BRENNAN, J., dissenting 473 U. S. incurred after he rejected the proposed out-of-court settlement. Ante, at 9. The Court's "plain language" approach is, as Judge Posner's opinion for the court below noted, "in a sense logical." 720 F. 2d 474, 478 (CA7 1983). However, while the starting point in interpreting statutes and rules is always the plain words themselves, "[t]he particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding they convey when used in the particular act."5 We previously have been confronted with "superficially appealing argument[s]" strikingly similar to those adopted by the Court today, and we have found that they "cannot survive careful consideration." Roadway Express, Inc. v. Piper, 447 U. S. 752, 758 (1980). So it is here. In Roadway Express, the petitioner argued that under 28 U. S. C. § 1927 (1976 ed.) (which at that time allowed for the imposition of "excess costs" on an attorney who "unreasonably and vexatiously" delayed court proceedings)," "costs" 52A C. Sands, Sutherland on Statutory Construction § 46.07, p. 110 (4th ed. 1984). See also United States v. Campos-Serrano, 404 U. S. 293, 298 (1971) (“If an absolutely literal reading of a statutory provision is irreconcilably at war with the clear congressional purpose, a less literal construction must be considered"); Lynch v. Overholser, 369 U. S. 705, 710 (1962) ("The decisions of this Court have repeatedly warned against the dangers of an approach to statutory construction which confines itself to the bare words of a statute, . . . for literalness may strangle meaning'"); United States v. Brown, 333 U. S. 18, 25-26 (1948) (“The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language"). Cf. Harrison v. Northern Trust Co., 317 U. S. 476, 479 (1943) (“words are inexact tools at best"). "That section provided that any attorney "who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs." The section was amended after Roadway Express to require the payment of "excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." Pub. L. 96-349, §3, 94 Stat. 1156, 28 U. S. C. § 1927. 1 BRENNAN, J., dissenting should be interpreted to include attorney's fees when the underlying fees-award statute provided for fees "as part of the costs." We rejected that argument, concluding that "costs" as it was used in § 1927 had a well-settled meaning limited to the traditional taxable items of costs set forth in 28 U. S. C. § 1920. 447 U. S., at 759-761. We found that Congress has consistently "sought to standardize the treatment of costs in federal courts, to 'make them uniform-make the law explicit and definite,'" and that the petitioner's interpretation "could result in virtually random application of § 1927 on the basis of other laws that do not address the problem of controlling abuses of judicial processes." Id., at 761-762. Specifically, allowing the definition of "costs" to vary depending on the phraseology of the underlying fees-award statute "would create a two-tier system of attorney sanctions. The Court today restricts its discussion of Roadway to a single footnote, urging that that case "is not relevant to our decision" because "§ 1927 came with its own statutory definition of costs" whereas "Rule 68 does not come with a definition of costs." Ante, at 9-10, n. 2. But this purported "distinction" merely begs the question. As in Roadway, the question we face is whether a cost-shifting provision "come[s] with a definition of costs"-that set forth in § 1920 in an effort BRENNAN, J., dissenting 473 U. S. "to standardize the treatment of costs in federal courts,' Roadway Express, Inc. v. Piper, supra, at 761-or instead may vary widely in meaning depending on the phraseology of the underlying fees-award statute." The parties' arguments in this case and in Roadway are virtually interchangeable, and our analysis is not much advanced simply by the conclusory statement that the cases are different. For a number of reasons, "costs" as that term is used in the Federal Rules should be interpreted uniformly in accordance with the definition of costs set forth in § 1920: First. The limited history of the costs provisions in the Federal Rules suggests that the drafters intended "costs" to mean only taxable costs traditionally allowed under the common law or pursuant to the statutory predecessor of § 1920. "Taken to its logical limit, the Court's argument that the Federal Rules come with no "definition of costs" would mean that courts in applying the Rules' costs provisions could altogether ignore § 1920 in defining taxable costs. Surely the Court cannot mean to endorse such a result. The proper question, it seems to me, is instead whether § 1920 sets forth the only “definition” of costs for purposes of applying the Rules or whether courts may pick and choose from among other statutes in adding items to the enumeration set forth in § 1920. Rule 68 modifies the general cost-shifting provisions set forth in Rule 54(d). See Delta Air Lines, Inc. v. August, 450 U. S. 346, 351-356 (1981); n. 13, infra. The Advisory Committee's Notes to Rule 54(d) emphasized that the terms of the statutory predecessor of § 1920 were “unaffected by this rule"-suggesting that the drafters did not intend to alter the uniform definition of costs set forth in that statute. 28 U. S. C. App., p. 621. Moreover, the drafters cited to an article as authority on "the present rule" which emphasized "the fundamental, essential, and common law doctrines and distinctions as to costs and fees. The distinction between costs and fees should be carefully borne in mind. . . ." Payne, Costs in Common Law Actions in the Federal Courts, 21 Va. L. Rev. 397, 398 (1935) (emphasis in original), cited at 28 U. S. C. App., p. 621. The article continued, stating that the statutory predecessor of § 1920 "was designed to reduce the expense of proceedings in the federal courts and to secure uniform rules throughout the United States. The intention of Congress to establish the provisions of the Act of 1853 as the exclusive law of costs in 1 BRENNAN, J., dissenting Nowhere was it suggested that the meaning of taxable "costs" might vary from case to case depending on the language of the substantive statute involved-a practice that would have cut against the drafters' intent to create uniform procedures applicable to "every action" in federal court. Fed. Rule Civ. Proc. 1.9 Second. The Rules provide that "costs" may automatically be taxed by the clerk of the court on one day's notice, Fed. Rule Civ. Proc. 54(d)-strongly suggesting that "costs" were intended to refer only to those routine, readily determinable charges that could appropriately be left to a clerk, and as to which a single day's notice of settlement would be appropriate. Attorney's fees, which are awardable only by the court the United States courts seems clear under the declarations and interdictions of that act. It would seem that the object. . . was to substitute its own provisions and secure uniform rules." Id., at 404 (emphasis added). "There is probably no provision in the Federal Rules that is more important than this mandate." 4 C. Wright & A. Miller, Federal Practice and Procedure § 1029, p. 127 (1969) (Wright & Miller). See also 2 J. Moore, Federal Practice ¶1.13[1], p. 285 (2d ed. 1985) (Moore). The Court's major argument is that, when Rule 68 was drafted in 1938, there already was a disparity in the phraseology of fees-award statutes such that many provisions authorized the award of fees "as" costs, and that it is therefore "very unlikely" that the drafters intended a uniform definition of costs. Ante, at 7-9. As set forth above, however, the limited history strongly indicates that the drafters intended to secure uniform rules on costs and that the uniform definition contained in the statutory predecessor of § 1920 would be "unaffected" by the Rules. See supra, at 18 and this page, and n. 8. Moreover, application of the Court's interpretation to statutes in effect in 1938 would have led to inexplicable variations in settlement incentives, see n. 32, infra-variations for which the Court has no plausible explanation. In the absence of any indication that the drafters or Congress intended a "schizophrenic" application of the Rules, Delta Air Lines, Inc. v. August, supra, at 353, "the most reasonable inference," ante, at 9, contrary to the Court's pronouncement, is that Rule 68 was intended to conform to § 1920 and to the general policy of uniformity in applying the Rules. BRENNAN, J., dissenting 473 U. S. and which frequently entail lengthy disputes and hearings," obviously do not fall within that category. 10 Third. When particular provisions of the Federal Rules are intended to encompass attorney's fees, they do so explicitly. Eleven different provisions of the Rules authorize a court to award attorney's fees as "expenses" in particular circumstances, demonstrating that the drafters knew the difference, and intended a difference, between "costs," "expenses," and "attorney's fees." "1 Fourth. With the exception of one recent Court of Appeals opinion and two recent District Court opinions, the Court can point to no authority suggesting that courts or attorneys have ever viewed the cost-shifting provisions of Rule 68 as including attorney's fees."2 Yet Rule 68 has been in effect for 47 years, and potentially could have been applied to numerous fee statutes during this time. "The fact that the defense 10 See generally 2 M. Derfner & A. Wolf, Court Awarded Attorney Fees, chs. 23-24 (1984); 3 id., chs. 25-27. "See Fed. Rules Civ. Proc. 11 (signing of pleadings, motions, or other papers in violation of the Rule), 16(f) (noncompliance with rules respecting pretrial conferences), 26(g) (certification of discovery requests, responses, or objections made in violation of Rule), 30(g)(1) (failure of party giving notice of a deposition to attend), 30(g)(2) (failure of party giving notice of a deposition to serve subpoena on witness), 37(a)(4) (conduct necessitating motion to compel discovery), 37(b) (failure to obey discovery orders), 37(c) (expenses on failure to admit), 37(d) (failure of party to attend at own deposition, serve answers to interrogatories, or respond to request for inspection), 37(g) (failure to participate in good faith in framing of a discovery plan), 56(g) (summary-judgment affidavits made in bad faith). "Ante, at 9, citing Fulps v. Springfield, Tenn. 715 F. 2d 1088, 10911095 (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). For cases to the contrary, see, e. g., Dowdell v. Apopka, Fla., 698 F. 2d 1181, 1188-1189, and n. 2 (CA11 1983); White v. New Hampshire Dept. of Employment Security, 629 F. 2d 697, 702-703 (CA1 1980), rev'd on other grounds, 455 U. S. 445 (1982); Piguead v. McLaren, 699 F. 2d 401, 403 (CA7 1983); Association for Retarded Citizens v. Olson, 561 F. Supp. 495, 498 (ND 1982), modified, 713 F. 2d 1384 (CA8 1983); Greenwood v. Stevenson, 88 F. R. D. 225, 231–232 (RI 1980). |