Roadway Express v Monk Petititoners Reply Brief

    In The

Supreme Court of tije Unit zb
October Term, 1979

No. 79-701

Roadway Express, Inc.,
Petitioner

v.
J. D. Monk, et al,

Respondents

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

Fifth Circuit

PETITIONER S REPLY BRIEF

Miles Curtiss McKee 
A rmin J. Moeller, Jr.
Fuselier, Ott, McKee 

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



TABLE OF CONTENTS

Page

Table of Cases and Authorities....................................  ii

Argum ent......................................................................... 1

I. NEITHER RESPONDENTS NOR AMICI 
CURIAE SERIOUSLY DISPUTE 
ROADWAY’S ARGUMENT THAT 
"COSTS” UNDER SECTION 1927 MUST 
BE DETERMINED BY REFERENCE TO 
THE DEFINITIONS OF "COSTS” PRO­
VIDED BY OTHER STATUTES AND
OTHER AUTHORITY..................................  1

II. IN DETERMINING THE DEFINITION 
OF "COSTS” UNDER SECTION 1927, A 
COURT MAY REFER TO ALL COST- 
DEFINITION STATUTES, NOT JUST 28 
U.S.C. §§ 1920 AND 1923..............................  2

A. Deterrence............................................  3

B. Avoiding the "Hostile Judge” ...........  6

C. The Merit-Conduct Distinction........  8

III. ATTORNEYS’ FEES ALLOWABLE UN­
DER THE "BAD FAITH” EXCEPTION 
TO THE AMERICAN RULE MAY BE 
SHIFTED FROM A PARTY TO HIS AT­
TORNEY UNDER SECTION 1927................. 11

IV. NONE OF THE OTHER MIS­
CELLANEOUS CONTENTIONS BY RE­
SPONDENTS AND AMICI CURIAE 
SUPPORT AFFIRMANCE............................. 12



TABLE OF CASES AND AUTHORITIES

Page(s)

Christiansburg Garment Co. v. EEOC, 434 U.S.
412 (1978)................................................................. 7,8,

10,11
Copeland v. Martinez, 603 F.2d 981 (D.C. Cir.

1979), cert, denied, 48 U.S.L.W. 3465 (U.S. Jan.
21,1980) (No. 79-647)...........................................  10

EEOCn. Datapoint Corp., 570 F.2d 1264 (5th Cir.
1978)..........................................................................  9

EEOC v. Datapoint Corp., 457 F. Supp. 62 (W.D.
Tex. 1978).................................................................  9

Erlenbaugh v. United States, 409 U.S. 239 (1972) .. 13
Ferri v. Ackerman, No. 78-5981, slip op. (U.S.

Dec. 4 ,1979)............................................................. 7
Hutto v. Finney, 437 U.S. 678 (1978)......................  3,8,

12
In re Primus, 436 U.S. 412 (1978)...........................  6
Johnson v. Georgia Highway Express, Inc., 488 

F.2d 714 (5th Cir. 1974)........................................  10
Link v. Wabash R.R., 370 U.S. 626 (1962)..............  11,12
Lorillard v. Pons, 434 U.S. 575 (1978)....................  13
Marshall v. Georgia Pac. Corp., 22 Fair Empl.

Prac. Cas. 132 (E.D. Ark. 1980)...........................  7
Motion Picture Patents Co. v. Steiner, 201 F. 63

(2d Cir. 1912)........................................................... 12,13
NAACPv. Button, 371 U.S. 415 (1963)...................  6
Newman v. Piggie Park Enterprises, Inc., 390 

U.S. 400 (1968) (per curiam )...............................  8,10
Parker v. Califano, 20 Fair Empl. Prac. Cas. 1522

(D.D.C. 1978)........................................................... 5

ii



Ill

Page(s)

Self v. Self, No. 79-1569, slip. op. (5th Cir. April 2,
1980).......................................................................... 4

United States v. American Trucking A ss’ns., 310 
U.S. 534 (1940).......................................................  3

20 U.S.C. § 3205 .........................................................  14

28 U.S.C. § 1875 .......................................................... 14

42 U.S.C. § 1973Z(e)................................................... 14

42 U.S.C. § 1988 .......................................................... 14

42 U.S.C. § 2000a-3(b).............................................  14

42 U.S.C. § 2000e-5(k ).............................................  14

45 U.S.C. § 153 (p )...................................................... 14

H.R. Rep. No. 308, 80th Cong., 1st Sess. A164 
(1947)........................................................................ 13

Antitrust Procedural Act o f 1979: Hearings on S.
390 Before the Subcommittee on Antitrust and 
Monopoly, 96th Cong., 1st Sess. (1979)................  4

110 Cong. Rec. 14214 (1964).....................................  10



In The

Supreme (Eourt of the United States
October Term, 1979

No. 79-701

Roadway Express, Inc.,
Petitioner

v.
J. D. Monk, et al,

Respondents

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

Fifth Circuit

PETITIONER’S REPLY BRIEF

I .

NEITHER RESPONDENTS NOR A M IC I CURIAE  
SERIOUSLY DISPUTE ROADWAY’S ARGUMENT 
THAT “ COSTS” UNDER SECTION 1927 MUST BE 

DETERMINED BY REFERENCE TO THE 
DEFINITIONS OF “ COSTS” PROVIDED BY OTHER 

STATUTES AND OTHER AUTHORITY.

Roadway submits that little difference exists between 
the framework for analysis used by respondents and amici 
United States and EEOC, and the framework for analysis



2

employed by Roadway for construing the statutes in ­
volved in this case. That is, Roadway, respondents and 
amici curiae agree that, standing alone, 28 U.S.C. § 1927 
provides only that undefined "costs” may be assessed. Pet. 
Br. at 17; Resp. Br. at 11; Gov’t. Br. at 10.1 The definition of 
the term "costs” in section 1927 thus may be determined 
only by reference to statutes or other authorities which do 
specify whether a particular expense is a taxable cost.

II.
IN DETERMINING THE DEFINITION OF “ COSTS” 
UNDER SECTION 1927, A COURT MAY REFER TO 

ALL COST-DEFINITION STATUTES AND 
AUTHORITY, NOT JUST 28 U.S.C. §§ 1920 AND 1923.

The consensus, however, breaks down over the ques­
tion of whether a court may refer to only two cost- 
definition statutes, 28 U.S.C. §§ 1920, 1923, or a court may 
refer to all cost-definition statutes and authority appli­
cable to the case in determining whether a particular 
expense is a taxable cost, and thus a "cost” for purposes of 
section 1927. Respondents and amici curiae contend that 
reference is limited to sections 1920 and 1923, and to no 
other statutes. Resp. Br. at 11-12; Gov’t. Br. at 10. 
Roadway maintains that reference may be made to all 
applicable cost-definition statutes and authority. Pet. Br. 
at 17.

Nowhere in their briefs do respondents or amici 
curiae claim that attorneys’ fees are not taxable costs in 
Title VII and 42 U.S.C. § 1981 actions. Nor in the face of

’ Citations to "Pet. Br." refer to the Brief for the Petitioner. 
Citations to "Resp. Br." refer to the Brief for Respondents. 
Citations to "Gov’t. Br." refer to the Brief for the United States 
and the Equal Employment Opportunity Commission as Amici 
Curiae.



3

this Court’s decision in Hutto v. Finney, 437 U.S. 678, 696- 
697 (1978), could a contrary argument reasonably be 
made. Instead, respondents and amici curiae essentially 
contend that, even though attorneys’ fees technically are 
taxable costs in Title VII and 42 U.S.C. § 1981 actions, the 
Court should ignore this fact in construing section 1927’s 
application to attorneys in such cases. They argue, in 
effect, that sections 1927, 706(k) and 1988 should not be 
enforced according to their plain meaning because to do so 
would produce "absurd or futile results” or "merely an 
unreasonable one 'plainly at variance with the policy of 
the legislation as a whole.’ ” United States v. American 
Trucking A ss’ns., 310 U.S. 534, 543 (1940).

A. Deterrence

Amici United States and EEOC in particular attack 
Roadway’s construction of the three statutes on the theory 
that such an interpretation "would increase the financial 
hazard facing counsel for plaintiffs in such suits.” Gov’t. 
Br. at 13. The Government argues that " [ i ]t would surely 
be anomalous if the 'private-attorney-general concept’ 
were to subject counsel for those enforcing the public 
policy to special hazards.” Id. at 14-15 (citation omitted).2 
To the contrary, it is the Government’s position which is 
"anomalous.”

First, despite Government contentions in the instant 
case, a Justice Department official recently testified before 
Congress in support of proposed amendments to section 
1927 which would specifically include attorneys’ fees as

2 In light of the Government’s apparent concession that at 
least some "costs” may be assessed against plaintiff’s attorneys 
under § 1927, i.e. those taxable costs enumerated in 28 U.S.C. 
§§ 1920, 1923, see Gov’t. Br. at 10, the financial "hazards” 
argument presumably rests upon the potential dollar amount of 
the assessment, and not an absolute theoretical prohibition of all 
monetary assessments.



4

section 1927 "costs” in all cases.3 Specifically, the Govern­
ment opined that the amendments "would provide a 
meaningful disincentive to unreasonable delay in complex 
litigation.” Antitrust Procedural Act o f 1979: Hearings on 
S. 390 Before the Subcommittee on Antitrust and Monopoly, 
96th Cong., 1st Sess., at 8 (1979) (statement of John H. 
Shenefield) [hereinafter cited as “Senate Antitrust Hear­
ings ”]. In the Government’s view, the effect o f fee awards 
against attorneys under section 1927 would be to encour­
age litigants and attorneys of limited means.4 Thus, the 
Government advises this Court that public policy precludes 
acceptance of Roadway’s construction of section 1927 
while, at the same time, the Government lobbies for 
amendments to section 1927 which would accomplish the 
precise result Roadway submits, in this case, already can 
be reached under the existing language of the statute. 
The Government’s representations to Congress on the one 
hand and to this Court on the other certainly represents 
an incongruous explanation of the public interest.

3 See Pet. Br. at 16 n.13. Since its decision in the instant 
case, the Fifth Circuit has issued a rather confusing decision 
which may stand for the proposition that attorneys’ fees may be 
assessed under § 1927 against attorneys who file frivolous ap­
peals. Self v. Self No. 79-1569, slip op. at 4352 (5th Cir. April 2, 
1980). The court’s decision in the instant case is not cited in Self.

Such unjustified behavior delays the adjudica­
tion of legitimate claims and defenses, unnecessar­
ily increases costs to the litigants, and squanders 
limited judicial resources. Sometimes it may coerce 
parties to settle litigation simply to escape needless 
expenses and frustration. This potential for abuse 
makes it difficult for the less wealthy to protect 
their interests through the courts and thereby 
creates public cynicism towards the judicial system.

Senate Antitrust Hearings, supra, at 8 (statement of John H. 
Shenefield). See also id. at 14 ("Unfortunately, the statute 
[§ 1927] has been underutilized and has received varying re­
strictive interpretations in the courts.” ).



5

Second, Roadway acknowledges that its construction 
o f the statutes involved in this case could, and hopefully 
will, deter some lawyers from conducting frivolous and 
vexatious civil rights litigation. Irresponsible civil rights 
lawyers, like irresponsible lawyers generally, serve only to 
detract from the success of the litigation, extort settle­
ments, clutter the courts, and create such widespread 
distrust of the motives for such suits that the serious and 
important issues they often raise may be clouded by 
attorney-provoked cynicism. Deterrence is a necessary 
and proper purpose o f the statute.5 6

Third, completely overlooked by amici and respond­
ents is the overall effect of the court of appeals’ decision on 
the individual litigant, who, by any standard, was in­
tended by Congress to have the widest possible latitude in 
vindicating his civil rights. Whatever the relative per­
centage, responsibility for at least some vexatious Title 
VII litigation lies with the plaintiff’s lawyer. The court of 
appeals’ decision leaves, as a matter of law7, sole economic 
responsibility for these cases with the plaintiff. That 
result is fundamentally unfair.

Finally, the Government’s policy arguments overlook 
the potential benefits of attorney liability for the civil 
rights plaintiff. Fair employment practice litigation, like 
antitrust cases, frequently involves complex questions of 
procedure, liability and relief. As in antitrust cases, see 
Senate Antitrust Hearings, supra, the potential for abuse 
is always present. Just as it cannot be presumed that all 
members of the plaintiff civil rights bar conduct such 
litigation reasonably and responsibly, nor can it be pre­

5 Since it apparently is appropriate to provide extra in­
centives to plaintiff’s counsel in the form of bonuses for
efficient, professional advocacy, e.g., Parker v. Califano, 20 Fair
Empl. Prac. Cas. 1522, 1525-26 (I).D.C. 1978), it would also seem 
appropriate to have available disincentives to counsel who un­
reasonably and vexatiously increase costs.



6

sumed that all members of the defense civil rights bar 
conduct themselves responsibly. Attorneys’ fees liability 
under section 1927 would extend with equal force to 
defense counsel who unreasonably and vexatiously mul­
tiply the proceedings. Defense counsel’s knowledge that 
he, rather than the defendant, may be held responsible for 
the economic consequences of such conduct would create a 
"chilling” effect on defense counsel’s conduct to the same 
degree as it would on plaintiff’s counsel. Insofar as 
litigation may have been thwarted by defense counsel’s 
conduct, private enforcement of the civil rights statutes 
would be expedited.

B. Avoiding the “Hostile Judge”

Amici United States and EEOC also contend that
there is a substantial risk that permitting judi­
cial discretion to assess attorney’s fees against 
plaintiff’s counsel in civil rights cases would be 
perceived as creating a risk for any such counsel 
appearing before a hostile judge.

Gov’t. Br. at 14.6 Although the term "hostile” is not 
expanded upon by the Government, it must be presumed 
from the context in which it appears that the hostility 
relates to perceived judicial antipathy toward civil rights 
cases. Like the deterrence argument, absolutely no sup­
port is offered by the Government for its view of the

6 In re Primus, 436 U.S. 415 (1978), and NAACPv. Button, 
371 U.S. 415 (1963), cited by the Government in support of the 
above-quoted proposition, have absolutely nothing to do with 
this case. Access to the courts, the First Amendment, and 
rights of association are not at issue in this case.

Respondents also insert a vague reference to the asserted 
First Amendment right of litigants to effective counsel in civil 
cases. Resp. Br. at 16. Whether respondents Piper, Brown and 
Stromile somehow violated their clients’ First Amendment 
rights is not before the Court.



7

federal judiciary.7 In any event, the argument fails to 
recognize that

while it was certainly the policy of Congress that 
Title VII plaintiffs should vindicate "a policy 
that Congress considered of the highest prior­
ity,” . . .  it is equally certain that Congress ent­
rusted the ultimate effectuation of that policy to 
the adversary process.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419 
(1978) (citations omitted). It would indeed have been 
anomalous for Congress to entrust the federal judiciary 
with a national policy "o f the highest priority” if Congress 
had not trusted the judiciary’s discretion in effectuating 
that policy and in fairly treating attorneys employed as 
the policy’s advocates.

Even assuming the validity of the Government’s the­
ory, it does not follow that the discretion should be 
withheld. Unless the "hostile judge” theory extends above 
the district court level, review of section 1927 assessments 
in the courts of appeals and in this Court is certainly 
available. Moreover, in assertedly extreme cases, plain­
tiff’s counsel may request that the hostile judge recuse 
himself or herself from consideration of the case. E.g., 
Marshall v. Georgia Pac. Corp., 22 Fair Empl. Prac. Cas. 132 
(E.D. Ark. 1980).

The Government submits that, given the existence of 
the hostile judge, broader enforcement of the civil rights 
laws will be achieved by limiting the wrath of the hostile 
judge to the "litigant who may appear before that judge 
once in a lifetime,” Gov’t. Br. at 14, and thus excluding the 1 * * * *

1 Cf. Ferri v. Ackerman, No. 78-5981, slip op. at 8 n.17 (U.S.
Dec. 4,1979) ("But respondent has not directed our attention to
any empirical data . . .  to support his conclusions that the risk of
malpractice litigation deters members of the private bar from
accepting the representation of indigent defendants . . . . ” ).



8

"lawyer who must practice [repeatedly] before a hostile 
judge.” Id. The Government thus suggests that sacri­
ficing the plaintiff, a mere visitor in the halls o f justice, to 
the hostile judge is preferable to exposing the plaintiff’s 
lawyer. Roadway’s only response to such suggestions is to 
restate the arguments in such a manner that their 
fundamental defects may be observed. These defects 
amply support Roadway’s position that placing some re­
sponsibility on attorneys does not lead to the absurd or 
unreasonable results which the Government argues are 
portended by the plain meaning of the statutes involved 
in this case.

C. The Merit-Conduct Distinction
Both respondents and amici curiae urge the Court to 

drive an artificial wedge between section 1927, and sec­
tions 706(k) and 1988 based upon section 1927’s asserted 
limitation to "the manner in which the suit is litigated,” 
Gov’t. Br. at 12, and the claimed restriction of sections 
706(k) and 1988 to "the merit of the suit itself.” Id; 
accord, Resp. Br. at 14-15.8 From this distinction, it is 
argued that, since the district court in the instant case 
was precluded by the attorneys’ vexatious conduct from 
making a complete determination relative to the merit of 
the plaintiffs’ claims, attorneys’ fees were not awardable 
under sections 706(k) and 1988.

8 Such arguments for restricting attorneys’ fee liability 
under the civil rights acts have been frequently made to this 
Court and have been consistently rejected. See Hutto v. Finney, 
437 U.S. 678, 696-97 (1978) (state not exempted by the Ele­
venth Amendment); Christiansburg Garment Co. v. EEOC, 434 
U.S. 412, 420-22 (1978) (plaintiff not exempted); id. at 422 n.20 
(noting that the United States has abandoned its arguments 
that the federal government is exempted by 28 U.S.C. § 2412); 
Newman v. Biggie Park Enterprises, Inc., 390 U.S. 400, 401 
(1968) (per curiam) (defendant’s good faith not a defense). 
Under the theories advanced by respondents and amici curiae, 
attorneys alone would enjoy immunity.



9

The asserted limitation of sections 706(k) and 1988 to 
the "m erit” of a claim is shallow at best. Since the court is 
precluded from considering the manner in which the case 
was conducted in exercising its discretion as to attorneys’ 
fees, the limitation presumes that unreasonable, vexatious 
litigation of a valid claim should be protected. The 
limitation also ignores the fact that unreasonable and 
vexatious conduct can, as in the instant case, prevent any 
determination of the claim’s merit. Consequently, under 
the merit-conduct distinction, vexatious conduct is essen­
tially transformed into a defense to an award of at­
torneys’ fees under sections 706(k) and 1988.

The effects of the merit-conduct distinction are illus­
trated best by application. In EEOC v. Datapoint Corp., 
570 F.2d 1264 (5th Cir. 1978), for example, after lengthy 
pre-trial proceedings, the EEOC, "on the morning of the 
trial,” id. at 1272, dismissed "without prior notice to either 
the Defendant or to the Court,” 9 "not less than 90% of the 
case it originally filed.” 10 Remanding the district court’s 
judgment of attorneys’ fees against the EEOC for further 
consideration in light of the Court’s recently-issued deci­
sion in Christiansburg, the court observed, obiter dictum, 
that

it is apparent to us that attorneys’ fees in this 
case might be due the defendant for being re­
quired to defend against that part of plaintiff 
E.E.O.C.’s claim which was dismissed by the 
E.E.O.C. on the morning of trial.

570 F.2d at 1271-72. Since the merits of the dismissed 
claims were not decided in Datapoint, under respondents’ 
and am ici’s construction of sections 706(k) and 1988, such

9 457 F. Supp. 62, 66 (W.D. Tex. 1978) (opinion on remand).
10 457 F. Supp. at 66.



10

abuses would be excluded from consideration as a basis for 
an award of attorneys’ fees under those statutes.11

Despite claims by respondents and amici curiae that 
the merit-conduct distinction is apparent on the face of 
the statutes, the fact of the matter is that "[t ]h e  terms of 
section 706(k) provide no indication whatever of the 
circumstances under which either a plaintiff or a defend­
ant should be entitled to attorneys’ fees.” ChrisUansburg 
Garment Co. v. EEOC, supra, 434 U.S. at 418 (emphasis in 
original). Instead, "equitable considerations” define the 
circumstances. Id. Congress certainly did not intend for 
the civil rights acts to protect abuses of the judicial 
process12 through a contrived distinction between the 
merit of a claim and the manner in which it is litigated. 
Congress intended " 'to discourage frivolous suits,’ ” id. at 
420, quoting 110 Cong. Rec. 14214 (1964) (remarks of Sen. 
Pastore), an intent which cannot reasonably be construed 
to exclude frivolous, vexatious multiplication of the suit

11 Certainly the conduct of the litigation is a proper consid­
eration in awarding attorneys’ fees to a prevailing plaintiff. See 
generally Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 
717-20 (5th Cir. 1974). Likewise, it would seem that plaintiff’s 
counsel’s vexatious conduct of the litigation falls within the 
"special circumstances” exception noted in Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam). 
There is thus no reason to exclude plaintiff’s counsel’s conduct 
from the court’s discretion in awarding fees to a defendant.

12 Sufficient abuse of the judicial process could over­
whelm the courts and destroy the judicial system as an 
effective branch of government. This, and any discernible 
degree thereof, such as the bad faith litigation found 
here, the courts have a constitutional duty to prevent. By 
our interpretation of the statute involved [section 
706(k) ] we have found here no intent of Congress to 
permit any abuse of the judicial process.

Copeland v. Martinez, 603 F.2d 981, 992 n.69 (D.C. Cir. 1979), 
cert, denied, 48 U.S.L.W. 3465 (U.S. Jan. 21, 1980) (No. 79-647).



11

proceedings. Neither section 706(k) nor section 1988 is 
couched in terms of "merit costs” and "conduct costs.” The 
statutes provide only for attorneys’ fees "as part of the 
costs.” 13

The conduct of the litigation is an appropriate guide 
to the district court’s discretion whether to award costs, 
including attorneys’ fees, to a defendant. Since the 
plaintiffs in this case were "bound by the acts of [their] 
lawyer-agent,” Link v. Wabash R.R., 370 U.S. 626, 634 
(1962), the costs of the attorneys’ misconduct could have 
been assessed against the plaintiffs. The district court 
properly shifted those costs, including attorneys’ fees, to 
the attorneys pursuant to section 1927.

III.

ATTORNEYS’ FEES ALLOWABLE UNDER THE 
“BAD FAITH” EXCEPTION TO THE AMERICAN RULE 

MAY BE SHIFTED FROM A PARTY TO HIS 
ATTORNEY UNDER SECTION 1927.

Respondents and amici curiae acknowledge that the 
" 'bad faith’ exception to the 'American rule’ allows an 
award of fees against the party.” Resp. Br. at 18; accord,

13 Respondents and amici curiae suggest that Roadway 
overlooks the fact that this Court’s opinion in Christiansburg 
Garment Co. v. EEOC, supra, focused on the merit of the 
plaintiff’s claim. Roadway agrees that Christiansburg did focus 
on the merit of the claim but disagrees that the facts of that 
case control the question of whether a merits-conduct dis­
tinction is present in the statutes. The question was not 
presented in Christiansburg.

Simply stated, Christiansburg held that the merit of the 
plaintiff’s claim is an appropriate guide to the district court in 
exercising its discretion to aw*ard attorneys’ fees to a defendant. 
Nowhere in its opinion did this Court preclude the district court 
from considering the conduct of the litigation in exercising its 
discretion.



12

Gov’t. Br. at 15-16. They overlook, however, the agency 
relationship between attorney and client, and the fact 
that attorneys’ actions, e.g., misconduct in litigation, may 
be imputed to the client. Link v. Wabash R.R., supra, 370 
U.S. at 634. Again, section 1927 authorizes the court to 
shift costs, and thus attorneys’ fees, which may be imposed 
on the client to the attorney.

IV.
NONE OF THE OTHER MISCELLANEOUS 
CONTENTIONS BY RESPONDENTS AND 

A M IC I CURIAE  SUPPORT AFFIRMANCE.

A number of contentions are made by respondents 
and amici curiae which warrant only a short reply.

First, it is contended that the legislative history of 
section 1927 compels the conclusion that section 1927 
"costs” were intended to include only those expenses 
"precisely defined in 28 U.S.C. 1920 and 1923.” Gov’t Br. at 
9; accord, Resp. Br. at 10. Assuming arguendo the validity 
of that conclusion, respondents and amici curiae overlook 
the fact that "Congress [may] amend its definition of 
taxable costs.” Hutto v. Finney, supra, 437 U.S. at 696. 
That is precisely what Congress did when it enacted 
sections 706(k) and 1988, which include attorneys’ fees "as 
part of the costs.”

Second, amici United States and EEOC argue that 
"there is no indication in their legislative history [i.e. 
sections 706(k) and 1988] that Congress intended to 
modify the settled interpretation of Section 1927.” Gov’t. 
Br. at 11. What this "settled interpretation” is, the 
Government does not state. Roadway submits that the 
only interpretation of section 1927 that may be considered 
"settled” is Congress’ citation, in the 1948 Judicial Code 
recodification, o f Motion Picture Patents Co. v. Steiner, 201



13

F. 63 (2d Cir. 1912), and the limitation of section 1927 in 
that case to "taxable costs.” Id. at 65. See H.R. Rep. No. 
308, 80th Cong., 1st Sess. A164 (1947). The Government 
discusses neither Steiner nor the 1948 amendments in its 
brief.

Third, respondents and amici curiae fail to recognize 
those decisions holding that Congress is presumed to know 
of the existence of its prior legislation and to pass 
subsequent statutes with full knowledge of the preceding 
provisions, particularly when both the prior and 
subsequent act concern the same subject; in this case: 
"costs.” 14 Accordingly, when Congress passed sections 
706(k) and 1988, thus including attorneys’ fees "as part of 
the costs” in certain cases, Congress is presumed to have 
had knowledge of section 1927’s existence and obvious 
operation.

Fourth, Roadway agrees with the Government that
words in a statute that have "a well known 
meaning . . .  in the law of this country . . .  are 
presumed to have been used in that sense unless 
the context compels to the contrary.”

Gov’t. Br. at 10, quoting Lorillard v. Pons, 434 U.S. 575, 583 
(1978). Congress clearly intended for attorneys’ fees to be 
awardable "as part of the costs” in sections 706(k) and 
1988. Moreover, in civil rights legislation, the fact that 
"costs” include attorneys’ fees is certainly a "well known

14 See, e.g., Erlenbaugh v. United States, 409 U.S. 239, 244 
(1972) ( ’’ [Wjhenever Congress passes a new statute, it acts 
aware of all previous statutes on the same subject.” ).



14

meaning” attached to the term.15 16 Consequently, there is 
no reason to depart from the accepted definition o f the 
word "costs” in Title VII and 42 U.S.C. § 1981 actions in 
determining the definition of "costs” in section 1927.

Respectfully submitted,
M iles Curtiss McKee
A rmin J. Moeller, Jr.
Jeffrey A. W alker

Fuselier, Ott, McKee 
& Flowers, P.A.

2100 Deposit Guaranty Plaza
Jackson, Mississippi 39201
(601) 948-2226
Counsel for Petitioner

15 The "as part of the costs” language in § 706(k) and § 1988 
is hardly an accident. Petitioner’s review of the United States 
Code discloses that attorneys’ fees are provided for in 58 
statutes. Of these 58 statutes, five allow costs "together with” 
attorneys’ fees, 17 allow attorneys’ fees separate from costs, 21 
allow costs "including” attorneys’ fees, and 15 allow attorneys’ 
fees "as part of the costs.” Seven of the 15 statutes which allow 
attorneys’ fees "as part of the costs” are provisions of various 
"civil rights” and "employment rights” statutes. Education 
Amendments of 1978, 20 U.S.C. § 3205 (inter alia, protection 
from discrimination on the basis of race, color or national origin 
in elementary and secondary education); Jury System Improve­
ments of 1978, 28 U.S.C. § 1875 (protection of jurors’ employ­
ment); Voting Rights Act of 1965-Extension, 42 U.S.C.
§ 1973/(e) (protection of "voting guarantees of the fourteenth 
or fifteenth amendments” ); The Civil Rights Attorney’s Fees 
Awards Act of 1976, 42 U.S.C. § 1988 (protection of numerous 
civil rights); The Civil Rights Act of 1964, Title II, 42 U.S.C 
§ 2000a-3(b) (protection against discrimination or segregation 
in places of public accommodation); Civil Rights Act of 1964, 
Title VII, 42 U.S.C. § 2000e-5(k) (protection against employ­
ment discrimination on various grounds); Railway Labor Act, 45 
U.S.C. § 153(p) (disputes between employees and carriers).