Harrisburg Coalition Against Ruining Environment v. Volpe

29 A.L.R. Fed. 926, 65 F.R.D. 608, 20 Fed. R. Serv. 2d 495, 1974 U.S. Dist. LEXIS 6198
CourtDistrict Court, M.D. Pennsylvania
DecidedOctober 21, 1974
DocketCiv. No. 71-143
StatusPublished
Cited by9 cases

This text of 29 A.L.R. Fed. 926 (Harrisburg Coalition Against Ruining Environment v. Volpe) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrisburg Coalition Against Ruining Environment v. Volpe, 29 A.L.R. Fed. 926, 65 F.R.D. 608, 20 Fed. R. Serv. 2d 495, 1974 U.S. Dist. LEXIS 6198 (M.D. Pa. 1974).

Opinion

MEMORANDUM AND ORDER

NEALON, District Judge.

This case is before this Court for the fourth time. Its prior history, as well as a complete statement of the facts, is contained in the previously reported opinions in the ease, published in 330 F. Supp. 918 (M.D.Pa.1971) and 381 F.Supp. 893 (M.D.Pa.1974). In a nutshell, that history is as follows: The suit was originally brought to enjoin the Federal, State of Pennsylvania and City of Harrisburg governments from constructing portions of two highways through Wild-wood Park in Harrisburg. On May 11, 1971, this Court dismissed the complaint with respect to the state and city officials, but enjoined further disbursement of federal funds for the construction of the two highways and remanded the matter to the United States Secretary of Transportation for further consideration in light of the requirements of several federal statutes, among them the Department of Transportation Act of 1966, 49 U.S.C. Sec. 1653(f); the Federal-Aid Highway Act of 1968, 23 U.S.C. Sections 128 and 138; and the National Environmental Act of 1969, 42 U.S.C. Sec. 4332(2)(C). In January of 1973, after the federal defendants filed the data requested, they moved to dissolve the injunction and dismiss the complaint on the ground that they had complied with the order of May 11, 1971. Those motions were contested by the plaintiffs. Several of the state and city officials, against whom plaintiffs’ complaint had been dismissed on May 21, 1971, were rejoined as defendants and an evidentiary hearing, lasting seven days, was conducted in late May and early June of 1973, before the parties, at the strong urging of the Court, entered into an amicable settlement whereby they agreed to a realignment of the two highways in [610]*610such a manner as to reduce the impact on Wildwood Park. In an opinion filed July 12, 1974, and appearing at 381 F.Supp. 893 (M.D.Pa.1974), this Court awarded costs to the plaintiffs against the United States Department of Transportation alone, but declined to make any award of counsel fees. On the same date the parties were ordered to submit documentation in support of, and in opposition to, the costs requested by the plaintiffs.

At issue now are several items of the plaintiffs’ bill of costs, which was filed on July 22, 1974. Specifically, the defendants object to allowing plaintiffs to recover expert witness fees, certain deposition expenses, and several miscellaneous expenses. A discussion of each category of disputed costs follows.

A. ■ Expert Witness Fees

Defendants argue that Henkel v. Chicago, St. Paul, Minneapolis & Omaha Ry., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386 (1932) precludes including expert witness fees as plaintiffs’ recoverable costs. Henkel held that the amount of costs recoverable for witness fees in federal courts is limited to the amounts specified for per diem, mileage, and subsistence in the predecessor statute to 28 U.S.C. Sec. 1821, and does not include expert witness fees. Plaintiffs argue that the 1966 amendment to 28 U.S.C. Sec. 2412, which greatly expanded the power of the federal courts to award costs against the United States in civil cases in which the United States, or an agency or official thereof, is a party, was intended to supersede the Henkel opinion insofar as cases in which the United States is a party are concerned, and to authorize the award of expert witness fees in such cases.

The legislative history of the 1966 amendment to 28 U.S.C. Sec. 2412 reveals that plaintiffs are mistaken in their contention. The statute itself, it should be noted, provides no clue as to whether expert witness fees are recoverable as costs against the United States. It simply provides for the recovery of costs “as enumerated in section 1920 of this title . . . ” and 28 U.S.C. Sec. 1920 merely lists among taxable costs “[f]ees and disbursements for . witnesses[.]” The legislative history of the 1966 amendment, however, clearly establishes that the amendment was not intended to alter in any fashion the holding of Henkel that federal courts are limited to the amounts specified in the predecessor statute to 28 U.S.C. Sec. 1821 in taxing witness fee costs. See 1966 U.S.Code Cong, and Admin.News 2527-2531. For example, in Senate Report No. 1329 the committee on the Judiciary made reference to the language in the report of the House of Representatives judiciary committee that “[t]his section does not make any special provision for expert witnesses so that any additional amounts paid as compensation in connection with the appearance of expert witnesses could not be included under this section as costs.” Accordingly, item (3) of plaintiffs’ bill of costs is disallowed to the extent that it seeks payment of expert fees in excess of the statutory amount for witnesses. Plaintiffs have submitted an alternative bill of costs with respect to witness fees that complies in all respects with 28 U.S.C. Sec. 1821. (Exhibit A of Plaintiffs’ Reply Memorandum to the Federal Defendants’ Objections Re: Costs, filed July 26, 1974.) Those fees will be allowed.

B. Deposition Expenses

Defendants have objected to three categories of deposition expenses: (1) the fees for depositions of state and city officials; (2) so much of the fees which represent premiums for expedited transcription; and (3) the reporter’s appearance fees for cancelled depositions.

The objection with respect to depositions of state and city officials is that the federal defendants should not be made to bear the plaintiffs’ cost of pursuing their claims against the state and city defendants, against all of whom plaintiffs’ suit was dismissed. In sup[611]*611port of this argument, the defendants cite Semke v. Enid Automobile Dealers Association, 52 F.R.D. 518 (W.D.Okl.1971), where the court held that “the cost of depositions of parties against whom a case cannot be made and witnesses pertaining to such parties should not, in the judgment and discretion of the Court, be taxed against those defendants against whom a judgment is recovered.” Id., at 520.

However valid the holding in Semke may be, the defendants are mistaken in their contention that it governs the outcome of this case. The general rule regarding deposition costs is that that they are recoverable if the taking of the depositions is found to have been reasonably necessary at the time of taking, and that said recovery is within the sound discretion of the court. 4 Moore’s Federal Practice Para. 26.82. The court in Semke applied the general rule and found that the taking of the depositions of parties against whom the plaintiff in that case did not prevail, and witnesses pertaining to such parties, was not reasonably necessary, at the time of their taking, to the case against the defendant against whom the plaintiff did prevail. In this case, although the claims against the state and city officials were originally dismissed, the taking of the depositions of those officials, however relevant to the claims against said officials, was reasonably necessary to the claim against the federal defendants. At the very least, the testimony of the state and city officials related to the legality of the approval of the federal environmental impact statement.

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29 A.L.R. Fed. 926, 65 F.R.D. 608, 20 Fed. R. Serv. 2d 495, 1974 U.S. Dist. LEXIS 6198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrisburg-coalition-against-ruining-environment-v-volpe-pamd-1974.