# Amicus Curiae Brief — Marek v. Chesny

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 473 U.S. 1

## Text

BEST AVAILABLE COPY

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

ii

TABLE OF AUTHORITIES

Page
8, 12
11
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

12

22

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

Re

Gary v. 634 F.2d 772
4 * „„ „„

Gautreaux v. Chi Housi
1 690 F.2d 601

© UBB B)rccccccccccccccccscccscccsccccooscoess

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)... . . .. .

:
4
:
:
:
J

iv

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

21

21

2, 23

22

21

23

23, 25

24n.

23

12

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
e
(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...

12

11

11

25

25

23

21

5, 8,
13, 15,
16,
268.

vi

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
I.

oo

20
20
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)

1

2

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

19

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.

11

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

12

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

13

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

14

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

15

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

16

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

17

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.

18

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

19

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

21

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.

24

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.

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1355%3A09. Public record. Not legal advice.