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BRENNAN, J., dissenting

bar did not develop a practice of seeking" to shift or reduce fees under Rule 68 "is persuasive evidence that trial lawyers have interpreted the Rule in accordance with" the definition of costs in § 1920. Delta Air Lines, Inc. v. August, 450

Fifth. We previously have held that words and phrases in the Federal Rules must be given a consistent usage and be read in pari materia, reasoning that to do otherwise would "attribute a schizophrenic intent to the drafters." Id., at 353. Applying the Court's "plain language" approach consistently throughout the Rules, however, would produce absurd results that would turn statutes like § 1988 on their heads and plainly violate the restraints imposed on judicial rulemaking by the Rules Enabling Act. For example, Rule 54(d) provides that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." 18 Similarly, the plain language of Rule 68 provides that a plaintiff covered by the Rule "must pay the costs incurred after the making of the offer"-language requiring the plaintiff to bear both his postoffer costs and the defendant's postoffer costs." If "costs" as used in these provisions were interpreted to include attorney's fees by virtue of the wording of § 1988, losing civil rights plaintiffs would be required by the "plain language" of Rule 54(d) to pay the defendant's attorney's fees, and prevailing plaintiffs falling within Rule 68 would be required to bear the defendant's postoffer attorney's fees.

"Rule 54(d) provides in full:

"Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court."

"This is precisely how Rule 68 has been applied with respect to ordinary items of taxable costs. See generally 12 Wright & Miller §§ 3001, 3005; 7 Moore ¶ 68.06.

BRENNAN, J., dissenting

473 U.S.

Had it addressed this troubling consequence of its "plain language" approach, perhaps the Court would have acknowledged that such a reading would conflict directly with § 1988, which allows an award of attorney's fees to a prevailing defendant only where "the suit was vexatious, frivolous, or brought to harass or embarrass the defendant," 15 and that the substantive standard set forth in § 1988 therefore overrides the otherwise "plain meaning" of Rules 54(d) and 68. But that is precisely the point, and the Court cannot have it both ways. Unless we are to engage in “schizophrenic" construction, Delta Air Lines, Inc. v. August, supra, at 360, the word "costs" as it is used in the Federal Rules either does or does not allow the inclusion of attorney's fees. If the word "costs" does subsume attorney's fees, this "would alter fundamentally the nature of" civil-rights attorney's fee legislation. Roadway Express, Inc. v. Piper, 447 U. S., at 762. To avoid this extreme result while still interpreting Rule 68 to include fees in some circumstances, however, the Court would have to "select on an ad hoc basis those features of § 1988 ... that should be read into" Rule 68-a process of construction that would constitute nothing short of "standardless judicial lawmaking." Ibid.16

15 Hensley v. Eckerhart, 461 U. S. 424, 429, n. 2 (1983). See also Hughes v. Rowe, 449 U. S. 5, 14-16 (1980) (per curiam); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 421 (1978); H. R. Rep. No. 94-1558, at 7.

16 It also might be argued that a defendant may not recover postoffer attorney's fees under the "plain language" of Rule 68 because he is not the "prevailing party" within the meaning of § 1988. We have made clear, however, that a party may "prevail" under § 1988 on some elements of the litigation but not on others. See, e. g., Hensley v. Eckerhart, supra, at 434-437. Thus while the plaintiff would prevail for purposes of preoffer fees, the defendant could be viewed as the prevailing party for purposes of the postoffer fees. Shifting fees to the defendant in such circumstances would plainly violate § 1988 for the reasons set forth above in text, and the substantive standards of § 1988 must therefore override the otherwise "plain language" approach taken by the Court.

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BRENNAN, J., dissenting

Sixth. As with all of the Federal Rules, the drafters intended Rule 68 to have a uniform, consistent application in all proceedings in federal court. See supra, at 19, and

n. 9. In accordance with this intent, Rule 68 should be interpreted to provide uniform, consistent incentives "to encourage the settlement of litigation." Delta Air Lines, Inc. v. August, supra, at 352. Yet today's decision will lead to dramatically different settlement incentives depending on minor variations in the phraseology of the underlying feesaward statutes-distinctions that would appear to be nothing short of irrational and for which the Court has no plausible explanation.

Congress has enacted well over 100 attorney's fees statutes, many of which would appear to be affected by today's decision. As the Appendix to this dissent illustrates, Congress has employed a variety of slightly different wordings in these statutes. It sometimes has referred to the awarding of "attorney's fees as part of the costs," to "costs including attorney's fees," and to "attorney's fees and other litigation costs." Under the "plain language" approach of today's decision, Rule 68 will operate to include the potential loss of otherwise recoverable attorney's fees as an incentive to settlement in litigation under these statutes. But Congress frequently has referred in other statutes to the awarding of "costs and a reasonable attorney's fee," of "costs together with a reasonable attorney's fee," or simply of "attorney's fees" without reference to costs. Under the Court's "plain language" analysis, Rule 68 obviously will not include the potential loss of otherwise recoverable attorney's fees as a settlement incentive in litigation under these statutes because they do not refer to fees "as" costs.17

"Congress also has enacted statutes providing for the award of "costs and expenses, including attorney's fees." See infra, at 24. It is unclear how the "plain language" of these provisions interacts with Rule 68. If "including attorney's fees" is read as referring at least in part to "costs,"

BRENNAN, J., dissenting

473 U. S.

The result is to sanction a senseless patchwork of fee shifting that flies in the face of the fundamental purpose of the Federal Rules-the provision of uniform and consistent procedure in federal courts. Such a construction will "introduce into [Rule 68] distinctions unrelated to its goal . . . and [will] result in virtually random application of the Rule." Roadway Express, Inc. v. Piper, supra, at 761-762. For example, two consumer safety statutes, the Motor Vehicle Information and Cost Savings Act 18 and the Consumer Product Safety Act," were enacted in the same congressional session and are similar in purpose and structure-they both authorize the promulgation of safety standards, provide for private rights of action for violations of their requirements, and authorize awards of attorney's fees. The Motor Vehicle Act, however, authorizes the award of fees and costs,20 while the Consumer Product Safety Act authorizes costs including fees.21 Under today's decision a successful plaintiff will, where the requirements of Rule 68 are otherwise met, be barred from recovering otherwise reasonable attorney's fees for a defective toaster (under the Consumer Product Safety Act) but not for a defective bumper (under the Motor Vehicle Act). Yet nothing in the history of either Act, or in the history of Rule 68, supports such a bizarre differentiation.

The untenable character of such distinctions is further illustrated by reference to the various civil rights laws. For example, suits involving alleged discrimination in housing are

fees awards under these statutes are subject to Rule 68. If "including attorney's fees" is more naturally read as modifying only the preceding word, "expenses," fees awards under these statutes are not governed by Rule 68.

18 86 Stat. 947, as amended, 15 U. S. C. § 1901 et seq.

1986 Stat. 1207, as amended, 15 U. S. C. § 2051 et seq.

20 86 Stat. 955, 15 U. S. C. § 1918(a) ("costs and a reasonable attorney's fee shall be awarded").

218 21 86 Stat. 1226, as amended, 15 U. S. C. §§ 2072(a), 2073 ("costs of suit, including reasonable attorney's fees").

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BRENNAN, J., dissenting

frequently brought under both the Fair Housing Act of 1968 22 and 42 U. S. C. § 1982,23 and suits involving alleged gender discrimination are often brought under both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.25 Yet because of the variations in wording of the attorney's fee provisions of these statutes, today's decision will require that fees be excluded from Rule 68 for purposes of the Fair Housing Act 26 but included for purposes of § 1982," and that fees be excluded for purposes of the Equal Pay Act 28 but included for purposes of Title VII." It will be difficult enough to apply Rule 68 to the numerous cases seeking relief under both "fees as costs" and "fees and costs" statutes.30 More im

282 Stat. 81, 42 U. S. C. § 3601 et seq.

23

That section provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." See generally Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968).

2477 Stat. 56, 29 U. S. C. § 206(d).

2578 Stat. 253, as amended, 42 U. S. C. §2000e et seq.

*82 Stat. 88, 42 U. S. C. § 3612(c) (“court costs and reasonable attorney fees") (emphasis added).

"Attorney's fee awards in actions under § 1982 are governed by the terms of § 1988. See n. 3, supra.

"Attorney's fee awards in actions under the Equal Pay Act are governed by the fee provisions of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1069, as amended, 29 U. S. C. § 216(b) (“a reasonable attorney's fee... and costs of the action") (emphasis added).

"78 Stat. 259, 42 U. S. C. § 2000e−5(k) (“a reasonable attorney's fee as part of the costs") (emphasis added).

"As we noted in Hensley v. Eckerhart, 461 U. S., at 435, many civil rights cases "involve a common core of facts or will be based on related legal theories" that make it difficult to apportion an attorney's fee request among various claims. "Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Ibid. The Court offers no guidance on how lower courts are to go about applying the Hensley standard in cases where Rule 68 requires conflicting results on closely related claims.