Marek v. Chesny

473 U.S. 1, 105 S. Ct. 3012, 87 L. Ed. 2d 1, 1985 U.S. LEXIS 81, 1 Fed. R. Serv. 3d 1297, 53 U.S.L.W. 4903, 37 Empl. Prac. Dec. (CCH) 35,396, 38 Fair Empl. Prac. Cas. (BNA) 124

• Court: Supreme Court of the United States
• Decided: June 27, 1985
• Docket: 83-1437
• Status: Published

Opinions

Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether attorney’s fees incurred by a plaintiff subsequent to an offer of settlement under Federal Rule of Civil Procedure 68 must be paid by the defendant under 42 U. S. C. § 1988, when the plaintiff recovers a judgment less than the offer.

I

Petitioners, three police officers, in answering a call on a domestic disturbance, shot and killed respondent’s adult son. Respondent, in his own behalf and as administrator of his son’s estate, filed suit against the officers in the United States District Court under 42 U. S. C. § 1983 and state tort law.

Prior to trial, petitioners made a timely offer of settlement “for a sum, including costs now accrued and attorney’s fees, of ONE HUNDRED THOUSAND ($100,000) DOLLARS.” Respondent did not accept the offer. The case went to trial and respondent was awarded $5,000 on the state-law “wrongful death” claim, $52,000 for the § 1988 violation, and $3,000 in punitive damages.

Respondent filed a request for $171,692.47 in costs, including attorney’s fees. This amount included costs incurred after the settlement offer. Petitioners opposed the claim for postoffer costs, relying on Federal Rule of Civil Procedure 68, which shifts to the plaintiff all “costs” incurred subsequent to an offer of judgment not exceeded by the ultimate recovery at trial. Petitioners argued that attorney’s fees are part of the “costs” covered by Rule 68. The District Court agreed with petitioners and declined to award respondent “costs, including attorney’s fees, incurred after the offer of judgment.” 547 F. Supp. 542, 547 (ND Ill. 1982). The parties subsequently agreed that $32,000 fairly represented the allowable costs, including attorney’s fees, accrued prior to petitioners’ offer of settlement.¹ Respondent appealed the denial of postoffer costs.

The Court of Appeals reversed. 720 F. 2d 474 (CA71983). The court rejected what it termed the “rather mechanical linking up of Rule 68 and section 1988.” Id., at 478. It stated that the District Court’s reading of Rule 68 and § 1988, while “in a sense logical,” would put civil rights plaintiffs and counsel in a “predicament” that “cuts against the grain of section 1988.” Id., at 478, 479. Plaintiffs’ attorneys, the court reasoned, would be forced to “think very hard” before rejecting even an inadequate offer, and would be deterred from bringing good-faith actions because of the prospect of losing the right to attorney’s fees if a settlement offer more favorable than the ultimate recovery were rejected. Id., at 478-479. The court concluded that “[t]he legislators who enacted section 1988 would not have wanted its effectiveness blunted because of a little known rule of court.” Id., at 479.

We granted certiorari, 466 U. S. 949 (1984). We reverse.

rH ► — I

Rule 68 provides that if a timely pretrial offer of settlement is not accepted and “the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. ” (Emphasis added.) The plain purpose of Rule 68 is to encourage settlement and avoid litigation. Advisory Committee Note on Rules of Civil Procedure, Report of Proposed Amendments, 5 F. R. D. 433, 483, n. 1 (1946), 28 U. S. C. App., p. 637; Delta Air Lines, Inc. v. August, 450 U. S. 346, 352 (1981). The Rule prompts both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of success upon trial on the merits. This case requires us to decide whether the offer in this case was a proper one under Rule 68, and whether the term “costs” as used in Rule 68 includes attorney’s fees awardable under 42 U. S. C. § 1988.

A

The first question we address is whether petitioners’ offer was valid under Rule 68. Respondent contends that the offer was invalid because it lumped petitioners’ proposal for damages with their proposal for costs. Respondent argues that Rule 68 requires that an offer must separately recite the amount that the defendant is offering in settlement of the substantive claim and the amount he is offering to cover accrued costs. Only if the offer is bifurcated, he contends, so that it is clear how much the defendant is offering for the substantive claim, can a plaintiff possibly assess whether it would be wise to accept the offer. He apparently bases this argument on the language of the Rule providing that the defendant “may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued” (emphasis added).

The Court of Appeals rejected respondent’s claim, holding that “an offer of the money or property or to the specified effect is, by force of the rule itself, ‘with’ — that is, plus 'costs then accrued,’ whatever the amount of those costs is.” 720 F. 2d, at 476. We, too, reject respondent’s argument. We do not read Rule 68 to require that a defendant’s offer itemize the respective amounts being tendered for settlement of the underlying substantive claim and for costs.

The critical feature of this portion of the Rule is that the offer be one that allows judgment to be taken against the defendant for both the damages caused by the challenged conduct and the costs then accrued. In other words, the drafters’ concern was not so much with the particular components of offers, but with the judgments to be allowed against defendants. If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion, see Delta Air Lines, Inc. v. August, supra, at 362, 365 (Powell, J., concurring), it determines to be sufficient to cover the costs. In either case, however, the offer has allowed judgment to be entered against the defendant both for damages caused by the challenged conduct and for costs. Accordingly, it is immaterial whether the offer recites that costs are included, whether it specifies the amount the defendant is allowing for costs, or, for that matter, whether it refers to costs at all. As long as the offer does not implicitly or explicitly provide that the judgment not include costs, a timely offer will be valid.

This construction of the Rule best furthers the objective of the Rule, which is to encourage settlements. If defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers. As the Court of Appeals observed, “many a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff.” 720 F. 2d, at 477.

Contrary to respondent’s suggestion, reading the Rule in this way does not frustrate plaintiffs’ efforts to determine whether defendants’ offers are adequate. At the time an offer is made, the plaintiff knows the amount in damages caused by the challenged conduct. The plaintiff also knows, or can ascertain, the costs then accrued. A reasonable determination whether to accept the offer can be made by simply adding these two figures and comparing the sum to the amount offered. Respondent is troubled that a plaintiff will not know whether the offer on the substantive claim would be exceeded at trial, but this is so whenever an offer of settlement is made. In any event, requiring itemization of damages separate from costs would not in any way help plaintiffs know in advance whether the judgment at trial will exceed a defendant’s offer.

Curiously, respondent also maintains that petitioners’ settlement offer did not exceed the judgment obtained by respondent. In this regard, respondent notes that the $100,000 offer is not as great as the sum of the $60,000 in damages, $32,000 in preoffer costs, and $139,692.47 in claimed postoffer costs. This argument assumes, however, that postoffer costs should be included in the comparison. The Court of Appeals correctly recognized that postoffer costs merely offset part of the expense of continuing the litigation to trial, and should not be included in the calculus. Id,., at 476.

B

The second question we address is whether the term “costs” in Rule 68 includes attorney’s fees awardable under 42 U. S. C. § 1988. By the time the Federal Rules of Civil Procedure were adopted in 1938, federal statutes had authorized and defined awards of costs to prevailing parties for more than 85 years. See Act of Feb. 26, 1853, 10 Stat. 161; see generally Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975). Unlike in England, such “costs” generally had not included attorney’s fees; under the “American Rule,” each party had been required to bear its own attorney’s fees. The “American Rule” as applied in federal courts, however, had become subject to certain exceptions by the late 1930’s. Some of these exceptions had evolved as a product of the “inherent power in the courts to allow attorney’s fees in particular situations.” Alyeska, supra, at 259. But most of the exceptions were found in federal statutes that directed courts to award attorney’s fees as part of costs in particular cases. 421 U. S., at 260-262.

Section 407 of the Communications Act of 1934, for example, provided in relevant part that, “[i]f the petitioner shall finally prevail, he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.” 47 U. S. C. §407. There was identical language in § 3(p) of the Railway Labor Act, 45 U. S. C. § 153(p) (1934 ed.). Section 40 of the Copyright Act of 1909, 17 U. S. C. §40 (1934 ed.), allowed a court to “award to the prevailing party a reasonable attorney’s fee as part of the costs.” And other statutes contained similar provisions that included attorney’s fees as part of awardable “costs.” See, e. g., the Clayton Act, 15 U. S. C. § 15 (1934 ed.); the Securities Act of 1933,15 U. S. C. §77k(e) (1934 ed.); the Securities Exchange Act of 1934, 15 U. S. C. §§78i(e), 78r(a) (1934 ed.).

The authors of Federal Rule of Civil Procedure 68 were fully aware of these exceptions to the American Rule. The Advisory Committee’s Note to Rule 54(d), 28 U. S. C. App., p. 621, contains an extensive list of the federal statutes which allowed for costs in particular cases; of the 35 “statutes as to costs” set forth in the final paragraph of the Note, no fewer than 11 allowed for attorney’s fees as part of costs. Against this background of varying definitions of “costs,” the drafters of Rule 68 did not define the term; nor is there any explanation whatever as to its intended meaning in the history of the Rule.

In this setting, given the importance of “costs” to the Rule, it is very unlikely that this omission was mere oversight; on the contrary, the most reasonable inference is that the term “costs” in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority. In other words, all costs properly awardable in an action are to be considered within the scope of Rule 68 “costs.” Thus, absent congressional expressions to the contrary, where the underlying statute defines “costs” to include attorney’s fees, we are satisfied such fees are to be included as costs for purposes of Rule 68. See, e. g., Fulps v. Springfield, Tenn., 715 F. 2d 1088, 1091-1095 (CA6 1983); Waters v. Heublein, Inc., 485 F. Supp. 110, 113-117 (ND Cal. 1979); Scheriff v. Beck, 452 F. Supp. 1254, 1259-1260 (Colo. 1978). See also Delta Air Lines, Inc. v. August, 450 U. S., at 362-363 (Powell, J., concurring).

Here, respondent sued under 42 U. S. C. § 1983. Pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U. S. C. § 1988, a prevailing party in a § 1983 action may be awarded attorney’s fees “as part of the costs.” Since Congress expressly included attorney’s fees as “costs” available to a plaintiff in a § 1983 suit, such fees are subject to the cost-shifting provision of Rule 68. This “plain meaning” interpretation of the interplay between Rule 68 and § 1988 is the only construction that gives meaning to each word in both Rule 68 and § 1988.²

Unlike the Court of Appeals, we do not believe that this “plain meaning” construction of the statute and the Rule will frustrate Congress’ objective in § 1988 of ensuring that civil rights plaintiffs obtain “‘effective access to the judicial process.’” Hensley v. Eckerhart, 461 U. S. 424, 429 (1983), quoting H. R. Rep. No. 94-1558, p. 1 (1976). Merely subjecting civil rights plaintiffs to the settlement provision of Rule 68 does not curtail their access to the courts, or significantly deter them from bringing suit. Application of Rule 68 will serve as a disincentive for the plaintiff’s attorney to continue litigation after the defendant makes a settlement offer. There is no evidence, however, that Congress, in considering § 1988, had any thought that civil rights claims were to be on any different footing from other civil claims insofar as settlement is concerned. Indeed, Congress made clear its concern that civil rights plaintiffs not be penalized for “helping to lessen docket congestion” by settling their cases out of court. See H. R. Rep. No. 94-1558, supra, at 7.

Moreover, Rule 68’s policy of encouraging settlements is neutral, favoring neither plaintiffs nor defendants; it expresses a clear policy of favoring settlement of all lawsuits. Civil rights plaintiffs — along with other plaintiffs — who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney’s fees for services performed after the offer is rejected. But, since the Rule is neutral, many civil rights plaintiffs will benefit from the offers of settlement encouraged by Rule 68. Some plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered. And, even for those who would prevail at trial, settlement will provide them with compensation at an earlier date without the burdens, stress, and time of litigation. In short, settlements rather than litigation will serve the interests of plaintiffs as well as defendants.

To be sure, application of Rule 68 will require plaintiffs to “think very hard” about whether continued litigation is worthwhile; that is precisely what Rule 68 contemplates. This effect of Rule 68, however, is in no sense inconsistent with the congressional policies underlying § 1983 and § 1988. Section 1988 authorizes courts to award only “reasonable” attorney’s fees to prevailing parties. In Hensley v. Eckerhart, supra, we held that “the most critical factor” in determining a reasonable fee “is the degree of success obtained.” Id., at 436. We specifically noted that prevailing at trial “may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Ibid. In a case where a rejected settlement offer exceeds the ultimate recovery, the plaintiff — although technically the prevailing party — has not received any monetary benefits from the postoffer services of his attorney. This case presents a good example: the $139,692 in postoffer legal services resulted in a recovery $8,000 less than petitioners’ settlement offer. Given Congress’ focus on the success achieved, we are not persuaded that shifting the postoffer costs to respondent in these circumstances would in any sense thwart its intent under § 1988.

Rather than “cutting against the grain” of § 1988, as the Court of Appeals held, we are convinced that applying Rule 68 in the context of a § 1983 action is consistent with the policies and objectives of § 1988. Section 1988 encourages plaintiffs to bring meritorious civil rights suits; Rule 68 simply encourages settlements. There is nothing incompatible in these two objectives.

Ill

Congress, of course, was well aware of Rule 68 when it enacted § 1988, and included attorney’s fees as part of recoverable costs. The plain language of Rule 68 and § 1988 subjects such fees to the cost-shifting provision of Rule 68. Nothing revealed in our review of the policies underlying § 1988 constitutes “the necessary clear expression of congressional intent” required “to exempt. . . [the] statute from the operation of” Rule 68. Califano v. Yamasaki, 442 U. S. 682, 700 (1979). We hold that petitioners are not liable for costs of $139,692 incurred by respondent after petitioners’ offer of settlement.

The judgment of the Court of Appeals is

Reversed.

1 The District Court refused to shift to respondent any costs accrued by petitioners. Petitioners do not contest that ruling.

2 Respondent suggests that Roadway Express, Inc. v. Piper, 447 U. S. 752 (1980), requires a different result. Roadway Express, however, is not relevant to our decision today. In Roadway, attorney’s fees were sought as part of costs under 28 U. S. C. § 1927, which allows the imposition of costs as a penalty on attorneys for vexatiously multiplying litigation. We held in Roadway Express that § 1927 came with its own statutory definition of costs, and that this definition did not include attorney’s fees. The critical distinction here is that Rule 68 does not come with a definition of costs; rather, it incorporates the definition of costs that otherwise applies to the ease.