Marek v Chesny Amicus Curiae in Support of Respondent

    No. 83-1437

In The

(tart itf %  Ittttrfo l̂ tatr#
October Term, 1984

Jeffrey Marek, Thomas Wadycki, 
and Lawrence Rhode,

Petitioners,
v.

Alfred W. Chesny,
Respondent.

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

BRIEF OF THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENT

Harold R. Tyler, Jr.*
Sara E. Lister 
Heather D. Diddel 

Patterson, Belknap,
Webb & Tyler

30 Rockefeller Plaza 
New York, New York 10112 
(212) 541-4000
1730 Pennsylvania Avenue, N.W. 
Washington, D.C. 20006 
(202) 783-6518

* Attorney of Record

Fred N. F ishman  
Robert H. Kapp 

Co-Chairmen 
Norman Redlich 

Trustee
W illiam L. Robinson 
Norman J. Chachkin  

Lawyers’ Committee for 
Civil Rights Under Law  

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Amicus Curiae

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



QUESTION PRESENTED
Whether Rule 68 requires that a prevailing party in 

a civil rights action brought under 42 IJ.S.C. § 1983 be 
denied attorneys’ fees for time expended on the case 
after rejecting a settlement offer more favorable than 
the amount subsequently recovered after trial.

(i)



QUESTION PRESENTED ------------ -------- ------------ i

INTEREST OF AMICUS CURIAE ________~   1

STATEMENT ........... ... ....... ..... .. ............... ....... ............ 2

SUMMARY OF ARGUMENT ........... ....... - .................  4

ARGUMENT ....... ....... ........ .............. ........... -    5

I. THE “ COSTS” SPECIFIED IN RULE 68 DO
NOT INCLUDE ATTORNEYS’ FE ES.......... . 5

II. CONGRESS DID NOT INTEND FEE SHIFT­
ING TO EXPAND THE DEFINITION OF 
“ COSTS” IN RULE 6 8 ....... ............. ................ . 10

III. THE EXERCISE OF RIGHTS GUARANTEED 
BY CONGRESS THROUGH SECTION 1983 
WILL BE IMPERMISSIBLY CHILLED IF 
RULE 68 COSTS ARE INTERPRETED TO 
INCLUDE ATTORNEYS’ FEES ____________ 16

TABLE OF CONTENTS
Page

CONCLUSION _ 20



IV

TABLE OF AUTHORITIES
Cases: Page

Alyeska Pipeline Co. v. Wilderness Society, 421
U.S. 240 (1975) .... ............ ........ ....... .............. . 6,7,9

Carey v. Piphus, 435 U.S. 247 (1978) _________  16, 17
Chesny v. Marek, 547 F. Supp. 542 (N.D. 111.

1982) ; 720 F.2d 474 (7th Cir. 1983).... ... ........  3, 19
Day v. Woodworth, 54 U.S. (13 How.) 363

(1851) ................... ........................... ......................  7, 8
Delta Airlines v. August, 450 U.S. 346 (1981).... 6 ,13n 
Dowdell v. City of Apopka, Florida, 698 F.2d 1181

(11th Cir. 1983) ____________ ___ ____ ________  8, 16
Greenwood v. Stevenson, 88 F.R.D. 225 (D.R.I.

1980) .............. ....... ......................... ..................... . g
Hairline Creations, Inc. v. Kef alas, 664 F,2d 652

(7th Cir. 1981) .................................... ............. 8
Hall v. Cole, 412 U.S, 1 (1973) .............. .......... . 15
Hutto v. Finney, 437 U.S. 678 (1978) ....... ....... . 9
Mitchum v. Foster, 407 U.S. 225 (1972)........... 16
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) ____________ __________________ _______ 15
Pigeaud v. McLaren, 699 F.2d 401 (7th Cir. 1983).. 8
Roadway Express, Inc. v. Piper, 447 U.S. 752

(1980) ------- ------------------------------- ---- ------------... 8 ,14n
Sioux County v. National Surety Co., 276 U.S, 238

(1928) ....... ..... ................ ....... ....... .................... . g
White v. New Hampshire Department of Employ­

ment, 629 F.2d 697 (1st Cir. 1980), rev’d on 
other grounds, 455 U.S. 445 (1982) ...... ...........  8

Statutes:
7 U.S,C. § 210( f ) ...................... ..............  . n
7 U.S.C. § 2305(a)  ..... ........ ' 13n
15 U.S.C. § 15 ...................................... .................... ll,12n
15 U.S.C. § 77k (e).... ............ ........ ............. ............  n> 12n
15 U.S.C. § 7 8 i(e )............... .... ...............................  12n
15 U.S.C. §1640 (a) ........... ................. ................. . 14
17 U.S.C. § 505 ---------------------------- ----- ----- , l l n, l 2n, 13n
28 U.S.C. § 1920 ______  4 8 9
28 U.S.C. § 1927 .. . .... ........... ................... . ’ 12n
28 U.S.C. § 2072 ............. ........................ ......... ...... ' 4



V

TABLE OF AUTHORITIES— Continued
Page

2:9 U.S,C. § 107 .................. .......... ..... .............. .........  lln
29 U.S.C. § 216(b ) ............................ .......... ................ 14
42 U.S.C. § 1983....................... .................. ......... ......passim
42 U.S.C. § 1988 ........ ..................................... ........... passim
42 U.S.C. § 2000a,-3 ( b ) ............ ...... ...................... . 14n
42 U.S.C. § 2000e-5 (k) .................... ..... ......... .... . 14n
42U.S.C, § 7604....................... ....... .................... ....... 14
49 U.S.C. § 11705.... ............... ..... .......... ..........  1 On, 12n
Interstate Commerce Act, eh. 104, 24 Stat. 379

(1887) ....................... ............... ....... .....................  lOn
Rules of Civil Procedure:

Buie 11 -------------- ------- ------ ------ --------- ------ ------- .6n, lOn
Rule 1 6 ( f )____ ____ _____________ _____ ___ ____  6n
Rule 26(g) _________________ __ ________________ 6n, lOn
Rule 30(g) _____ ________________________________6n, lOn
Rule 37 .------------------------- ---------------- ----- ---------6n, 9, lOn
Rule 41 ______ ______ ________ ____ ___ ________ 5n, lOn
Rule 54(d) --- ------- ------ ------------ --------------- --------- passim
Rule 55(b)..________ ___ ___ ______ ______________  5n
Rule 56(g) ------------------------ --------------- ------- ----6n, 9, lOn
Rule 65 ( c ) ........... .................................. ......... ...........  5u
Rule 68 — ...... .................................... ........  ........... .passim
Rule 71A(1)______ ____________________ ________ 5n
Rule 76(c) ............. ........... ....... ......... ................ . 5n

Rules of Appellate Procedure:
Rule 38 ...... ........ ........ ................................................  6n

Legislative Materials:
128 Cong. Ree. S4878 (daily e,d. May 11, 1982).... 18n
H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976).. 14n
S, Rep. No. 1011, 94th Cong., 2d Sess. (1976), 

reprinted in 1976 U.S. Code Cong. & Ad. News

Treatises and Articles:
Amendments to the Federal Rules of Civil Proce­

dure, 85 F.R.D. 521 (1980)................. .......... . i8n
Comment, Taxation of Costs in Federal Courts—

A Proposal, 25 Am. U.L. Rev. 877 (1976)....... 7n



vi

Committee on Legal Assistance, Counsel Fees in 
Public Interest Litigation, 39 Rec. A.B. City
N.Y. 300 (May/June 1984) .............................. I6n

Committee on Rules of Practice and Procedure, 
Judicial Conference of the United States, Pre­
liminary Draft of Proposed, Amendments to the
Federal Rules of Civil Procedure (1984) ______ lOn

McCormick, Counsel Fees and Other Expenses of 
Litigation as an Element of Damages, 15 Minn.
L. Rev. 619 (1931) ......................................... . gn

Note, Costs—Problems in the Allowance of Attor­
neys’ Fees in America, 21 Va. L, Rev. 920 (1935).. 9n 

Note, Distribution of Legal Expenses Among Liti­
gants, 49 Yale L.J. 699 (1940) ........................gn, lln

Note, The Impact of Proposed Rule 68 on Civil 
Rights Litigation, 84 Colum. L. Rev. 719
( 1984) ........................................................................................................ 7n , 8

Note, The Offer of Judgment Rule in Employment 
Discrimination Actions: A Fundamental Incom­
patibility, 10 Golden Gate U.L. Rev. 963 (1980).. 17n

Note, Promoting the Vindication of Civil Rights 
Through the Attorney’s Fees Awards Act, 80
Colum. L. Rev. 346 (1980) ____ ________ _____  7n

Payne, Costs in Common Law Actions in the Fed­
eral Courts, 21 Va. L. Rev. 397 (1935) .........._.9n, 12n

Preliminary Draft of Proposed Amendments, 98 
F.R.D. 337 (1983) .................... .........................  9

TABLE OF AUTHORITIES— Continued
Page



I n  T h e

Bm rm t (Urntrt 0! tkf Hrntdt
October Term, 1984

No. 83-1437

Jeffrey Marek, Thomas Wadycki, 
and Lawrence Rhode,

Petitioners,

Alfred W. Chesny,
Respondent.

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

BRIEF OF THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE 

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE 1
The Lawyers’ Committee for Civil Rights Under Law 

(the “ Committee” ) was organized in 1963 at the re­
quest of the President of the United States to involve 
private attorneys in the national effort to protect the 
civil rights of all Americans. The Committee has had the 
assistance of well over a thousand members of the pri­
vate bar in numerous cases that have addressed the 
problems of minorities and the poor. As a frequent liti­

1 Letters, from counsel for the parties consenting to the submis­
sion of this brief have been filed with the Clerk.



2

gant in cases brought under 42 U.S.C. § 1983 and other 
remedial statutes which contain fee-shifting provisions, 
the Committee will be directly affected by the decision 
in this case.

The issue presented here is whether “costs” under Fed. 
R. Civ. P. 68 (“Rule 68” ) include attorneys’ fees where 
the statute under which the case is brought provides 
that a prevailing plaintiff may receive attorneys’ fees. 
Such fee-shifting statutes exist because, in each substan­
tive area to which they apply, Congress has determined 
that the public interest is served by awarding attorneys’ 
fees to successful litigants. The Committee has had first­
hand experience with such fee-shifting provisions, and 
with the kinds of settlement offers likely to be made in 
civil rights cases. The Committee believes that the inter­
pretation of Rule 68 urged by petitioners would have a 
direct and harmful effect on civil rights plaintiffs and 
other plaintiffs who serve as “private attorneys general” 
and thus help to advance national policy. The Commit­
tee files this brief in support of respondent urging af­
firmance of the judgment below.

STATEMENT

Respondent Alfred W. Chesny filed suit in 1979 under 
42 U.S.C. § 1983 against petitioners, police officers of 
the Village of Berkley, Illinois, seeking damages because 
of petitioners’ allegedly unlawful shooting of his son. 
On November 5, 1981, petitioners made an offer of judg­
ment under Rule 68 “ for a sum, including costs now 
accrued and attorney’s fees, of ONE HUNDRED THOU­
SAND ($100,000) DOLLARS.” Joint Appendix at A-17. 
The respondent refused the offer and the case proceeded 
to trial. On May 11, 1982, the jury returned a verdict 
in favor of respondent in the amount of $60,000. Re­
spondent then moved under the Civil Rights Attorney’s



3

Fees Awards Act of 1976 ( “ Fees Awards Act” ), 42 
U.S.C. § 1988, for a fee award.2

The district court held that Rule 68 limited respond­
ent’s fee award to the time and effort expended prior 
to petitioners’ offer of judgment. Rule 68 provides that 
if a plaintiff receives less after trial than the defendant’s 
offer of judgment, then plaintiff “must pay the costs 
incurred after the making of the offer.” The district 
court interpreted “costs” under Rule 68 to include at­
torneys’ fees where the statute under which the action 
was brought authorizes an award of attorneys’ fees, as 
part of the costs, to a prevailing party.

The Seventh Circuit, in an opinion by Judge Posner, 
reversed on the ground that Rule 68 cannot be inter­
preted to defeat Congress’ policy to award fees to pre­
vailing plaintiffs where those plaintiffs acted as pri­
vate attorneys general. It emphasized that civil rights 
plaintiffs

should not be deterred from bringing good faith ac­
tions to vindicate fundamental rights by the prospect 
of sacrificing all claims to attorney’s fees for legal 
work at the trial if they wTin, merely because on the 
eve of trial they turned down what turned out to be 
a more favorable settlement offer.

Chesny v. Marek, 720 F.2d 474, 479 (7th Cir. 1983).
The Seventh Circuit found that although Rule 68 was 

clearly intended to encourage settlements, and thus to 
conserve the resources of both the parties and the courts, 
it could not have been intended to alter substantive con­

2 The United States has emphasized in its amicus brief that sub­
stantial attorneys’ fees were generated in this case. See e.g., Brief 
of United States at 3. The size of the fee requested by respondent 
after trial is irrelevant to' this Court’s determination of the issues 
before it. Nothing in the record, however, suggests that the fees 
requested were excessive or inconsistent with the work required to 
bring the case to trial.



4

gressional policies., such as those underlying the Fees 
Awards Act. The Rules Enabling Act, 28 U.S.C. § 2072, 
provides that the Federal Rules “ shall not abridge, en­
large or modify any substantive right.” Accordingly, the 
court held that Rule 68 must be interpreted consistently 
with the substantive policies of the Fees Awards Act.

SUMMARY OF ARGUMENT
Petitioners’ interpretation of Rule 68 would signifi­

cantly enlarge the role and effect of settlement offers to 
the serious detriment of civil rights plaintiffs. Any 
claim that “ costs” under Rule 68 include attorneys’ fees 
contravenes basic rules of statutory construction and legal 
precedent, and critically undermines federal legislation 
enacted to protect fundamental national policies.

Rule 68 provides that a party may be held responsible 
for “ costs” under specified circumstances. “ Costs” are 
not defined in the Federal Rules, although seven Rules 
provide for their award. The courts have consistently 
interpreted “costs” as used in the Rules to include those 
costs set out in 28 U.S.C. § 1920 and generally awarded 
to the prevailing party under the “American rule,” which 
does not permit the award of attorneys’ fees. Those Fed­
eral Rules which permit courts to award attorneys’ fees 
as a sanction characterize such fees as “ expenses,” not 
“ costs.”  “Costs”  should be defined consistently in all the 
Federal Rules which authorize their award.

Petitioners would interpret costs under Rule 68 differ­
ently depending on whether the statute under which the 
action is brought provides for an award of attorneys’ fees 
to a prevailing plaintiff. Petitioners argue that if such 
an award is authorized by statute, the “costs” which be­
come the responsibility of the prevailing plaintiff under 
Rule 68 include such fees. Under this view, the goals 
Congress sought to achieve with fee-shifting would be 
negated by Rule 68 whenever a defendant makes an offer



5

of judgment which proves greater than the sum awarded 
plaintiff after trial.

The definition of “ costs” under Rule 68 should not ex­
pand or contract depending on the statutory basis for 
suit. Instead, fee shifting is appropriate where author­
ized by a substantive statute, even if Rule 68 may other­
wise cut off the plaintiff’s reimbursement for costs. Any 
other conclusion would be contrary to Congress’ intention 
in providing for fee-shifting in civil rights cases, and 
would have a seriously chilling effect on plaintiffs seeking 
injunctive or other nonmonetary relief. Any interpreta­
tion of Rule 68 that greatly increases the risks of litiga­
tion to such plaintiffs provides defendants in civil rights 
cases with a new and effective weapon to frustrate meri­
torious actions in a manner never intended by Congress.

ARGUMENT

I. THE “COSTS” SPECIFIED IN RULE 68 DO NOT 
INCLUDE ATTORNEYS’ FEES

The term “ costs” as used in the Federal Rules of Civil 
Procedure should be given its common meaning, and 
should be interpreted consistently throughout the Rules. 
Nowhere in the Rules are “costs” defined to include at­
torneys’ fees within the taxable costs of litigation.3 
Rule 68 uses the term “costs” in the same way as other 
Rules which permit costs to be taxed to1 one party or an­

3 The current RuleiS which provide for the award of costs under 
certain circumstances are Rule 41(d) (Costs of Previously Dis­
missed Action); Rule 54(d) (Judgments; Costs); Rule 55 (b)(1 ) 
(Judgment by Default) ; Rule 65(c) (Security) ; Rule 68 (Costs) ; 
and Rule 71A(Z) (Costs in Condemnation Actions), which quotes 
a Justice Department manual for use in condemnation suits to the 
effect that “normal expenses,” including the fees of counsel ap­
pointed to represent absent defendants so that quiet title may be 
transferred, are to be charged to the government directly but “not 
taxed as costs.” Rule 76(c) (Judgment of the District Judge on 
the Appeal Under Rule 73(d) and Costs) also provides for award 
of costs.



other upon the occurrence of a particular event. “ [T]he 
plain language of Rule 68,” Delta Airlines v. August, 
450 U.S. 346, 351 (1981), mandates that “costs”  be in­
terpreted in Rule 68 consistently with the other Federal 
Rules.

Whenever attorneys’ fees are mentioned in the Rules 
they are included as a sanction which may be invoked to 
punish noncompliance with a particular rule. Attorneys’ 
fees are uniformly described within the Rules as an ele­
ment of expenses.4 5 This treatment of attorneys’ fees is 
consistent with the characterization of attorneys’ fees in 
the Federal Rules of Appellate Procedure, and with the 
American rule that the costs to be awarded to a prevail­
ing party do not include attorneys’ fees.®

Moreover, such a construction is consistent with this 
Court’s recent analyses of the interplay between Rules 
54(d) and 68. Under Rule 54(d), a prevailing plaintiff 
“presumptively” will obtain costs. Delta Airlines, 450 
U.S. at 352. The “ costs” to be taxed under Rule 54(d) 
do not include attorneys’ fees, which become payable 
by a losing defendant only pursuant to applicable stat­
ute. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 
240 (1975).6 The Court’s mandate in Delta Airlines that

4 The current Federal Rules which provide for the award of “ex­
penses . .. ., including a reasonable attorney’s fee,” are Rules 11; 
1 6 (f) ; 2 6 (g ); 3 0 (g ); 3 7 (a )(4 ), (b )(2 ), (c), (d) and ( g ) ; and 
56(g).

5 The Federal Rules of Appellate Procedure allow award o f at­
torneys’ fees under Rule 38, “Damages for Delay.”  The Advisory 
Committee Notes to that Rule state that “ damages, attorney’s fees, 
and other expenses incurred by an appellee” may be awarded if an 
appeal is found to be frivolous.

6 While Rule 54(d) makes liability for costs “a normal incident 
of defeat, Delta, Airlines, 450 U.S. at 352, it also provides that 
courts may otherwise direct, and that exceptions to the Rule exist 
where “express provision therefor is made either in a statute of the 
United States or in these rules,” The flexibility of Rule 54(d) is not 
found in Rule 68. Rule 68 makes no provision for the exercise of

6



7

the Federal Rules be interpreted consistently with one 
another clearly requires that the taxable “ costs” under 
Rule 68, as under Rule 54(d) and other Rules, exclude 
attorneys’ fees.

Both Congress and the courts have treated attorneys’ 
fees differently from other costs and expenses of litiga­
tion. Just as doctors’ fees are a major component of the 
cost of medical care, so attorneys’ fees are a large part 
of the costs of litigation.7 Nonetheless, the general (or 
“American” ) rule is that each litigant ordinarily must 
bear its own attorneys’ fees unless there is. express statu­
tory authorization to the contrary. The American rule, 
which is contrary to the preexisting common law policy, 
was intended to equalize the burden of litigation, making 
it more likely that litigants without deep pockets would 
be able to assert their rights in court. With narrowly 
defined exceptions,8 this Court has made clear that Con­
gress alone has the authority to create and define the 
situations in which a reallocation of attorneys’ fees serves 
a public purpose. Alyeska Pipeline Co. v. Wilderness 
Society, 421 U.S. at 260, 262 (1975).

Costs are in an altogether different category than at­
torneys’ fees. This Court recognized as early as. 1851 
that “the legal taxed costs are far below the real ex­
penses incurred by the litigant.”  Day v. Woodworth, 54

discretion by the court, nor does it indicate that the “costs” which 
may be reallocated to encourage settlement should be interpreted 
differently depending on the statute involved.

7 See, e.g., Note, The Impact of Proposed Rule 68 on Civil Rights 
Litigation, 84 Colum. L. Rev. 719, 720 (1984) (attorneys’ fees are 
“ by far the largest expense of litigation” ) ; and Comment, Taxation 
of Costs in Federal Courts—A Proposal, 25 Am. U.L. Rev. 877, 881 
(1976) (attorneys’ fees “are often the single, largest expense of 
litigation” ) .

8 The principal exceptions involve bad faith and the existence of 
“common funds.” See Note, Promoting the Vindication of Civil 
Rights Through the Attorney’s Fees Awards Act, 80 Colum. L. Rev. 
346,349 (1980).



8
U.S. (13 How.) 363, 372 (1851). “Costs”  that were 
awarded to the successful litigant did not include attor­
neys’ fees. As the Court held, it was not the American 
practice “ to indemnify the plaintiff for counsel-fees and 
other real or supposed expenses over and above taxed 
costs.”  Id. at 371-72 (emphasis added). See also Sioux 
County v. National Surety Co., 276 U.S. 238 (1928), 
where this Court held that an attorney’s fee award au­
thorized by state statute was not the same as “costs in 
the ordinary sense of the traditional arbitrary and small 
fees . . . allowed to counsel. . . .”  Id. at 243.

The federal courts have consistently interpreted “ costs” 
under Rule 68, as under the other Federal Rules, to refer 
to taxable costs as those costs are defined in 28 U.S.C. 
§ 1920. See White v. New Hampshire Department of 
Employment, 629 F.2d 697, 702-03 (1st Cir. 1980), rev’d 
on other grounds, 455 U.S. 445 (1982); Greenwood v. 
Stevenson, 88 F.R.D. 225, 231-32 (D.R.I. 1980). See also 
Pigeaud v. McLaren, 699 F.2d 401, 403 (7th Cir. 1983); 
Note, The Impact of Proposed Rule 68 on Civil Rights 
Litigation, 84 Colum. L. Rev. 719, 721 n.9 (1984). Sec­
tion 1920 was enacted to standardize the treatment of 
costs in federal litigation, Roadway Express, Inc. v. 
Piper, 447 U.S. 752, 759-61 (1980), and constitutes the 
“modern version” of the 1853 Fee Act, 10 Stat. 161, 
whose “ explicit purpose . . . was to limit the award of 
costs to specific itemized expenses related to the mechanics 
of bringing a case before the courts.”  Dowdell v. City of 
Apopka, Florida, 698 F.2d 1181, 1189 n.12 (11th Cir. 
1983). In Hairline Creations, Inc. v. K ef alas, 664 F,2d 
652, 655 (7th Cir. 1981), the court referred to Section 
1920 as the standard by which to assess costs on a Rule 
54(d) motion since that Rule, like Rule 68, does not de­
fine costs. Thus, the “ rule implicitly embodies the Amer­
ican rule, whereby parties ordinarily cannot recover at­
torneys’ fees as costs.” Id. at 655 (citation omitted).'8 9

8 The following articles, published almost contemporaneously
with the enactment of the Federal Rules in 1938, illustrate the



9

As the Court stated in Alyeska, Congress has not “re­
tracted, repealed, or modified the limitations on taxable 
fees contained in the 1853 statute and its successors.” 421 
U.S. at 260 (footnote omitted). Those limitations are 
now contained in Section 1920. By not amending that 
provision to encompass attorneys’ fees, Congress has im­
plicitly confirmed that, as a general rule, taxable costs 
are those delineated in Section 1920. Where Congress has 
deemed it appropriate to provide attorneys’ fees, it has 
made “ specific and explicit provisions for the allowance 
of attorneys’ fees under selected statutes granting or pro­
tecting various federal rights.” Id. (citation omitted).

Similarly, this Court has referred to attorneys’ fees 
that may be awarded under the Federal Rules as part of 
expenses, not costs. In Hutto v. Finney, 437 U.S. 678 
(1978), the Court noted that it was within the power of 
an equity court to award attorneys’ fees “against a party 
who shows bad faith” and that the use of such Fed­
eral Rules as 37(a) (4) and 56(g) for this purpose “vin­
dicates judicial authority without resort to the more 
drastic sanctions available . . . and makes the prevailing 
party whole for expenses caused by his. opponent’s ob­
stinacy.”  Id. at 689 n.14 (emphasis added).

Finally, it is significant that the Advisory Committee 
of the Judicial Conference of the United States has con­
sistently characterized attorneys’ fees as expenses, not 
costs. The Committee’s 1983 proposal to revise Rule 68 
to encourage settlements would have provided for the 
shifting of costs “and expenses, including any reasonable 
attorneys’ fees.”  Preliminary Draft of Proposed Amend-

applicability of the American rulei that attorneys’ fees are not costs 
to be shifted from one party to another unless a statute so provides. 
McCormick, Counsel Fees and Other Expenses of Litigation as an 
Element of Damages, 15 Minn. L. Rev. 619 (1931); Payne, Costs in 
Common Law Actions in the Federal Courts, 21 Va. L. Rev. 397 
(1935) ; Note, Distribution of Legal Expenses Among Litigants, 49 
Yale L.J. 699 (1940) ; Note, Costs—Problems in the Allowance of 
Attorneys’ Fees in America, 21 Va. L. Rev. 920 (1935),



10

ments, 98 F.R.D. 337, 362, 365 (1983) (emphasis
added).10 11 Both the original draft and a recent revision 
provide expressly for awards of attorneys’ fees under 
Rule 68 so that settlements will be encouraged. The Com­
mittee’s draft amendments would define attorneys’ fees 
as part of expenses, consistently with the long-standing 
interpretation of the rest of the Rules.

II. CONGRESS DID NOT INTEND FEE-SHIFTING 
STATUTES TO1 EXPAND THE DEFINITION OF 
“COSTS” IN RULE 68

Both petitioners and the United States argue that Con­
gress must have known in 1938, when the Federal Rules 
were adopted, that costs under Rule 68 would include 
attorneys’ fees because Congress had already provided that 
in some circumstances attorneys’ fees could be reallocated 
as part of the costs of an action. This argument is un­
tenable. In none of the fee-shifting statutes that predate 
the Federal Rules did Congress provide simply for the 
shifting of “ costs” without clearly stating that those costs 
—unlike taxable costs— included attorneys’ fees.

The pre-1938 statutes that provided for fee-shifting 
served a variety of public purposes1:1 and did not use

10 The draft was subsequently withdrawn and replaced by a more 
recent revision. The current draft, now under consideration by the 
Advisory Committee, proposes that, costs and expenses, including 
reasonable attorneys’ fees, be shifted as a sanction that may be 
imposed by the court “as a means of facilitating the efficient opera­
tion of the litigative process.” The Rules cited by the Committee’s 
comments as applying the same principle are those Rules that spe­
cifically refer to attorneys’ fees: Rule 3 7 (b )(2 ), (c) and ( d ) ; 
Rules 11 and 26(g) ; Rule 56(g) ; Rule 30 (g) ; and Rule 41(a) (2). 
Committee on Rules of Practice and Procedure, Judicial Conference 
of the United States, Preliminary Draft of Proposed Amendments 
to the Federal Rules of Civil Procedure 12-19 (1984).

11 The Interstate Commerce Act, (the “Act” ), c. 104, '§8; 24 
Stat. 379, 382 (1887), (cited by the government in its brief in 
the Act’s codified version as 49 U.S.C. § 11705(d) (3) and as post- 
1938) contains an early example of feei-shifting to encourage 
private enforcement of safety standards for the public bene­



11

identical language, or provide for uniform fee shifting if 
the plaintiff prevailed. Formulations, and the amount of 
discretion the courts were given in determining whether 
to award any attorneys’ fees, varied with each statute. 
For example, the Packers and Stockyards Act of 1921, 
7 U.S.C. § 210(f), states that “ [i] f  the petitioner finally 
prevails, he shall be allowed a reasonable attorney’s fee 
to be taxed and collected as a part of the costs of the 
suit.”  The Clayton Act, 15 U.S.C. § 15(a), provides that 
prevailing plaintiffs “shall recover . . . the cost of suit, 
including a reasonable attorney’s fee.”  The Securities 
Act of 1933, 15 U.S.C. § 77k (e), provides that the court 
may “ require an undertaking for the payment of the 
costs of such suit, including reasonable attorney’s fees” 
and that if the court believes the suit or defense to have 
been without merit, the prevailing party may receive 
costs “ in an amount sufficient to reimburse him for the 
reasonable expenses incurred by him.” These and other 
statutes cited by petitioners and the United States12 sug­
gest only that attorneys’ fees were considered part of 
“ the cost of suit” to be shifted when Congress elected to 
do so to achieve certain goals. These statutes do not, 
however, indicate any congressional intention to define

fit. The Act provided that “such common carrier shall be liable 
to the person . . . injured thereby for the full amount of damages 
. . . together with a reasonable counsel or attorney’s fee.” Similarly, 
under Section 40 of the Copyright Act of 1909, 35 Stat. 1084, now 
codified at 17 U.S.C. § 505, the court in its discretion “may award” 
such attorneys’ fees to a prevailing party “as part of the costs.” 
Congress intended there to compensate the prevailing party for 
expenses to encourage active protection of copyright, since the value 
of the copyright, and hence any damage recovery, is difficult: to 
measure. See Note, Distribution of Legal Expenses Among Liti­
gants, 49 Yale L.J. 699, 707 (1940).

12 The Norris-LaGuardia Act, 29 U.S.C. 107(e), cited by the 
United States, provides that before a temporary restraining order 
may be issued, the party which has requested it must provide an 
undertaking, the amount of which will be fixed by the court, suffi­
cient to cover “all reasonable costs (together with a reasonable 
attorney’s fee) and expense of defense against the order.”



12

“costs” under the Federal Rules to include attorneys’ 
fees.

If Rule 68 is interpreted as it was by the district court, 
and as now urged by petitioners, the definition of “costs” 
for the purpose of Rule 68 would vary with the stat­
utory basis of the underlying action. It is anomalous to 
define “costs” under Rule 68, but not the other Federal 
Rules,1'3 differently depending on (1) whether the prevail­
ing plaintiff would otherwise be entitled to attorneys’ fees 
under the statute;13 14 (2) if so, whether that statute per­
mitted the award of costs, “ including” attorneys’ fees, or 
instead, costs “ and” attorneys’ fees, in which case Rule 68 
would not apply under petitioners’ argument since fees 
are not described as part of costs;15 (3) whether the fee 
award statute provides for a mandatory or discretionary 
award of fees ;16 and (4) whether the statute authorizes 
attorneys’ fees to the prevailing party, either plaintiff or

13 The Advisory Committee’s 1938 notes to Rule 54(d), which 
provided then as now for a shifting- of costs, cited an article by 
Payne, Costs in Common Law Actions in the Federal Courts, 21 
Va. L. Rev. 397 (1935) for an explanation of “ the present rule in 
common law actions,” The article indicates that attorneys’ fees 
were not considered part of the costs to be awarded.

14 For example, see 49 U.S.C. § 11705(d) (3) (mandatory award 
of attorneys’ fees against carrier in violation of Interstate Com­
merce Act).

15 Compare, for example, the Securities Exchange Act of 1934, 15 
U.S.C. §78i(e) ( “ [T]he court may . . . assess reasonable costs, 
including reasonable attorneys’ fees . . .” ), with 28 U.S.C. §1927 
( “ [A]ny attorney . . . [engaged in vexatious litigation] may be 
required by the court to satisfy personally the excess costs, ex­
penses, and attorneys’ fees reasonably incurred. . .” ).

16 Compare the Clayton Act, 15 U.S.C. § 15(a) ( “ [A]ny person 
who shall be injured . . . shall recover . . . the costs of suit, including 
a reasonable attorney’s fee” ), with 17 U.S.C. § 505 ( “the court may 
. . . award a reasonable attorney’s fee t» the prevailing party as part 
of the costs” ).



13

defendant.17 Rule 68 should not be interpreted in this 
varying and essentially haphazard way. Nor should it be 
interpreted to disadvantage prevailing plaintiffs in civil 
rights litigation who have not accepted an offer of judg­
ment. There is no logical way, given a definition of costs 
that varies with the cause of action, to ensure that costs 
— enormously increased to include the losing defendant’s 
attorney’s fee—would not be shifted to the prevailing 
plaintiff in a civil rights action.18 In contrast, prevailing 
plaintiffs to whom Rule 68 is equally applicable but who 
are not eligible for fee-shifting would have the benefit of 
the common interpretation of costs. Thus, they would be 
required, at most, to pay costs as those costs are usually 
defined.

17 See, for example, 17 U.S.C. § 505, cited above, and the Agri­
cultural Fair Practices Act of 1967, 7 U.S.C. § 2305(a) ( “ [T]he 
court, in its discretion, may allow the prevailing party a reasonable 
attorney’s fee as part of the costs” ).

18 As Justice Rehnquist explained in Delta Airlines, 450 U.S. 
at 378,

To construe Rule 68 to allow attorney’s fees to be recoverable 
as costs would create a two-tier system of cost-shifting under 
Rule 68. Plaintiffs in cases brought under those statutes which 
award attorneys’ fees as costs and who are later confronted 
with a Rule 68 offer would find themselves in a much different 
and more difficult position than those plaintiffs who bring 
action under statutes which do not have attorneys’ fees provi­
sions.. No persuasive justification can be offered as to how such 
a reading of Rule 68 would in any way further the intent of the 
Rule which is to encourage settlement.

It is true that the district court in this case did not require the 
plaintiff to pay the attorneys’ fees incurred by the defendants after 
rejection of the settlement offer and that petitioners do not seek 
that result here. Nevertheless, we believe that it will be difficult 
to limit the effect of the approach urged by petitioners. Once the 
mechanical operation of Rule 68 is permitted to defeat the congres­
sional policy of awarding fees to prevailing plaintiffs in Section 
1983 suits, every defendant in a civil rights case can be expected 
to argue that the “pro-settlement” objectives, of Rule 68 should be 
maximized by including defendants’, as well as plaintiffs’ , fees in 
the “costs incurred” after rejection of a settlement offer.



14

Adoption of petitioners’ construction of Rule 68 would
defeat the careful congressional policies embodied in the 
fee-shifting statutes. Congress has historically used fee- 
shifting to encourage private citizens to enforce certain 
statutes and to vindicate national policies. Fee-shifting 
encourages private citizens to use their statutory rights 
to obtain redress for wrongs. Such wrongs need not in­
volve pecuniary damages and therefore may not result in 
damage awards from which attorneys’ fees can be paid.

Although fee-shifting is an essential mechanism through 
which Congress has particularly encouraged protection of 
the civil rights of all Americans,19 fee awards have also 
been provided by Congress in litigation involving other 
areas of public concern, such as the environment (Clean 
Air Act, 42 U.S.C. § 7604(d)) ; consumer affairs (Truth 
in Lending Act, 15 U.S.C. § 1640 ( a ) ) ; and labor matters 
(Fair Labor Standards Act, 29 U.S.C. § 216(b)).  Con­
gress has differentiated among fee statutes as to the ex­
tent of entitlement,2'0 thereby expressing its view that the 
need for fee-shifting may vary between subject areas.

19 “The fee provisions of the civil rights laws are acutely sensitive 
to the merits of an action and to antidiscrimination policy.” Road­
way Express, 447 U.S. at 762. See Title II and Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3 (b ) , 2000e-5 (k ), 
providing in public accommodations and employment discrimination 
cases that the prevailing party may receive “a reasonable attor­
ney’s fee as part of the costs.”  Congress has included fee-shifting 
provisions in most recent civil rights legislation.

a° For example, a fee award is mandatory under the Truth in 
Lending Act for a prevailing plaintiff; and is to be awarded under 
Title II of the Civil Rights Act of 1964 in the absence of exceptional 
circumstances. The House report on the subject of fee-shifting at 
the time o f the 1976 Fees Awards Act, described the variations 
in some of these laws:

[T]he United States Code presently contains over fifty provi­
sions for the awarding of attorney fees in particular cases. 
They may be placed generally into four categories: (1) manda­
tory awards only for a prevailing plaintiff; (2) mandatory



15

The inappropriateness of a construction of Rule 68 
that defeats Congress’ fee-shifting provisions is shown by 
examination of the purposes of those provisions. The 
private citizen wrho brings suit to enforce the civil rights 
laws does so not for himself alone, but as a “ ‘private 
attorney general’ vindicating a policy that Congress con­
sidered of the highest priority.” Newman v. Piggie Park 
Enterprises, 390 U.S. 400, 402 (1968) (footnote omit­
ted). Congress has expressly acknowledged the signifi­
cant role “private attorneys general”  play in the enforce­
ment of its policies and has long sought to encourage 
individuals to fulfill this critical function by authorizing 
the statutory award of attorneys’ fees. S. Rep. No. 
1011, 94th Cong., 2d Sess. 3 (1976), reprinted in 1976 
U.S. Code Cong. & Ad. News 5908, 5910 (hereinafter 
S. Rep. No. 1011). Failure to award attorneys’ fees 
in such cases “would be tantamount to repealing the Act 
itself by frustrating its basic purpose. . . . Without 
counsel fees the grant of Federal jurisdiction is but 
a[n empty] gesture. . . .”  Hall v. Cole, 412 U.S. 1, 13 
(1973) (discussing award of attorneys’ fees in a Labor- 
Management Reporting and Disclosure Act case).

There is, therefore, a strong and consistent congres­
sional policy to authorize fee-shifting only when, and to 
the extent, that Congress finds shifting to be in the pub­
lic interest. To change the definition of costs in Rule 68, 
as petitioners now urge, would defeat that careful con­
gressional policy, inhibit the achievement of important 
national goals, and substitute uncertainty and confusion. *

awards for any prevailing party; (3) discretionary awards for 
a prevailing plaintiff; and (4) discretionary awards for any 
prevailing party. Existing statutes allowing fees in certain 
civil rights cases generally fall into the fourth category.

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 5 (1976).



16

III. THE EXERCISE OF RIGHTS GUARANTEED BY 
CONGRESS THROUGH SECTION 1983 WILL BE IM­
PERMISSIBLY CHILLED IF RULE 68 COSTS ARE 
INTERPRETED TO INCLUDE ATTORNEYS’ FEES

Respondents sued under 42 U.S.C. § 1983, which was 
derived from Section 1 of the Civil Rights Act of 1871, 
17 Stat. 13, and provides a right of action “ in favor of 
persons who are deprived of ‘rights, privileges or im­
munities secured’ to them by the Constitution.” Carey v. 
Piphus, 435 U.S. 247, 253 (1978) (citation omitted). 
Section 1983 “opened the federal courts to private citi­
zens, offering a uniquely federal remedy against incur­
sions under claimed authority of state law upon rights 
secured by the Constitution and laws of the Nation.” 
Mitchum v. Foster, 407 U.S. 225, 239 (1972) (footnote 
omitted).

The Fees Awards Act was intended by Congress to 
ensure effective enforcement of Section 1983 and other 
civil rights laws “by making it financially feasible to 
litigate civil rights violations.” Dowdell v. City of 
Apopka, Florida, 698 F.2d 1181, 1189 (1983) (citation 
omitted). Congress and the courts have recognized that 
civil rights litigants are often poor, and that the avail­
able judicial remedies may be non-monetary (Mitchum 
v. Foster, 407 U.S. 225) or an award of nominal dam­
ages (Carey v. Piphus, 435 U.S. 247).21 Compensatory 
damages, together with attorneys’ fees, are intended to 
compensate the victim and deter violations of the civil 
rights laws. Civil rights legislation manifests “heavy 
reliance” on attorneys’ fees. S. Rep. No. 1011 at 3. The 
important purposes of Section 1988, as well as Section 
1983, would be gravely threatened if an offer of judg­
ment made under Rule 68 could, without more, prevent

21 See Committee on Legal Assistance, Counsel Fees in Public 
Interest Litigation, 39 Rec. A.B. City N.Y. 300 (May/June 1984), 
for a recent analysis of fee awards in civil rights cases and the 
policy implications of such awards.



17

courts from exercising their discretion with respect to 
the award of attorneys’ fees.25

The legislative history of Section 1988 reveals con­
tinued congressional concern with the enforcement of fed­
eral civil rights laws, and a commitment to attorneys’ 
fees awards as an “ integral part of the remedy necessary 
to achieve compliance” with the fundamental statutory 
policies:

In many cases arising under our civil rights laws, 
the citizen who must sue to enforce the law has little 
or no money with which to hire a lawyer. If private 
citizens are to be able to assert their civil rights, 
and if those who violate the Nation’s fundamental 
laws are not to proceed with impunity, then citizens 
must have the opportunity to recover what it costs 
them to vindicate these rights in court.

S. Rep. No. 1011 at 2.
This Court has recognized, as did the Senate Judiciary 

Committee in considering fee-shifting as a remedy in 
civil rights cases,22 23 that the potential liability of Section 
1983 defendants for attorneys’ fees “provides additional 
— and by no means inconsequential— assurance that 
agents of the State will not deliberately ignore due proc­
ess rights.”  Carey v. Piphm, 435 U.S. at 257 n .ll.24

22 See, for example, Note, The Offer of Judgment Rule in Employ­
ment Discrimination Actions: A Fundamental Incompatibility, 10 
Golden Gate U.L. Rev. 963 (1980).

23 The Senate Judiciary Committee concluded in 1976, after ex­
tensive hearings on the subject, that “ the effects of such fee awards 
are ancillary and incident to securing compliance with these laws, 
and that fee awards are an integral part of the remedies necessary 
to obtain such compliance.”  S. Rep. No. 1011 at 5 (emphasis 
added).

24 Congress continues to recognize the importance of fee-shifting 
to ensure that there will be civil rights plaintiffs. The current 
Chairman of the Senate Judiciary Committee’s, Subcommittee on the



18

If petitioners’ interpretation of the interplay between 
Rule 68 and Section 1988 were correct, these long-settled 
policies would be defeated. Rule 68 does not permit a 
court to evaluate the “value” of injunctive relief. Thus, 
a civil rights plaintiff presented with an early offer of 
judgment that included a realistic estimate of damages 
but no nonmonetary relief would be left seriously at risk 
by refusing to settle. Encouraging premature settlements 
of civil rights actions would, contrary to the intent of 
Congress, erode enforcement of civil rights and other 
statutes.

These problems would be compounded by simple eco­
nomics, A defendant with deep pockets could use his re­
sources to increase the plaintiff’s litigation expenses by 
expanding discovery and engaging in extensive motion 
practice.25 Costs and attorneys’ fees would be incurred 
by both sides. If petitioners’ view of Rule 68 prevails, 
and attorneys’ fees and costs can be shifted to the plain­
tiff, the defendant with deep pockets would be able 
greatly to increase the plaintiff’s risks of refusing a set­

Constitution, Senator Orrin Hatch, has recognized that the Fees 
Awards Act was intended to’ benefit only plaintiffs:

The legislative history o f the: 1976 Fees Act pointed out clearly, 
and correctly I think, the need for the dual standard: If the 
persons seeking to enforce their civil rights were faced with 
paying their opponents [sic] attorneys’ fees if they simply did 
not win the case, the Fees Act would create a greater disincen­
tive to bring these civil rights suits than the situation it 
attempted to remedy.

128 Cong. Rec. S4878 (daily ed. May 11, 1982).

25 “ [D.]iscovery practices enable the party with greater financial 
resources to prevail by exhausting the resources of a weaker oppo­
nent.” Amendments to the Federal Rules of Civil Procedure, 85 
F.R.D. 521, 523 (1980). (Dissent by Justices Powell, Stewart and 
Rehnquist to the adoption of amendments to the Federal Rules of 
Civil Procedure discovery rules).



19

tlement offer.26 These risks may compel the plaintiff’s 
attorney to recommend settlement even if by doing so the 
plaintiff abandons an opportunity to obtain important 
nonmonetary relief.

These dangers are illustrated by this case. The jury 
award in this case consisted of $52,000 for the violation 
of civil rights; $3,000 as punitive damages; and $5,000 
for wrongful death. Pet. Brief at 4. In nonmonetary 
terms, respondent was vindicated, and it is not unreason­
able to believe that the jury verdict may have had a 
beneficial effect on the community involved, thereby 
achieving one of the congressional purposes in enacting 
Sections 1983 and 1988. Although the United States has 
characterized the offer of judgment here as “ obviously 
reasonable” and chastized respondent for his “unreason­
able failure to accept a favorable settlement,”  Brief of 
the United States at 3, neither the District Court nor the 
Court of Appeals suggested that the refusal of the offer 
was unreasonable under the circumstances. Instead, both 
courts recognized that new dilemmas for civil rights at­
torneys and their clients would be created if Rule 68 were 
read to preclude awards of attorneys’ fees after a settle- 
ment offer higher than the ultimate jury verdict. Chesny 
v. Marek, 547 F. Supp. 542, 547 (N.D. 111. 1982); 720 
F.2d 474, 478-79 (7th Cir. 1983).

Rule 68 should not be interpreted so as to increase the 
pressures on civil rights plaintiffs and similar benefici­
aries of fee-shifting statutes to settle, while leaving other 
plaintiffs subject to the Rule with the lesser burden of 
traditional costs. The fundamental policies behind fee-

26 The “ risks” of failing to settle, under petitioners’ interpreta­
tion of Rule 68, might include the following: (1) the plaintiff would 
have to bear his own attorney’s fee after the offer; (2) the public 
interest attorney would be unable to obtain reimbursement for time 
spent after the offer; and (3) defendant's; costs and attorney’s fees 
would have to be borne by the successful plaintiff. See also n.18, 
infra at p. 13.



20

shifting legislation should not be swept away by an artifi­
cial construction of a rule which is merely procedural. 
Congress did not intend that Rule 68 would be used to 
negate basic public policies designed to protect essential 
civil liberties.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

Harold R. Tyler, Jr.*
Sara E. Lister 
Heather D. D iddel 

Patterson, Belknap,
Webb & Tyler

30 Rockefeller Plaza 
New York, New York 10112 
(212) 541-4000
1730 Pennsylvania Avenue, N.W. 
Washington, D.C. 20006 
(202) 783-6518

* Attorney of Record

Fred N. F ishman  
Robert H. Kapp 

Co-Chairmen 
Norman Redlich 

Trustee
W illiam L. Robinson 
Norman J. Chachkin  

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Amicus Curiae