BRENNAN, J., dissenting

473 U. S.

portantly, there is absolutely no reason to believe that either Congress or the drafters of the Rules were more eager to induce settlement of § 1982 fair-housing litigation than Fair Housing Act litigation," or that they intended sterner settlement incentives in Title VII gender-discrimination cases than in Equal Pay Act gender-discrimination cases."

Moreover, many statutes contain several fees-award provisions governing actions arising under different subsections, and the phraseology of these provisions sometimes differs slightly from section to section. It is simply preposterous to think that Congress or the drafters of the Rules intended to sanction differing applications of Rule 68 depending on which particular subsection of, inter alia, the Privacy Act of 1974,* the Home Owners' Loan Act of 1933, the Outer Continental

34

In fact, the Senate Report to § 1988 specifically addressed the interplay between the Fair Housing Act and § 1982 and emphasized Congress' intent to abolish the "anomalous gaps" between the two statutes and to make them "consistent" with respect to attorney's fee awards. S. Rep. No. 941011, at 4.

With respect to fees-award statutes enacted prior to 1938-which the Court relies on as evidence of the drafters' and Congress' intent to sanction a chameleonic definition of "costs," ante, at 8-9, the same inexplicable scheme would result. For example, the FLSA, 52 Stat. 1060, 29 U. S. C. §201 et seq., and the Railway Labor Act of 1926, 44 Stat. 577, 45 U. S. C. § 151 et seq., are both designed to regulate the hours and wages of covered employees. Both provide for private causes of action and for the recovery of reasonable attorney's fees. But the FLSA provides for fees and costs, 52 Stat. 1069, 29 U. S. C. § 216(b), whereas the Railway Labor Act provides for fees as part of the costs, 44 Stat. 578, 45 U. S. C. § 153. The Court can point to nothing suggesting that Congress intended for similarly situated employees to be subject to different attorney's fee standards under these statutes.

"Compare Privacy Act of 1974, 5 U. S. C. §§ 552a(g)(2)(B), 552a(g)(3)(B) ("reasonable attorney fees and other litigation costs") with 5 U. S. C. § 552a(g)(4) ("costs of the action together with reasonable attorney fees"). "Compare Home Owners' Loan Act of 1933, 48 Stat. 132, as amended, 12 U. S. C. § 1464(q)(3) (“cost of suit, including a reasonable attorney's fee")

1

BRENNAN, J., dissenting

35

Shelf Lands Act Amendments of 1978, or the Interstate Commerce Act 36 the plaintiff happened to invoke.

In sum, there is nothing in the history and structure of the Rules or in the history of any of the underlying attorney's fee statutes to justify such incomprehensible distinctions. based simply on fine linguistic variations among the underlying fees-award statutes-particularly where, as in Roadway Express, the cost provision can be read as embodying a uniform definition derived from § 1920. As partners with Congress, we have a responsibility not to carry “"plain language" constructions to the point of producing "untenable distinctions and unreasonable results." American Tobacco Co. v. Patterson, 456 U. S. 63, 71 (1982). See also n. 5, supra. AS JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE and Justice Stewart, cogently reasoned in Delta Air Lines, Inc. v. August, 450 U. S., at 378 (dissenting opinion), interpreting Rule 68 to allow a "two-tier system of costshifting" would attribute "woode[n] and pervers[e]" motives to Congress and to the drafters of the Rules; "[n]o persuasive justification exists for subjecting these plaintiffs to differing penalties for failure to accept a Rule 68 offer and no persuasive justification can be offered as to how such a reading of Rule 68 would in any way further the intent of the Rule which is to encourage settlement" on a uniform basis.37

with id., 48 Stat. 132, as amended, 12 U. S. C. § 1464(d)(8)(A) ("reasonable expenses and attorneys' fees").

Compare Outer Continental Shelf Lands Act Amendments of 1978, 92 Stat. 657, 43 U. S. C. § 1349(a) (5) ("costs of litigation, including reasonable attorney and expert witness fees") with id., 92 Stat. 657, 684, 43 U. S. C. §§ 1349(b)(2) ("damages. . . including reasonable attorney and expert witness fees"), 1818(c)(1)(C) (“court costs. . . and attorneys' fees").

* Compare Interstate Commerce Act, 49 U. S. C. § 11705(d)(3) (“attorney's fee... as a part of the costs") with 49 U. S. C. § 11708(c) ("reasonable attorney's fee . . . in addition to costs").

"The majority in Delta Air Lines did not reach the issue of Rule 68's application to attorney's fees. THE CHIEF JUSTICE (implicitly) and Jus

473 U. S.

BRENNAN, J., dissenting

II

A

Although the Court's opinion fails to discuss any of the problems reviewed above, it does devote some space to arguing that its interpretation of Rule 68 "is in no sense inconsistent with the congressional policies underlying § 1983 and § 1988." Ante, at 11. The Court goes so far as to assert that its interpretation fits in smoothly with § 1988 as interpreted by Hensley v. Eckerhart, 461 U. S. 424 (1983). Ante, at 11.

The Court is wrong. Congress has instructed that attorney's fee entitlement under $1988 be governed by a reasonableness standard.38 Until today the Court always has recognized that this standard precludes reliance on any mechanical "bright-line" rules automatically denying a portion of fees, acknowledging that such "mathematical approach[es]" provide "little aid in determining what is a reasonable fee in light of all the relevant factors." 461 U. S., at 435-436, n. 11. Although the starting point is always "the number of hours reasonably expended on the litigation," this "does not end the inquiry": a number of considerations set forth in the legislative history of § 1988 "may lead the district court to adjust the fee upward or downward." Id., at 433-434 (emphasis added). We also have emphasized that

39

TICE REHNQUIST (explicitly) have today repudiated their views in Delta Air Lines. See ante, at 8-9; ante, at 13 (REHNQUIST, J., concurring). S. Rep. No. 94-1011, at 6; H. R. Rep. No. 94-1558, at 8-9.

39

Among the factors that Congress intended courts to consider are “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length

1

BRENNAN, J., dissenting

the district court "necessarily has discretion in making this equitable judgment" because of its "superior understanding of the litigation." Id., at 437. Section 1988's reasonableness standard is, in sum, "acutely sensitive to the merits of an action and to antidiscrimination policy." Roadway Express, Inc. v. Piper, 447 U. S., at 762.

Rule 68, on the other hand, is not "sensitive" at all to the merits of an action and to antidiscrimination policy. It is a mechanical per se provision automatically shifting "costs" incurred after an offer is rejected, and it deprives a district court of all discretion with respect to the matter by using "the strongest verb of its type known to the English language-'must."" Delta Air Lines, Inc. v. August, supra, at 369. The potential for conflict between § 1988 and Rule 68 could not be more apparent.

40

Of course, a civil rights plaintiff who unreasonably fails to accept a settlement offer, and who thereafter recovers less than the proffered amount in settlement, is barred under § 1988 itself from recovering fees for unproductive work performed in the wake of the rejection. This is because "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees," 461 U. S., at 440 (emphasis added); hours that are "excessive, redundant, or otherwise unnecessary" must be excluded from that calculus, id., at 434. To this extent, the results might sometimes be the same under either § 1988's reasonableness inquiry or the Court's wooden application of Rule 68. Had the

of the professional relationship with the client; and (12) awards in other cases." Hensley v. Eckerhart, 461 U. S., at 430, n. 3. See also H. R. Rep. No. 94-1558, at 8.

"It might be argued that Rule 68's offer-of-judgment provisions merely serve to define one aspect of "reasonableness" within the meaning of Hensley v. Eckerhart, supra. This argument is foreclosed by Congress' rejection of per se "mathematical approach[es]" that would "end the inquiry" without allowing consideration of "all the relevant factors." Id., at 433, 435-436, n. 11.

BRENNAN, J., dissenting

473 U. S.

Court allowed the Seventh Circuit's remand in the instant case to stand, for example, the District Court after conducting the appropriate inquiry might well have determined that much or even all of the respondent's postoffer fees were unreasonably incurred and therefore not properly awardable.

But the results under § 1988 and Rule 68 will not always be congruent, because § 1988 mandates the careful consideration of a broad range of other factors and accords appropriate leeway to the district court's informed discretion. Contrary to the Court's protestations, it is not at all clear that "[t]his case presents a good example" of the smooth interplay of § 1988 and Rule 68, ante, at 11, because there has never been an evidentiary consideration of the reasonableness or unreasonableness of the respondent's fee request. It is clear, however, that under the Court's interpretation of Rule 68 a plaintiff who ultimately recovers only slightly less than the proffered amount in settlement will per se be barred from recovering trial fees even if he otherwise "has obtained excellent results" in litigation that will have far-reaching benefit to the public interest. Hensley v. Eckerhart, supra, at 435. Today's decision necessarily will require the disallowance of some fees that otherwise would have passed muster under § 1988's reasonableness standard," and there is nothing in § 1988's legislative history even vaguely suggesting that Congress intended such a result.42

"Indeed, the "plain language" of § 1988 authorizes the inclusion as "costs" only of those attorney's fees that have been determined to be "reasonable," see n. 3, supra, so the cost-shifting provisions of Rule 68 necessarily will come into play only with respect to reasonable attorney's fees.

Given that Congress enumerated factors to consider in applying the reasonableness standard, see nn. 4, 39, supra, and given that the per se provisions of Rule 68 were nowhere mentioned in the legislative history, there is no basis to believe that Congress intended to modify the reasonableness standard in the context of settlement offers. Moreover, as we previously have noted, Congress' use of the word "costs" in § 1988 had one purpose and one purpose only: to permit an award of attorney's fees against a State notwithstanding the Eleventh Amendment. See Hutto