The opinion
July 20, 1977
77-42 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL,
ANTITRUST DIVISION
Compensation of Court-Appointed Expert Witnesses
(United States v. R.J. Reynolds Tobacco Company)
This is in response to your request for our opinion regarding the
United States’ obligation, if any, to compensate court-appointed expert
witnesses.1 A brief march through some of the history of the matter
that raises the question should prove helpful.
In the pending case of United States v. R.J. Reynolds Tobacco Co., the
district court, pursuant to Rule 706 of the Federal Rules of Evidence,
appointed an expert witness. Initially, the court ruled that the Gover-
ment would pay 50 percent o f the expert witness’ compensation and the
two defendants would pay 25 percent each, with a final allocation of
cost to be made at the conclusion of the litigation. The Antitrust
Division referred the order appointing the expert witness to this Office
for review and advice. We advised that “the Order in the present case
meets the formal requirements for application of Rule 706.” However,
it was concluded that the duties involved were not “substantially and
essentially those of an expert witness” and that the “fees and expenses”
of the witness “for the performance of his functions under the instant
order [were] not properly chargeable to the parties under Rule 706.” 2
The court was informed of our opinion, whereupon the trial judge
threatened dismissal if the Government did not agree to pay its share of
1 It should be noted th at Federal Rule o f C ivil P rocedure 54(d), and 28 U.S.C. §§ 1821,
1920 and 2412 are peripherally raised in this m atter. Rule 54(d) provides that costs against
the U nited States shall be imposed only to the extent perm itted by law. 28 U.S.C. § 2412
p rovides th at the U nited States shall be liable for a ju d gm ent for costs as enum erated in
28 U.S.C. § 1920. T h e latter section does allow for fees o f witnesses; how ever, 28 U.S.C.
§1821 seems to limit such fees to subsistence and m ileage, and it makes no distinction
betw een an expert w itness and a re g u la r witness. T h e co u rts have confirm ed this interpre
tation. See, e.g., Harrisburg Coalition Against Ruining the Environment v. Volpe, 65 F.R .D .
608, 610 (D . Pa. 1974). Thus, if a c o u rt can require the U nited States to pay a share or all
o f a court-appointed expert witness’ com pensation, its p o w er must be found in Rule 706.
’ T h e do ctrin e o f sovereign im m unity was not raised in the D ivision’s inquiry o f last
year o r in o u r response thereto.
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the expert witness’ compensation. Apparently, this Office was informed
of the court’s position and, according to the Antitrust Division, orally
authorized payment.3
The case has now reached the stage where final allocation of costs
will be made, and the question asked is “whether the Division should
invoke the doctrine of sovereign immunity either in an attempt to
recover payments already made or to resist an anticipated attempt by
the defendants to tax the cost of the court’s expert witness completely
to the United States.” For the reasons set forth below, we conclude
that the word “parties,” as used in Rule 706, includes the United States.
The Federal Rules of Evidence are the culmination of many years of
study, which began in 1961 with the appointment of an advisory com
mittee to study the advisability and feasibility of uniform rules of
evidence for use in the Federal courts. They became effective in June
1975, with their stated congressional purpose “to secure fairness in
administration, elimination of unjustifiable expense and delay, and pro
motion of growth and development of the law of evidence to the end
that the truth may be ascertained and proceedings justly determined.” 4
Any construction that we give these Rules should attempt, if at all
possible, to carry out the stated congressional purpose.5
It has been stated that Rule 706 recognizes the inherent power of a
trial judge to appoint an expert of his own choosing.6 That may be
true, but an expert appointed pursuant to Rule 706 has characteristics
uncommon to a court’s expert; he is also an expert for the parties.7 For
example, the expert witness is required to advise the parties of his
findings; he may be called to testify by the court or any party; and he is
subject to cross-examination by each party, including a party calling
him as a witness. Such an expert witness is, to all intents and purposes,
an employee of the court, the plaintiff, and the defendant, and the
compensation provision of Rule 706 recognizes this.
Subsection (b) provides that the court-appointed expert witness’ com
pensation is to be:
payable from funds which may be provided by law in criminal
cases and civil actions and proceedings involving just compensa
tion under the Fifth Amendment. In other civil actions and pro
ceedings the compensation shall be paid by the parties in such
3 R ather than authorizing paym ent, w e took the position that o u r Office had given its
legal advice and that the decision to pay was the A ntitrust D ivision’s to make.
• Rule 102.
‘ See. e.g., United Shoe Workers o f American, A F L -C IO v. Bedell, 506 F. 2d 174, 187-
188 (D .C . Cir. 1974); March v. United States, 506 F. 2d 1306, 1314 (D.C. Cir. 1974).
• T he A dvisory C om m ittee's N ote to Rule 706 cites Scott v. Spanjer Bros., Inc., 298 F.
2d 928 (2d Cir. 1962), and Danville Tobacco Assn. v. Bryant-Buckner Associates, Inc., 333
F . 2d 202 (4th Cir. 1964), to support the proposition' th at the trial judge has the inherent
pow er to appoint his ow n expert witness.
7 R ule 706 also perm its the trial ju d g e to request the parties to submit nom inees and
allow s him to appoint any expert witnesses agreed upon b y the parties.
169
proportion and at such time as the court directs, and thereafter
charged in like manner as other costs.
W hether the United States can be charged the cost of a court-appointed
expert witness in the latter class o f actions, is the question we address.
As will be seen from the discussion that follows, the present matter
does not fit smoothly into the kinds o f legal disputes where the doctrine
o f sovereign immunity has traditionally been invoked. The doctrine is
generally invoked to prevent private parties from using the judicial
process to restrain the Government from acting, to compel it to act, or
to collect monies from the public treasury. The doctrine is, in effect, a
prohibition against private parties suing the United States without its
consent. As matters now stand, that is not the posture of the present
case.8 In Larson v. Domestic & Foreign Commerce Corp.,9 the Supreme
Court articulated the doctrine’s rationale. The Court stated:
There are the strongest. reasons of public policy for the rule that
such relief cannot be had against the sovereign. The Government,
as representive of the community as a whole, cannot be stopped in
its tracks by any plaintiff who presents a disputed question of
property or contract right. As was early recognized, “the interfer
ence o f the courts w ith the performance o f the ordinary duties of
the executive departments of the government would be productive
o f nothing but mischief . . . .” 10
Thus developed the rule that generally a court cannot entertain an
action against the United States without specific authority, and it is said
that sovereign immunity must be expressly waived and that “ [wjaiver
by implication will not be endorsed.” 11 This latter principle, however,
has never been universally accepted It is a presumptive axiom of
declining followers rather than a rule of law .12
How ever, the doctrine o f sovereign immunity, like its “associated
doctrines,” is not without exceptions.13 In his article on sovereign
immunity, Roger C. Cramton (formerly Assistant Attorney General,
Office of Legal Counsel) notes that historically there have been many
reasons advanced for the doctrine, but that “ [t]he only rationale for the
doctrine that is now regarded as respectable by courts and commenta
° If in its final allocation of costs and expenses, the c o u rt requires the U nited States to
pay p a rt o r all o f the court-appointed expert w itness’ com pensation and the U nited States
refuses, it is possible th a t the expert witness m ay institute an action to com pel the United
S tates to pay.
B337 U.S. 682 (1949).
10 Id. a t 704.
11 Vincenti v. United States. 470 F. 2d 845, 848 (10th Cir. 1972).
11 See, Littell v. Morton, 445 F. 2 d 1207, 1213-14 (4th Cir. 1971); Frederick v. United
States, 386 F . 2d 481, 488 (5th Cir. 1967); and cases cited in note 13, infra.
13 See, e.g., Larson v. Domestic <& Foreign Commerce Corp., supra, note 9, 337 U.S. at
703-04; Dugan v. Rank, 372 U.S. 609, 621-622 (1963); FHA v. Burr. 309 U.S. 242, 245
(1940); White v. Bloomberg, 501 F. 2 d 1379, 1385 (4th Cir. 1974); Kletschka v. Driver, 411
F . 2d 436, 445 (2nd C ir. 1969); United States v. Moscow-Idaho Seed Co., Inc., 92 F . 2d 170,
173 (9th C ir. 1937).
170
tors alike is that official actions of the Government must be protected
from undue judicial interference.” 14 The doctrine, as one court so
crisply pointed out, “is wearing thin,” 15 and its protective walls were
further eroded by the last Congress with the enactment of Public Law
94-574.18 In sum, we think that as a general rule the doctrine of
sovereign immunity is to be invoked where judicial proceedings will
result in “substantial bothersome interference with the operation of
government.” 17
Using the counsel of the Supreme Court in Larson, we do not believe
that the established judicial reasons for invoking the doctrine are com
pelling in the instant m atter.18 The compensation of court-appointed
expert witnesses certainly will not cause the Department of Justice to
be “stopped in its tracks” in enforcing the antitrust laws. Indeed, the
stated congressional purpose of the Federal Rules of Evidence is just
the opposite.19 However, our conclusion does not rest on that single
foundation. In our opinion, even when the other accepted judicial
reasons for invocation of the doctrine are tested against the instant
matter, the result must be the same.
As noted earlier, there are exceptions to the doctrine. For example, it
has been stated “that when the sovereign sues it waives immunity as to
claims of the defendant which assert matters in recoupment—arising
out of the same transaction or occurrence which is the subject matter
of the Government’s suit . . . Given this judicial ruling and the
fact that the doctrine is generally invoked to prevent a court from
entertaining a case,31 rather than from resolving an issue once the case
is properly before the court, it would appear that invocation of the
doctrine in the present matter is inappropriate. H ow ever, the axiom that
once the Government sues it submits itself to “the nature and appropri
ate incidents o f legal proceedings,” has not been the only pronounce
ment. In United States v. Chemical Foundation,n the Court stated that
“[t]he general rule is that, in absence of a statute directly authorizing it,
courts will not give judgment against the United States for costs or
expenses.” 23 Thus, the case law seems to say that the mere fact that the
14 Cram ton, N onstatutory R eview o f Federal A dm inistrative A ction: T h e N eed for
Statutory Reform o f Sovereign Im m unity, Subject M atter Jurisdiction, and Parties D e
fendant, 68 Mich. L. R ev. 389, 397 (1969-70).
15 Estrada v. Ahrens, 296 F. 2d 690, 698 (5th Cir. 1961).
" T h i s act makes it considerably easier for private parties to seek judicial review o f
Federal adm inistrative agehcy actions.
17 Littell v. Morton, supra, note 12, 445 F . 2d at 1214. See also, Larson v. Domestic &
Foreign Commerce Corp.. supra, note 9, 337 U.S. at 704.
■•/<£
” See text, supra, a t note 4.
” Frederick v. United States, supra, note 12.
•* T he case law suggests that the controlling principle behind this ancient d octrine is to
prevent the courts from entertaining actions initially o f the kind that w ould interfere w ith
the G overnm ent’s carrying out its ordinary duties o f public adm inistration, ra th e r than to
protect itself against rulings o f th e court once a case is properly before the court.
“ 272 U.S. 1 (1926).
*>/<£ at 20.
171
Government has entered the courthouse and submitted to the court’s
jurisdiction, is not enough where costs or expenses are an issue; there
must be a statute authorizing payment.
We think that Rule 706, on its face, clearly waives the presumption
against the United States’ suability and authorizes payment for the
compensation of court-appointed expert witnesses. Indeed, any other
interpretation would strike a crippling blow to this Rule. Fundamental
to statutory construction is the principle that absent a contrary indica
tion, words will be read according to their common usage. The word in
question here is “parties.” We should pause to note at this point that
the terms “United States” and “Federal Government” are not used in
Rule 706.
Subsection 706(b) establishes two categories of cases for determining
how court-appointed expert witnesses are to be compensated. First, are
expert witnesses appointed in criminal and condemnation cases, as to
which compensation is “payable from funds which may be provided by
law ”? Although, the Federal Government is not mentioned by name, it
is clear that the Government is to pay from appropriated funds24 the
entire cost o f court-appointed expert witnesses in this class of cases.25 In
the very next sentence the second category is established by the lan
guage: “In other civil cases the compensation shall be paid by the
parties in such proportion and at such time as the judge directs . . . .”
W e think that the term “parties” as used in the quoted language
comports with common legal usage, and that common legal usage
includes the United States.26
The m atter we thresh o u t here is somewhat analogous to the legisla
tive directive the court faced in United States v. Friedman.27 In that
case a bank sought reimbursement for the cost of complying with an
Internal Revenue Service summons. The court stated:
'We conclude that from the very fact that enforcement of a § 7602
summons is by § 7604(b) entrusted to the judiciary, this court has
the power to fashion appropriate rules as to the fairness of the
enforcement order. * * *>. We conclude that the district court
possessed the power to require the Government to reimburse the
24 W ithin this first category a re tw o means for paying court-appointed expert witnesses
fees. In crim inal cases, the expert witness is to be com pensated from funds appropriated
to the A dm inistrative Office o f th e U nited States C ourts for the expenses o f m aintenance
o f the courts. In condem nation cases the expert witnesses fees are to be paid from the
general operating funds of the a g en c y initiating and litigating the action.
15 T h e A dvisory Committee N o te to Rule 706 states that: “T h e special provision for
F ifth A m endm ent compensation cases is designed to guard against reducing constitution
ally guaranteed ju st com pensation by requiring the recipient to pay costs.”
26 See 18 U.S.C. §§203, 205, a n d 207, w hich identify the United States as a “ party.” It
w ould appear th at the United S tates is a p a rty in m ore judicial proceedings than any
o th er single party.
27 532 F. 2d 928 (3rd Cir. 1976).
172
bank for the reasonable cost of production of the requested bank
records.28
So it is in the present matter; not only is it a clear implication from the
statute that Congress intended the term “parties” to include the United
States, but also that the establishment of the duties and responsibilities
of court-appointed expert witnesses, the amount of compensation, and
the proportions the parties are to pay such expert witnesses are matters
entrusted to the judiciary.
Moreover, the cost attending a court-appointed expert witness cannot
be compared to the situation where a party is attempting to have the
cost of his own expert witness charged to the Government.29 When a
party selects his own expert witness, the attending cost is a result of
independent action, whereas the cost resulting from a court-appointed
expert witness, in the main, is occasioned by judicial action. In the
latter situation, cost is more akin to a docket fee, fees of the clerk and
marshal, or fees of the court reporter.30 The effect of Rule 706 is to
make the cost of court-appointed expert witnesses a necessary expense
of litigation, an expense as to which sovereign immunity cannot serve
as a protective shield.31 In sum we think that compensation for a court-
appointed expert witness is fundamentally different from payment to an
opposing party for the expense of his own expert witness.32 And we
think Congress recognized this by requiring the United States to pay
the entire cost for such expert witnesses in condemnation cases.33
One of the most salient reasons for enacting the Federal Rules of
Evidence was to ensure that the judiciary shall function properly. As
we noted earlier, if Rule 706 is construed as not requiring the G overn
ment to pay its fair share of the cost for court-appointed expert w it
nesses, it could frustrate the congressional purpose. It would undoubt
edly discourage a trial judge from appointing an expert witness where
the Government is a party. Courts are unlikely to embrace enthusiasti
cally such an inequitable interpretation' of the Rule. Indeed, in the
present case the trial judge threatened to dismiss the action unless the
Government agreed to pay its fair share.
We conclude that the doctrine of sovereign immunity cannot be
invoked either to recover payments already made or to resist a defend
“ Id. at 937.
” Subsection (d) of Rule 706 states: “ N othing in this rule limits the parties in calling
expert witnesses o f their ow n selection.”
“ 28 U.S.C. §§ 1920 and 2412 allow judgm ents for costs against the United States for
docket fees, fees o f the clerk and m arshal, and fees o f the court reporter.
51 In United States v. Ringgold, 8 Peters 150, 162 (1834), the C ourt stated “ that no co u rt
can give a direct judgm ent against the United States for costs, in a suit to w hich they are
a party, either on behalf o f any suitor, or any officer o f the governm ent. B ut it by no
means follows from this, that they . . . are not liable for their own costs. ” [Emphasis added.]
M See, e.g., Sperry Rand Corporation v. A-T-O, Inc., 58 F.R .D . 132, 137 (D .V a., 1973).
33 T he U nited States is not required to com pensate an expert witness o f the landow ner’s
ow n choosing. This was also the law prior to Rule 706. See, e.g.. United States v.
Easement and Right-of-Way, 452 F. 2d 729 (6th Cir. 1971).
173
ant’s attempts to charge the cost of the expert witness completely to the
United States on the basis of sovereign immunity. We think the law,
public policy, and fundamental fairness, as well as logic, dictate this
conclusion. To say that this is a proper case to invoke the doctrine of
sovereign immunity would be to allow legal gymnastics to triumph
over the congressional purpose of the Federal Rules of Evidence.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
174