# Opposition Brief — Gilbert v. City of Little Rock

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 812

## Text

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 }
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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1392%3A3. Public record. Not legal advice.