International Woodworkers of America, Afl-Cio and Its Local No. 5-376 v. Champion International Corporation

790 F.2d 1174, 43 Fair Empl. Prac. Cas. (BNA) 385, 4 Fed. R. Serv. 3d 721, 1986 U.S. App. LEXIS 25503, 40 Empl. Prac. Dec. (CCH) 36,148

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 1986
• Docket: 83-4616
• Status: Published

Opinions

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 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 (5th Cir.1982) (Copper Liquor III), modified on other grounds en banc, 701 F.2d 542 (5th Cir.1983), and their progeny approving the taxing of excess expert witness’ fees as costs under standards different from that here announced.

I.

International Woodworkers of America, AFL-CIO, CLC (“IWA”) and one of its local unions sued Champion International Corporation (“Champion”) alleging racial discrimination in employment in violation of Title VII and 42 U.S.C. § 1981. After a trial, the district court entered judgment on the merits dismissing the claims of all plaintiffs and assessing costs against IWA. We 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. IWA 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 IWA’s objections to the taxing of the excess expert witness’ fees, concluding that this court in 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.¹ 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 (5th 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 unchallenged 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 panel opinion. See Fifth Circuit Local 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., Fleisckmann 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 consideration of the case, and expenditures incurred merely to aid one party in the presentation of his side. See Ex Parte Peterson, 253 U.S. 300, 316, 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, denominated costs “as between solicitor and client” and including such items as attorneys’ fees and “other expenses entailed by the litigation not included in the ordinary taxable costs recognized by statute,” see Sprague v. Ticonic National Bank, 307 U.S. 161, 164, 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 situation.” 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, Hall v. Cole, 412 U.S. 1, 5-6, 93 S.Ct. 1943, 1946-47, 36 L.Ed.2d 702 (1972), or wilful disobedience 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 exception 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 litigation....” The Court reasoned that 28 U.S.C. § 1920(5) and § 1923 controlled the amount that might be awarded as attorneys’ 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 undertook to standardize and limit the costs allowable in federal litigation. 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.” Id. at 257, 95 S.Ct. at 1621. Despite its decision not to carve a broad exception to the American Rule, the Court nevertheless recognized the three judicially fashioned equitable exceptions which, as the Court noted, have not been repudiated by Congress. Id. 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 losing party had acted in bad faith, vexatiously, wantonly, or for oppressive reasons.²

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 today find their origins in the Fee Bill of 1853. Section 1920 states that the court may tax as “costs” the fees of witnesses.³ Section 1821 establishes the maximum amount that may be allowed for witnesses’ attendance fees.⁴ These sections represent Congress’ treatment of the taxing of witness fees as costs. Courts cannot, in the absence of other explicit statutory authority 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 witness’ fees as costs has been expressly provided for by federal statute, federal courts cannot tax excess fees as costs under Fed.R.Civ.P. 54(d), which provides for court discretion to tax costs “[ejxcept where express provision therefor is made either in a statute of the United States or in these rules” (emphasis added).⁵

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.” Id. 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.” Id. 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 Alyeska 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 Alyeska also governs here. The 1853 Act “specified] in detail the nature and amount of the taxable items of costs in the federal courts.” Alyeska, 421 U.S. at 252, 95 S.Ct. at 1619. The Act did not permit the taxing of excess “solicitor and client” costs. Id. 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.” Id. at 260, 95 S.Ct. at 1623. Just as Congress in the Fee Bill of 1853 extended no “roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted,” id., so too Congress extended no “roving authority” to allow expert witness’ fees in excess of the amount specifically provided for by statute.⁶

Further, numerous statutes expressly allow federal courts to award the full amount of expert witness’ fees as costs of litigation.⁷ 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 provides 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.

The Supreme Court’s holding in Farmer v. Arabian American 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 whether, in view of Rule 45(e)’s command that witnesses cannot be compelled to travel more than 100 miles, a party who procured their voluntary attendance by paying the witnesses’ transportation expenses could have those expenses taxed as costs against a defeated adversary. The Supreme Court held that the trial court did not abuse its discretion under Rule 54(d) in refusing to tax certain items as costs. In dicta, the court explained: “the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute.” Farmer, 379 U.S. at 235, 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.

We overrule those portions of our prior opinions suggesting 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 recoverable 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.” Id. 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.

In Copper Liquor III, an antitrust case, we indicated in a part of the opinion entitled “Section 1920 Costs” that trial courts had discretion to award excess expert witness’ fees in “exceptional circumstances, for example, when the expert testimony was necessary or helpful to the presentation of. civil rights claims, or indispensable to the determination of the case.” 684 F.2d at 1100 (footnotes omitted). This conclusion that § 1920 authorizes the award of excess expert witness’ costs in “exceptional circumstances” is overruled.⁸

III.

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.

1 . 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 rights defendants are entitled to attorneys’ fees only when the lawsuit is frivolous, unreasonable, or without foundation.

2 . The last exception is consistent with our decision in Kittnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631 (5th 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, — U.S. -, -, 105 S.Ct. 3012, 3016, 87 L.Ed.2d 1 (1985). See also Webb v. Board of Education of Dyer County, — U.S. -, - n. 1, 105 S.Ct. 1923, 1930 n. 1, 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;

(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 interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

4 . Section 1821 provides in relevant part:

(b) A witness shall be paid an attendance fee of $30 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.

This section draws no distinction between ordinary and expert witnesses, and it — or, more precisely, its statutory predecessor — has been held to apply to both categories of witnesses alike. See Henkel v. Chicago, St. P., M. and O. Rwy., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386 (1932).

5 . 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 allowed as of course to the prevailing party. A federal court in its discretion could direct that certain costs, otherwise allowed as a matter of course, not be allowed.

That Rule 54(d) cannot be used to circumvent the limits on costs set forth in § 1920 and § 1821 was recognized by the drafters of the Rule. The Advisory Committee’s Notes to Rule 54(d) emphasized that the terms of the statutory predecessor of § 1920 remained "unaffected by the rule.”

6 . Section 1920(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 notice and an opportunity to object to their appointment by the court.

7 . At least twenty-eight statutes provide for the taxing of expert witness’ fees as costs in civil actions, albeit under varying standards: (1) Consumer Product Safety Act, 15 U.S.C. §§ 2060(c) (action for review of consumer product safety rule), 2072(a) (action by person injured by one in knowing violation of consumer product safety rule), 2073 (action for enforcement of consumer product safety rule); (2) Toxic Substances Control Act, 15 U.S.C. §§ 2618(d) (action for review of rule regulating toxic substances), 2619(c)(2) (citizen's action to compel compliance with regulations controlling toxic substances), 2620(b)(4)(C) (action to compel initiation of rulemaking proceeding regarding toxic substance); (3) Petroleum Marketing Practices Act, 15 U.S.C. § 2805(d)(3) (action to enforce provisions governing franchise relationship in petroleum marketing practice); (4) National Historic Preservation Act Amendments of 1980, 16 U.S.C. § 470w-4 (action for enforcement of provisions regarding national historic preservation); (5) Endangered Species Act of 1973, 16 U.S.C. § 1540(g)(4) (citizen’s action to compel compliance with provisions concerning endangered species); (6) Public Utility Regulatory Policies Act of 1978, 16 U.S.C. § 2632(a)(1) (proceeding involving electric utility); (7) Tax Equity and Fiscal Responsibility Act of 1982, 26 U.S.C. § 7430(a), (c)(l)(A)(ii) (action brought by or against United States in connection with determination, collection, or refund of any tax, interest, or penalty under Internal Revenue Code); (8) Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(A) (as amended by Pub.L. 99-80, 99 Stat. 184, 186) (any non-tort civil action brought by or against United States); (9) Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270(d) (civil action to compel compliance with provisions governing surface mining and reclamation); (10) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. § 1427(c) (civil action for equitable relief against person in violation of provisions regulating exploration and commercial recovery by U.S. citizens of deep seabed hard mineral resources); (11) Federal Oil and Gas 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) Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 928(d) (action for recovery of compensation under LHWCA); (13) Federal Water Pollution Control Act, 33 U.S.C. § 1365(d) (citizen’s action against person in violation of water pollution prevention and control provisions); (14) Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. § 1415(g)(4) (citizen's suit against person in violation of ocean dumping standards); (15) Deep-water Ports Act of 1974, 33 U.S.C. § 1515(d) (citizen’s action against persons in violation of deepwater port provisions); (16) Act to Prevent Pollution from Ships, 33 U.S.C. § 1910(d) (actions authorized by provisions governing prevention of pollution from ships); (17) Safe Drinking Water Act, 42 U.S.C. § 300j-8(d) (action to compel compliance with provisions concerning the safety of public water systems); (18) 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 to compel compliance with provisions concerning the energy conservation program for consumer products other than automobiles); (21) Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6972(e) (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 violation of provisions concerning air pollution prevention), 7604(d) (citizen's suit to require compliance with provisions concerning air pollution prevention), 7607(f) (action for review of rules promulgated by EPA administrator concerning air pollution prevention); (23) Clean Air Act Amendments of 1977, 42 U.S.C. § 7622(b)(2)(B), (e)(2) (action for protection of employee assisting in proceeding enforcing provisions on air pollution prevention); (24) Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C. § 8435(d) (citizen’s suit to compel 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 Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. § 1349(a)(5) (action to compel compliance with provisions governing Outer Continental Shelf leasing program); (27) Natural Gas Pipeline Safety Act, 49 U.S.C. § 1686(e) (citizen’s action against persons in violation of provisions concerning natural gas pipeline safety); (28) Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. § 2014(e) (citizen’s action against persons in violation of provisions concerning hazardous liquid pipeline safety).

Further, at least three other statutes expressly provide for the taxing of expert witness’ fees as costs in administrative proceedings: (1) Federal Trade Commission Improvement Act, 15 U.S.C. § 57a(h)(l) (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 hazardous chemical substances and mixtures); (3) Public Utility Regulatory Policies Act of 1978, 16 U.S.C. § 825q-1(b)(2) (proceedings before Office of Public Participation).

8 . We also overrule that portion of Berry v. McLemore, 670 F.2d 30, 34 (5th Cir.1982), in which we relied on Jones to find an abuse of discretion in the district court’s failure to assess as an item of costs the full fee of an expert witness who was ’’important” to the plaintiffs § 1983 case. Our holding on excess expert witness’ fees in Greenhaw v. Lubbock County Beverage Ass’n, 721 F.2d 1019, 1033 (5th Cir.1983), also cannot stand in light of the rule adopted above.