Opposition Brief — Gilbert v. City of Little Rock

Supreme Court, U.S.

FILED

JUN 20 1989

. SPANIOL, JR.

JOS! CLERK

In The Le

No. 88-1886

Supreme Court of the United States

October Term, 1988

—_@— -

OHNNIE GILBER

IR¢ A K, 4

Rest ,

IN }

’=

On The Petition For Writ of Certiorari

[o The United States Court of Appeals

For The Eighth Circuit

a >> ——

RESPONDENTS’ BRIEF IN OPPOSITION

MARK STODOLA*

City Attorney

EDWARD G. ADCOCK

Assistant City Attorney

Room 310, City Hall —

Little Rock, Arkansas 722

(561) 371-4527

, 4 ) a Mma oe

Counsel for Respondents

* Counsel of Record

QUESTIONS PRESENTED

|

WHETHER, IN A CIVIL RIGHTS CASE WHEREIN A

PREVAILING PLAINTIFF IS ENTITLED TO AN AWARD

OF ATTORNEY’S FEES UNDER § 706 OF TITLE VII OF

THE CIVIL RIGHTS ACT OF 1964 OR THE CIVIL

RIGHTS ATTORNEY’S FEES AWARDS ACT OF 1976,

ABSENT EXPLICIT STATUTORY OR CONTRACTUAL

AUTHORIZATION FOR THE TAXATION OF A LITI-

GANT’S WITNESSES AS COSTS, FEDERAL COURTS

ARE BOUND BY THE LIMITATIONS SET OUT IN 28

U.S.C. § 1821 AND § 1929.

I]

WHETHER THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT CCRRECTLY INTER-

PRETED THIS COURT’S MANDATE IN CRAWFORD FIT-

TING COMPANY V J.T. GIBBONS, INC. AND WHETHER

THE EIGHTH CIRCUIT’S DECISION IN THIS MATTER

IS CONSISTENT WITH THE POST-CRAWFORD DECI-

SIONS OF THE OTHER CIRCUIT COURTS OF APPEAL.

Il]

WHETHER CONGRESS’S USE OF THE PHRASE “REA-

SONABLE ATTORNEY’S FEE AS PART OF THE COSTS”

IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND

THE CIVIL RIGHTS ATTORNEY’S FEES AWARDS ACT

OF 1976 CONSTITUTES EXPLICIT STATUTORY

AUTHORITY FOR THE TAXATION OF EXPERT WIT-

NESS FEES AGAINST A NON-PREVAILING DEFEN-

DANT IN A CIVIL RIGHTS CASE.

il

TABLE OF CONTENTS

Page

Question Presented . .60.4.-. 4430. i

Tate of Authorities ..5..1 02 0 Aes ee iii

Opinions Below « ...5.62o0 39 90s 1

PUTISGEICIIOR. 6 69a lc tee e eeeeeeee 2

Reasons for Denying the Writ . .....535.-20 52 see 2

Statement of the Case. 7... ...345-53 eee 2

Statutory Provisions Involved...................... 4

ATQUINONE 655 555d Roe ao oe 5

COMCTISION 6 55535355 4s a 17

iil

TABLE OF AUTHORITIES

Page

CASES:

Crawford Fittings Co. v. ].T. Gibbons, Inc., 482 U.S.

437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987)..... passim

Boring v. Kozaktewicz, 833 F.2d 468 (3rd Cir. 1987) ..... 6

Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir.

a RE 10

International Woodworkers of America v. Champion

International Corp., 790 F.2d 1174 (5th Cir. 1986)

SS a 9, 10, 16

Leroy v. City of Houston, 831 F.2d 576 (5th Cir. 1987) .... 10

Glenn v. General Motors Corp., 841 F.2d 1567 (11th

ee ieee k bs see cceeas 10, 12

Sapanajin v. Gunter, 857 F.2d 463 (8th Cir. 1988)..... 12

Sevigny v. Dicksey, 846 F.2d 953 (9th Cir. 1988)....... 6

Black Grievance Committee v. Philadelphia Electric

Ce, a7 rer Cases 215 (E.D. Pa. 1988)............. 12

ECOS, Inc. v. Brinegar, 671 F. Supp. 381 (M.D. N.C.

Gey oy be ck caw ne ses ersee carr sceses 6

United States v. Yonkers Board of Education, 118

ES Ee a 3 ar 12

STATUTES:

Rule 54(d), Federal Rules of Civil Procedure ..4, 13, 14

Se 2

I OS re passim

28 U.S.C. eg OK xis sx o'r 6 8 ghie vo nes os passim

gS 11

iv

TABLE OF AUTHORITIES - Continued

Page

Oe Us Oe a ca ea a ee ees een e cone nae 10, 11

ee Bs ena ent Pe Ree hee re ea ae passim

Oe SAR. ase pease ee shew e ens een passim

MISCELLANEOUS:

122 Cong. Rec. 35123 (1976) ....... 000 cc cece cece eee 15

S. Rep. No. 1011, 94th Cong. 2nd Sess., reprinted

in U.S. Code Cong. & Adm. News at p. 5913..... 16

No. 88-1886

In The

Supreme Court of the United States

October Term, 1988

a

vy

JOHNNIE GILBERT, et al.,

Petitioners,

VS.

CITY OF LITTLE ROCK, et al.,

Respondents.

a

ww

On The Petition For Writ of Certiorari

To The United States Court of Appeals

For The Eighth Circuit

y™

a4

RESPONDENTS’ BRIEF IN OPPOSITION

a

bd

Respondents, City of Little Rock, Arkansas, et al.,

respectfully request that this Court deny the Petition for

Writ of Certiorari seeking to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit.

7%

4

OPINIONS BELOW

The pertinent opinions below are included in the

Appendix. The Memorandum Opinion of the District

1

Court limiting Petitioners to recovery of $30.00 per day of

testimony for out-of-pocket expert witness fees is

included in the Appendix, pages D-1 through D-12. Gil-

bert v. City of Little Rock, No. LR-C-78-340, slip op. (E.D.

Ark. Aug. 7, 1987) (order), citing, Crawford Fitting Co. v.

].T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d

385 (1987). The decision of the United States Court of

Appeals for the Eighth Circuit, sitting en banc, affirming

the District Court, is also included in the appendix, pages

A-1 and A-2. Gilbert v. City of Little Rock, 867 F.2d 1062

(8th Cir. 1989) (en banc). The panel decision of the United

States Court of Appeals for the Eighth Circuit addressing

the other issues on appeal is also included in the Appen-

dix, pages B-1 through B-11. Gilbert v. City of Little Rock,

862 F.2d 1063 (8th Cir. 1989).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

a

a

REASONS FOR DENYING THE WRIT

The Petition for a Writ of Certiorari should be denied

for the simple reason that the decision of the United

States Court of Appeals is entirely consistent with the six-

member majority’s opinion in Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494 (1987). There is

no conflict among the circuits. Virtually all post-Crawford

decisions of the circuit courts are consistent in applying

the clear mandate of Crawford.

a

a4

STATEMENT OF THE CASE

This case, first filed in 1978, has a long and tortured

history, most of which is irrelevant for purposes of this

appeal. On August 8, 1986 the United States Court of

Appeals for the Eighth Circuit found that the oral inter-

view component in the promotional process for the rank

of sergeant at the Little Rock Police Department had a

discriminatory impact upon black applicants for promo-

tion in the years 1978 and 1979. Gilbert v. City of Little

Rock, 799 F.2d 1210 (8th Cir. 1986). The Board of Directors

of the City of Little Rock decided not to seek a Writ of

Certiorari. Subsequently, upon issuance of the mandate

from the Eighth Circuit, pursuant to the cost-shifting

provisions of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-5(K), and the Civil Rights Attorney’s Fees

Awards Act of 1976, 42 U.S.C. § 1988, petitioners sought

slightly in excess of $350,000.00 in fees and costs, of

which $93,940.69 was for expert witness fees. The District

Court, citing Crawford Fitting Co. v. ].T. Gibbons, Inc., 482

U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), ruled that

Petitioners’ request for expert witness expenses was gov-

erned by the traditional cost-shifting provisions of Rule

54(d) of the Federal Rules of Civil Procedure and 28

U.S.C. § 1821 and § 1920 and, hence, that Petitioners were

limited to recovery of the $30.00-per-day-of-testimony

maximum contained in § 1821. Gilbert v. City of Little Rock,

LR-C-78-340, slip op. (E.D. Ark. Aug. 7, 1987). Appendix

at pages D-1 through D-12. The United States Court of

Appeals for the Eighth Circuit, sitting en banc, affirmed

by the vote of an equally divided Court. Gilbert v. City of

Little Rock, 867 F.2d 1062 (8th Cir. 1989). Appendix at

pages A-1 and A-2.

*

STATUTORY PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

A

§ 2000e-5(K) provides in pertinent part:

In any action or proceeding under this subchapter

the court, in its discretion, may allow the prevailing

party . . . a reasonable attorney’s See as part of the

i

The Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988, provides in pertinent part:

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this title,

title IX of Public Law 92-318, or title VI of the Civil

Rights Act of 1964, the Court, in its discretion, may

allow the prevailing party ... a reasonable attor-

ney’s fee as part of the costs.

Rule 54(d) of the Federal Rules of Civil Procedure pro-

vides in pertinent part:

Except when express provision therefore is made

either in a statute of the United States or in these

rules, costs shall be allowed as of course to the pre-

vailing party unless the Court otherwise directs;

28 U.S.C. § 1821(b) provides in pertinent part:

A witness shall be paid an attendance fee of $30 per

day for each day’s attendance.

28 U.S.C. § 1920 provides in pertinent part:

A judge or clerk of any Court of the United States

may tax as costs the following: ... (3) Fees and

disbursements for printing and witnesses.

a

vv

ARGUMENT

Petitioner’s entire argument is premised upon two

incorrect assumptions. First, they allege that denial of the

Writ in this case will “result in the destruction of the

law’s intent under the Civil Rights Attorney’s Fees

Awards Act... .” Petition at page 5 (Hereafter “Pet. at

__”). Secondly, they say that there is “disagreement

among the various circuits” as to the correct application

of this Court’s opinion in Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385

(1987). Id. Both premises are incorrect. The truth of the

matter is that the Eighth Circuit’s holding in this case is

compelled by the plain language of Crawford. See, Subsec-

tion I, below. Crawford is entirely consistent with the

intent of Congress. See, Subsection III, below. And, with

two minor exceptions at the district court level, all

post-Crawford decisions have consistently and correctly

followed this Court’s direction. See, Subsection II, below.

Il. IN A CIVIL RIGHTS CASE WHEREIN A PREVAIL-

ING PARTY IS ENTITLED TO AN AWARD OF

ATTORNEY’S FEES UNDER § 706 OF TITLE VII OF

THE CIVIL RIGHTS ACT OF 1964 OR THE CIVIL

RIGHTS ATTORNEY’S FEES AWARDS ACT OF

1976, ABSENT EXPLICIT STATUTORY OR CON-

TRACTUAL AUTHORIZATION FOR THE TAXA-

TION OF A LITIGANT’S WITNESSES AS COSTS,

FEDERAL COURTS ARE BOUND BY THE LIMITA-

TIONS SET OUT IN 28 U.S.C. § 1821 AND § 1920.

When reduced to its essence, Petitioner’s basic argu-

ment is simple. They simply refuse to acknowledge that

the plain language of the Crawford majority applies to a

civil rights case. Instead, they focus upon the fact that

this Court has not specifically refused to allow taxation of

expert witness fees as costs pursuant to the cost-shifting

provisions of 42 U.S.C. §§ 1988 and 2000e-5(K). They say:

Although the Supreme Court has construed 54 (d) as

not granting the authority to go beyond the $30 a day

limits of § 1920 and § 1821, the Attorney’s Fees

Award Act 42 USC (§ 1988) has not been so inter-

preted. Likewise, Title VII 42 USC § 2000e-5(K) has

not been interpreted to place limits on expert witness

expense.

Pet. at 5. This is incorrect. Several district and circuit

courts have, applying the clear teaching of Crawford,

refused to tax expert witness fees against non-prevailing

civil rights defendants. Indeed, three of the five cases

touted on Page 8 of the Petition as illustrative of the

courts’ post-Crawford treatment of this issue specifically

refuse to tax expert witness fees under § 1988. Boring v.

Kozakiewicz, 833 F.2d 468, 474 (3rd Cir. 1987), citing Craw-

ford, “A prevailing party in a civil rights case is not

entitled to tax such fees as costs.”; Sevigny v. Dicksey, 846

F.2d 953, 959 (9th Cir. 1988) “... § 1988 does not provide

statutory authority for the awarding of compensation for

non-legal experts.”; and, ECOS, Inc. v. Brinegar, 671 F.

Supp. 381, 404 n.i2 (M.D. N.C. 1987) “The most recent

Supreme Court case on fees for experts supports the

decision in the present case [i.e., not to allow taxation of

such fees]. In Crawford Fitting Co. v. J.T. Gibbons, Inc. . .

the Court held that courts are bound by the limitations

set out in 18 U.S.C. § 1821 and § 1920 ($30-per-day limit)

when taxing expert witness fees as costs against a losing

party. Although the opinion does not specifically address

42 U.S.C. § 1988, it is persuasive authority in this case.”

in point of fact, Crawford is more than just “persua-

sive authority.” The plain language of the six-member

Crawford majority opinion compels the result reached by

the trial judge and the Eighth Circuit in the case at bar.

The Crawford ruling is capsuled in the following passage:

We hold that absent explicit statutory or contractual

authorization for the taxation of the expenses of a

litigant’s witnesses as costs, federal courts are bound

by the limitations set out in 28 U.S.C. § 1821 and

§ 1920.

Crawford, supra, 482 U.S. at __, 107 S.Ct. at 2499. The

language employed by the Crawford majority is clear and

unequivocal. Respondents take it to mean what it says.

Absent “explicit statutory or contractual authorization”

federal courts are not empowered to tax expert witness

fees against a non-prevailing defendant in excess of those

limitations imposed by 28 U.S.C. § 1821 and § 1920.

At this point it is probably as important to take note

of what the Crawford majority did not do. The Court did

not, for example, set aside civil rights cases for special

treatment. The Court did not say — or even imply — that

the words “costs” or “attorney’s fees” are to assume

anything other than their ordinary, plain meaning in the

civil rights context. And, most importantly, the Court did

not say — or even imply — that vague, indirect inferences

gleaned from an act’s legislative history will, in the civil

rights context, substitute for explicit statutory authoriza-

tion for the taxation of expert witness fees.

In this case Petitioners sought an award of fees and

costs pursuant to the cost-shifting provisions of Title VII,

42 U.S.C. § 2000e-5(K), and the Civil Rights Attorney’s

Fees Awards Act, 42 U.S.C. § 1988. (Hereafter

“§ 2000e-5(K)” and “§ 1988”, respectively). The simple,

yet inescapable, fact of the matter is that neither statute

explicitly authorizes the taxation of expert witness fees.

Using identical language, both say simply that “the court,

in its discretion, may allow the prevailing party ... a

reasonable attorney’s fee as part of the costs.” Id.

(emphasis added). That being the case, both the trial

judge and the Eighth Circuit, having no explicit statutory

authorization for the taxation of expert witness fees upon

which to rely, in applying the plain holding of Crawford

found themselves bound by the limitations contained in

the traditional cost-shifting provisions of Rule 54(d), 28

U.S.C. § 1821 and § 1920. Crawford allows no other result.

The Petition for a Writ of Certiorari should be denied for

this reason alone.

II. THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT CORRECTLY INTER-

PRETED THIS COURT’S MANDATE IN CRAW-

FORD FITTING CO. V. J.T. GIBBONS, INC. AND IN

SO DOING REMAINED CONSISTENT WITH THE

POST-CRAWFORD DECISIONS OF THE OTHER

CIRCUIT COURTS OF APPEAL.

As noted in Subsection I, above, the result reached by

the district court and the Eighth Circuit in this matter was

compelled by the simple fact that neither § 1988 nor

§ 2000e-5(k) explicitly authorizes the taxation of expert

witness fees. Petitioners seek to avoid this obvious fact by

pointing to Mr. Justice Blackmun’s Crawford concurrence,

arguing that this result is not compelled for the sole

reason that § 1988 was “not at issue in Crawford.” Pet. ai

6, See, Crawford, supra, 482 U.S. at __, 107 S.Ct. at 2499

(Blackmun, J., concurring); See also, Id., 482 U.S. at __,

107 S.Ct. at 2499-2502 (Marshall, J., dissenting) (joined by

Brennan, J.). Respondents offer two responses. First, the

simple fact of the matter is that the Crawford majority

opinion contains no such delimiting distinction. On its

face, it provides not even a hint that § 1988 or

§ 2000e-5(K) in particular or civil rights cases in general

remain unaffected by its seemingly all-encompassing

rule. Second, it would appear that, in fact, § 1988 was at

issue in Crawford. Certainly, the Fifth Circuit thought so.

It said:

The statutes applicable here, 42 U.S.C. § 1988 and

§ 2000e-5(K), provide for the award for attorneys’

fees to prevailing parties, but make no mention of

excess expert witness fees.

International Woodworkers of America v. Champion Interna-

tional Corporation, 790 F.2d 1174, 1181 (5th Cir. 1986). Even

the oft-quoted Woodworkers concurrence/dissent recog-

nized that § 1988 was at the root of the issue, noting that

“in Woodworkers, a... prevailing party in an employment

discrimination suit requests expert witness fees as a liti-

gation expense incidental to an award of attorney’s fees

authorized by the Civil Rights Attorney’s Fees Awards

Act of 1976, 42 U.S.C. § 1988.” Id., 790 F.2d at 1181 (Rubin,

J., concurring in the result) (joined by Wisdom, Johnson

and Williams, JJ).

In summary, the truth of the matter is that civil rights

cases are not excluded, either explicitly or by implication,

from the scope of the Crawford majority opinion. The rule

of Crawford governs an application for expert witness fees

as litigation expenses under § 1988 and § 2000e-5(K), just

as it governs such applications in other cost-shifting con-

texts. And, because § 1988 and § 2000e-5(K) contain no

explicit authorization for the taxation of expert witness

10

fees in excess of the limits imposed by 28 U.S.C. § 1821

and § 1920, the plain rule of Crawford compels the result

reached by the trial judge and the Eighth Circuit in this

case.

Failing in their effort to distinguish Crawford, Peti-

tioners fall back upon the old conflict-among-the-circuits

shibboleth, when, in fact, no such conflict exists. See, Pet.

at 6-8. In support, they point to the Woodworkers dissent

and Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir.

1983). They fail to note, however, that Dowdell and the

cases cited in the Woodworkers dissent are all pre-Craw-

ford. They do not and, with one non-notable exception,

see, discussion below, cannot point to a single post-Craw-

ford circuit court case wherein expert witness fees were

taxed against a non-prevailing civil rights defendant pur-

suant to § 2000e-5(K) or § 1988. The truth is that the

circuit courts of appeal have consistently interpreted

Crawford to preclude taxation of expert witness fees

absent explicit statutory or contractual authorization.

Leroy v. City of Houston, 831 F.2d 576 (5th Cir. 1987)

and Glenn v. General Motors Corp., 841 F.2d 1567 (11th Cir.

1988) are illustrative. In Leroy, Plaintiffs attacked the con-

stitutionality of the City of Houston’s at-large method of

electing the Houston City Council. They won and, hence,

were “prevailing parties” within the meaning of the cost-

shifting provision of the Voting Rights Act, 42 U.S.C.

§ 1973l(e). The relevant provision of the Voting Rights Act

is, in pertinent part, virtually identical to the cost-shifting

provisions of 42 U.S.C. § 1988 and § 2000e-5(K). It says:

In any action or proceeding to enforce the voting

guarantees of the fourteenth or fifteenth amend-

ments, the Court, in its discretion, may allow the

1]

prevailing party . . . a reasonable attorney’s fee as

part of the costs.

42 U.S.C. § 1973l(e) (Emphasis added). The Fifth Circuit,

citing Crawford, refused to tax excess expert witness fees.

It said:

The second recent controlling development is the

Court’s determination that expert witness fees in

excess of standard per diem and mileage costs may

not be allowed as part of the costs to prevailing

parties under federal fee-shifting statutes unless the

statute explicitly so provides. Crawford Fitting Co. v.

].T. Gibbons, Inc., . . . Although that case expressly

considered whether Fed.R.Civ. Proc. 54(d) could, in

an antitrust case, override the statutory limit on wit-

ness fees, the Court’s general reasoning leaves us no

room to construe the Voting Rights Act provision

here otherwise.

Id. 431 F.2d at 584. In Glenn the Eleventh Circuit (which,

incidentally, is the same court which decided the City of

Apopka case upon which Petitioners rely) did much the

same thing. The Court was faced with a prevailing plain-

tiff’s petition for taxation of expert witness fees under the

cost-shifting provision of the Equal Pay Act, 29 U.S.C.

§ 216(b). In pertinent part, the Act says:

The Court . . . shall, in addition to any judgment

awarded to the plaintiff or plaintiff’s, allow a reason-

able attorney’s fee to be paid by the defendant, and

costs of the action.

Id. While the cost-shifting provision of the Equal Pay Act

varies slightly in language, it shares one important char-

acteristic with the cost-shifting provisions of Title VII and

the Civil Rights Attorney’s Fees Awards Act. It too fails to

explicitly provide for the taxation of expert witness fees.

12

The Eleventh Circuit found this omission to be fatal to

Mr. Glenn’s cause. It said:

We hold that the broad language in Crawford Fitting

does not permit a distinction based upon whether or

not the award is made under a fee-shifting statute.

The broad language in Crawford Fitting indicates that,

although a statute may shift attorney fees, the statute

does not operate to shift witness fees unless the stat-

ute refers explicitly to witness fees.

Glenn, supra, 841 F.2d at 1575 (Emphasis in original).

Clearly, both the Fifth and Eleventh Circuits have cor-

rectly applied the plain meaning of this Court’s Crawford

holding.

The one non-notable exception to the otherwise-

unanimous circuit court treatment of the plain rule of

Crawford is Sapanajin v. Gunter, 857 F.2d 463 (8th Cir.

1988). Though wrongly decided, Sapanajin is of no import

for the simple reason that it is pre-Gilbert and, hence, not

the Eighth Circuit’s latest statement on the issue. Gilbert,

decided some four months after Sapanajin, is now the

“law of the circuit.”

Petitioners also cite two U.S. District Court cases in

their attempt to generate a “split among the circuits.”

Black Grievance Committee v. Philadelphia Electric Company,

47 FEP Cases 215 (E. D. Pa. 1988) and United States v.

Yonkers Board of Education, 118 F.R.D. 326 (S,D. N.Y. 1987).

Neither is persuasive. To begin with, both are wrongly

decided, emphasizing what the district judges want Title

VII and § 1988 to say rather than the plain language of

Crawford and the statutes. And one of them, Black Griev-

ance Committee, is 180° opposite the law of its circuit. See,

Boring, supra.

13

In summary, there is no conflict among the circuits

justifying the granting of a Writ of Certiorari in this case.

The circuits have consistently applied the plain meaning

of Crawford.

III. CONGRESS’S USE OF THE PHRASE “REASON-

ABLE ATTORNEY’S FEE AS PART OF THE

COSTS” IN TITLE VII OF THE CIVIL RIGHTS

ACT OF 1964 AND THE CIVIL RIGHTS ATTOR-

NEY’S FEES AWARDS ACT OF 1976 DOES NOT

CONSTITUTE EXPLICIT STATUTORY AUTHOR-

ITY FOR THE TAXATION OF EXPERT WITNESS

FEES AGAINST A NON-PREVAILING DEFEN-

DANT IN A CIVIL RIGHTS CASE.

Petitioners completely misconstrue one passage in

Crawford. They say:

The Crawford decision states “without plain evidence

of Congressional intent” to supersede § 1821, 1920,

and § 54(d), the court should not exceed the limita-

tions therein. Therefore, the Crawford decision does

not preclude awarding expert witness expense in a

situation where Congress’ intention to allow expert

witness expense is Clear.

Pet. at 6. It is true that the Crawford majority opinion says

“{ajny argument that a federal court is empowered to

exceed the limitations explicitly set out in §§ 1920 and

1821 without plain evidence of congressional intent to

supersede that section ignores our long-standing practice

of construing statutes in pari materia.” Crawfcrd, supra, 482

U.S. at __, 107 S.Ct. at 2499. Petitioners are correct in

their assumption that the limitations contained in § 1821

and § 1920 will not control in the event Congress plainly

demonstrates its intent to tax excess expert witness fees.

What Petitioners fail to grasp, however, is the equally

14

obvious fact that the requisite “plain evidence” of con-

gressional intent should be evident from the face of the

statute — hence, the requirement of “explicit statutory

authority.” Indeed, a mere two sentences above the

above-quoted passage the Court indicated that “[wJe will

not lightly infer that Congress has repealed §§ 1920 and

1821 either through Rule 54(d) or any other provision not

referring explicitly to witness fees.” Id. (Emphasis added).

Petitioners attempt to avoid the obvious ramifica-

tions of this fact by arguing that the legislative history of

the Fees Act evidences the requisite congressional intent,

this despite the fact that such intent did not manifest

itself on the face of the statute. It is true that, from time to

time, there does appear in the legislative history state-

ments to the effect that, if private citizens are to enforce

civil rights statutes, they must be able to recover what it

costs them to vindicate these rights in court. Petitioners

ignore, however, the fact that virtually all of these oblique

references to “costs” or “expenses” occur within the con-

text of a discussion of attorney’s fees. The remarks of

Representative Drinan referred to on Page No. 9 of the

Petition are typical. The passage to which Petitioners

refer reads in its entirety as follows:

... [T]he bill permits the recovery only of a ‘reason-

able’ attorney fee. Here too the courts have identified

a number of factors to determine the reasonableness

of awards. In Johnson versus Georgia Highway

Express, for example, the court enumerated 12 fac-

tors to be considered, including the time and labor

required, the novelty and difficulty of the questions,

the skill needed to present the case, the customary

fee for similar work, and the amount received in

damages, if any. These evolving standards should

15

provide sufficient guidance to the courts in con-

struing this bill which uses the same terrn. I should

add that the phrase ‘attorney’s fee’ would include the

values of the legal services provided by counsel,

including all incidental and necessary expenses

incurred in furnishing effective and competent

representation.

122 Cong. Rec. 35123 (1976) (Emphasis added). Clearly,

the thrust of Representative Drinan’s remarks concerned

attorney’s fees. The $93,000.00 in expert witness fees at

issue in this case are a far cry from “incidental and

necessary expenses” incurred in the provision of “legal

services . . . Of counsel.”

Petitioners also do not mention that, throughout the

entire legislative history of § 1988, there is not one

explicit reference to the taxation of expert witness fees.

Not a single senator or representative is recorded as

having said that the Act would have the practical effect of

causing non-prevailing defendants to bear the costs of

prevailing plaintiffs’ out-of-pocket expert witness

expenses. The simple truth of the matter is that, had

Congress intended for § 1988 to result in the taxation of

expert witness fees, someone would have said so during

the long and exhaustive debate. None did, and that fact

alone dooms Petitioners’ argument that the legislative

history provides the “plain evidence” of congressional

intent sufficient to satisfy the rule of Crawford.

Lacking direct evidence, Petitioners attempt to create

an inference of congressional intent. They cite the fol-

lowing passage from the official legislative history of the

Act:

It is intended that the amount of fees awarded . . . be

governed by the same standards which prevail in

16

other types of equally complex Federal litigation.

... The appropriate standards, see Johnson v. Georgia

Highway Express, 488 F.2d 714 (5th Cir. 1974), are

correctly applied in such cases as Stanford Daily v.

Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v.

County of Los Angeles, 8 E.P.D. § 9444 (C.D. Cal. 1974);

and, Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 66 F.R.D. 483 (W.D.N.C. 1975). These cases have

resulted in fees which are adequate to attract compe-

tent counsel, but which do not produce windfalls to

attorneys. In computing the fee, counsel for pre-

vailing parties should be paid as is traditional with

attorneys compensated by a fee-paying client, ‘for all

time reasonably expended on a matter’.

S. Rep. No. 1011, 94th Cong. 2nd Sess., reprinted in 1976

U.S. Code Cong. & Adm. News at p. 5913. See, Petition at

9-10. In essence, Petitioners would have this Court

blithely assume that because a district judge in California

allowed taxation of $1,500.00 in expert witness fees in

Davis, supra, and because Congress mentioned Davis as

illustrative of the treatment of attorney’s fees, then, ipso

facto, Congress really intended for § 1988 to provide for the

taxation of expert witness fees, this despite the fact that

nobody ever said as much. This is patently absurd.

Oblique inferences do not constitute explicit statutory

authorization.

The obvious fact of the matter is that if Congress had

intended to tax expert witness fees it would have been

obvious. It knows how to do so as evidenced by the fact

that twenty-eight statutes expressly provide for the taxa-

tion of expert witness fees. Woodworkers, supra, 790 F.2d at

1179 n.7.

17

In summary, Congress’s use of the phrase “reason-

able attorney’s fee as a part of the costs” cannot reason-

ably be construed to explicitly authorize taxation of

expert witness fees. Such intent must be plainly evi-

denced on the face of the statute. The legislative history

of § 1988 does not provide the requisite plain evidence of

congressional intent to override the traditional cost-shift-

ing provisions of § 1821 and § 1920.

,

—

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Mark STODOLA*

City Attorney

Epwarb G. Apcock

Assistant City Attorney

City Hall - Room 310

Little Rock, Arkansas 72201

(501) 758-9073

Counsel for Respondents

*Counsel of Record