Amicus Curiae Brief — Marek v. Chesny

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Office Suptame Court, U.S.

FILED

No. 83-1437 JUL 19 1984

ALEXANDER L. STEVAS,

IN THE | —

SUPREME COURT OF THE UNITED STATES

October Term. 1983

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 FOR AMICUS CURIAE

THE CITY OF NEW YORK

AN SUPPORT OF REVERSAL

FREDERICK A. O. SCHWARZ, JR.,

Corporation Counsel of the

City of New York,

Attorney for the City of New York,

100 Church Street,

New York, New York 10007.

(212) 566-4338 or 7296

LEONARD KOERNER,

RONALD E. STERNBERG,

EVELYN JONAS,

JOHN P. WOODS,

of Counsel.

July 16, 1984

TABLE OF CONTENTS

TABLE OF AUTHORITIES....cceceee — ii

INTEREST OF AMICUS CURIAE........... l

SUMMARY OF ARGUMENT... . 4

ARGUMENT

THE LEGISLATIVE HISTORY OF

THE CIVIL RIGHTS ATTORNEY'S

FEES ACT OF 1976, 42 US.C.,

SECTION 1988, INDICATES THAT

CONGRESS MADE ATTORNEY'S

FEES A PART OF THE COSTS IN

CIVIL RIGHTS ACTIONS FOR ALL

PURPOSES. THEREFORE, RULE

68 OF THE FEDERAL RULES OF

CIVIL PROCEDURE BARS A

PLAINTIFF FROM RECOVERING

ATTORNEY'S FEES ACCRUED

AFTER AN UNBEATEN OFFER

OF SETTLEMENT MADE PUR-

SUANT TO THE RULE...... — 7

CONCLUSION. — 27

TABLE OF AUTHORITIES

Page

8, 12

Bitsouni v. Sheraton-Hartford

G J 33 F.E. P. Cases 898

125 Beg 0 26 42•„„%„%%6 „„ In.

Bond v. aoe 630 F.2d 1231

* eee eee 21, 24

Brown v. General Motors a

„ * „eee 22

Christianberg Garment Co. v.

ommission, 434 U.S 1978). In.

iii

ss Vv. a 505 F.2d 123

Fairmont Cream Co. v.

Minnesota, 275 US- 70 (1927) ssccessseneee

Fi trick v. Bitzer, 427 U.S.

Flanders v. Tweed, 82 U.S.

(1S Wall.) 450 Ks 72)... . . .

Fleischman D Corp. v.

N er

l 967 SSSSSSSSSSSSSSSSHSSSE „„ „„

E v. City of iel

Gary v. 634 F.2d 772

4 * „„ „„

Gautreaux v. Chi Housi

1 690 F.2d 601

General Motors Corp.

Ti Cir. 1979)... — 1 hie

Glass v. Pfeffer, 657 F.2d 252

—

Grossman v. Johnson, 674 F. 2d

Is (ist Cir. 1882)... . . .. .

Hutto x, Fi 437 U.S. 678

SSSSSSSSSSSSSSSSESSSSSSSSSESSESESESESSESEESE — —— **

Jolson v. 5 der, 639 F.2d 316 |

„ — TTT TTL tt ttt

616 F.2d 795

1—

en V. ee 583 F. Supp.

„D. N. Le —[h —Aᷣ—U B — R A——E— VV 3 — 27¾

Metcalf v. Borba, 681 F. 2d 118?

(9th Cir. . ——

Obin v. District No. 9, Int'l

Assoc. of Machinists and

Aerospace Workers, 651 F.2d

Perkins v. New Orleans Athletic

a v. McLaren, 699 F. 2d 401

Inc. v. Piper,

Scheriff v. Beck, 452 F. Supp.

. K

Skehan v. Board of Trustees of

Bloomsburg Fate College,

538 F.2d 53 (3rd Cir. 1976).

ere Conpeny, CHF Ta THz

Monsanto Com ‘

20, 26

2, 23

23, 25

24n.

22, 24

timore, 75 U.S. (8 Wall.)

The Bal ,

Twentieth Contry Fox Film

527260 0

e * „

Twin oy Sportservices Ine. v.

es 0 95 O.

. 1982).—————ↄ—ę—

United States v. Gol

United States v. Gustin-Bacon

(oth Cir- 1870), cert. deni

400 US. 832 (19 626 %%% %% SESE

Waters v. Heublein, Inc.,

* 0 e * al.

— coves

White v. New Ham

ment of Em ment

71382. revg 629 F.2d 697

(1st Cir. 1980). .. . —

Constitutions:

Eleventh Amendment of the

United States Constitution...

5, 8,

13, 15,

16,

268.

Statutes:

7 U.S.C., 82100) .

92308(a).

12 U.S. C., —

15 U.S. C., — — —

5 —

$77(k) ——————ͤiᷓn 29 2 .

18 U.S. C., 8196400 ——————ꝰ“— '— I .

20 U.S. C., 81617. . . eee

33 U.S.C., 8136500; ——. 4 ..

42 U.S. C., 8300-80d)—44———ͤ—2————.—(ͥ0ê

81 —— — 9

81 — — ˙

82000a-30b)—ͤ ͥ L ——t—ͤꝗ—n.r; . .

582000e- 500. —————ꝗ—ꝗ—— . .—1. ose

47 U.S. C., .

Act of March 1, 1793, 2nd Cong., 2nd

Sess., ch. XX, l Stat. 332, rr

Act of Feb. 26, 1853, 32nd Cong.,

lst Sess., 10 Stat. —

Rules:

Federal Rules of Civil Procedure

Rule — see

Rule Ee

111K

21, 22

passim

vii

Other Authorities:

Annual Report of the Director of

Administrative Office of the United

States Court, 1980, c

Comment, e Fees and the

Eleventh Amendment, 88 Harv. L.

ev. SSSSSSSSSSSSSESSCS SCS „ „„ „% „„ „%%% SESE

122 Cong. Rec. (1976). ...

H.R. Rep. 94-1558, 94th Cong.,

2nd — ——

7 Moore's Federal Practice,

4 86.04[4] SSSSSSSSSSSSSSSSSSSESSSSESSESSSSSESESCESE CECE SESEE

Note, Rule 68: A "New" Tool for

Litig ation, 1978 Duke Led. Se

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

2nd Sess., reprinted in 1976 U.S.

Code Cong. and Ad. News, 5908.

10, 14

Zn.

14, 17

No. 83-1437

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

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 FOR AMICUS CURIAE

THE CITY OF NEW YORK

INTEREST OF AMICUS CURIAE

The City of New York submits this brief in

support of reversal of the judgment of the Seventh

Circuit. As a consequence of the explosive growth

in the number of actions against the City and its

employees pursuant to 42 U.S.C., section 1983,* the

outcome of this case will have a significant impact

upon the City. Maintaining that Rule 68 operates to -

preclude a civil rights plaintiff from recovering his

own attorney's fees accrued following an unbeaten

settlement offer, the City has utilized the rule in

efforts to reach reasonable settlements early in

litigation.** In Lyons v. Cunningham, 583 F. Supp.

*While specific data concerning the increase in civil

rights suits against the City is not available, an

increase can be inferred from nationwide statistics.

The number of such suits increased from 7,679 in

1973 to 19,735 in 1983 (excluding state prisoner

actions). See Annual Report of the Director of

Administrative Office of the United States Courts,

1980 (Table 28); 1983 (Table 25).

**A determination that attorney's fees are "part of

the costs" for purposes of Ruie 68 does not compel

the conclusion that a prevailing plaintiff who fails

to obtain a judgment greater than a Rule 68 offer

must pay the defendant's fees accrued after the

offer. An unbeaten Rule 68 offer has the effect of

mandatorily shifting to the plaintiff the defendant's

costs. Fees, however, are a portion of the costs

award which, by statute and case law, are always

awarded at the discretion of the court. Thus, before

a court could award fees to a defendant after an

(Footnote continued on next page)

1147 (S.D.N.Y. 1983), the District Court accepted

the City's position, holding that the plaintiff was not

entitled to obtain his attorney's fees pursuant to 42

U.S.C., section 1988, accrued subsequent to the -

City's Rule 68 offer of judgment. That case has

been appealed to the United States Court of Appeals

for the Second Circuit, which, with the consent of

the parties, has adjourned the appeal pending this

Court's resolution of the instant case.

(Footnote continued from previous page)

unbeaten Rule 68 offer, it would be required to find

that the plaintiffs action was "unreasonable,

frivolous, meritless or brought for a *

purpose." Christ Garment Co.

Employment —— om mission

comes into play only

when there is a plaintiff's verdict for less than the

amount of the offer (see Delta Air Lines, Inc. v.

A 450 U.S. 346 [1981]), the fee component of

fendant's costs would be shifted to the

plaintiff only under the rare circumstances where

the plaintiff's claim was “unreasonable, frivolous,

meritless or brought for an improper purpose,“ but

the plaintiff nonetheless prevailed. This is

essentialy the position taken by the Distriet Court

in Bitsouni v. Sheraton-Hartford Corp., 33 F. E. P.

Cases 898 (D. Conn. 1983). See —— Note, Rule 68:

* Tool for Litigation, 1978 Duke L.J. 889,

It is our position that unless Rule 68,

consistent with its purpose and intent, is held to

limit attorney's fees as well as other costs in civil

rights actions, it will have little or no impact and

will lose its function of inducing early settlements.

Attorneys confronted with reasonable offers will be

able to ignore them, knowing that their fees will

increase with the passage of time. This will result

in cases being tried which need not be tried,

unnecessary congestion in the courts, and the

utilization of scarce government legal resources in

cases which can and should be settled.

SUMMARY OF ARGUMENT

The Court below erred in concluding that Rule

68 does not bar the recovery of attorney's fees

pursuant to 42 U.S.C., section 1988, accrued after

the date of an unbeaten Rule 68 offer of judgment.

The Court improperly reasoned that attorney's fees

are not part of the costs and mistakenly perceived a

cmp not to reduce fee awards in

civil rights actions.

In this country, when fees have been available,

they have generally been awarded by statute and -

case law as part of the costs. In enacting section

1988, Congress followed this long established

practice and explicitly made fees recoverable "as

part of the costs.“ This ensured that state

defendants would not be immune from a fee award

by virtue of the Eleventh Amendment of the United

States Constitution.

In rejecting an assertion of Eleventh

Amendment immunity to a fee award by state

defendants, this Court in Hutto v. Finney, 437 U.S.

678 (1978), concluded that Congress intended in

section 1988 to make attorney's fees recoverable as

part of the costs. Subsequent to Hutto, lower courts

have, in several contexts, dealt with the issue of

whether fees are a part of the costs. A majority has

found that fees are costs for purposes of the timing

of fee applications, as part of a release of all costs,

and in interpreting the relationship of Rule 68 to a

fee application pursuant to section 1988.

There is nothing in the legislative history of

section 1988 to indicate that Congress intended

anything other than what it explicity stated, i.e.,

allowing the prevailing party a reasonable attorney's

fee "as part of the costs." Since Rule 68 had been

part of the Federal Rules of Civil Procedure long

before the enactment of section 1988, and given the

significant public policy served by the Rule, it must

be assumed, in the absence of clear legislative

history to the contrary, that Congress determined

not to exempt fee awards in civil rights cases from

the provisions of the Rule. It follows that a civil

rights plaintiff is barred from recovering his

attorney's fees accrued after an unbeaten Rule 68

offer of judgment.

ARGUMENT

THE LEGISLATIVE HISTORY OF

THE CIVIL RIGHTS ATTORNEY'S

FEES ACT OF 1976, 42 U.S. C.,

SECTION 1988, INDICATES THAT

CONGRESS MADE ATTORNEY'S

PEES A PART OF THE COSTS IN

CIVIL RIGHTS ACTIONS FOR ALL

PURPOSES. THEREFORE, RULE

68 OF THE FEDERAL RULES OF

CIVIL PROCEDURE BARS A

PLAINTIFF FROM RECOVERING

ATTORNEY'S FEES ACCRUED

AFTER AN UNBEATEN OFFER

OF SETTLEMENT MADE PUR-

SUANT TO THE RULE,

When Congress enacted the Civil Rights

Attorney's Fees Act of 1976, 42 U.S.C., section 1988

("section 1988"), it specifically provided that a

reasonable attorney's fee would be available to the

prevailing party "as part of the costs.“ Congress

cheice of that formulation was not accidental.

Rather, Congress was acting in an historical context

in which statutory provisions for attorney's fees

were customarily made as part of the costs. Also,

Congress intended to make fee awards applicable to

state defendants that might otherwise be immune

from a money damage award by virtue of the

Eleventh Amendment of the United States

Constitution.

Rule 68 has been included in the Federal Rules

of Civil Procedure since 1938, and Congress was

presumably aware of its existence at the time that

section 1988 was passed. The legislative history of

section 1988 demonstrates that Congress intended

to make fees a part of the costs" for all purposes.

Thus, even in civil rights cases, Rule 68, by its

terms, applies to attorney's fees and acts as a bar to

their recovery in the appropriate circumstances.

A. Awards of Attorney's Fees Prior to Section 1988

Unlike England, where counsel fees have long

been awarded to the successful litigant, the

"American Rule" has been that the prevailing party

does not usually recover his attorney's fees.

Alyeska Pipeline Service Co. v. Wilderness Society,

421 US. 240, 247 (1975); Fleischman Distilling

Sorg. X. Maier Brewing Co., 386 U.S. 714, 717

(1967). When fees have been allowed in this

country, whether by statute or case law, they have

almost always been awarded as part of the costs.

In 1793, Congress enacted provisions allowing

for an award of attorney's fees to the prevailing .

party as part of the costs in the federal courts, Act

of March 1, 1793, 2nd Cong., 2nd Sess., ch. XX, I

Stat. 332, $§1, 4. This act was allowed to expire in

1799, but the federal courts continued to award

attorney's fees as part of costs where they were

recoverable under state rules. In 1853, Congress

acted to make the award of costs uniform nationally

and to eliminate fee awards. Act of Feb. 26, 1853,

32nd Cong., Ist Sess., 10 Stat. 161. This Court

consistently interpreted the 1853 act as having

terminated the ability of the winner to recover

attorney's fees as part of the costs from the losing

party. See Flanders v. Tweed, 82 U.S. (15 Wall.)

450, 452-53 (1872); The Baltimore, 75 U.S. (8 Wall.)

377 (1869).

Without changing the American rule,

Congress, over the next 120 years, did, however,

allow for attorney's fees under a multitude of

statutes, and, when it did, it generally provided for

fees to be recovered as part of costs. In the House

debates over section 1988, Congressman Drinan

included a list of 55 federal statutes which

authorized the award of attorney's fees. 122 Cong.

Rec. 35123 (1976). In 36 of those statutes, Congress

provided for recovery of attorney's fees "as part of

the costs.“ E.g., 7 U.S. C., $2305(a) (Agricultural

Unfair Trade Practices Act); 42 U.S.C., $2000a-3(b)

(Title U of the Civil Rights Act of 1964); 20 U.S. C.,

$1617 (Education Amendments of 1972); see also,

e.g., 12 U.S. C., 81975 (Bank Holding Company Act);

15 U.S.C., 815 (Clayton Act); 18 U.S.C., §1964(c)

(Organized Crime Control Act of 1970); 33 U.S.C.,

$1365(d) (Water Pollution Prevention and Control

Act); 42 U.S.C., §300j-8(d) (Safe Drinking Water

Act) (recovery of "the costs of the suit including

reasonable attorney's fees" or similar language); 7

U.S.C., §210(f) (The Packers and Stockyard Act); 15

U.S.C., 87700 (Securities Act of 1933); 47 U.S. C.,

5206 (Communications Act of 1934) (fees "taxed

ana collected as part of the costs in the case” or

similar language).

Most of these statutes did not generate much

attorney's fees litigation. One statute which did -

was the Clayton Act, 15 U.S.C., §12, et seq., and

court decisions under it were consistent with the

legislative intent to make the fee award part of the

costs. See, e.g., Twin City Sportservice, Inc. v.

Charles O. Finley & Co., 676 F.2d 1291, 1312 (9th

Cir. 1982); Baughman v. Cooper Jarrett, Inc., 530

F.2d 529 (3rd Cir. 1976), cert. denied sub. nom.

Wilson Freight Forwarding Co., AKA Wilson Freight

Co. v. Baughman, 429 U.S. 825 (1976); Twentieth

Century Fox Film Corporation v. Goldwyn, 32% F.2d

190, 222 (9th Cir. 1964).

In addition to the specific statutory provisions

for the recovery of attorney's fees, exceptions to

the American rule were created by case law. For

example, beginning in the early 1970's, the federal

courts began to award fees in "private attorney

general” cases, i.e., cases in which private

individuals brought suit to vindicate public interests.

The courts took the position that, even absent

specific statutory authority, they had the power

under their equitable jurisdiction to award fees,

Significantly, when the courts elected to award.

fees, they did so generally as part of the costs, One

court described an award of costs as "analytically

indis tinguishable from one of attorney's fees.“ Class

v. Norton, 505 F.2d 123, 126 (2d Cir. 1974); see also

Skehan v. Board of Trustees Bloomsburg State

College, 538 F.2d 53, 58 (3rd Cir. 1976); Thonen v.

Jenkens, 517 F.2d 3, 7 (4th Cir. 1975); Brewer v.

School Board of City of Norfolk, Virginia, 456 F.2d

943, 948 (4th Cir. 1972), cert. denied, 406 U.S. 933

(1972).

In Alyeska Pipeline Service Co. v. Wilderness

Society, supra, 421 U.S. 240, this Court was

confronted with the question of whether the award

of such fees was permissible. After examining the

history of various costs and fees statutes, the Court

concluded that "it would be inappropriate for the

Judiciary, without legislative guidance, to

reallocate the burdens of litigation” in such a

fashion. 421 U.S. at 247. The Court, however,

invited Congress to provide such legislation, and

Congress accepted the invitation. See 42 U.S.C.,

§1988.

B. The Legislative Hist of the Civil Rights

ttorneys Fees Act of 1976, 42 U.S.C., Section

Even before Alyeska was decided, Congress

had been considering extending fee awards to the

Reconstruction era civil rights statutes. Part of the

purpose for doing so was to require state defendants

to pay attorney's fees. Congress was concerned

with this issue because there had been some

question whether states and state employees could

assert an Eleventh Amendment defense against fee

awards, See generally Comment, Attorney's Fees

and the Eleventh Amendment, 88 Harv. L. Rev. 1875

(1975).

While Congress was considering the

legislation, this question was partially resolved in

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which, in

a Title VII action against a state defendant,

authorized an award of attorney's fees pursuant to

42 U.. C., section 2000e-5(k), which provided to the

prevailing party "a reasonable attorney's fee as part

of the costs." Two sponsors of the legislation,

Senator Abourezk (see 122 Cong. Rec. 33315 [1976])

and Congressman Drinan (see 122 Cong. Rec. 35123

[1976]), and the House Report (H.R. Rep. 94-1558,

94th Cong., 2nd Sess., p. 7 n.14 [1976]) specifically

referred to Fitzpatrick and to the intent of the bill

to award costs against state defendants. The Senate

Report was also quite specific regarding Congress’

intent to ensure enforcement of the civil rights laws

against the states though the award of reasonable

attorney's fees as costs GS. Rep. No. 94-1011, 94th

Cong., 2nd Sess., p. 5 [1976], reprinted in 1976 U.S.

Code Cong. and Ad. News, 5908, 5913):

Fee awards are therefore provided

in cases covered by S. 2278 in

accordance with Congress’ powers

under, inter alia, the Fourteenth

Amendment, Section 5. As with

cases brought under 20 U.S.C.

81617, the Emergency School Aid

Act of 1972, defendants in these

cases are often State or local

bodies or State or local officials.

In such cases, it is intended that

the attorneys’ fees, like other

items of costs, 6 will be collected

either directly from the official, in

his official capacity, from funds of

his agency or under his control, or

from the State or local government

(whether or not the agency or

—— is a named party).

one footnote omitted

The reference to Fairmont Creamery is

significant. In that case, this Court held that states

had no immunity to the imposition of costs. Its

inclusion in this context is a clear expression of the

intent of Congress to make fees recoverable from

state defendants by making them recoverable as

part of the costs and thus not subject to the

Eleventh Amendment's provision for immunity to

money damages.

In determining that attorney's fees would be

recoverable as part of the costs so as to make fee

awards effective against states and their employees,

Congress presumably made them costs for all other

purposes. Nowhere in the debates, the detailed

House and Senate Reports or the records of the

subcommittee hearings in the Senate and House

which preceded enactment of section 1988 is there

the slightest hint that Congress intended either to

have the section take precedence over the Federal

Rules or otherwise to make fees part of the costs

for some purposes but not for others.

If Congress had intended to denominate

attorney's fees as costs to avoid the Eleventh

Amendment problem but at the same time intended

to exempt fees from the provisions of the Federal

Rules, that intent, we submit, would have expressed

itself in the legislative history.

The portion of the legislative history of

section 1988 upon which the Court below relied in

support of its conclusion that Congress did not

intend to have Rule 68 apply to fees was quoted out

of context. In discerning a congressional intent not

to have fee awards reduced, the Court quoted the

following passage from the Senate Report, supra, p.

5, 1976 U.S. Code Cong. and Ad. News at 5912 (720

F.2d at 479):

J rivate attorneys general"

should not be deterred from bring-

good faith actions to vindicate

the fundamental rights here in-

volved by the prospect of ha to

pay their opponent's counsel fees

should they lose.

However, that passage must be read in context with

the language immediately following it (1976 U.S.

Code Cong. and Ad. News at 5912):

where it is shown that his suit was

clearly frivolous, vexatious, or

t for harassment purposes.

[citations omitted. This bill thus

deters frivolous suits by

authorizing an award of attorneys’

fees against a party shown to have

litigated in "bad faith" under the

guise of attempting to enforce the

Federal rights created by the

statutes listed in S. 2278.

It is clear that Congress was concerned with

foreclosing the possibility that a plaintiff who brings

a good faith civil rights action and loses might be

required to pay the defendant's attorney's fees. This

is quite different from Rule 68 which merely cuts

off fees accrued by the plaintiff's attorney after the

plaintiff has continued to litigate despite receiving -

an offer larger than his ultimate recovery.“

C. Judicial Interpretation of Section 1988

In Hutto v. Finney, 437 U.S 678 (1978), this

Court rejected a state employee's claim of Eleventh

Amendment immunity to a fee award. The ruling

turned directly upon a finding that, pursuant to

section 1988, attorney's fees had been intended by

Congress to be recoverable as part of the costs.

The Court noted the specific references in the

legislative history that " fees, like other items of

costs, " should be collected from the appropriate

officials. 437 U.S. at 694. The Court stated (437

*See, supra, p. In.

U.S. at 695):

The Act imposes attorney's fees

"as of the costs." Costs have

traditionally been awarded without

regard for the States’ Eleventh

Amendment immunity. The prac

tice of awarding costs against the

— goes back to 1849 in this

ourt ....

Citing Fairmont Creamery Company v. Minnesota,

275 U.S. 70 (1927), the Court continued (437 U.S. at

696-98):

Just as a federal court may treat a

State like any other litigant when

it assesses costs, so also may

Congress amend its definition of

taxable costs and have the

amended class of costs apply to the

States, as it does to all other

litigants, without expressly stating

that it intends to abrogate the

States’ Eleventh Amendment

immunity. For it would be absurd

to require an express reference to

state litigants whenever a filing

fee, or a new item, such as an

expert witness’ fee, is added to the

category of taxable costs.

There is ample precedent for

Congress’ decision to authorize an

award of attorney s fees as an item

of costs.. . In America, although

fees are not routinely award

there are a large number o

statutory and commor-law situa-

tions in which allowable costs

include counsel fees. Indeed, the

federal statutory definition of

costs, which was enacted before

the Civil War and which remains in

effect today, includes certain fixed

attorney's fees as recoverable

costs, In Fairmont Cream

itself, the Court awarded i

statutory attoriey’s fees against

the State of Minnesota along with

other taxable costs, even though

the governing statute said nothing

about state liability. It is much

too late to gingle out attorney's

fees as the one kind of litigation

cost whose recovery may not be

authorized by Congress without an

express statutory waiver of the

States’ immunity. [footnotes

ommitted

Although Hutto should have resolved the

question of whether attorney's fees are part of

costs, the issue reap, cared in a dispute over the

timing of a request for fees. The Courts cf Appeals

for the Fourth, Fifth, Sixth and Seventh Circuits

held that since fees are by statute a "part of the

costs," a fee application is an application for costs

under F. R. Civ. P. 54(d) and 58, which do not

provide a specific time period in which to move.

See Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir.

1981); Gary v. Spires, 634 F.2d 772, 773 (4th Cir.

1980); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir.

1980); Knighton v. Watkins, 616 F.2d 795, 797 (Sth.

Cir. 1980).

The Courts of Appeals for the First and Tenth

Circuits held that since fees were more difficult to

calculate than other costs, they could not be costs

despite what Congress had provided. Fee requests,

these Courts held, must therefore be made pursuant

to F. R. Civ. P. 59(e) within ten days after entry of

judgment. See Glass v. Pfeffer, 657 F.2d 252 (10th

Cir. 1981); White v, New Hampshire Department of

Employment Security, 629 F.2d 697 (Ist Cir. 1980),

rev'd, 455 U.S. 445 (1982). The Court of Appeals for

the Eighth Circuit took a third approach, finding

that fee requests were governed by local rules

rather than the Federal Rules. See Obin v. District

No. 9, Int'l Assoc. of Machinists and Aerospace

Workers, 651 F.2d 574, 582 (8th Cir. 1981).

In White v. New Hampshire Department of

Employment Security, 455 U.S. 445 (1982), this

Court partially resolved the issue holding that a

motion for attorney's fees should not be made

pursuant to Rule 59(e). However, while the Court

declined to hold expressly that fee requests were.

motions for costs under Rules 54(d) and 58 (455 U.S.

at 454 n.17), its holding is consistent with a

determination that fees are part of costs, and

subsequent courts have taken that position. See

Spray-Rite Service Corporation . Monsanto

Company, 684 F.2d 1226, 1247-48 (7th Cir. 1982);

Brown v. City of Palmetto, Georgia, 681 F.2d 1225

(llth Cir, 1982); cf, Metcalf v. Borba, 681 F.2d 1183

(9th Cir. 1982); Gautreaux v. Chicago Housing

Authority, 690 F.2d 601 (7th Cir. 1982) (fees are not

part of costs“ as that term is used in local rules).

In another context, the Second Circuit held

that a release executed by the prevailing party as to

all costs was also a release of attorney's fees.

Brown v. General Motors Corp., 722 F.2d 1009 (2d

Cir. 1983).

Those courts which have dealt with this

question in the specific context of Rule 68 have

generally found that attorney's fees are costs in that

context as in others. In Fulps v. City of Springfield,

Tennessee, 715 F.2d 1088, 1092-93 (6th Cir. 1983),

the Court concluded:

When Congress drafted 42 U.S.C.

§1988, it described attorney's fees

"as a part of the costs." Congress

could have simply authorized the

recovery of attorney's fees, but it

chose to go further and

characterize the fees as costs.

Required, as we are, to construe

the language of a statute so as to

avoid making any word meaningless

superfluous,

fees as costs with the intent that

the recovery of fees be governed

by the substantive and

rules applicable to costs. [footnote

ommitted

See also Lyons v. Cunningham, 583 P. Supp. 1147

S. D. N. V. 1983); Waters v. Heublein, Inc., 485 F.

Supp. 110 (N.D. Cal. 1979); Scheriff v. Beck, 452 F.

Supp. 1254 (D. Col. 1978); Perkins v. New Orleans

Athletic Club, 429 F. Supp. 661 (E.D. La. 1976).

Eschewing the weight of authority noted

above, the Court below relied on Pigeaud v.

McLaren, 699 F.2d 401 (7th Cir. 1983), in which the

plaintiff accepted an offer of one dollar "plus all

costs and expenses." The offer also stated that it

should not be "construed as an admission of

liability." 699 F.2d at 402. The Court held that in

view of the rejection of liability, the plaintiff was

not a prevailing party and thus could not recover

fees. It then determined that costs in the context

of a Rule 68 offer did not include attorney's fees.

Pigeaud, however, is not only contrary to the weight

of authority, but, further, it is inconsistent with the

Seventh Circuit's own earlier determinations in

Spray-Rite Service Corporation x: Monsanto

Company, supra, 684 F.2d at 1247-48, and Bond v.

Stanton, supra, 630 F.2d at 1234, wherein the Court

held that attorney's fees are costs for the purpose of

the timing of fee applications.*

*The Court below also relied on Roadway Express,

oF v. — 447 US. 752 (1980), w 28

1927, a different statute. Roadwa

is discussed at length and disti

petitioners’ brief and the brief of amicus

— the State of Florida.

Pigeaud and the decision in the instant case

are also inconsistent with the basic principles of

statutory construction that a statute should be given

its obvious and rational meaning and that it should .

be presumed that Congress understood the meaning

of the words it used. United States v. Goldenberg,

168 U.S. 95, 103 (1897). While Congress undoubtedly

has the power to exempt attorney's fees from the

provisions of the Federal Rules, and specifically

from Rule 68, nothing in the legislative history

indicates that it chose to do so. Absent a " clear

inconsistency’ or a demonstrated congressional

purpose to exclude one or more of the Federal

Rules, ‘a subsequently enacted statute should be

construed so as to harmonize with the Federal Rules

if that is at all feasible.'" Grossman v. Johnson,

674 F.2d 115, 123 (Ist Cir. 1982); see also In re

General Motors " ne Int Li ti

594 F.2d 1106, 1134 n.50 (7th Cir. 1979); United

States X. Gustin-Bacon Division, _Certainteed

Products Corporation, 426 F.2d 539 (10th Cir. 1970),

cert. denied, 400 U.S. 832 (1970); 7 Moore's Federal

Practice, 1 86.04[4], p. 86-22.

We submit that when Congress elected to

award fees "as part of the costs" (42 U.S.C., 81988),

it meant what it said.* See Hutto v. Finney, supra,

437 U.S. 678. This is particularly true in the instant

case. Given the significant publie policy served by

Rule 68 - expediting the litigation process by

encouraging the settlement of cases which should be

settled - any attempt to carve out an exception to

its terms on the basis of subject matter must be

based on the clearest expression of intent. As we

have noted, such an expression is absent from the

legislative history of section 1988. That history

suggests, rather, that Congress intended attorney's

fees to be costs for all purposes. A civil rights

plaintiff, therefore, is barred from recovering fees

Otherwise, state defendants in civil rights actions

would be barred from asserting Eleventh

Amendment immunity to a fee award because fees

are part of costs, but would be unable to take

advantage of Rule 68 because fees are not part of

costs.

accrued subsequent to an unbeaten offer

judgment made pursuant to Rule 68.

CONCLUSION

THE JUDGMENT OF THE COURT

OF APPEALS SHOULD BE RE-

VERSED, AND THE ORDER OF

THE DISTRICT COURT SHOULD

BE REINSTATED.

Respectfully submitted,

FREDERICK A. O. SCHWARZ, IR.,

Corporation Counsel of the City

of New York,

Attorney for the City of New York.

LEONARD KOERNER,

RONALD E. STERNBERG,

EVELYN JONAS,

JOHN P. WOODS,

of Counsel.

July 16, 1984.

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