Memo from Lani Guiner RE: Survey of State Voter Registration Problems

    In The

Supreme (Eourt af tî e Enitcb States
October Term , 1979

No. 79-701

Roadw ay  Express, Inc.,
Petitioner

v.
J. D. Monk, et a l .,

Respondents

On Writ o f Certiorari to the 
United States Court o f  Appeals for the 

Fifth Circuit

PETITIONER’S OBJECTIONS TO THE MOTION
OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., FOR LEAVE TO 
FILE BRIEF AM ICUS CURIAE

M iles Curtiss McK ee 
A rmin J. Moeller, Jr .
F uselier, Ott, McK ee 

& F lowers, P.A.
2100 Deposit Guaranty Plaza 
Jackson, Mississippi 39201 
(601) 948-2226 
Counsel for Petitioner



TABLE OF CONTENTS

Page

Table of Cases and Authorities....................................  ii
Background......................................................................  1
The Objections..............................................   2

I. OBJECTION NO. 1: WHETHER THE 
THREE ATTORNEYS ENGAGED IN 
CONDUCT WHICH SUBJECTED THEM 
TO AN ASSESSMENT OF COSTS UNDER 
SECTION 1927 IS NOT PROPERLY BE­
FORE THE COURT.........................................  2

II. OBJECTION NO. 2: THE COURT OF A P­
PEALS’ DECISION ON THE ISSUE OF 
WHETHER ATTORNEYS’ FEES ARE IN­
CLUDABLE AS "COSTS” UNDER SEC­
TION 1927 IS CLEARLY FINAL..................  4

Conclusion......................................................................... 7



11

TABLE OF CASES AND AUTHORITIES

Page(s)

Black v. Cutters Laboratories, 351 U.S. 292 (1956) ... 5

Malat v. Riddell, 383 U.S. 569 (1966)............................ 5

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970)... 3

NLRB v. International Van Lines, 409 U.S. 48 
(1972)............................................................................  3

United States v. ITT Continental Baking Co., 420 
U.S. 223 {1 9 7 5 )....................................................   6

United States v. Reliable Transfer Co., 421 U.S. 397 
(1975)............................................................................  3

Wheeler v. Anchor Continental, Inc., 20 Fair Empl.
Prac. Cas. 591 (D.S.C. 1978), appeal docketed, No. 
79-1116 (4th Cir. Feb. 14,1979)...............................  2

R. Stern & E. Gressman, Supreme Court Practice 
480 (5th ed. 1978)........................................................ 4



In The

Supreme Court of the United States
October Term, 1979

No. 79-701

Roadw ay  Express, Inc.,
Petitioner

v.
J. D. Monk, et a l .,

Respondents

On Writ o f  Certiorari to the 
United States Court o f  Appeals for the 

Fifth Circuit

PETITIONER’S OBJECTIONS TO THE MOTION 
OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., FOR LEAVE TO 
FILE BRIEF AMICUS CURIAE

BACKGROUND

On March 25, 1980, counsel for Roadway was timely 
served with a motion for leave to file a brief amicus curiae 
submitted by the NAACP Legal Defense and Educational



2

Fund, Inc., in support of the respondents.1 Roadway re­
spectfully submits its objections to the Legal Defense 
Fund’s request.

THE OBJECTIONS

I. OBJECTION NO. 1: WHETHER THE THREE AT­
TORNEYS ENGAGED IN CONDUCT WHICH SUB­
JECTED THEM TO AN ASSESSMENT OF COSTS 
UNDER SECTION 1927 IS NOT PROPERLY BE­
FORE THE COURT.
The rationale of the Legal Defense Fund’s primary 

argument is foreclosed by the respondents’ failure timely 
to file a cross-petition for a writ of certiorari. Con­
sequently, such portions of the Legal Defense Fund’s brief 
which advance arguments foreclosed from presentation in 
this Court by the respondents, are irrelevant to the 
disposition of this case, and barred from consideration 
under Rule 42(3) of this Court relating to briefs amicus 
curiae.

The Legal Defense Fund’s primary argument is that 
"[t ]h e  writ of certiorari should be dismissed as improvi- 
dently granted,” LDF Brief at 3, the rationale of the 
argument being that "both the Court of Appeals and the 
district court below erroneously assumed that § 1927 was

1 The Legal Defense Fund’s brief is hereinafter cited as 
“LDF Brief. ” Although not specifically mentioned in its brief, 
Legal Defense Fund attorneys appear as counsel of record for 
attorneys assessed with attorneys’ fees under § 1927 in a case 
pending in the United States Court of Appeals for the Fourth 
Circuit. Wheeler v. Anchor Continental, Inc., 20 Fair Empl. 
Prac. Cas. 591 (D.S.C. 1978), appeal docketed, No. 79-1116 (4th 
Cir. Feb. 14, 1979).



3

applicable to the facts presented here.” Id.2 This rationale, 
however, was vigorously argued by the respondents in the 
court of appeals,3 categorically rejected by that court,4 and 
thus foreclosed from argument in this case by the re­
spondents’ failure to timely seek review of that portion of 
the court o f appeals’ judgment in this Court, E.g., NLRB 
v. International Van Lines, 409 U.S. 48, 52 n,4 (1972); 
Mills v. Electric Auto-Lite Co., 396 U.S. 375, 381 n.4 (1970). 
Precluding such arguments is particularly appropriate 
where, as in the instant case, the argument seeks to bring 
before the Court, without the filing of a cross-petition, 
findings of fact heretofore deemed settled. United States 
v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975).

2 Roadway refers to the argument as the Legal Defense 
Fund’s "primary argument” for the simple reason that thirteen 
of the brief’s twenty-four pages are devoted to discussion of the 
rationale for the argument, LDF Brief at 5-18.

3 For example, the subject was exhaustively argued at pages 
16 through 24 of the respondents’ "Original Brief on behalf of 
Defendants-in-Rule-Appellants” submitted to the court of ap­
peals.

4 The court of appeals’ decision reads:
Looking first to the propriety of entering any 

award at all against the appellants under § 1927, we 
find that the district court’s determinations regar­
ding the vexatiousness of the appellants’ behavior are 
not clearly erroneous.. . .  The instances of misconduct 
related in the district court’s ruling on the motion to 
assess costs and attorneys’ fees adequately support 
the court’s findings of fact concerning the vexatious 
manner in which the appellants conducted the law­
suit. thus, under § 1927, the appellants are subject to 
personal liability for the excess costs generated by their 
unreasonable and vexatious multiplication of the pro­
ceedings. Having determined that the appellants are 
liable for an award under § 1927, we turn to the proper 
scope of their liability.

Pet. App. A, at 4a-5a (emphasis added) (citations omitted).



4

Reviewing International Van Lines, Mills and other 
decisions of this Court on the subject, one source summa­
rizes the holdings as follows:

In each of those cases the party who had pre­
vailed below was barred from presenting an 
argument which would have supported the judg­
ment in his favor because its logic would have led 
to the entry of a judgment which went further 
in his direction.

R. Stern & E. Gressman, Supreme Court Practice 480 (5th 
ed. 1978). Applying such holdings to the instant case, it is 
manifest that, had the court of appeals accepted the 
respondents’ arguments that the conduct in issue was not 
of such a nature that the attorneys were subject to an 
assessment of "costs” under section 1927, the judgment of 
the court below would have been extended further in the 
attorneys’ "direction.” 5 Thus, in the absence o f a cross­
petition, presentation of arguments concerning wdiether 
the attorneys were subject to an assessment of "costs” 
pursuant to section 1927 is barred. The only issue properly 
before the Court is whether such an assessment may 
include attorneys’ fees.

II. OBJECTION NO. 2: THE COURT OF APPEALS’ 
DECISION ON THE ISSUE OF WHETHER AT­
TORNEYS’ FEES ARE INCLUDABLE AS “ COSTS” 
UNDER SECTION 1927 IS CLEARLY FINAL.
There is no basis for the Legal Defense Fund’s charac­

terization of the court o f appeals’ remand as being "to 
determine what, if any, excess costs were caused by the 
respondents’ attorneys’ unreasonable and vexatious acts

5 Indeed, had the court of appeals decided the conduct issue 
favorably to the respondents, the question presented by 
Roadway’s petition—the naked statutory issue of whether at­
torneys’ fees may be included in an assessment of "costs” under 
§ 1927—probably would not have been reached by the court.



5

or by any multiplication of the proceedings by them.” LDF 
Brief at 3-4. The remand, simply and accurately stated, 
was for the sole purpose of removing attorneys’ fees from 
the district court’s judgment.6

Furthermore, from a practical standpoint, even if the 
remand could be construed to require a redetermination 
by the district court of what is and what is not an "excess” 
cost, the district court must first know, as a matter of law, 
what is and what is not a "cost” which may be "excess.” 
This initial determination as to what is a "cost” is pre­
cisely the question presented by Roadway’s petition,7 a 
question which the Legal Defense Fund admits was de­
cided adversely to Roadway. LDF B rief at 16. Thus, even 
assuming arguendo that the remand encompassed a 
requirement that the district court redetermine which 
portions of the costs are "excess costs,” Roadway is clearly 
entitled to seek review of the legal standard8 applied by

6 The Legal Defense Fund’s reliance on dicta from the court 
of appeals’ opinion, LDF Brief at 18 n.12, overlooks the fact that 
” [t]his Court. . .  reviews judgments, not statements in opin­
ions.” Black v. Cutters Laboratories, 351 U.S. 292, 297 (1956).

7Whether attorneys who unreasonably and vexatiously 
multiplied proceedings in an action under Title VII of 
the Civil Rights Act of 1964 and 42 U.S.C. § 1981 may 
be personally assessed, pursuant to 28 U.S.C. § 1927, 
with attorneys’ fees as part of the "excess costs” 
incurred by an opposing party as a result of such 
conduct?
Pet. for Cert, at 2.

8 In Malat v. Riddell, 383 U.S. 569 (1966), this Court was, as 
in the instant case, requested to construe one operative word of 
a statute which controlled the "legal standard” governing 
overall application of the provision to the facts of the case.

Since the courts below applied an incorrect legal 
standard, we do not consider whether the result would 
be supportable on the facts of this case had the correct 
one been applied. We believe, moreover, that the 
appropriate disposition is to remand the case to the 
District Court, for fresh fact-findings, addressed to 
the statute as we have now construed it.

Id. at 572.



6

the court of appeals in holding that attorneys’ fees are not 
"costs” includable in a determination of "excess costs” 
under section 1927.9 In any event, since the Legal Defense 
Fund’s theory of "nonfinality” presumes acceptance of 
arguments which are not properly before the Court be­
cause of the respondents’ failure to file a cross-petition, i.e. 
that the three attorneys’ conduct was not proscribed by 
section 1927, e.g., United States v. ITT Continental Baking 
Co., 420 U.S. 223, 226 n.2 (1975), that theory, and thus that 
portion of the Legal Defense Fund’s brief advancing the 
theory, is irrelevant to the disposition of this case.

9 As stated by the court of appeals: "Our construction of 
§ 1927 does not foreclose assessment of attorneys’ fees against 
attorneys in every conceivable situation, it merely forecloses the 
imposition of such liability under § 1927." Pet, App. A, at 7a 
(emphasis added).



7

CONCLUSION

In light of the Legal Defense Fund’s primary interest 
in advancing arguments not properly before the Court,10 
Roadway submits that the motion for leave to file brief 
amicus curiae should be denied. Alternatively, Roadway 
submits that the Legal Defense Fund’s motion should be 
granted only insofar as the brief submitted advances 
arguments properly before the Court.

Respectfully submitted,

M iles Curtiss McK ee
A rmin J. Moeller, Jr .
F uselier, Ott, McK ee 

& F lowers, P.A.
2100 Deposit Guaranty Plaza
Jackson, Mississippi 39201
(601) 948-2226
Counsel fo r  Petitioner

10 That limited portion of the Legal Defense Fund’s brief 
which does not advance such arguments, LDF Brief at 20-23, 
simply recites the holdings and authorities relied upon by the 
court of appeals, and adds little, if anything, to this case 
different from the arguments advanced by the respondents in 
their brief.