Delta Air Lines, Inc. v. August Brief Amicus Curiae

    No. 79-814

In  t h e
Supreme (Emirt of % Mnitib States

O c t o b e r T e r m , 1979

D e l t a A ir L ines, In c .,
Petitioner,

R o s e m a r y  A u g u s t ,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF THE
AMERICAN CIVIL LIBERTIES UNION 

AMICUS CURIAE

E. R i c h a r d La r s o n 
B r u c e j. E nnis 

American Civil Liberties 
Union Foundation 

132 West 43rd Street 
New York, New York 10036 
(212) 944-9800



TABLE OF CONTENTS

Page

Interest of the Amicus................... 1

Summary of Argument .....................  4
ARGUMENT

ANY ALLOWANCE OF "COSTS" TO A 
DEFENDANT, AS THE WORD IS USED 
IN RULE 68, DOES NOT INCLUDE 
ENTITLEMENT TO ATTORNEY'S FEES. . . .  9

I . The accepted Meaning of the Word 
"Costs" Does Not Include Attor­
ney's Fees.  ............... 9

IT. The Civil Rights Fee-Shifting
Statutes Did Not Amend the Mean­
ing of "Costs" In Rule 68 . . . . .  .14

A. There is no evidence of any 
congressional intent to alter
the meaning of costs in Rule 68 .15

B. Even though attorney's fees
are generally authorized "as 
part of the costs," they are 
treated as distinct from or­
dinary costs for most substan­
tive purposes................... 17

C. Allowing Rule 68 offers to 
affect attorney's fees would 
substantially undermine the 
congressional purpose behind 
both. Rule 68 and the civil
rights fee-shifting statute . . .20

CONCLUSION .25



TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody
422 U.S. 405 (1975) ................... 21

August v. Delta Air Lines, Inc.
600 F . 2d 699 (7th Cir. 1979)...........4

Bonnes v. Long
599 F . 2d 1316 (4th Cir. 1 9 7 9 ) ........  23

Brown v. Culpepper
559 F . 2d 275 (5th Cir. 1977)........... 23

Christiansburg Garment Co. v. EEOC
434 U.S. 412 (1978) . ...........  5, 8, 18

Davis v. Murphy
587 F . 2d 362 (7th Cir. 1978)........  5, 12

Cases: Page

Fleischmann Corp. v. Maier Brewing
386 U.S. 714 (1967)...................  11

Gates v. Collier
616 F .2d 1268 (5th Cir. 1980) . .5, 16, 23

Hutto v. Finney
437 U.S. 678 (1978)...................  16

Johnson v. Georgia Highway Express, Inc. 
488 F . 2d 714 (1974)...................  19

Lindsay Brothers Builders, Inc. v.
American Radiator and Standard Sanitary 
Corporation
540 F . 2d 103 (3d Cir. 1 9 7 6 ) ........ , 19

Maher v. Gagne
48 U.S.L.W. 4891 (U.S. June 25, 198Q) . 6



Ill
Cases: Page:

Newman v. Piggie park Enterprises, Inc. 
390 U.S, 400. (1968). ...........  5, 18 , 23

Northcross v. Board of Education 
of Memphis
412 U.S. 427 (1973) .................... 5

Roadway Express, Inc. v. Piper 
48 U.S.L.W. 4836 (U.S. June 23,
1980).............................. passim

Robinson v. Kimbrough
620 F . 2d 468 (5th Cir. 1 9 8 0 ) ........  19

Sprague v. Ticonic National Bank
307 U.S. 161 (1939). ................ 6 , 7

Vasquez v. Flemming
617 F . 2d 334 (3rd Cir. 1 9 8 0 ) ........  12

Waters v. Heublein, Inc.
485 F.Supp. 110 (N.D. Cal. 1979) . . .  14

Statutes:
Civil Rights Act of 1968
42 U.S.C. §3612 ( c ) ................... 11

Civil Rights Attorney's Fees Awards 
Act of 1976
42 U.S.C. §1988. . , ........... 8 , 11, 24

Title II of the 19.64 Civil Rights Act 
42 U.S.C. §2000a-3 (b). . . . . . .  11, 13

Title VII of the 1964 Civil Rights Act 
42 U.S.C, §2000e-5 (k) . . . . . .8, 11, 15



IV
Statutes: Page

Court Interpreters Act
Pub.L. No. 95-939 . . . . . . . . . . .  17

Equal Employment Opportunity Amendment 
of 1972
42 U.S.C. §200 0e-16 (b)  ........ .. 12

Fee Bill of 1853 ........ .............. PO

Voting Rights Act Extension of 1975 
42 U.S.C................................ ..

28 U.S.C. §§1827-1828 . . . . . . . . .  17
28 U.S.C. §1920 . .................  passim
28 U.S.C. §1923 ............. . . . . .  10
28 U.S.C. §1927 ........  . . . . .  passim
42 U.S.C. §1988 . . . .  ........... passim
42 U.S.C. §2000e~5 ( k l .............' . 4

Legislative History;

S. Rep. No. 94-1011, 94th Cong.,
2d Sess., 4 (,1976)............. passim

H.R. Rep. No. 94-1558, 94th Cong.,
2d Sess., 6 (1976)........ .. .8 , 22

Federal Rules of Civil Procedure:
Rule 3 7 ............   ,13
Rule 54 Cd).............17, 18
Rule 59 (e) . ...............     6
Rule 6 8 ..........     passim



V
Federal Rules of Appellate Procedure; Page 

Rule 39 . . . .  . ............... 12



In The
SUPREME COURT OF THE UNITED STATES

October Term, 1979 
No. 79-814

DELTA AIR LINES, INC.,
Petitioner ,

v.
ROSEMARY AUGUST,

Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

BRIEF OF THE
AMERICAN CIVIL LIBERTIES UNION 

AMICUS CURIAE

Interest of the Amicus*
The American Civil Liberties Union is a 

nationwide, nonpartisan organization of over 

200,000 members dedicated to protecting the

* The parties have consented to the filing of this 
brief, and their letters of consent have been filed 
with the Clerk of the Court pursuant to Rule 36.2 of 
the Rules of this Court.



2

fundamental rights of the people of the 

United States. When an individual's rights 

are violated, the ACLU often provides legal 

representation through volunteer cooperating 

attorneys who litigate on behalf of the peo­

ple to restore their rights and to obtain 

remedies for the violation thereof. Because 

the decision in this case will have a con­

siderable impact upon the ability of civil 

rights plaintiffs to seek vindication of 

their rights through litigation, the ACLU, 

amicus curiae, submits this brief.

Rule 68 of the Federal Rules of civil 

Procedure permits a party defending a claim 
to make an offer to allow judgment to be 

taken against him in a certain amount, to­
gether with the costs then accrued, at any 

time more than 10 days before the trial be­

gins. If the offer is rejected and the of­

feree recovers less than the amount offered,



3

the offeree must pay the. costs incurred 

after the making of the offer.
At issue in this case is whether Rule 

68 can be invoked at all where a plaintiff 

ultimately does not win at all. Also at 

issue is whether a bad faith or unreason­

able offer is sufficient to invoke Rule 
68. Stated otherwise, does Rule 68 require 

a defense offer to be reasonable? Here, 

where the defendant-employer, now petition­

er, parsimoniously offered only $450 to set­

tle a claim requesting reinstatement and 
$20,000 in back pay, both lower courts held 

that the offer was unreasonable and that 

Rule 68 thus could not be invoked. The 
ACLU, amicus curiae, agrees with the deci­

sions of the courts below, and accordingly 

supports the position of the respondent 

here.
In this brief, amicus addresses another 

issue not directly before the Court;



4

whether, assuming arguendo the applicability 

of Rule 68, the "costs'* allowed a defendant 

under Rule 68 include attorney's fees. We 

submit that attorney's fees are not and 

should not be included in Rule 68 defense 

costs.

SUMMARY OF ARGUMENT

Addressing the Rule 68 issues in this 

case, the Seventh Circuit below commented 

on the "high objective" of Title VII's at­

torney's fees provision, 42 U.S.C. §2000e- 

5 Ck], as an argument against a "technical 
interpretation" of Rule 68. August v. Delta 

Air Lines, Inc., 600 F.2d 699, 701 (7th 

Cir. 1979). The court of appeals' reference 

is a curious one because nothing in the 

court's opinion or in the facts suggests 
that the defendant-employer's attorney's 

fees were at issue under Rule 68. Nonethe­

less, because amicus believes that any



5

assumption that Rule 68 costs could include 

attorney's fees is unwarranted and contrary 

to the language and congressional intent 

behind civil rights fee-shifting legislation, 

amicus urges recognition of the fact that 

defense costs under Rule 68 do not include 

attorney's fees.
Whenever a civil rights plaintiff pre­

vails, by vindicating rights or by obtaining 

some of the benefit sought in filing suit, 

it is now well settled that the plaintiff is 

entitled to fees almost "as a matter of 

course." See, e.g., Gates v. Collier, 616 

F . 2d 1268 , 1275 (5th Cir. 1980); Davis v. 
Murphy, 587 F.2d 362 , 364 (7th. Cir. 1978); 

see also, Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 417 Cl978); Northeross 

v. Board of Education of Memphis, 412 U.S. 

427, 428 (1973); Newman v. Piggie Park En­

terprises, Fnc., 390 U.S. 400, 402 (19 6 8) . 

Since these standards are fully applicable



6

to a plaintiff who settles r llaher v. Gagne, 

48 U.S.L.W. 4891, 4893 (U.S. June 25, 1980), 

any offer of judgment to a plaintiff under 

Rule 68 should include an offer of fees.

In any event, once plaintiff accepts an of­

fer, that plaintiff would be entitled to 

fees under a fee-shifting statute. Consis­

tently, Rule 68 recognizes that "the amount 

or extent of liability" often "remains to 

be determined by further proceedings. ^

—  A defendant's fee liability, as determined by 
further proceedings, flows from the judgment and is 
thus unaffected procedurally by timing requirements 
of the Federal Rules: of Civil Procedure or of local 
court rules. This much was firmly established long 
ago by this Court in Sprague v. Ticonic National 
Bank, 307 U.S. 161 (1939). There, the Court held, 
an application for fees: is not governed by the then- 
existing version of Rule 59(e) concerning motions to 
alter or amend judgments since such an application 
simply is "not a request for a modification of the 
original decree." 307 U.S. at 170. This is be­
cause, to the extent that the amount of the fees is 
not determined in the decree on liability, the fee 
award then must be resolved in "an independent

(footnote continued on next page)



7

At the same time that a Rule 68 offer 

of judgment should include an award of fees, 

Rule 68's allowance of "costs" to a defen­

dant whose reasonable offer was more than 

the plaintiff ultimately won does not in­

clude attorney's fees.
First, the accepted meaning of "costs," 

particularly as used in the Federal Rules 

of Civil Procedure and elsewhere, does not 

include fees. This understanding was made 

unassailable last Term in Roadway Express, 

Inc., v. Piper, 48 U.S.L.W. 4836 (U. S . June 

23, 1980), where this Court held that the 
word "costs" as used in 28 U.S.C* §1927 does 

not include fees.

(footnote continued from preceding page)

proceeding supplemental to the original proceeding." 
Id. For the same reasons, fee applications are not 
necessarily governed By local court rules concerning 
the timing for bills of costs, for the considerations 
involved in determining fee awards "are not of a rou­
tine character like ordinary taxable costs." 307 
U.S. at 168.



Second, in enactinq civil riahts fee- 

shifting legislation, Conqress never has expl 
citly or even implicitly amended Rule 6 8. 

Quite to the contrary, Congress directed, 

when it enacted the Civil Rights Attorney's 

Fees Awards Act of 1976, 42 U.S.C. §1988 as 

amended, that prevailing plaintiffs "should 

ordinarily recover an attorney's fee" even 

when they merely "vindicate rights through 
a consent judgment or without formally ob­

taining relief," whereas a defendant can 

recover fees only when the plaintiff is 

"shown to have litigated in 'bad faith.'"

S. Rep. No. 94-1011, 94th Cong., 2d Sess.,

4-5 (1976); see also, H.R. Rep. No. 94-1558, 

94th Cong., 2d Sess., 6-7 (1976). A nearly 

identical dual standard governs fee awards 

under Title VII, Christiansburp Garment Co. 

v. EEOC, 434 U.S. 412 (1978). To hold that 

Rule 68 costs could include a defendant's 

fees as a matter of course would wholly



9

violate the congressional purposes and in­

tent behind all civil rights fee-shifting 

legislation.

ARGUMENT

ANY ALLOWANCE OF "COSTS"
TO A DEFENDANT, AS THE
WORD IS USED IN RULE 68,
DOES NOT INCLUDE ENTITLE-
MENT TO ATTORNEY'S FEES

1• The Accepted Meaning of the Word "Costs"
Does Not Include Attorney's Fees

Any question about the meaning of "costs" 

in Rule 68 is largely resolved by this Court's 

recent opinion in Roadway Express, Inc, v. 
piper, 48 U.S.L.W. 4836 (U.S. June 23, 1980) , 

which held, inter alia, that the word "costs" 

as used in 28 U.S.C. §1927 does not include 

attorney's fees. The Court found that §1927, 

which allows a court to tax costs against an 

attorney who behaves "unreasonably" or



10

"vexatiously," should he read together with 

28 U.S.C. §1920, since both derived from the 

Fee Bill of 1853. As such., §1920 —  and thus 

§1927— limits taxable costs to clerks' and 

marshals' fees, court reporter charges, 

printing and witness fees, copying costs, 

interpreting costs, and the fees of court- 

appointed experts, but does not allow attor­
ney's fees.—^ Moreover, the Court found 

that the "contemporaneous understanding" of 

the term costs at the time that §1927's pre­
decessor was first enacted (in the year 

1813) excluded attorney's fees and, in fact, 

the "American rule" has continued to be that 

attorney's fees are ordinarily not recover­

able as costs. 48 U.S.L.W. at 4836? see 

also, Fleischmann Corp. v. Maier Brewing,

-  28 U.S.C. §1920 does allow "attorney's docket
fees," by reference to 28 U.S.C. §1923, but these 
of course are quite distinct from attorney's fees 
themselves.



11
386 U.S. 714, 717-718 (1967). Finally, the

Court in Roadway Express found that the civil
3 /rights fee-shifting statutes,— which, allow 

attorney's fees "as part of the costs," did 

not amend the meaning of costs in 28 U.S.C, 

§1927.
The meaning of "costs" as used in Rule 

68 of the Federal Rules of Civil Procedure 

is similarly limited to taxable costs. The 

"contemporaneous understanding" of costs 

when the Rules were promulgated in 1938 did 

not include attorney's fees any more than 

it did in 1813. See Fleischmann v. Maier

~  Roadway Express involved the attorney's fee pro­
vision of Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §2000 e — 5(k), and the Civil Rights Attor­
ney's Fees Awards Act, 42 U.S.C. §1988, both of which 
provide in part that "the court, in its discretion, 
may allow the prevailing party.,.a reasonable attor­
ney's fee as part of the costs," Substantially iden­
tical provisions are found in Title II of the 1964 
Civil Rights Act, 42 U.S.C. §2000 a — 3(b); the Civil 
Rights Act of 1968, 42 U.S.C. §3612(c); the Equal 
Employment Opportunity Amendment of 1972, 42 U.S.C.

(footnote continued on next page)



12

Brewing, 386 U,S. 714, 717-718 (1967). The 

brief legislative history of Rule 68 found 

in the Advisory Committee Notes to Rule 68 

similarly indicates no intent to deviate 

from the common meaning of costs.
In an analogous situation, two courts 

of appeals recently decided that "costs," as 

used in Rule 39 of the Federal Rules of 

Appellate Procedure , do not include attor­

ney's fees. Vasguez v. Flemming, 617 F.2d 

334 (3rd Cir. 1980).; Davis v. Murphy, 587 

F.2d 362 (7th Cir. 1978). The contention 

that appellate costs should include fees 

arguably is much stronger than same argument

(footnote continued from preceding page)

§2000 e-16(b); and the Voting Rights Act Extension 
of 1975, 42 U.S.C. §1973 1(e). In general, these 
provisions are construed interchangeably. Roadway 
Express, Inc, v.. Piper, 48 U.S.L.W. 4836, 4838 n.5 
("U.S. June 23, 1980) ; Albemarle Paper Co. v. Moody, 
422 U.S. 405, 415 (1975).



13
with respect to Rule 68, since the Federal 

Rules of Appellate Procedure were adopted 

in 1967 after the civil rights attor­
ney's fees provisions were enacted in the 

Civil Rights Act of 1964. Yet both courts 

which considered the question rejected the 

argument summarily, holding that the word 

"costs" as used in the Rules is limited to 

the traditional definition.

Finally, when the authors of the Federal 

Rules intended that attorney's fees be re­

coverable, they were specifically mentioned, 

as in Rule 37 of the Federal Rules of Civil 

Procedure which allows "reasonable expen­

ses. ..including attorney's fees" (emphasis 

added) as discovery sanctions. Since Rule 
68 does not also explicitly include attor­

ney's fees, they simply are not allowable 

thereunder as a part of defense costs.



14

II. The Civil Rights Fee-Shifting Statutes 
Did Not Amend the Meaning of ’’Costs"
In Rule 68

Since Rule 68's reference to costs lit­

erally does not include attorney's fees, 

any argument that such costs do include or 

affect attorney's fees must turn on the 

proposition that Congress' enactment of 

fee-shifting legislation amended Rule 68 

sub silentio when it made attorney's fees 

recoverable "as part of the costs." See, 

e.g., Waters v, Heublein, Inc., 485 F.Supp. 

110, 114 (N.D. Cal. 1979), where the trial 

court held that a Rule 68 offer, which turned 

out to be more than the plaintiff ultimately 
recovered, precluded an award of attorney's 

fees to the prevailing plaintiff for all 

time expended by plaintiff's lawyers after 

the date of the offer.
The problem with this argument is that 

the identical argument was rejected, with



15

regard to 28 U.S.C. §1927, by this Court in 

Roadway Express, Inc, V. Piper, 48 U .S .L .W . 

4836 (U.S. June 23, 1980). It also should 

be rejected here, with regard to Rule 68, 

for three reasons.

A • There is no evidence of any congres- 
s~ToniX~Thtent to alter the meaning 
of costs in Rule 68

Nothing in the fee-shifting statutes or 

their legislative history suggests that Con­

gress intended to amend Rule 68 by incorpo­

rating attorney's fees into costs. Recog­

nition of this fact flows directly from the 

examination made in the decision by this 

Court in Roadway Express, Inc, v. Piper, 

supra.
It of course remains true that fee- 

shifting provisions such as those in 42 

U.S.C. §1988 and in Title VII do authorize 

fee awards as a part of the costs. But,



16

as this Court found in Roadway Express, Inc, 

v . Piper, supra, the manner in which Congress 

chose to authorize fees is irrelevant here. 
This is so because, as the Fifth Circuit re­

cently concluded after examining the exten­

sive legislative history of 42 U.S.C. §1988, 

fees were authorized as part of costs "for 

one reason and one reason only: to ensure

that the Eleventh Amendment is no bar so that 

these fees are recoverable against government 

officials acting in their official capacity." 

Gates v. Collier, 616 F,2d 1268, 1276 (5th 

Cir. 1980). See also, Hutto v, Finney, 437 

U.S. 678 , 695 (19 781 .

Congress of course at any time could 

amend the list of taxable costs specified 

in 28 U.S.C. §1920. In fact, Congress re­

cently did amend the §1920 definition of 

taxable costs to include fees of court- 

appointed interpreters and expert witnesses 

when it passed the Court Interpreters Act,



17

Pub.L. No. 95-939, codified primarily in 28 

U.S.C. §§1827-1828. Congress did not simi­

larly amend §1920 to include attorney's fees, 

nor has it done so in enacting the civil 

rights fee-shifting statues. In other words, 

Congress has never yet used the civil rights 

fee-shifting statutes to affect the ordinary 

meaning of costs.

B . Even though attorney1s fees are 
generally authorized ”as part of 
the costs," they are treated as~ 
distinct from ordinary costs for 
most substantive purposes

As a practical matter, attorney's fees 

under all fee-shifting statutes are not 
treated as costs for most other purposes.

The standards for taxing costs and for award­

ing attorney's fees are quite different.

Under Rule 54 CdJ. , costs are allowed "as of 

course to the prevailing party," whether



18

plaintiff or defendant. Under civil rights 

fee-shifting statutes, on the other hand, 

fees are ordinarily awarded to prevailing 

plaintiffs "unless special circumstances 
would render such an award unjust," Newman 

v. Piggie Park Enterprises, Inc., 390 U.S. 

4QQ, 402 (1968), hut to prevailing defen­

dants only where the plaintiffs' action was 

brought in bad faith or is "found to be un­

reasonable, frivolous, meritless or vexa­

tious." Christiansburg Garment Co. V- EEOC, 

434 U.S. 412, 416 (1978). Thus, particu­

larly with regard to prevailing defendants, 

the standards for taxing costs are quite 

different from the standards for awarding 

f ees.
Additionally, the method for taxing 

costs differs considerably from the compli­

cations involved in determining a reasonable 

award of fees. Under Rule 54 (d), costs may 

be taxed by the clerk, of court on one days'



19

notice. Attorney's fees, however, can be 

awarded only by a "court." See, e.g., 42 

U.S.C. §1988; Robinson v. Kimbrough, 620 

F . 2d 468 , 473 (5th. Cir. 1980). And, in 

determining the amount of fees, courts must 

consider an intricate set of standards be­

fore making the award. See, e.g., Johnson 

v. Georgia Highway Express, Inc., 4 8 8 F .2d 
714 (1974), which sets forth 12 factors to 

be considered in setting reasonable fees; 
see also, Lindsay Brothers Builders, Inc., v. 

American Radiator & Standard Sanitary Corp., 

540 F .2d 103 (3d Cir. 1976), which explains 

the various factors to be considered under 

the lodestar method of fee computation.
Both the dual standard for awarding fees 

and the methodology to be used by the courts 

to calculate reasonable fee awards form a 

considerable part of the legislative history 
of 42 U.S.C. §1988. See particularly, S.Rep. 

No. 94-1011, 94th Cong., 2d Sess., 6 (1976); 

H.. R . Rep. No. 94-1558 , 94th Cong., 2d Sess.,



2Q
8-9 Cl9.76) . Quite evidently. Congress did 

not intend fees to be treated as akin to 
costs.

c • Allowing Rule 68 offers to affect 
attorney’s fees would substantially 
undermine the congressional purpose 
behind both Rule 68 and the~civil 
rights fee-shifting statute

Rule 68 was intended to provide a modest 

incentive to settle litigation by making a 

plaintiff who refused a reasonable offer and 

who thereafter recovered less than the offer 
to bear the costs incurred by both parties 

after the date of the offer. These costs, 

limited to the accepted notions of taxable 

costs, are normally small compared to the 

total expense of litigation. Traditionally, 

recoverable costs have included clerk's and 
marshal's fees, costs of necessary trans­
cripts and printing, witness fees, docket



21

fees, and the like. 28 U.S.C. §1920. Not 

included are attorney's fees. Yet, even 

with fees being treated quite separate from 

costs, taxable costs are sufficiently sub­

stantial to the extent that shifting them 

can provide a strong incentive for accepting 

reasonable Rule 68 offers.
The attorney's fees awarded in civil 

rights litigation, similar to yet ordinarily 

less than the fee awards in securities and 
antitrust litigation, are altogether differ­

ent from costs. Not only are fee awards con­

siderably larger than the taxable costs al­

lowable,—^ but the purposes of fee awards 

are altogether different from those of Rule 

68 cost-shifting.

—  This fact is derived in part from the congression­
al intent that counsel be adequately compensated for 
all time reasonably expended on a matter, and that 
the award not be reduced because the rights involved 
may be nonpecuniary in nature, S. Rep. No. 94-1011, 
94th Cong., 2d Sess., 6 (1976).



22

As this Court has repeatedly recognized, 

attorney’s fees are awarded in civil rights 

cases to vindicate "a policy that Congress 

considered of the highest priority." Newman 

v. Piggie: Park Enterprises,, Inc. , 39Q U.S.

40Q, 4Q2 (1968). Private plaintiffs are Con­

gress' chosen instrument to enforce many of 

the nation's civil rights laws. In enacting 

these statutes, Congress has repeatedly stres­

sed the importance of "private attorneys gen­

eral," and the necessity of attorney's fees 

so that plaintiffs--whatever their means—  

are not deterred from securing their statu­
tory and constitutional civil rights. See 

generally, S. Rep. No, 94-1011, 94th Cong.,

2d Sess. 0-976) ; H.R. Rep. No. 1558 , 94th 
Cong., 2d Sess. 0976),

The importance of the civil rights fee- 

shifting statutes is highlighted by the inter­

pretation they have received from this Court. 

Although the statutes usually declare that



23

"the court, in its discretion, may allow the 

prevailing party...a reasonable attorney's 

fee," it has been held that, to effectuate 

Congress' aims, a prevailing plaintiff 

'fehould ordinarily recover an attorney's fee 

unless special circumstances would render 

such an award unjust." Newman v. Piggie 
Park Enterprises, Inc., 390 U.S. 390, 4Q2 

(1968) (emphasis added).. Lower courts have 

interpreted this to mean that fees should 

be awarded to prevailing plaintiff's "as a 

matter of course." See, e.g., Gates v. 

Collier, 616 F.2d 1268, 1275 C5th Cir. 1980) 

and cases cited therein. Moreover, a plain­

tiff need not win on every issue to be a 
"prevailing" party, and there need not be a 

final judgment. See, e.g,, Bonnes v , Long, 

599 F . 2d 1316 C4th. Cir. 1979.1 ? Brown y. Cul­

pepper , 559 F.2d 275 C5th. Cir. 1977).

The full effectuation of the nation's 
civil rights policy would be seriously under 

mined if congressionally authorized fees



24

could be held hostage to Rule 68 offers.

This concern was one basis for the Seventh 

Circuit's holding below that there is a good 

faith requirement in Rule 68. But the court 

below erred in assuming that the defendant's 

attorney's fees might have been shifted by 

the Rule 68 offer.

If potential plaintiffs— particularly 

their attorneys— know they may be unable to 

recover fees, even though the plaintiffs ul­

timately may become the prevailing parties, 

they no doubt will pursue their rights less 

often, if at all. Yet, in enacting the Civil 

Rights Attorney's Fees Awards Act in 1976,

42 U.S.C. 1988, Congress recognized that ear­

lier fee shifting provisions had been success­

ful in enabling "vigorous enforcement of mod­

ern civil rights legislation." S. Rep. No. 

94-1011, 94th Cong., 2d Sess., 4 (1976) (em­

phasis added). The purpose of 42 U.S.C.

§1988 is the same. It is designed to extend



25

that "vigorous enforcement" to civil rights 

statutes which did not have their own fee- 

shifting provisions. This Court should not 

allow this policy of vigorous enforcement 

to be undermined by making attorney's fees 

taxable as Rule 68 costs.

CONCLUSION

Amicus agrees with respondent's reasoned 

argument that Rule 68 applies only where an 

offeree wins something that is less than the 

offeror's offer; and that, even there. Rule 

68 cannot be invoked unless the offer is 

reasonable. Accordingly, amicus urges affir­

mance of the decision below.

Amicus also submits, however, that the 

word "costs" in Rule 68 does not and cannot 

include attorney's fees. For the foregoing 

reasons, amicus requests this Court to



26
recognize that Rule 68 has no effect on fee 
awards or on the standards designed by Con­

gress for civil rights fee-shifting statutes.

Dated: September 15, 1980
New York, New York

Respectfully submitted,

E. RICHARD LARSON 
BRUCE J. ENNIS 
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
(212) 944-9800

Counsel for Amicus*

* Counsel wish to thank Jonathan Klein, a 
law student at the University of Michigan^
Law School, for his assistance on this brief.



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