447 U.S. 752 (1980), 79-701, Roadway Express, Inc. v. Piper

Docket Nº:No. 79-701
Citation:447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488
Party Name:Roadway Express, Inc. v. Piper
Case Date:June 23, 1980
Court:United States Supreme Court

Page 752

447 U.S. 752 (1980)

100 S.Ct. 2455, 65 L.Ed.2d 488

Roadway Express, Inc.



No. 79-701

United States Supreme Court

June 23, 1980

Argued April 15, 1980




Respondents were counsel for the plaintiffs in a civil rights class action in Federal District Court against petitioner alleging that its employment policies discriminated on the basis of race. Because respondents failed to comply with orders relating to discovery and the filing of briefs, petitioner moved to dismiss the suit and requested an award of attorney's fees and court costs under Federal Rule of Civil Procedure 37. The District Court dismissed the action with prejudice and ordered respondents [100 S.Ct. 2457] to pay petitioner's costs and attorney's fees for the entire lawsuit. The court found justification for its ruling in the confluence of the civil rights statutes, 42 U.S.C. §§ 1988, 2000e-5(k), which allow the prevailing party to recover attorney's fees "as part of the costs" of litigation, and 28 U.S.C. § 1927, which permits a court to tax the excess "costs" of a proceeding against a lawyer "who so multiplies the proceedings . . . as to increase costs unreasonably and vexatiously. . . ." However, the Court of Appeals vacated and remanded, holding that respondents were not liable for attorney's fees and rejecting the view that the civil rights statutes could be read into § 1927.


1. Title 28 U.S.C. § 1927 cannot be read to support the sanction of taxing attorney's fees against counsel who unreasonably extend court proceedings, by defining the term "costs" therein according to the civil rights statutes as including attorney's fees. Pp. 757-763.

(a) It may be assumed that, when the first version of § 1927 was enacted in 1813, Congress followed the "American rule" that attorney's fees ordinarily are not among the "costs" that a winning party may recover. In an 1853 statute, Congress substantially reenacted the provisions now codified in § 1927 as part of a uniform, comprehensive measure setting the fees and costs for all federal actions. The history of the 1853 Act suggests that § 1927 should be read together with the provisions currently codified in 28 U.S.C. § 1920 which, without including attorney's fees, enumerate the costs that ordinarily may be taxed to a losing party. Moreover, petitioner offered no evidence that Congress intended to incorporate into § 1927 the attorney's fee provisions of 42 U.S.C. §§ 1988, 2000e 5(k), which do not mention attorney liability for costs and fees. Pp. 759-761.

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(b) The statutory interpretation proposed by petitioner could introduce into § 1927 distinctions unrelated to its goal of controlling abuses of judicial processes. The fee provisions of the civil rights laws are sensitive to the merits of the action and to antidiscrimination policy, restrict recovery to prevailing parties, and have been construed to treat plaintiffs and defendants somewhat differently. In contrast, § 1927 does not distinguish between winners and losers or between plaintiffs and defendants, and is indifferent to the equities of a dispute and to the values advanced by the substantive law. Moreover, petitioner's statutory construction would create an unjustifiable two-tier system of attorney sanctions whereby lawyers in cases brought under statutes permitting the award of attorney's fees would face stiffer penalties for prolonging litigation than would other attorneys. Pp. 761-763.

2. Rule 37(b)'s sanctions for failure to comply with discovery orders, including holding parties and counsel personally liable for expenses, "including attorney's fees," must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction and to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639. On remand, the District Court will have the authority to act upon petitioner's request for costs and attorney's fees under Rule 37(b). Pp. 763-764.

3. In narrowly defined circumstances, federal courts have inherent power to assess attorney's fees against counsel. The general rule is that a litigant cannot recover his counsel fees, but that rule does not apply when the opposing party has acted in bad faith, including bad faith in the conduct of the litigation. In view of a court's power over members of its bar, if it may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes. In this case, the trial court did not make a specific finding as to whether counsel's conduct constituted or was tantamount to bad faith, a finding [100 S.Ct. 2458] that should precede any sanction under the court's inherent powers. Pp. 764-767.

599 F.2d 1378, affirmed and remanded.

POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, and MARSHALL, JJ., joined; in Parts I, II, and IV of which STEWART and REHNQUIST, JJ., joined; in all but Part II-A and the first sentence of Part IV of which BLACKMUN, J., joined; and in Part II-B of which STEVENS, J., joined. BLACKMUN, J., post, p. 768, and STEVENS, J., post, p. 769, filed opinions concurring in part and dissenting in part. BURGER, C.J., filed a dissenting opinion, post, p. 771.

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POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

This case presents the question whether federal courts have statutory or inherent power to tax attorney's fees directly against counsel who have abused the processes of the courts.


In June, 1975, two former employees and one unsuccessful job applicant brought a civil rights class action against petitioner Roadway Express, Inc. (Roadway). The complaint, filed in the United States District Court for the Western District of Louisiana, alleged that Roadway's employment policies discriminated on the basis of race, and asked for equitable relief.1

Counsel for the plaintiffs -- Robert E. Piper, Jr., Frank E. Brown, Jr., and Bobby Stromile -- are the respondents in the present case. In September, 1975, respondents served interrogatories on Roadway. Having secured an extension from the District Court, Roadway answered the interrogatories on January 5, 1976, and served its own set of interrogatories at the same time. Thereafter, however, the litigation was stalled by respondents' uncooperative behavior.

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On April 13, 1976, Roadway moved for an order compelling answers to its interrogatories. The motion was set for argument on the morning of April 21, but counsel for the plaintiffs did not appear. They did attend a rescheduled hearing that afternoon, and the Magistrate ordered that the interrogatories be answered by May 24. Respondents ignored that deadline and, in fact, never answered the interrogatories. Roadway also served notice in April that it would take depositions from all three plaintiffs in early May. One of the plaintiffs did not appear on the appointed days, however, and he never was deposed.

The respondents showed no greater respect for the orders of the District Court than for the requests of their adversaries. On April 7, the court instructed counsel for both sides to file briefs evaluating the impact of a recent decision in a related case. Although respondents' brief was due within 10 days, nothing arrived for six weeks. On May 19, the District Court gave respondents 10 additional days to file a brief or face dismissal of the action. No brief was ever submitted.

On June 14, Roadway moved to dismiss the suit under Federal Rule of Civil Procedure 37.2 Roadway also requested an award of attorney's fees and court costs. On June 30, the District Court heard argument and dismissed the action with prejudice. A second hearing, limited to the question of costs and attorney's fees, was held in October, 1976.

The District Court's opinion sharply criticized the respondents for their "deliberate inaction" in handling the case. Monk v. Roadway Express, Inc., 73 F.R.D. 411, 417 (1977). Observing that respondents apparently had not advised their

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clients that the [100 S.Ct. 2459] suit was a class action, id. at 414, 417, the court concluded that the three lawyers "improvidently enlarged and inadequately prosecuted" the action, id. at 417. As a sanction, the court ordered them to pay Roadway's costs and attorney's fees for the entire lawsuit. The total assessment exceeded $17,000. Monk v. Roadway Express, Inc., 599 F.2d 1378, 1381 (CA5 1979).

The District Court found justification for its ruling in the confluence of several statutes. The civil rights statutes allow the prevailing party to recover attorney's fees "as part of the costs" of litigation. See 42 U.S.C. §§ 1988, 2000e-5(k). And 28 U.S.C. § 1927 permits a court to tax the excess "costs" of a proceeding against a lawyer "who so multiplies the proceedings . . . as to increase costs unreasonably and vexatiously. . . ."3 Read together, the District Court concluded, the statutes authorize the assessment of costs and attorney's fees against respondents.

The United States Court of Appeals for the Fifth Circuit found no clear error in the ruling that respondents had violated § 1927. 599 F.2d at 1381. The appellate court held, however, that respondents were not liable for attorney's fees. It rejected the District Court's view that the civil rights statutes can be read into § 1927. The civil rights laws, the court wrote, "provide for attorneys' fees awards against unsuccessful parties to a suit, and they focus on actions which are frivolous, unreasonable, and baseless. . . ." 599 F.2d at

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1383 (emphasis in...

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