## Facts

- Alfred W. Chesny sued Chicago police officers under 42 U.S.C. § 1983 and related provisions, alleging unconstitutional excessive force arising from the fatal shooting of his adult son during a domestic-disturbance response.
- Chesny also asserted a pendent state wrongful-death claim.
- Before trial, defendants served a Fed. R. Civ. P. 68 offer of judgment for $100,000, expressly stating it included then-accrued “costs and attorney’s fees.”
- Chesny rejected the offer and proceeded to trial.
- The jury returned a total award of $60,000: $52,000 under § 1983, $5,000 on the state claim, and $3,000 in punitive damages.
- Chesny sought attorney’s fees under 42 U.S.C. § 1988 as a prevailing party.
- The district court awarded roughly $32,000 in pre-offer fees but denied post-offer fees, reasoning that Rule 68 shifted post-offer “costs” to the offeree when the judgment was less favorable than the offer, and treated § 1988 fees as “costs.”

## Issues

1. Whether a Rule 68 offer of judgment in a § 1983 case may validly specify that it includes attorney’s fees.
2. Whether Rule 68 permits denial of a prevailing civil-rights plaintiff’s post-offer attorney’s fees otherwise available under 42 U.S.C. § 1988 when the plaintiff’s judgment is less favorable than the offer.
3. Whether interpreting Rule 68 to bar post-offer § 1988 fees would impermissibly alter rights conferred by § 1988 under the Rules Enabling Act.

## Decision

- The Seventh Circuit affirmed the award of pre-offer attorney’s fees.
- The Seventh Circuit reversed the denial of post-offer attorney’s fees and remanded for calculation of reasonable post-offer fees.
- The court held that Rule 68 offers may be inclusive of attorney’s fees, but Rule 68 does not authorize cutting off a prevailing plaintiff’s statutory fee recovery under § 1988.
- The court relied on the distinction between “costs” and “attorney’s fees,” § 1988’s enforcement purpose, and the Rules Enabling Act.
- Subsequent history: the Supreme Court later reversed, holding that when the substantive statute defines attorney’s fees as part of “costs” (as § 1988 does), those fees are “costs” for Rule 68 purposes and are not recoverable post-offer if the judgment is less favorable than the offer.

## Legal Principles

- A Rule 68 offer may be drafted to include attorney’s fees, but its effect depends on how “costs” operate in the relevant statutory scheme.
- In the Seventh Circuit’s view in this case, “costs” in Rule 68 did not include § 1988 attorney’s fees in a manner that would defeat a prevailing plaintiff’s fee recovery.
- Section 1988 is intended to facilitate private enforcement of civil-rights laws by shifting reasonable attorney’s fees to defendants when plaintiffs prevail.
- Under the Rules Enabling Act, the Federal Rules of Civil Procedure should not be interpreted to modify substantive rights; the Seventh Circuit treated post-offer § 1988 fee entitlement as protected against displacement by Rule 68.
- Controlling rule after reversal: where a fee-shifting statute defines attorney’s fees as part of “costs,” Rule 68’s post-offer cost-shifting includes those fees, barring recovery of post-offer fees when the judgment does not exceed the offer.

## Conclusion

The Seventh Circuit held that Rule 68 could not be used to deny a prevailing § 1983 plaintiff reasonable post-offer attorney’s fees under § 1988, despite a rejected offer exceeding the judgment, because doing so would conflict with § 1988’s purpose and impermissibly affect statutory rights; the Supreme Court later rejected that approach and treated § 1988 fees as Rule 68 “costs” that are not recoverable post-offer when the judgment is less favorable than the offer.


Chesny v. Marek, 720 F.2d 474 (7th Cir. 1983)