# Petitioners Brief — Roadway Express, Inc. v. Piper > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1178%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1980 - **Citation:** 447 U.S. 752 ## Text Supreme Court, U.S. age ay, le aaa tk FEB 20 1980 IMICHAEL RODAK, JR., CLERK IN THE Supreme Cowt of the United States OCTOBER TERM, 1979 No. 79-701 ROADWAY EXPRESS, INC., Petitioner V. J. D. MONK, ET AL., Respondents On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF FOR THE PETITIONER MILES CURTISS MCKEE ARMIN J. MOELLER, JR. FUSELIER, OTT, MCKEE & FLOWERS, P.A. 2100 Deposit Guaranty Plaza Jackson, Mississippi 39201 (601) 948-2226 Counsel for Petitioner TABLE OF CONTENTS Page Table of Cases and Authorities |... ii ER Te ee 1 RE A I es Re Se 2 a ene 2 Question Presented 0.0.0.0... ccccccccccccccececccsececesecececeees 3 sptatement of the Came... ccc ccccccccccccccececes. 3 Summary of Argument... 6 (i EE ESD SE a oa a ee Ue 7 I. 28 U.S.C. § 1927, 42 U.S.C. § 2000e-5(k) AND 42 U.S.C.-§ 1988 SHOULD BE EN- FORCED ACCORDING TO THEIR SRM EY MMMM scence ccaiecsccednssdeveserences 7 II. ASSUMING THAT SECTIONS 706(k AND 1988 ARE INAPPLICABLE T SECTION 1927, COURTS POSSESS IN- HERENT POWER TO INCLUDE AT- TORNEYS’ FEES AS COSTS UNDER PMI III 6s cussesaseprenonscictbon pssiaceconce 19 ii TABLE OF CASES AND AUTHORITIES me Page(s) Acevedo v. Immigration & Naturalization Serv., te Re 0 CRP BCD oaccsess cc ssecceseseecciseascssness: 11 Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 i goss ah alla va syanstdasenisanraars 13,15,19 Browning Debentures Holders’ Comm. v. DASA Corp., 560 F.2d 1078 (2d Cir. 1977).................00. 19 Caminetti v. United States, 242 U.S. 470 (1917) ..... 8 Christiansburg Garment Co. v. EEOC, 434 US. Ne ele Ugo cade exdoubceretannbconsddieheansaies> 9,10 17,18 Field v. United States, 34 U.S. (9 Pet.) 182 (1834) 13 Flaska v. Little River Marine Constr. Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928 (RDI Set DR Goer ues cop selina dene ef oO 20 Fleischmann Distilling Corp. v. Maier Brewing ee a Pe I oo iecsststaisrnticns pavteesvanensoisias er 18,19 Flora v. Moore, 461 F. Supp. 1104 (N.D. Miss. ES EIS rate 0 i epve hey OP One Canes ee SPOR 10 Gamble v. Pope & Talbot, Inc., 307 F.2d 729 (3d Cir.) (en banc), cert. denied, 371 U.S. 888 ie Roatan sets seavsesadisa tan birreitriceecsinsivs 20 Bat o. Cote, O13 UD: 8 (IG TB) 000... 0cccccccccsesccscse.s. 19 Huddleston v. United States, 415 U.S. 814 (1974)... 16 Huntington v. Attrill, 146 U.S. 657 (1892) .............. 16 Hutto v. Finney, 4387 U.S. 678 (1978) .........0. 6,15 In re Sutter, 543 F.2d 1030 (2d Cir. 1976) ............... 20 Link v. Wabash R.R., 370 U.S. 626 (1962) ............... 10,19 Mills v. Electric Auto-Lite Co., 396 U.S. 375 iia Mectc le atl Lineups gn vslnumdncisieveaneviven’ 19 iil Page(s) Motion Picture Patents Co. v. Steiner, 201 F. 63 LR RU enbr RAR enema coe ene tect se 6,14 15,19 National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per curiam) ...... 7,20 Newman v. Piggie Park Enterprises, 390 U.S. 400 Ry CIO IID avian css cescirssvcnvvensesenvncesssnaseceess 17 Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) ....... 9,10,18 Sprague v. Ticonic Natl Bank, 307 U.S. 161 IN sha veducelcccrtustka tasne tases hea eae me 7,19 St. Louis, Iron Mt. & S. Ry. v. United States, 251 SN I Soo elas scree cheteahs a peruiastic 18 Toledo Metal Wheel Co. v. Foyer Bros. & Co., 223 F. I sca csatesacesesssseecoce Ven vaskidesyrautiecs 16 United States v. American Trucking Ass’ns., 310 Pn I oars scauzdons vudics ded sites vonsotinnvsasudiaee nage 8,9 United States v. Missouri Pac. R.R., 278 U.S. 269 GR ER AI A RRC EC Rep PN TEL ARE Ai wks opal OIE 8 United States v. Ross, 535 F.2d 346 (6th Cir. 1976) 15 Vaughan v. Atkinson, 369 U.S. 527 (1962) 000000000... 19 Act of July 22, 1818, 3 Stat. 21 ....................0c0000c00.0.. 12,la Act of Feb. 26, 1853, 10 Stat. 162.000.000.000... 14,1la Po eS 14,2a Be ee ii oe oer coidthareeaSecsmverr ccc 18 Be Ws Oe cg csi es ts cose scevisce coe vdeiocarxacss passim 42 U.S.C. § 1988 (as amended 1976) 2.00.00... passim te Se |S eee passim H.R. Rep. No. 50, 32d Cong., ‘st Sess. (1852) ......... 14 H.R. Rep. No. 308, 80th Cong., 1st Sess. (1947) ..... 6,14 S. Rep. No. 94-1011, 94th Cong., 2d Sess. (1976) ... 15 iv H.R. Doc. No. 25, 27th Cong., 3d Sess. (1842) ......... Antitrust Procedural Act of 1979: Hearings on S. 390 Before the Subcommittee on Antitrust and Monopoly, 96th Cong., Ist Sess. (1979) ................ 47 Annals of Cong. 29, 48, 45, 54, 57, 60-61, 446, Fs) RR re ORLA IS oon Bos Cong. Globe, 32d Cong., 2d Sess. App. 207-09 IS NINE «csv iusaietencicibiedeediel pdeintsinrcenueemecaacelas ees nL ame 122 Cong. Rec. 31882, 35117, 35124 (1976).............. 125 Cong. Rec. $1343-68 (daily ed. Feb. 8, 1979)... a Statutory Construction (C. Sands ed. |, | RR DRINA RCO rena AN MORE le Pia y re OS 52K P Brief of the NAACP Legal Defense Fund, Inc., as Amicus Curiae, Christiansburg Garment Co. v. BOC, 484 U.S. 432 (IGE) ...cusccccccccrsecricccssecceessens Note, Attorney’s Fees and the Federal Bad Faith Exception, 29 Hastings L.J. 319 (1977) ............... Comment, Financial Penalties Imposed Directly Against Attorneys in Litigation Without Resort re the Contempt Power, 26 U.C.L.A. L. Rev. 855 POE bis sdesiavinic line dcoaiceoen alae een ee Comment, Sanctions Imposed by Courts on At- torneys Who Abuse the Judicial Process, 44 U. CA Ts FRR Re CI CED vasecshchsssanasepcceeena Page(s) 13 16 13 13 12 16 8,16,18 10 11 IN THE Supreme Court of the United States OCTOBER TERM, 1979 No. 79-701 ROADWAY EXPRESS, INC., Petitioner Vv. J. D. MONK, ET AL., Respondents On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the court of appeals (Pet. App. A, pp. la-8a) is reported at 599 F.2d 1378. The opinion of the district court on rehearing (Pet. App. C, pp. lla-18a) is not reported. The opinion of the district court (Pet. App. D, pp. 14a-96a) is reported at 73 F.R.D. 411. 2 JURISDICTION The judgment of the court of appeals was entered on August 3, 1979. The petition for a writ of certiorari was filed on October 31, 1979, and was granted on January 7, 1980. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTES INVOLVED 28 U.S.C. § 1927 provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs. Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 1988 (as amended 1976) provides in part: In any action or proceeding to enforce a provision of sections 1981, 1983, 1985, and 1986 of this title,... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 3 QUESTION PRESENTED Whether attorneys who unreasonably and vexatiously multiplied proceedings in an action under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 may be personally assessed, pursuant to 28 U.S.C. § 1927, with attorneys’ fees as part of the “excess costs” incurred by an opposing party as a result of such conduct? STATEMENT OF THE CASE I. Facts On June 3, 1975, attorneys Robert E. Piper, Jr., Frank E. Brown, Jr., and Bobby Stromile filed a class action on behalf of three individuals against Roadway Express, Inc., the International Brotherhood of Teamsters, and Team- sters Local No. 194. The complaint alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to -17 (as amended 1972), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (R. 1). Roadway subsequently moved to dismiss the com- plaint because of the plaintiffs’ failure to make discovery and failure to comply with an order of the court (R. 343). On June 30, 1976, the district court dismissed the com- plaint,’ without prejudice, pursuant to Rule 37 of the Federal Rules of Civil Procedure (R. 704). The district court retained jurisdiction, however, to determine wheth- er further sanctions, namely Roadway’s costs, would be imposed (J/d.). II. The Decision of the District Court On January 6, 1977, after an evidentiary hearing, the district court awarded Roadway a portion of its costs, 'No appeal was taken from the district court’s dismissal of the complaint. 4 including attorneys’ fees, and assessed those costs person - ally against attorneys Piper, Brown, and Stromile (Pet. App. D, at pp. 15a-28a). In support of the assessment, the district court found that the three attorneys’ misconduct’ during the case had unreasonably and vexatiously multip- lied the proceedings, and thereby had “escalated defend- ants’ costs substantially” (Pet. App. D, at p. 19a). The assessment was made pursuant to 28 U.S.C. § 1927, which the district court viewed as providing for “an equitable shifting of responsibility for unreasonable and vexatious costs from a party to his counsel” (Pet. App. D, at p. 24a). The term “costs” was read by the district court as including “only such costs as normally would be allowed to the prevailing party” (Pet. App. D, at p. 23a). This reading thus encompassed the language of Title VII’s section 706(k), 42 U.S.C. § 2000e-5(k), and 42 U.S.C. § 1988 (as amended 1976), both of which provide that the court may “allow the prevailing party...a reasonable attorney’s fee as part of the costs” in actions under the 1866 and 1964 civil rights acts. 2 As later summarized by the court of appeals, the district court found that the forced dismissal of the plaintiffs’ claims were caused by the total and deliberate failure of their counsel to properly prosecute them, as evi- denced by their failure to answer Roadway’s inter- rogatories as ordered; their failure to produce [plain- tiff} McPherson for his deposition as previously agreed; their failure to advise their clients of their denomination as class representatives and the pos- sible consequences of class representation; and their failure to file briefs twice requested by the court concerning this case’s relation to a class certification entered in the Western District of Texas. (Pet. App. A, at p. 4a) 5 On April 13, 1977, the district court denied a motion for rehearing’ filed on behalf of the three attorneys by their malpractice insurer (Pet. App. C, at pp. 12a-13a). On May 5, 1977, the district court entered a judgment in favor of Roadway against attorneys Piper, Brown and Stromile (R. 790). On May 25, 1977, the judgment was amended to reflect the district court’s dismissal, with prejudice, of Roadway’s claim for costs, including at- torneys’ fees, against the individual plaintiffs. (Pet. App. B, at pp. 9a-10a). III. The Decision of the Court of Appeals A panel of the United States Court of Appeals for the Fifth Circuit concluded that the district court’s findings of fact were not clearly erroneous, and agreed that under section 1927 the three attorneys “are subject to personal liability for the excess costs generated by their unreason- able and vexatious multiplication of the proceedings” (Pet. App. A, at pp. 4a-5a). The court of appeals dis- agreed, however, with the district court’s inclusion of attorneys’ fees in the assessment. First, recognizing that “[t]he general American rule is that attorneys’ fees are not ordinarily recoverable as costs” (Pet. App. A, at p. 5a), the court of appeals observed that “[s]ection 1927’s reference to ‘costs’ neither specific- ally includes nor specifically excludes attorneys’ fees as allowable costs under the statute” (Jd.). Additionally, since the statute was considered penal in nature, the court held that section 1927 should be strictly construed (Jd.). Relying on Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967), the court of appeals stated that it would not imply what was termed “an extraordinary * Although the district court denied the motion, the court’s January 6, 1977, opinion was amended to reflect that the plaintiffs’ attorneys had filed a brief which the court incorrectly had stated was not filed (Pet. App. C, at pp. 12a-13a). ° 6 remedy” (Pet. App. A, at p. 7a) from section 1927 in the absence of statutory language or legislative history in- dicating that the costs provided for in the statute were intended to include attorneys’ fees. Second, the court of appeals held that the costs provi- sions of Title VII’s section 706(k) and 42 U.S.C. § 1988 are inapplicable to attorneys. “Those sections provide for attorneys’ fees awards against unsuccessful parties to a suit, and they focus on actions which are frivolous, unrea- sonable, and baseless in allowing awards against unsuccessful plaintiffs” (Pet. App. A, at p. 8a) (emphasis in original). Finally, the court of appeals concluded that ‘(njeither could the district court combine the provisions of those statutes with those of § 1927 to produce a hybrid result contemplated by none of the statutes” (Id.). The judgment of the district court was vacated insofar as it included attorneys’ fees in the section 1927 assessment and the case was remanded for a determination of a “proper award” (Jd.). SUMMARY OF ARGUMENT I. Sections 1927, 706(k) and 1988 should be enforced according to their plain meaning. Section 1927 provides that “in any case” attorneys may be assessed with “costs.” H.R. Rep. No. 308, 80th Cong., Ist Sess. A164 (1947 ) (1948 amendments to section 1927), citing Motion Picture Pat- ents Co. v. Steiner, 201 F. 63, 64-65 (2d Cir. 1912) (section 1927 “costs” are limited to expenses “taxable as costs”). Sections 706(k) and 1988 provide that attorneys’ fees may be allowed to the prevailing party “as part of the costs” in Title VII and 42 U.S.C. § 1981 actions. Hutto v. Finney, 437 U.S. 678, 696-97 (1978) (attorneys’ fees awarded pursuant to section 1988 are “taxable costs’). Con- case .compels the > result reached Section 1927 provides that “costs” attorneys “in any case.” 7 sequently, attorneys’ fees may be incl ment of “costs” pursuant t 42 U.S.C. § 1981 actions. ) uded in an assess- 0 section 1927 in Title VII and II. Assuming that the attorneys’ fees provisions in sec- anne oes ; — are inapplicable to section 1927, an uaa dal costs. under section 1927 may nevertheless pa — fees. First, courts possess inherent ee inte to assess “costs of litigation other than Bouk ter “it taxable costs.” Sprague v. Ticonic Nat! inherent mane Hagin (1939). Second, courts possess sancti power ‘to impose reasonable and appropriate ons on attorneys. In all cases the choice of sanctions : ites = the sound discretion of the district court pct ockey League v. Metropolitan Hockey Club, I S. 639 (1976) (per curia Asap m), and, parti i pai involving attorneys, the eek of prised = ccorded the district court must be wide. The district 7 - ironaeer of attorneys’ fees in the sanctions im e attorneys in the instant ca se was - able and appropriate exercise of its discretion iia ARGUMENT I, 28 U.S.C. § 1927, 42 U.S.C. § ; S.C. § 2000e-5(k a: aA U.S.C. § 1988 SHOULD BE ENFORCED ORDING TO THEIR PLAIN MEANING The plain meaning of the statutes involved in this by = district court. : may be assessed against Sections 706(k) and 1988 provide 8 that attorneys’ fees may be allowed to the prevailing party “as part of the costs” in actions under Title VII and 42 U.S.C. § 1981. Therefore, since attorneys fees were “nart of the costs” in this case, the district court's in- clusion of counsel fees in the assessment of “costs” against the three attorneys was correct. Statutes should be enforced according to their plain meaning. E.g., United States v. American Trucking Ass’ns., 310 U.S. 534, 548 (1940); United States v. Missourt Pac. R.R., 278 U.S. 269, 277 (1929); Caminetti v. United States, 242 U.S. 470, 485 (1917). See generally 2A Suther- land Statutory Construction § 46.01 (C. Sands ed. 1973). The court of appeals ignored this rule, and thereby reached a result which defies logic, substantially neutral- izes the deterrent effects of section 1927, and does serious violence to the spirit and congressional intent underlying sections 706(k) and 1988. The best argument for adhering to the plain meaning rule in this case is found in the exception to the rule. That is, statutes will not be enforced according to their plain meaning when to do so would produce “absurd or futile results” or “merely an unreasonable one ‘plainly at vari- ance with the policy of the legislation as a whole.’ ” United States v. American Trucking Ass’ns., supra, 310 U.S. at 548. The exception is clearly absent from this case, and an analysis of the reasons for its absence provides valuable insight into the infirmities of the court of appeals’ hold- ing. The net result of the district court’s enforcement of the plain meaning of the statutes was to require the three attorneys to reimburse Roadway for the attorneys fees incurred in defending itself against patently frivolous, unreasonable and vexatious proceedings. But for the district court’s findings that the three attorneys were responsible for the abuses, Roadway’s costs, including 9 counsel fees, could have been assessed against the individ- ual plaintiffs. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).‘ Far from “absurd” or “unreasonable,” the district court’s decision reached the eminently sensible result of holding the perpetrators rather than the victims of the misconduct accountable for the economic con- sequenées of the vexatious conduct. The court of appeals’ holding, on the other hand, restricts attorneys’ fees assessments to innocent litigants which, under the facts of this case, would indeed have been an absurd and unrea- sonable result. Nor did the district court’s decision produce a result plainly at variance with the policy of the legislation as a whole.’” United States v. American Trucking Ass’ns., supra, 310 U.S. at 543. Congress intended for attorneys’ fees to be allowed “as part of the costs” to employers forced to defend themselves against frivolous, unreason- able and vexatious actions filed under Title VII and 42 U.S.C. § 1981. Christiansburg Garment Co. v. EEOC, supra, 434 US. at 420-21.° Yet, at the same time, Congress also intended for such fees to be allowed only in exceptional eee ‘Indeed, the district court might have correctly assessed the fees against the individual plaintiffs in spite of its findings concerning the attorneys’ responsibility for the misconduct. Prate v. Freedman, 583 F.2d 42, 48 (2d Cir. 1978). * Restitution and deterrence, however, are not the only principles supporting attorneys’ fees awards to employers. Discouraging frivolous or vexatious litigation .. . is wholly consistent with congressional purpose, both because no valid purpose would be furthered by such litigation, and by discouraging it the courts would be free to focus their attention on substantial cases which present substantial issues arising under the civil rights laws. Brief of the NAACP Legal Defense Fund, Inc., as Amicus Curiae at 15 (footnote omitted), Christiansburg Garment Co. v. EEOC, supra. 10 cases, in order to diminish the chilling effects of potential fee liability on the willingness of persons of limited means to vindicate their rights. Jd. at 422. Such an intent is totally at odds with holding plaintiffs of limited means responsible for substantial sums of money properly awarded to a defendant because of plaintiffs’ counsel’s misconduct.’ It is submitted, however, that utilizing ‘ The specter of incurring attorneys’ fees liability because of counsel’s misconduct has perhaps even a greater “chilling” effect than simply knowing that such liability may be imposed because of one’s own misconduct. See Note, Attorneys’ Fees and the Federal Bad Faith Exception, 29 Hastings L.J. 319, 341-42 n.153 (1977) (noting such effects and arguing that the ABA Code of Professional Responsibility is “not a sufficient safeguard to deter bad faith litigation”). * Compare Flora v. Moore, 461 F. Supp. 1104, 1122 (N.D. Miss. 1978) (defendant’s attorneys’ fees in vexatious employ- ment discrimination suit assessed against Legal Services Corpo- ration representing plaintiffs where plaintiffs were “personally unaware of the irresponsible and vexatious manner in which their counsel were pursuing their action. ... Although § 706(k) might be read to make plaintiffs legally liable, it would, we think, be unjust to impose personal liability upon the plaintiffs on a theory of vicarious responsibility under such circum- stances.”) with Prate v. Freedman, supra, 583 F.2d at 48 (plaintiffs’ attorneys’ responsibility for frivolous Title VII ac- tion, if anything, merely mitigates the amount of fees awarded against the plaintiffs), citing Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962) (“each party is deemed bound by the acts of his lawyer-agent”). The Prate result is objectionable on at least two equitable grounds. First, the individual plaintiff is saddled with a financial obligation which he or she is only constructively charged with incurring. The real culprit, the attorney, would, unless the district court’s holding in this case is reinstated, probably escape all economic consequences. Alternatively, the plaintiff might hire yet another lawyer and proceed with some attempt at obtaining indemnification from the attorney, such as (footnote continues ) 1] alternatives to direct assessments against individual plaintiffs, such as assessments against culpable attorneys, is totally consistent with congressional intent.’ (footnote continued ) a malpractice action. See generally Comment, Financial Penal- ties Imposed Directly Against “ttorneys In Litigation Without Resort to the Contempt Power, 26 U.C.L.A. L. Rev. 855, 867-68 (1979). This course often would be economically prohibitive to Title VII plaintiffs and is certainly inefficient if responsibility for the fees can be otherwise assessed in the proceeding relating to the original action. See Acevedo v. Immigration & Natural- ization Serv., 538 F.2d 918, 921 (2d Cir. 1976) (noting the client s inability to pay costs of misconduct and “modest educa- tion” In assessing costs against attorney under $1927). Second reducing the fee award ignores the other victim of the mis- conduct, the employer. If employers are prohibited from recov- ering “excess costs,” including attorneys’ fees, under § 1927, and are awarded “mitigated” fees against individual plaintiffs who : srg = _ not page for the vexatious suit in the ace, the fee award wi i i i sc Pn thy of little aid to the employer in *The Senate debates on § 1988 in particular re Congress certainly did not intend for ian legislation ~anallesn unscrupulous lawyers or encourage attorney misconduct. as shown by the following exchange between two of the bill’s floor managers in the Senate. Mr. Abourezk. There has been a great deal made here on the floor by opponents of this legislation that it would encourage frivolous lawsuits. It has been the lawyers’ relief bill,” as every bill has been called when it has come up and there has been opposition to it. But, according to the provisions of the bill itself. is it not true that the legislation says the court, in its discretion, may award attorneys’ fees to the pre- vailing party, so that if the defendant in a civil rights suit were to prevail the court could prevent a frivolous lawsuit by having that provision available? Mr. Hathaway. The Senator is absolutely correct. There is adequate safeguard in the bill to protect against frivolous lawsuits. (footnote continues) 12 The result reached by the district court is also con- sistent with Congress’ intent in section 1927. Passed in 1813 as part of “An Act concerning suits and costs in courts of the United States,” Act of July 22, 1813, 3 Stat. 21,° section 1927 was apparently designed to remedy abuses by United States Attorneys, at that time com- pensated by statute on a per-service basis, who multiplied proceedings in order to increase their fees.” Thus, from the very beginning, attorneys’ fees were within the pur- view of section 1927. (footnote continued ) Mr. Abourezk. So if somebody thought, some lawyer thought, he was going to make a lot of money by bringing civil rights suits he would be subject to being penalized himself; is that not correct? Mr. Hathaway. The Senator is correct. 122 Cong. Rec. 31832 (1976). See also id. at 35124 (remarks of Rep. Drinan) (“This bill is not intended, nor are the other 52 similar provisions in Federal law, to encourage groundless and frivolous litigation or to allow lawyers or litigants or their clients to recover unjustly from a defendant.’’). There is no indication that Congress intended to foreclose other available procedures under Federal law which might arise out of enforce- ment or assessment of an attorneys’ fees award. Cf. id. at 35117 (“the defendant can take every legal remedy available to him to reach the essence of the plaintiff’). ely *The full text of the original provision is reproduced in Appendix A, infra. Also‘included in Appendix A are the texts of the provision from enactment to its current codification. © Materials on the legislative history of § 1927 are limited. On June 18, 1813, the Senate appointed a committee to inquire what legislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice for the adminis- tration of jusiice in any cause to which the United States may be a party, or before any court of the United States, and that the committee have leave to report by bill or otherwise. (footnote continues) 13 The statute existed in relative obscurity" until the general recodification of the Judicial Code in 1948, when (footnote continued ) 47 Annals of Cong. 29 (1813).