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

    No. 79-814

In  T he

&u$rm? (Cmul at tltp llmtih BMrs
October T erm , 1980

Delta A ir L ines, In c .,
Petitioner,

v .

Rosemary A ugust.

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

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

John B. Jones, Jr.
N orman Redlich

Co-Chairmen

W illiam  L. R obinson 
N orman J. Chachkin  
Beatrice R osenberg 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Amicus Curiae

W ilson  - Ep e s  Pr in t in 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 a token offer by a defendant, which the 
district court found to be not even arguably reasonable, 
serves, by virtue of Rule 68, to take away from the 
district court the discretion conferred by Rule 54(d) to 
decline to award costs against an unsuccessful plaintiff 
who in good faith had sought to vindicate an important 
civil right.

(i)



Page

QUESTION PRESENTED ........................... ............ ..... i

INTEREST OF AMICUS CURIAE.............................  1

STATEMENT ....................................................................... - 2

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

ARGUMENT ....................  ..— .............................................. 5

RULE 68 DOES NOT APPLY TO A PROPOSAL 
WHICH IS NOT A GENUINE OFFER OF 
JUDGMENT .................................................................... 5

A. The Language and History of Rule 68 Show 
That It Was Intended to Apply Only to the 
Situation Where a Defendant Admits Liability
but Disputes the Extent of the Relief Sought.. 6

B. Rule 68 Does Not Apply to a Proposal Which,
Although in Form an Offer of Judgment, Is 
in Reality Nothing More Than a General 
Denial .................................................................. ......  10

CONCLUSION ............. ......................................................... 13

I N D E X

(hi)



XV

TABLE OF CITATIONS
CASES: Page

Bissell V. Heyward, 96 U.S. 580 (1878) ............ . 7
Blasini-Stem  V. Beech-nut Life Savers Cory., 429

F. Supp. 533 (D. Puerto Rico 1975)................. .. 7
Boys Markets V. Retail Clerks Union, 398 U.S. 235

(1970)................ .......................... ................................. 13
Connally v. Hyams, 42 App. Div. 63, 58 N.Y.S. 932

(1899) ...............        8
Cover V. Chicago Eye Shield Co., 136 F.2d 374

(7th Cir.), cert, denied, 320 U.S. 749 (1943).... 8
Dinkin V. General Aniline and Film Cory., 214

F. Supp. 281 (S.D.N.Y. 1963) ..........     7
Doutritt V. Finch, 84 Cal. 214, 14 P. 929 (1890).... 7
Farmer V. Arabian American Oil Co., 379 U.S. 227

(1964) ..........     5
Fishgold v. Sullivan Drydock & Reyair Co., 328

U.S, 175 (1946) .............................. ............ ............... 5
Florence Oil & Refining Comyany V. Farrar, 119

Fed. 150 (8th Cir. 1902) ..........................................  7
Gay V. Waiters Union, 22 FEP Cases 1149 (N.D.

Cal. 1980) ........... ....... .................. ................................ 12
Gregory v. Helvering, 293 U.S. 165 (1935) ______  5,11
Haggar v. Helvering, 308 U.S. 389 (1940) ______  13
Hendonv. Bankers Life Co., 88 F. Supp. 977 (W.D.

Mo, 1950) .... ....... ...... .........................................- .......  7
Honea V. Crescent Food Truck Sales, Inc., 394 F.

Supp. 201 (E.D. La. 1975) ....................... ....... .......  12
Kaw Valley Fair Association V. Miller, 42 Kan.

20, 21 P. 794 (1889) ................................................. 7
Knetsch V. United States, 364 U.S. 361 (I960).... 5,11
Kokoszka V. Belford, 417 U.S, 642 (1974) ............. 13
Missouri-Pacific R. V. Star City Gravel Co., Inc.,

592 F.2d 455 (8th Cir. 1979) .............. ............ . 5
Mr. Hanger Inc. V. Cut Rate Plastic Hangers, Inc.,

63 F.R.D. 607 (E.D.N.Y. 1974) ................ ......... . 11
Perkins V. New Orleans Athletic Club, 429 F. Supp.

661 (E.D. La. 1976)................... ...................... .......  12
Philbrook v. Glodgett, 421 U.S. 707 (1975) ...........  13
United Steelworkers V. Weber, 443 U.S. 193

(1979) ................................. ..... ....................................  13



TABLE OF CITATIONS— Continued

STATUTES: Page

Title VII of the Civil Rights Act of 1964, as 
amended, Section 7 0 6 (f)(1 ) , 42 U.S.C. 2000e- 
5 ( f ) ( 1 ) - - ....................................................... — 2

RULES OF CIVIL PROCEDURE :

Rule 1 ......
Rule 23(d)
Rule 54(d)
Rule 67 .....
Rule 68 ....

MISCELLANEOUS:

Rule 68: A New Tool for Litigation, 1978 Duke 
L.J. 889 ............ - ............................................... ..........

9
9

.2, 5, 6n, 9 
.....  4 ,7
__ passim

8



In  T he

Bupnmv (Exwrt uf tlir Unit?!* States
October Term , 1980

No. 79-814

Delta A ir L ines, In c .,
Petitioner,

v.

Rosemary A ugust.

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

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

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys in the 
national effort to assure civil rights to all Americans. 
The Committee has over the past fifteen years enlisted 
the services of over a thousand members of the private 
bar in addressing the legal problems of minorities and 
the poor.



2

The question at issue here is whether a token offer by 
an employer, which the district court found to be not 
even arguably reasonable, serves, by virtue of Rule 68, 
to take away from the district court the discretion con­
ferred by Rule 54(d) to decline to award costs against 
an unsuccessful plaintiff who in good faith sought to 
vindicate an important civil right. This is a question 
which manifestly affects, not only employment cases un­
der Title VII of the Civil Rights Act of 1964, but other 
forms of litigation. Because the position which peti­
tioner espouses could have a chilling effect on civil rights 
plaintiffs, the Committee files this brief in support of 
respondent urging affirmance of the judgment below.1

STATEMENT

In January, 1977, plaintiff filed suit against Delta 
Airlines in the Northern District of Illinois under Sec­
tion 706(f) (1) of Title VII of the Civil Rights Act of 
1964, as amended (42 U.S.C. 2000e-5(f) (1 )) . She alleged 
that her discharge in August, 1975 had been the result 
of discrimination on account of race.

In May 1977, Delta submitted to plaintiff the follow­
ing offer in writing (J.A. 84) :

Pursuant to Rule 68 of the Federal Rules of Civil 
Procedure, defendant hereby offers to allow judg­
ment to be taken against it in this action, in the 
amount of $450 which shall include attorneys’ fees 
together with costs accrued to date. This offer of 
judgment is made for the purposes specified in Rule 
68, and is not to be construed either as an admission 
that the defendant is liable in this action, or that the 
plaintiff has suffered any damage.

The offer was not accepted.

1 The parties’ written consents to the filing of this brief are being 
filed with the clerk pursuant to Rule 36 of the Rules of the Supreme 
Court.



3

After trial, the district court granted judgment to the 
defendant. While finding that Delta improperly subjected 
plaintiff to a physical examination and had taken stern 
measures against blacks in general and plaintiff in par­
ticular (J.A. 29-30), the court concluded that plaintiff 
had not established that Delta’s employment practices 
were racially premised (J.A. 32).

In entering judgment for Delta, the court ordered that 
each side “ bear its own costs of litigation” (J.A. 32). 
Delta moved for reassessment of costs, claiming that, in 
view of its offer of judgment for $450 in May 1977, 
costs had to be assessed against plaintiff by mandate of 
Rule 68. The district court denied the motion (J.A. 14). 
It held that, “ in order to be effective, a Rule 68 offer 
must be made in a good faith attempt to settle the 
parties’ litigation and, thus, must be at least arguably 
reasonable” (J.A. 11). Noting that the Rule was intended 
to encourage early settlements of litigation, the court 
said (J.A. 11) :

If the purpose is to encourage settlement, it is im­
possible for this Court to concede that this purpose 
can be furthered or aided by an offer that is not 
at least arguably reasonable.

The court of appeals affirmed the district court, both 
on the merits and on its interpretation of Rule 68. 
Noting Delta’s argument that any offer of judgment un­
der Rule 68 would serve to shift cost liability if plain­
tiff did not ultimately recover, the court below said (J.A. 
5) :

If that were so, a minimal Rule 68 offer made in bad 
faith could become a routine practice by defendants 
seeking cheap insurance against costs. The useful 
vitality of Rule 68 would be damaged. Unrealistic 
use of the rule would not encourage settlements, 
avoid protracted litigation, or relieve courts of vexa­
tious litigation.



4

The court below pointed out that, at the time the 
offer of $450 was tendered, plaintiff’s damages from loss 
of employment exceeded $20,000, not including costs and 
attorneys’ fees, and that, if successful, plaintiff would 
have sought reinstatement as a stewardess. It noted 
that her claim was not frivolous; that she had presented 
some evidence suggesting racial bias (J.A. 5). It con­
cluded that, against that general background, Delta’s 
Rule 68 offer of judgment was “not of such significance 
in the context of this case to justify serious consideration 
by the plaintiff.” At least in Title VII cases, the court 
held, Rule 68 should be given a liberal and not a tech­
nical interpretation (J.A. 7).

SUMMARY OF ARGUMENT

On its face, Rule 68 shows that it was designed to 
apply to the situation where a defendant admits liability 
but disputes the extent of relief sought by the plaintiff. 
The history of the Rule confirms this conclusion. It ap­
parently grew out of the common law practice of per­
mitting a defendant to deposit in court the money he 
admitted was due in order to stop the running of interest 
and costs. This was an admission of liability. Indeed, 
under the modern codification of that practice in Rule 67 
of the Federal Rules, a deposit is not allowed if the 
defendant still disputes all liability.

For this reason Rule 68 may properly be interpreted 
as applying only where the plaintiff does recover judg­
ment, although for less than the amount offered. Rule 
68 mandates liability for costs on a party who otherwise 
would be entitled to recover, rather than pay, costs, i.e., 
a successful plaintiff. It should not be read to relate to 
the wholly different situation of an unsuccessful plaintiff 
who would normally be required to pay costs, but who 
a court for good reason decides should be freed of that 
obligation.



5

In any event, Rule 68 does not apply to a proposal 
which, although in form an offer of judgment, is in 
reality nothing more than a general denial and thus a 
sham. Even in as technical a field as tax law, this Court 
has recognized that a transaction which in form would 
qualify as a basis for a deduction need not be so treated 
where the transaction had no substance in reality. 
Knetsch V. United States, 364 U.S. 361 (1960) ; Gregory 
v. Helvering, 293 U.S. 165, 170 (1940).

Thus, the interpretation of Rule 68 as not applying 
to an offer which is not genuine does not read into the 
rule words which the framers did not put there. It 
merely interprets the rule, as statutes have always been 
interpreted, in a way which accords with its purpose and 
prevents absurd results.

ARGUMENT

RULE 68 DOES NOT APPLY TO A PROPOSAL 
WHICH IS NOT A GENUINE OFFER OF JUDGMENT

The award of costs at the conclusion of a case is 
governed by Rule 54(d), F.R. Civ. P., which provides 
that, except where there is express provision by statute 
or rule, costs will be allowed to the prevailing party as 
of course “ unless the court otherwise directs.” This has 
been construed to vest in the district court discretion as 
to the award of costs. Farmer v. Arabian American Oil 
Co., 379 U.S. 227, 232-236 (1964) ; Fishgold V. Sullivan 
Drydock & Repair Corp., 328 U.S. 175, 184 (1946). This 
discretion will not be overruled except for gross abuse. 
Farmer v. Arabian American Oil Co., supra; Missouri 
Pacific R. V. Star City Gravel Co., Inc., 592 F.2d 455, 
460 (8th Cir. 1979). Here the district court, in the 
exercise of its discretion, properly decided that each 
party should bear its own costs.2

2 In this Court, petitioner raises a question not argued below 
as to whether the district court abused its discretion in denying



6

Relying on the use of the word “must”  in Rule 68, 
petitioner argues that, in view of its $450 offer in 
May 1977, the district court was governed by a rule (i.e. 
Rule 68) which obliged it to award costs against the 
plaintiff since, having lost on the merits, she recovered 
less than the offer which she rejected. We do not dis­
pute the position that, where a defendant makes a 
genuine offer of judgment which admits liability but 
questions the amount of damages or other relief claimed, 
a plaintiff who recovers less than the amount offered 
must be held liable for costs incurred after the offer 
was rejected. Our position is that in this case Rule 68 
did not apply both because plaintiff did not recover judg­
ment and because defendant’s offer was not a genuine 
offer of judgment within the purview of Rule 68. In 
the circumstances of this case, the offer of $450 which, 
as the courts below found, was not even arguably reason­
able, was only in form but not in substance, an offer 
of judgment. It was in essence no more than a general 
denial of any liability. It therefore did not operate to 
bring Rule 68 into operation.

A. The Language And History of Rule 68 Show That 
It Was Intended to Apply Only to the Situation 
Where a Defendant Admits Liability but Disputes 
the Extent of the Relief Sought.

On its face, Rule 68 shows that it was intended to 
cover only the situation where a defendant admits li-

costs to it under Rule 54. Although not called upon to pass directly 
on that issue, both the district court and the court of appeals 
indicated that there was good reason for the district court’s action 
in this respect. They pointed out that plaintiff’s claim, was not 
frivolous and that she had presented some evidence of racial bias. 
They must also have been aware that she was an unemployed 
stewardess without financial resources who had to bear her own liti­
gation costs. Under these circumstances the courts below could 
properly find that it would be inequitable to put the burden of 
costs on the losing party.



7

ability but disputes the extent of the relief claimed by a 
plaintiff. Under the rule, the offer must be “to allow 
judgment to be taken.” The rule then provides that if 
“ the judgment finally obtained by the offeree” is not more 
favorable than the offer, the offeree must bear the costs 
incurred by the offeror after rejection. Manifestly, this 
assumes a situation where the offeree recovers a 
judgment.

The history of the rule confirms that it was intended 
to relate to the situation where a plaintiff insists on 
greater relief than is offered by a defendant who does 
not dispute liability. As petitioner states (Pet. Br. 8), 
although offers of judgment were not introduced into 
federal practice until 1938, statutory provisions for of­
fers of judgment had existed for a long time before that 
in many states. (See in addition to the cases cited at 
fn. 5 of petitioner’s brief, Florence Oil & Refining Com­
pany v. Farrar, 119 Fed. 150 (8th Cir. 1902) ; Doutritt 
v. Finch, 84 Cal. 214, 14 P. 929 (1890); Raw Valley 
Fair Association v. Miller, 42 Kan. 20, 21 P. 794 
(1889).) The provisions seem to have grown out of the 
practice, known at common law, whereby a defendant 
could pay into court the money he admitted was due in 
order to stop the running of interest and costs. See Raw 
Valley Fair Association v. Miller, supra. When money 
was paid into court, the depositor lost control of it 
permanently. See Bissell v. Heyward, 96 U.S. 580 
(1878) ; Hendon v. Bankers Life Co., 88 F. Supp. 977 
(W.D. Mo. 1950). Under the modern equivalent of that 
practice, embodied in Rule 67 of the Rules of Civil Pro­
cedure, a deposit in court for the purpose of stopping in­
terest and costs will not be allowed if the offeror disputes 
the fact that any money is due. Blasini-Stern v. Beech­
nut Life Savers Corp., 429 F. Supp. 533, 534 (D. Puerto 
Rico 1975), Dinkin v. General Aniline and Film Corp., 
214 F. Supp. 281, 283 (S.D.N.Y. 1963). In other words, 
an admission of some liability is inherent in the deposit.



8

That Rule 68 was understood as relating to the situa­
tion where the dispute between the parties related to 
relief, rather than liability, is confirmed by the decision 
in Cover V. Chicago Eye Shield Co., 136 F.2d 374 (7th 
Cir.), cert, denied, 320 U.S. 749 (1943), interpreting the 
first version of Rule 68. As originally promulgated, the 
rule provided only that an offer of judgment must be 
made at least ten days before trial. In an action for 
patent infringement, where trial was customarily in two 
stages, (one to determine validity and the other dam­
ages for infringement), the court held that an offer of 
judgment ten days before the hearing on accountability 
but long after the trial on validity was timely since only 
after validity had been established could there be any 
issue as to the amount due. This interpretation, that 
an offer of judgment could await the determination of 
liability, was subsequently embodied in the present rule. 
It is a further indication that the rule deals with dis­
putes as to relief, and not as to liability.

For this reason, there is considerable merit in the 
suggestion by the author of the only extended comment 
on Rule 68 which we have found, that the rule should 
apply only where the plaintiff prevails to some extent, 
however minor. See Rule 68: a New Tool for Litigation, 
1978 Duke  L.J. 889, 895.

The suggested interpretation of Rule 68 limits it to 
the situation which is clearly its main thrust—the pro­
tection of a defendant who does not dispute liability but 
disputes the extent of relief sought. It finds support in an 
early New York decision interpreting the New York 
statute which is the forerunner of the federal rule. See 
Connally V. Hyams, 42 App. Div. 63, 58 N.Y.S. 932 
(1899), holding that the New York statute did not ap­
ply to a suit in equity which was dismissed without costs 
to either party. The suggested interpretation of the Rule 
does what petitioner urges should be done; it preserves



9

the individual integrity of each federal rule in its own 
sphere (see Pet. Br. 14). Rule 68 mandates liability for 
costs on a party who otherwise would be entitled to re­
cover rather than pay costs, i.e., a successful plaintiff. It 
should not be read to relate to the wholly different situ­
ation of an unsuccessful plaintiff who would normally be 
required to pay costs but who a court for good reason de­
cides should be relieved of costs. Thus the interpretation 
of Rule 68 as applying only where a plaintiff recovers 
judgment, rather than the position for which petitioner 
contends, properly harmonizes Rule 68 with Rule 54(d).

That this is so becomes evident when one considers the 
application of Rule 68 to class actions. If, as petitioner 
contends, any offer of judgment, no matter how small or 
how unreasonable, serves to require that costs thereafter 
be taxed against a plaintiff who proves finally to be un­
successful, then a class representative, faced with an offer 
of judgment, will, if he has even a slight doubt as to the 
merits of his case, be under an obligation to present the 
matter to the court as an offer of compromise under 
Rule 23(d). Thus a court would, in effect, be itself 
forced, at an early stage in the proceeding, to make a 
judgment as to the ultimate merits, rather than to pass on 
a genuine offer of settlement. This aids neither the par­
ties nor the courts. A mechanical interpretation of Rule 
68, so at odds with its real purpose, should be rejected. 
Rule 1 mandates that the rules be construed “ to secure 
the just, speedy, and inexpensive determination of every 
action.” The interpretation of Rule 68 as applying only in 
the situation where the offeree does recover judgment, al­
though for less than the amount offered, harmonizes Rule 
68 with Rule 54(d) and Rule 23(d). It assures that 
a token offer will not serve to defeat the court’s dis­
cretion conferred by Rule 54.



10

B. Rule 68 Does Not Apply to a Proposal Which, Al­
though in Form an Offer of Judgment, Is in Reality 
Nothing More Than a General Denial

The judgment below may also be affirmed on the nar­
rower ground that there was in this case no genuine offer 
of judgment within the purview of Rule 68. As the dis­
trict court noted, under the circumstances of this case, 
petitioner’s offer was not even arguably reasonable. Peti­
tioner could not possibly have believed that if it was 
liable at all, its liability could be limited to an amount ap­
proaching $450. When its offer was made, loss of earn­
ings alone amounted to approximately $20,000, without 
consideration of costs and attorneys’ fees. Delta certainly 
was not truly admitting liability; it specifically stated 
that its offer was not to be so construed. Thus the offer, 
although in the form of an offer of judgment, was in 
reality nothing more than a general denial. Rule 68 does 
not apply to such an offer.

The issue here is genuineness, rather than reasonable­
ness. If a contract called for delivery of a diamond, there 
might be a question as to whether a cheap industrial 
diamond fulfilled the contract; there could be no question 
that a counterfeit diamond would not. Here the offer 
of judgment was a counterfeit, an offer which was ad­
mittedly made for the purpose of accomplishing formal 
compliance with Rule 68 but, in the circumstances, with 
no expectation, not even an arguably reasonable expec­
tation, that the amount offered would be adequate to com­
pensate plaintiff for the injury alleged if defendant were 
found liable. It was a formal offer without substance 
other than as a general denial.

The courts have recognized that an action which is 
mere form without substance is a sham transaction which 
does not fall within the coverage of a statute despite the 
appearance of compliance. In as technical a field as 
taxation, this Court has held that a scheme which on its



11

face required the payment of interest did not justify the 
deduction normally allowed for interest payments because 
the scheme was a sham without a real indebtedness. 
Knetsch v. United States, 364 U.S. 361, 367 (1960). It 
quoted with approval its prior decision Gregory v. Hel­
vering, 293 U.S. 165, 170 (1935) holding that an alleged 
reorganization was a sham: “ To do otherwise would be to 
exalt artifice above reality and to deprive the statutory 
provision in question of all serious purpose.” So here, to 
treat petitioner’s offer as a serious one in the circum­
stances of this case would be to exalt form over substance 
and deprive Rule 68 of serious meaning.

Since the issue is genuineness, and not reasonable­
ness, petitioner’s elaborate argument that it would be 
improper to read reasonableness into Rule 68 is irrelevant. 
There is a difference between a genuine offer and a rea­
sonable one, although of course, the reasonableness of 
the offer would have a bearing on whether it is genuine. 
An offer may be genuine if it admits liability, even though 
it may seem to the offeree unreasonable. Such an offer 
may well fall within Rule 68 even though the offeree 
reasonably rejected it. Thus in Mr. Hanger, Inc. v. Cut 
Rate Plastic Hangers, Inc., 63 F.R.D. 607 (E.D.N.Y. 
1974), the court pointed out that the offer there made, 
although for only $25.00, was reasonable because the de­
fendant admitted liability and agreed to discontinue in­
fringement. That decision supports, rather than negates, 
our position in that the court found it necessary to over­
rule the plaintiff’s contention there that the offer was a 
sham. The implication is that, if it were, Rule 68 would 
not have applied.

An offer which is not genuine is no more an offer for 
the purposes of Rule 68 than the payment of interest for 
a theoretical indebtedness was a true deduction for tax 
purposes in the Knetsch case, supra. Indeed, so much 
has genuineness been assumed as necessary for a valid



12

offer of judgment under Rule 68 that the courts have 
talked in terms of a reasonable or proper offer even when 
there was no issue with respect thereto. Thus, in Gay V. 
Waiters Union, (N.D. Cal. 1980), 22 FEP Cases 1149, 
1150, the court said that under Rule 68, an award of 
costs is mandatory “provided the offer was reasonable and 
in good faith.”  In Honea v. Crescent Food Truck Sales, 
Inc., 394 F. Supp. 201 (E.D. La. 1975), the court said that 
“ if a reasonable offer is spurned, Rule 68 of the Federal 
Rules of Civil Procedure provides a manner in which a 
party can stop costs from accruing.” In Perkins v. 
New Orleans Athletic Club, 429 F. Supp. 661, 666 (E.D. 
La. 1976) the court said that the rules provide a proce­
dure whereby defendant “ may offer what is really due.” 
An interpretation of Rule 68 as not applying to offers 
which are not genuine thus does not require reading into 
the rule words which the framers of the Rules failed to 
insert. It merely interprets the words of the rule in their 
ordinary meaning as applying to a real, not a counter­
feit, offer of judgment.

There is no difficulty in implementing this position. It 
is certainly as easy to determine whether a proposal is 
genuinely an offer of judgment as it is to determine 
whether a plan involving payment of interest involves a 
genuine indebtedness. The district court, we think, has 
articulated a standard which is appropriate and easily 
applied. If an offer is in the circumstances of a particu­
lar case, not even “ arguably reasonable” , it is not a gen­
uine offer of judgment, but a sham. It is a sham because 
it was not intended to induce the plaintiff to settle the 
case but merely to constitute a device to take away from 
the district court the discretion not to impose costs against 
an unsuccessful plaintiff. This Court should not allow a 
salutary rule to be misused for such an unjust purpose.

It is well established that, in interpreting a statute, 
the courts look, not only to a particular clause but to the 
statute as a whole, and interpret it in light of its pur­



13

pose. Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) ; 
Kokoszka v. Belford, 417 U.S. 642, 650 (1974); Boa/s 
Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 250 
(1970). A literal reading of a statute which leads to 
absurd results is to be avoided where the statute can be 
interpreted in a way which better comports with its 
purpose. United Steelworkers v. Weber, 443 U.S. 193, 
201 (1979) ; Hag gar v. Helvering, 308 U.S. 389, 394 
(1940). The interpretation of Rule 68 which we here 
suggest prevents a token offer from serving to deprive 
district courts of their discretion to decline to award 
costs against a plaintiff who in good faith, even if un­
successfully, sought to vindicate an important civil right. 
Rule 68, which was designed to promote settlements, 
should be interpreted as relating only to genuine offers 
to permit judgment against the offeror.

CONCLUSION

The judgment of the court below should be affirmed.

Respectfully submitted,

John B. Jones, Jr .
N orman Redlich 

Co-Chairmen

W illiam  L. Robinson 
Norman J. Chachkin  
Beatrice Rosenberg 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Amicus Curiae