBIC Devel. Corp., 597 F.2d 556, 564 (5th Cir. 1979); Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). However, it sometimes will be the case that a lawsuit will seek recovery under a variety of legal theories complaining of essentially the same injury. A district judge must take care not to reduce a fee award arbitrarily simply because a plaintiff did not prevail under one or more of these legal theories. No reduction in fee is appropriate where the "issue was all part and parcel of one matter," Lamphere v. Brown Univ., 610 F.2d 46, 47 (1st Cir. 1979), but only when the claims asserted "are truly fractionable," id .
19. See, e.g., Johnson, 488 F.2d at 718; section III of this opinion infra.
20. See B. Schlei & P. Grossman, supra note 15, at 1291-92.
21. For a discussion of the circumstances under which a hearing is useful, see notes 55 & 57 and accompanying text infra .
22. Factors other than those discussed here may be relevant to the setting of fees under other statutes. For example, it is well established that it may not be necessary to award fees representing the full market value of an attorney's time to provide an incentive to vindicate certain Freedom of Information Act rights, because obtaining the information may result in private pecuniary gain. See LaSalle Extension Univ. v. FTC, No. 79-1270, slip op. at 3-5 (D.C. Cir. June 5, 1980); Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 711-12 (D.C. Cir. 1977). Other factors may be relevant in setting fees in other contexts.
23. On the other hand, if the "lodestar" itself is based on present hourly rates, rather than the lesser rates applicable to the time period in which the services were rendered, the harm resulting from delay in payment may be largely reduced or eliminated.
24. The setting of contingency adjustments is particularly within the expertise of the District Judge. As the Supreme Court said long ago, the District Court "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 (1882).
25. As originally enacted, Title VII did not permit employment discrimination suits against the federal government. Thus, when Title VII was enacted in 1964, the quoted provision permitted costs, including attorney's fees, to be assessed against the United States only when it was a losing plaintiff . Title VII was amended in 1972 to permit suits against the government. The attorney's fee provision was then made applicable to suits by federal employees. 42 U.S.C. § 2000e-16(d). Thus, costs and attorney's fees now are to be assessed against the United States "the same as a private person" where the United States is the losing defendant as well as where it is a losing plaintiff.
26. E.g., Palmigiano v. Garrahy, No. 79-1183, slip op. at 3 (1st Cir. March 3, 1980); Dennis v. Chang, 611 F.2d 1302, 1306 (6th Cir. 1980); Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3d Cir. 1977), cert. denied, 436 U.S. 913 (1978).
27. The Supreme Court, in the context of awarding fees to prevailing defendants, saw no reason to apply different fee-setting standards where the federal Equal Employment Opportunity Commission, rather than a private person, was the unsuccessful plaintiff. The Court commented: It has been urged that fee awards against the Commission should rest on a standard different from that governing fee awards against private plaintiffs.... Yet § 706(k) explicitly provides that "the Commission and the United States shall be liable for costs the same as a private person." Hence, although a district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission's litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff . Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422-23 n.20 (1978) (emphasis added). The Supreme Court also has said that the goal of extending Title VII to cover federal employees was to eradicate '"entrenched discrimination in the Federal service,"'... by according "[aggrieved] [federal] employees... the full rights available in the court as are granted to individuals in the private sector under title VII." Chandler v. Roudebush, 425 U.S. 840, 841 (1977) (emphasis added).
28. Indeed, the concept of a "reasonable profit" is an anomaly when applied to a nonprofit civil rights organization. It is difficult to comprehend how a "reasonable" profit is to be calculated because there is nothing in the organization's experience with which to compare it.
29. E.g., Johnson v. State of Miss., 606 F.2d 635, 637-39 (5th Cir. 1979); Gagne v. Maher, 594 F.2d 336, 343-44 (2d Cir.), aff'd, 48 U.S.L.W. 4891 (U.S. June 25, 1980); Lund v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978). In cases in which a non-statutory fee is sought out of a "common fund" earned for a group of plaintiffs, time spent litigating the fee issue may not be compensable. Lindy II, 540 F.2d at 110-11; see note 57 infra .
30. One district court judge recently awarded approximately $5,000 in additional fees for time spent solely attempting to document a fee request. The judge commented: If this amount is considered excessive for services rendered solely in connection with a fee request, it should be noted that a substantial part of this cost is attributable to the extensive procedural and evidentiary requirements for court-awarded attorneys' fees imposed by the Copeland opinion.... Bachman v. Pertschuk, 19 Empl. Prac. Dec. 6500, 6512 n.5 (D.D.C. 1979), appeal pending, No. 79-1650 (D.C. Cir.).
31. The 1976 Act permits court-awarded fees to the prevailing party in certain civil rights suits. That Act was patterned after the 1964 Act's fee-shifting provision, under which this case arises. New York Gaslight Club, Inc. v. Carey, 48 U.S.L.W. 4645, 4649-50 n.9 (U.S. June 9, 1980); Hanrahan v. Hampton, 48 U.S.L.W. 3780, 3781 n.4 (U.S. June 2, 1980).
32. See p. 13 of this opinion supra .
33. Memorandum of United States in Response to Court's Request for Its Views on Rehearing En Banc t 2-3 [hereinafter cited as Memorandum of United States ].
34. Indeed, to the extent that the panel's new approach is at all relevant to the question of the number of hours expended, the panel's scheme calls to mind the practice of government contractors of obtaining "cost-plus" contracts for services rendered. That practice, as the panel itself recognized, has been criticized for increasing costs by removing the incentive for efficiency. Copeland II, slip op. at 7. The "market value" approach may be more effective than "cost-plus" in reducing inflated fee requests for another reason. Consider, for example, a defendant requesting fees from a losing plaintiff under the doctrine of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Suppose that counsel for the prevailing defendant requested a fee based on rates that, although accurately reflecting its costs, grossly exceeded the prevailing market rate. A judge applying the "cost-plus" formula would have to endorse the requested fee, because "cost-plus" essentially accepts at face value the law firm's actual costs. On the other hand, a judge applying the market value" approach would be expected to reduce the proferred hourly rate to that prevailing in the marketplace.
35. The panel opinions seem to assume, but nowhere explain, why the prevailing hourly rate in the community -- i.e., rates established by the pressures of the market mechanism -- is unreasonable.In light of the oft-reported glut of lawyers, it cannot be said that any particular purveyor of legal services enjoys monopoly power with which artifically to raise rates to yield more than a "reasonable" profit. Certain of the more "prestigious" firms do charge rates higher than those of other firms and practitioners. Clients nonetheless seek their services, not because of any monopoly power enjoyed by the firm, but because the clients believe that the services rendered warrant the expense.
36. The government itself states: [Fees] to these [public interest law] firms should not be less than would be the case had a for-profit law firm brought the suit. Strong considerations of public policy require that such firms and lawyers receive fee awards equal to those made to firms and attorneys at large. Memorandum of United States, supra note 34, at 4-5.
37. E.g., Konczak v. Tyrrell, 603 F.2d 13, 19 (7th Cir. 1979), cert. denied, 100 S. Ct. 668 (1980); Carr v. Blazer Financial Serv., Inc., 598 F.2d 1368, 1370 (5th Cir. 1979); Lindy II, 540 F.2d at 115 & n.11; Evans, 503 F.2d at 187.
38. Cuneo v. Rumsfeld, 553 F.2d 1360, 1368 (D.C. Cir. 1977); accord, Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978); Souza v. Southworth, 564 F.2d 609, 613 (1st Cir. 1977); Lindy II, 540 F.2d at 115 & n.11; Pete v. UMW Welf. & Retirement Fund, 517 F.2d 1275, 1289 (D.C Cir. 1975) (en banc ); Keyes v. School Dist. No. 1, 439 F. Supp. 393, 403-04 (D. Colo. 1977).
39. That we defer to the trial judge's familiarity with a lawsuit does not, of course, imply that we abandon our duty to review fee awards. It is axiomatic that we cannot identify an unreasonable award unless it is accompanied by a statement of reasons. Thus, a remand may be necessary where the District Court awards a fee without adequately articulating underlying reasons, see, e.g., Evans 503 F.2d at 188, or bases its decision on improper factors, see, e.g., Lindy II, 540 F.2d at 116.
40. Compare the District Court's Memorandum Opinion, quoted on pp. 12-14 supra, with section II of this opinion supra .
41. The ever-changing case caption is mute testimony to the length of these-proceedings. Four different secretaries of Labor -- Messrs. Brennan, Dunlop, Usery, and Marshall -- served, seriatim, as the nominal defendant.
42. "[We] will not remand a case for more specific findings if doing so will consume precious time and judicial resources without serving any purpose." La Salle Extension Univ. v. FTC, No. 79-1270, slip op. at 7 (D.C. Cir. June 5, 1980).
43. See, e.g., In re TMT Trailer Ferry, Inc., 577 F.2d 1296, 1304 (5th Cir. 1978); B-M-G Inv. Co. v. Continental/Moss Gordin, Inc., 437 F.2d 892, 893 (5th Cir.), cert. denied, 402 U.S. 989 (1971).
44. See, e.g., Firefighters Institute for Racial Equality v. City of St. Louis, 588 F.2d 235, 242-43 (8th Cir. 1978), cert. denied, 443 U.S. 904 (1979).
45. E.g., Brown v. Culpepper, 559 F.2d 274, 278 (5th Cir. 1977); cf. Postow v. OBA Fed. Sav. & Loan Ass'n, No. 78-1892, slip op. at 34-36 (D.C. Cir. June 18, 1980) (appellate court in exceptional case would itself after, rather than remand, the amount of statutory damages to be awarded).
46. Lindy II, 540 F.2d at 118; see Souza v. Southworth, 564 F.2d 609, 613 (1st Cir. 1977).
47. The government contends that the District Court should have set a lower hourly rate for time spent on out-of-court work. Although this practice may be desirable under some circumstances, see section II-A-2 of this opinion supra, we do not think using a single hourly rate in this case was error. In a recent case in which the government sought a fee as the prevailing defendant it requested and received payment on the basis of a uniform hourly rate for all work performed. See Defendant's Memorandum in Support of Application for Award of Costs Including Reasonable Attorneys' Fees at 9, Copeland v. Martinez, No. 76-1156 , aff'd, 603 F.2d 981 (D.C. Cir. 1979), cert. denied, 100 S. Ct. 730 (1980). More important, the government in this case never asked the District Court to compute fees based on differentiated hourly rates.
48. See note 18 and accompanying text supra .
49. E.g., Gagne v. Maher, 594 F.2d 336, 345 (2d Cir.) (excessive time spent), aff'd, 48 U.S.L.W. 4891 (U.S. June 25, 1980); Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir. 1978) (duplication of effort); cf. Brown v. Stackler, No. 78-2503, slip op. at 3 (7th Cir. Jan. 21, 1980) ("utterly unreasonable" amounts of time).
50. The District Court believed that inadequate partner time had been spent in this case. This seems indeed to have been the case. We do not, of course, intend to discourage the use of associates in litigation of this sort; because associates command lesser hourly rates, the use of associates may help reduce the ultimate legal bill. McPherson v. School Dist. No. 186, 465 F. Supp. 749, 757 (S.D. Ill. 1978); cf. Chapman v. Pacific Tel. & Tel. Co., 456 F.Supp. 77, 82-83 (N.D.Cal. 1978) (commending the use of paralegals). However, young associates' efforts will be fully productive only if guided by proper supervision by experienced litigators.
51. See Northcross v. Board of Educ., 611 F.2d 624, 636-37, 640-41 (6th Cir. 1979); Davis v. Board of School Comm'rs, 526 F.2d 865, 868-69 (5th Cir. 1976); Pete v. UMW Welf. & Retirement Fund, 517 F.2d 1275, 1289, 1290 & n.74 (D.C. Cir. 1975) (en banc ) (30% reduction); Kane v. Martin Paint Stores, Inc., 439 F. Supp. 1054, 1057-58 (S.D.N.Y. 1977) (20% reduction), aff'd, 578 F.2d 1368 (2d Cir. 1978). But cf. Prandini v. National Tea Co.
52. The government now argues also that too many hours were spent because the case was not complex. This assertion is not credible; the government itself in the District Court called the case "[extremely] [complex]." See p. 8 of this opinion supra. The government, in retrospect, considered the case to be uncomplicated. We need not repeat the history of the case. The long and rocky road which we have described does not support characterizing it as simple. Rainey v. Jackson State College, 551 F.2d 672, 677 (5th Cir. 1977).
53. Wolf v. Frank, 555 F.2d 1213, 1217 (5th Cir. 1977) ("Obviously, the more stubborn the opposition the more time would be required" by the other side); Perkins v. New Orleans Athletic Club, 429 F. Supp. 661, 667 (E.D. La. 1976) ("Those who elect a militant defense... [are responsible for] the time and effort they exact from their opponents").
54. Maher v. Gagne, 48 U.S.L.W. 4891, 4893 (U.S. June 25, 1980). See also Iranian Students Ass'n v. Edwards, 604 F.2d 352, 353 (5th Cir. 1979); Sargeant v. Sharp, 579 F.2d 645, 647 n.3 (1st Cir. 1978).
55. E.g., Harkless v. Sweeny Indep. School Dist., 608 F.2d 594, 597 (5th Cir. 1979); Sargeant v. Sharp, 579 F.2d 645, 646-47 (1st Cir. 1978); Merola v. Atlantic Richfield Co., 515 F.2d 165, 169, 170-71 (3d Cir. 1975); City of Detroit v. Grinnell Corp., 495 F.2d 448, 468-74 (2d Cir. 1974).
56. At oral argument before this court, counsel for the government conceded that, in the District Court, "we filed a good brief on the question... in which we raised all of the issues."
57. Konczak v. Tyrrell, 603 F.2d 13, 19 (7th Cir. 1979) ("Considering the depth of the briefing, a hearing on the attorney's fees was unnecessary"), cert. denied, 100 S. Ct. 668 (1980); accord, Kaplan v. International Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1363 (9th Cir. 1975). A hearing may be vital in cases involving attorney's fees to be paid from a "common fund" containing the undistributed proceeds of class litigation. In "common fund" cases, the losing party no longer continues to have an interest in the fund; the contest becomes one between the successful plaintiffs and their attorneys over division of the bounty. See generally Boeing Co. v. Van Gemert, 100 S. Ct. 745 (1980). By contrast, in cases such as the instant case where the prevailing party's fees are paid by the loser pursuant to statute, the adversary papers filed by plaintiff and defendant may adequately illuminate the factual predicate for a reasonable fee. This is so because the losing party in statutory fee cases retains an interest in contesting the size of the fee.This is not the case in "common fund" fee litigation, so the District Court in those cases has a special obligation to ensure that the fee is fair.
58. Compare In re : FTC Line of Business Report Litigation, No. 77-2099, slip op. at 8 & n.22 (D.C. Cir. May 1, 1980).
59. In its brief in the District Court, the government noted that it "does not dispute the validity of plaintiff's counsel's time and disbursement records."
60. Brief for Appellee at 33-34.
61. Another factor to be considered under the general rubric of "contingency" adjustments is that delay in the receipt of fees may warrant an increase in them. See note 23 and accompanying test supra . Plaintiff's attorneys point out that their normal rates are based on the expectation of prompt payment by the client, Supplemental Brief for Appellee at 56-57, and that, in contrast, the fee in this case will not be obtained until years after the legal services were rendered. Although these are circumstances in which an adjustment might have been appropriate, none was made by the District Court, and none was requested.
62. It may well be that time was inadvertently wasted due to the attorneys' inexperience. The District Court Judge recognized this, however, and awarded a fee that did not fully reflect all the hours actually expended. Thus, any "time-wasting" already had been addressed by reducing the number of hours used to compute the "lodestar." See pp. 43-47 supra. See generally section II-A-1 of this opinion supra . No additional reduction in fee for excess time expended is warranted under the category of "quality of representation."
63. See generally Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).
64. Cf. generally Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) (seniority).
65. See generally B. Schlei & P. Grossman, supra note 15, at 1199-1221.
66. The government contends that it offered voluntarily much of the relief that plaintiff obtained. The government points out that the adopted affirmative action plan was basically that proposed by the Secretary of Labor. In sum, the government denigrates the efforts of plaintiff's counsel in bringing about the equitable relief we have described. We think, though, that plaintiff's lawsuit acted as a catalyst which prompted the [employer] to take action implementing its own fair employment policies and seeking compliance with the requirements of Title VII. Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 429-30 (8th Cir. 1970). Indeed, in papers filed in the District Court, the government itself lauded "the service rendered by Mrs. Copeland to the Department of Labor in pointing her finger at a situation which heretofore has been unperceived." The record in this case clearly demonstrates that the [government] changed its policies with great reluctance and only under the pressure of the lawsuit....The [settlement] was the product of the litigation and plaintiff is entitled to use it to justify and award [of fees]. Gagne v. Maher, 594 F.2d 336, 341 (2d Cir.), aff'd, 48 U.S.L.W. 4891 (U.S. June 25, 1980).
67. Cf . Harkless v. Sweeny Indep. School Dist., 608 F.2d 594, 598 (5th Cir. 1979) (discussing the value of vindicating one's professional status).
68. If plaintiffs had to bear their own attorneys' fees in a suit for injunctive relief "few aggrieved parties would be in position to advance the public interest by invoking the injunctive powers of the federal courts." Sprogis v. United Air Lines, 517 F.2d 387, 391 n.5 (7th Cir. 1975), quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). Moreover, the Supreme Court very recently observed that "Congress intended to permit attorney's fees awards in cases in which prospective relief was properly awarded against defendants who would be immune from damage awards." Supreme Court of Va. v. Consumers Union, 48 U.S.L.W. 4620, 4625 (U.S. June 2, 1980). MINORITY OPINIONFOOTNOTES
1. Not to be confused with the motto of the Royal Canadian Air Force, Per Ardua Ad Astra .
2. 503 F.2d 177 (D.C. Cir. 1974).
3. 488 F.2d 714 (5th Cir. 1974).
4. 517 F.2d 1237 (D.C. Cir. 1974).
5. Third edition, reprinted in C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE CIVIL (Supp. 1973).
6. 517 F.2d 1275, 1289-93 (D.C. Cir, 1975) (enbanc ).
7. 521 F.2d 317, 322 (D.C. Cir. 1975).
8. The "going hourly rate" itself is the first fiction relied on by the majority. In King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977), the court found that "[the] 'normal' per hour rate in a locale is itself an artificial construct. Actual bills will frequently be lower, sometimes much lower, than that rate might indicate." Id. at 1027. Here the attorneys for appellees submitted a letter addressed to the Washington Lawyers' Committee for Civil Rights Under Law as to the prevailing hourly rates of major law firms which would apply to services in connection with employment discrimination cases. App. at 143, Appendix E. Four of Washington's major law firms were surveyed and the rates were stated to be $35-$50 per hour for associates and $50-$100 per hour for partners. No further information was supplied as to how these figures were arrived at.
9. Our colleagues totally fail to recognize the non-applicability of this to litigation against the Government. They blithely state: "A second policy also underlies fee awards... the prospect of liability for an attorney's fee may help deter discrimination and thereby obviate the need for litigation. We do not think that the incentive for the government to refrain from discrimination should be any less than for private employers." Maj. op. at 28-29. "The incentive to employers not to discriminate is reduced if diminished fee awards are assessed when discrimination is established." Id. at 38.
10. Copeland v. Martinez, 603 F.2d 981 (D.C. Cir. 1979), cert. denied, 48 U.S.L.W. 3465 (U.S. 21 Jan. 1980) (No. 79-647). Memorandum of the United States in Response to Court's Request for Its Views on Rehearing En Banc (3 Dec. 1979), at 4 n.4: "A recent Justice Department survey, based on a workyear of 2,080 hours, revealed that the average cost (including salary and overhead) for an attorney at GS-11, step 4 -- a level commensurate with a first-year associate -- was $27.48 per hour. The figure for a GS-14, step 4 -- a level commensurate with a senior associate -- was $38.52. The figure for a GS-17 -- a level of experience and responsibility equivalent to a senior partner -- was $48.28."
11. See Evans Sheraton Park Hotel, 503 F.2d 177, 187-88 (D.C. Cir. 1974).
12. Further factors we should recognize about Government Title VII suits are that the Government's good faith and official policy against discrimination are to be presumed; that government employees are already encouraged to pursue their legal remedies by virtue of their relatively more protected employment and thus need fear retaliation less than privately employed potential plaintiffs; that Government employees have administrative remedies short of bringing a federal court action; and that consequently it is less incumbent upon courts to administer the attorney's fees statutes with great liberality in order to encourage federally employed plaintiffs to sue.
13. Maj. op. at 32.
14. Id .
15. 42 U.S.C. § 2000e-5(k) (1976).
16. Id . § 2000e-16(d).
17. 390 U.S. 400 (1968).
18. Id . at 402.
19. 42 U.S.C. § 1988 (1976).
20. H. REP. No. 1588, 94th Cong., 2d Sess. 9 (1976).
21. Id. See S. REP. No. 1011, 94th Cong., 2d Sess. 2, 6 (1976).
22. S. REP. No. 1011, 94th Cong., 2d Sess. 6 (1976).
23. 488 F.2d 714 (5th Cir. 1974).
24. Id . at 719. See also Part II.C. infra .
25. Maj. op. at 30.
26. See id . at 18.
27. To illustrate what we mean by the marketplace making its calculation of contingencies, the price of each stock on the New York Stock Exchange represents absolutely the most complete calculation of all contingencies, known or imagined, presently relevant to that stock at any given moment. The price of General Motors stock, for example, represents an appraisal of past dividend policy, earnings past and projected, the contingencies of increased Japanese imports, decreased Japanese imports because of voluntary restraints, decreased Japanese imports because of United States legislation, the contingency of the complete failure of Chrysler Corporation, the contingency of the construction of new automobile plants by foreign manufacturers in the United States, the contingency of a depression equal to that of the 1930's, the contingency of war in the Middle East shutting off the fuel supplies for American automobiles, and 1,001 contingencies that the marketplace evaluates in its own way every hour of every day -- not only for one stock, but for every stock as a comparative investment with every other stock.
28. The majority opinion, at 23, seeks to distinguish its "contingency" notion from that common in the torts field. The attempted distinction is unavailing because in both instances the successful lawyer is being rewarded for undertaking risk. There is a distinction, however, which the majority overlooks: in a torts case, the lawyer's contingent fee is a fixed percentage of an amount arrived at by outsiders -- i.e ., the jurors. In contrast, a prevailing lawyer operating under the majority's formula would benefit from a contingency payment not meaningfully constrained by outside parties. This lawyer would have almost totally within his control the ability to claim the principal amount into which the contingency premium would be factored. In short, the difference is as follows: in torts, the jury sets the amount of the verdict out of which the lawyer takes his cut, whereas in Title VII attorney's fees cases the lawyer sets the number of hours worked out of which the same lawyer bases his cut.
29. Maj. op. at 23.
30. Id .
31. Of course any such inquiry will expose some aspects of law firm fee-setting that some lawyers might prefer to keep secret. That this occurs under present standards can be seen from the following excerpts of a recent newspaper report on judicial setting of attorney's fees: U.S. District Judge William C. O'Kelley's fees decision in the Atlanta chicken antitrust litigation hung on the line an amazing array of lawyers' laundry, both dirty and clean. The judge detailed the roles played by various plaintiffs' lawyers, the customary hourly rates reportedly earned in non-contingent-fee cases, and the strategy used to overcome litigation obstacles. Customary hourly rates put forward by counsel were reduced in almost all instances, based on the judge's determination of what was "reasonable." With the totaling of the lodestar awards at $1,935,730, the judge reached the most subjective -- and perhaps the most crucial -- area of his analysis, selection of multipliers." Legal Times of Washington, 11 Aug. 1980, at 6.
32. Our colleagues have noted the statement of the law firm involved here that in previous pro bono cases the firm has contributed the fee to a public interest organization "committed to furthering the kind of public interest involved in the particular litigation." Maj. op. at 3 n.1. This might be characterized as the Robin Hood approach, taking from rich Uncle Sam to benefit attorneys for the deserving poor, as selected by the private firm. While charity is to be commended, we thought Robin Hood's fame rested on his romantic appeal, not his contribution to precedential jurisprudence. And, Robin Hood gave to the poor, not to their lawyers. We suggest a more orderly and more constitutional approach would be to let Congress decide which public interest organizations are to be subsidized by taxpayer funds, not to do it indirectly and undirected through inflated attorney's fees in Title VII cases.
33. It may very well be, though admittedly it is not clear, that the majority's "market value" formula will operate to shrink somewhat rather than swell the ranks of private plaintiffs served. The "market value" hours times hourly rate method of computation, when combined with payments only for prevailing liitgants, may cause lawyers to stick unduly with a case that looks good once they have committed initial resources. "Market value" would incline lawyers to continue pumping as many hours as possible into "a winner," possibly sacrificing the legal needs of other hopeful plaintiffs. The "cost-plus" approach entails, perhaps, a bit more internal discipline within the law firm. Lawyerly efficiency may be promoted by discounting the expected benefits of "pumping hours" into any one case. There would be a greater propensity to serve a series of plaintiffs, rather than merely the first few who were lucky in gaining counsel's attention.
34. Our colleagues say: "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." Maj. op. at 18. (emphasis added). We think complete actual cost plus a reasonable profit "adequately compensates" any lawyer for any work, pro bono or other. We further assert that this is all Congress could have intended by calling for "a reasonable attorney's fee" in Title VII cases, and that this meets the Supreme Court's views expressed in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02 (1968). Obviously our colleagues have a more exalted view of what compensation is due a lawyer.
35. Maj. op. at 21.
36. 488 F.2d 714, 718-19 (5th Cir. 1974).
37. Id. at 718.
38. Maj. op. at 24.
39. See id. t 53.
40. Id. at 42.
41. As witness the fact that in this case, the court received and in some instances solicited views from some 27 parties that joined in amicus curiae briefs. With two opinions of the court in the case at bar already published, this is remarkably similar to notice and comment rulemaking -- especially as the result here is a rule prospective in effect, without any application of the rule to an adjudicatory case presently at bar.
42. Maj. op. at 23.
43. A remand is particularly called for in this case, so we can see how the new formula works in comparison with the old standards.
44. 594 F.2d 244, 251 (D.C. Cir. 1978).
45. Id. (emphasis added).
46. See Petition of Appellee for Rehearing and Suggestion for Rehearing En Banc, at 3.
47. See Part I.E. supra.
48. See Part I.F. supra .
49. As our second panel opinion indicated, averages are a perfectly satisfactory way of minimizing intrusion into private firms' finances and eliminating excessive litigation on minutiae.There are, of course, a number of different methods for figuring average costs. One could utilize averages computed on the basis suggested by the second panel opinion -- individual figures calculated for the salaries and overhead of first-year associates, second-year associates, etc. Alternatively, one could take the simple annual overhead costs of a firm expressed in terms of a percentage of gross income and apply it to standard rates. Since it is not unlikely that most private firms operate on an overhead percentage (including associate salaries) of somewhere between 35 and 55 percent, that percentage is a reasonably accurate expression of the amount of each dollar of fee attributable to a particular firm's "costs." While this is obviously not completely accurate since higher hourly rates carry a higher profit margin, it is nevertheless an accurate average.
50. We have discussed contingency as applied in the cost-plus method, distinguishing it from the redundant contingency "lodestar" method of the majority's in Part II.A. supra .
51. We are also aware that a number of public interest firms have filed briefs amici curiae in this case expressing their concern about the use of the cost-plus calculation and its potential effect upon their practices. We assume that most of these organizations are tax-exempt non-profit firms pursuant to section 501(c)(3) of the Internal Revenue Code. As such, although they are prohibited from using the likelihood or probability of the award of attorney's fees in selecting cases, they may "accept attorneys' fees in public interest cases if such fees are paid by opposing parties and are awarded by a court. ..."Rev. Proc. 75-13, 1975-1 C.B. 662. Such organizations may defray up to fifty percent of the costs of their legal functions with such fees. Id. Again, the salary and cost figures of such organizations are well known and must be compiled yearly in connection with the tax return that even such tax-exempt groups must file.
52. In their petition for rehearing en banc filed 13 December 1978, counsel for appellees send mixed signals on deterrence. On the one hand they assert that: "law firms which, like plaintiff's counsel have the resources to handle major discrimination cases but have substantial practices in other areas may decide to forego seeking statutory fee awards or even cease representing civil rights plaintiffs altogether." Petition of Appellee for Rehearing and Suggestion for Rehearing En Banc, at 11 (13 Dec. 1978). However, they go on to say: Plaintiff's counsel take pro bono cases whether or not counsel fees may be awarded. In the majority of such cases, no fee is or can be sought. The firm has sought fees, in some pro bono cases where statutes have provided for fee awards.... In the few previous cases to date in which costs, including attorneys' fees, have been sought and awarded, the firm has contributed the fee portion of the award to such an [public interest] organization. Id. at 12 n.15. The latter practice may be highly commendable, but when compared with the former statement is perplexing.
53. See Memorandum of the United States in Response to Court's Request for Views on Petition for Rehearing En Banc, at 6 (24 Apr. 1979) (footnote omitted). The problem of exorbitant attorney's fees is damaging to the Bar -- and to the Bench, too, if it appears to approve such. In his Orison Marden Lecture, 18 October 1978, on "Reforms -- Long Overdue," Associate Justice Lewis F. Powell, Jr. discussed seven needed reforms. One was "Lawyers' Fees." Justice Powell noted that "[a] related problem is evidenced by the increasing criticism of lawyers' fees.... [The] justification of hourly rates that tend to price competent lawyers out of the individual and small business client market is being questioned." 33 The Record of the Association of the Bar of the City of New York 458, 464 (1979). Editorial comment has been frequent, and in the same vein. See, e.g., Miami Herald, 21 Nov. 1978, at 6-A, col. 1; Wall St. J., 24 Nov. 1978, at 10, col. 1; Wash. Post, 8 May 1979, at A20, col. 1. This reflects an unfortunate popular perception of how lawyer's fees are arrived at, illustrated by this current example of humor: An immediately deceased lawyer arrived at the Pearly Gates to seek admittance from St. Peter. The Keeper of the Keys was surprisingly warm in his welcome: "We are so glad to see you, Mr. . We are particularly happy to have you here, not only because we get so few lawyers up here, but because you lived to the wonderful age of 165." Mr. was a bit doubtful and hesitant. "Now, St. Peter, if there's one place I don't want to get into under false pretenses, it's Heaven. I really died at age 78." St. Peter looked perplexed, frowned, and consulted the scroll in his hand. "Ah, I see where we made our mistake as to your age. We just added up your time sheets!" It is time the courts put the calculation of attorney's fees on a basis which can be respected.
54. See Memorandum of the United States in Response to Court's Request for Views on Petition for Rehearing En Banc, at 1 (24 Apr. 1979) (footnote omitted).
55. Id. at 12.