Petition for Writ of Certiorari — Crawford Fitting Co. v. JT Gibbons, Inc.

86-3 22 : Fayre

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

CRAWFORD FITTING COMPANY,

CAPITAL VALVE & FITTING COMPANY, INC.,

THOMAS A. READ & COMPANY,

FRED A. LENNON and ROBERT D. JENNINGS,

Petitioners

v.

J. T. GiBBons, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DANDO B. CELLINI *

VICTORIA L. KNIGHT

MCGLINCHEY, STAFFORD, MINTZ,

CELLINI & LANG, PC

643 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) 586-1200

ERNEST P. MANSOUR

MANSOUR, GAVIN, GERLACK &

MANOS Co., L.P.A.

2150 Illuminating Building

Cleveland, Ohio 44113

Telephone: (215) 523-1500

Attorneys for Petitioners

* Counsel of Record

WILSON - Eres Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Whether or not district courts have any discretion

under Fed. R. Civ. P. 54(d) to tax costs, such as expert

witness fees, beyond the scope of those items listed in

28 U.S.C. § 1920.

PARTIES TO THE PROCEEDINGS

The parties to these proceedings are petitioners

Crawford Fitting Company, Fred A. Lennon, Capital

Valve & Fitting Company, R. D. Jennings and Thomas

A. Read & Company, Inc. and respondent J. T. Gibbons,

Ine.

(i)

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDINGS ......0......

TABLE OF AUTHORITIES CITED ......00.

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STATEMENT OF THE CASE .......0002200....2....-.--- ;

REASONS FOR GRANTING THE WRIT .........

A. There Exist Numerous Direct Conflicts Among

The Circuits On The Question Presented By

a seerimensecocnnee

B. The Instant Petition Addresses Critical Policy

Issues Regarding Allocation of the Enormous

Costs of Modern Litigation in Federal Courts....

ai taderinentntnsnennceracinctoteccccnssncccpseccenacsees

APPENDIX A—June 2, 1986 en banc opinion of the

United States Court of Appeals for

a

APPENDIX B—May 17, 1985 opinion of a panel of the

United States Court of Appeals for

Si I I ns sececeeceee _

APPENDIX C—April 2, 1984 memorandum opinion of

the United States District Court for

the Eastern District of Louisiana _....

APPENDIX D—June 2, 1986 en banc opinion of United

States Court of Appeals for the Fifth

Circuit in International Woodworkers

of America, AFL-CIO and its Local

No. 5-376 v. Champion International

i saiemeeooene

(iii)

17

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5a

13a

iv

TABLE OF AUTHORITIES

CASES Page

Alyeska Pipeline Service Co. v. Wilderness Society,

es Re CD icccscnisnssiicemaiibbibiiasicpniiainiinsiasin 4,8

Farmer v. Arabian American Oil Co., 379 U.S. 227

ERT ciciicesaresinsiescnieineshscuahtehitaanlaiglateeedaaid iicrddabadiaiilhbiciias 10

Henkel v. Chicago, St. Paul, Minnesota & Omaha

Railway Co., 284 U.S. 444 (1982) -............-......... 10

International Woodworkers of America, AFL-CIO

and its Local No. 5-376 v. Champion Interna-

tional Corporation, 752 F.2d 163 (5th Cir. 1985) .. 3, 9-10

J.T. Gibbons, Inc. v. Crawford Fitting Co., et al.,

565 F.Supp. 167 (E.D. La. 1981), aff’d, 704 F.2d

ee Ge anisbenmeneatianans 2

J.T. Gibbons, Ine. v. Crawford Fitting Co., et al.,

102 F.R.D. 73 (E.D. La. 1984) .......................-....--. 3

J.T. Gibbons, Inc. v. Crawford Fitting Co., et al.,

760 F.2d 618 (6th Cir. 19665) ................................ 4

Paschall v. Kansas City Star Co., 695 F.2d 322

(8th Cir. 1982), rev’d on rehearing on other

grounds, 727 F.2d 692 (8th Cir. 1984) -............... 11-12

Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d 201

REI eee Pe 12

STATUTES

BP IIe OO eter cencecsrensencssemmneniinaselnanttinetamninmseneetnmnneianes 2

Be ie 1b i ererceensseeneeseeentonosennasennatannenmenpemensvannensesesionin 2

BP Te OF Sitencnencenseecnenenmeveesssineveinesransnesensesussmanetinti 1

BP ee Be OO opcceccceneecnseperesannerenitnenniaienienipncmnnnnieseaines 1

BE STD -necnsneseeccsinnacitnesnaneenssenencasiiocnmiaeitistaians 1

ee ED vicsinecieniesnrenanntrrncenmsntmensnenitiinsemanenisietid 3, 6, 10, 11

a es Oe CR trcccnssenncrencsccnnsotssenimsepnta 2, 3, 4, 5, 6, 9, 10, 11

Ge re 0 Ie steereeremnssenessrennecnsmacnensianennnaninmneneemmemnns 4,9

Fed. B. Cov. i G6(G)........................--...0. 2, 3, 4, 5, 6, 9, 10, 11

OTHER AUTHORITIES

F. Kirkham, Complex Civil Litigation “Have Good

Intentions Gone Awry?,” 70 F.R.D. 199 (1976) .. 13

ANNUAL REPORT OF THE DIRECTOR, ADMINISTRATIVE

OFFICE OF THE UNITED STATES COURTS (1984)... 13

v

TABLE OF AUTHORITIES—Continued

T. Shreve, Attorneys’ Fee Awards to Complex Liti-

gation Defendants: Striking a Balance, 77 Nw.

i I a aa aa

Ehrenzweig, Reimbursement of Counsel Fees and

the Great Society, 54 Cal. L. Rev. 792 (1966)...

Proceedings of Forty-Fifth Judicial Conference of

the District of Columbia Circuit, 105 F.R.D. 251

SII Saiacsinihbesiebeabe tae ae iia ite

FEDERAL JUDICIAL WORKLOAD STATISTICS, ADMIN-

ISTRATIVE OFFICE OF THE UNITED STATES COURT

TURUNEN disualcensinsclatuinistesitamaesiidaebledaipaidich tic tectiaaethdal tant aiciae

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No.

CRAWFORD FITTING COMPANY,

CAPITAL VALVE & FITTING COMPANY, INC.,

THOMAS A. READ & COMPANY,

FRED A. LENNON and ROBERT D. JENNINGS,

Petitioners

v.

J. T. GIBBONS, INC.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners Crawford Fitting Company, Capital Valve

& Fitting Company, Inc., Thomas A. Read & Company,

Fred A. Lennon and Robert D. Jennings respectfully

pray that a writ of certiorari be issued to review the

en banc decision of the United States Court of Appeals

for the Fifth Circuit entered in this case on June 2, 1986.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). Jurisdiction of the District Court was

based upon Sections 4 and 16 of the Clayton Act, 15

U.S.C. §§ 15, 26.

2

OPINIONS BELOW

The memorandum opinion of the District Court, re-

ported at 102 F.R.D. 73 (E.D. La. 1984), is reprinted as

Appendix A hereto. The May 17, 1985 opinion of a

panel of the Fifth Circuit Court of Appeals, 760 F.2d

613 (5th Cir. 1985), is reprinted as Appendix B hereto.

The June 2, 1986 en bane opinion of the Court of Ap-

peals for the Fifth Circuit is reprinted as Appendix C

hereto.

STATUTES INVOLVED

The statutes involved herein, 28 U.S.C. § 1920, 28

U.S.C. § 1821 and Rule 54(d) of the Federal Rules of

Civil Procedure, are reprinted as Appendix E hereto.

STATEMENT OF THE CASE

Plaintiff filed this action in federal district court,

claiming that petitioners engaged in numerous violations

of the federal antitrust laws, 15 U.S.C. §§1 and 2, in-

cluding a group boycott, horizontal and vertical price

fixing, market allocation, predatory pricing, monopoliza-

tion, and attempt and conspiracy to monopolize. The trial

court directed a verdict in favor of defendants on all of

plaintiff’s claims, and entered judgment dismissing the

complaint at plaintiff’s cost. J.7. Gibbons, Inc. v. Craw-

ford Fitting Company, et al., 565 F. Supp. 167 (E.D. La.

1982). The Fifth Circuit Court of Appeals affirmed the

trial court’s rulings in all respects. J.T. Gibbons, Inc. v.

Crawford Fitting Company, et al., 704 F.2d 787 (5th

Cir. 1983).

Defendants filed a Bill of Costs with the Clerk of

Court, who taxed the costs for audio-visual equipment

and assistance, copies of depositions, and daily trial tran-

scripts. Not taxed as costs were expert witness fees,

and attorneys’ fees and expenses incurred in connection

3

with depositions taken by defendants in Scotland. After

a de novo review, the district court awarded defendants

those costs taxed by the Clerk, as well as some of de-

fendants’ expert witness fees, and attorneys’ fees and

expenses incurred in connection with the Scotland deposi-

tion. The court’s award of expert witness fees as costs

was based upon the “indispensability” rule recently de-

veloped by several circuit courts of appeals. Under this

rule, a district court has discretion under Fed. R. Civ. P.

54(d) to award a prevailing party exper+ witness fees

beyond the per diem and travel allowance for ordinary

witnesses prescribed by 28 U.S.C. §§$1920 and 1821,

where the expert testimony was indispensable to the

presentation of the case. 102 F.R.D. 73.

Applying the indispensability rule to the facts before

it, the trial court made a factual finding that the testi-

mony of two of the three expert witnesses used by de-

fendants at trial was crucial and indispensable to the

determination of the issues in the case. 102 F.R.D. at

86-87. It also found that, “It is particularly appropriate

to award defendants the costs of indispensable expert wit-

ness testimony under the circumstances of this case,

where the defendants were forced to defend an extremely

burdensome, vexatious, and totally meritless array of

antitrust claims.” 102 F.R.D. at 86. On appeal, a panel

of the Fifth Circuit sustained the district court’s award

of costs, except that it reversed the award of expert wit-

ness fees in excess of the ordinary per diem and travel

allowance prescribed by 28 U.S.C. §§ 1920 and 1821. 760

F.2d 613 (5th Cir. 1985). Subsequently, the Fifth Cir-

cuit sua sponte ordered a hearing en banc.

On the same date, it granted a rehearing en banc in

International Woodworkers of America, AFL-CIC and

its Local No. 5-376, 752 F.2d 163 (5th Cir. 1985) (here-

inafter “IWA”). The prevailing defendant in WA, an

4

employment discrimination suit, had requested expert

witness fees as a litigation expense incidental to an

award of attorneys’ fees authorized by the Civil Rights

Attorney’s Fees Award Act, 42 U.S.C. § 1988. The dis-

trict court found that that statutory provision did not

authorize such an award, and a panel of the Fifth Cir-

cuit affirmed this ruling. 752 F.2d 163 (5th Cir. 1985).

In a majority opinion authored by Judge Carolyn Dineen

Randall, the en bane court in the IWA case, adopting by

analogy the rule with respect to awards of attorneys’

fees set forth in Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240 (1975), held that expert wit-

nesses fees in excess of the per diem and travel allow-

ance specified in § 1821 for ordinary witnesses are not

generally taxable as costs.

On the same date, the Fifth Circuit applied its sweep-

ing new rule herein, reversing the district court’s award

of expert witness fees to the prevailing defendants in ex-

cess of the amount allowed by 28 U.S.C. § 1821. It did so

although the costs in the instant suit were sought on a

completely different basis from that in the WA case. The

IWA case involved a request by a prevailing defendant

for an award of expert witness fees incidental to an

award of attorney’s fees under the Civil Rights Attor-

ney’s Fee Award Act, 42 U.S.C. § 1988. In the instant

case, the prevailing defendants in an antitrust case in-

voked the trial court’s general discretion under Fed. R.

Civ. P. 54(d) to recover costs, including expert witness

fees. The en bane court applied the same rule to both

cases without distinction.

REASONS FOR GRANTING THE WRIT

The justification for the issuance of a writ of certiorari

herein is two-fold. First, the issue involved—the scope of

a district judge’s authority, if at all, to award costs

beyond 28 U.S.C. § 1920—is an issue which arises in each

5

and every case that proceeds to judgment on the merits.

The decisions of the federal circuit courts of appeals re-

flect that different rules have been formulated on this

issue, which routinely confronts district judges across the

country. The rule laid down by the Fifth Circuit herein

comports with none of the rules so far enunciated. This

Court should lay to rest the confusion among the circuits

and adopt a uniform rule to be applied nationwide by all

district courts.

Secondly, the issue presented involves an important

question of federal policy, the resolution of which will

have a significant impact upon the allocation of the costs

of modern litigation in America. At a time when even the

American rule prohibiting awards of attorneys’ fees to

prevailing parties has been called into question, it is par-

ticularly anamolous to deny district judges any discretion

at all to include expert witness fees as taxable costs.

Given the special concern which the legal profession and

the lay community alike have lately focused upon the

general attitudes toward litigation in this country, we

respectfully suggest that this second factor is at least as

compelling—and perhaps more compelling—than the

traditional component of a clear conflict among the cir-

cuits. Taken together, they comprise special and impor-

tant reasons for the issuance of the writ prayed for, as

required by the Rules of this Honorable Court.

A. There Exist Numerous Direct Conflicts Among The

Circuits On The Question Presented By This Petition.

The instant case involves the proper interpretation of

two statutes, Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920.

Fed. R. Civ. P. 54(d) provides that “[e|]xcept when ex-

press provision therefor is made either in a statute of the

United States or in these rules, costs shall be allowed as

of course to the prevailing party unless the court other-

wise directs.” 28 U.S.C. § 1920 reads as follows:

A judge or clerk of any court of the United States

may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part

of the stenographic transcript necessarily ob-

tained for use in the case;

(3) Fees and disbursements for printing and wit-

nesses ;

(4) Fees for exemplification and copies of papers

necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, com-

pensation of interpreters, and salaries, fees, ex-

penses and costs of special interpretation serv-

ices under section 1828 of this title.

A bill of costs shall be filed in the case and, upon

allowance, included in the judgment or decree.

The amount of “fees ... for . . . witnesses,” 28 U.S.C.

§ 1920(3), is limited to the minimal statutory per diem

contained in 28 U.S.C. § 1821. See Appendix E.

The federal circuit courts of appeal have adopted a

hodgepodge of different rules with respect to the discretion

afforded a district judge under 28 U.S.C. §§ 1920, 1821

and Fed. R. Civ. P. 54(d) to award fees of expert wit-

nesses beyond the parameters of 28 U.S.C. §§ 1920 and

1821. In his dissent to the majority ruling herein, Judge

Alvin B. Rubin summarized the various rules as follows:

The First Circuit has permitted the discretionary

award of expert witness fees for courtroom testi-

mony, noting that an express finding that the testi-

mony was indispensable is usually required, but

that prior court approval will suffice.

7

The Third Circuit in the maritime tort case of

Roberts v. S.S. Kyriakoula O. Lemos, expressly per-

mitted the award of expert witness fees in a mari-

time tort case when the expert’s testimony is indis-

pensable to the determination of the case or played

a crucial role in the resolution of the issues pre-

sented.

Our own circuit has permitted expert witness fees

to be awarded not only under [42 U.S.C.] § 1988,

but in cases of bad faith litigation, and when, after

prior court approval, the testimony proved indis-

pensable to the determination of the case.

The Sixth Circuit has affirmed an award of expert

witness fees in a civil rights case, rejecting the argu-

ment that such fees were expenses incidental to

[42 U.S.C.] § 1988 attorney’s fees, and awarding

them instead pursuant to the court’s sound discre-

tion under § 1920 and Rule 54(d). The district court

had reduced the amount allowed to one-half the

amount claimed because the expense had been in-

curred without prior approval of the court and was

excessive.

The Eighth Circuit, like the Third, has permitted

the award of expert witness fees... . Although it

did so in an antitrust case arising under the Clay-

ton Act, the court [held] that “Fed. R. Civ. P. 54

authorizes district judges to award costs not specif-

ically enumerated in 28 U.S.C. § 1821 [or § 1920].”

It has reached the same result in cases not involving

a fee-shifting statute.

The Ninth Circuit permits the award of expert wit-

ness fees if the testimony is necessary to the case

and the fees are reasonable. In Thornberry v. Delta

Airlines, Inc., it describes the court’s authority to

award these costs as limited to special circumstances.

However, it interprets these circumstances broadly,

considering “the reasonable needs of the party in the

context of the litigation.” While Thornberry was a

civil rights case, to which § 1988 was applicable, the

court relied only upon Rule 54(d).

The District of Columbia Circuit has found no au-

thority for a court to award excess expert witness

fees but qualified this rule by an exception “if the

district court approves in advance or requires the

testimony of a specially qualified witness who will

furnish information or evidence not otherwise rea-

sonably accessible to the court and whose appearance

is determined to be critically important to the case.”

Other circuits have denied the award of expert wit-

ness fees in excess of the amount allowed ordinary

witnesses by 28 U.S.C. § 1821. The Second and

Fourth Circuits have addressed the issue only in

antitrust cases and have held, I believe incorrectly,

that the Clayton Act’s allowance of “cost of suit”

does not permit awards in excess of § 1920 costs.

The Seventh Circuit recognizes that courts “retain

some discretion to tax costs not specifically provided

for by statute”, . .. but limits that discretion to

unspecified “exceptional circumstances.” Finally, the

Tenth and Eleventh Circuits have categoricaily

denied district courts the discretionary authority to

award witness fees in excess of the amounts specified

in § 1821, although they have not extended this

limitation to § 1988 cases.

Appendix D at pp. 77a-81a (citations omitted).

The rule adopted by the en banc court below differs

materially from any rule formulated thus far. It is bor-

rowed wholesale from the so-called “American Rule” de-

veloped by this Court, which provides that attorneys’ fees

are awardable only when expressly authorized by Con-

gress or when one of three narrow equitable exceptions

applies. Alyeska Pipeline Service Co. v. Wilderness

1The three narrow equitable exceptions apply where (1) the

trustee of a fund or property, or a party in interest, preserved or

recovered the fund for others in addition to himself; (2) a party

acted in willful disobedience of a court order; or (3) the losing

party acted in bad faith, vexatiously, wantonly, or for oppressive

reasons.

Society, 421 U.S. 240 (1975). Thus, under the Fifth Cir-

cuit’s new rule, expert witness fees, like attorneys’ fees,

are not awardable as costs in excess of 28 U.S.C. § 1920,

except where Congress has expressly so authorized or

when one of three equitable exceptions applies.

Judge Rubin in his dissenting opinion herein summar-

ized the state of the law in this area as follows:

In sum, six circuits permit the award of expert wit-

ness fees when the testimony is indispensable or

when advance court approval is obtained. Two cir-

cuits categorically deny district courts any such au-

thority under the Clayton Act, and two deny them

any authority whatsoever under Rule 54(d) to award

costs not provided for by statute. But none engrafts

the Alyeska attorney’s fee exceptions onto a rewrit-

ten § 1920.

Appendix D at p. 81a.

The Fifth Circuit developed its new rule in the context

of deciding whether 42 U.S.C. § 1988, which authorizes

an award of attorneys’ fees to a prevailing party in a

civil rights case, implicitly includes an award of expert

witness fees. As Judge Rubin noted in his dissent, the

court below “applies that rule to the recovery of expert

witness fees without considering the recoverability of

other litigation expenses. And it applies that rule with-

out distinction to two dissimilar cases in which the re-

covery of expert witness fees is sought on completely dif-

ferent bases.” Appendix D at p. 59a. In WA, a prevail-

ing defendant in an employment discrimination suit re-

quested expert witness fees as a litigation expense inci-

dental to an award of attorney’s fees authorized by the

Civil Rights Attorney’s Fees Awards Act. 42 U.S.C.

§ 1988. In the instant case, the prevailing defendants

in an antitrust suit, invoked the trial court’s general dis-

cretion under Fed. R. Civ. P. 54(d) to recover costs,

including the fees of expert witnesses.

10

Four judges concurred in the result in the WA case

and dissented from the majority opinion in the instant

case. Writing for all four dissenters, Judge Rubin criti-

cizes the majority opinion as illogical and inconsistent

with every other circuit court decision on the issue.

The majority rule is premised in large measure on this

Court’s decision in Henkel v. Chicago, St. Paul, Minnesota

and Omaha Railway Co., 284 U.S. 444 (1932). That case

held that expert witness fees were included within, and

limited to, the per diem and travel allowances for ordi-

nary witnesses in 28 U.S.C. §§ 600 (a) and (c) (pre-

cursors of 28 U.S.C. §§ 1920 and 1821). Conceding that

the issue in Henkel was the same as that before the en

bane court below, Judge Rubin correctly noted that the

district court powers with which Henkel dealt have altered

since the date of that decision. Henkel was decided before

the adoption of the Federal Rules of Civil Procedure, and

thus before the merger of actions at law and equity. At

that time, courts sitting in law had no power to award

costs not expressly granted by statute. In equity, courts

have always retained the power to award costs not spe-

cified by statute. With the merger of law and equity

under the Federal Rules of Civil Procedure, Rule 54(d)

gave federal courts in all actions the broader discretion

previously afforded only to courts of equity. Appendix

D at pp. 74a-75a. The majority acknowledges this equi-

table power to the extent that it recognizes three equitable

exceptions to its rule. There is no rational basis for its

acknowledgement of this power in three narrow circum-

stances, but in no others.

Since the adoption of Rule 54(d), this Court has only

once addressed the district courts’ power to tax costs in

excess of those specified in § 1920. In Farmer v. Arabian

American Oil Co., 379 U.S. 227 (1964), the district court

refused to tax as costs litigation expenses for witness

travel and overnight transcripts. Although it affirmed

1]

the disallowance, the Court declined to rest its decision on

a determination that § 1920 did not expressly permit

these costs. Instead, it relied on Rule 54(d), saying:

We do not read [Rule 54(d)] as giving district

judges unrestrained discretion to tax costs to reim-

burse a winning litigant for every expense he has

seen fit to incur in the conduct of his case. Items

proposed by winning parties as costs should always

be given careful scrutiny. ... [T]he discretion

given district judges to tax costs should be sparingly

exercised with reference to expenses not specificaily

allowed by statute.

379 U.S. at 235.

As Judge Rubin concisely comments in his dissent below,

the “Court’s conclusion reveals its premise: Rule 54(d)

gives the district court discretion [albeit sparing] to

award costs not enumerated in § 1920.” Appendix D at

p. 77a.

Other Circuit Courts have reached the same conclusion.

In Paschall » Kansas City Star Co., 695 F.2d 322 (8th

Cir. 1982), rev’d on rehearing on other grounds, 727 F.2d

692 (8th Cir. 1984), the Eighth Circuit Court of Appeals

held that the language from Farmer quoted above “au-

thorizes district judges to award costs not specifically

enumerated in 21 U.S.C. § 1821.” 695 F.2d at 338. Thus,

the rule in the Eighth Circuit is that district courts have

discretion to award expert witness fees as costs when

expert testimony is “crucial” or “indispensable” to the

determination of the case. Jd. at 339. Paschall was a

complex antitrust lawsuit, as is the instant case. The

Court in Paschall found that the expert testimony con-

cerning competitive impact was “the most important

issue” in the case, and affirmed an award of expert wit-

ness fees as costs. [d.

Reading the Farmer opinion in the same way as the

Eighth Circuit, the Third Circuit Court of Appeals also

12

recognized an “indispensability” rule in Roberts v. S.S.

Kyriakoula D. Lemos, 651 F.2d 201 (3d Cir. 1981).

After quoting the language from Farmer relied on by

the Eighth Circuit in Paschall, the Third Circuit reached

the following conclusion in Roberts:

Farmer appears to hold that Rule 54(d) authorizes

district judges to exercise discretion—albeit “spar-

ing”’—to award costs not specifically enumerated in

§ 1821. The Court seems concerned to avoid taxa-

tion of unnecessary and possibly vexatious costs ac-

cumulated by a prevailing party. Hence the refer-

ence to a national policy in favor of restrained

award of costs. It is important to note that the

Court based its interpretation of Rule 54(d) not on

a Henkel-type theory of statutory preclusion of costs

not listed in § 1821, but on policy considerations

militating against award of unenumerated costs. A

district court should therefore carefully scrutinize

the prevailing party’s bill of costs in order to assure

that any award will compensate only those expendi-

tures necessary to the litigation. While Farmer com-

mands perhaps a tight-fisted exercise of discretion

in order to ensure moderation in the cost of litiga-

tion, it does not mandate parsimony to the extent of

precluding recovery of legitimate and indispensable

litigation expenditures. We therefore agree with the

District of Minnesota and the Eighth Circuit that

Farmer affords a district court equitable discretion

to award expert witness fees when the expert’s testi-

mony is indispensable to determination of the case.

651 F.2d at 206.

It is respectfully submitted that the rule adopted by the

majority below, which denies district courts any discre-

tion to tax costs outside of § 1920, is contrary to law and

renders “Rule 54(d) . . . completely redundant, without

any independent force or meaning.” Appendix D at p.

74a.

13

B. The Instant Petition Addresses Critical Policy Issues

Regarding Allocation of the Enormous Costs of Mod-

ern Litigation in Federal Courts.

Judge Rubin’s dissent below squarely acknowledges the

important public policy implications of the issue raised

by this case. He observed that:

[T]he costs of litigation, as we all know, have be-

come staggering. A plaintiff may put a defendant or

a defendant may put a plaintiff to a tremendous

amount of expense, apart from the cost of obtaining

an attorney’s services in defending or prosecuting

a case. One cause of this expense is the unavoidable

necessity of expert witness testimony to establish or

rebut many legal claims, especially those raised in

. antitrust cases. [E]xpert witness testimony

controls the outcome in two-thirds of all cases, and

. are second only to attorneys’ fees as the largest

litigation expense.

Appendix D at p. 82a.

In a 1976 address to the Ninth Circuit Judicial Con-

ference, Francis Kirkham opined that “litigation is the

new growth industry.” F. Kirkham, Complex Civil Liti-

gation “Have Good Intentions Gone Awry?,” 70 F.R.D.

199, 204 (1976). The relevant figures since then seem

to have borne him out. In 1968 there were about 71,000

civil cases filed in the federal courts. By 1977, the num-

ber had risen to 130,000; by 1980 it was 180,000, and by

1984, the figure was 261,485. ANNUAL REPORT OF THE

DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED

STATES CourRTS (1984). The latest statistics show that

278,793 civil cases were filed in 1985. FEDERAL JUDICIAL

WORKLOAD STATISTICS, ADMINISTRATIVE OFFICE OF THE

UNITED STATES CouRTS (1985).

Considerable commentary has been devoted to analyz-

ing why the legal system in the United States seems to

spawn so much more litigation than other legal systems

around the world, and the explanations have ranged so

far afield that even a genetic predisposition among Amer-

14

icans toward litigation has been suggested. Among prac-

titioners of the law, however, it is well known that the

litigation engine is principally fueled by a volatile mix-

ture of a large number of lawyers, the legality of contin-

gency fee agreements and the so-called “American Rule,”

which requires each litigant to bear the cost of his own

attorneys’ fees, win or lose. The impetus this blend gives

to the filing of tenuous claims is readily apparent in the

burgeoning field of complex business litigation. As one

commentator has noted, “Business managers consider liti-

gation a business activity like any other, and engage their

company in litigation only if they expect that it will pro-

duce a good return or avert a bad return.” T. Shreve,

Attorneys’ Fee Awards to Complex Litigation Defend-

ants: Striking a Balance, 77 Nw. L. Rev. 818, 830

(1983). In deciding whether or not to press a claim such

as the one brought against petitioners herein, a business

manager goes through the normal process of a cost/benefit

analysis, weighing the potential risks against the poten-

tial returns. Traditionally, the potential risks have been

virtually nonexistent. Under the normal contingency fee

agreement, the plaintiff is only responsible for routine

expenses, which comprise a very small part of the total

expenditures involved in pursuing complex litigation. On

the other hand, the potential rewards can be astronomical,

especially in antitrust cases, where the actual damages

awarded are automatically trebled. The incentives are

therefore great to pursue even the most marginal of

claims.

The antitrust lawsuit which gave rise to the instant

petition typifies these problems. As the trial court below

observed in its opinion granting directed verdicts for peti-

tioners, the plaintiff in this action asserted that peti-

tioners had committed virtually every offense proscribed

by the Sherman Act, including group boycott, refusal to

deal, horizontal and vertical price fixing, illegal data dis-

semination, horizontal and vertical allocation of terri-

tories, predatory pricing, and conspiracy and attempt to

monopolize.

EE EEE rrr

penne

:

15

Although the law provides that the plaintiff bears the

burden of proof on each element of its claims, every trial

lawyer knows that the average jury assumes the full

majesty of the law could not possibly be brought into

play unless there is a strong likelihood that someone had

done something wrong. Moreover, in complex litigation

such as antitrust cases, the defense lawyer cannot rely

on the jury’s instincts for what is right to yield the cor-

rect result, because virtually all of the testimony is likely

to relate to matters that are entirely beyond the ken of

the average juror. Thus, in a case which presents doubt-

ful claims from a legal point of view, the plaintiff’s

lawyer must focus on getting the case to the jury for a

decision (where he knows the marginal nature of the

claim will not be at all apparent), and the defense law-

yer must concentrate on presenting so complete a case

that the judge will feel that it is his obligation to direct

a verdict.

Often, extensive expert testimony is the only way for

the defense to conclusively demonstrate that a directed

verdict is appropriate as a matter of fact and law. For

example, respondent herein made bald allegations charg-

ing petitioners with violations of § 1 and § 2 of the Sher-

man Act. Dr. Thomas Saving, an expert economist, was

retained by petitioners to analyze the relevant industry.

Not only did he testify that the industry is extremely

competitive, with very low entry barriers, but he also

found that petitioner Crawford Fitting Company “has a

small segment in the industry and completely lacks mar-

ket power.” 565 F. Supp. 167 at 180. Dr. Philip Robers,

a supply and transportation expert for petitioners, was

called to testify with respect to plaintiff’s claim that it

had been boycotted. After conducting an exhaustive study

of plaintiff’s purchase orders, invoices, shipping orders

and other relevant documents, Dr. Robers reached the

following conclusions: first, it was clear that plaintiff

had never in fact been boycotted because it always had

access to as much of the product as it wanted through

an alternate source; and second, the plaintiff’s own rec-

16

ords demonstrated conclusively that this alte nate source

furnished the product at better prices, and with superior

delivery times, than plaintiff had received from petitioner

Crawford. 102 F.R.D. at 86-87.

After hearing all of the testimony, the trial court

granted directed verdicts on all counts for petitioners

and, in its opinion awarding costs to petitioners, specifi-

cally described the panoply of charges brought by plain-

tiff Gibbons as “an extremely burdensome, vexatious, and

totally meritless array of antitrust claims.” Jd. at 86.

The Fifth Circuit Court of Appeals affirmed the trial

judge’s directed verdict rulings in all respects. Noting

that this litigation had been brought basically as a re-

fusal to deal case, even though it was undisputed that

the plaintiff always had access to the product involved,

the Fifth Circuit specifically observed that “[t]he sine

qua non of the injury caused by a refusal to deal would

be inability to obtain the product.” 704 F.2d 787 at 792.

Nonmeritorious cases of this kind are routinely pur-

sued in our legal system because an objective cost/benefit

analysis makes them attractive. The United States has

the highest ratio of lawyers per capita of any nation in

the world, so there is an abundance of attorneys willing

to press dubious causes. The legality of contingency fee

arrangements, which are forbidden in many other coun-

tries, effectively eliminates funding concerns. And finally,

there is the “American rule.” No other legal system in

the world requires the winner in litigation to pay his

own expenses. See Ehrenzweig, Reimbursement of Coun-

sel Fees and the Great Society, 54 Cal. L. Rev. 792, 798

(1966). But that has been historically the rule in this

country, where a successful defendant is generally limited

to recovering nothing more than routine court costs.

Taken together, these factors permit plaintiffs to bring

marginal lawsuits at very low risks. Indeed, they clearly

encourage the filing of such suits. Petitioners submit

17

that the litigation explosion which has troubled both the

legal profession and the lay community is, in large meas-

sure, attributable to the confluence of these factors. The

“indispensibility rule” adopted by the Third and Eighth

Courts of Appeals is an intelligent and effective restraint

against gross abuses which can be effectuated without the

sweeping policy changes which would be required to alter

the now firmly entrenched American Rule. The “indis-

pensability rule” is neither drastic nor automatic: it gives

content to the language of Fed. R. Civ. P. 54(d) and

allows district courts the discretion to award expert

witness fees in appropriate circumstances. Such a rule

would have the salutary effect of giving the potential

plaintiff with a dubious claim at least a moment’s pause

to consider the increased risks before leaping into the

litigation arena.

CONCLUSION

A clear conflict among the circuits exists—that much

cannot be gainsaid. Indeed, it is more accurate to say

that the circuits are in disarray on the question presented

here. Can this conflict fairly be characterized as the type

of “tolerable conflict” alluded to by the Honorable Chief

Justice Burger during the course of the proceedings of

the 1984 Judicial Conference of the District of Columbia

Circuit? Proceedings of Forty-Fifth Judicial Conference

of the District of Columbia Circuit, 105 F.R.D. 251, 260

(1984).

It is petitioners’ belief that this question must be an-

swered in the negative. Admittedly, there is a temptation

to regard questions such as that presented by the instant

petition as administrative rather than substantive in

character—and hence less urgent. Such a distinction is

too facile, for it is precisely questions of this kind that

set the underlying tone and tempo of a nation’s judicial

system. Resolution of the question presented herein will

affect every United States district court in the nation,

and virtually every litigant or prospective litigant in

18

those courts. In petitioners’ view, the doctrine of toler-

able conflicts is inapplicable to issues of such far-reaching

practical importance. Petitioners therefore urge this

Honorable Court to issue a writ of certiorari to review

the decision of the Fifth Circuit Court of Appeals en-

tered on June 2, 1986 in this matter.

Respectfully submitted, this 29th day of August, 1986.

DANDO B. CELLINI *

Victoria L. KNIGHT

McGLINCHEY, STAFFORD, MINTZ,

CELLINI & LANG, PC

643 Magazine Street

New Orleans, Louisiana 70130

Telephone: (504) 586-1200

ERNEST P. MANSOUR

MANSOUR, GAVIN, GERLACK &

MANOs Co., L.P.A.

2150 Illuminating Building

Cleveland, Ohio 44113

Telephone: (2135) 523-1500

Attorneys for Petitioners

* Counsel of Record

APPENDICES

cSIIGMHITGA:

eS ee ee eS ee Le en ae eee

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-3332

J. T. Grppons, INC.,

Plaintiff-Appellant,

Vv.

CRAWFORD FITTING COMPANY, et al.,

Defendants-A ppellees.

Filed June 2, 1986

Before: Clark, Chief Judge, Goldberg, Gee, Rubin,

Reavley, Politz, Randall, Johnson, Williams, Garwood,

Jolly, Higginbotham, Davis, Hill and Jones,

Circuit Judges.*

Opinion by Judge Carolyn Dineen Randall;

Dissent by Judge Alvin B. Rubin, with whom

Goldberg, Johnson and Williams join.

Appeal from the United States District Court

for the Eastern District of Louisiana

Edmund L. Palmieri, District Judge

(Sitting by Designation) , Presiding

OPINION

CAROLYN DINEEN RANDALL, Circuit Judge:

This case involves the application of the rule announced

today in International Woodworkers of America, AFL-

* Due to his death on March 27, 1986, Judge Albert Tate, Jr. did

not participate in this decision.

2a

CIO, CLC and its Local No. 5-876 v. Champion Interna-

tional Corporation, No. 83-4616 (5th Cir. June 2, 1986).

The plaintiff, J.T. Gibbons, Inc. (“Gibbons”), brought suit

against the defendants, Crawford Fitting Company, and

others (collectively “Crawford” ), alleging antitrust viola-

tions. At the conclusion of the evidence, the district court

directed a verdict against Gibbons, 565 F. Supp. 167,

which was affirmed by a panel of this court on appeal.

704 F.2d 787. Crawford, on behalf of all defendants, filed

a Bill of Costs with the District Clerk. The Clerk taxed

all costs requested by Crawford with the exception of cer-

tain expert witness’ fees, and attorneys’ fees and expenses

incurred in connection with a deposition taken by Craw-

ford in Scotland. Both Gibbons and Crawford contested

the Clerk’s assessment of costs in the district court. Fol-

lowing a hearing, the district court altered the Clerk’s

assessment and awarded Crawford over $151,000, includ-

ing expert witness’ fees, and attorneys’ fees and expenses

for the Scotland deposition. 102 F.R.D. 73.

A panel of this court sustained the district court’s

award of costs to Crawford for audio-visual equipment

and assistance; for copies of depositions noticed by Gib-

bons; for daily trial transcripts; and for Crawford’s ex-

penses and attorneys’ fees in connection with the Scotland

deposition. 760 F.2d 613. The panel opinion, however,

reversed the district court’s award of expert witness’ fees

in an amount greater than that prescribed by 28 U.S.C.

$1821. This court voted to rehear the

thereby vacating the panel opinion. See Fifth Circuit

Local Rule 41.3.

At the outset, we reinstate Parts I through III of the

panel opinion.’ The remainder of the panel opinion,

IV, is superseded in its entirety by this opinion.

! Part III(b) of the panel opinion, addressing the district court's

award of costs for daily trial transcripts and transcript copies of

depositions, cites Copper Liquor Inc. v. Adolph Coors Co., 684 F 2d

1087, 1099 (5th Cir. 1982), (Copper Liquor I11), modified on other

3a

After consideration of the principles set forth in /nter-

national Woodworkers of America, we reverse the district

court’s award of witness’ fees in excess of the amount

allowed by 28 U.S.C. § 1821. 15 U.S.C. § 15? provides for

the award of attorneys’ fees and the costs of suit to a pre-

vailing plaintiff. Crawford, as a prevailing defendant,

cannot fit within this statute. In addition, we agree with

the Second, Sixth and Seventh Circuits that 15 U.S.C. § 15

does not authorize the taxing of excess expert witness’

fees as costs. See Berkey Photo, Inc. v. Eastman Kodak

Co., 603 F.2d 263, 309 n.75 (2d Cir. 1979), cert. denied,

444 U.S. 1093 (1980); Ott v. Speedwriting Publishing

Co., 518 F.2d 1148, 1149 (6th Cir. 1975) ; State of Illinois

v. Sangamo Construction Co., 657 F.2d 855, 864-65 (7th

Cir. 1981). As discussed in International Woodworkers of

America, ante, Congress knows full well how to provide

for the recovery of excess expert witness’ fees as costs.

grounds en banc, 701 F.2d 542 (5th Cir. 1983), overruled in part

in International Woodworkers of America, ante. The cited portion

of Copper Liquor III indicates that the costs for transcript copies

of depositions are recoverable under 28 U.S.C. § 1920(2). Section

1920(2) literally provides for recovery of the “fees of the court

reporter for all or any part of the stenographic transcript neces-

sarily obtained for use in the case.” In United States v. Kolesar,

313 F.2d 835, 837-38 (5th Cir. 1963), we held that “[t]hough

§ 1920(2) does not specifically mention a deposition, we agree with

prior decisions suggesting that depositions are included by impli-

cation in the phrase ‘stenographic transcript.’” Thus we reinstate

the panel’s reliance on a portion of Copper Liquor II] not reversed

by us stating that costs for transcript copies of depositions may be

recoverable under § 1920(2) if “necessarily obtained for use in the

case.”

215 U.S.C. §15 provides:

Any person who shall be injured in his business or property

by reason of anything forbidden in the antitrust laws may sue

therefor in any district court of the United States in the district

in which the defendant resides or is found or has an agent,

without respect to the amount in controversy, and shall recover

threefold the damages by him sustained, and the cost of suit,

including a reasonable attorney's fee.

4a

That Congress did not do so in 15 U.S.C. § 15 is clear. To

the extent that Copper Liquor Inc. v. Adolph Coors Co.,

684 F.2d 1087 (5th Cir. 1982), modified on other grounds

en banc, 701 F.2d 542 (5th Cir. 1983), held otherwise, it

is overruled. Crawford does not claim an exception to the

American Rule. We thus reverse the district court’s as-

sessment of expert witness’ costs and remand to the dis-

trict court for reassessment of costs consistent with this

opinion.

REVERSED and REMANDED.

ALVIN B. RUBIN, Circuit Judge, with whom GOLD-

BERG, JOHNSON, and WILLIAMS, Circuit Judges join,

dissenting, for the reasons set forth in Judge Rubin’s

opinion concurring in the result of International Wood-

workers of America, AFL-CIO, CLC and its Local No.

5-376 v. Champion International Corporation, No. 83-4616

(5th Cir. June 2, 1986).

es

5a

APPENDIX B

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

ee

No. 84-3332

J.T. GIBBONS, INC.,

Plaintiff-A ppellant,

Vv.

CRAWFORD FITTING COMPANY, et al.,

Defendants-A ppellees.

— oe

— ee

May 17, 1985

Sessions, Fishman, Rosenson, Boisfontaine & Nathan,

New Orleans, La. Joseph L. Alioto, John I. Alioto, Law-

rence G. Papale, Alioto & Alioto, San Francisco, Cal.,

for plaintiff-appellant.

McGlinchey, Stafford & Mintz, Dando B. Cellini, New

Orleans, La., for Crawford Fitting and Lennon.

Ernest P. Mansour, Cleveland, Ohio, Victoria L.

Knight, New Orleans, La., for Crawford.

Dale, Owen, Richardson, Taylor & Mathess, Thomas E.

Balhoff, Baton Rouge, La., for Capital Valve & Fitting

Co.

Charles E. Hamilton, III, New Orleans, La., for

Thomas Read & Co.

6a

Appeal from the United States District Court

for the Eastern District of Louisiana

Before GOLDBERG, TATE and JOLLY, Circuit

Judges.

PER CURIAM:

Following the successful defense of an antitrust action,

the defendant was awarded as costs of the litigation over

$151,000, including more than $86,000 for expert witness

fees. Because we find the award of expert witness fees

to be in error, we reverse in part and remand.

I

The plaintiff, J.T. Gibbons, Inc. (Gibbons), brought

suit against the defendants Crawford Fitting Company,

and others (Crawford), alleging antitrust violations of

sections 1 and 2 of the Sherman Act. At the conclusion

of the evidence, the district court directed a verdict

against Gibbons, 565 F.Supp. 167, which was affirmed by

a panel of this court on appeal. 704 F.2d 787. Crawford,

on behalf of all defendants, then filed a bill of costs with

the district clerk. The clerk taxed all costs requested by

Crawford, with the exception of certain expert witness

fees and attorneys’ fees and expenses incurred in connec-

tion with a deposition taken by Crawford in Scotland.

Both Gibbons and Crawford contested the clerk’s assess-

ment of costs in district court. Following a hearing, the

district court altered the clerk’s assessment and awarded

Crawford over $151,000, including expert witness fees,

and attorneys’ fees and expenses for the Scotland deposi-

tion. 102 F.R.D. 73. Gibbons now appeals.

II

Our primary reason for writing today is to address

the question whether a district court may allow as costs

7a

ot a lawsuit expert witness fees in excess of the statutory

maximum provided in 28 U.S.C. § 1821. Gibbons has also

taken issue with several other items of costs taxed by the

district court. Because those issues involve well settled

principles of law, we will briefly address each before con-

sidering the district court’s assessment of expert witness

fees.

III

A.

The first contested issue concerns costs awarded to

Crawford for audiovisual equipment and assistance. The

district court disallowed costs for the preparation of cer-

tain charts, but allowed the expenses incurred in connec-

tion with the operation of projection equipment, reason-

ing that the court’s specific request for this equipment

was tantamount to pretrial authorization. Gibbons argues

that the district court did not formally authorize the

audiovisual equipment prior to trial and did not provide

Gibbons the necessary notice to make a formal objection

to the use of the particular equipment. Gibbons also con-

tends that the cost of the equipment, totalling $18,494.24,

was unreasonable because similar equipment could have

been procured at less expense.

It is settled that costs for charts, models and pho-

tographs may be taxed as costs only if there is pretrial

authorization by the trial court. Studiengesellschaft

Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir.

1983); Johns Manville Corp. v. Cement Asbestos Prod-

ucts Co., 428 F.2d 1381, 1385 (5th Cir.1970). Here the

record reflects that prior to trial the district court re-

quested the audiovisual equipment which, in fact, was

used by both Gibbons and Crawford. Although the costs

of the projection «quipment and technical assistance

might appear to be excessive, the district court had prior

experience with the use of this special equipment and

found it to be necessary and reasonable-in conducting

8a

such complex and lengthy antitrust litigation as that be-

fore it. The record does not reflect that the district court

abused its sound discretion in taxing these expenses as

costs.

B.

Gibbons also contests the costs awarded to Crawford

for copies of depositions noticed by Gibbons and costs of

daily trial transcripts. Gibbons argues that Crawford is

not entitled to recover for the deposition copies because

the depositions were noticed by Gibbons and because the

copies were obtained merely for Crawford’s convenience.

Gibbons also contends that the cost of daily trial tran-

scripts should not have been taxed because they also were

primarily for Crawford’s convenience and were not neces-

sary for use in the case.

It is well established in this circuit that the cost of

copies of deposition transcripts is taxable only if the

copies were necessary for use in the case. Eastman

Kodak, 713 F.2d at 133; Copper Liquor, Inc. v. Adolph

Coors, 684 F.2d 1087, 1099 (5th Cir.1982). The same

standard applies to awards of costs for daily trial tran-

scripts. Copper Liquor, 684 F.2d at 1099; United States

v. Kolesar, 313 F.2d 835, 840 (5th Cir.1963). The dis-

trict court here found that the daily trial transcripts

were necessary for use in the case, and we are convinced

that the court was within its discretion. Furthermore,

we can find no compelling reason, certainly in this case,

to distinguish, as far as costs for copies are concerned,

between depositions noticed by an unsuccessful litigant

as opposed to a prevailing party. We therefore affirm

the district court’s award of costs to Crawford for

transcript copies of depositions noticed by Gibbons and

daily trial transcripts.

C.

Gibbons also appeals the taxing of costs for Crawford’s

travel expenses and attorney’s fees incurred in connec-

tion with a deposition taken in Scotland. The district

9a

court based the award upon its general equitable powers,

finding bad faith and vexatiousness concerning Gibbons’

failure to comply with a discovery order that made the

Scotland depositions necessary.

The facts underlying the district court’s award can be

briefly summarized. Crawford sought to depose two prin-

cipals of Hydrasun (Aberdeen), Ltd., a Scottish corpora-

tion, who allegedly had knowledge of facts concerning the

losses claimed by Gibbons. To limit expenses, Crawford

had agreed to make one of its Scottish distributors avail-

able in the United States in exchange for Gibbons’ com-

mitment to make the Hydrasun principals, who resided

in Scotland, available to Crawford, in the United States.

The Scottish distributor was depesed by Gibbons pur-

suant to the agreement, but despite repeated attempts by

Crawford, Gibbons failed to make available the Hydra-

sun principals. Crawford then obtained a court order

directing Gibbons to make the principals available in the

United States pursuant to the original agreement. The

principals later appeared in the United States, but their

depositions were not completed because they insisted on

leaving early for personal reasons. During these deposi-

tions, Crawford became aware that the principals had

been in the United States to confer with Gibbons prior

to the court’s order, but were not made available to

Crawford at the time. Crawford then requested a hear-

ing before a magistrate who ordered that Crawford be

afforded a full and fair opportunity to depose the prin-

cipals in Scotland and examine documents. Pursuant to

the magistrate’s order, Crawford sent three attorneys to

Scotland to take the depositions, but the principals re

fused to disclose certain business documents they con-

sidered confidential. The scheduled depositions concluded

with no testimony taken and no documents produced.

As a general rule attorney’s fees and travel expenses

incurred in connection with deposition taking, are not

usually taxable as costs. 4 J. Moore, W. Taggart & J.

10a

Wicker, Moore’s Federal Practice § 26.82 (2d ed. 1983).

Under circumstances evidencing bad faith, vexatiousness,

or oppressiveness, however, an award of such costs may

be made under the court’s general equitable power. See

Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.

2d 702 (1973) ; United States v. Bexar County, 89 F.R.D.

391, 394 n. 5 (W.D.Tex.1981); 4 Moore’s Federal Prac-

tice at | 26.82; 6 Moore’s Federal Practice at § 54.77[2).

In this case the district court expressly found that Gib-

bons acted vexatiously and in bad faith. The record

clearly supports the district court’s findings. Gibbons, in

fact, completely failed to defend against or even dispu'e

the facts upon whch the court’s findings were based.

We therefore affirm the district court’s award of these

costs under its general equitable power.

IV

The final and most important issue is the taxing of

expert witness fees. The Svrreme Court long ago estab-

lished as a general rule that expert witness fees are not

taxable as costs beyond the statutory per diem fee, mile-

age, and subsistence allowance provided in 28 U.S.C.

$1821. Henkel v. Chicago, St. Paul, Minnesota, and

Omaha Ry Co., 284 U.S. 444, 446, 52 S.Ct. 223, 224-25,

76 L.Ed. 386 (1932). The district court here, in a

thoughtful and carefully considered opinion, however, de-

cided that the Court modified the general rule when it

stated that “the discretion given district judges to tax

costs should be sparingly exercised with reference to ex-

penses not specifically allowed by statute.” Farmer v.

Arabian American Oil Co., 379 U.S. 227, 234-35, 85 S.Ct.

411, 416, 13 L.Ed.2d 248 (1964). The Third and Eighth

Circuits have interpreted Farmer to accord a district

court equitable discretion to award expert witness fees

when an expert’s testimony is “indipensable” to the deter-

mination of the case. See Paschall v. Kansas City Star Co.,

lla

695 F.2d 322, 338-39 (8th Cir.1982); Roberts v. S.S.

Kyriakoula L. Lemos, 651 F.2d 201, 206 (3d Cir.1981).

The district court, although recognizing that this circuit,

unlike the Third and Eighth circuits, had not formally

adopted the indispensability rule, believed that the door

to the adoption of this rule had been opened in Copper

Liquor, Ine. v. Adolph Coors Co., 684 F.2d 1087 (5th Cir.

1982). In Copper Liquor, we stated

Expert witnesses generally may be allowed only the

fees allowed “fact witnesses,” as prescribed by 28

U.S.C. § 1821. Courts of appeal have approved trial

court discretion to award the full fee charged by the

expert in exceptional circumstances, for example,

when the expert testimony was necessary or helpful

to the presentation of civil rights claims, or indis-

pensable to the determination of the case. If counsel

plan to seek allowance of the entire expert’s fee, the

better practice is to seek court apj.rcval before call-

ing the expert witness. The court should consider

these factors if counsel seek an allowance for experts

in excess of the fee allowed for fact witnesses.

Id. at 1100 (footnotes omitted) .

Although this statement in Copper Liquor, which is

unquestionably dictum, suggests that expert witness fees

may be recoverable in certain circumstances, we are com-

pelled to hold otherwise.’ Like the panel in Copper

Liquor, we are bound by a prior decision of this court,

decided after Farmer, that he'i courts have no authority

outside 28 U.S.C. § 1821 to award as costs expert witness

fees. Burgess v. Williamson, 506 F.2d 870, 879 (5th Cir.

1 Even if Copper Liquor was controlling and did permit the taxing

of expert witness fees, our decision would be no different because

Crawford did not seek court approval of the experts’ entire fees

before calling its expert witnesses. See Copper Liquor, 684 F.2d

at 1100.

12a

1975) ; see also Baum v. United States, 432 F.2d 85, 86

(5th Cir.1970) .?

In conclusion we affirm the district court’s assessment

of all costs except those representing expert witness fees

and remand to the district court for a reassessment of

costs consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND

REMANDED.

? Our decision today is not inconsistent with this court’s opinion

in Jones v. Diamond, 636 F.2d 1364, 1384 (5th Cir. 1981) (en banc).

In Jones, we held that recovery of expert witness fees above the

statutory maximum is permitted in civil rights case because of

Congress’ intent to apply a different rule in such cases and because

13a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

Civ. No. 79-1127

Section J

J.T. Grppons, INC.,

—against—

CRAWFORD FITTING COMPANY, et al.,

Defendants

Plaintiff,

MEMORANDUM OPINION

PALME.RI, J.

I. BACKGROUND

These cross motions deai with the allowance and dis-

allowance of costs in an antitrust action. The action in

question, brought under sections one and two of the Sher-

man Act, was tried to a jury from November 2, 1981, to

November 19, 1981. At the end of the entire case, a di-

rected verdict was entered in favor of defendants on all of

plaintiff’s claims. Defendants’ counterclaim for malicious

prosecution, alleging that plaintiff’s suit was part of a

scheme to wrongfully extort a distributorship from de-

fendant Crawford Fitting Co. (“Crawford”), was sub-

mitted to the jury. The jury returned a verdict in favor

of plaintiff on the counterclaim.' On November 24, 1981,

1 The jury answered “yes” to the following interrogatory: “Did

Gibbons bring this lawsuit in good faith after full disclosure of the

facts within the knowledge of Messrs. Richard and Ceci! Keeney to

their attorneys?”

l4a

judgment was entered dismis:.ng plaintiff's complaint

with costs to defendants and dismissing the counterclaim

without costs. On December 28, 1981, defendants’ motion

for judgment notwithstanding the verdict or new trial on

the counterclaim was denied.’

On May 9, 1983, the Fifth Circuit unanimously affirmed

this Court’s ruling in all respects. J.T. Gibbons v. Craw-

ford Fitting Co., 704 F.2d 787 (5th Cir.1983). The deaa-

line for petitioning the United States Supreme Court for

writs of certiorari passed without the filing of a petition

by any party on August 8, 1983, and the judgment en-

tered on November 24, 1981, in defendants’ favor became

final.

On November 30, 1983, defendant Crawford, on behalf

of all defendants, filed its bill of costs, together with a

supporting memoraadum and documentation. At a hear-

ing before the Clerk of the Court for the Eastern District

of Louisiana on December 9, 1983, at which no one ap-

peared on behalf of plaintiff, all costs requested by de-

fendants were taxed with the exception of expert witness

fees and attorneys’ fees and expenses incurred in connec-

tion with a discovery trip to Scotland. The total costs

taxed were $57,480.70. The amount of costs denied was

$150,480.70.

On December 15, 1983, plaintiff filed a motion to review

costs. Plaintiff's motion requests the setting aside of the

full amount of costs taxed against it on the grounds

(1) that the award of costs was barred under the doc-

trine of res judicata and collateral estoppel and (2) that

defendants’ bill of costs was not timely filed. In addition,

? This Court filed two opinions—one granting the defendants’

motion for a directed verdict and one denying defendants’ motion

for judgment notwithstanding the verdict on the counterclaim. J.T.

Gibbons, Inc. v. Crawford Fitting Co., Inc., 565 F.Supp. 167 and

186 (E.D. La. 1981).

l5a

plaintiff specifically challenges the costs taxed by the

clerk for charts, audio-visual aids and transcripts.

On December 16, 1983, defendants filed a motion for

review of costs, requesting this Court to exercise its dis-

cretion to award the costs denied by the clerk.

Il. DISCUSSION

A. Plaintiff's Motion for Review of Costs

1. Res judicata and collateral estoppel

Plaintiff contends that principles of res judicata and

collateral estoppel preclude the awarding of any costs to

defendants. Plaintiff claims that the amount sought by

defendants as costs was included in defendants’ $1,760,-

000 claim for damages in the counterclaim. Since the

jury found against the defendants on the counterclaim,

plaintiff argues that defendants may not now “relitigate”

the issue of their entitlement to these costs. Plaintiff's

argument is frivolous.

In the judgment entered on November 24, 1981, and

the decision granting defendants’ motion for directed ver-

dict filed on December 4, 1981, the Court dismissed plain-

tiff’s complaint and exercised its discretion under Fed. R.

Civ. P. 54(d) to award defendants the costs incurred in

defending a legally baseless antitrust suit. Nothing in

the decision denying defendants’ motion for judgment

notwithstanding the verdict on the counterclaim contra-

dicted this directive. In effect, plaintiff now asserts that

this Court erred in granting defendants their costs in the

main case.

Plaintiff’s brief is repleat with decisions enumerating

the general principles of res judicata and collateral estop-

pel. Not one of these decisions applies the doctrines of

res judicata or collateral estoppel to deny a litigant its

costs. The reason for this is that the doctrines of res

judicata and collateral estoppel have no applicability to

the issue of costs.

l6a

It is true that the doctrine of res judicata

litigant from relitigating issues

been raised in an earlier action.

ants are not “relitigating” anything. No new

been filed. Defendants have simply filed a bill

pursuant to this Court’s order, entered under F.

P. 54(d), allowing the defendants their costs in

trust action. The principles of res judicata have

cability under such circumstances.

Defendants have not “split” any cause of

ing precluded defendants from excluding

quested as costs from the counterclaim and

amount in a separate bill of costs.

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for their other expenses. The fact that defendants

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to include their demand for costs, as well as other ex-

penses, in their counterclaim, upon which the jury found

against them, does not deprive defendants of their entitle-

ment to a discretionary award of costs

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2. Timeliness of bill of costs

Plaintiff claims that defendants’ delay in filing its bill

of costs completely bars taxation of costs against plaintiff.

Plaintiff argues that to permit defendants to recover

costs now would violate the directive of Fed. R. Civ. P. 1

that the Federal Rules “be construed to secure the just,

speedy, and inexpensive determination of eve:y action.”

(Emphasis added). Plaintiff further contends that it has

been prejudiced by the filing of the bill of costs at this

time.

Judgment was entered in this case on November 24,

1981. The Fifth Circuit rendered its opinion of affirm-

ance on May 9, 1983, and the deadline for the filing of a

petition for certiorari passed on August 8, 1983. The bill

of costs herein was filed on November 30, 1983.

Rule 54(d) does not place any time limits upon the filing

of a bill of costs, and the determination of whether the

taxation of costs in a particular case is time-barred lies

entirely within the discretion of the trial court. It is true

that Rule 54(d) must be interpreted in light of the man-

date of Rule 1 that the Federal Rules be construed to

secure the just, speedy, and inexpensive determination of

every action. Thus, a delay in the filing of a bill of costs

which the trial court determines to be unreasonable would

lead to the denial of the taxation of costs. This, however,

is not such a case.

The cases cited by plaintiff are not in point. The case

of United States v. Pinto, 44 F.R.D. 357 (W.D. Mich.

1968), where a delay of almost four years in filing a bill

of costs was held to violate Rule 1, involved a simple con-

sent judgment from which no appeals followed. In Woods

Construction Co. v. Atlas Chemical Industries, Inc., 337

F.2d 888, 891 (10th Cir.1964), a local rule required the

filing of a bill of costs within 10 days after the entry of

judgment. In contrast, this case is not governed by any

local rule and involved an appeal to the Fifth Circuit and

18a

a possible petition for certiorari to the United States

Supreme Court. The facts in this case are closer, al-

though even more favorable to defendants here, to those

in United States v. Hoffa, 497 F.2d 294 (7th Cir.1974).

In Hoffa, costs of prosecution * were taxed to defendants

where a bill of costs had been filed within one year of the

entry of final judgment in the case. The Seventh Circuit

noted that the circumstances of the particular case must

be considered in determining whether the delay is reason-

able and that:

[wlhile eight years is obviously a long time, never-

theless—in view of the complicated nature of the

case, the series of appeals encompassing seven years,

the fact that the bill was filed within one year after

the final culmination of the case, the obvious situation

that the costs were not going to be paid until every

appellate avenue had been exhausted, and the absence

of a local rule—we are unable to say the delay vio-

lates Rule 1. Therefore, the district court did not

abuse its discretion in taxing costs to appellants.

Id. at 296.

The bill of costs in this case was presented within six

months after the Fifth Circuit’s decision in this case and

within four months after the passing of the deadline for

the filing of a petition for certiorari. Such a delay cannot,

in the absence of exceptional circumstances, be considered

unreasonable.

Plaintiff claims that it has been prejudiced by the

defendants’ delay in filing its bill of costs. However, the

plaintiff has not described the manner in which it has

been prejudiced, and this Court is unable to discern any

basis for this claim.’ Under the circumstances, this Court

* The rules for the imposition of costs in criminal cases are the

same as in civil cases. Jd. at 296.

* Plaintiff intimates that it would be prejudiced by the unavail-

ability of the trial judge to decide its motion. This concern has

proved unfounded.

19a

finds no unreasonable delay on the part of the defendants

in filing their bill of costs.

3. Specific items to which plaintiff objects.

a. Charts and audio-visual aids

Plaintiff objects to the award of costs for charts and

audio-visual aids. These charts and audio-visual aids

were the following:

Four charts were prepared by L.R. Langard concerning

the sale of Craword’s products in the North Sea area.

These charts were essential to refute plaintiff’s claim of

lost sales in that market. The charts were introduced

into evidence, and, although they were shown to the jury

in connection with expert testimony, they were not merely

illustrative of such testimony, but had independent sig-

nificance. See 6 Moore’s Federal Practice | 54. 77[6] at

1741.

Falls Advertising Co. (“Falls”) was retained by de-

fendants to provide essential audio-visual assistance, in-

cluding preparation of charts depicting defendants’ orga-

nization and distribution scheme. This distribution

scheme, attacked by plaintiff as anti-competitive, was the

focal point of the litigation. A clear understanding of

this scheme was essential and the use of charts exemplify-

ing it was necessary to the proper presentation of defend-

ants’ case. Falls also provided a projector and screen

which were used by both defendants and plaintiffs during

the testimony to enlarge and display simultaneously to the

Court, the jury, and the witness, key documents in the

case. Without this aid, the handling of exhibits would

have been time consuming and possibly confused. Indeed,

the Court had requested the use of such a device prior to

trial as a means of shortening the trial time and facilitat-

* Each of the charts for which costs are sought were listed in the

pretrial order entered pursuant to Fed. R. Civ. P. 16.

20a

ing the presentation of voluminous documentary evidence.

Both these purposes were fully served at trial.

Falls provided other necessary services. Prior to the

litigation, Richard M. Keeney, president of plaiutiff, un-

dertook to make extensive tape recordings of conversations

he initiated with various defendants concerning his al-

leged inability to obtain Crawford products.’ Falls

worked extensively with the tapes, filtering them to make

them easily understandable and devising an access sys-

tem. These tapes were introduced as evidence in the case.

The evidentiary value of these tapes was significantly

enhanced by Falls efforts.

This case involved a variety of alleged antitrust ‘iola-

tions. The issues involved in these various allegations

would have been very difficult for a jury to resolve, and

these inherent difficulties were exacerbated by the com-

plex corporate organization and distribution structure of

defendant Crawford and its numerous independent dis-

tributors. To prevent plaintiff from exploiting the high

probability of jury confusion in this case, it was neces-

sary for defendants to prepare and use at trial the charts

and audio-visual aids described above. This case would

not have been fairly and efficiently tried before the jury

without the benefit of the charts and audio-visual aids

for which costs are sought here.

In some courts, the costs challenged by plaintiff are

allowable under 28 U.S.C. § 1920(4).* See 6 Moore’s

Federal Practice { 54.77[6] at 1739 and cases cited at

n. 10. (“The reasonable expense of preparing maps,

charts, graphs, photographs, motion pictures, photostats

and kindred materials is taxable as costs under § 1920(4)

when necessarily obtained for use in the case.”) The

™ See J.T. Gibbons, Inc. v. Crawford Fitting Co., Inc., 565 F.Supp.

at 177 n.6 (E.D. La. 1981) (regarding substance of taped con-

versations. )

8 See note 15 infra for text of 28 U.S.C. § 1920.

2la

Fifth Circuit, however, has taken a restrictive view of

the materials covered under this provision, holding in

Johns Manville Corp. v. Cement Asbestos Products Co.,

428 F.2d 1381, 1385 (5th Cir. 1970), that “[t]here is no

statutory provision for the taxation of charts and exhib-

its as costs.” Given this view of the law, it appears that

none of the costs requested by defendants under 28 U.S.C.

§ 1920(4) can be awarded pursuant to that statute. A

trial court has equitable discretion, however, to award

costs not specifically provided for by statute. Farmer v.

Arabian American Oil Co., 379 U.S. 227, 235 (1964);

Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087,

1099 (5th Cir. 1982); Roberts v. S.S. Kyriakoula D.

Lemos, 651 F.2d 201, 206 (3rd Cir. 1981). The Fifth

Circuit impliedly acknowledged this principle in Johns

Manville, but disallowed an award of costs for charts

and exhibits because no prior court approval had been

obtained for the production of such materials. Johns

Manville, 428 F.2d at 1385. Accord Studiengesellschaft

Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir.

1983) (en banc); United States v. Bexar County, 89

F.R.D. 391 (W.D. Tex. 1981) ; Hiller v. Merrill, Lynch,

Pierce, Fenner & Smith, Inc., 60 F.R.D. 87, 90 (N.D.

Ga. 1973).

Given the necessity at trial for the charts and audio

visual aids for which costs are sought here and the com-

plexity of the case involved, this Court would, were it

writing on a clean slate, grant defendants these costs.

In view of the absence of prior court approval, however,

the Court is constrained by the law of the Fifth Circuit,

as set forth in the Johns Manville case, to deny costs for

all of these items except one—the costs for the operation

by Falls of the sereen and projector and for the prepara-

tion of slides for use in connection therewith. Although

no mention was made of costs at the time, the Court con-

siders that its own request prior to trial is tantamount

to prior court approval of these expenditures. This equip-

22a

ment undoubtedly shortened the trial and facilitated the

use of documentary evidence. Under the circumstances,

the Court would regard it as inequitable to disallow these

costs.

In sum, all costs for charts and audio-visual aids are

reluctantly denied with the exception of those costs asso-

ciated with the operation by Falls of the screen and

projector and the preparation of slides for use at trial.°

b. Transcripts

Plaintiff objects to the taxing of costs for transcripts

of depositions and daily trial transcripts.

Charges of the court reported for transcripts reason-

ably necessary for use in the case are recoverable as costs

un'er 28 U.S.C. § 1920." Plaintiff-acknowledges that de-

cendants may be entitled to costs for transcripts of dep-

ositions noticed by defendants. Plaintiff contends, how-

ever, that defendants are not entitled to costs for copies

of depositions noticed by plaintiff. Plaintiff cites two

cases in support of this proposition. The first case, Kane

v. Martin Paint Stores, Inc., 439 F.Supp. 1054 (S.D.N.Y.

1977), aff'd without opinion, 578 F.2d 1368 (2d Cir.

1978), does not appear to support plaintiff's argument.

The Kane court did disallow costs for depositions noticed

by the losing party. However, the disallowance rested on

the ground that the losing party had paid for these dep-

ositions, and thence “represented no expense to” the

prevailing party. /d. at 1059. Defendants herein do not

seek costs plaintiff incurred in taking the depositions,

but rather merely their own costs in obtaining for their

own use copies of depositions notice by plaintiff. The

logic of the Kane case is therefore inapplicable here.

* The Court has reviewed the supplemental affidavit of Mr. David

Shea, and finds that the amount of $18,494.28 was reasonably ex-

pended by defendants in connection with the operation of the

projector and screen and the preparation of slides for use at trial.

1 See note 15 infra for text of 28 U.S.C. § 1920.

23a

The other cases cited by plaintiff, Electronic Specialty

Co. v. International Controls Corp., 47 F.R.D. 158

(S.D.N.Y. 1969), along with several other district court

decisions cited by Professor Moore in his feueral practice

_ treatise, see 6 Moore’s Federal Practice 9 54.77[4] at

1724 n.21, does appear to support plaintiff’s conten-

tion. Other, more persuasive authority does not, how-

ever, support plaintiff’s position. In SCA Services, Inc.

v. Lucky Stores, 599 F.2d 178, 181 (7th Cir. 1979),

the Seventh Circuit held that “[T]he expense of deposi-

tion copies reasonably necessary for use in the case may

be included in the award of costs” and that this rule

“applies to copies of both an opponent’s and the prevail-

ing party’s own depositions.” Accord Murphy v. Amoco

Production Co., 588 F.Supp. 591, 594 (D.N.D. 1983),

aff'd on other grounds, No. 83-1533, slip op. (8th Cir.

March 6, 1984) ; Principe v. McDonald’s Corp., 95 F.R.D.

34, 37 (E.D. Va. 1982). The Seventh Circuit relied

heavily on the reasoning of a Fifth Circuit case, United

States v. Kolesar, 313 F.2d 835 (5th Cir. 1963), which,

although not specifically addressing the issue whether

costs are taxable for copies of an opponent’s as well as

a prevailing party’s deposition, directly supports the rule

adopted in SCA Services, Inc. See United States v.

Kolesar, 313 F.2d 838-40. See also Copper Liquor, Inc.

v. Adolph Coors Company, 684 F.2d 1087, 1099 (5th Cir.

1982) (reaffirming Kolesar) reconsidered en banc, 701

F.2d 542 (5th Cir. 1983) (relevant holding undisturbed) .

The Seventh Circuit noted:

Attorney’s offices are often distant from the court-

house where the original transcript of the deposition

is filed; but, even if they are not, the practicalities

of preparing a case for trial often require that the

attorneys have frequent and ready access to the

depositions, and that they be able to mark annota-

tions and cross-references on the pages.

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Cireuit in Kolesar, and, as the Seventh Circuit

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Plaintiff further contends that transcripts of

tions obtained merely for defendants’ convenience are

taxable as costs and that “[d]jefendants’ memo is sig-

nificantly lacking in specifics regarding the necessity of

deposition transcripts [they] obtained for use in this

case.”

Costs may be taxed under 28 S.C. § 1920 (2) for

deposition transcripts “necessarily obtained for use in the

case.” 28 U.S.C. § 1920 (2). A deposition need not be

used at trial to be taxable. Electronic Specialty Co. v.

International Controls Corp., 47 F.R.D. at 162. Rather,

such depositions are taxable as long as “the taking of

the deposition is shown to have been reasonably neces-

sary in the light of facts known to counsel at the time

it was taken.” Copper Liquor, Inc. v. Adolph Coors Co.,

684 F.2d 1087, 1099 (5th Cir. 1982). Depositions which

are merely investigative in nature are not taxable.

6 Moore’s Federal Practice 4 54.77(4] at 1723; Electronic

Specialty Co. v. International Controls Corp., 47 F.R.D.

at 167. However, the trial court has broad discretion to

allow such costs and the burden is on the losing party to

show the impropriety of taxing a particular deposition as

a cost. See Principe v. McDonald’s Corp., 95 F.R.D. at

36; Meder v. Everest & Jennings, Inc., 553 F.Supp. 149,

150 (E.D. Mo. 1982); Ingersoll Milling Machine Co. v.

Otis Elevator Co., 89 F.R.D. 433, 435 (N.D. Ill. 1981).

“Unless the opposing party interposes a specific objection

that a deposition was improperly taken or unduly pro-

if

longed, deposition costs will be taxed as having been

‘necessarily obtained for use in the case’ within the mean-

ing of 28 U.S.C. § 1920.” Meder v. Everest & Jennings,

Inc., 553 F.Supp. at 150. Accord George R. Hall, Ine.

v. Superior Trucking Co., 532 F.Supp. 985, 994 (N.D.

Ga. 1982); Federal Savings & Loan Insurance Corp. v.

Szarabajka, 330 F.Supp. 1202, 1210 (N.D. Ill. 1971).

Plaintiff, in contending that defendants have failed to

properly justify the taxation of depositions in this case,

fails to recognize that it is its burden to demonstrate

that the depositions should not be taxed. Plaintiff has

not advanced any reason why any of the depositions at

issue here should not be taxed and has thus totally failed

to meet this burden.

Moreover, defendants have adequately demonstrated in

their initial and supplemental memoranda and affidavits in

opposition to plaintiff's motion ** that all the depositions

at issue here were necessary for use in the antitrust case.

Depositions which are introduced into evidence at trial or

used during cros-examination are “necessary for use in

the case.” The depositions of the following witnesses were

introduced in whole or in part into evidence and/or used

for purposes of cross-examination at the trial of the anti-

trust case: Simon Thornhi’, Bernard Pemberton, Rich-

ard Keeney, Irving B. Ozanne, and Wilbur Daigle.

Other depositions, although not introduced into evidence

or used during cross-examination, were necessary for use

in the antitrust case in light of the facts known at the

time they were taken. The depositions of the following

persons fall into this category: Michael Kenney, Ken

Rolfs, Morris Forsythe, James Sullivan, Clifton Ryan,

Robert Douran, Henry Dauterive, David Schaub, Ralph

Fishman, and Cecil Kenney.

1. AJ] the affidavits and the supplemental memorandum requested

by the Court from defendants have been served upon plaintiff.

Plaintiff has informed the Court that it does not wish to respond

to any of these papers.

Michael Keeney was part owner and vice president of

plaintiff and thus was intimately acquainted with its op-

erations, including whether or not plaintiff had a source

of supply for values and fittings.

Ken Rolfs and Morris Forsythe were employees of

plaintiff responsible for taking orders from customers

and placing orders with suppliers. Each had knowledge

of plaintiff's purchases and sale of valves and fittings

from defendants and from other manufacturers of valves

and fittings. This knowledge was relevant to the boycott

issue of whether plaintiff had a source of supply of valves

and fittings and also to the definition of the market as

being broader than Crawford’s products. Moreover, Mr.

Forsythe had knowledge of the shipping practices of plain-

tiff, a key issue in this suit.

James Sullivan and Clifton Ryan were both employees

of plaintiff involved in export sales. As recounted in

plaintiff's witness list, each had knowledge of the opera-

tion of plaintiff's business, plaintiff’s relations with cus-

tomers and suppliers and the purchase and sale by plain-

tiff of products lines.

Robert Douran and Henry Dauterive were both poten-

tial trial witnesses who did accounting work for plaintiff.

As stated in the pretrial order, each had knowledge of the

costs and profitability of plaintiff, including its values

and fitting business, and the damages claimed by plaintiff

as a result of the alleged unlawful conduct of defendants.

Cecil Keeney, the father of plaintiff's owners, David

Schaub, one of the attorneys initially retained by plaintiff

in connection with this case and Ralph Fishman, another

of the attorneys first retained by plaintiff, were involved

in negotiations with defendant Crawford regarding an

alternate source of supply of Crawford products during

the time pla‘ntiff claimed it was being subjected to an

antitrust boycott. Their depositions were taken in order

27a

to help defendants prepare to defend plaintiff's boycott

claim."

Each of the above persons was a potential trial witness

at the time of trial, as confirmed by their having been

listed as “will call” or “may call” witnesses in the pretrial

order.

The Court finds that the depositions of the above per-

sons were necessarily obtained for use in the case. Fur-

thermore, given the complexity and size of the case, the

Court finds that copies of all deposition transcripts were

also necessarily obtained. See Studiengesellschaft Kohle

v. Eastman Kodak, 713 F.2d 128, 134 (5th Cir. 1983) ;

Capra, Ine. v. Ward Foods, Inc., 567 F.2d 1316, 1323

(5th Cir.1978), overruled on other grounds, Copper

Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.

1983) (en banc).

In sum, all deposition costs requested by defendants

are allowed.

Plaintiff also challenges the award of costs for daily

trial transcripts. Given the complexity of the case, the

amount claimed, and the length of the trial, daily tran-

seripts must be regarded as having been necessarily ob-

tained for use in the case, and costs for such daily tran-

scripts must be allowed. Plaintiff argues, however, that

defendants are not entitled to only “their share” of such

costs, without anywhere explaining what the term “their

share” means.

1 David Schaub and Ralph Fishman were called in plaintiff's

case in chief.

12 Although the Court finds, given the complexity of the case,

that all counsel had need for copies of the deposition transcripts at

issue here, the Court notes that it would be particularly unjust to

have expected defendants’ trial counsel, who resided in Cleveland,

Ohio, to have traveled to the courthouse in New Orleans whenever

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is the amount to which defendants are entitled.

B. Defendants’ Motion for Review of Costs ™

1. Expert witness fees

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

provides that, in the absence of other statutory authority,

“costs shall be allowed as of course to the

party, unless the court otherwise directs.” The issue here

is whether defendants are entitled to the amount re

quested as costs for expert witness fees.

It is clear that not all expenses incurred by a party in

connection with a lawsuit constitute recoverable costs.

Generally, courts award only those costs specifically

enumerated by statute, rule of court, or in the custom,

practice or usage of a particular district." See 6 Moore’s

Federal Practice § 54.77[1] at 1701 (2d ed. 1983).

The basic statutory enumeration of allowable costs is

28 U.S.C. § 1920." Among the expenses taxable as costs

“It should be noted that plaintiff specifically objects to the

awarding of costs for expert witness fees or expenses of the Scot-

land deposition.

™ The Court understands that it is the general policy of the

Clerk of the Court for the Eastern District of Louisiana not to tax

expert witness fees as costs.

™ Section 1920 provides :

A judge or clerk of any court of the United States may tax as

cost the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the steno-

graphic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily ob-

tained for use in the case;

(3) Tool charges for toll roads, bridges, tunnels and ferries, taxi-

cab fares between places of lodging and carrier terminals, and park-

$E228:.

United States v. Kolesar.

(5th Cir. 1963); Green v. American

F.2d 70, 77 (5th Cir. 1962); 6 Moore’s Federal Practice

Minnesota & Omaha

Cir. 1975); Baum v. United

* 54.77([5.-3] at 1734 (2d ed.

(1932) ; Jones v.

1981); Burgess v. W

Cir. 1970);

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F.2d 264, 267 (5th Cir. 1969). A recent trend has been

to allow the taxation of expert witness fees beyond the

statutory allowance in civil rights cases. Barry v. Me-

Lemore, 670 F.2d 30, 34 (5th Cir. 1982); Jones v. Dia-

mond, 636 F.2d 1364, 1382 (5th Cir. 1981). Authority

for such taxation of expert witness fees has been found

in congressional intent to encourage the initiation of

civil rights actions.

None of the exceptions set forth above apply in the

instant case,” and defendants do not attempt to invoke

any of these theories. Rather, defendants rely on a rule

recently adopted by the Third and Eighth Circuits which

holds that district courts have equitable discretion to

award expert witness fees exceeding the statutory allow-

ance whenever the expert’s testimony is indispensable to

the determination of the case. Roberts v. S.S. Kyriakoula

D. Lemos, 651 F.2d 201, 206 (3rd Cir. 1981); Paschall

v. Kansas City Star Co., 695 F.2d 322, 338-39, (8th Cir.

1982), rev’d on other grounds, Nos. 81-1963 and 82-1390,

slip op. (Feb. 6, 1984) (en banc); Welsh v. Likins, 68

F.R.D. 589, 596-97 (D. Minn.), aff'd 525 F.2d 987 (8th

Cir. 1975) (affirmed per curiam on basis of district

court’s opinion). See also Shakey’s Inc. v. Covalt, 704

F.2d 426, 437 (9th Cir. 1983) (denying costs for expert

witness fees, but implying that the “indispensability”

rule is valid in the Ninth Circuit). This rule has been

specifically rejected by the District of Columbia Circuit.

Quy v. Air America, Inc., 667 F.2d 1059, 1066-1068

(D.C. Cir. 1981). See also Illinois v. Sangamo Construc-

17 Expert witness fees beyond the statutory limitation have also

been awarded “when an unfounded action or defense is maintained

in bad faith, vexatiously, wantonly, or for oppressive reasons.”

Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631,

637 (5th Cir.), cert. denied, 404 U.S. 941 (1971). Despite the utter

baselessness of plaintiff's antitrust claims in this case, as set forth

in the Court’s earlier opinions, the jury verdict on the counterclaim

would appear to preclude reliance upon this theory for the awarding

of expert witness fees in this case. See note 1 supra.

32a

tion Co., 657 F.2d 855, 864-865 (7th Cir. 1981) (strict

rule limiting expert witness fees to statutory allowance,

but no specific discussion of indispensability rule).

In rejecting the indispensability rule, the District of

Columbia Circuit relied on the Supreme Court’s decision

in Henkel v. Chicago, St. Paul, Minnesota & Omaha Rail-

way Co., 284 U.S. 444 (1932). The Court stated:

Under [the predecessor statute to § 1821] additional

amounts paid as compensation, or fees, to expert wit-

nesses cannot be allowed or taxed in cases in the fed-

eral courts. The Congress has dealt with the subject

comprehensively and has made no exception of the

fees of expert witnesses.

Id. at 446."

Both the Third and Eighth Circuits have held, how-

ever, that a subsequent Supreme Court case, Farmer v.

Arabian American Oil Co., 379 U.S. 227 (1964), qualified

Henkel so as to allow district courts discretion to award

experts’ fees as costs when expert testimony is indis-

pensable to the resolution of the case. Roberts v. S.S.

Kyriakoula D. Lemos, 651 F.2d at 203-06; Paschall v.

Kansas City Star Co., 695 F.2d at 338-39. In Farmer,

the Supreme Court upheld a district court’s refusal to

tax travel expenses and stenographer’s fees as costs, un-

der circumstances in which the district judge found that

the prevailing party had deliberately run up a “huge bill

of costs.” The Supreme Court held:

We think that under the circumstances [the dis-

trict judge] could not be charged with any improper

exercise of the discretion vested in him by Rule

54(d). We do not regard that Rule as giving dis-

tric: judges unrestrained discretion to tax costs to

reimburse a winning litigant for every expense he

has seen fit to incur in the conduct of his case. Items

8 It should be noted that the Supreme Court has never had occa-

sion to construe the current versions of 28 U.S.C. §§ 1821 and 1920.

33a

proposed by winning parties as costs should always

be given careful scrutiny. . . . Therefore the discre-

tion give district judges to tax costs should be spar-

ingly exercised with reference to expenses not specifi-

cally allowed by statute. Such a restrained adminis-

tration of the Rule is in harmony with our national

policy of reducing insofar as possible the burdensome

cost of litigation.

Farmer, 379 U.S. at 235 (emphasis added).

In Paschall, the Eighth Circuit held that this language

in Farmer “authorizes district judges to award costs not

specifically enumerated in 28 U.S.C. § 1821.” Paschall,

695 F.2d at 338. The Eighth Circuit went on to hold that

this language affords district courts discretion to award

expenses for expert witness fees when expert testimony

is “crucial” or “indispensable” to the determination of

the case. Id. at 339.

The Third Circuit also found authority for the indis-

pensability rule in the Farmer opinion. After quoting

the language from Farmer relied on by the Eighth Cir-

cuit in Paschall, Judge Gibbons wrote:

Farmer appears to hold that Rule 54(d) author-

izes district judges to exercise discretion—albeit

“sparing’—to award costs not specifically enumer-

ated in § 1821. The Court seemed concerned to avoid

taxation of unnecessary and possibly vexatious costs

accumulated by a prevailing party. Hence the refer-

ence to a national policy in favor of restrained

award of costs. It is important to note that the

Court based its interpretation of Rule 54(d) not on

a Henkel-like theory of statutory preclusion of costs

not listed in § 1821, but on policy considerations

militating against award of unenumerated costs. A

district court should therefore carefully scrutinize

the prevailing party’s bill of costs in order to assure

that any award will compensate only those expendi-

34a

tures necessary to the litigation. While Farmer com-

mands perhaps a tight-fisted exercise of discretion

in order to insure moderation in the cost of litiga-

tion, it does not mandate parsimony to the extent of

precluding recovery of legitimate and indispensable

litigation expenditures.

We therefore agree with the District of Minnesota

and the Eighth Circuit that Farmer affords a dis-

trict court equitable discretion to award expert fees

when the expert’s testimony is indispensable to deter-

mination of the case.

‘Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d at 206

(Footnote omitted) .”

Although the Fifth Circuit has long adhered to the

basic rule that expert witness fees are generally not tax-

able as costs beyond the statutory allowance, this Circuit

has never had occasion to pass specifically on the validity

of the indispensability rule adopted by the Third and

Eighth Circuits. Moreover, the only Fifth Circuit case

specifically mentioning the indispensability rule appears

to leave the door open to its application in this Circuit:

Expert witnesses generally may be allowed only

the fees allowed “fact” witnesses, as prescribed by

28 U.S.C. § 1821. Courts of appeal have approved

trial court discretion to award the full fee charged

by the expert in exceptional circumstances, for ex-

ample, when the expert testimony was necessary or

helpful to the presentation of civil rights claims, or

indispensable to the determination of the case.

[citing Roberts and Weis" v. Likins. If counsel plan

1 Although the district court from which the appeal in Roberts

was taken had a local rule granting the court discretion to award

expert witness fees when the expert testimony was crucia! to the

resolution of the issues in the case, it is clear that the Third Cir-

cuit’s holding with respect to district court’s discretion to award

expert witness fees was not dependent on this local rule.

35a

to seek allowance of the entire expert’s fee, the bet-

ter practice is to seek court approval before calling

the expert witness. The court should consider these

f -tors if counsel seek an allowance for experts in

ss ieaicias-ataiiedentiae

Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087,

1100 (5th Cir. 1982) (citations omitted) (emphasis

added). reconsidered en banc, 701 F.2d 542 (5th Cir.

1981) (relevant language undisturbed) .”

Furthermore, the Copper Liquor Court specifically em-

braced the view stated by Judge Gibbons in Roberts that

the Supreme Court in Farmer acknowledged the equitable

discreticn of trial courts to award costs not specifically

enumerated by statute. /d. at 1099. In this connection,

the Fifth Circuit stated that expenditures other than

those provided for by statute “may be taxed as costs in

exceptional cases presenting unusual equitable considera-

tions in order to achieve justice.” Jd.”

2 Surprisingly, this case was not cited by defendants on this

issue.

The Court has considered the fact that no prior approval was

sought for the expenses at issue here. The Court notes, however,

that the Copper Liquor Court did not establish lack of prior approva!

as an absolute bar to the awarding of expert witness fees as costs,

as did the court in John Mansville with respect to charts and ex-

hibits. Under the circumstances of this case, the Court does not fee!

that the lack of prior approval requires the denial of these costs.

214 district court in this Circuit has repeatedly indicated its

approval of the rule that expert witness fees may be awarded as

costs where the expert’s testimony is indispensable to the presenta-

tion of the prevailing party’s case, although it has sometimes de-

clined to award such fees under the specific circumstances of a par-

ticular case. Worley v. Massey-Ferguson, Inc., 79 F.R.D. 534, 541

(N.D. Miss. 1978), citing with approval Yarbrough v. Town of

Ackerman, Civil Action No. EC 75-163-K (N.D. Miss. Feb. 25,

1977) ; Brooks v. Town of Sunflower, Civil Action No. GC 71-57-K

(N.D. Miss. Mar. 27, 1975) (cited and distinguished in Worley,

supra). See also Pate v. General Motors Corp., 89 F.R.D. 342, 344

itself free to adopt the persuasive reasoning of the Third

Cireuit in Roberts and the Eighth Circuit in Paschall.

and the Eighth Circuit in Paschall properly construed

pany Re cen ag me Rey raencaes pineal nw Ag

grant district courts discretion to award as costs “legiti-

mate and indispensable litigation expenses,” including ex-

Sais ina Uae Caan Uaceer Canina Son toe

by statute.” Roberts, 651 F.2d at 206. It is particularly

appropriate to award defendants the costs of indis-

pensable expert witness testimony under the circum-

stances of this case, where defendants were forced to

defend an extremely burdensome, vexatious, and totally

meritless array of antitrust claims.”

n. 2 (N.D. Miss. 1981) (stating that the general rule against the

taxing of expert witness fees beyond the statutory allowance “is

not inflexible,” and that “[u)nder unusual, exceptional or extraor-

dinary circumstances, in the interest of justice and fair play, ex-

pert witness fees may be allowable as part of costs”); Wade v.

Mississippi Cooperative Extension Service, 64 F.R.D. 102, 105 (N.D.

Miss. 1974) (citing and distinguishing Brooks, supra).

torship, may well constitute “exceptional circumstances” so as to

allow the awarding of costs for expert witness testimony under the

standard adopted by the District of Columbia Circuit.

23 Additionally, to became apparent during the trial that defend-

ants had been subjected to abusive documentary discovery, costing

they very considerable expense and inconvenience, and that plain-

tiff had made scant use of this discovery.

Eighth Circuit noted in Paschall, 695 F.2d at 339, issues

of economic impact are crucial in antitrust cases, and

Dr. Saving’s testimony was indispensable to the deter-

. mination of such issues in the case. Indeed, this Court

. relied heavily on Dr. Saving’s market and currency anal-

| ysis in deciding defendants’ motions for directed ver-

dicts.™

Dr. Phillip R. Robers, a partner with the independent

public accounting firm of Ernst & Whinney, also supplied

evidence crucial to the defense of plaintiff’s group boycott

claim. Dr. Robers’ testimony established that not only

was plaintiff undamaged by its inability to obtain prod-

ucts from deefndant Capital Value, but that it actually

reecived better delivery times and rates from another

supplier after its discontinuance by Capital. His testi-

mony was clearly necessary to this Court’s determination

that plaintiff had failed to prove any injury. The lack of

injury was central to the decision to grant directed ver-

* See J.T. Gibbons, Inc. v. Crawford Fitting Co., 565 F.Supp. at

180, 183, 185 n. 15.

dicts in defendants’ favor and was relied on by the Fifth

Circuit in affirming that ruling.”

Mr. James C. Boland, also of the Ernst & Whinney

firm, testified about plaintiff's claim of lost profits

ing out of defendants’ alleged refusal to deal. Mr. Boland

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at 181. Nor was his testimony relied upon by the

Cireui* in affirming this Court’s decision. Under

circumstances, Mr. Boland’s testimony cannot be

as indispensable, and costs for his testimony

fore denied.

In sum, the expert testimony of Drs. Savi

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costs, the Court determines that the amounts requested

for Drs. Saving’s and Rober’s testimony are reasonable.

The amounts so requested are hereby allowed.

2. Scotland deposition

Defendants ask this Court to exercise its equitable

discretion to award them as costs the expenses and attor-

ney’s fees incurred in connection with a journey to Scot-

% See J.T. Gibbons v. Crawford Fitting Co., 704 F.2d at 793 n. 4,

565 F Supp. at 180.

land to take certain depositions. The circumstances sur-

rounding this journey are as follows.

Hydrasus (Aberdeen) Ltd. was the customer in Aber-

deen, Scotland to whom plaintiff exports products it

purchased from defendant Crawford’s distributors.

Crawford’s Scottish distributor available in this country

at its own expense, in exchange for plaintiff's commit-

ment to use its “best efforts” to make Messrs. Cameron

and Frazer similarly available. The Crawford distributor

from Scotland, Dave Cheetham, was deposed by plaintiff

in the United States pursuant to this agreement early in

the litigation.

Attempts by defendants to depose Frazer and Cameron,

however, met with no success, despite repeated requests

by defense counsel. In early June of 1980, plaintiff stated

that it was bringing these witnesses in for the trial and

that defendants could depose them at that time, a pro-

posal clearly unacceptable to defendants. On June 6,

1980, a court order was entered directing that Stanley

Frazer and William Cameron be made available for dep-

osition in the United States, upon agreement by defend-

ants to pay their expenses.

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time and place in Scotland.

On July 20, defendants sent three attorneys, Messrs.

Mansour, Balhoff, and Cellini to take the ordered deposi-

president of defendant Crawford, the president of de-

fendant Capital Valve and a court reporter. No one ap-

peared on behalf of plaintiff. Hydresun was represented

by New Orleans counsel and by Scottish counsel.

At this time, Frazer and Cameron expressed a reluc-

tance to divulge the financial documents requested. De-

fense counsel explained that these documents were neces-

sary because of plaintiff's allegations of damage and be

cause of plaintiff's recent motion to join additional defen-

dants filed on June 19, 1980. These additional defendants

included authorized Crawford distributors in Scotland and

Norway who would, if joined, be required to furnish

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4la

financial data. Hydrasun declined to produce business in-

formation it regarded as confidential (fearing that it

would be revealed to its competitors), unless plaintiff

agreed to withdraw its motion to join defendants. By

telephone that same date, plaintiff's counsel declined to do

so. Accordingly, the deposition concluded, with no testi-

mony taken and no documents produced. On September

19, 1980, plaintiff voluntarily withdrew its motion to join

defendants.

Deferdants went to great expense to obtain orders com-

pelling discovery from Frazer and Cameron, to fly them

to the United States for essentially aborted depositions,

and to fly defense counsel to Scotland to resume the dep-

ositions pursuant to court order. All of this expense

ultimately counted for nothing, as the witnesses finally

refused to involve themselves in any way with the mat-

ter. This expense wes attributtable to plaintiff's manifold

evasions and vexatious changes of position.

The law is clear that attorneys’ fees and travel ex-

penses incurred in connection with the taking of a deposi-

tion usually are not taxable costs. United States v. Bexar

County, 89 F.R.D. 391, 394 n.5 (W.D. Tex. 1981); Hope

Basket Co. v. Product Advancement Corp., 104 F.Supp.

444, 451 (W.D. Mich. 1952); 4 Moore's Federal Practice

€ 26.82 (2d ed. 1983); 6 Moore's Federal Practice

€ 54.77(2] (2d ed. 1983). However, under circumstances

evidencing bad faith, vexatiousness or oppressiveness, an

award of such costs may be made under the court’s gen-

eral equitable power. See United States v. Bexar County,

89 F_R.D. at 394 n.5 (travel, lodging and subsistence ex-

penses incidert to taking of depositions not taxable, in

absence of prior court approval, without a showing of

ertraordinary circumstances); Hope Basket Co. v. Prod-

uct Advancement Corp., 104 F.Supp. at 451 (“no finding

of unfairness or bad faith on the part of the plaintiffs or

any finding of other equitable considerations which would

justify an award of these attorney’s fees and expenses as

taxable costs.”); 4 Moore’s Federal Practice 1 26.82 (2d

ed 1983); 6 Moore’s Federal Practice § 54.77(2) (2d ed.

1983). Such equitable considerations clearly exist in this

expended for the use of

the Court adopts the rate suggested by defendants, namely

the rate of 24 cents per mile, the maximum statutory

amount allowed government employees traveling on gov-

ernment business by private airplane. 5 U.S.C. § 5704.

At this rate, a total of $1,758.48 (24 cents x 7,327 miles)

is allowed for the transportation of all six persons travel-

ing to Scotland on defendants’ behalf. This amoun

surely far less than the commercial airfare

been and must be deemed reasonable under the circum-

stances.

In sum, $11,390.40 is allowed for attorneys’ fees and

general travel expenses incurred in connection with the

Scotland depositions and $1,758.48 is allowed for the use

of a private airplane to travel to Scotland and back.

Ill CONCLUSION

This court has pondered the argument that plaintiff

acte” as a private la» enforcer and that it and others

some

to law enforcement in this sense. The defendants

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It would be inequitable to relieve plaintiff of the obliga-

tion to pay the minimal costs assessed in this case.

The second answer is that the plaintiff in this case was

clearly interested in advancing its own financial interest.

Far from vindicating the public interest, there was con-

siderable evidence in the record indicating that the

Keeney’s were using this litigation to obtain a Louisiana

distributorship from Crawford Fitting Company.

served when a complex antitrust case containing all the

abstruse verbiage known only to antitrust practitioners,

and having no merit whatever, is thrust upon our over-

crowded court dockets. This is a blatant disservice to the

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ALLOWED

Services of subpoenas $ 89.55

Statutory witness fees 1,610.00

Daily trial transcripts 21,607.00

Costs incident to taking of

depositions and copies of

deposition transcripts 9,747.65

Operation of projector,

screen and preparation

of slides 18,494.28

Expert witness fees 8,480.70

Scotland Deposition 13,148.88

$151,178.06

DISALLOWED

Audio-visual aids $ 6,191.37

Expert witness fees 64,000.00

$70,191.37

In conclusion, defendants are hereby awarded $151,178.06

in costs.

SO ORDERED.

EDMUND L. PALMIERI

U.S.D.J.

New York, New York

April 2, 1984

46a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 83-4616

INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO

and its LOCAL No. 5-376,

Plaintiff-A ppellee,

Vv.

CHAMPION INTERNATIONAL CORPORATION,

Defendant-Appellant.

Filed June 2, 1986

Before: Clark, Chief Judge, Wisdom, Gee, Rubin,

Reavley, Randall, Johnson, Williams, Garwood,

Jolly, Higginbotham, Davis, Hill and Jones,

Circuit Judges.*

Opinion by Judge Carolyn Dineen Randall:

Concurrence and Dissent by Judge Alvin B. Rubin

Appeal from the United States District Court

for the Northern District of Mississippi

Norman L. Gillespie, Magistrate, Presiding

OPINION

CAROLYN DINEEN RANDALL, Circuit Judge:

Section 1920 of Title 28 allows the fees of witnesses

to be taxed as costs in federal court, while section 1821

* Due to his death on March 27, 1986, Judge Albert Tate, Jr. did

not participate in this decision.

47a

of the same title establishes the amount that may be so

taxed. The case before us today asks whether—and if so,

when—federal courts in non-diversity cases may tax as

costs the fees of non-court-appointed expert witnesses in

excess of the amount set forth in 28 U.S.C. § 1821. We

hold that the fees of non-court-appointed expert witnesses

are taxable only in the amount specified by § 1821, except

that fees in excess of that amount may be taxed when

expressly authorized by Congress, or when one of three

narrow equitable exceptions to the American Rule ap-

plies. Our holding overrules those portions of Jones v.

Diamond, 636 F.2d 1364 (5th Cir.) (en banc), cert. dis-

missed, 453 U.S. 950 (1981); Copper Liquor Inc. v.

Adolph Coors Co., 684 F.2d 1087 (5th Cir. 1982) (Cop-

per Liquor III), modified on other grounds en banc, 701

F.2d 542 (5th Cir. 1983), and their progeny approving

the taxing of excess expert witness’ fees as costs under

standards different from that here announced.

I.

International Woodworkers of America, AFL-CIO,

CLC (“IWA”) and one of its local unions sued Champion

International Corporation (“Champion”) alleging racial

discrimination in employment in violation of Title VII

and 42 U.S.C. § 1981. After a trial, the district court

entered judgment on the merits dismissing the claims of

all plaintiffs and assessing costs against IWA. We af-

firmed the district court’s judgment on the merits.

After denying Champion’s motion for attorneys’ fees,

the district judge referred all other questions to a magis-

trate. The magistrate awarded Champion $14,750.87 in

costs, of which $11,807.16 were for a portion of the serv-

ices of an expert witness employed by Champion for the

statistical aspects of the case. IWA objected to certain

parts of the award, particularly to the taxing of the ex-

pert witness’ fees in an amount exceeding that provided

for by § 1821, and the case returned to the district judge.

48a

The district judge sustained IWA’s objections to the

taxing of the excess expert witness’ fees, concluding that

this court in Jones v. Diamond had adopted for the pur-

pose of defendants’ excess expert witness’ fees the Chris-

tianburg standard set forth by the Supreme Court gov-

erning attorneys’ fees.' Because IWA’s suit did not meet

this standard, the district court refused to grant Cham-

pion expert witness’ fees in excess of the amount pro-

vided by § 1821.

On appeal, a panel of this court affirmed, rejecting

Champion’s argument that Copper Liquor III authorized

excess expert witness’ fees to a prevailing defendant if the

“expert testimony was necessary or helpful to the pre-

sentation of civil rights claims, or indispensable to the

determination of the case.” The district court’s finding

that the [WA-Champion litigation failed to meet the

Christiansburg standard remained unchallenged on ap-

peal; the panel thus declined to reach the applicability of

that standard. This court voted to rehear the case en

bane, thereby vacating the panel opinion. See Fifth Cir-

cuit Local Rule 41.3.

Il.

In the United States, contrary to the English practice,

a rule of limited recovery of the expenses of litigation

has developed to discourage costly litigation and guaran-

tee access to the courts. See, e.g., Fleischmann Distilling

Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967).

The “American Rule” draws a distinction between ex-

penditures incurred by order of the court to facilitate

consideration of the case, and expenditures incurred

merely to aid one party in the presentation of his side.

See Ex Parte Peterson, 253 U.S. 300, 316 (1920). The

*In Christiansburg Garment Co. v. EEOC, 484 U.S. 412 ( 1978),

the Supreme Court held that prevailing civil rights defendants are

entitled to attorneys’ fees only when the lawsuit is frivolous, un-

reasonable, or without foundation.

49a

former, in times past referred to as costs “between party

and party,” and now known as taxable costs, are recover-

able by the prevailing party under the American Rule;

the latter, denominated costs “as between solicitor and

client” and including such items as attorneys’ fees and

“other expenses entailed by the litigation not included in

the ordinary taxable costs recognized by statute,” see

Sprague v. Ticonic National Bank, 307 U.S. 161, 164

(1939), such as expert witness’ fees in excess of the

amount provided for by statute, are generally borne by

the litigants.

Before the merger of law and equity, courts at law

awarded to the prevailing party costs “between party and

party” as a matter of course. Courts sitting in equity

had discretion to award such costs, or a portion thereof,

as justice might demand. Federal courts sitting in equity

also had limited discretion to award costs “as between

solicitor and client” in certain exceptional cases. These

exceptions to the American Rule were nearly identical to

those recognized by the English High Court of Chancery:

the “foundation for the historic practice of granting re-

imbursement for the costs of litigation other than the

conventional taxable costs is part of the original author-

ity of ne chancellor to do equity in a particular situa-

tion.” Sprague, 307 U.S. at 166. The exceptions were

limited to cases involving preservation of a common

fund, vexatious or oppressive prosecution of a claim or

maintenance of a defense, Hall v. Cole, 412 U.S. 1, 5-6

(1972), or wilful disobedience of a court order. Toledo

Scale Co. v. Computing Scale Co., 261 U.S. 399, 426-28

(1923). Absent statute or equitable exception, however,

under the American Rule litigants paid their own costs

“as between solicitor and client.”

In Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240, 247 (1975), the Supreme Court decided

against fashioning a far-reaching exception to the Ameri-

can Rule for attorneys’ fees, determining instead that it

would be “inappropriate for the judiciary, without legis-

lative guidance, to reallocate the burdens of litiga-

tion. .” The Court reasoned that 28 U.S.C. § 1920(5)

and § 1923 controlled the amount that might be awarded

intent behind the statutory predecessor of § 1920 and

§ 1923: the Fee Bill of 1853. In enacting the 1853 Act,

Congress undertook to standardize and limit the costs

allowable in federal litigation. Alyeska, 421 U.S. at 251-

252. The 1853 Act did not permit courts to “tax against

the losing party ‘solicitor and client’ costs in excess of

the amounts prescribed” therein. Jd. at 258 n.30. True

to the American Rule, the Court concluded that “absent

statute or enforceable contract, litigants pay their own

attorneys’ fees.” Jd. at 257. Despite its decision not to

been repudiated by Congress. Jd. at 260. A federal court

might award reasonable attorneys’ fees to the prevailing

party in excess of the small sums permitted by § 1923

when: (1) the trustee of a fund or property, or a party

in interest, preserved or recovered the fund for the bene-

fit of others in addition to himself; (2) a party acted in

wilful disobedience of a court order; or (3) the losing

party had acted in bad faith, vexatiously, wantonly, or

for oppressive reasons.”

2 The last exception is consistent with our decison in Kinneer-

Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631 (5th Cir.),

cert. denied, 404 U.S. 941 (1971), in which we held that attorneys’

fees and evcess expert witness’ fees were taxable against a party

acting in bad faith.

The Supreme Court has recently reaffirmed the limited nature of

the exceptions to the American Rule, noting that most of the excep-

tions to the rule are statutory. Marek v. Chesney, 105 S. Ct. 3012,

3016 (1985). See also Webb v. Board of Education of Dyer County,

105 S. Ct. 1923, 1930 n.1 (1985) (Brennan, J., dissenting) (refer-

ring to the exceptions as “several narrow exceptions”).

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers neces-

sarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

* Section 1821 provides in relevant part:

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

day for each day's attendance. A witness shall also be paid the

attendance fee for the time necessarily occupied in going to and

returning from the place of attendance at the beginning and

end of such attendance or at any time during such attendance.

This section draws no distinction between ordinary and expert

witnesses, and it—or, more precisely, its statutory predecessor—

has been held to apply to both categories of witnesses alike. See

Henkel v. Chicago, St. P.. M. and O. Rwy., 284 U.S. 444 (1932).

52a

ity or one of the three limited equitable exceptions recog-

nized in Alyeska, tax as costs expert witness’ fees in ex-

cess of the amount set forth in § 1821. Moreover, because

the taxing of witness’ fees as costs has been expressly

provided for by federal statute, federal courts cannot tax

excess fees as costs under Fed. R. Civ. P. 54(d), which

provides for court discretion to tax costs “[e] xcept where

express provisions therefor is made either in a statute of

the United States or in these rules” (emphasis added) .*

Our ruling is commanded by the Supreme Court’s hold-

ing in Henkel v. Chicago, St. P., M. and O. Rwy., 284

U.S. 444 (1932). Citing a statutory predecessor to

§ 1920 and § 1821, the Court found that because federal

law made express provision for the amount payable and

taxable as witness’ fc :, “additional amounts paid as com-

pensation, or fees, to expert witnesses cannot be allowed

or taxed as costs in cases in the federal courts.” Jd. at

446. The Court further observed that “Congress has

dealt with the subject [of witness’ fees] comprehensively

and has made no exception of the fees of expert wit-

nesses.” Jd. at 447. Although Henkel was a case decided

“at law,” the subsequent merger of law and equity ef-

fected by the adoption of the Federal Rules of Civil Pro-

cedure does not alter the result in Henkel in view of the

* Federal Rule of Civil Procedure 54(d) provides in pertinent

part: “Except when express provision therefor is made either in a

statute of the United States or in these rules, costs shall be allowed

as of course to the prevailing party unless the court otherwise

directs. .. .” The Rule embodies the notion applicable to all civil

actions after the merger of law and equity that, except as otherwise

ex; ressly provided by statute or rule, costs should be allowed as of

course to the prevailing party. A federal court in its discretion

could direct that certain costs, otherwise allowed as a matter of

course, not be allowed.

That Rule 54(d) cannot be used to circumvent the limits on costs

set forth in § 1920 and § 1821 was recognized by the drafters of the

Rule. The Advisory Committee’s Notes to Rule 54(d) emphasized

that the terms of the statutory predecessor of § 1920 remained

“unaffected by the rule.”

58a

specific language in Fed. R. Civ. P. 54(d) dealing with

costs which are covered by express federal statutes.

The Court’s reasoning in Alyeska in the analogous area

of attorneys’ fees further compels our conclusion that ex-

pert witness’ fees are generally not recoverable beyond

the amount specified by statute. As noted above, like the

provisions before the Alyeska court, those before us today

are statutory heirs of the Fee Bill of 1853. The congres-

sional intent found relevant by the Supreme Court in

Alyeska also governs here. The 1853 Act “specif[ied] in

detail the nature and amount of the taxable items of

costs in the federal courts.” Alyeska, 421 U.S. at 252.

The Act did not permit the taxing of excess “solicitor

and client” costs. Jd. at 258 n.30. Congress has not since

“retracted, repealed or modified the limitations on tax-

able fees contained in the 1853 statute and its succes-

sors.” Id. at 260. Just as Congress in the Fee Bill of

1853 extended no “roving authority to the Judiciary to

allow counsel fees as costs or otherwise whenever the

courts might deem them warranted.” Id., so too Con-

gress extended no “roving authority” to allow expert wit-

ness’ fees in excess of the amount specifically provided

for by statute.*

Further, numerous statutes expressly allow federal

courts to award the full amount of expert witness’ fees

as costs of litigation.? Given Congress’ ability to provide

* Section 1920(6) allows the court to tax as costs the compensa-

tion of court-appointed experts. Our holding today recognizes that

§ 1920(6) acts in effect as a safety-valve, permitting the full com-

pensation of court-appointed expert witnesses to be taxed as costs

after notice and an opportunity to object to their appointment by

the court.

7 At least twenty-eight statutes provide for the taxing of expert

witness’ fees as costs in civil actions, albeit under varying stand-

ards: (1) Consumer Product Safety Act, 15 U.S.C. §§ 2060(c)

(action for review of consumer product safety rule). 2072(a)

(action by person injured by one in knowing violation of consumer

54a

explicitly for the taxing of excess expert witness’ fees as

costs, we should not infer congressional intent to award

product safety rule). 2073 (action for enforcement of consumer

product safety rule); (2) Toxic Substances Control Act, 15 U.S.C.

§§ 2618(d) (action for review of rule regulating toxic substances),

2619(c) (2) (citizen’s action to compel compliance with regulations

controlling toxic substances), 2620(b)(4)(C) (action to compel

initiation of rulemaking proceeding regarding toxic substance) ;

(3) Petroleum Marketing Practices Act, 15 U.S.C. § 2805(d) (3)

(action to enforce provisions governing franchise relationship in

petroleum marketing practice) ; (4) National Historic Preservation

Act Amendments of 1980, 16 U.S.C. § 470w-4 (action for enforce-

ment of provisions regarding national historic preservation; (5)

Endangered Species Act of 1973, 16 U.S.C. § 1540(g) (4) (citizen’s

action to compel compliance with provisions concerning endangered

species); (6) Public Utility Regulatory Policies Act of 1978, 16

U.S.C. § 2632(a)(1) (proceeding involving electric utility); (7)

Tax Equity and Fiscal responsibility Act of 1982, 26 U.S.C.

§ 7430(a), (ce) (1) (A) (ii) (action brought by or against United

States in connection with determination, collection, or refund of

any tax, interest, or penalty under Internal Revenue Code); (8)

Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(A) (as

amended by Pub. L. 99-80, 99 Stat. 184, 186) (any non-tort civil

action brought by or against United States); (9) Surface Mining

Control and Reclamation Act of 1977, 30 U.S.C. §1270(d) (civil

action to compel compliance with provisions governing surface

mining and reclamation); (10) Deep Seabed Hard Mineral Re-

sources Act, 30 U.S.C. § 1427(c) (civil action for equitable relief

against person in violation of provisions regulating exploration

and commercial recovery by U.S. citizens of deep seabed hard

mineral resources) ; (11) Federal Oil and Gas Royaity Management

Act of 1982, 30 U.S.C. § 1734(a) (4) (state action to recover royalty,

interest, or civil penalty with respect to any oil and gas lease on

federal lands located within the state); (12) Longshoremen’s and

Harbor Workers’ Compensation Act, 33 U.S.C. § 928(d) (action for

recovery of compensation under LHWCA); (13) Federal Water

Pollution Control Act, 33 U.S.C. §1365(d) (citizen’s action against

person in violation of water pollution prevention and control provi-

sions); (14) Marine Protection, Research, and Sanctuaries Act of

1972, 33 U.S.C. §1415(g)(4) (citizen’s suit against person in

violation of ocean dumping standards); (15) Deepwater Ports Act

of 1974, 33 U.S.C. §1515(d) (citizen’s action against persons in

violation of deepwater port provisions); (16) Act to Prevent Pollu-

55a

such costs in the absence of an express statute so pro-

viding. Moreover, a statute which provides only for an

tion from Ships, 33 U.S.C. § 1910(d) (actions authorized by provi-

sions governing prevention of pollution from ships); (17) Safe

Drinking Water Act, 42 U.S.C. § 300j-8(d) (action to compel com-

pliance with provisions concerning the safety of public water sys-

tems); (18) Noise Control Act of 1972, 42 U.S.C. § 4911(d) (citi-

zen’s suit to compel compliance with noise control provisions) ; (19)

Energy Reorganization Act of 1974, 42 U.S.C. § 5851(e) (2) (action

for protection of employee of the NRC, an NRC licensee, an appli-

cant for an NRC license, or a contractor or subcontractor of an NRC

licensee or applicant); (20) Energy Policy and Conservation Act,

42 U.S.C. §6305(d) (citizen’s action to compel compliance with

provisions concerning the energy conservation program for con-

sumer products other than automobiles); (21) Resource Conserva-

tion and Recovery Act of 1976, 42 U.S.C. § 6972(e) (citizen’s action

to compel compliance with provisions regarding solid waste dis-

posal); (22) Clean Air Act, 42 U.S.C. §§ 7413(b) (action brought

by EPA administrator against owner or operator of major sta-

tionary source of air pollution in violation of provisions concerning

air pollution prevention), 7604(d) (citizen’s suit to require compli-

ance with provisions concerning air pollution prevention), 7607 (f)

(action for review of rules promulgated by EPA administrator

concerning air pollution prevention); (3) Clean Air Act Amend-

ments of 1977, 42 U.S.C. § 7622(b) (B), (e) (2) (action for protec-

tion of employee assisting in proceeding enforcing provisions on air

pollution prevention); (24) Powerplant and Industrial Fuel Use

Act of 1978, 42 U.S.C. § 8435(d) (citizen’s suit to compel compli-

ance with provisions governing power plant and industrial fuel

use); (25) Ocean Thermal Energy Conversion Act of 1980, 42

U.S.C. §9124(d) (citizen’s action to compel compliance with pro-

visions regarding ocean thermal energy conversion); (26) Outer

Continental Shelf Lands Act Amendments of 1978, 43 U.S.C.

§ 1849(a) (5) (action to compel compliance with provisions govern-

ing Outer Continental Shelf leasing program); (27) Natura! Gas

Pipeline Safety Act, 49 U.S.C. § 1686(e) (citizen’s action against

persons in violation of provisions concerning natural gas pipeline

safety); (28) Hazardous Liquid Pipeline Safety Act of 1979, 49

U.S.C. § 2014(e) (citizen’s action against persons in violation of

provisions concerning hazardous liquid pipeline safety).

Further, at least three other statutes expressly provide for the

taxing of expert witness’ fees as costs in administrative proceed-

ings: (1) Federal Trade Commission Improvement Act, 15 U.S.C.

56a

award of “costs” or “attorneys’ fees” but which fails to

address expert witness’ fees will not be construed to

authorize the taxing of expert witness’ fees in excess of

the § 1821 amount.

The Supreme Court’s holding in Farmer v. Arabian

American Oil Co., 379 U.S. 227 (1964), does not com-

mand a rule different from that today announced.

Farmer presented the Supreme Court with the question

whether, in view of Rule 45(e)’s command that witnesses

cannot be compelled to travel more than 100 miles, a

party who procured their voluntary attendance by paying

the witnesses’ transportation expenses could have those

expenses taxed as costs against a defeated adversary.

The Supreme Court held that the trial court did not

abuse its discretion under Rule 54(d) in refusing to tax

certain items as cost. In dicta, the court explained:

“the discretion given district judges to tax costs should

be sparingly exercised with reference to expenses not

specifically allowed by statute.” Farmer, 379 U.S. at 235

(emphasis added). Whatever import this quoted lan-

guage carries for the assessment of expenses not specifi-

cally allowed by statute, it is not relevant here, for ex-

pert witness’ fees have been comprehensively dealt with

by Congress in § 1920 and § 1821. In addition, the Court

in Farmer upheld the exercise of the district court’s dis-

cretion under Rule 54(d) to refrain from taxing certain

expenses as costs; to rely on Farmer to justify the af-

firmative taxing of witness’ costs in excess of the § 1821

amount would turn Farmer on its head.

We overrule those portions of our prior opinions sug-

gesting standards for the taxing of excess expert witness’

§ 57a(h) (1) (participation in rulemaking proceedings of Federal

Trade Commission regarding unfair or deceptive acts or practices) ;

(2) Toxic Substances Control! Act, 15 U.S.C. § 2605 (c) (4) (A) (par-

ticipation in rulemaking proceeding regarding hazardous chemical

substances and mixtures); (3) Public Utility Regulatory Policies

Act of 1978, 16 U.S.C. §825q-1(b) (2) (proceedings before Office of

Public Participation).

57a

fees different from that now adopted. In Jones v. Dia-

mond, we acknowledged that expert witness’ fees were

generally recoverable only in the amount prescribed by

§ 1821, but determined nevertheless that “Congress had

manifested an intent’on that a different rule be applied

for civil rights plaintiffs.” 636 F.2d at 1382. District

courts had “in many instances” awarded “the full fees

of experts on the ground that their testimony and assist-

ance were necessary or helpful in representing clients in

civil rights litigation.” Id. As noted by the Jones dis-

sent, however, the majority cited no act of Congress to

support its decision, but relied only on a single sentence

from “a Senate Report concerning legislation which

could have contained . . . a provision [authorizing the

award of excess expert witness’ fees as costs] but did

not.” Id. at 1391 (Coleman, C.J., dissenting) (emphasis

in original). The single cited sentence in the Senate Re-

port does not authorize the taxing of excess expert wit-

ness’ fees as costs, and the Jones holding on excess expert

witness’ fees cannot stand in light of the rule announced

today.

In Copper Liquor III, an antitrust case, we indicated

in a part of the opinion entitled “Section 1920 Costs” that

trial courts had discretion to award excess expert wit-

ness’ fees in “exceptional circumstances, for example,

when the expert testimony was necessary or helpful to

the presentation of civil rights claims, or indispensable

to the determination of the case.” 684 F.2d at 1100

(footnotes omitted). This conclusion that § 1920 author-

izes the award of excess expert witness’ costs in “excep-

tional circumstances” is overruled.*

® We also overrule that portion of Berry v. McLemore, 670 F.2d

30, 34 (5th Cir. 1982), in which we relied on Jones to find an abuse

of discretion in the district court’s failure to assess as an item of

costs the full fee of an expert witness who was “important” to the

plaintiff’s § 1983 case. Our holding on excess expert witness’ fees

in Greenhaw v. Lubbock County Beverage Ass’n, 721 F.2d 1029,

1033 (5th Cir. 1983), also cannot stand in light of the rule adopted

above.

58a

ITI.

Given the principles set out in Part II of this opinion,

we now affirm, albeit on different grounds, the district

court’s denial of expert witness’ fees in excess of the

amount provided for in 28 U.S.C. § 1821. The statutes

applicable here, 42 U.S.C. § 1988 and § 2000e-5 ( k), pro-

vide for the award of attorneys’ fees to prevailing par-

ties, but make no mention of excess expert witness’ fees.

None of the equitable exceptions to the American Rule is

here claimed. Champion thus must content itself with

the amount recoverable for expert witnesses under § 1821.

IV.

We hold that the fees of non-court-appointed expert

witnesses are taxable by federal courts in non-diversity

cases only in the amount specified by § 1821, except that

fees in excess of that amount may be taxed when expressly

authorized by Congress, or when one of the three narrow

equitable exceptions recognized by Alyeska applies. We

direct the district courts in the exercise of our supervisory

power to apply the rule announced today to all pending

cases.

For the above reasons, the judgment of the district

court is AFFIRMED.

No. 83-4616 International Woodworkers v. Champion

No. 84-3332 Gibbons v. Crawford Fitting Company

ALVIN B. RUBIN, J., concurring in the result in Jnter-

national Woodworkers of America v. Champion Interna-

tional Corp., and dissenting in J.T. Gibbons, Inc. v. Craw-

ford Fitting Co., et al.*

* Judges Wisdom, Johnson, and Williams join in Judge Rubin’s

opinion concurring in the result in International Woodworkers of

America v. Champion International Corp., and Judges Goldberg,

Johnson, and Williams join in his dissent in No. 84-3332~—J. T.

Gibbons, Inc. v. Crawford Fitting Company, et al.

59a

The majority opinion today fashions a rule that has not

been adopted by any other circuit. It applies that rule to

the recovery of expert witness fees without considering

the recoverability of other litigation expenses. And it ap-

plies that rule without distinction to two dissimilar cases

in which the recovery of expert witness fees is sought on

completely different bases. In Woodworkers, a defendant

who was the prevailing party in an employment discrimi-

nation suit requests expert witness fees as a litigation

expense incidental to an award of attorney’s fees author-

ized by The Civil Rights Attorney’s Fees Awards Act of

1976. 42 U.S.C. § 1988. In Gibbons, the defendant who

prevailed in an antitrust suit invokes the court’s discretion

under Federal Rule of Civil Procedure 54(d) to recover

costs, including the fees of expert witnesses for courtroom

testimony.

Each of these cases involves a different question. When

a statute authorizes an award of attorney’s fees to the

prevailing party in addition to costs, as in Woodworkers,

that party should not be denied the right to recover all

those expenses for which an attorney would normally bill

his client. There is no reason to distinguish, in this re-

spect, between expert witness fees and the myriad other

costs incident to litigation that are incurred by a lawyer

and billed to his client. While the majority deals expressly

only with expert witness fees, the effect of its rationale

must inevitably extend to a denial of all other costs of

litigation, save reimbursement for the personal services

of the lawyer and for those limited costs specified in 28

U.S.C. § 1920.

If, like the victor in Gibbons, the prevailing party does

not have a statutory right to recover attorney’s fees, he

may not recover either his lawyer’s fees or his lawyer’s

expenses, but he may request that the district court exer-

cise its discretion under Rule 54(d) to award the costs of

litigation, including the fees paid to experts for testifying

in court.

60a

Neither the court’s general discretion to tax costs, nor

its determination of which expenses to include in a statu-

torily authorized award of attorney’s fees is, or should be,

governed by the standards that define the court’s equi-

table powers to award attorney’s fees, as summarized in

Alyeska Pipeline Service Co. v. Wilderness Society.1 The

application of a single rule to both kinds of cases obliter-

ates the important differences between them and risks

overriding Congress’ intent in authorizing civil rights

attorney’s fees.

The majority’s rule produces illogical results: Absent

a fee-shifting statute, expert witness fees may be re-

covered when (and only when) attorney’s fees would be

permitted under the Alyeska rule. If, however, Congress

has enacted a statute explicitly authorizing the award of

attorney’s fees in an effort to shift the burden of litigation

expenses from the prevailing party to the wrongdoer,

expert witness fees are not recoverable even though attor-

ney’s fees are.

I.

Both cases before us are affected, although not resolved,

by the statutes that govern the taxation of costs in federal

courts. 28 U.S.C. § 1920, set forth in ful] in the footnote,’

+421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

* 28 U.S.C. § 1920 provides:

A judge or clerk of any court of the United States may tax as

costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses ;

(4) Fees for exemplification and copies of papers necessarily

obtained for use in the case;

(5) Docket fees under section 1923 of this title;

6la

lists certain costs that courts are permitted to tax. Its

language is neither mandatory nor exclusive. It permits

the taxing of fees for court-appointed expert witnesses,

and the taxing of limited costs for ordinary witnesses, set

by 28 U.S.C. § 1821 at thirty dollars per day plus a travel

allowance. Section 1920 does not mention fees for expert

witnesses except for those appointed by the court. The

significance of this omission for the two cases before us

depends on a careful review of the questions they present.

The prevailing defendant in Woodworkers seeks to

recover both attorney’s fees and expert witness fees under

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

U.S.C. § 1988. That statute authorizes the court, “in its

discretion,” to “allow the prevailing party . . . a reason-

able attorney’s fee as part of the costs.” Woodworkers,

therefore, poses a question of statutory interpretation:

Did Congress, in enacting § 1988, intend to allow a pre-

vailing party compensation only for fees actually paid to

the lawyer himself for legal services rendered, in addition

to the routinely recoverable costs listed in § 1920, or did

it also intend to allow recovery of the attorney’s expenses

and other necessary and reasonable costs of litigation?

Gibbons, however, poses a different question. That suit

was brought under the Clayton Act, which permits the

award of costs and attorney’s fees only to a prevailing

plaintiff.* A victorious defendant may recover costs only

by invoking the court’s general discretion under Federal

Rule of Civil Procedure 54(d). The question presented,

therefore, is whether the court’s discretion permits the

(6) Compensation of court appointed experts, compensation of

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance,

included in the judgment or decree.

3 42 U.S.C. § 1988 (1982).

*15 U.S.C. § 15 (1982).

62a

award of expert witness fees, and if so, whether the court

abused its discretion in this case.

Il.

Section 1988 should be interpreted, I submit, to include

within the phrase “attorney’s fees as part of the costs”

not only fees for a lawyer’s services and those costs spe-

cified in § 1920, but all of the reasonable expenses of liti-

gation that a privately retained lawyer would usually bill

to his client. The Act’s legislative history makes clear

that an attorney who recovers his fee under § 1988 should

receive neither more nor less than an attorney who is paid

by his client. This means that office overhead and secre-

tarial expense, normally paid by the attorney out of his

fee, whether fixed at a stated amount, or calculated hourly

or on some other basis, should not be awarded separately.

However, the court should award other reasonable and

necessary costs that an attorney incurs and normally bills

separately to the client, such as travel costs, long-distance

telephone bills, fees paid to consultants, the costs of pre-

paring exhibits, and any other of the multitudinous ex-

penses of litigation.

Expert witness fees are not so singular as to be treated

differently from all other litigation expenses. A court’s

authority to award these expenses comes neither from the

equitable powers described in Alyeska Pipeline Service Co.

v. Wilderness Society,’ nor from the courts’ limited au-

thority under § 1920, nor from its general discretion pur-

suant to Rule 54(d), but from The Civil Rights Attorney’s

Fees Awards Act itself, and from Congress’ unequivocal

Statement of the Act’s purpose.

®* One commentator has Suggested that § 1920 should limit the

amounts of costs awarded incident to attorney’s fees for the basic

categories of costs that the statute covers. See Bartell, Taxation

of Costs and Awards of Expenses in Federal Court, 101 FRD 553,

595-96 (1984).

° 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).

63a

Although the statute explicitly refers only to the award

of attorney’s fees, Congress made clear that attorneys

were to be paid “as is traditional with attorneys compen-

sated by a fee-paying client.”" As the Act’s sponsor,

Representative Drinan, stated during the House debate,

“I should add that the phrase ‘attorney’s fee’ would in-

clude .. . all incidental and necessary expenses incurred

in furnishing effective and competent representation.” *

These remarks are consistent with the frequent observa-

tion that private enforcement of the civil rights laws de-

pend on the citizens’ “opportunity to recover what it costs

them to vindicate these rights in court.”* To fulfill its

purpose, the Act necessarily authorized reimbursement for

all the resources necessary for “effective access to the

judicial process.” *® “Congress must insure [that civil

rights litigants] have the means to go to court and to be

effective once they get there,” ™ because “[i]f the cost of

private enforcement actions becomes too great, there will

be no private enforcement.” * And, if prevailing plaintiffs

or their attorneys must bear the burden of prohibitive

expert witness fees, the civil rights laws will be enforced

either less frequently or less effectively than Congress

intended.

Although Woodworkers involves a prevailing civil

rights defendant unaffected by these policy considerations,

the statute does not distinguish between prevailing parties

7S. Rep. No. 1011, 94th Cong. 2d Sess. 6 (1976).

§ 122 Cong. Rec., 35,123 (1976) (emphasis added).

*S. Rep. No. 1011, 94th Cong. 2d Sess. 2 (1976) ; see also, e.g.,

122 Cong. Rec. 31,471, 33,313 (1976).

1° H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976) (emphasis

added).

11 122 Cong. Rec. 33,313 (1976) (emphasis added).

12S. Rep. No. 1011, 94th Cong., 9d Sess. 6 (1976). See also Evans

v. Jeff 0., —— US. —,

(Brennan, J., dissenting).

54 U.S.L.W. 4359, 4367-68 (1986)

64a

as to the expenses that are reasonable, and Christiansburg

Garment Co. v. E.E.0.C.% requires that, when the com-

plaint brought proves to be frivolous or unfounded, the

defendant must be awarded whatever expenses the plain-

tiff might have recouped. The rule propounded by the

majority today in the case of a prevailing civil rights de-

fendant applies equally to victorious civil rights plaintiffs.

Although today’s application of the rule affronts no con-

gressional policy, its primary effect in the future will be

seen in the financial handicap it imposes on the civil] rights

plaintiffs that Congress sought to assist.

As the Eleventh Circuit has written in Dowdell v. City

of Apopka, Fla. :

Reasonable attorneys’ fees under the Act must in-

clude reasonable expenses because attorneys’ fees and

expenses are inseparably intertwined as equally vital

components of the costs of litigation. The factually

complex and protracted nature of civil rights litiga-

tion frequently makes it necessary to make sizeable

out-of-pocket expenditures which may be as essential

to success as the intellectual skills of the attorneys.

If these costs are not taxable, and the client, as is

often the case, cannot afford to pay for them, they

must be borne by counsel, reducing the fees award

correspondingly.

. . « [I]f the real income of civi] rights litigators is

decreased because they must absorb costs which are

generally billable in other types of cases, the market

result will be to channel attorneys toward more

remunerative types of litigation. Decreasing the

supply of attorneys necessarily decreases the access

to the courts of victims of civil] rights violations.**

8 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

4 698 F.2d 1181, 1190-91 (11th Cir. 1983).

65a

ITT.

The linchpin of the majority opinion is its conclusion

that expert witness fees are sufficiently analogous to attor-

ney’s fees that both should be controlled by the guidelines

set out in Alyeska. Despite this perceived analogy, the

majority denies that Congress might have intended expert

witness fees and other out-of-pocket expenses to be in-

cluded as inciden:al expenses within an award of attor-

ney’s fees or costs. In so holding, the majority takes a

path inconsistent with that chose by every other circuit.

It supports this novel result by reasoning that, because

Congress has expressly provided for the award of expert

witness fees in some statutes, it must therefore have in-

tended to exclude them in all other instances, and by find-

ing that the word “costs” refers only to those limited costs

specified in § 1920.

The fact that Congress has expressly mentioned expert

witness fees in addition to attorney’s fees and costs in

more recently adopted expense-shifting statutes does not

persuade me that the fee-shifting phrases in the Civil

Rights Act, the Clayton Act, and all other earlier enacted

Statutes were intended to exclude them. Over two-thirds

of the statutes cited by the majority were enacted within

the last ten years, and all were enacted within the last

fifteen. Consequently, I do not find them determinative of

the intent that Congress had when it enacted such statutes

as the Clayton Act a hundred years ago, long before ex-

pert witness fees became so substantial and common-place

as to warrant express reference. Neither should such in-

terpretation by negative implication override the explicit

legislative history of a more recently enacted statute, such

as the Civil Rights Attorneys’ Fees Awards Act.

Circuit courts from every circuit, in cases arising under

§ 1988, have allowed the prevailing party to recover ex-

pert witness fees or other expenses of litigation not enu-

66a

merated in § 1920, either as costs or as part of attorney’s

fees: **

The First Circuit, in Palmigiano v. Garrahy,” approved

the inclusion of all reasonable and necessary expenses in

awards of attorney’s fees under § 1988.

The Second Circuit, in Beazer v. New York City Transit

Authority," awarded the expenses of a pre-trial hearing

and trial preparation under § 1988.

The Third Circuit, in Wehr v. Burroughs,” has awarded

LEXIS charges as a reasonable expense of litigation in-

cluded within an award of attorney’s fees.

The Fourth Circuit, in Wheeler v. Durham City Board

of Education,” approved the award of copying, long dis-

tance telephone and travel expenses, along with all other

out-of-pocket expenditures by a successful civil rights

attorney.

In Berry v. McLemore and Jones v. Diamond. cases

the majority today overrules, this circuit has awarded

expert witness fees under § 1988.

© See generally, Bartell, supra note 5 (collecting cases in addition

to those cited here).

16 707 F.2d 636, 637 (1st Cir. 1983). Cf. Wildman v. Lerner Stores

Corp., 771 F.2d 605, 612, 614 (1st Cir. 1985).

17 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grounds, 440

U.S. 568, 99 S.Ct. 1855, —— L.Ed.2d (1979).

18619 F.2d 276, 284 (3d Cir. 1980); see also Walker v. Robbins

Hose Co., 622 F.2d 692, 694-95 (3d Cir. 1980); Jd. at 695-97

(Sloviter, J., dissenting).

585 F.2d 618, 623-24 (4th Cir. 1978).

* 670 F.2d 30, 34 (5th Cir. 1982). See also Richardson v. Byrd,

709 F.2d 1016, 1023 (5th Cir.), cert. denied, US. ——, 104

S.Ct. 257, —— L.Ed.2d —— (1983) (awarding paralegal fees).

*1 636 F.2d 1364, 1382 (5th Cir.), cert. denied, 453 U.S. 950, 102

S.Ct. 27, 69 L.Ed.2d 1083 (1981).

67a

The Sixth Circuit, in Northcross v. Board of Education

of Memphis City Schools,” held that, although costs such

as expert witness fees that were paid to third parties

could not be considered part of attorney’s fees, all other

out-of-pocket expenses normally billed to a fee paying

client should be included in § 1988 fee awards. The court

approved the award of expert witness fees under the dis-

trict court’s Rule 54(d) discretion, independent of the

attorney’s fee statute.

The Seventh Circuit has frequently addressed the issue,

permitting the award of all reasonable and necessary costs

of litigation in Redding v. Fairman,” and specifically ap-

proving the award of expert witness fees under § 1988 in

Heiar v. Crawford County * and in Strama v. Peterson.”

Other Seventh Circuit cases have permitted the award of

telephone, postage, copying, deposition, and travel ex-

penses,”* paralegals’ hourly fees,” or simply “all reason-

able out-of-pocket litigation expenses.” **

The Eighth Circuit, in Easley v. Anheuser-Busch, Inc.,”

has awarded expert witness fees for in-court testimony

and, in American Family Life Assurance Co. v. Teas-

dale,” for pre-trial consultations. It has also approved

22 611 F.2d 624, 639-40 (6th Cir. 1979), cert. denied, 447 U.S. 911,

100 S.Ct. 2999, 64 L.Ed.2d 862 (1980).

23717 F.2d 1105, 1119 (7th Cir. 1983), cert. denied, 465 U.S. 1025,

104 S.Ct. 1282, ——— L.Ed.2d ——- (1984).

24746 F.2d 1190, 1203-04 (7th Cir. 1984), cert. denied, —— U.S.

——, 105 S.Ct. 3500, — — L.Ed.2d (1985).

25 689 F.2d 661 (7th Cir. 1982).

26 Heiar, supra; Mary Beth G. v. City of Chicago, 723 F.2d 1263,

1282 (7th Cir. 1983); Strama, supra.

27 Heiar, supra; Strama, supra.

2 Henry v. Webermeier, 738 F.2d 188, 192 (7th Cir. 1984).

29 758 F.2d 251, 257 (8th Cir. 1985).

%© 733 F.2d 559, 571 (8th Cir. 1984).

68a

the award of all reasonable out-of-pocket expenses under

§ 1988."

The Ninth Circuit, in Thornberry v. Delta Airlines,

Inc., awarded paralegal expenses, the costs of travel, and

all out-of-pocket expenses under § 1988. It adopted the

position of the Sixth Circuit in Northcross, allowing ex-

pert witness fees and other third-party payments to be

awarded under Rule 54(d) rather than under § 1988.

The Tenth Circuit, in Ramos v. Lamm,® awarded simi-

lar costs, including expert witness fees, and approved the

award of all costs that would normally be billed separately

to clients by a typical law firm in the area.

As I have already noted, in Dowdell v. City of Apopka,

Fila.,* the Eleventh Circuit awarded all reasonable ex-

penses not normally absorbed by the attorney as over-

head,*° even though it does not allow similar expenses to

be awarded under Rule 54(d) discretion.** The Court

wrote “[wje reject any interpretation of “reasonable

costs” which would penalize attorneys for undertaking

civil rights litigation. ‘No one expects a policemen, or an

office holder, to pay for the privilege of enforcing the

law.’” ** And the District of Columbia Circuit has held,

31 Jd.

2676 F.2d 1240, 1244-45 (9th Cir. 1982), vacated on other

grounds, 461 U.S. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983).

*8'713 F.2d 546, 558-60 (10th Cir. 1983).

* 698 F.2d 1181, 1188-92 (11th Cir. 1983) (quoting remarks of

Sen. Tunney, 122 Cong. Rec. 33,313 (1976) ).

%° See also Allen v. U.S. Steel Corp., 665 F.2d 689, 696-97 (11th

Cir. 1982) (deposition and paralegal expenses).

36 See, e.g., Loughan v. Firestone Tire & Rubber Co., 749 F.23

1519 (11th Cir. 1985); Kivi v. Nationwide Mutual Insurance Co.,

695 F.2d 1285, 1289 (11th Cir. 19838).

87 698 F.2d at 1191.

———

69a

in Laffey v. Northwest Airlines, Inc.,* that § 1988 author-

izes the award of all reasonable costs normally passed on

to clients. The court wrote

[W]e need not attempt to trace an unwavering line

between those out-of-pocket expenses which are com-

pensable and those which are not. The line of divi-

sion—as with the hourly rate—should fall where the

market has placed it. Some law firms routinely pass

such costs on; others charge slightly higher fees and

absorb those costs. It would grant a windfall to at-

torneys to reimburse them for expenses which nor-

mally are absorbed as part of their overhead; it

would penalize them to deny compensation for ex-

penses which they expect to pass directly to clients.

The appellees are entitled to these costs upon showing

that such costs are of a type passed on by the firms

involved to private clients.**

Until today, no circuit has limited the award of litiga-

tion expenses incidental to attorney’s fees under § 1988

to the costs enumerated in § 1920. None has found rea-

son to treat expert witness fees as sui generis, and none

has applied Alyeska in this context.

IV.

The majority takes Alyeska as its guide, although that

case does not reach, and certainly does not determine, the

question of what adjuvant expenses may be included

within a statutorily authorized award of attorney’s fees.

The Alyeska Court refused “to fashion a far-reaching

exception to [the] ‘American Rule’ ” *' that would permit

38746 F.2d 4, 30 (D.C. Cir. 1984), cert. denied, —— U.S. ——,

105 S.Ct. 3488, ——- L.Ed.2d ——— (1985).

39 Jd.

4° See also Bartell, supra note 5 at 589-96.

41 421 U.S. at 247, 95 S.Ct. at 1616.

70a

district courts to award attorney’s fees without statutory

authorization whenever a plaintiff, acting as a “private

attorney general,” vindicated a statutorily endorsed pub-

lic policy. The Court held only that Congress, not federal

courts, must dictate which statutes, when enforced by

private citizens, warrant the recovery of attorney’s fees.

The Alyeska opinion refers to § 1920 in recounting the

history of the American courts’ authority to award attor-

ney’s fees. It traces the present version of § 1920 back

to an 1853 statute that permitted certain enumerated

costs, “and no other compensation [to] be taxed and al-

lowed to attorneys.” *” The Court suggests in footnote

dicta that, although there is no similar language in the

present version of § 1920, “nothing . . . indicates a con-

gressional intention to depart from” the exclusion of

other costs and fees mandated by the 1853 rule.

Immediately thereafter, the Court adds that neither

the 1853 statute nor any of its successors have been con-

strued to interfere “with the historic power of equity” to

award attorney’s fees in limited circumstances, such as

for the recovery of a common fund, willful disobedience

of a court order, or bad faith litigation.“* The Court does

not imply that these examples bound a court’s equitable

powers to tax the costs of litigation. It concludes only

that these three exceptions “are unquestionably assertions

of inherent power in the courts to allow attorneys’ fees

in particular situations, unless forbidden by Congress,

[and that] none of the exceptions is involved here.” “

Attorney’s fees are not synonymous with costs, and the

Supreme Court has long ago held that the 1853 attorney’s

#2 Id. at 253, 95 S.Ct. at 1620.

* Id. at 255 nn. 28 & 29, 95 S.Ct. at 1621 nn. 28 & 29.

** Id. at 257-58, 95 S.Ct. at 1621-22. (emphasis added).

* Id. at 259, 95 S.Ct. at 1622.

Tla

fee statute does not deal “expressly or by implication

with the subject of taxing as costs the expense of [ex-

perts or stenographers].” “* The Alyeska dictum does not

require us to limit the costs that a district court may tax

to those enumerated in § 1920, and Alyeska clearly has

no bearing on fee awards authorized by statute.

Recourse to Alyeska is particularly inappropriate in

§ 1988 cases. As the legislative history of that section

repeats time and again, § 1988 was enacted expressly to

counteract the effect of the Alyeska decision.** The House

Report notes that “civil rights litigants were suffering

very severe hardships because of the Alyeska decision,” “

that its effect was “devastating,” and that it might “as

a practical matter, repeal the civil rights laws for most

Americans.” Similarly, the Senate Report begins by

stating that the Act was intended to remedy the gaps

created in our civil rights laws by Alyeska.” To impose

the limitations and policies of Alyeska on fee awards

under § 1988 is to disregard entirely the primary con-

gressional purpose behind its enactment. The traditional

limitations of the American Rule, of Alyeska, of § 1920,

and of Fed. R. Civ. P. 54(d) do not apply to awards

made pursuant to § 1988, because that statute is based

upon policies antithetical to those restrictions.”

# In re Peterson, 253 U.S. 300, 317, 40 S.Ct. 543, 549, ——— L.Ed.

— — (1920); see also Newton v. Consolidated Gas Co., 265 U.S. 78,

83, 44 S.Ct. 481, 482-83, L.Ed. —— (1924).

47 See, e.g., S. Rep. No. 1011, 94th Cong., 2d Sess. 1, 4-6 (1976) ;

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 2-3 (1976) ; 122 Cong. Rec.

$1,472, 31,474, 33,314, 35,122-28 (1976). See also Evans v. Jeff O.,

— US. —, —, 54 U.S.L.W. 4359, 4367-68 (1986) (Brennan,

J., dissenting).

48 H.R. Rep. No. 1558, 94th Cong., 2d Sess. 2 (1976).

49 122 Cong. Rec. 35,128 (1976).

% S. Rep. No. 1011, 94th Cong., 2nd Sess. 1 (1976).

51 Dowdell, 698 F.2d at 1189 n.12 (11th Cir. 1983).

72a

Ve

In Christiansburg Garment Co. v. E.E.0.C.," the

Supreme Court held that a prevailing civil rights de-

fendant should be awarded attorney’s fees under § 1988

only when the plaintiff’s suit was frivolous, unreasonable,

or unfounded.

The majority decides that, because a fee-shifting stat-

ute applies in Woodworkers, and because the statute does

not expressly permit expert witness fees, the court has

no authority to award them. presumably not even under

the Alyeska criteria which are to be applied in the ab-

sence of a fee-shifting statute. The majority ignores the

similarity between the Alyeska standard of vexatious or

oppressive actions and the Christiansburg standard of

unfounded or vexatious litigation: expert witness fees

that might have been taxed to the plaintiff for bringing

an unfounded tort suit may no longer be taxed for bring-

ing an equally unfounded civil rights or employment dis-

crimination action. Even if Congress did not intend that

expert witness fees be awarded as a component of attor-

ney’s fees, as I believe it did, it surely did not intend by

its reference to attorney’s fees to lessen the courts’ gen-

eral authority to award other costs as deterrent to

frivolous litigation. Yet that is the result of the ma-

jority’s rule.

I believe that the Woodworkers district court reached

the right result for the right reasons. It found that the

suit had a reasonable basis and applied Christiansburg

to deny the defendant attorney’s fees. It properly applied

the same standard and invoked the Same discretion to

deny expert witness fees that might have constituted a

reasonable expense incidental to the award of attorney’s

fees. And although, for reasons, I will discuss in the

next section, the court also had discretion under Rule

%? 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

73a

54(d) to tax expert witness fees as costs, the prevailing

defendant did not seek an award on this basis. The

court’s denial of the award should, therefore, be affirmed.

VI.

Had the plaintiff prevailed in Gibbons, it would have

been entitled both to treble damages and “the cost of suit,

including a reasonable attorney’s fee.” * The rule adopted

by the majority would not permit such a successful plain-

tiff to recover expert witness fees and, I submit, by inex-

orable logical extension, any other out-of-pocket expenses

not enumerated in § 1920 for which the plaintiff's counsel

would normally have billed his client. Although some cir-

cuit courts have reached the same result in Clayton Act

litigation, this seems to me to be incorrect. Allowing a

prevailing party treble damages, attorney’s fees, and even,

at times, prejudgment interest, but denying recovery of

all of the other expenses incident to litigation is anoma-

lous. There would be no reason to specify by statute that

the cost of suit might be awarded if those costs referred

only to the expenses ordinarily taxed to the loser. As Pro-

fessor Moore points out, “had Congress intended ‘cost of

suit’ [in the Clayton Act] to include only taxable costs, it

would have said so.” ™

In Gibbons, however, the defendant prevailed and no

statutory fee-shifting provisi

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