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

TABLE OF CONTENTS

tuterest Of the BOUe. 2-2 + «248° *

Summary Of Argument... . + » « # es *

ARGUMENT

If.

CONCLUSION. . . . . . . . . . . . . . .

ANY ALLOWANCE OF "COSTS" TO A

DEFENDANT, AS THE WORD IS USED

IN RULE 68, DOES NOT INCLUDE

ENTITLEMENT TO ATTORNEY'S FEES. . .

The accepted Meanina of the Word

"Costs" Does Not Include Attor-

Were POOR. 6 4k 6 es: ee ee Se CS

The Civil Rights Fee-Shifting

Statutes Did Not Amend the Mean-

ing of "Coste" In Rule GB. . «+»

A. There is no evidence of any

congressional intent to alter

the meaning of costs in Rule 68

B. Even though attorney's fees

are generally authorized "as

part of the costs," they are

treated as distinct from or-

dinary costs for most substan-

tive purposes ...+s++s+e+s+s e

C. Allowing Rule 68 offers to

affect attorney's fees would

substantially undermine the

congressional purpose behind

both Rule 68 and the civil

rights fee-shifting statute. .

14

15

me

LL

a)

TARLE OF AUTHORETTES

(ageas:

Albemarle

42) UW.8,

Paper Co. vv. Moody

405 (1975) . 2. © © © © © 2

Auauet v. Velta Air Lines, Ine.

GOO FL aad 6289 (FPth Cit A ga Uo ee eee een ae

Waowea vv lhawtva

HOO Pl sd PLAS (4th Cir 1979) eres

Brown vo Culpeppet

SSO F.2d 278 (Sth Cit 1977) hae

Chrietianealburg Carent Co. vw. FEO

kT Bele We, 38 BG: >) ; ne ce.

Davia uv. Murphy

RA? EF. 2a ABZ? C7FtH Chil cere. oe a ee ae

Vilevechmann Cerpe. v Maier Rrewithe

RAG ULS. Filed

CS0GT) Now sk st ee lhl

eates Cellier

Pave:

U

. an

Si6 F.2d L268 (Sth Cis 19R@0) . .5, 16, 23

Muwitc Vv Tver

42° eis, e678 (1978) ‘ . le

Suturyaesty A Ceeragia Hiachwayv Express, Ine

a@s8 rl od 71a (iad) ; eres

1a

Sarmdeav Rrethers Buy lcers Tne. V.

ASeraican Radvater and Standard Sanitary

CUNT EK TH GV CAT

R40 F.ad 108 (aa Cir. 1976 % es opr ‘

Maher Vv Cacnre

S88 U.S... BOE CULS. Tune 25, 1980)

iii

Cases: Page:

Newman v. Piqqie Park Enterprises, Inc.

390 U.S. 400 (1968). . «2 « « oD SOe Oe

Northeross v. Board of Fducation

of Memphis

41? Uses 427 CUO TS? % . . . . . . - . . 5

Roadway Express, Inc. v. Piper

48 U.S.L.W. 4836 (U.S. June 23,

1906) eee a a ee

Pobinson v. Kimbrough

620 F.2d 468 (Sth Cic. 1960) . . « « = Be

Spraaue v. Ticonic National Bank

7 U.G. 16). C199Rs & aOR ee ee eee

Vasquez v. Flemmina

617 F.28@ 334 1326 Cir. 2906) . . « * 22 28

Waters v. Heublein, Inc.

485 F.Supp. 110 (N.D. Cal. 1979) . . . 14

Statutes:

Civil Rights Act of 1968

427 U.S.C. S36i12(C) 4 ae ee ee eee

Civil Riahts Attorney's Fees Awards

Act of 1976

42 U.S.C x §1S88. . . . . . . . “te | 24

Title II of the 1964 Civil Rights Act

42 0.8.C. S20@00n-3t). .« . « 3 2 5. Oe Oe

Title VII of the 1964 Civil Riahts Act

42 U.S.C. §2000e-5(k). .... .8, ll, 125

Statutes:

Page:

Court Interpreters Act

Pub.&i. No. 95-939 . . « « »

Equal Employment Opportunity Amendment

of 1972

42 U.S.C. §2000e-16(b). .

Fee Bill of 1853,

Vot ina

wa. Usenet.

“=

“a

~

=?

<B.C. SSLEZT=LEZ6 . <<<

Si920 . ss

§l1923 . ows

ij: } air a ae

§ 1988 ‘

§SO00e-5(k)

mam & % 8s NS

-- --

ew) Lo 9) ae “se

—

on Gap

.

PA PA PR

ae ae

e

a ~~

s

NS

ae

oa

j

=

legis lative Hi story:

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

2d Sess., 4 (1976).

H.R. Rep. Ne. 94-1558, Ath

2d Sess., 6 (1976). :

Cond: «

Cona.

Federal Rules of Civil Procedure:

Rule 3

ie Men. & se &- 6S mS

en Beal <6 «<8 & “eee

Rule 68

Rights Act Extension of 1975

i. Be

« « 10

« Be

ee

passim

10

passim

passim

< «.

passim

yee «

. . i3

hiy ae

. . 6

passim

Vv

rederal Rules of Appellate Procedure; Page:

PN OR ao we Wk eae tae ea ata ee oe

In The

SUPREMF COURT OF THE UNITED STATES

October Term, 1979

No. 79-814

DELTA AIR LINES, INC.,

Petitioner,

Vv.

ROSFMARY AUGUST,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE

AMERICAN CIVIL LIBERTIFS UNION

AMICUS CURIAE

Interest of the Amicus*

The American Civil Liberties Union is a

nationwide, ngnpartisan orcanization of over

200,000 members dedicated to protecting the

* The parties have consented to the filing of this

brief, and their letters of consent have been filed

with the Clerk of the Court pursuant to Rule 36.2 of

the Rules of this Court.

————

2

fundamental rights of the people of the

United States. When an individual's rights

are violated, the ACLU often provides legal

representation through volunteer cooperating

attorneys who litigate on behalf of the peo-

ple to restore their rights and to obtain

remedies for the violation thereof. Because

the decision in this case will have a con-

siderable impact upon the ability of civil

rights plaintiffs to seek vindication of

their rights through litigation, the ACLU,

amicus Curiae, submits this brief.

Rule 68 of the Federal Rules Of Civil

Procedure permits a party defending a claim

to make an offer to allow judgment to be

taken against him in a certain amount, to-

gether with the costs then accrued, at any

time more than 19 days before the trial be-

gins. If the offer is rejected and the of-

feree recovers less than the amount offered,

3

the offeree must pay the costs incurred

after the making of the offer.

At issue in this case is whether Rule

68 can be invoked at all where a plaintiff

ultimately does not win at all. Also at

issue is whether a bad faith or unreason-

able offer is sufficient to invoke Rule

68. Stated otherwise, does Rule 68 require

a defense offer to be reasonable? Here,

where the defendant-employer, now petition-

er, parsimoniously offered only $450 to set-

tle a claim requesting reinstatement and

$20,000 in back pay, both lower courts held

that the offer was unreasonable and that

Rule 68 thus could not be invoked. The

ACLU, amicus curiae, agrees with the deci-

sions of the courts below, and accordingly

Supports the position of the respondent

here.

In this brief, amicus addresses another

issue not directly before the Court:

4

whether, assuming arguendo the applicability

of Rule 68, the "costs" allowed a defendant

under Rule 68 include attorney's fees. We

submit that attorney's fees are not and

should not be included in Rule 68 defense

costs.

SUMMARY OF ARGUMENT

Addressing the Rule 68 issues in this

case, the Seventh Circuit below commented

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

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

5(k), aS an arqument aaainst a "technical

interpretation" of Rule 68. August v. Delta

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

Cir. 1979). The court of appeals' reference

is a curious one because nothing in the

court's opinion or in the facts suggests

that the defendant-employer's attorney's

fees were at issue under Rule 68. Nonethe-

less, because amicus believes that any

5

assumption that Rule 68 costs could include

attorney's fees is unwarranted and contrary

to the language and congressional intent

behind civil rights fee-shifting legislatio)

amicus urges recognition of the fact that

defense costs under Rule 68 do not include

attorney's fees.

Whenever a civil riqhts plaintiff pre-

vails, by vindicating rights or by obtainin

some of the benefit sought in filing suit,

it is now well settled that the plaintiff i:

entitled to fees almost "as a matter of

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

F.2d 1268, 1275 (5th Cir. 1980); Davis v.

Murphy, 587 F.2d 362, 364 (7th Cir. 1978);

see also, Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 417 (1978); Northcross

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

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

terprises, Inc., 390 U.S. 400, 402 (1968).

Since these standards are fully applicable

6

to a plaintiff who settles, Maher Vv. Gagne,

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

any offer of judgment to a plaintiff under

Rule 68 should include an offer of fees.

In any event, once plaintiff accepts an of-

fer, that plaintiff would be entitled to

fees under a fee-shifting statute. Consis-

tently, Rule 68 recognizes that "the amount

or extent of liability" often "remains to

1/

be determined by further proceedings. "=

Ly A defendant's fee liability, as determined by

further proceedings, flows from the judgment and is

thus unaffected procedurally by timing requirements

of the Federal Rules of Civil Procedure or of local

court rules. This much was firmly established long

ago by this Court in Sprague v. Ticonic National

Bank, 307 U.S. 161 (1939). There, the Court held,

an application for fees is not governed by the then-

existing version of Rule 59(e) concerning motions to

alter or amend judgments since such an application

simply is "not a request for a modification of the

original decree." 307 U.S. at 170. This is be-

cause, to the extent that the amount of the fees is

not determined in the decree on liability, the fee

award then must be resolved in "an independent

(footnote continued on next page)

-

At the same time that a Rule 68 offer

of judgment should include an award of fees,

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

dant whose reasonable offer was more than

the plaintiff ultimately won does not in-

clude attorney's fees.

First, the accepted meaning of "costs,"

particularly as used in the Federal Rules

of Civil Procedure and elsewhere, does not

include fees. This understanding was made

unassailable last Term in Roadway Express,

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

23, 1980), where this Court held that the

word "costs" as used in 28 U.S.C. §1927 does

not include fees.

(footnote continued from preceding page)

proceeding supplemental to the original proceeding."

Id. For the same reasons, fee applications are not

necessarily governed by local court rules concerning

the timing for bills of costs, for the considerations

involved in determining fee awards'hre not of a rou-~

tine character like ordinary taxable costs." 307

U.S. at 168.

8

Second, in enacting civil riahts fee-

shifting legislation, Conaress never has expli-

citly or even implicitly amended Rule 638.

Quite to the contrary, Congress directed,

when it enacted the Civil Rights Attorney's

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

amended, that prevailing plaintiffs "should

ordinarily recover an attorney's fee" even

when they merely "vindicate rights through

a consent judament or without formally ob-

taining relief," whereas a defendant can

recover fees only when the plaintiff is

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

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

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

94th Cona., 2d Sess., 6°7 (1976). A nearly

identical dual standard qoverns fee awards

under Title VII, Christiansburg Garment Co.

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

Rule 68 costs could include a defendant's

fees as a matter of course would wholly

9

violate the congressional purposes and in-

tent behind all civil rights fee-shiftindg

legislation.

ARGUMENT

ANY ALLOWANCE OF "COSTS"

TO A DEFENDANT, AS THE

WORD IS USED IN RULE 68,

DOFS NOT INCLUDE ENTITLE-

MENT TO ATTORNEY'S FFES

I. The Accepted Meanina of the Word "Costs"

Does Not Include Attorney's Fees

Any question about the meaning of "costs"

in Rule 68 is largely resolved by this Court'

recent Opinion in Roadway Express, Inc. v.

Piper, 48 U.S.L.W. 4836 (U.S. June 23, 1980),

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

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

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

which allows a court to tax costs against an

attorney who behaves "unreasonably" or

10

"vexatiously," should be read together with

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

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

§1927--limits taxable costs to clerks' and

marshals' fees, court reporter charges,

printing and witness fees, copying costs,

interpreting costs, and the fees of court-

appointed experts, but does not allow attor-

ney's toon. 2’ Moreover, the Court found

that the "contemporaneous understanding" of

the term costs at the time that §1927's pre-

decessor was first enacted (in the year

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

the "American rule" has continued to be that

attorney's fees are ordinarily not recover-

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

also, Fleischmann Corp. v. Maier Brewing,

2/ 28 U.S.C. §1920 does allow "attorney's docket

fees," by reference to 28 U.S.C. §1923, but these

of course are quite distinct from attorney's fees

themselves.

11

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

Court in Roadway Express found that the civi

3/

rights fee-shifting statutes,=

which allow

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

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

§1927.

The meaning of "costs" as used in Rule

68 of the Federal Rules of Civil Procedure

is similarly limited to taxable costs. The

"contemporaneous understanding" of costs

when the Rules were promulgated in 1938 did

not include attorney's fees any more than

it did in 1813. See Fleischmann v. Maier

3/ Roadway Express inv ‘ved the attorney's fee pro-

vision of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §2000 e-5(k), and the Civil Rights Attor-

ney's Fees Awards Act, 42 U.S.C. §1988, both of which

provide in part that "the court, in its discretion,

may allow the prevailing party...a reasonable attor-

ney's fee as part of the costs." Substantially iden-

tical provisions are found in Title II of the 1964

Civil Rights Act, 42 U.S.C. §2000 a -3(b); the Civil

Rights Act of 1968, 42 U.S.C. §3612(c); the Equal

Employment Opportunity Amendment of 1972, 42 U.S.C.

(footnote continued on next page)

12

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

brief legislative history of Rule 68 found

in the Advisory Committee Notes to Pule 68

similarly indicates no intent to deviate

from the common meaning of costs.

In an analoaous situation, two courts

of appeals recent ly decided that "costs," as

used in Rule 39 of the Federal Rules of

Appellate Procedure, do not inelude attor-

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

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

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

that appellate costs should include fees

arauably is much stronger than same arqument

(footnote continued from preceding page)

§2000 e-16(b); and the Veting Rights Act Extension

of 1975, 42 U.S.C. §1973 1(e). In general, these

provisions are construed interchangeably. Roadway

Express, Inc. v. Piper, 48 U.S.L.W. 4836, 4838 n.5

(U.S. June 23, 1980); Albemarle Paper Co. v. Moody,

e22 U.8. 405, 415 (1975).

13

with respect to Rule 68, since the Federal

Rules of Appellate Procedure were adopted

in 1967 after the civil rights attor-

ney's fees provisions were enacted in the

Civil Pights Act of 1964. Yet both courts

which considered the question rejected the

argument summarily, holding that the word

"costs" as used in the Pules is limited to

the traditional definition.

Finally, when the authors of the Federal

Pules intended that attorney's fees be re-

coverable, they were specifically mentioned,

as in Rule 37 of the Federal Pules of Civil

Procedure which allows "reasonable ezxpen-

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

added) as discovery sanctions. Since Rule

£8 does not also explicitly include attor-

ney's fees, they simply are not allowable

thereunder as a part of defense costs.

4

iy. The Civil aoe Poe Shifting Statutes

bid Not Amend the Meaning of Fcosts*®

in Pulte OF

CStyee Pyle BR'ae reference to coate tit

erally deer net inelude attorney's fees,

any aratment that eneh eoaetea do tnelude or

Atfect atteryev's fees muet fut oan thre

propoestt rey that Cenerere onactment oof

fee ahitting teatictation amonded Pite En

sub silentie when it made attorney's fees

yeceverable “as part ef the costes.

See,

e.8 Waters v. Heublein, nc., AW PoSypype.

10 114 «IN LY eal. ya7a) where the trial

eeamrt held that a Rule 6&8 of fer, whieh turned

ant te be mere than the vlairntiff nittimately

reeevered, prectnded an award of attorney ‘s

face toa the rrevarlinae rlaintiff for all

time expended by plaintiffos lawvers after

the date cf the efter

“se preblem with thrs araument is that

the \Sestical areument was rejected, with

Ws

redard to AR MLS Le. §IDZAT, by this Court in

Poadway Express, Ince. v. Piper, 48 U.S. hw,

ARAR (LG. treme 2X, LIRM). 1? adler aheroete

be rejoctod here, with rernard ter Preble OR,

Fexr three reneanne |

A. Thorpe ise one ovidenre of any rongres-

, , 7 : - ‘

sional intent fee alter the Meaning

est rrebhe it) Pile as)

NMevthyiveg tre the Fee aghif ting atatutea nr

their legislative history augpqeatea that Cone

qgreaes intended ter amend Pula ER hy inecorpe

rating Attorney's Fem jrtes ongta, Bevereyes

nition of thie faet Flows dirertly From the

examination made in the derision by this

Court in Poadway Fypress, Ine. v. Piper,

Supra.

Tt of course remains true that fFoe-

shifting provisions such as those in 42

WeS.C. §S19BB and in Title VIT An authorize

fee awards as a part of the costs. Put,

16

as this Court found in Roadway Express, Inc.

v. Piper, supra, the manner in which Congress

chose to authorize fees is irrelevant here.

This is so because, as the Fifth Circuit re-

cently concluded after examining the exten-

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

fees were authorized as part of costs "for

one reason and one reason only: to ensure

that the Fleventh Amendment is no bar so that

these fees are recoverable against aovernment

officials actina in their official capacity."

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

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

u.S. 678, 695 (1978).

Conaress of course at any time could

amend the list of taxable costs specified

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

cently did amend the §1920 definition of

taxable costs to include fees of court-

appointed interpreters and expert witnesses

when it passed the Court Interpreters Act,

17

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

U.S.C. §§1827-1828., Conoress did not simi-

larly amend §1920 to include attorney's fees,

nor has it done so in enacting the civil

rights fee-shifting statues. In other words,

Congress has never yet used the Civil rights

fee-shifting statutes to affect the ordinary

meaning of costs.

B. Even though attorney's fees are

generally authorized "as part of

the costs," they are treated as

distinct from ordinary costs for

most substantive purposes

As a practical matter, attorney's fees

under all fee-shifting statutes are not

treated as costs for most other purposes.

The standards for taxing costs and for award-

ing attorney's fees are quite different.

Under Rule 54(d), costs are allowed "as of

course to the prevailing party," whether

12

plaintiff or defendant. Under civil rights

fee-shifting statutes, on the other hand,

fees are ordinarily awarded to vrevailina

plaintiffs "unless special circumstances

would render such an award unjust," Newman

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

400, 402 (1968), but to prevailina defen-

dants only where the plaintiffs' action was

brought in bad faith or is "found to be un-

reasonable, frivolous, meritless or vexa-

tious." Christiansburg Garment Co. v. EEOC,

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

larly with regard to prevailing defendants,

the standards for taxing costs are quite

different from the standards for awarding

fees.

Additionally, the method for taxing

costs differs considerably from the compli-

cations involved in determining a reasonable

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

be taxed by the clerk of court on one days'

19

notice. Attorney's fees, however, can be

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

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

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

determining the amount of fees, courts must

consider an intricate set of standards be-

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

Vv. Georgia Highway Express, Inc., 488 F.2d

714 (1974), which sets forth 12 factors to

be considered in settina reasonable fees;

see also, Lindsay Brothers Builders, Inc., v

—_——

American Radiator & Standard Sanitary Corp.

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

the various factors to be considered under

the lodestar method of fee computation.

Both the dual standard for awarding fees

and the methodology to be used by the courts

to calculate reasonable fee awards form a

considerable part of the legislative history

of 42 U.S.C. §1988. See particularly, S.Rep.

No. 94-1011, 94th Conc., 2a Sess., 6 (1976);

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

20

8-9 (1976). Quite evidently, Congress did

not intend fees to be treated as akin to

costs.

C. Allowing Rule 68 offers to affect

attorney's fees would substantially

undermine the congressional purpose

behind both Rule 68 and the civil

rights fee-shifting statute

Rule 68 was intended to provide a modest

incentive to settle litigation by making a

plaintiff who refused a reasonable offer and

who thereafter recovered less than the offer

to bear the costs incurred by both parties

after the date of the offer. These costs,

limited to the accepted notions of taxable

costs, are normally small compared to the

total expense of litigation. Traditionally,

recoverable costs have included clerk's and

marshal's fees, costs of necessary trans~

cripts and printing, witness fees, docket

21

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

included are attorney's fees. Yet, even

with fees being treated quite separate from

costs, taxable costs are sufficiently sub-

stantial to the extent that shifting them

can provide a strong incentive for acceptinc

reasonable Rule 68 offers.

The attorney's fees awarded in civil

rights litigation, similar to yet ordinarily

less than the fee awards in securities and

antitrust litigation, are altogether differ-

ent from costs. Not only are fee awards con

Siderably larger than the taxable costs al-

lowable, 4/ but the purposes of fee awards

are altogether different from those of Rule

68 cost-shifting.

4/

— This fact is derived in part from the congression-

al intent that counsel be adequately compensated for

all time reasonably expended on a matter, and that

the award not be reduced because the rights involved

may be nonpecuniary in nature, S. Rep. No. 94-1011,

94th Cong., 2d Sess., 6 (1976).

Ne thie camrt tae repeatedly poe eed,

altormey'a Feea ate awateed in civil rieght«a

eaaes ter Vimrnlioate "a perbiey that Ceompbeoae

crasnnen betertiered oof Otves Thicgheoet pooper rby., 7 Nowa

\ figgde Park Enterprises, Son’. , ) VSO Ae

wo, 4s EOD, Private plaintiff fa ate Con

pyar ® octlyevererny vivert punmen td fer erry ferteces Manny ont

tlhe mattem a aaval riehtiea lawe, Pov exact tive

theae sfatutea, Comptes han repeatedly attes

eed UC Uvers cinpeeen Carver av yet ivate attorneys aon

" amd the neweaarty ef attorney * a fees

ave that plaintryfts whatever Elverr moans

ave met deterred from aocurindg theit atatu

Cory armed caveat rte ronal eraval prahts. few

wenerallv, &. Rep. Ne. Od VOL, atly Coma.,

4 Sess. 19 °e) WoW. Rem. New Pest, odth

(19 7e).,

epoertance of the erval pirahts fee

feyre statutes 8 hirahliahted by the portent

station they have received from this Court.

ALt¢houch the statutes usuallv declare that

"the ewonrt, im ite digeretian, may allow the

Prevatting party. ola reagonable attorneyta

Fores, G0 Verge Deeceone Peer del that » to effectuate

Compress’ aime, a provailing plaintiff

Sshhorr del corebinnan a ly teeover an attorneyta fee

Mbese Gpeeial erreumetanced would rendes

eel an aware) vin pret Newman veo Pigape

Park Enterprises, Inme., t90 18, 390, 402

CUR) Complracre aeideort) , Lower eonrte have

thterpreteod this to mean that fees ahonda

be awarded te provatling plaintiff's “as a

matter «af conren .” Noe ele

»» Gates v.

Collier, 616 F.2d 1268, 127% (Sth Cir. 1980),

and cases cited therein. Moreover, a plain-

toff need not win on every iseue to he a

“prevailing” party, and there need not be a

fonal jpudement . See, @e.a., Bonnes v. Long,

S99 Fo2d 13le (4th Cir. 1979); Brown v. Cul-

pepper, 5°59 F.2d 275 (5th Cir. 1977).

“he full effectuation of the nation's

civil rights policy would be seriously under-

mined if congressionally authorized fees

24

could be held hostage to Rule 68 offers.

Thie coneern was one basis for the Seventh

Cireuit's holding below that there is a qood

faith requirement in Rule 68. But the court

below erred in assuming that the defendant ‘s

attorney's fees miaht have been shifted by

the Rule 68 offer,

if potential plaintiffs--particularly

their attorneys--know they mav be unable to

recover fees, even though the plaintiffs ul-

timately may become the prevailing parties,

they no doubt will pursue their riahts less

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

Richts Attorney's Fees Awards Act 1n 1976,

4) U.S.C. 1988, Conaress recoanized that ear-

lier fee shiftina provisions had been success-

ful in enabling “vigorous enforcement of mod-

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

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

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

§€1988 is the same. It is desianed to extend

25

that "vigorous enforcement" to civil rights

statutes which did not have their own fee-

shifting provisions. This Court should not

allow this policy of vigorous enforcement

to be undermined by making attorney's fees

taxable as Rule 68 costs.

CONCLUS ION

Amicus agrees with respondent's reasoned

argument that Rule 68 applies only where an

offeree wins something that is less than the

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

68 cannot be invoked unless the offer is

reasonable. Accordingly, amicus urges affir-

mance of the decision below.

Amicus also submits, however, that the

word "costs" in Rule 68 does not and cannot

include attorney's fees. For the foregoing

reasons, amicus requests this Court to

26

recognize that Rule 68 has

awards or on the standards

qress Tor civil rights

Dated: 1ORO

York

September

New York,

3.

New

Reapect fully

foe-

no effect on fee

designed by Con-

shifting statutes.

submitted,

BM. RECHARD LARSON

BRUCE WG. ENNTS

American Civil Liberties

Union Poundat ion

13) West 43rd Street

(212) 944-9R00

Counsel for Amicus *

* Counsel wish to thank

law student at

Law School, for his assistance

Jonathan Klein, a

the University of Michigan

on this brief.

+ belie