Roadway Express, Inc. v. Piper

PETITIONER:Roadway Express, Inc.
RESPONDENT:Piper
LOCATION:Congress

DOCKET NO.: 79-701
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 447 US 752 (1980)
ARGUED: Apr 15, 1980
DECIDED: Jun 23, 1980

ADVOCATES:
Herschel E. Richard, Jr. – for respondents
Harriet S. Shapiro – for the United States, as amicus curiae, by special leave of Court
Miles Curtiss McKee
M. Curtiss McKee – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – April 15, 1980 in Roadway Express, Inc. v. Piper

Warren E. Burger:

We’ll hear arguments next in Roadway Express against Monk.

Mr. McKee, you may proceed whenever you’re ready.

Miles Curtiss McKee:

Thank you, Mr. Chief Justice and may it please it Court.

This case is before the Court on a writ of certiorari to the Fifth Circuit Court on appeal.

The issue is whether attorneys who multiplied proceedings in an action under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. 1981 and thereby unreasonably and vexatiously increased the cost, maybe personally assessed pursuant to 28 U.S.C. 1927, with attorney’s fees as part of the excess cost incurred by an opposing party as a result of such conduct.

The case originated in the Western District of Louisiana where it was dismissed without prejudice by reason of the failure of the plaintiffs to answer the defendant’s interrogatories and ordered by the Court, the failure of the plaintiff to produce one of the plaintiffs for deposition, the general failure to prosecute the suit and ultimately, the plaintiffs’ abandonment of their claim.

The Court after the dismissal and after an evidentiary hearing on the matter of the assessment of cost at which the lawyers for the plaintiffs were represented by their malpractice carrier, the Court awarded fees as cost pursuant to 1927 and under the terms and provisions of Title VII and Section 1988.

It allowed attorney’s fees as part of the cost.

And in the case of Hutto versus Finney decided by this Court in 1978, that taxable cost were equated with attorney’s fees under 42 U.S.C. 1988.

Our argument to the Court is plain and simple because we’re allowed the plain meaning of the statutes.

And where the plain meaning of the statutes is — is present, there is no construction necessary.

The Fifth Circuit Court said that you could not combine these statutes, 42 U.S.C. 1988 and Title VII and 1927 on the other hand, that you could not compel them to achieve what the Fifth Circuit called a hybrid result.

The Court of Appeals did this without any explanation, without any discussion of the in pari materia relationship of these statutes and without explaining away the plain language of the statute and without pointing to any absurd, futile or unreasonable result.

So where are cost defined for a determination under Section 1927?

It must rely on other statutes for its definition.

And upon which statutes may it rely?

The United States and the respondents say that it may rely on only two statutes and that’s 28 U.S.C. 1920 and 1923.

They admit that Section 1927 must resort mechanically to other statutes for its definition, but they draw a barrier at the resort to Title VII and Section 1988.

The respondent in the amici government don’t demonstrate any statutory or other limitation on Section 1927’s access to Title VII and Section 1988 for the definition of cost.

There is nothing in any statute to prohibit this access to these statutes for cost.

And neither the respondent, nor the United States or any of the amici in this case assailed the bare language of the statute.

Their efforts are devoted to unsubstantiated, unsupported speculation and postulation on which they offer no cases and no authority.

William H. Rehnquist:

One — one reason advanced by the Court of Appeals for the Fifth Circuit was the — that 1927 should be construed strictly because they’re regarded as penal in nature.

Did you agree with that?

Miles Curtiss McKee:

Your Honor, we could agree with it for the purposes of argument.

William H. Rehnquist:

Do you think you would be consistent with the language in Newman v. Piggie Park Enterprises where — where they say that — the Court said that an attorney’s fee award flows almost as a matter of right, if you prevail on the merits?

Miles Curtiss McKee:

Well, Your Honor there is authority saying that such statutes are penal as to one group of people and not penal as to others and their remedial as to others.

William H. Rehnquist:

Well, what authority is that?

I mean is it authority from this Court?

Miles Curtiss McKee:

No, it’s not.

Miles Curtiss McKee:

Circuit Courts are, Your Honor.

Byron R. White:

In 1927 only runs against a party, doesn’t it?

Miles Curtiss McKee:

No, sir.

1927 now, is the one that shift the cost to the lawyer.

Byron R. White:

Yes.

But the attorney’s fee provision that says that — says that the — the party is to pay attorney’s fee.

Miles Curtiss McKee:

Well, Your Honor there is some legislative history that says that it’s against the party.

The actual language of Title VII and the actual language of 42 U.S.C. 1988 are that the awards of the cost are to the prevailing party.

Byron R. White:

Well, normally, they’re taxed against the losing party.

Miles Curtiss McKee:

Normally, that’s correct.

Yes, sir.

Normally, the statute deal in terms of parties and they don’t deal in terms of lawyers per se.

1927 is a special statute dealing with lawyers themselves for the proscribed conduct that’s described in 1927.

Warren E. Burger:

Well, it was part of the theory that — that the client should not be penalized for the conduct of the lawyer when the client is not in as good a position to evaluate the technique as the lawyer is.

Miles Curtiss McKee:

Absolutely correct, Your Honor.

And that’s what we have done (Voice Overlap) —

Warren E. Burger:

Well, have — have the courts not done that with for example, frivolous appeals without any statutory authority under the inherent power of the Court to protect —

Miles Curtiss McKee:

(Voice Overlap) —

Warren E. Burger:

— its operations?

Miles Curtiss McKee:

Yes they have, Your Honor.

Warren E. Burger:

I hope they have it because we’ve done it from bench on the Court of Appeals in the District of Columbia —

Miles Curtiss McKee:

Yes.

Warren E. Burger:

— Circuit where there was a frivolous appeal and we ordered the payment by the lawyer and not by the client.

Miles Curtiss McKee:

Yes.

1920 — Section 1927 must derive its cost definition from some other statutes.

Everybody agrees on that.

Everybody agrees that you must go to 1920 and 1923 to get anything at all, that you’re going to pop in a 1927 to make it make any sense.

But Title VII and Section 1988 are also cost-defining statutes.

And there are at least — other than those two, there are least 34 others.

There’s nothing about the language of any of those statutes that prohibits their application to Section 1927.

Miles Curtiss McKee:

There is nothing that would prevent 1927 cost from including attorney’s fees at — dictated by these statutes.

We also maintain before the Court that the bad faith exception to the American rule supports this award.

The same shifting process is available.

The client is responsible under the Wabash or Link and Wabash doctrine.

And Section 1927 would shift such an award to the lawyer given the proper finding.

Our position before the Court on the policy aspects of it is — is that the policy of all of these statutes are and meritorious suits will be expeditiously conducted by competent counsels of impeccable integrity strictly on the issues and nothing that we suggest is alien to that policy, whatever.

If the Court please, with our argument relying upon the plain meaning of the statute such as it is, we would reserve the balance of our time if there are no questions for rebuttal.

Yes, I — I have one question.

Did — did the District Judge allow the attorney’s fees in full or did he restrict them to the excess over reasonableness.

Miles Curtiss McKee:

Your Honor, he allowed them in total.

There were some adjustments made to them, but it’s — as a practical matter, he allowed them in total because he considered that the suit was improvidently brought from the very beginning and that it was the responsibility of these lawyers.

And you think that’s in line with the statute?

Miles Curtiss McKee:

To the extent, Your Honor, that — that the decision may be read that he felt that the lawyers were completely responsible for this situation.

And I might add in — in his finding that he found that — that these lawyers had taken advantage of three unfortunate clients and that they had enlarged upon their claims and to the extent that if — if you can attribute that from the very beginning, I think the decision is correct, Your Honor.

Warren E. Burger:

But then in effect, you were saying the entire proceeding was unreasonable and vexatious.

Miles Curtiss McKee:

That’s correct, Your Honor.

Warren E. Burger:

In their —

Miles Curtiss McKee:

I don’t think you can read it any other way.

Warren E. Burger:

Therefore, their — do you read — the District Judge is saying there was no occasion to — to try to divide or allocate —

Miles Curtiss McKee:

The entire thrust of the decision, Mr. Chief Justice is that it was an unfortunate matter from the very beginning, one of these plaintiffs.

Warren E. Burger:

We’ll attempt to be more than an unfortunate.

This had to be — that had unreasonably increased the costs and it was vexatious.

In other words, it was — they don’t use the term, frivolous, but this — isn’t there some concept of abuse of the processes of the Court implicit in the statute?

Miles Curtiss McKee:

Yes, sir.

I think so.

I don’t think it goes quite as far at bad faith, Your Honor, but I think it’s certainly abusive of the process of the Court.

Byron R. White:

Now, what — what — you wouldn’t say that — I suppose that just because the District Court found that the litigation had been vexatious and unjustified that the District Court was bound to award them a cost.

Or that the (Inaudible) awarded a cost that he was bound to include attorney’s fees as part of the cost.

Miles Curtiss McKee:

No, I wouldn’t, Your Honor.

Byron R. White:

So what’s — what’s the style — what’s his standard?

Miles Curtiss McKee:

Well, Your Honor, preceding everything in all of these things, I understand this Court decision in Christiansburg.

That Christiansburg did not dictate under what standards all of these things should be allowed.

The only thing that Christiansburg said and the only thing that I think this Court had ever said about these standards, are that these are guidelines for the judge’s discretion.

Byron R. White:

Well my —

Miles Curtiss McKee:

And if so, discretion must who (Voice Overlap) —

Byron R. White:

Can we just say discretion, it’s in the judge’s discretion — my question really goes to, what if we happen to agree with you that the Court of Appeals was wrong?

What do we do then?

We — they don’t necessarily reinstate the district judge.

Miles Curtiss McKee:

Your Honor, if it was remanded to the District Court for what the Court called a proper award, what we construe that to mean and my brother on the side, Mr. Richard and I have entered into a stipulation as far as the District Court is concerned, is that the purpose on that was to remove the attorney’s fees from the award.

Byron R. White:

Well, I know, but it says — assume we agree with you that the — that — that doesn’t necessarily mean that — that you — that you can keep your District Court judgment, isn’t it?

Miles Curtiss McKee:

Yes, I think it does, sir.

Byron R. White:

Why?

And — and I would — that you might say that there’s a –that there’s some other standard that ought to be followed.

The — the Court of Appeals says you can never include attorney’s fees, right?

Miles Curtiss McKee:

That’s what they said.

Yes, sir.

Byron R. White:

Well, what if we agree with you that sometimes you can.[Laughs]

Then — and then do we automatically then agree with the District Judge?

Miles Curtiss McKee:

I’m afraid I don’t understand your question, Mr. Justice White.

I — I’m —

Byron R. White:

I know.

Miles Curtiss McKee:

— it’s difficult for me to follow it.

Warren E. Burger:

Well, if we — if we thought the District Court had overreached a little bit on the exercise of this — this discussion.

We — we might conceivably say you went too far when you allocated all these costs.

Well, that’s such possible, but your position is I take it that he did not abuse his discretion and that there should be an outright reversal here.

Miles Curtiss McKee:

Well, Mr. Chief Justice, I don’t want to eliminate the possibility that that may happen.

That’s Mr. Justice White’s question.

If this Court should feel that he had overstepped his bounds to the extent that he had awarded too much or that he did not find the point at which the excess cost began.

And obviously, it should be remanded to the Fifth Circuit with instructions to remand it to the District Court with those instructions.

John Paul Stevens:

Mr. McKee, isn’t there an immediate ground that simply remanded to the Fifth Circuit with instructions for them to decide whether or not they think the District Court allowed the proper fees?

John Paul Stevens:

I mean, I don’t — we don’t — they didn’t reach that question.

Miles Curtiss McKee:

Your Honor, that’s correct.

They did not reach the question.

John Paul Stevens:

And they might well, if they say some fees are awardable, might have said, “Well, these are a little too much.”

But that’s up to them to decide in the first instance.

Miles Curtiss McKee:

It’s definitely established in the Fifth Circuit decision that there’s no question, but that the proceedings were multiplied and that the conduct fitted —

John Paul Stevens:

And some fees would be appropriate, if they’re ever appropriate.

Miles Curtiss McKee:

Yes, sir.

John Paul Stevens:

But they didn’t address the question of how much should be awarded.

Miles Curtiss McKee:

That’s correct.

Byron R. White:

So we would say.

And if we will agree with you, we should reverse and — and ask the Court of Appeals to see if the District Court abused its discretion.

Miles Curtiss McKee:

That’s correct.

Well, thank you, sir.

Warren E. Burger:

Mr. Richard.

Herschel E. Richard, Jr.:

Thank you, Mr. Chief Justice and may it please the Court.

Let me first make it clear that our argument does not intend to take the position as continued somewhat by the reply brief filed by Roadway that lawyers are immune from — or — or so have some form of immunity from the Court’s sanctioning those lawyers.

I think that’s — that there are — there’s adequate legislation to allow the imposition of sanction on lawyers.

In fact in this case, Rule 37 of the Federal Rules of Civil Procedure was available.

In fact, that’s how this whole attorney’s fee business got started.

A motion was filed by counsel for Roadway to assess attorney’s fees under Rule 37 for failure to answer interrogatories and for failure to appear in the deposition.

The thing moved a long way from there to an awarding by District Court of $17,000.

In other words, the attorney’s fees in the whole case — I’m sorry.

William H. Rehnquist:

Mr. Richard, do you — do you support the reasoning of the Fifth Circuit in saying that 1927 should be strictly construed because it’s penal in nature?

Herschel E. Richard, Jr.:

Yes, sir.

I think that’s —

William H. Rehnquist:

How — how do you square that with the language in Newman versus Piggie Park that says where the — a plaintiff bringing a Title VII case is on — the attorney’s fees should be awarded almost as a matter of course?

Herschel E. Richard, Jr.:

Well, in — in the Piggie Park case, the awarding of attorney’s fees was not to punish the defendant, but — but it was the furtherance of the federal — the — the purpose of the statute to eliminate discrimination.

It was to encourage the — the so called private Attorney General.

William H. Rehnquist:

But it certainly punished the defendant in a sense.

Herschel E. Richard, Jr.:

It did.

It punished the defendant to the extent that they had to pay attorney’s fees, but they — and to the extent that — that he — he could almost make the argument that they violated the law, so it was justifiable for them to be punished.

William H. Rehnquist:

Oh, in — in 1927 that it is intended to punish people who violate its conduct in a sense.

Herschel E. Richard, Jr.:

1927 is designed to punish lawyers.

I don’t think there’s any question about that.

William H. Rehnquist:

So — so that — the — the two really stand pretty much on the same footing, don’t they?

Herschel E. Richard, Jr.:

Well, I don’t think that the — the idea of — of the so — the attorney’s fees provisions if you get a look at the legislative history of — of this — of the provisions to allow attorney’s fees was to punish the lawyers, but rather to encourage the — the attorneys to take the source of cases that need to be handled.

William H. Rehnquist:

Well, but one — one man’s meat is another man’s poison.

In a sense the plaintiff — plaintiff’s lawyer gets an award of attorney’s fees the plaintiffs got, the defendants get the attorney’s fees and award against them.

Herschel E. Richard, Jr.:

Well, I think — I think that what you have to look at though was the language of the statute.

The — the statute clearly provides the award of attorney’s fees under 2000e-5 (k) in the — and the — the provision being interpreted in Piggie Park.

But the purpose, I mean the — the reason that — that the — that the Fifth Circuit felt the — the reference to the Fleischmann case was — was important was that the language of 1927 is certainly not plain and — and unmistakable because it just says cost and it sure doesn’t say attorney’s fees.

And the purpose of — of any — of the strict construction rule is to ensure that for one thing that the lawyer in this case and this — under 1927, knows what’s coming.

He — he — when he just reads cost, he sure doesn’t — he — he would — he would think that’s cost.

That’s what it says.

It doesn’t say attorney’s fees.

Byron R. White:

Could’ve — here, the plaintiff is sued and lost, is that right?

Herschel E. Richard, Jr.:

This — in — this case was dismissed without prejudice in this case.

Byron R. White:

And — and then attorney’s fees were assessed against the lawyer for the plaintiff —

Herschel E. Richard, Jr.:

Yes, sir.

Byron R. White:

— in favor of the defendant.

Herschel E. Richard, Jr.:

That’s correct.

Byron R. White:

Now, could the — could an attorney’s fee have been allowed to the defendant against the plaintiff?

Herschel E. Richard, Jr.:

I don’t think so.

It would — it would — certainly it — and that’s — excuse me, did you say attorney’s fees awarded against the — the plaintiff’s individual —

Byron R. White:

Well this is some of — was this the kind of a case that you —

Herschel E. Richard, Jr.:

Yes, this is a Title VII.

Byron R. White:

So — so that — so that the prevailing party, in proper circumstances —

Herschel E. Richard, Jr.:

Under Christians —

Byron R. White:

— in the attorney’s fees.

Herschel E. Richard, Jr.:

Under Christiansburg.

Byron R. White:

So the — as the defendant could’ve — hadn’t — might have had an award of attorney’s fees against the plaintiff as a party?

Herschel E. Richard, Jr.:

That’s right.

But the — that that was not the case in — in this — not — it was not the situation in this case and —

Byron R. White:

I understand.

Herschel E. Richard, Jr.:

And — and in this case —

Byron R. White:

I understand they — they — but nevertheless, it was the kind — in these very circumstances, the District Judge would not have abused his discretion, I suppose, if he had awarded attorney’s fees in favor of the defendant against the plaintiff as a party.

Herschel E. Richard, Jr.:

I don’t think so.

Not —

Byron R. White:

What do you mean you don’t —

Herschel E. Richard, Jr.:

I don’t —

Byron R. White:

— you think that —

Herschel E. Richard, Jr.:

— in this case, under these facts, there’s no facts to award attorney’s fees against the party based on the rationale of Christiansburg.

Byron R. White:

Why — why not?

Herschel E. Richard, Jr.:

The Christiansburg looks to the claim of the plaintiff whether it was —

Byron R. White:

Yes.

Herschel E. Richard, Jr.:

— unreasonable —

Byron R. White:

Right.

Herschel E. Richard, Jr.:

— groundless, frivolous I believe, is the other word.

The record reflects that two of the three plaintiffs were — filed their claim through the EEOC and reasonable cause for discrimination was found —

Byron R. White:

Well, I see —

Herschel E. Richard, Jr.:

— with regard to two of the three claimants.

And so if that — that’s the only evidence in the record as to if you want to cut off the merits —

Byron R. White:

I see.

Herschel E. Richard, Jr.:

— of the claim.

So as far as the record is concerned as in this case, under these facts, I don’t believe you could award some of the State’s —

Byron R. White:

But the award wasn’t here — wasn’t based on bringing a frivolous case, but on — on needless say —

Herschel E. Richard, Jr.:

The conduct of the lawyers.

Right.

That — that’s — that’s the problem, Your Honors, with — with the argument being made by Roadway in this case.

Herschel E. Richard, Jr.:

They — they say on page 17 of their brief and I think this is basic to the — is basically their problem with their rationale.

The authority of the basic award of attorney’s fees in this case is not Section 1927.

You’ve got to get attorney’s fees out of 2000e-5 (k) and 1988 as interpreted by Christiansburg before you can hop over to 1927.

And the facts in this case don’t support that.

And — and I don’t think the — the legislative history of the — of the — of 2000e-5 (k) or 1988 support nobody.

I don’t think —

William H. Rehnquist:

But that wasn’t the reasoning of the Court the Appeals, was it?

In saying that in this particular case, you — there should have been no award of attorney’s fees.

They said you can never award the — the attorney’s fees.

Herschel E. Richard, Jr.:

They said you can — that the — the issue was not fully — not considered at all in the Court of Appeals like it has been briefed here in — in this Court, Your Honor.

And the — the — as I was saying, the legislative history and of it — of the civil rights and statutes providing attorney’s fees and particularly when you look at 1927 and the history of that statute as the — the statute was discussed by this Court in the Alyeska case and — and in that decision as — it’s clear that 19 — well, it’s — it’s just the — those — the legislation is clear that it was enacted at the same time that section — or what has become Section 1920 and Section 1923 all of which deal with the definition of cost and what they call a docket fees or proctor’s fees can be awarded.

And that is the limitation.

Congress has — as this Court has said in — in Alyeska, Congress has, with regard to the question of attorney’s fees, has gotten into the act.

And the federal courts do not have so called roving authority to grant attorney’s fees —

Byron R. White:

But what — let me go back.

Suppose — suppose there had been an award of — of attorney’s fees against the plaintiff in this case as a party on the — on the grounds — suppose the plaintiff had made a — or the defendant, suppose the defendant had a motion for attorney’s fees on the grounds that this had been a frivolous litigation and said — said, “We are the prevailing party.

This is a proper case for an award of attorney’s fees.”

And suppose the District Judge said, “You’re quite right.

You are entitled to attorney’s fees, but I’ll tell you what I’m going to do.

I think it’d be unfair to make the plaintiff pay them.

I think — well, I’ll make his lawyer pay him because he’s the one who brought this frivolous case and needlessly ran the bill up.

Herschel E. Richard, Jr.:

The — the problem with — regardless —

Byron R. White:

Then, that would — would —

Herschel E. Richard, Jr.:

Excuse me.

Byron R. White:

— would you still be making this your argument?

Herschel E. Richard, Jr.:

Yes, because Congress has stepped into the act, into the bridge as far as what 1927 says.

You — the award of attorney’s fees is based on the congressional — the — the award of attorney’s fees or — excuse me.

The award of cost against counsel is based on nine — Section 1927.

Congress —

Byron R. White:

I don’t understand.

Byron R. White:

But suppose the attorney’s fees weren’t even involved here and the defendant wins the case and the plaintiff has to pay his — is supposed his cost, right?

Herschel E. Richard, Jr.:

All right.

Byron R. White:

And then the judge says, “Well, I think this is a proper case for 1927 —

Herschel E. Richard, Jr.:

All right.

Byron R. White:

— so I’m going to make the plaintiff — the plaintiff’s lawyer pay the cost rather than the plaintiff.

That’s what happens, isn’t it?

Herschel E. Richard, Jr.:

Well, you’ve got to go back to 1927 and read 1927 as for what it says that the — the lawyer multiplies the proceedings in any case as to increase cost unreasonably and vexatiously.

That’s the — that’s the standard.

Byron R. White:

Right.

Herschel E. Richard, Jr.:

And —

Byron R. White:

Right.

Well —

Herschel E. Richard, Jr.:

— and just because the plaintiff lost, I don’t think has made such standard.

Byron R. White:

Well, let — let’s just — let’s suppose that — that because of the lawyer’s conduct, costs were increased.

Herschel E. Richard, Jr.:

All right.

Byron R. White:

The defendant’s costs were increased and he won.

And the plaintiff is going to have to pay his cost.

Let’s forget the attorney’s fees for the moment, just cost.

And then the judge says these costs were ran up by vexatious litigation by this attorney, so I’m going to make the attorney pay him rather the — rather than his client.

Herschel E. Richard, Jr.:

All right.

Byron R. White:

Isn’t that —

Herschel E. Richard, Jr.:

That’s — that’s the purpose of 1927.

Byron R. White:

Yes.

Now, you say that — you say that — you say that you just can’t fit 1927 and the civil rights attorney’s fees statute together.

This is —

Herschel E. Richard, Jr.:

You can’t — you —

Byron R. White:

Because —

Herschel E. Richard, Jr.:

You —

Byron R. White:

— the grounds are different.

Herschel E. Richard, Jr.:

That’s right.

Herschel E. Richard, Jr.:

And — and you’re mixing apples —

William H. Rehnquist:

Well —

Herschel E. Richard, Jr.:

— and oranges.

William H. Rehnquist:

Well, but you have to say that with respect to all the other federal statutes that provide for the award of an — an attorney’s fees in addition to ordinary cost too, don’t you?

Herschel E. Richard, Jr.:

Yes, if —

William H. Rehnquist:

You can never have attorney’s fees as a part of the award under this 1927 — under your view.

Herschel E. Richard, Jr.:

That’s correct.

Yes, sir, because of the — the language of 1927 and — and the consideration of its interrelationship with 1920 and 1923.

The — Mr. Chief Justice, you mentioned the — the award of — of fees for frivolous appeal.

I think that’s established by specific statute.

In this —

Warren E. Burger:

What may just you meant for frivolous appeal —

Herschel E. Richard, Jr.:

40 —

Warren E. Burger:

— as one example.

Herschel E. Richard, Jr.:

46 U.S. — I mean the Rule 46, I believe with the Federal Rules of Appellate Procedure.

Warren E. Burger:

Could absent any rule or statute to a good many courts have treated that as an inherent power close to —

Herschel E. Richard, Jr.:

Thus —

Warren E. Burger:

— state and federal, have they not?

Herschel E. Richard, Jr.:

— certainly, the — the courts have — have awarded attorney’s fees against parties as part of —

Warren E. Burger:

I’m not talking about an attorney’s fees against the lawyer as distinguished from the party.

Herschel E. Richard, Jr.:

Well, I — there’ve been no — none of the cases cited by Roadway have reached that result.

I suppose that you could discipline lawyers with — by contempt that certainty, that’s — but that’s — that’s not what we have here, Your Honors.

The — the final —

Byron R. White:

Well, don’t you — don’t you think it would be proper for a judge to award attorney to — to the — under 1927?

Wouldn’t it be proper to award a cost to stick the attorney with cost if the judge sought the action was just simply frivolous and vexatious, just no merit whatsoever?

Herschel E. Richard, Jr.:

I think it’s — it’s in the conduct of the litigation is what the 19 —

Byron R. White:

Well, doesn’t want to — it says “Who so multiplies the proceedings in any case.”

Well, the best — the first time you multiply it is when you file it.

Herschel E. Richard, Jr.:

That’s assuming that — that the claim had no merit to begin with.

Byron R. White:

Exactly, exactly.

Byron R. White:

Assuming that it had absolutely no merit to begin with and it was just vexatious.

Herschel E. Richard, Jr.:

Under those facts which I don’t think are applicable is here, I — I think that 1927 would probably reach that — that conduct.

John Paul Stevens:

Mr. Richard, may I ask you a question about Section 1920 which describes taxable cost.

As I understand your argument, it is that 1927 does pick up those items of taxable cost.

Herschel E. Richard, Jr.:

Yes.

John Paul Stevens:

My question is does it pick up those items of taxable cost that have been added recently?

For example, I think that you meant that a statute is now — allows compensation to court-appointed experts and interpreters and some other things that were not part of the statute when 1927 was first enacted.

Are they properly taxed upon their — against lawyers?

Herschel E. Richard, Jr.:

Well, I think — I think so, Your Honor.

I think that they would.

John Paul Stevens:

Well, if you include subsequently added cost, why don’t you include attorney’s fees which are taxable as part of the cost in Title VII litigations?

Herschel E. Richard, Jr.:

Well, because I think it — that because of the — of the relationship —

John Paul Stevens:

Because it’s not if 1920, is that the reason?

Herschel E. Richard, Jr.:

Sir?

John Paul Stevens:

Because it — they’re not in —

Herschel E. Richard, Jr.:

It is not in 1927 and when you look —

John Paul Stevens:

In other words, you would read Section 1927 and saying those costs authorized by Section 1920 —

Herschel E. Richard, Jr.:

They’re on the same chapter.

John Paul Stevens:

— and nothing else?

Herschel E. Richard, Jr.:

123 and whatever it is.

Yes, sir.

You —

John Paul Stevens:

It has to be on the same chapter.

Herschel E. Richard, Jr.:

Well, you got — you — I think you have to read it with the — looking at what Congress intended.

And — and that one of the things you consider is the — the location and is that nearest, you know the definition of the cost within that particular chapter.

One — one of those things I would like to mention as to the award by the District Court of $17,000 and what the Fifth Circuit did, the Fifth Circuit’s remand was to go back and find out what costs should be awarded under 1927.

William H. Rehnquist:

But they said under no event could attorney’s fees be awarded.

Herschel E. Richard, Jr.:

That’s correct.

That’s their reading — that’s the course reading of 1927.

Warren E. Burger:

Mrs. Shapiro.

Harriet S. Shapiro:

Mr. Chief Justice and may it please the Court.

My function here today is to emphasize the Government’s disagreement with petitioner’s reading of Section 1927 which singles out lawyers litigating cases under federal statutes that provide for the recovery of attorney’s fees.

And my basic point is that these attorney fee statutes provide for recovery against the opposing party.

It distorts their purpose to read them as also approving of recovery against counsel for that party.

The attorney fee provisions in the Civil Rights Act are typical of those in many other federal statutes.

They serve two related purposes.

The first purpose is to encourage private parties to enforce important federal policies.

That’s the Private Attorney General principle.

The cost of hiring counsel is likely to be a serious problem to victims of employment discrimination.

But that problem is less serious if successful plaintiffs can recover their counsel fees.

That means that the case — the litigation will essentially pay for itself.

The — that makes it attractive from the point of view of lawyers and the Congress recognized that in civil rights cases, it’s a problem finding lawyers that were willing to take these cases.

But if counsel fee — fees can be paid from — by the — by the — can be recovered by the prevailing party, then the lawyers are more likely to be interested in taking the cases.

They’d become attractive cases.

But if litigating these cases imposes a special risk that’s not part of the normal risks of litigating cases in any event, then the cases are unattractive to the lawyers.

That makes it harder for the victims —

William H. Rehnquist:

Ms. Shapiro —

Harriet S. Shapiro:

Yes.

William H. Rehnquist:

The award of attorney’s fees on both sides is provided in Title VII cases, isn’t it?

Harriet S. Shapiro:

That’s true but —

William H. Rehnquist:

So — so that in — in effect, the lawyer who undertakes to defend a civil — a Title VII action is faced with the same sort of problem as the lawyer who takes on the plaintiff’s case.

Harriet S. Shapiro:

Well, the — the lawyers’ fees are recoverable to the prevailing party, but as reading Piggie Park and Christiansburg, the standards are different.

So — and that the plaintiff’s lawyer can expect to recover his fees absent at extraordinary circumstances.

So that he’s the one that gets — is encouraged to take the case.

The defendant’s lawyer doesn’t — the Court — the Congress didn’t feel that he needed this special incentive and for the reasons that are —

William H. Rehnquist:

Well, but who —

Harriet S. Shapiro:

— spelled out in Christiansburg —

William H. Rehnquist:

— the Congress has given him a special incentive to a certain extent, because it does authorize the award of — of attorney’s fees as cost to the defendant and under the Christiansburg standard —

Harriet S. Shapiro:

Only if the defendant is essentially blameless if the suit is without merit.

In that situation, yes, then the — the defendant is entitled to recover his costs.

Harriet S. Shapiro:

It’s not merely as generous a cost provision.

John Paul Stevens:

Ms. Shapiro, we’re dealing with exceptional cases to start with, because most lawyers don’t misbehave and give rise to claims of this kind.

And I think we have to start with the assumption, the lawyers did something the lawyers do not normally do.

And if you have a case in which a plaintiff perhaps named as a class representative or something is relatively unsophisticated and the lawyer persuades the plaintiff to file a totally meritorious — meritless claim and makes a lot of trouble for the other side and runs up the kind of situation where normally a district judge would say, “The plaintiff ought to be charged with cost.”

Your position really is that they shouldn’t recover from anybody because he is the one that stick the innocent plaintiff with him and so you’re saying nobody should have to pay.

Harriet S. Shapiro:

Well, I think the Court really faced that problem in Christiansburg, because in Christiansburg you made it fairly clear that you — you were not saying that only the bad faith plaintiff was — could — could expect to have counsel’s — I mean, attorney’s fees recovered against him.

That — the — the — it — it was also the frivolous case regardless of bad faith.

So that I think you’ve already faced in Christiansburg, the fact that you do decide — look to the party to make sure that he doesn’t bring frivolous suits.

Not just saying, “Well, I was misled.”

That it’s up to the party to assure that his — that — that he doesn’t bring a frivolous suit.

But if he does, then he bears the risk of having counsel fees as against him.

And I think that this is — it’s important that that’s where the line has been drawn between the protection of defendants and the protection of plaintiffs.

That your — you get the problem and the — the difficulty with the — petitioner’s point of view is that 1927 is penal and it’s looking at the attorney’s responsibility.

The attorney’s responsibility for the way he litigates that the — the other — the attorney fee provisions in the substantive statutes are not penal.

They are looking at the merits of the case and either that encourage —

John Paul Stevens:

Well, it’s not penal but per se fees are part of the cost.

But once they say fees are part of the cost, how do you get out of the statutory language?

How do you meet the (Voice Overlap) pure language of it?

William H. Rehnquist:

Are the — the — is it the same?

Harriet S. Shapiro:

Well, the — the purpose of saying the fees are part of the cost in the substantive statutes is (a) to the — this — this private Attorney General principle to —

William H. Rehnquist:

Well, you used — you — you used the language of fees as part of the — the cost in the statute in — in one statute as the — entirely different meaning than in 1927.

Harriet S. Shapiro:

That’s right.

That 1927 was part of the original bill in 1853 that said these — as to these costs and no others are to be recovered.

And so that the costs in 1927 are the costs that are defined in 1920 and 1923.

Byron R. White:

Well, Ms. Shapiro, what if — what if a general statute were passed?

What if the Congress just decided to change the so called American rule and say from here on, we’ll adopt the British Rule that the — that ordinarily, attorney’s fees will be allowed to the prevailing party as a part of cost.

Suppose there was a general statute like that — just generally?

Harriet S. Shapiro:

Well, then you wouldn’t have the singling out problem which is our basic — that’s the — the problem with the — the — our fundamental policy problem.

Byron R. White:

I don’t know how that gets you, though to — to excluding attorney’s fees from cost.

Harriet S. Shapiro:

Well —

Byron R. White:

Because in my example that I take it, you would say that, “Well, I guess — I guess attorney’s fees are part of — are — are part of the cost that can be charged against the lawyer.

Harriet S. Shapiro:

What — what we’re — I — if you can just have a statute that said attorney’s fees here are — are part of the costs —

Byron R. White:

And they’re allowable to the prevailing party.

Harriet S. Shapiro:

And — and they’re allowable to the prevailing party without amending 1927, then you would still have 1927 as part of — I mean, assuming this statute didn’t overrule the 1853 Act.

We —

John Paul Stevens:

(Voice Overlap) 1920 —

Harriet S. Shapiro:

Well —

John Paul Stevens:

— with Mr. Justice White’s statute in the subsection 7 of 1920.

They’re just an additional item of cost and addition to docket fees, just say attorney’s fees.

Harriet S. Shapiro:

We — the — there is — there has been a proposal.

There is a proposal in Congress to —

John Paul Stevens:

I Understand.

Supposing they were passed, would that not be picked up by 1927 then?

Harriet S. Shapiro:

Sure.

And well — well, the proposal is to amend 1927.

John Paul Stevens:

Well, I mean if we —

Harriet S. Shapiro:

And —

John Paul Stevens:

— if we just amended 1920.

Harriet S. Shapiro:

I’d — I think that would probably —

John Paul Stevens:

What your — what you’re saying is, it only — the word, cost, only applies if it’s cost in all litigation.

It doesn’t apply if it’s a special kind of cost for one kind case like civil rights or antitrust or something like it.

Harriet S. Shapiro:

That when you have this — the singling out, you get real policy problems.

John Paul Stevens:

The problem that I — I see with your argument is you seem to assume that the singling out was totally for the benefit of the plaintiffs.

But it seems to me that’s inconsistent with the notion that whichever party prevails, there’s a right to cost — an opportunity to have the judges assess fees as part of the cost.

Harriet S. Shapiro:

No, the — the argument really is that you’re in — in the substantive statutes, you’re talking about costs — shifting costs against the parties and that — that however that line is drawn between the parties, it’s drawn on the basis of the merits of the suit.

1927 says nothing about prevailing parties.

It says excess costs.

And —

John Paul Stevens:

I just don’t understand you.

We have — but just you got a special statute 1927 dealing with misbehaving lawyers.

John Paul Stevens:

And I don’t know why you say a misbehaving lawyer is any different in one kind of case than another.

At least to be in any — any kind of case is assuming it can be — he can be treated.

It comes within the statutory language.

Harriet S. Shapiro:

Well, in this — that’s up — and we agree.

A misbehaving lawyer is a misbehaving lawyer and he ought to be subject to the same penalties regardless of what kind of a statute he is litigating under.

He is subject to the penalties that are provided in 1927 which are conventional costs.

John Paul Stevens:

And if the consequences of misbehavior are that you have to pay the costs, I don’t know why you don’t pay whatever the costs are appropriate for that kind of litigation.

Harriet S. Shapiro:

Because the purpose of putting the particular cost in a particular statute —

John Paul Stevens:

Without plaintiffs.

Harriet S. Shapiro:

— is for a different — there’s a different basis for that.

And my time has expired.

Thank you.

Warren E. Burger:

Mr. McKee, do you have anything further?

Miles Curtiss McKee:

Mr. Chief Justice, you asked earlier about the matter of improvident appeals and — and awards under inherent powers.

It’s a strange result, but on April the 2nd, the Fifth Circuit decided a case called, a panel decision.

Decided case called Self versus Self, which is cited on page 4 of our reply brief, in which they’ve suggested that an award for just such a reason might be made under 1927.

Mr. Justice Rehnquist, on the question of penal at — our position is simply that where these statutes are as clear as they are that there is no construction needed and whether you admit even if you admit — admitted completely that they might be penal that it doesn’t change the result that we’re contending for.

If you follow the argument of the Government, you must say that Congress was not aware of 1920 or 1923 when it passed the 42 c 1988 or Title VII of the Civil Rights Act of 1964.

And has the effect of ignoring one of the cases that they’ve cited which is Erlenbaugh decided by the Court in 1972, holding that Congress is presumed to be aware that all previous statutes on the same subject.

Or should we presume that Congress was aware of 1920 and 1923 and intended something entirely different by the use of the phrase, “As a part of the cost”.

Congress has from to time used various phrases to define cost.

In 17 statutes, they’ve separated them as cost and attorney’s fees.

In five, they have used the language, “Together with.”

In 21 statutes they have used “cost including attorney’s fees” and in 15 statutes, one of — the ones that we’re involved with today, they used “cost as a part of”.

The simple meaning of all of these is that these attorney’s fees are part of the taxable cost in these cases in Hutto and Finney, foreclosed any further discussion of that.

I would like to comment very briefly on the — on the merit conduct distinction that has been advanced here.

And that is that it’s a very mechanistic argument which divides the lawyer and his client and which divides the suit into two parts.

And that it’s — assigns if —

Warren E. Burger:

That is not — it’s not 1927 to divide the lawyer from his client?

Miles Curtiss McKee:

It does, Your Honor, for the purpose of the discretion to the Court, yes.

Warren E. Burger:

Yes.

Potter Stewart:

Well, you could have very serious misconduct on the part of a lawyer in a very meritorious case, couldn’t you?

Miles Curtiss McKee:

You could, sir.

In other words if —

Potter Stewart:

And — and very exemplary conduct on the part of the lawyer in a — in a frivolous case.

Miles Curtiss McKee:

That’s correct.

Potter Stewart:

So aren’t they divided?

They’re — they’re — aren’t they two quite separate things?

Miles Curtiss McKee:

Well, they are, Your Honor, but you can’t divide them entirely for all of these purposes and ignore the Lincoln Wabash decision at all — all together.

But what they’ve done is they’ve created a factious distinction here, where they divide the suit down the middle and they assigned the lawyer one side of the suit and they assigned the client the other side.

To wit, “The bringing of the suit is the client’s responsibility.

The conduct of the suit is that of the lawyer.”

They applied Title VII to the front side of that argument and 1927 to the backside of it.

And they are never to be met again according to the argument as it goes.

Potter Stewart:

Mr. McKee, I — let me interrupted you.

I — I didn’t — let me say, I didn’t quite get the point of what you began where the — the recent case in the Fifth Circuit, Sell against Sell, I think it was?

Miles Curtiss McKee:

Self.

Mr. Justice Stewart, it’s a case that — that [Laughs] was a domestic relations case and somehow in order to get appeal, got removed and —

Potter Stewart:

(Voice Overlap) —

Miles Curtiss McKee:

— it was appealed to the Fifth Circuit.

And Justice — Judge Clark who was writing for the panel, suggested that the — the fees for the frivolous appeals should be assessed against the lawyer in the 1927.

Potter Stewart:

I see.

I see, just that.

Warren E. Burger:

Under 1927, could the strictures of 1927 be applied against the lawyer for the prevailing party?

Suppose the defendant in a given suit prevails, but the Court concludes that all through the litigation, the defense counsel has used these tactics that are proscribed multiplying the proceedings — a rearguard action, making it as difficult as possible all the way.

But on the merits, the defendant finally prevails?

Miles Curtiss McKee:

There’s no question, Your Honor.

Warren E. Burger:

No question —

Miles Curtiss McKee:

Mr. Chief Justice —

Warren E. Burger:

— which way —

Miles Curtiss McKee:

— that — that this thing can be applied to everyone who’s involved in the litigation.

Warren E. Burger:

Yes.

It doesn’t make any difference whether he’s a prevailing party or —

Miles Curtiss McKee:

Not at all.

Warren E. Burger:

— the losing party.

Miles Curtiss McKee:

Not at all.

Warren E. Burger:

I see.

Miles Curtiss McKee:

Now, these — these offenses which seemed to be — they come through the argument of the Government.

They seem to come from somewhere else and they are really self-made.

The lawyer himself puts himself in this position.

They don’t come from outside and we’re not singling out anybody.

What the people that are singled out were singled out by Congress when they passed these statutes that said that attorney’s fees are part of the cost or the cost includes attorney’s fees.

There is no singling except to the extent that some 36 or so statutes that deal in those terms.

I think that the Court has no other questions, I will give up.

Thank you, sir.

Warren E. Burger:

Thank you, counsel.

The case is submitted, we’ll hear arguments next in the —