Petition for Writ of Certiorari — Crawford Fitting Co. v. J. T. Gibbons, Inc.
Supreme Court brief1986
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86-328
Supreme Gourt, U.S.
FILED
AUG 29 1988
FOSSUAESPANIOL, JRe
IN THE
CLERK
Supreme Court of the United States
OcTOBER TERM, | 986
No.
CHAMPION INTERNATIONAL CORPORATION,
Petitioner
V.
INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO-CLC,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO [HE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Mies Curtiss MCKEE
JEFFREY A. WALKER
Fusevier, Ott, McKee &
WaLKER, P.A.
2100 Deposit Guaranty Plaza
Jackson, Mississippi 39201
(601) 948-2226
Counsel for Petitioner
i io
6F\\) \
i
QUESTION PRESENTED
Whether in non-diversity cases federal courts may tax as
costs the fees of expert witnesses in excess of the amount set
forth in 28 U.S.C. § 1821.
PARTIES TO THE PROCEEDINGS
The parties to these proceedings are Champion [nter-
national Corporation and the International Woodworkers of
America, AFL-CIO-CLC.
TABLE OF CONTENTS
Appendix A (Opinion of the Court of Appeals on
nan. SUT A-
Appendix B ( Opinion of the Court of Appeals) .......... B-|
Appendix C ( Opinion of the District Court )................ C-1
Appendix D (Opinion of the District Court’s Magis-
GERD D <casssscsssmssrestmsnsemnitaeeaiiiiiaialae D-|
lil
TABLE OF AUTHORITIES
CleveRock Energy Corp. v. Trepel, 609 F.2d 1358
ee
Farmer v. Arabian American Oil Co., 379 U.S. 227
Henkel v. Chicago, St. Paul, Minneapolis & Omaha
Railway, 284 U.S. 444 (1932) .......cceccccecceeseeeeeeeeeees
Lewis v. N.L.R.B., 750 F.2d 1266 (Sth Cir. 1985)......
Loughan v. Firestone Tire & Rubber Co., 749 F.2d
a
Murphy v. Operating Engineers Local 18, 774 F.2d
a
Northcross v. Memphis City Schools, 611 F.2d 624
(6th Cir. 1979), cert. denied, 447 U.S. 911 (1980)...
Paschall v. Kansas City Star Co., 695 F.2d 322 (8th
Cir. 1982), rev'd on other grounds en banc, 727
F.2d 692 (8th Cir.), cert. denied, 105 S.Ct. 222
i eicnintnedccnceneuneccncsencesnesnscnnssqscceoseces
ELE ET ee
Roberts v. S.S. Kynakoula D. Lemos, 651 F.2d 201
EES
Shakey’s, Inc. v. Covalt, 704 F.2d 426 (9th Cir.
ei acdcnecictaenteendnnsereseccczacncsecces
Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240
(9th Cir. 1982), vacated on other grounds, 461 U.S.
races crccctseenerrnasonsccoscnees
Page(s)
IN THE
Suprene Court of the United States
OCTOBER TERM, 1986
No.
CHAMPION INTERNATIONAL CORPORATION,
Petitioner
Vv.
INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO-CLC,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Champion International Corporation petitions for a wnt of
certiorari to review the judgment of the United States Court of
Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals on rehearing ( Appen-
dix A, infra) is reported at 790 F.2d 1174 (Sth Cir. 1986) (en
banc). The panel opinion of the court of appeals ( Appendix B,
infra) is reported at 752 F.2d 163 (Sth Cir. 1985) (per
curiam). The unreported opinion of the district court is
reproduced in Appendix C, infra. The unreported opinion of
the district court’s magistrate is reproduced in Appendix D,
infra.
2
JURISDICTION
The judgment of the court of appeals was entered on June
2, 1986.
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254( 1).
STATUTES INVOLVED
28 U.S.C. § 1821(b) provides:
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 neces-
sarily 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.
Rule 54(d) of the Federal Rules of Civil Procedure
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 di-
ae
STATEMENT
A. Facts
The International Woodworkers of America, AFL-CIO-
CLC (“IWA”), and one of its local unions filed a class action
against Champion International Corporation (“Champion”)
alleging violations of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e er seg., and 42 U.S.C. § 1981.
Three Champion employees subsequently were allowed to
intervene as plaintiffs and ultimately were certified as class
representatives.
3
After a trial, which centered upon testimony offered by an
expert witness hired by Champion, the district court entered an
opinion on the merits dismissing the claims of the IWA, all
other plaintiffs and the class. Woodworkers v. Champion
International Corp., 30 Empl. Prac. Dec. (CCH) { 33,287
(N.D. Miss. 1982), aff'd, 732 F.2d 939 (Sth Cir. 1984) (per
curiam). A judgment was entered the same day assessing ail
costs against the [WA.
Champion thereafter filed a bill of costs, which included a
request for expert witness fees, and a motion for allowance of
the company’s attorneys’ fees as a part of the costs of the case.
The district court denied Champion’s motion for attorneys’ fees.
All other costs questions, including the request for the expert
witness fees, were referred to a magistrate.
B. The Decisions of the District Court
In light of substantial local district authority approving the
practice in some circumstances, the magistrate taxed the IWA
with a portion of Champion’s expert witness fees. The IWA
appeale? the magistrate’s decision to the district judge.
The district judge reversed the magistrate’s holding and,
instead, followed what he believed to be the “norma! civil
litigation rule [that] disallows excess fees for expert witnesses.”
More specifically, the district judge construed existing Fifth
Circuit decisions as precluding the taxing of expert witness costs
to the prevailing party, except in cases where the losing litigant
had proceeded in bad faith or where the prevailing party is a
civil nghts plaintiff. The local district authority relied upon by
the magistrate was expressly overruled.
C. The Decisions of the Court of Appeals
A panel of the court of appeals affirmed the district judge’s
decision that prevailing defendants in non-frivolous civil nghts
actions may recover expert witness costs only under standards
established by this Court’s attorneys’ fees decisions in civil
rights cases. The panel further held that an indispensable-to-
the-case standard for taxing expert witness costs found in some
Fifth Circuit decisions should not be extended to civil nghts
cases.
4
On rehearing en banc, the court of appeals rejected the
theories of the magistrate, the district judge and the panel, and
held that, absent bad faith or a statute expressly authorizing
such an award, no federal non-diversity litigant may recover
expert witness costs in excess of the amount provided for in 28
U.S.C. § 1821. Rule 54(d) of the Federal Rules of Civil
Procedure was construed as providing discretion only to dis-
- allow expenses otherwise expressly provided by statute rather
than as a procedural acknowledgement of district courts’ inher-
ent equitable power to allow expenses. The court of appeals
expressly overruled its previous decisions purporting to recog-
nize exceptions for prevailing civil nghts plaintiffs and in those
instances where the expert witness was indispensable to a
proper determination of the case.
REASONS FOR GRANTING THE WRIT
A. The Decisions of the Courts of Appeals As to the
Standards for Recovering Expert Witness Costs Are in
Irreconcilable Conflict.
The relatively straightforward question of whether and
under what standards expert witness costs may be recovered by
non-diversity federal litigants has been answered differently by
nearly every court of appeals. Judge Rubin, concurring in the
en banc result in this case but dissenting from the underlying
rationale of the court of appeals’ majority opinion, complained
that the new Fifth Circuit “rule” added a fourth line to the
existing three lines of conflicting circuit decisions.
The Third Circuit, Eighth Circuit, Ninth Circuit and Dis-
trict of Columbia Circuit have all embraced, at one time or
another and in one form or another, an important-to-the-case
standard. Shakey’s, Inc. v. Covalt, 704 F.2d 426, 437 ( 9th Cir.
1983); Paschail v. Kansas City Star Co., 695 F.2d 322, 338-39
(8th Cir. 1982), rev'd on other grounds en banc, 727 F.2d 692
(8th Cir.), cert. denied, 105 S.Ct. 222 (1984); Quy v. Air
America, Inc., 667 F.2d 1059, 1066 & n.12 (D.C. Cir. 1981);
Roberts v. S.S. Kyriakoula D. Lemos, 65\ F.2d 201, 204-07 (3d
Cir. 1981). Rule 54(d) is the most common source authority
for these holdings.
5
The Tenth Circuit, Eleventh Circuit and, with the decision
in the instant case, the Fifth Circuit flatly refuse recovery in all
federal-question cases. Loughan v. Firestone Tire & Rubber
Co., 749 F.2d 1519, 1526 (11th Cir. 1985); CleveRock Energy
Corp. v. Trepel, 609 F.2d 1358, 1363 ( 10th Cir. 1979). In many
circuits, cases may be found to support the proposition that
expert witness fees are taxable only as a part of out-of-pocket
fees and expenses of attorneys. E.g., Thornberry v. Delta Air
Lines, Inc., 676 F.2d 1240, 1245 (9th Cir. 1982), vacated on
other grounds, 461 U.S. 952 (1983). The Sixth Circuit,
however, has reached precisely the opposite conclusion. North-
cross v. Memphis City Schools, 611 F.2d 624, 63S 40 (6th Cir.
1979), cert. denied, 447 U.S. 911 (1980).'
B. The Court of Appeals Has Decided An Important Ques-
tion of Federal Law Which Has Not Been, But Should
Be, Settled by This Court.
Much of the confusion among the decisions of the courts of
appeals probably emanates from the fact that two decisions of
this Court arguably support all of the positions adopted by the
circuits. Henkel v. Chicago, St. Paul, Minneapolis & Omaha
Railway, 284 U.S. 444 (1932), typically is cited for the proposi-
tion that expert witness costs are limited to the amounts set
forth in 28 U.S.C. § 1821. Farmer v. Arabian American Oil Co.,
379 U.S. 227 (1964), generally supports arguments that Rule
54(d) provides sufficiently broad discretion for district courts to
tax expert witness fees as costs. A reasonably candid reading of
both cases, however, can result only in the conclusion that this
Court has never directly addressed the issue.
Expert witnesses are « fact of life in modern federal
litigation. Some courts have even gone so far as to encourage
parties to present certain forms of evidence through expert
witnesses. See, e.g., Lewis v. N.L.R.B., 750 F.2d 1266, 1274
n.12 (Sth Cir. 1985) (statistical evidence in employment dis-
crimination actions). Yet, despite the everyday importance of
expert witnesses in federal trial courts, neither judges aor
' The Sixth Circuit has recognized that its decisions on th issue are in
hopeless conflict. Murphy v. Operating Engineers Local 18, 774 F.2d 114,
133-34 (6th Cir. 1985).
6
litigants have available to them a definitive decision or series of
decisions from which they might determine, within any reason-
able degree of confidence, whether the expert witness costs in
any particular case might qualify as taxable costs.
Again, Judge Rubin’s concurrence and dissent in the
instant case is helpful in understanding the breadth of the
problem.
The costs of litigation, as we all know, have become
staggering. A plaintiff may put a defendant or 2
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
civil nights and antitrust cases. A study cited by a
student writer suggests that expert testimony controls
the outcome in two-thirds of all cases, and that expert
witness fees are second only to attorney’s fees as the
largest litigation expense.
Few questions are presented to this Court which have as
wideranging practical interest and impact as the issues raised in
the instant case. All judges, all lawyers and all litigants in the
federal courts would be well served by a decision from this
Court on the question presented.
FA ~ et ara li Pa, -
re ee
a Cte eee —
te EC A Co a a
-
CONCLUSION
Champion submits that district courts possess discretion to
award expert witness costs to the prevailing party in non-
diversity cases. Therefore, Champion respectfully requests that
the Court grant this petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fifth
Circuit.
Respectfully submitted,
CHAMPION INTERNATIONAL
CorPORATION, Petitioner
Mies Curtiss McKEE
JEFFREY A. WALKER
DONALD W. MALINIAK
By: Muces Curtis McKEE
Fusevier, Ort, MCKEE &
WALKER, P.A.
2100 Deposit Guaranty Plaza
Jackson, Mississippi 39201
(601) 948-2226
Counsel for Petitioner
8
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing petition have
been served on all parties required to be served by first class
United States mail, postage prepaid, this the 29th day of
August, 1986, at the following address: James E. Youngdahl,
Esq., Youngdahl & Youngdahl, P.A., P.O. Box 6030, Little
Rock, Arkansas, 72216.
JEFFREY A. WALKER
JEFFREY A. WALKER
Fusevier, Ott, MCKEE &
WALKER, P.A.
2100 Deposit Guaranty Plaza
Jackson, Mississippi 39201
(601) 948-2226
APPENDIX A
A-2
No. 83-4616.
UNTTED STATES COURT OF APPEALS,
FirtH CIRCUIT.
June 2, 1986
INTERNATIONAL WOODWORKERS OF AMERICA,
AFL-CIO anp rts Loca No. 5-376,
Plaintiff-Appellee,
Vv.
CHAMPION INTERNATIONAL CORPORATION,
Defendant-Appellant.
Jeffrey A. Walker, Fuselier, Ott & McKee, M. Curtiss
McKee, Jackson, Miss., for defendant-appeilant.
Michael EB Tnrister, Richard B. Sobol, Washington, D.C.,
for amicus curiae, The Pay Discrimination Institute.
Steven L. Winter, New York City, for amicus-N.A.A.C.P.
James E. Youngdahli, Youngdahl, Larrison & Agee, Little
Rock, Ark., for plaintiff-appellee.
Appeal from the United States District Court for the
Northern District of Mississippi.
Before CLARK, Chief Judge, and WISDOM, GEE, RU-
BIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WIL-
LIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,
HILL and JONES, Circuit Judges. *
RANDALL, Circuit Judge:
Section 1920 of Title 28 allows the fees of witnesses to be
taxed as costs in federal court, while section 1821 of the same
* Due to his death on March 27, 1986; Judge Albert Tate. Jr. did not
Participate in this decision.
A-3
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
applies. Our holding overrules those portions of Jones v.
Diamond, 636 F.2d 1364 (5th Cir.) (en banc), cert. dismissed,
453, U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Copper
Liquor Inc. v. Adolph Coors Co., 684 F.2d 1087 (Sth Cir. 1982)
( Copper Liquor III), modified on other grounds en banc, 701
F.2d 542 (Sth 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 Inter-
national Corporation (“Champion”) alleging racial dis-
crimination 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 [WA. We affirmed the district court’s judgment
on the merits.
After denying Champion’s motion for attorneys’ fees, the
district judge referred all other cost questions to a magistrate.
The magistrate awarded Champion $14,750.87 in costs, of
which $11,807.16 were for a portion of the services of an expert
witness employed by Champion for the statistical aspects of the
case. [WA objected to certain parts of the award, particularly
to the taxing of the expert witness’ fees in an amount exceeding
that provided for by § 1821, and the case returned to the district
judge.
The district judge sustained I[WA’s objections to the taxing
of the excess expert witness’ fees, concluding that this court in
A-4
Jones v. Diamond had adopted for the purpose of defendants’
excess expert witness’ fees the Christiansburg standard set forth
by the Supreme Court governing attorneys’ fees.' Because
IWA’s suit did not meet that standard, the district court refused
to grant Champion expert witness’ fees in excess of the amount
provided by § 1821.
On appeal, a panel of this court affirmed, 752 F.2d 163
(Sth Cir. 1985), 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 presentation of civil rights claims, or indispensable to the
determination of the case.” The district court’s finding that
IWA-Champion litigation failed to meet the Christiansburg
standard remained unchalienged on appeal; the panel thus
declined to reach the applicability of that standard. This court
voted to rehear the case en banc, thereby vacating the panei
opinion. See Fifth Circuit Loca! Rule 41.3.
II.
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 guarantee access to the
courts. See, e.g., Fleischmann Distilling Corp. v. Maier Brewing
Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475
(1967). The “American Rule” draws a distinction between
expenditures incurred by order of the court to facilitate consid-
eration 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, 40 S.Ct. 543, 548, 64 L.Ed. 919 (1920). The
former, in times past referred to as costs “between party and
party,” and now known as taxable costs, are recoverable by the
prevailing party under the American Rule; the latter, denomi-
nated costs “as between solicitor and client” and including such
items as attorneys’ fees and “other expenses entailed by the
' In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54
L.Ed.2d 648 ‘ 1978), the Supreme Court held that prevailing civil nghts
defendants are entitled to attorneys’ fees only when the lawsuit is frivolous,
unreasonable, or without foundation.
—— a ee ee ee eee
A-5
litigation not included in the ordinary taxable costs recognized
by statute,” see Sprague v. Ticonic National Bank, 307 U‘S.
161, 164, 59 S. Ct. 777, 778, 83 L.Ed. 1184 (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 reimbursement for the costs of litigation
other than the conventional taxable costs is part of the original
authority of the chancellor to do equity in a particular situ-
ation.” Sprague, 307 U.S. at 166, 59 S.Ct at 780. The
exceptions were limited to cases involving preservation of a
common fund, vexatious or oppressive prosecution of a claim or
maintenance of a defense, Hail v. Cole, 412 U.S. 1, 5-6, 93 S.Ct.
1943, 1946-1947, 36 L.Ed.2d 702 (1972), or wilful dis-
obedience of a court order. Toledo Scale Co. v. Computing
Scale Co., 261 U.S. 399, 426-28, 43 S.Ct. 458, 465-66, 67 L.Ed.
719 (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, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975), the
Supreme Court decided against fashioning a far-reaching ex-
ception to the American Rule for attorneys’ fees, determining
instead that it would be “inappropriate for the judiciary,
without legislative 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 as at-
torneys’ fees. The Court examined the congressional intent
behind the statutory predecessor of § 1920 and § 1923: the Fee
Bill of 1853. In enacting the 1853 Act, Congress undértook to
standardize and limit the costs allowable in federal litigation.
A-6
Alyeska, 421 U.S. at 251-52, 95 S.Ct. at 1618-19. The 1853 Act
did not permit courts to “tax against the losing party ‘solicitor
and client’ costs in excess of the amounts prescribed” therein.
Id. at 258 n. 30, 95 S.Ct. at 1621 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, 95
S.Ct. at 1621. Despite its decision not to carve a broad
exception to the American Rule, the Court nevertheless recog-
nized the three judicially fashioned equitable exceptions which,
as the Court noted, have not been repudiated by Congress. Jd.
at 260, 95 S.Ct. at 1623. 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 benefit of others in addition to himself; (2) a
party acted in wilful disobedience of a court order; or (3) the
lsoing party had acted in bad faith, vexatiously, wantonly, or
for oppressive reasons.?
The American Rule of limited recovery, although most
often discussed in the context of attorneys’ fees, is equally
applicable in the context of excess expert witness’ fees. Like the
statutory provisions before the Alyeska Court, those before us
todav find their origins in the Fee Bill of 1853. Section 1920
states that the court may tax as “costs” the fees of witnesses.?
2 The last exception is consistent with our decision in Kinnear-Weed
Corp. v. Humble Oil & Refining, Co., 441 F.2d 631 ( Sth Cir. ), cert. denied, 404
U.S. 941, 92 S.C. 285, 30 L.Ed.2d 255 (1971), in which we held that
attorneys’ fees and excess 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 exceptions to the
rule are statutory. Marek v. Chesney, US. 105 S.Ct.
3012, 3016, 87 L.Ed.2d 1 (1985). See also Webb v. Board of Education of
Dyer County, —___. US. n. 1, 105 S.Ct. 1923, 1930 n. 85
L.Ed.2d 233 (1985) ( Brennan, J., dissenting) ( referring to the exceptions as
“several narrow exceptions”).
3 Section 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;
(footnote continues )
A-7
Section 1821 establishes the maximum amount that may be
allowed for witnesses’ attendance fees.4 These sections repre-
sent Congress’ treatment of the taxing of witness .ees as costs.
Courts cannot, in the absence of other explicit statutory author-
ity or one of the three limited equitable exceptions recognized
in Alyeska, tax as costs expert witness’ fees in excess of the
amount set forth in § 1821. Moreover, because the taxing of
wiiness’ 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 provision therefor is made either
in a statute of the United States or in these rules” (emphasis
added ).5
(footnote continued)
(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;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special inter-
pretation services under section 1828 of this title.
A SES RS NE SP ES AES, Ces eee, aes
the judgment or decree.
* Section 1821 provides in relevant part:
(b) A witness shall be paid in attendance fee of $30 per day for
each day’s attendance. A witness shall also be paid the attendance fee
for the ume 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, Si. P., M. and O.
Rwy., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386 ( 1932).
$ 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 expressly provided by statute or rule, costs should be
(footnote continues)
A-8
Our ruling is commanded by the Supreme Court’s holding
in Henkel v. Chicago, St. P., M. and O. Rwy., 284 U.S. 444, 52
S.Ct. 223, 76 L.Ed. 386 (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’ fees, “additional amounts paid as compensation, or
fees, to expert witnesses cannot be allowed or taxed as costs in
cases in the federal courts.” Jd. at 446, 52 S.Ct. at 225. 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 witnesses.” Jd. at 447, 52 S.Ct. at
225. Although Henkel was a case decided “at law,” the
subsequent merger of law and equity effected by the adoption
of the Federal Rules of Civil Procedure does not alter the result
in Henkel in view of the specific language in Fed.R.Civ.P.
54(d) dealing with costs which are covered by express federal
statutes.
The Court’s reasoning in A/yeska in the analogous area of
attorneys’ fees further compels our conclusion that expert
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 congressional intent found relevant
by the Supreme Court in Aljyeska also governs here. The 1853
Act “specif[ ied] in detail the nature and amount of the taxable
items of costs in the federal courts.” Alfyeska, 421 U.S. at 252,
95 S.Ct. at 1619. The Act did not permit the taxing of excess
“solicitor and client” costs. Jd. at 258 n. 30, 95 S.Ct. at 1621 n.
30. Congress has not since “retracted, repealed or modified the
limitations on taxable fees contained in the 1853 statute and its
successors.” Jd. at 260, 95 S.Ct. at 1623. Just as Congress in the
Fee Bill of 1853 extended no “roving authority to the Judiciary
(footnote continued)
‘allowed 2s 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. Te
Advisory Committee's Notes to Rule $4(d) emphasized that the terms of the
statutory predecessor of § 1920 remained “unaffected by the rule.”
A
A Re
A-9
to allow counsel fees as costs or otherwise whenever the courts
might deem them warranted,” id., so too Congress extended no
“roving authority” to allow expert witness’ 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
ligation.” Given Congress’ ability to provide explicitly for the
taxing of excess expert witness’ fees as costs, we should not infer
congressional intent to award such costs in the absence of an
express statute so providing. Moreover, a statute which pro-
vides only for an 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.
* Section !920(6) allows the court to tax as costs the compensation of
court-appointed experts. Our holding today recognizes that § |1920(6) acts in
effect as a safety-valve, permitting the full compensation of court-appointed
expert witnesses to be taxed as costs after nouce and an opportunity to object
to their appoutment 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 standards: (|) 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
vioiauon of consumer product safety rule), 2073 ( acnon 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),
261% c)(2) (citizen's action to compel compliance with regulations, con-
trolling toxic substances), 2620(b)(4)(C) (action to compel initiation of
rulemaking proceeding regarding toxic substance ); (3) Petroleum Markeung
Practices Act, 15 U.S.C. § 2805(d)(3) (action to enforce provisions govern-
ing franchise relauonship in petroleum markeung practce); (4) Natonal
Historic Preservation Act Amendments of 1980, 16 U.S.C. § 470w-4 ( action
for enforcement of provisions regarding national histonc preservauon ); (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 Responsi-
bility Act of 1982, 26 U.S.C. § 7430( a), (c)( 1)( A)(ii) (action brought by or
against United States in connecnon with determination, collecuon, or refund
of amy tax, interest, or penalty under Internal Revenue Code); (8) Equal
Access to Jusuce Act 28 U.S.C. § 2412(d)(2)(A) (as amended by Pub.L.
(footnote continues )
A-10
The Supreme Court's holding in Farmer v. Arabian Ameri-
can Oil Co., 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964),
does not command a rule different from that today announced.
Farmer presented the Supreme Court with the question wheth-
er, 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’ trans-
portation 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 costs. In dicta, the court
explained: “the discretion given district judges to tax costs
should be sparingly exercised with reference to expenses nor
specifically allowed by statute.” Farmer, 379 U.S. at 235, 85
S.Ct. at 416 (emphasis added). Whatever import this quoted
language carries for the assessment of expenses not specifically
allowed by statute, it is not relevant here, for expert 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 discretion under Rule 54(d) to
refrain from taxing certain expenses as costs; to rely on Farmer
to justify the affirmative taxing of witness’ costs in excess of the
§ 1821 amount would turn Farmer on its head.
(footnote continued )
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 govern-
ing surface mining and reclamation); (10) Deep Seabed Hard Mineral
Resources Act, 30 U.S.C. § 1427(c) (civil action for equitable relief against
person in vioianon of provisions regulating exploration and commercial
recovery by U.S. citizens of deep seabed hard mineral resources); (11)
Federal Oil and Gas Royalty 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) Lomgshoremen’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
US.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. § [S15(d)
(footnote continues )
A-ll
We overrule those portions of our prior opinions suggest-
ing standards for the taxing of excess expert witness’ fees
different from that now adopted. In Jones v. Diamond, we
acknowledged that expert witness’ fees were generally recov-
erable only in the amount prescribed by § 1821, but determined
nevertheless that “Congress had manifested an intention 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
assistance were necessary or helpful in representing clients in
civil rights litigation.” Jd. As noted by the Jones dissent,
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
Report does not authorize the taxing of excess expert witness’
fees as costs, and the Jones holding on excess expert witness’
fees cannot stand in light of the rule announced today.
(footnote continued )
(ciuzen's action against persons in violation of deepwater port provisions );
(16) Act to Prevent Pollution from Ships, 33 U.S.C. § 1910(d) (actions
authonzed by provisions governing prevention of polluuon from ships ); ( | 7)
Safe Drinking Water Act, 42 U.S.C. § 300j-8(d) (action to compel com-
pliance with provisions concerning the safety of public water systems); ( |8)
Noise Control Act of 1972, 42 U.S.C. § 4911(d) (citizen'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 applicant 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 t© compel com-
pliance with provisions concerning the energy conservation program for
consumer products other than automobiles ); (2! ) Resource Conservauon and
Recovery Act of 1976, 42 U.S.C. §6972(¢) (citizen's action to compel
compliance with provisions regarding solid waste disposal); (22) Clean Air
Act, 42 U.S.C. §§ 7413(b) (action brought by EPA administrator against
owner or operator of major stationary source of air pollution in violauon of
provisions concerning air poiluuon prevention), 7604(d) (citizen's suit to
require compliance with provisions concerning air pollution preventicr '
7607(f) (action for review of rules promulgated by EPA administrator
concerning air pollution prevention); (23) Clean Air Act Amendments of
(footnote continues )
A-12
In Copper Liquor III, an antitrust case, we indicated in a
part of the opinion entitied “Section 1920 Costs” that trial
courts had discretion to award excess expert witness’ fees in
“exceptional circumstances, for example, when the expert test-
mony was necessary or helpful to the presentation of civil nghts
claims, or indispensable to the determination of the case.” 684
F.2d at 1100 ( footnotes omitted). This conclusion that § 1920
authorizes the award of excess expert witness’ costs in “ex-
ceptional circumstances” is overruled.®
(footnote continued )
1977, 42 U.S.C. § 7622(b)(2)( B), (e)(2) (action for protection of employee
assisting in proceeding enforcing provisions on air polluuon prevention ); (24)
Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C. § 8435(d)
(citizen's suit to compel compliance 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 provisions
regarding ocean thermal energy conversion); (26) Outer Contnental Shelf
Lands Act Amendments of 1978, 43 U.S.C. § 1349(a)(5) (action to compel
compliance with provisions governing Outer Continental Shelf leasing pro-
gram); (27) Natural Gas Pipeline Safety Act, 49 U.S.C. § 1686(¢) (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 proceedings: (|) Federal Trade
Commission Improvement Act, 15 U.S.C. § 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) (participation in rulemaking proceeding regarding hazard-
ous chemical substances and mixtures); (3) Public Uulity Regulatory Policies
Act of 1978, 16 U.S.C. § 825q-1(b)(2) (proceedings before Office of Public
Participation ).
® We also overrule that portion of Berry v. McLemore, 670 F.2d 30, 34
( Sth Cir.1982), in which we relied on Jones to find 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 1019, 1033 (Sth Cir.1983), also cannot stand in light of the rule
adopted above.
A-13
II.
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), provide for the award of attorneys’
fees to prevailing parties, 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.
A-14
ALVIN B. RUBIN, Circuit Judge, concurring in the result
in International Woodworkers of America v. Champion Inter-
national Corp., and dissenting in J.T. Gibbons, Inc. v. Crawford
Fitting Co., et al.**
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 recov-
erability of other litigation expenses. And it applies that rule
without distinction to two dissimilar cases in which the recovery
of expert witness fees is sought on complete different bases. In
Woodworkers, a defendant who was the prevailing party in an
employment discrimination suit requests expert witness fees as a
litigation expense incidental to an award of attorney’s fees
authorized by The Civil Rights Attorney’s Fees Awards Act of
1976, 42 U.S.C. § 1988. 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, in-
cluding 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 respect, 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 exercise its discretion under
Rule 54(d) to award the costs of litigation, including the fees
paid to experts for testifying in court.
** Judges Wisdom, Johnson, and Williams join in Judge Rubin's opinion
concurting in the result in /mternational 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 ai.
A-15
Neither the court’s general discretion to tax costs, nor its
determination of which expenses to include in a statutorily
authonzed award of attorney’s fees is, or should be, governed
by the standards that define the court’s equitable powers to
award attorney’s fees, as summarized in Alyeska Pipeline
Service Co. v. Wilderness Society.' The application of a single
rule to both kinds of cases obliterates the important differences
between them and risks overriding Congress’ intent in author-
izing civil nghts attorney’s fees.
The majority’s rule produces illogical results: Absent a fee-
shifting statute, expert witness fees may be recovered 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 liugation expenses from the prevailing party
to the wrongdoer, expert witness fees are not recoverable even
though attorney’s fees are.
L
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 full in the footnote,? lists certain
costs that courts are permitted to tax. Its language is neither
‘421 US. 240, 95 S.Ct 1612, 44 LEd2d 141 (1975).
228 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 transcnpt necessanly obtained for use in the case.
(3) Fees and disbursements for pnnting and witnesses:
(4) Fees for exemplificanon and copies of papers necessarily
obtained for use im the case;
(5) Docket fees under section 1923 of this title:
(6) Compensauon of court appointed experts, compensauon of
interpreters, and salanes, fees. expenses, and costs of special inter-
pretanon services under section | 828 of this utile.
A bull of costs shall be filed in the case and. upon allowance.
included in the judgment or decree.
We mw sw 4~
— Eten =
el
eee
A-16
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. § 1988.9
That statute authorizes the court, “in its discretion,” to “allow
the prevailing party ...a reasonable attorney’s fee as part of
the costs.” Woodworkers, therefore, poses a question of statu-
tory interpretation: Did Congress, in enacting § 1988, intend to
allow a prevailing 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 plaintuff.¢ A
victorious defendant may recover costs only by invoking the
court’s general discretion under Federal Rule of Civil Proce-
dure 54(d). The question presented, therefore, is whether the
court’s discretion permits the 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 specified in § 1920,
but all of the reasonable expenses of litigation that a privately
retained lawyer would usually bill to his client. The Act’s
342 U.S.C. § 1988 (1982).
415 U.S.C. § 15 (1982).
5 One commentator has suggested that § 1920 should limit the amounts
of costs awarded incident to attorney's fees for the basic categones of costs
that the statute covers. See Bartell, Taxation of Costs and Awards of
Expenses in Federal Court, 101 FRD 553, 595-96 ( 1984).
A-17
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 secretarial expense, normally paid by the at-
torney 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
preparing exhibits, and any other of the multitudinous expenses
of liugation.
Expert witness fees are not so singular as to be treated
differently from all other litigation expenses. A court’s author-
ity to award these expenses comes neither from the equitable
powers described in Alyeska Pipeline Service Co. v. Wilderness
Society,® nor from the courts’ limited authority under § 1920,
nor from its general discretion pursuant to Rule 54(d), but
from The Civil Rights Attorney’s Fees Awards Acct itself, and
from Congress’ unequivocal statement of the Act’s purpose.
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 compensated by a fee-
paying client.” 7 As the Act’s sponsor, Representative Drinan,
stated during the House debate, “I should add that the phrase
‘attorney's fee’ would include... all incidental and necessary
expenses incurred in furnishing effective and competent repre-
sentation.” ® These remarks are consistent with the frequent
observation that private enforcement of the civil rights laws
depend on the citizens’ “opportunity to recover what it costs
them to vindicate these rights in court.” ° To fulfill its purpose,
$421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d '41 (1975).
7S.Rep. No. 1011, 9h Cong.2d Sess. 6 (1976), U.S.Code Cong &
Admin. News 1976, pp. 5908, 5913.
® 122 Cong.Rec., 35,123 (1976) (emphasis added).
*S.Rep. No. 1011, 94th Cong.2d Sess. 2 (1976), U.S.Code Cong. &
Admin. News 1976, p. 5910; see also, e.g, 122 Cong Pec. 31,471, 33,313
(1976).
«. ee
A-18
the Act necessarily authorized reimbursement for all the re-
sources necessary for “effective access to the judicial pro-
cess.” 1° “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.” '2
And, if prevailing plaintiffs or their attorneys must bear the
burden of prohibitive expert witness fees, the civil mghts 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 as to the
expenses that are reasonable, and Christiansburg Garment Co.
v. E.E.0.C."3 requires that, when the complaint brought proves
to be frivolous or unfounded, the defendant must be awarded
whatever expenses the plainfiff might have recouped. The rule
propounded by the majority today in the case of a prevailing
civil rights defendant applies equally to victorious civil nights
plaintiffs. Although today’s application of the rule affronts no
congressional policy, its primary effect in the future will be seen
in the financial handicap it imposes on the civil nghts 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 nghts
litigation frequently makes it necessary to make
sizeable out-of-pocket expenditures which may be as
‘0 H.R.Rep. No. 1558, 94th Cong., 2d Sess. | (1976) (emphasis‘added ).
11 122 Cong.Rec. 33,313 (1976) (emphasis added ).
12§.Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976), U.S.Code Cong. &
Admin. News 1976, p. 5913. See also Evans v. Jeff D., ____U S.
106 S.Ct. 1531, 1546-1550, 89 L.Ed.2d (1986) (Brennan, J.,
dissenting ).
13 434 US. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).
A-19
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 civil rights litigators is
decreased because they must absorb costs which are
generally billable in other types of cases, the market
result will be 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. '¢
IT.
The linchpin of the majority opinion is its conclusion that
expert witness fees are sufficiently analogous to attorney’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 included as incidental
expenses within an award of attorney’s fees or costs. In so
holding, the majority takes a path inconsistent with that chosen
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
intended to exclude them in all other instances, and by finding
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 in-
tended to exclude them. Over two-thirds of the statutes cited by
14698 F.2d 1181, 1190-91 ( Lith Cir.1983).
— ns
alla Mi ae saline he
a
eee
A-20
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 expert witness fees became so substantial and
common-place as to warrant express reference. Neither should
such interpretation 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 expert
witness fees or other expenses of litigation not enumerated in
§ 1920, either as costs or as part of attorney’s fees. '5
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 included
within an award of attorney’s fees.
The Fourth Circuit, in Wheeler v. Durham City Board of
Education,'® approved the award of copying, long distance
telephone and travel expenses, along with all other out-of-
pocket expenditures by a successful civil nghts attorney.
'S See generally, Bartell, supra note 5 (collecting cases in addition to
those cited here).
16707 F.2d. 636, 637 (ist Cir. 1983). Cf Wildman v. Lerner Stores
Corp., 771 F.2d 605, 612, 614 ( Ist Cir. 1985).
17 §58 F.2d 97, 100 (2d Cir. 1977), rev'd on other grounds, 440 U.S. 568,
99 $.Ct. 1355, 59 L.Ed.2d 587 (1979).
18619 F.2d 276, 284 (3d Cir 1980); see also Walker v. Robbins Hose
“Co., 622 F.2d 692, 694-95 (3. Cir. 1980); Jd at 695-97 (Sloviter, J.,
dissenting ).
19 585 F.2d 618, 623-24 ( 4th Cir. 1978).
A-2!
In Berry v. McLemore 2° and Jones v. Diamond,2" cases the
majority today overrules, this circuit has awarded expert wit-
ness fees under § 1988.
The Sixth Circuit, in Northcross v. Board of Education of
Memphis City Schools,22 heid 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 district 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,23 and specifically approving
the award of expert witness fees under § 1988 in Heiar v.
Crawford County 24 and in Strama v. Peterson.25 Other Seventh
Circuit cases have permitted the award of telephone, postage,
copying, deposition, and travel expenses,2® paralegals’ hourly
fees,2” or simply “all reasonable out-of-pocket litigation ex-
penses.” 26
The Eighth Circuit, in Easley v. Anheuser-Busch, Inc.,2% has
awarded expert witness fees for in-court testimony and, in
American Family Life Assurance Co. v. Teasdaie,2® for pre-trial
20670 F.2d 30, 34 (Sth Cir. 1982). See also Richardson v. Byrd, 709
F.2d 1016, 1023 (Sth Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 257, 78
L.Ed.2d 710 (1983) (awarding paralegal fees).
2° 636 F.2d 1364, 1382 ( Sth Cir.), cert. denied, 453 U.S. 950, 102 S.Ct.
27, 69 L.Ed.2d 1033 (1981).
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, 79 L.Ed.2d 685 ( 1984).
24746 F.2d 1190, 1203-04 (7th Cir. 1984), cert. denied, __.— ~U S..
——. 105 S.Ct. 3500, 87 L.Ed.2d 631 ( 1985).
25 689 F.2d 661 (7th Cir. 1982).
28 Heier, supra; Mary Beth G. v. City of Chicago. 723 F.2d 1263, 1282
(7th Cir. 1983); Strama, supra.
2? Heier, supra: Strama, supra.
28 Henry v. Webermeier, 738 F.2d 188, 192 (7th Cir. 1984).
29 758 F.2d 251, 257 ( 8th Cir. 1985).
30 733 F.2d 559, 571 (8th Cir. 1984).
= on, awe &
A-22
consultations. It has also approved the award of all reasonable
out-of-pocket expenses under § 1988.3"
The Ninth Circuit, in Thornberry v. Delta Airlines, Inc.,3
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 expert witness fees and
other third-party payments to be awarded under Rule 54(d)
rather than under § 1988.
The Tenth Circuit, in Ramos v. Lamn,33 awarded similar
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
Fla.,34 the Eleventh Circuit awarded all reasonable expenses
not normally absorbed by the attorney as over-head,95 even
though it does not allow simliar expenses to be awarded under
Rule 54(d) discretion.2¢ The Court wrote “[wle 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.’” 37 And the District of Columbia Circuit
has held, in Laffey v. Northwest Airlines, Inc.,3* that § 1988
authorizes 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
31 Id
32 676 F.2d 1240, 1244-45 ( 9th Cir. 1982), vacated on other grounds, 46\
U.S. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983).
33 713 F.2d 546, 558-60 ( 10th Cir. 1983).
34698 F.2d 1181, 1188-92 (lth Cir. 1983) (quoting remarks of Sen.
Tunney, 122 Cong Rec. 33,313 ( 1976)).
38 See also Allen v. U.S. Steel Corp., 665 F.2d 689, 696-97 (Sth Cir.
1982) (deposition and paralegal expenses ).
36 See, e.g, Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519
(lith Cir. 1985); Kivi v. Nationwide Mutual Insurance Co., 695 F.2d 1285,
1289 ( Lith Cir. 1983).
37 698 F.2d at 1191.
38 746 F.2d 4, 30 (D.C. Cir. 1984), cert. denied, _. US. —__., 105
S.Ct. 3488, 87 L.Ed.2d 622 ( 1985)
A-23
compensable and those which are not. The line of
division—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
attorneys to reimburse them for expenses which
normally 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 show-
img that such costs are of a type passed on by the
firms involved to private clients.39
Until today, 20 circuit has limited the award to litigat‘on
expenses incidental to attorney's fees under § 1988 to the cx sts
pe enny wane penelgnenr perntey ary wey wey
witness fees as sui generis, and none has applied Alyeska in this
context.
ry.
The majonty takes Alyeska as its guide, although that case
does not reach, and certainiy does not determine, the question
of what adjuve2t expenses may be included within a statutorily
authonzed award of attorney’s fees. The Alyeska Court refused
“to fashion a far-reaching exception to [the] ‘American
Rule’ ¢' that would permit district courts to award attorney’s
fees without statutory authorization whenever a plaintiff, acting
as a “private attorney-general,” vindicated a statutorily en-
federal courts, must dictate which statutes, when enforced by
private citizens, warrant the recovery of attorney’s fees.
The Ajyeska opinion refers to § 1920 in recounting the
history of the Amencan courts’ authority to award attorney’s
fees. It traces the present version of § 1920 back to an 1853
statute that permitted certain enumerated costs, “and no other
39 Id
“© See also Bartell, supra note 5 at 589-96.
*' 421 US. at 247, 95 S.Ct at 1616.
ON OD 1 ss N
LE Oe 6 toy
A-24
compensation [to] be taxed and allowed to attorneys.” ¢? The
Court suggests in footnote dicta that, although there is no
similar language in the present version of § 1920,
“nothing . . . indicates a congressional intention to depart from”
the exclusion of other costs and fees mandated by the 1853
rule. 43
1853 statute nor any of its successors have been construed 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 F-r .” 45
Attorney’s fees are not synonymous with costs, and the
Supreme Court has long ago held that the 1853 attorney’s fee
statute does not deal “expressly or by implication with the
subject of taxing as costs the expense of [experts or stenogra-
phers}.” *® The Aiyeska 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
authonzed by statute.
Recourse to Alyeska is particularly inappropriate in § 1988
cases. As the legislative history of that section repeats me and
again, § 1988 was enacted expressly to counteract the effect of
42 Jd. at 253, 95 S.Ct. at 1620.
43 Jd at 255 an. 28 & 29, 95 S.Ct. at 162! an. 28 & 29.
44 Jd. at 257-58, 95 S.Ct. at 1621-22. (emphasis added).
“8 Jd at 259, 99 S.Ct. at 1622.
48 In re Peterson, 153 US. 300, 317, 40 S.Ct 543, 549, 64 L.Ed. 919
(1920): see also Newton v. Consolidated Gas Co., 265 US. 78, 83, 44 S.Ct
481, 482-83, 68 L.Ed. 909 ( 1924).
A-25
the Alyeska decision.*? The House Report notes that “civil
nghts 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.” 4% Similarly, the Senate Report begins by
stating that the Act was intended to remedy the gaps created in
our civil nghts laws by A/yeska.5° To impose the limitations and
policies of Alyeska on fee awards under § 1988 is to disregard
enurely the primary congressional purpose behind its enact-
ment. 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. 5'
Vv.
In Christiansburg Garment Co. v. E.E.O.C.,52 the Supreme
Court held that a prevailing civil rights defendant 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 statute
applies in Woodworkers, and because that statute does not
expressly permit expert witness fees, the court has no authority
to award them, presumably not even under the Ajyeska criteria
which are to be applied in the absence of a fee-shifting statute.
The majority ignores the similarity between the Alyeska stan-
dard 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 bringing an
*? See, e.g. S.Rep. No. 1011, 94th Cong., 2d Sess. 1, 4-6 (1976); HLR.
Rep. No. 1558, 94th Cong., 2d Sess. 2-3 (1976); 122 Cong.Rec. 31,472,
31,474, 33,314 35,122-28 (1976). See also Evans v. I D.. —— US.
106 S.Ct. 1531, 1546, 1549, 89 LEd2d — __ (1986)
( Brennan, J., dissenting ).
“* H.R.Rep. No. 1558, 94th Cong. 2d Sess. 2 ( 1976).
** 122 Cong. Rec. 35,128 ( 1976).
8° S.Rep. No. 1011, 94th Cong., 2nd Sess. | ( 1976).
5' Dowdell, 698 F.2d at 1189 n. 12 (1 ith Cir. 1983).
52 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 ( 1978).
A-26
equally unfounded civil rights or employment discrimination
action. Even if Congress did not intend that expert witness fees
be awarded as a component of attorney’s fees, as I believe it
did, it surely did not intend by its reference to attorney’s fees to
lessen the courts’ general authority to award other costs as a
deterrent to frivolous litigation. Yet that is the result of the
majority’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 de-
fendant 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 | will
discuss in the next section, the court also had discretion under
Rule 54(d) to tax expert witness fees as costs, it declined to do
so. The court’s denial of the award should, therefore, be
affirmed.
VL
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.” 53 The rule adopted by the
majority would not permit such a successful plaintiff to recover
expert witness fees and, I submit, by inexorable logical exten-
sion, any other out-of-pocket expenses not enumerated in
§ 1920 for which the plaintiff's counsel would normally have
billed his client. Although some circuit courts have reached the
same result in Clayton Act litigation, this seems to me to be
ineorrect. Allowing a prevailing party treble damages, at-
torney’s fees, and even, at times, prejudgment interest, but
denying recovery of all of the other expense: incident to
litigation is anomalous. 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
Professor Moore points out, “had Congress intended ‘cost of
$315 US.C. § 15 (1982)
A-27
suit’ [in the Clayton Act] to includ. ‘” taxable costs, it would
have said so.” 54
In Gibbons, however, the defendant prevailed and no
statutory fee-shifting provision entitled it to attorney's fees In
the absence of any other provision, Fed.R.Civ.P. 54(d) con-
trols. It is succinct:
Except when express provision therefore is made
either in a statute of the United States or in these
rules, costs shall be allowed as of course to the
That rule does not define the term “costs.” The majority
construes it to restrict the definition of “costs” to those costs
specified in § 1920. It does so by finding that § 1920 is
obviating the discretion allowed by Rule 54(d), and prohibit-
ing the taxing of any costs not listed therein.
Section 1920 does not on its face purport to be exclusive. It
does not say, “only the following costs” shall be allowed.
Neither does it provide expressly for the taxing of expert
witness fees. Its phrasing is permissive because it was revised,
after enactment of the Federal Rules, in recognition of the
discretion that Rule 54(d) affords.55 It is not, therefore, the
kind of “express provision” that is an exception according to the
terms of Rule 54(d). If it were, then § 1920 would control
every case, and Rule 54(d) would be completely redundant,
without any independent force or meaning.
Even if the majority were correct in holding that § 1920 is
exclusive, the majority does not follow this interpretation to its
logical conclusion, for the majority holds that, in the ex-
ceptional circumstances borrowed from Alyeska § /920 does not
apply and some other unspecified authority affords the court
broader discretionary powers. If, on the other hand, the
majority means that § 1920 is not a/ways exciusive, then it fails
5*6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice
§ 54.71[3] (2d ed. 1982).
55 1948 United States Code Congressional Service 1887-88 ( 80th Cong.
2d Sess. ).
A-28
to explain how § 1920 can abrogate the discretion Rule 54(d)
appears to give, and why expert witness fees should be treated
differently from all other costs.
Those circuits that have refused to permit the taxation of
expert witness fees under Rule 54(d) have, like the majority,
relied on a 1932 Supreme Court decision, Henkel v. Chicago, St.
Paul, Minneapolis & Omaha Railway,** in which the court wrote
that expert witness fees were included within, and limited to,
the per diem and travel allowances for ordinary witnesses in 28
U.S.C. §§ 600(a) & (c) (precursors of 28 U.S.C. §§ 1920 &
1821). The Court held that federal courts had no authority,
either in their discretion or under state law, to award as costs
compensation to witresses in excess of the statutory amount.5’
Although the issue in Henkel was the same as that now
presented, the district court powers that it described have since
changed. Henkel was decided before the adoption of the
Federal Rules of Civil Procedure and before the merger of
actions at law and equity. It was written in answer to a certified
question inquiring whether district courts had the authonty to
tax expert witness fees as costs in a case at law. At that ume,
courts sitting in law had no power to award costs not expressly
granted by statute.5® At equity, as Alyeska affirms, courts have
always retained the power to award fees not specified by
statute.5® With the merger of law and equity, Rule 54(d) gave
federal courts in all actions the broader discretion previously
afforded only to courts of equity. As Judge Frank wrote:
[Rule 54(d)] appears to have adopted, for suits
covered by it, the previous federal practice in equity,
5¢ 284 U.S. 444, $2 S.Ct. 223, 76 L.Ed. 386 ( 1932).
57 Id. at 446, 52 S.Ct. at 224.
58 See 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure
§ 2665, at 170 (2d ed 1983); Payne, Costs in Common Law Actions in the
Federal Courts, 21 Va.L. Rev. 397, 399—400 ( 1935).
5° See Supra note 53. See Also In re Peterson, 253 US. 300, 316, #0
S.Ct. $42, 548, 64 L.Ed. 919 ( 1920).
A-29
according to which the tral court had wide discretion
im fixing costs, a discretion not reviewable unless
manifestly abused. . . .
This conclusion is confirmed by Wright & Miller who state
that Rule 54(d) today “makes the allowance of costs dis-
creuonary and, thus, adopts the practice formerly followed in
equity rather than at law.” ®'
Since the adoption of Rule 54(d), the Supreme Court has
only once addressed the district courts’ power t tax costs, and
the majority fails to consider fully the significance of that
decision. Farmer v. Arabian American Oil Company *2 makes
clear that Rule 54(d) authorizes a court, in its discretion, to tax
costs in excess of those mentioned in § 1920. As several circuits
have noted, it modifies the lingenng effect of Henkel *3
In Farmer, no fee-shifting statute applied. The district
court had refused to tax as costs litigation expenses for witness
travel and overnight transcripts. While the Supreme Court
affirmed this disallowance, the Court did not rest its decision on
a determination of whether § 1920 permitted these costs or on
some other rule limiting the taxation of costs. Instead it relied
only 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 liugant for every expense he has seen
fit to incur in the conduct of his case. Items
by winning parties as costs should always be given
careful scrutiny.... [T]he discretion given district
“Harris v. Twentieth Century Fox. Film Corp. 139 F.2d S71 a 1 (2d
Cur. 1943); see also Cox v. Maddux, 285 F Supp. 876, 879 (E.D Ark 1968):
Farrar v. Farrar, 106 F Supp. 238, 241 (W.D.Ark. 1952): Andresen ». Clear
Ridge Aviation, 9 F R_D. 50 ( D.Neb. 1949); Abel ». L Loughman, F RD. 734
(E.D.N_Y.1941); 4 C. Wright & A Miller Federal Practice and Procedure:
Ciwil § 1044 at 152.
*' 10. C. Wnght. A Miller & M. Kane, Federal Practice & Procedure
§ 2665, at 171 (2d ed. 1983).
$2 379 US. 227, 85 S.Cu 411, 13 L.Ed 2d 248 ( 1964).
*? See eg. Paschail v. Kansas City Star Co. 695 F.2d 322 338 (8th
Cir. 1982), rev'd om other grounds, 727 F.2d 692 (1984): Roberts ». SS.
Kyriakoula D. Lemos, 651 F 24 201. 206 ( 34 Cir. 1981).
A-30
judges to tax costs should be sparingly exercised with
reference to expenses not specifically allowed by
statute. 64
The Court’s conclusion reveals its premise: Rule 54(d)
gives the district court discretion to award costs not enumerated
in § 1920.
Although Farmer did not involve expert witness fees, the
Court noted with approval that the district court denied the
excess costs because they were not indispensable to che liuga-
tion and had not received prior approval, which might have
kept the costs to a minimum or alerted the parties in advance
that they would be taxable.*5 These two considerations—
indispensability and prior court approval—have been taken as
guidelines by those circuits that permit courts the discretion to
tax expert witness fees under Rule 54(d).
The First Circuit has permitted the discretionary award of
expert witness fees for courtroom testimony, noting that an
express finding that the testimony was indispensable is usually
required, but that prior court approval will suffice.®* Indeed,
the First Circuit’s leading case re versed an award of attorney's
fees under the Alyeska standards at the same time that it uphelp
an award of expert witness fees under Farmer.*’
The Third Circuit, in the maritime tort case of Roberts v.
S.S. Kyriakoula D. Lemos,®* expressly permitted the awarded
of expert witness fees “when the expert’s testimony is in-
dispensable to the determination of the case,” or “played a
crucial role in the resolution of the issues presented.” ®° The
court wrote:
While Farmer commands perhaps a tight-fisted ex-
ercise of discretion in order to insure moderation in
64 Jd. at 235, 85 S.Ct. at 416.
65 Jd at 233-35, 85 S.Ct. at 415-16.
66 Gradmann & Holler GMBH v. Continental Lines, S.A. 679 F.2d 272,
274 ( 1st.1982); see also Templeman v. Chris Craft Corp., 770 F.2d 245 ( \st
Cir.1985) (employment discrimination); Heddinger v. Ashford Memorial
Community Hospital, 734 F.2d 81 ( ist Cir.1984) ( diversity).
87 See Gradmann & Holler GMBH v. Continental Lines, S.A., 679 F.2d
272, 274 ( ist Cir. 1982). ,
66 651 F.2d 201 (3d Cir.1981).
69 Jd at 206.
A-31
the cost of litigation, it does not mandate parsimony
to the extent of precluding recovery of legitimate and
indispensable litigation expenditures. 7°
Our own circuit has permitted expert witness fees to be
awarded not only under § 1988,7' but in cases of bad faith
litigation,’? and when, after prior court approval, the testimony
proved indispensable to the determination of the case.73
The Sixth Circuit has affirmed an award of expert witness
fees in a civil nights case, rejecting the argument that such fees
were expenses incidental to § 1988 attorney’s fees, and award-
ing them instead “pursuant to the court’s sound discretion
under” § 1920 and Rule 54(d).74 The district court had re-
duced the amount allowed to one-half the amount claimed
because the expense had been incurred without prior approval
of the court and was excessive.
The Eighth Circuit, like the Third, has permitted the award
of expert witness fees adopting Farmer guidelines.’5 Although it
did so in an antitrust case arising under the Clayton Act, the
court relied only on Farmer, holding that “Fed.R.Civ.P. 54
authorizes district judges to award costs not specifically enu-
70 Id.
”" Berry v. McLemore, 670 F.2d 30, 34 ( Sth Cir.1982); Jones v. Diamond,
636 F.2d 1364, 1382 ( Sth Cir.1981).
72 Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 637
(Sth Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971).
But see Baum v. United States, 432 F.2d 85 (Sth Cir. 1970) (Rule 43(d)
discretion limited to statutory witness fees ); United States v. Kolesar, 313 F.2d
835 (Sth Cir.1963); Green v. American Tobacco Co., 304 F.2d 70 (Sth
Cir.1962) (no discretion to award expert witness fees ).
73 Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1100 ( Sth
Cir. 1982) (Clayton Act).
’* Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624 ( 6th
Cir. 1979); see also Smillie v. Park Chemical Co., 710 F.2d 271 (6th
Cir.1983) (SEC action); bus see Murphy v. International Union of Operating
Engineers, 774 F.2d 114 (6th Cir.1985) LMRDA action ).
’8 Paschail v. Kansas City Star Co., 695 F.2d 322, 338-39 ( 8th Cir.1 982),
rev'd on other grounds en banc, 727 F.2d 692, cert denied. U.S.
105 S.Ct. 222, 83 L.Ed.2d 152 (1984); see also Hiegel v. Hill, 771 F.2d 358
( 8th Cir.1985) (§ 1983); Easley v. Anheuser-Busch, Inc., 758 F.2d 251 (8th
Cir.1985) (§ 1983); Coleman ». Omaha, 714 F.2d 804, 809 ( 8th Cir. 1982)
(employment discrimination); Linneman Construction, Inc. v. Montana-
Dakota Utilities Co., Inc., 504 F.2d 1365 ( 8th Cir.1974).
A-32
merated in 28 U.S.C. § 182! for § 1920].” It has reached the
same result in cases that do not involve a free-shifting statute.’”®
The Ninth Circuit permits the award of expert witness 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.” 77 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 authority
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 reasonably
accessible to the court and whose appearance is determined to
be critically important to the case.” 7®
Other circuits have denied the award of expert witness fees
in excess of the amount allowed ordinary witnesses by 28
U.S.C. § 1821.79 The Second ®° and Fourth ®' Circuits have
addressed the issue only in anti-trust cases and have held, |
78 Nemmers v. City of Dubuque, 764 F.2d 502, 506 (8th Cir.1985)
(zoning action). See also Nebraska Public Power Dist. v. Austin Power, Inc.,
773 F.2d 960 (8th Cir.1985) (diversity).
77676 F.2d 1240, 1245 (9th Cir.1982), vacated on other grounds, 461
US. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983); see also Shakey’s Inc. v.
Covalt, 704 F.2d 426 (9th Cir.1983) (trademark infringement). Bur see
Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 224 & n. 67 ( 9th
Cir. 1964).
78 Quy v. Air America, Inc., 667 F.2d 1059, 1066 n. I! (D.C.Cir. 1981)
( diversity ); See also Moore v. National Association of Securities Dealers, Inc.,
762 F.2d 1093, 1128 n. 20 (D.C.Cir.1985) (employment discrimination );
Postow v. OBA Federal Savings & Loan Ass'n, 627 F.2d 1370 (C.A.D.C.1980)
( Truth in Lending Act).
79 See Bartell, supra note 5, at 591.
80 Berkey v. Eastman Kodak, 603 F.2d 263 (1974), cert. denied, 444 US.
1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); Trans World Airlines v.
Hugh , 449 F.2d 51, 81 (2d Cir.1971). ,
8" Speciality Equipment & Machinery Corp. v. Zell Motor Car Co., 193
F.2d 515, 520-21 (4th Cir.1952).
A-33
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,” citing Farmer,
but limits that discretion to unspecified “exceptiona) circum-
stances.” 82 Finally, the Tenth ®3 and Eleventh ® Circuits have
categorically 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.
In sum six circuits permit the award of expert witness fees
when the testimony is indispensable or when advance court
approval is obtained, in accordance with the Supreme Court’s
distum in Farmer, and as we have held in prior cases. Two
circuits categorically deny district courts any authority under the
Clayton Act, and two deny them any authority under Rule
54(d), to award costs not provided for by statute. But none
engrafts the Alyeska attorney’s fees exceptions onto a rewritten
§ 1920.
Pursuant to Rule 54(d), the district court should be
permitted in its ,discretion, sparingly exercised, to award a
prevailing party expert witness fees, reasonable in amount, for
courtroom testimony in cases in which the testimony was
indispensable to resolution of the case. District courts should
be given discretion to adopt local rule limiting the award of
such fees to cases in which prior court approval was given.
82 Jilinois v. Sangamo Construction Co., 657 F.2d 855, 865 n. 14 (7th
Cir.1981); see also Sanchez v. Schwartz, 688 F.2d 503 (7th Cir.1982)
(§ 1988); Adams v. Carison, 521 F.2d 168 (7th Cir.1975) ( prisoner's suit);
Fey v. Walston & Co., 493 F.2d 1036 (7th Cir.1974) (SEC action).
®3Cleverock Energy Corp. v. Trepel, 609 F.2d 1358, 1363 ( 10th Cir.1979)
( diversity); but see Ramos v. Lamm, 713 F.2d 546 ( 10th Cir.1983) ( award-
ing expert witness fees under § 1988 as incidennal expenses ).
84 Loughan v. Firestone Tire & Rubber Co. 749 Fld 1519 (\ith
Cir.1985). Kivi 4 Nationwide Mutual Insurance Co., 695 F.2d 1285, 1289
(ith Cir.1983). But see Dowdell v. City of Apopka, Fla. 698 F.2d 1181,
1188-89 (Lith Cir.1983) (awarding all out-of-pocket expenses under
§ 1988).
—
A-34
VIL.
In Gibbons, the district court carefully reviewed the evolv-
ing law in our circuit, and in the Third, Sixth, and Eighth
Circuits before concluding, as do I, and as did those circuits,
that Farmer has modified what remains of Henkel, and that
expert witness fees in excess of those allowed by statute may be
awarded if they were indispensable to the litigation. The
district court noted that, “It is particularly appropriate to award
defendants the costs of indispensable expert witness 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.” ®5 It carefully re-
viewed the importance of the testimony of each of the three
expert witnesses whose fees were sought to be taxed and
concluded that the testimony of only two was “crucial and
indispendable to the presentation of the defendants’ case.” It
also examined the reasonableness of the fees of those two
witnesses before ordering that they be taxed. The Gibbons
court applied the right test and, in a carefully reasoned exercise
of its discretion, reached a result that I would affirm.
Vill.
The costs of litigation, as we all know, have become
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 unavoid-
able necessity of expert witness testimony to establish or rebut
many legal claims, especially those raised in civil mghts and
antitrust cases. A study cited by a student writer suggests that
expert testimony controls the outcome in two-thirds of all cases,
and that expert witness fees are second only to attorney’s fees as
the largest litigation expense. ®*
88/7. Gibbons v. Crawford Fitting Co, 102 FRD. 73 86
(E.D.La.1984).
86 footnote not supplied.
A-35
A rule that denies a prevailing party who is entitled to
attorney’s fees the right to recover the other costs for which his
lawyer bills him gives the vindicated party only half a victory.
Although the victor in litigation is not entitled to spoils, he
ought at least be able to invoke the court’s discretion to make
him whole. a
APPENDIX B
B-2
No. 83-4616.
Unrrep STATES COURT OF APPEALS,
Firtu Ciacurr.
Feb. 7, 1985.
INTERNATIONAL WOODWORKERS OF AMERICA,
AFL-CIO, CLC anp rrs Loca No. 5-376,
Plaintiff - Appellee,
v.
CHAMPION INTERNATIONAL CORPORATION,
Defendant - Appellant.
Fuselier, Or & McKee, M. Curtiss McKee, Jeffrey A.
Walker, Jackson, Miss., for defendant-appellant.
Youngdahi, Larrison & Agee, James E. Youngdahi, Little
Rock, Ark., for plaintiff-appellee.
Appeal from the United States District Court for the
Northern District of Mississippi.
Before WISDOM, REAVLEY and RANDALL, Circuit
Judges.
PER CURIAM:
This case is hopefully the final chapter in the litigation
commenced in April 1978 by International Woodworkers of
America, AFL-CIO, CLC (IWA), and one of its local unions
against Champion International Corporation (Champion)
alleging racial discrimination in employment in violation of
Title VII and 42 U.S.C. § 1981 at Champion's Oxford, Mis-
sissippi plant. In 1982, after a trial, the district court entered a
judgment on the merits dismissing the claims of all piainuffs
and assessing all costs against [WA. In April 1984, this court
affirmed the district court’s judgment on the merits.
amount which exceeded that provided for in 28 US.C
/ § 1821(a)(1), amd the case returned to the district court.
In August 1983, the district court entered an order sustain-
reasonableness of the expert witness’ fees nor that the expert's
testimony was an important part of the defendant's case.” The
district court also expressed the view that the “defendant's
expert was helpful and perhaps necessary to its case.” Follow-
ing a thorough and careful review of the relevant statutes and
caselaw, the district court concluded that this court, in Jones v.
Diamond, 636 F.2d 1364, 1382 (Sth Cir.) (en banc), cert.
granted, 452 US. 959 101 S.Ct. 3106, 69 L.Ed.2d 970, order
amended, partial cert. granted, 453 U.S. 911, 101 S.Ct. 3141, 69
L.Ed.2d 993, cert. dismissed, 453 US. 950, 102 S.Ct. 27, 69
L.Ed.2d 1033 (1981), had, in effect, adopted for purposes of
expert witness’ fees the rule adopted by ihe Supreme Court in
Christiansburg for attorneys’ fees, i.e., prevailing defendants are
district court refused to grant Champion expert witness’ fees in
excess of the amount provided by 28 U.S.C. § 1821 based on its
prior holding, in the attorneys’ fees context, that [WA's suit was
not fnvolous, unreasonable, without foundation. or brought in
eens
B-4
bad faith. Champion appeals the disallowance of its excess
expert witness’ fees.
Champion argues that the Christiansburg test applied by
the district court is the wrong test and argues instead for a test
that would award excess expert witness’ fees to a prevailing
defendant if “the expert testimony was necessary or helpful to
the presentation of civil nghts claims, or indispensable to the
determination of the case,” citing our decision in Copper Liquor,
Inc. v. Adolph Coors Co., 684 F.2d 1087, 1100 ( Sth Cir. 1982)
modified on other grounds, 70\ F.2d 542 (Sth Cir.1983) (en
banc). We do not agree that Copper Liquor is authority for the
broad proposition for which it is ated by Champion. Copper
Liquor is itself a case arising under the Clayton Act which
contains a specific statutory provision awarding to the winner
the “cost of suit, including a reasonable attorney's fee.” 15
U.S.C. $15. The treatment in Copper Liquor and its progeny,
see Greenhaw v. Lubbock County Beverage Ass'n, 72\ F.2d
1019, 1033 (Sth Cir.1983), of excess expert witness’ fees does
not control in this Title VII, § 1981 case. The paragraph in
Copper Liquor setting forth the general rules on fees of expert
witnesses is, howev-r, instryctive:
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 tal
court discretion to award the full fee charged by the
expert in exceptional circumstances, for example,
when the expert tesumony was necessary or helpful
to the presentation of civil rights claims, or in-
dispensable to the determination of the case. If
counsel plan to seek allowance of the entre expert's
fee, the better practice is to seek court approval
before calling 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.
684 F.2d at 1100 ( footnotes omitted). Significantly, with one
exception ' not here relevant, the cases cited in Copper Liquor
' Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 636-
37 (Sth Cir.) (district court can award costs, including attorneys’ fees and
expert witness’ fees. against piainuff when an unfounded acuon or defense 's
maintained | bad fath. vexauously, wantonly, or for oppressive reasons ).
cert. denied, 44 US. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971)
B-5
which were decided by this court and in which excess fees were
allowed are civil mghts cases in which the fees have been
allowed to prevailing plaintiffs. The rationale for the awarding
of these fees is stated simply and directly in Jones v. Diamond,
supra, 636 F.2d at 1382: “Without the ability to recover experts’
always indigent, will be unabie to bring these cases.” See also
Berry v. McLemore, 670 F.2d 30, 34 ( Sth Cir. 1982). But those
considerations do not apply to prevailing defendants who are
not engaged in vindicating their civil rights. See Sirong v.
Ponder, S72 Supp. 129 (N.D. Ga. 1983). We see no reason,
therefore, to extend to prevailing defendants the night to
recover excess expert witness’ fees on the basis contended for by
Champton.
We note that the district court construed Jones v. Diamond
as adopung for avil nghts cases involving excess expert witness”
fees incurred by prevailing defendants the standard adopted by
the Supreme Court in Christiansburg for Title VII cases in-
volving attorneys’ fees incurred by prevailing defendants. In
view of the district court's finding, unchallenged on appeal by
standard, we need not decide whether, if it had, Champion's
excess expert witness’ fees would have been awardable.
AFFIRMED.
APPENDIX C
C-2
IN THe Unrrep States District Court
For THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
Civil Action No. WC 78-33-WK-P
INTERNATIONAL WOODWORKERS OF AMERICA,
AFL-CIO, CLC, et al.,
Plaintiffs,
Vv.
CHAMPION INTERNATIONAL CoORP.,
Defendant.
MEMORANDUM ORDER
This action comes before the Court on plaintiffs’ objection
to costs assessed by the Clerk of Court. On September 10,
1982, this Court entered judgment in this case dismissing the
complaint in its entirety and taxing all costs against plaintiffs.
On December 30, 1982, following defendant's motion for
allowance of attorney’s fees and expenses as a part of the costs,
this Court denied an award of attorney’s fees upon an express
finding that the lawsuit was not brought in bad faith nor was it
frivolous, unreasonable, or without foundation as is required to
award attorney’s fees to a prevailing defendant. See Christian-
burg Garment Co. v. EEOC, 434 U.S. 412, 422, 54 L. Ed.2d 648,
657 (1978) (attorney’s fees may be awarded to prevailing
defendant only where plaintiffs’ action was frivolous, unreason-
able, without foundation, or brought in bad faith). The motion
was then referred to the Clerk for disposition of issues and
disputes concerning the taxing of costs. On April 27, 1983, the
Clerk entered an order taxing costs in the amount of
$14,750.87.
C-3
L. Deposition Costs
Plaintiffs object to the taxing of costs for various deposi-
tions which in some way relate to the labor relations policies of
the union, an issue raised by the defendant and ultimately
rejected by the court. However, the Court is convinced that the
disputed depositions contain relatively few references to the
labor relations policies of the union and were all reasonably
necessary for defendant’s preparation for trial. See Worley v.
Massey-Ferguson, Inc., 79 F.R.D. 534 (N.D. Miss. 1978)
(expenses of depositions reasonably necessary for party’s prep-
aration for trial are taxable as costs). Plaintiffs also object to
taxing costs for several depositions because no separate in-
dication of their costs included in defendant's original bill of
costs. To the extent such a deficiency may prevent recovery of
costs, we are of the opinion it is cured by the exhibits itemizing
these deposition costs attached to defendant’s memorandum in
opposition to plainnffs’ objections.
Il. Expert Witness Fees
Plaintiffs next object to defendant's claim for expert wit-
ness’ fees. Although plaintiffs do not contest the reasonableness
of the expert witness’ fees nor that the expert's testimony was
an important part of defendant's case, they argue that in a Title
VII case taxing expert witness’ fees are subject to the same
standard as attorney's fees which was set forth in Christians-
burg Garmet Co. v. EEOC, 434 US. 412, 54 L. Ed.2d 648
(1978). Defendant counters that expert witness fees are
governed by the traditional rule in civil cases and exemplified in
this circuit by Gerber v. Stoltenberg, 394 F.2d 179 (Sth Cir.
1968 ).
‘In Christianburg the Supreme Court found a congressional intent in
Title VU of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), to permut a
prevailing plaintiff an award of attorney's fees as a matter of course but to
allow a prevailing defendant an award of attorney's fees only upon a finding
that plairuffs clam was fmvolous, unreasonable, without foundation, or
brought in bad faith. 434 U.S. at 422.
C-4
A. Statutory Authority
28 USC. §1821(a)(1) (Supp. 1983) mandates
reimbursement of attendance and mileage expenses for “a
witness in attendance at any court of the United States... .”
Id. The current attendance fee is $30.00 per day with normal
travel expenses governed by 5 U.S.C. sections 5702 and 5704
which concerns official travel of employees of the Federal
Government. /d at § 1821(b), (c), (d). This section applies
to lay and expert witnesses alike and thus forbids taxation of
expert witness’ fees in excess of the statutory amount. £.¢.,
Henkel v. Chicago, St. P. M. & O. Ry. Co., 284 U.S. 444, 448, 76
L. Ed. 386, (1932) (excess fees to expert witnesses not allowed
or taxable as costs in federal court); Jones v. Diamond, 636
F.2d 1364, 1382, amended 453 U.S. 911, 69 L. Ed.2d 993, cert.
dismissed, 453 US. 950, 69 L. Ed.2d 1033 (Sth Cir. 1981)
(normal civil litigation rule disallows excess fees for expert
witnesses ); Gerber v. Stoltenberg, 394 F.2d 179 ( Sth Cir. 1968)
(no validity to claim for expert witness’ fees in excess of
statutory amount).
B. Equity Power in Non-Civil Rights Litigation
In non-civil mghts cases, the courts have allowed expert
witness’ fees, independently of § 1821, but only through ex-
ercise of the equity power of the federal courts upon a showing
of exceptional circumstances as exist in unfounded cases “ main-
tained in bad faith, vexatiously, wantonly, or for oppressive
reasons.” Kinnear-Weed Corp. v. Humble Oil & Refining Co.,
441 F.2d 631, 637 (Sth Cir. 1971). The courts of this district.
however, have strayed, in dicta but not in result, from this strict
construction of the “exceptional circumstance” rule. A long line
of Northern District cases culminating with Worley v. Massey-
Ferguson, Inc., 79 F.R.D. 534 (N.D. Miss. 1978), has. in dicta.
suggested broadening the “exceptional circumstance” rule to
include situations in which (1) a party had no opportunity to
obtain prior court approval of expert witnesses, and (2) the
expert's testimony was indispensable to the case and lay
testimony is inappropriate. See, e.g. Morris v. Carnathan, 63
F.R.D. 374, 379 (N.D. Miss. 1974) (only in unusual circum-
stances will excess fees be awarded): Wade v. Mississippi
C-5
Cooperative Extension Service, 64 F.R.D. 102, 105 ( N.D. Miss.
1974) (excess fees awardable where party had no opportunity
to obtain pnor approval or expert tesumony was indispensable
to case); Brooks v. Town of Sunflower, Civil Action No. GC 71-
57-K (N.D. Miss. Mar. 27, 1975) (Memorandum Opinion )
extension. The also vlur disunction which may have
existed between civil rights and non-civil rights litigation. In
fact, several of this court's decisions slowing excess expert
C. Civil Rights Cases
In Jones v. Diamond, 636 F.2d 1364 ( Sth Cir. 1981) (en
banc), the Fifth Circuit was faced with the question of whether
recoverable as costs and experts are compensable only at the
same rate as other witnesses. /d. at 1382. However, the court
then announced that congressional intent dictated a different
rule in civil nghts liigation. To support this holding, the court
cited the Senate Report to the Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C. § 1988, which provides:
If private citizens are to be able to assert their civil
rights, and if those who violate the nation’s
C-6
fundamental laws are not to proceed with impunity,
burg, and, im fact, the Senate Report relies heavily upon the
congressional intent expressed in Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-5(k), S. Rep. 94-1011, 94th
Cong., 2nd Sess. 2, reprinted in U.S. Code Cong. & Ad. News.
$908, 5910, which was the precise subject of Christianourg’s
statutory coms-ruction. 424 US. at 417, 54 L. Ed.2d at 654.
Although the Attorney’s Fees Awards Act of 1976, 42 US.
§ 1988, does not provide for awards of expert witness’ fees.? the
when the lawsuit is frivolous, unreasonable, or without founda-
uon. Following this rule, the prevailing defendants in this case
are entitled to an award of expert witness’ fees only if plaintiffs’
* In his separate opinion in Diamond, Chief Judge Coleman wok the
majority severely to task for relying on the congressional intent of an act
which cannot itself be cited for support of the award of expert witness fees
636 F.2d at 1391 (Coleman, C.J. concurring in part and dissenting in part)
C-7
suit was frivolous, unreasonable, without foundation, or
brought in bad faith. Although defendant's expert witness was
helpful and perhaps necessary to its case, because we have
already found plaintiffs’ suit was not frivolous, unreasonable,
without foundation, or brought in bad faith, we decline to grant
expert witness’ fees in excess of the statutory amount.
Therefore, it is
ORDERED:
1. That plaintiffs’ objections to costs taxed against them
are overruled, except that the objection to expert witness’ fees
in excess of the statutory amount is hereby sustained.
2. That the issue of expert witness’ fees is hereby re-
manded to United States Magistrate Norman L. Gillespie for
further dispostion in keeping with this Memorandum Order.
This 24th day of August, 1983.
Wiustam C. Keady
United States District Judge
2 This analysis is supported by the court's recent opinion in Berry v.
McLemore, 670 F.2d 30 ( Sth Cir. 1982). Relying on the discussion in Jones v.
Diamond, 636 F.2d 1364, 1382 (Sth Cw. 17981), the court held that a
prevailing plaintiff in a 42 U.S.C. § 1983 action was enutied w recover
attorney's fees and expert witness’ fees because of the “different rule” applied
in civil nghts lingauon to ensure claimants “effective and competent repre-
sentation.” 670 F.2d at 34, citing Jones v. Diamond, 636 F.2d at 1382.
APPENDIX D
D-2
Unrtep States District Court
For THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
No. WC78-33-WK-P
INTERNATIONAL WOODWORKERS OF AMERICA,
AFL-CIO, CLC, et al.
Vv.
CHAMPION INTERNATIONAL CORPORATION
ORDER TAXING COSTS
On October 12, 1983, defendant filed a motion for allow-
ance of attorney's fees and expenses as a part of the costs and
bill of costs in the total sum of $38,072.20. The court entered
an order on December 20, 1982, directing that all questions and
disputes concerning the taxing of costs in this action be referred
to United States Magistrate Norman L. Gillespie for dis-
position. The court was advised on October 13, 1982 that
plaintiff objected to the bill of costs. Plaintiff does not object to
the $135.00 statutory witness fees for Dr. Haworth and the two
charges for copies of EEOC files totalling $90.50. In view of
defendant’s thorough explanation of the cost of deposition in
the reply brief, plaintiffs’ objections to the costs of the following
of deposition of Mr. Bateman, William D.
ER, Glee tsrsnscsmecsescssesssssessnssse $ 42.42
Copy of deposition of Mr. Stehman, May, 1979.. 26.06
Depositions of Brister, E. D. Henderson, Will-
ingham, Aron, J. C. Henderson, Mathis and
Tillie iceesinesneareeitehinerniapeiiepponemmennnsseneumennssces 992.60
Depositions of Poole, Anderson and Willing-
ham (all three listed as plaintiff's witnesses in
ID cemnennensmessnscssrsressemnsssenmnsscsssceseene 240.00
Depositions of Campbell, Reed and Gorman ..... 1,072.35
254.15
a lar tales $2,627.58
D-3
In United States v. Kolesar, 313 F.2d 835, the court stated:
“Trial judge did not abuse discretion in permitting counsel for
husband and wife, maintaining Tort Claim Act suit predicated
on substantial injuries to wife as the result of surgery, to tax as
costs copies of depositions of government medical officers,
nurses and corpsmen.” The court finds that the above-
mentioned depositions were necessary for defendant’s prepara-
tion for trial and there was a “reasonable need” that counsel
have copies of the depositions. Worley v. Massey-Ferguson, Inc.
79 F. R. D. 534 (N.D. Miss. 1978).
The court sustains plaintiffs’ objections to the taxation of
costs in the amount of $2,742.27 and $175.00 paid to Martin
and Winstead for the transcription of the statements under oath
which Champion obtained shortly before trail from a number
of the witnesses listed in the pre-trial order witness list of the
plaintiff. There is no equity. in transferring this litigation cost to
the plaintiff. “Cost that merely are incidental to the trial or are
incurred in preparation for it will not be considered necessarily
incurred for use in the case for the purpose of Section 1920 and
will not be allowed under local rule, custom and usage, or the
court’s inherent power.” 10 C. Wright and A. Miller, Federa/
Practice and Procedure, 2677 (1973).
Plaintiff's objections to the taxation of cost in the amount
of $181.50 to B. L. Holman for payment of a copy of the
transcript of the class certification hearing; the amount of
$72.72 to Petrie’s Stenograph Service for the deposition of Mr.
Walker, the [WA attorney who filed the union’s EEOC charge;
and the amount of $81.20 for copies of depositions of Mr. Reed
and Mr. Gorman taken at the instance of the plainuff in Booker
v. Anderson, No. WC77-95-S (N.D. Miss. 1977), are hereby
sustained.
The most important issue in this cause is the one con-
cerning the claim of defendant for expert witness fees. In
Worley v. Massey-Ferguson, Inc., 79 F.R.D. 534, 521 (1978),
Judge Smith’s opinion leaves no doubt that this court “on rare
occasions... has allowed expert fees exceeding the statutory
amount to , be taxed as costs even though the party did not get
approval from the court before retaining the expert, e.g.
Yarbrough v. Town of Ackerman, civil action No. EC75-163-K
D-4
(N.D. Miss. 2/25/77), citing with approval Brooks v. Sun-
flower, No. GC71-57-K (N.D. Miss. March 27, 1975)...”
Where lay testimony in a case is inappropriate and it is
indispensable for a party to obtain technical advice; this court
has allowed the claim of expert witness fees. Plaintiff contends
that expert fees are included as costs in civil rights cases only
when they are claimed by plaintiffs; not when defendants
prevail. In Berry v. McLemore 670 F.2d 30, 34 ( Sth Cir. 1982)
and Jones v. Diamond, 636 F.2d 1364, 1382 (Sth Cir.), the
court held that expert witness fees were taxable when witness’
testimony was an important part of plaintiff's case. The court's
reason for allowing the plaintiff to tax expert witness fees as
costs in Jones, supra, and Berry, supra, should not be construed
to deny a prevailing defendant from claiming expert witness
fees as costs in a civil rights case. We feel that Congress did not
intend to enact a law for a plaintiff and a different one for
defendant. The court overr ies plaintiff's objections to the
taxation of cost for expert wit sess fees. In Yarbrough v. Town
of Ackerman, supra, Judge \ eady stated: “The final item in
issue is the $4,986.71 claimed by plaintiffs for expenses incurred
for engineering and technical assistance as absolutely necessary
to the development of their case. While we view the awarding
of such fees with caution, we are of the opinion that where, as
here, the use of an expert is necessary to review, analyze, and
criticize technical data clearly beyond the knowledge of lay
citizens, an award of reasonable expert fees is proper.... We
conclude, however, that the costs to be taxed to defendants
should be limited to that portion of the expenses necessarily
incurred by plaintiffs in order to properly develop their case as
to the two areas of municipal services regarding which they
obtained relief. Jt is our view that $2,500 is a fair and
reasonabie amount allowable as costs for the expense of engi-
neering and technical consultation with respect to these two areas
of service.”
The court finds that the total sum of $11,807.16 is a fair
and reasonable amount allowable as cost for expert witness fees
of Dr. Haworth’s testimony and preparation of said testimony.
The amount of $11,807.16 is based upon the fee chai ged by the
expert witness for professional services only. All other charges
D-5
for research assistance, travel, telephone, etc. are hereby
excluded.
It is therefore
ORDERED
That costs are taxed as follows:
Fees of the marshial .................ccccssceeeesseeeeeeeeenenenees $ 5.88
Fees of the court reporter for all or any part of
the transcript necessarily obtained for use in
the case ........ ee 2,627.58
Fees fOr WitOSSOS.........0000..eeccccersscsersersersesesessesssnees 199.25
Fees for exemplification and copies of papers
ily obtained for use im CaS€ ............... 111.00
Expert witness fees and expenses .............-..-.000 11,807.16
___ $14,750.87
This the 27th day of April, 1983.
Norman L. GILLESPIE
United States Magistrate
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.