IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40431

 

ASHLAND CHEMICAL INC

Plaintiff-Appellant,

v.

BARCO INC, ET AL

Defendants,

MESH PLASTICS LTD

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________

September 15, 1997

Before REAVLEY, KING, and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

Plaintiff-appellant Ashland Chemical, Inc. appeals the

district court’s order granting defendant-appellee Mesh Plastics,

Ltd. an award of legal fees under Article 6, Section 9 of the

Eastern District of Texas’s Civil Justice Expense and Delay

Reduction Plan. Because we find that Article 6, Section 9 of

that Plan is a fee-shifting provision that was not authorized by

Congress, we reverse the district court’s award of legal fees to

Mesh.
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Ashland Chemical, Inc. (Ashland) sued Mesh Plastics, Ltd.

(Mesh), Barco, Inc., and Lakiva Corp. in September of 1992,

claiming that it suffered over $200,000 in damages as a result of

defects in chemical holding tanks that it purchased from

defendants. Mesh’s primary defense was that its agent was

unauthorized to bind it to the sales agreement upon which Ashland

relied. Following the entry of default judgments against the

other two defendants, Mesh presented Ashland with a written offer

of judgment in the amount of $1000 pursuant to Article 6,

Section 9 (the Local Rule) of the Civil Justice Expense and Delay

Reduction Plan (CJEDR Plan) of the Eastern District of Texas. 

The Local Rule provides as follows:

 (9) Offer of Judgment. At the Management Conference

or any time thereafter, a party may make a written

offer of judgment. If the offer of judgment is not

accepted and the final judgment in the case is of more

benefit to the party who made the offer by 10%, then

the party who rejected the offer must pay the

litigation costs incurred after the offer was rejected. 

In personal injury and civil rights cases involving

contingent attorneys’ fees, the award of litigation

costs shall not exceed the amount of the final

judgment. The Court may, in its discretion, reduce the

award of litigation costs in order to prevent undue

hardship to a party.

 “Litigation costs” means those costs which are

directly related to preparing the case for trial and

actual trial expenses, including but not limited to

reasonable attorneys’ fees, deposition costs and fees

for expert witnesses.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL

JUSTICE EXPENSE AND DELAY REDUCTION PLAN, art. 6, § 9 (1997). In

accordance with the requirements of the Local Rule, Mesh set a
3

deadline of May 1, 1993 for acceptance or rejection of the offer. 

In addition, Mesh’s counsel stated in his letter: “If for some

reason you believe that the time allowed is unreasonable, please

contact me and perhaps we can make other arrangements.” Ashland

replied that it was unable to evaluate the offer because it was

still awaiting a response to an outstanding discovery request. 

On May 1, 1993, the offer expired.

On March 28 and 29, 1994, the case was tried before a jury. 

The jury returned a verdict in favor of Mesh, and the court

entered a take-nothing judgment and dismissed the case on the

merits. Thereafter, Mesh filed a Motion for Assessment of

Litigation Costs seeking $53,465.60 in attorneys’ fees and

expenses pursuant to the Local Rule. The district court granted

Mesh’s motion and ordered Ashland to pay the requested amount. 

Ashland then filed a Motion for Reconsideration, arguing on

various theories that the Local Rule was invalid. The district

court denied the motion in a Memorandum Opinion and Order, and

Ashland now appeals that decision.

 

II. STANDARD OF REVIEW

We review de novo the conclusions of law made by a district

court. Prudhomme v. Tenneco Oil Co., 955 F.2d 390, 392 (5th.

Cir.), cert. denied, 506 U.S. 826 (1992). We accept a district

court’s factual findings unless they are clearly erroneous. Id.

In this case, the issues raised on appeal are questions of law.
 

1 Ashland advances several alternative arguments for the

invalidity of the Local Rule. Ashland first argues that the

Local Rule impermissibly conflicts with Federal Rules of Civil

Procedure 68 and 83; the Rules Enabling Act, 28 U.S.C. § 2071(a)

(1994); and the Fees Act of 1873, 28 U.S.C. § 1920 (1994). 

Ashland insists that these departures from established law were

not authorized by the CJRA. In addition, Ashland challenges the

Local Rule as violative of the Equal Protection Clause of the

United States Constitution. Ashland also argues that even if the

Local Rule is valid, the district court erred in awarding fees to

Mesh because the offer of judgment was unreasonable and was not

made in good faith. We decline to address these alternative

arguments because we find that the Local Rule is a substantive

fee-shifting provision which was not authorized by the CJRA.

4

III. DISCUSSION 

Ashland argues that the Local Rule is a substantive feeshifting provision that was not authorized by Congress. Mesh,

however, insists that the Civil Justice Reform Act of 1990

(CJRA), 28 U.S.C. §§ 471-482, implicitly authorizes the Local

Rule. Ashland disagrees, contending that if Congress had

intended to authorize such action, it would have included

explicit language to that effect in the statute. Ashland further

argues that because the Local Rule is substantive in nature,

under the Supreme Court’s decision in Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240 (1975), it must be

specifically authorized by Congress in order to be valid. Mesh

counters that Alyeska does not control the outcome of this case,

and argues instead that the Court’s more recent decision in

Chambers v. NASCO, Inc., 501 U.S. 32 (1991), is the most relevant

precedent.1

A. Fee-Shifting Rules Generally
5

This court has held that, “in an ordinary diversity case,

state rather than federal law governs the issue of the awarding

of attorney’s fees.” Shelak v. White Motor Co., 636 F.2d 1069,

1072 (5th Cir. Unit A Feb. 1981). It is undisputed that under

Texas law Mesh would not be entitled to attorneys’ fees because

Texas follows the “‘American Rule’ which imposes the burden of

attorney’s fees upon the individual litigants.” Crenshaw v.

General Dynamics Corp., 940 F.2d 125, 129 (5th Cir. 1991). 

In addition, in Alyeska, the Supreme Court addressed the

issue of fee shifting: 

“[I]n an ordinary diversity case where the state law

does not run counter to a valid federal statute or rule

of court, and usually it will not, state law denying

the right to attorney’s fees or giving a right thereto,

which reflects a substantial policy of the state,

should be followed.” 

421 U.S. at 259 n.31 (quoting 6 J. MOORE, FEDERAL PRACTICE

§ 54.77(2), at 1712-13 (2d ed. 1974)). Alyeska involved a suit

brought by environmental groups that were attempting to bar the

construction of an oil pipeline. Id. at 241-43. The sole issue

before the Supreme Court was the lower court’s decision to award

attorneys’ fees to the environmental groups where no applicable

statute provided for such an award. Id. at 245. Relying on the

“American rule”--“the prevailing litigant is ordinarily not

entitled to collect a reasonable attorneys’ fee from the loser”--

the Court held that “it would be inappropriate for the Judiciary,

without legislative guidance, to reallocate the burdens of

litigation in the manner and to the extent urged by respondents

and approved by the Court of Appeals.” Id. at 247. Although the
6

Court took care to note that courts possess “inherent power . . .

to allow attorneys’ fees in particular situations, unless

forbidden by Congress,” it declined to expand the scope of those

situations. Id. at 259. 

More recently, however, the Supreme Court has defined and

limited the scope of Alyeska’s determination that fee shifting is

substantive in nature and must be congressionally authorized. In

Chambers, the district court, relying on its inherent power to

sanction bad-faith conduct, ordered defendant Chambers and his

attorney to pay almost one million dollars in attorneys’ fees and

expenses. 501 U.S. at 40. The Supreme Court upheld the award,

holding that when sanctions under applicable rules and statutes

are inadequate, a court may call upon its inherent powers to

“assess attorney’s fees when a party has ‘“acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.”’” Id. at 45-

46 (quoting Alyeska, 421 U.S. at 258-59 (quoting F.D. Rich Co. v.

United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129

(1974))). Further, the Court noted that when a federal court

sits in a diversity case, its inherent power to use fee shifting

as a sanction for bad-faith conduct is not limited by the forum

state’s law regarding sanctions. Id. at 52-53. The Court

distinguished Alyeska, stating that “[t]he limitation on a

court’s inherent power described [in footnote 31 of Alyeska]

applies only to fee-shifting rules that embody a substantive

policy, such as a statute which permits a prevailing party in

certain classes of litigation to recover fees.” Id. at 52.
 

2 At oral argument Mesh suggested that we analyze the

Local Rule in this case with the same deference that we accord

the Federal Rules of Civil Procedure. Under the framework

advanced by the Supreme Court in Sibbach v. Wilson & Co., 312

U.S. 1 (1941), and refined in Hanna v. Plumer, 380 U.S. 460

(1965), a federal procedural rule must “really regulate[]

procedure” in order to apply in a diversity case despite a

conflict with state law. Sibbach, 312 U.S. at 14. Under this

test, the Rules Enabling Act, 28 U.S.C. §§ 2071-2077 (1994), has

been interpreted to authorize any Federal Rule of Civil Procedure

that is procedural in form and has a procedural purpose, despite

the fact that such a rule may have some inadvertent effect on the

7

Taken together, these cases stand for the proposition that

substantive departures from the American rule and its traditional

exceptions must be authorized by Congress. See id. at 47. 

Indeed, as the Court explained in Chambers:

[T]he narrow exceptions to the American Rule

effectively limit a court’s inherent power to impose

attorney’s fees as a sanction to cases in which a

litigant has engaged in bad-faith conduct or willful

disobedience of a court’s orders . . . .

. . . Nevertheless, “we do not lightly assume that

Congress has intended to depart from established

principles” such as the scope of a court’s inherent

power.

Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313

(1982)). Thus, Chambers did not eviscerate the core holding of

Alyeska that congressional authorization is necessary for novel

departures from the American rule; rather it merely served to

clarify that, despite Alyeska, courts retained their traditional,

inherent power to sanction bad-faith conduct through the

assessment of costs and attorneys’ fees.

We therefore must determine whether the Local Rule is

procedural, like sanctions for bad-faith conduct, or

substantive.2 Whether a rule that allows fee shifting is
litigants’ substantive rights. Indeed, the Court has stated that

when a Federal Rule of Civil Procedure is at issue, 

the question facing the court is a far cry from the

typical, relatively unguided Erie choice: the court

has been instructed to apply the Federal Rule, and can

refuse to do so only if the Advisory Committee, [the

Supreme] Court, and Congress erred in their prima facie

judgment that the Rule in question transgresses neither

the terms of the Enabling Act nor constitutional

restrictions.

Hanna, 380 U.S. at 471.

 

The Local Rule, however, is not a Federal Rule of Civil

Procedure. It is not a rule that is followed throughout the

nation or even throughout this Circuit, and although it is the

product of careful consideration by practitioners and judges, it

was not subject to possible congressional veto as were the

Federal Rules of Civil Procedure. See Sibbach, 312 U.S. at 14-15

(discussing the submission of the Federal Rules of Civil

Procedure to Congress so that it could “examine them and veto

their going into effect if contrary to the policy of the

legislature”). Indeed, at this point not even one other district

has included a similar fee-shifting provision in its CJEDR plan.

As a result, we decline to extend Hanna’s more lenient scrutiny

of the Federal Rules of Civil Procedure to include the Local

Rule.

8

procedural or substantive depends on the purposes and policies

behind the rule itself. Hanna v. Plumer, 380 U.S. 460, 471

(1965) (“The line between ‘substance’ and ‘procedure’ shifts as

the legal context changes. ‘Each implies different variables

depending upon the particular problem for which it is used.’”

(quoting Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945))). 

Indeed, as the Chambers Court noted, the distinction is closely

tied to the “‘twin aims of the Erie rule: discouragement of

forum-shopping and avoidance of inequitable administration of the

laws.’” 501 U.S. at 52 (quoting Hanna, 380 U.S. at 468). Under
9

the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938), in a diversity case a federal court must apply the

substantive law of the state while following federal procedural

rules. Hanna, 380 U.S. at 465, 471. Unfortunately, a clear and

obvious distinction between rules of procedure and rules of

substance does not always exist. Regarding the difficulty of

this determination, the Supreme Court has stated: 

“[T]he question is not whether [something] is deemed a

matter of ‘procedure’ in some sense. The question is .

. . does it significantly affect the result of a

litigation for a federal court to disregard a law of a

State that would be controlling in an action upon the

same claim by the same parties in a State court?” 

Id. at 466 (quoting Guaranty Trust, 326 U.S. at 109). The award

of attorneys’ fees pursuant to a plan adopted in order to

decrease cost and delay in the federal courts presents just such

a difficult issue. 

Mesh argues that, in this case, the policies behind the rule

more closely resemble those at issue in Chambers. Mesh contends

that the Local Rule is procedural in nature because it will not

affect parties’ choice of forum; rather, it will simply serve to

regulate their behavior before the court, forcing them to think

more seriously before refusing an offer of judgment. We

disagree. 

Admittedly, important procedural goals underlie the Local

Rule, but a rule’s stated purpose is not the sole consideration

in determining whether it is substantive or procedural. See

Hanna, 380 U.S. at 466-71. Application of the Local Rule, unlike

the imposition of bad-faith sanctions in Chambers, is tied to the
 

3 The Local Rule, when applied in a diversity case, also

implicates the Erie problem of forum-shopping. See Erie, 304

U.S. at 75. Undoubtedly, the possibility of receiving or paying

attorneys’ fees will be a consideration when plaintiffs decide

where to file a diversity action and when defendants decide

whether to remove such an action to federal court.

10

outcome of the case.3 Under the Local Rule, for example, a

defendant who receives a judgment that is more than 10% better

than her earlier offer of judgment is, at least in a limited

sense, a prevailing party because the end result of the

litigation leaves her better off than if she had settled for the

proposed amount. Moreover, having won a take-nothing judgment on

a claim of over $200,000, Mesh actually was the prevailing party

in this case. As the Supreme Court stated in Chambers, a feeshifting provision “which permits a prevailing party . . . to

recover fees” embodies a substantive policy. 501 U.S. at 52. As

a result, we disagree with the district court’s conclusion and

find that the Local Rule is substantive in nature and therefore

requires congressional approval as mandated by the Supreme Court

in Alyeska. 

B. Congressional Authorization of Fee Shifting

Mesh next argues that Congress authorized the Local Rule in

the CJRA. In general, the capacity of the federal courts to

prescribe rules of practice and procedure is governed by the

Rules Enabling Act, 28 U.S.C. §§ 2071-2077 (1994), which states

that “[s]uch rules shall not abridge, enlarge or modify any

substantive right.” Id. § 2072(b). In 1990, however, Congress
 

4 We assume, without deciding, that it was within the

power of Congress to authorize the district courts to create feeshifting provisions such as the Local Rule. We note however,

that it is not clear that Congress has the power to supplant the

American rule in diversity cases. Cf. Hanna v. Plumer, 380 U.S.

460, 471-72 (1965) (“[N]either Congress nor the federal courts

can, under the guise of formulating rules of decision for federal

courts, fashion rules which are not supported by a grant of

federal authority contained in Article I or some other section of

the Constitution; in such areas state law must govern because

there can be no other law.”).

11

passed the CJRA in an effort to encourage district courts to

implement innovative strategies for reducing the costs and delays

of civil litigation. See 28 U.S.C. § 471 (1994). The CJRA

states: 

There shall be implemented by each United States

district court . . . a civil justice expense and delay

reduction plan. . . . The purposes of each plan are to

facilitate deliberate adjudication of civil cases on

the merits, monitor discovery, improve litigation

management, and ensure just, speedy, and inexpensive

resolutions of civil disputes.

Id. Pursuant to this congressional mandate, the United States

District Court for the Eastern District of Texas adopted its

CJEDR Plan, which includes the Local Rule. See UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL JUSTICE EXPENSE

AND DELAY REDUCTION PLAN, art. 6, § 9 (1997). The question that we

must address is whether the CJRA authorizes the adoption of a

fee-shifting provision such as the Local Rule.4

Mesh argues that the following catch-all provision of the

CJRA implicitly authorizes the Local Rule:

 (b) In formulating the provisions of its civil

justice expense and delay reduction plan, each United

States district court, in consultation with an advisory

group appointed under section 478 of this title, shall
12

consider and may include the following litigation

management and cost and delay reduction techniques:

 . . . .

 (6) such other features as the district court

considers appropriate after considering the

recommendations of the advisory group referred to in

section 472(a) of this title. 

28 U.S.C. § 473(b)(6) (1994). 

In addition, both Mesh and the district court direct our

attention to Friends of the Earth, Inc. v. Chevron Chemical Co.,

885 F. Supp. 934 (E.D. Tex. 1995). In Friends of the Earth, the

court also addressed the propriety of the Local Rule. Id. at

938. That court determined that the language of § 473(b)(6) of

the CJRA was “clear and unambiguous” in authorizing the rule’s

adoption. Id. We disagree. In interpreting the CJRA, the

Friends of the Earth court stated that, “[w]hen the language of a

statute is unambiguous, ‘the court does not look beyond its

express terms.’” Id. at 939 n.3 (quoting United States v.

Evinger, 919 F.2d 381, 383 (5th Cir. 1990)). We do not dispute

this rule of interpretation, but this statute is not unambiguous

on the issue of fee shifting. 

We begin our statutory analysis with the actual language of

the provision at issue. Pongetti v. General Motors Acceptance

Corp. (In re Locklin), 101 F.3d 435, 439 (5th Cir. 1996) (“‘The

starting point in every case involving a construction of a

statute is the language itself.’” (quoting Greyhound Corp. v. Mt.

Hood Stages, Inc., 437 U.S. 322, 330 (1978))). The text of the

CJRA makes no mention of fee shifting. 
 

5 The Federal Rules of Civil Procedure also contain an

offer of judgment provision, and one of Ashland’s alternative

arguments contends that the Local Rule is in conflict with that

rule. See FED. R. CIV. P. 68. We decline to address this

argument, but we note that Rule 68 differs from the Local Rule in

three important ways.

 

First, Rule 68 allows only the defendant to make an offer of

13

Where a statute is silent or ambiguous as to an issue, we

next look to the legislative history for guidance as to the

intent of the legislators. United States v. Fitzhugh, 984 F.2d

143, 146 (5th Cir.), cert. denied, 510 U.S. 895 (1993). Neither

this court nor either of the parties has found any mention of fee

shifting in the legislative history of the CJRA. What is clear

from the legislative history is that Congress intended the CJRA

to grant the district courts broad power to implement innovative

strategies within a six-point framework:

Title I is built upon six essential components aimed at

improving litigation management and reducing litigation

costs and delays. Briefly, those principles are:

 (1) building reform from the “bottom up”;

 (2) promulgating a national, statutory policy in

support of judicial case management;

 (3) imposing greater controls on the discovery

process;

 (4) establishing differentiated case management

systems;

 (5) improving motions practice and reducing undue

delays associated with decisions on motions; and

 (6) expanding and enhancing the use of alternative

dispute resolution.

S. REP. NO. 101-416, at 14 (1990), reprinted in 1990 U.S.C.C.A.N.

6803, 6817. Relying on the legislative history of the CJRA,

Mesh argues that this expansive grant of power to the district

courts includes the power to experiment outside of the confines

of the Federal Rules of Civil Procedure.5 Regardless of whether
judgment, while the Local Rule allows either party to do so. 

Compare id. (“At any time more than 10 days before the trial

begins, a party defending against a claim may serve upon the

adverse party an offer to allow judgment to be taken against the

defending party . . . .”), with UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS, CIVIL JUSTICE EXPENSE AND DELAY REDUCTION

PLAN, art. 6, § 9 (1997) (“At the Management Conference or any

time thereafter, a party may make a written offer of judgment.”).

Second, while the Local Rule requires that the final

judgment be ”of more benefit to the party who made the offer by

10%,” UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS,

CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN, art. 6, § 9 (1997),

Rule 68 only requires that the judgment obtained by the offeree

“is not more favorable than the offer,” FED. R. CIV. P. 68, 

before allowing the court to shift costs. 

Third, and most important for this case, Rule 68 only

provides for the shifting of costs, while the Local Rule allows

the offeror to receive both costs and attorneys’ fees. Compare

FED. R. CIV. P. 68 (“If the judgment finally obtained by the

offeree is not more favorable than the offer, the offeree must

pay the costs incurred after the making of the offer.”), with

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL

JUSTICE EXPENSE AND DELAY REDUCTION PLAN, art. 6, § 9 (1997) (“If the

offer of judgment is not accepted and the final judgment in the

case is of more benefit to the party who made the offer by 10%,

then the party who rejected the offer must pay the litigation

costs incurred after the offer was rejected. . . . ‘Litigation

costs’ . . . includ[es] . . . reasonable attorneys’ fees.”).

 

6 Two other districts (the District of Hawaii and the

Western District of Washington) are considering adopting similar

fee-shifting rules, but there is no evidence that either of the

provisions have actually been promulgated. DAVID RAUMA & DONNA

14

the CJRA allows deviation from the Federal Rules of Civil

Procedure, there is no evidence that Congress intended it to

authorize the creation of a substantive fee shifting provision

such as the Local Rule.

Finally, because the Eastern District of Texas is the only

district that has adopted a fee-shifting provision in its CJEDR

plan, we can find no cases from other circuits that address this

particular issue.6
STIENSTRA, FEDERAL JUDICIAL CTR., THE CIVIL JUSTICE REFORM ACT EXPENSE

AND DELAY REDUCTION PLANS: A SOURCEBOOK, 309 tbl.15 at 313, 327

(1995). In addition, the Northern District of Florida requires

that the losing party in a discovery dispute pay the fees and

costs of the prevailing party. Id. at 312. 

15

Given this lack of explanation or discussion in the statute,

its legislative history, or the case law, we must examine the

entire statute to determine the context in which the catch-all

provision should be understood. See Crandon v. United States,

494 U.S. 152, 158 (1990) (“In determining the meaning of the

statute, we look not only to the particular statutory language,

but to the design of the statute as a whole and to its object and

policy.”); see also Pongetti, 101 F.3d at 439. 

A list of several specific expense and delay reduction

techniques precedes the catch-all provision in the CJRA,

illustrating the types of initiatives that Congress had in mind

in drafting the statute. See 28 U.S.C. § 473(b) (1994). These

include (1) requiring the parties to present a “discovery-case

management plan” at the initial pretrial conference; (2)

requiring that each party send to each pretrial conference a

representative who is authorized to bind that party “regarding

all matters previously identified by the court for discussion at

the conference;” (3) requiring both the attorney and the party to

sign requests for “extensions of deadlines for completion of

discovery or for postponement of the trial;” (4) creating a

“neutral evaluation program for the presentation of the legal and

factual basis of a case to a neutral court representative” early

in the litigation; and (5) requiring that representatives of each
16

party with authority to settle “be present or available by

telephone during any settlement conference.” Id. § 473(b)(1)-(5)

(1994). 

While we agree with the Friends of the Earth court’s

determination that the CJRA was intended to allow the district

courts to experiment, perhaps even beyond the strict confines of

the Federal Rules of Civil Procedure, we think that the tenor of

the CJRA’s own specific provisions serves to limit the scope of

the catch-all provision. Clearly, none of the other provisions

described above contemplates anything resembling the drastic

reallocation of rights that the Local Rule effects. 

Moreover, the Supreme Court decided Alyeska before Congress

passed the CJRA. Thus, at the time that the CJRA was under

consideration, Congress knew that the Supreme Court was unwilling

to extend fee-shifting rights without some explicit congressional

authorization. We adhere to the “longstanding . . . principle

that ‘[s]tatutes which invade the common law . . . are to be read

with a presumption favoring the retention of long-established and

familiar principles, except when a statutory purpose to the

contrary is evident.’” United States v. Texas, 507 U.S. 529, 534

(1993). Thus, “[a] party contending that legislative action

changed settled law has the burden of showing that the

legislature intended such a change.” Green v. Bock Laundry

Machine Co., 490 U.S. 504, 521 (1989). In this case, Mesh has

failed to carry that burden. Had Congress intended to authorize

fee shifting in the CJRA, it could have done so (but cf. supra
17

note 4), but absent any mention of such a provision in the

statute itself or in the legislative history, we must assume that

Congress did not intend to allow individual districts to make so

substantial a change. We therefore find that the CJRA did not

grant district courts the discretion to use fee shifting as a

cost and delay reduction technique in the manner contemplated by

the Local Rule.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the

district court awarding Mesh $53,465.60 in legal fees and

expenses.