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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.

III

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 congres

POWELL, J., concurring

473 U. S.

sional 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

JUSTICE POWELL, concurring.

Reversed.

In Delta Airlines, Inc. v. August, 450 U. S. 346 (1981), the offer under Rule 68 stated that it was "in the amount of $450, which shall include attorney's fees, together with costs accrued to date." Id., at 365. In a brief concurring opinion, I expressed the view that this offer did not comport with the Rule's requirements. It seemed to me that an offer of judgment should consist of two identified components: (i) the substantive relief proposed, and (ii) costs, including a reasonable attorney's fee. The amount of the fee ultimately should be within the discretion of the court if the offer is accepted. In questioning the form of the offer in Delta, I was influenced in part by the fact that it was a Title VII case. I concluded that the "costs' component of a Rule 68 offer of judgment in a Title VII case must include reasonable attorney's fees accrued to the date of the offer." Id., at 363. My view, however, as to the specificity of the "substantive relief" component of the offer did not depend solely on the fact that Delta was a Title VII case.

No other Justice joined my Delta concurrence. The Court's decision was upon a different ground. Although I think it the better practice for the offer of judgment expressly to identify the components, it is important to have a Court for a clear interpretation of Rule 68. I noted in Delta that "parties to litigation and the public as a whole have an interest-often an overriding one-in settlement rather than exhaustion of protracted court proceedings." Ibid. The purpose of Rule 68 is to "facilitat[e] the early resolution of marginal suits in which the defendant perceives the claim to

1

BRENNAN, J., dissenting

be without merit, and the plaintiff recognizes its speculative nature." Ibid. See also id., at 363, n. 1. We have now agreed as to what specifically is required by Rule 68. Accordingly, I join the opinion of the Court.

JUSTICE REHNQUIST, concurring.

In Delta Airlines, Inc. v. August, 450 U. S. 346 (1981), I expressed in dissent the view that the term "costs" in Rule 68 did not include attorney's fees. Further examination of the question has convinced me that this view was wrong, and I therefore join the opinion of THE CHIEF JUSTICE. Cf. McGrath v. Kristensen, 340 U. S. 162, 176 (1950) (Jackson, J. concurring).

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.

The question presented by this case is whether the term "costs" as it is used in Rule 68 of the Federal Rules of Civil Procedure and elsewhere throughout the Rules refers sim

'Rule 68 provides:

"At any time more than 10 days before the trial begins, a party defending against a claim 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. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If 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. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability."

BRENNAN, J., dissenting

473 U. S.

ply to those taxable costs defined in 28 U. S. C. § 1920 and traditionally understood as "costs"-court fees, printing expenses, and the like2-or instead includes attorney's fees when an underlying fees-award statute happens to refer to fees "as part of" the awardable costs. Relying on what it recurrently emphasizes is the "plain language" of one such statute, 42 U. S. C. § 1988, the Court today holds that a prevailing civil rights litigant entitled to fees under that statute is per se barred by Rule 68 from recovering any fees for work performed after rejecting a settlement offer where he ultimately recovers less than the proffered amount in settlement.

3

I dissent. The Court's reasoning is wholly inconsistent with the history and structure of the Federal Rules, and its application to the over 100 attorney's fees statutes enacted by Congress will produce absurd variations in Rule 68's op

Section 1920 provides:

"A judge or clerk of any court of the United States may tax as costs the following:

"(1) Fees of the clerk and marshal;

"(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

"(3) Fees and disbursements for printing and witnesses;

"(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

"(5) Docket fees under section 1923 of this title;

"(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

"A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree."

'Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U. S. C. § 1988. That section provides in relevant part that "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

1

BRENNAN, J., dissenting

eration based on nothing more than picayune differences in statutory phraseology. Neither Congress nor the drafters of the Rules could possibly have intended such inexplicable variations in settlement incentives. Moreover, the Court's interpretation will "seriously undermine the purposes behind the attorney's fees provisions" of the civil rights laws, Delta Air Lines, Inc. v. August, 450 U. S. 346, 378 (1981) (REHNQUIST, J., dissenting)—provisions imposed by Congress pursuant to §5 of the Fourteenth Amendment.' Today's decision therefore violates the most basic limitations on our rulemaking authority as set forth in the Rules Enabling Act, 28 U. S. C. § 2072, and as summarized in Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240 (1975). Finally, both Congress and the Judicial Conference of the United States have been engaged for years in considering possible amendments to Rule 68 that would bring attorney's fees within the operation of the Rule. That process strongly suggests that Rule 68 has not previously been viewed as governing fee awards, and it illustrates the wisdom of deferring to other avenues of amending Rule 68 rather than ourselves engaging in "standardless judicial lawmaking." Delta Air Lines, Inc. v. August, supra, at 378 (REHNQUIST, J., dissenting).

I

The Court's "plain language" analysis, ante, at 11, goes as follows: Section 1988 provides that a "prevailing party" may recover "a reasonable attorney's fee as part of the costs." Rule 68 in turn provides that, where an offeree obtains a judgment for less than the amount of a previous settlement offer, "the offeree must pay the costs incurred after the making of the offer." Because "attorney's fees" are "costs," the Court concludes, the "plain meaning" of Rule 68 per se prohibits a prevailing civil rights plaintiff from recovering fees

'See S. Rep. No. 94-1011, pp. 5-6 (1976); H. R. Rep. No. 94-1558, pp. 7, n. 14, 8-9 (1976).

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