Marek v. Chesny, Individually and as Administrator of 4161
Decided on July 27, 1985; 473 US 1


A. Issues Discussed:  Civil Rights (federal)


B. Legal Question Presented: 

Should attorney's fees incurred by a plaintiff, subsequent to an offer of settlement, be paid by the defendant when the plaintiff recovers a judgment less than the offer?


A. Background:

Petitioners, three police officers, in answering a call on a domestic disturbance, shot and killed Respondent's adult son. Respondent, on his own behalf and as administrator of his son's estate, filed suit against the officers in the United States District Court under 42 U.S.C. 1983 and state tort law. Prior to trial, petitioners made a timely offer of settlement of $100,000, including accrued costs and attorney's fees, but respondent did not accept the offer. The case went to trial and respondent was awarded $5,000 on the state-law claim, $52,000 for the 42 U.S.C.1983 violation, and $3,000 in punitive damages. Respondent then filed a request for attorney's fees under 42 U.S.C. 1988, which provides that a prevailing party in a 42 U.S.C.1983 action may be awarded attorney's fees "as part of the costs." The claimed attorney's fees included fees for work performed prior to the settlement offer. The District Court declined to award these fees pursuant to Federal Rule of Civil Procedure 68, which provides that if a timely pretrial offer of settlement is not accepted and "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 Court of Appeals reversed the District Court's decision.  Petitioners appealed the decision of the Court of Appeals for the Seventh Circuit and the United States Supreme Court reviewed the case again.
B. Counsel of Record:
Opposing Side
Victor J. Stone argued the cause for respondent. On the brief was James D. Montgomery.
Donald G. Peterson argued the cause for petitioners. With him on the brief was Elizabeth Hubbard.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the Alliance for Justice by Laura Macklin; for the American Civil Liberties Union, et al., by Roger Pascal, Burt Neuborne, E. Richard Larson, and Harvey Grossman; for the Lawyers' Committee for Civil Rights Under Law by Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, Norman J. Chachkin, Harold R. Tyler, Jr., and Sara E. Lister; for the Committee on the Federal Courts of the Association of the Bar of the City of New York by Sheldon H. Elsen, Michael W. Schwartz, Sidney S. Rosdeitcher, Edmund H. Kerr, and John G. Koeltl; and for the NAACP Legal Defense and Educational Fund, Inc., by Barry L. Goldstein, Julius LeVonne Chambers, and Charles Stephen Ralston.
Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Deputy Assistant Attorney General Kuhl, Katheryn A. Oberly, Robert S. Greenspan, and Barbara S. Woodall.

Additional briefs of amici curiae urging reversal were filed for the State of Florida by Attorney General Jim Smith, and Assistant Attorneys General Mitchell, D. Franks, Linda K. Huber, and Bruce A. Minnick; for the City of New York by Frederick A. O. Schwarz, Jr., Leonard Koerner, Ronald E. Sternberg, Evelyn Jonas, and John P. Woods; and for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby. 

"At the time an offer is made, the plaintiff knows the amount in damages caused by the challenged conduct. The plaintiff also knows, or can ascertain, the costs then accrued. A reasonable determination whether to accept the offer can be made by simply adding these two figures and comparing the sum to the amount offered. Respondent is troubled that a plaintiff will not know whether the offer on the substantive claim would be exceeded at trial, but this is so whenever an offer of settlement is made. In any event, requiring itemization of damages separate from costs would not in any way help plaintiffs know in advance whether the judgment at trial will exceed a defendant's offer...

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 congressional intent' required 'to exempt [the] statute from the operation of" Rule 68... We hold that petitioners are not liable for costs of $139,692 incurred by respondent after petitioners' offer of settlement.”

Held: The judgment of the Court of Appeals is reversed
Justice Vote: 3 Pro vs.  6 Con
  • Burger, W. Con (Wrote majority opinion)
  • White, B. Con (Joined majority opinion)
  • Powell, L. Con (Wrote concurring opinion)
  • Rehnquist, W. Con (Wrote concurring opinion)
  • Stevens, J. Con (Joined majority opinion)
  • O’Connor, S., Con (Joined majority opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Blackmun, H. Pro (Joined minority opinion)
  • Marshall, T. Pro (Joined minority opinion)

The ACLU filed as amicus urging affirmance; the United States Supreme Court reversed the ruling of the Court of Appeals for the Seventh Circuit in a 6-3 vote, giving the ACLU an apparent loss.