William H. Rehnquist: We will hear arguments next in two consolidated cases, No. 86-322, Crawford Fitting Company against Gibbons; and No. 86-328, Champion International Corporation against International Woodworkers of America. Mr. Mansour, you may proceed whenever you're ready.
Ernest P. Mansour: Thank you, Mr. Chief Justice, and may it please the Court: At the conclusion of a long and complicated antitrust case, and after a hearing, Judge Palmeiri, who rendered a decision in favor of the defendants, granted an application for court costs, which included a request for fees involving three experts who testified at the time of trial on behalf of the defendant, yes, Justice White. The... Judge Palmieri approved those costs in two situations, He... Dr. Robers' fees were allowed, and Dr. Saving's fees were allowed. He disallowed the fees of James Baldwin, a partner with the accounting firm of Ernst & Whinney. The basis of the allowance of the fees were that these experts materially enabled the court to arrive at the decision the court ultimately arrived at, that is, that the merits of the complaint were meritless; that the circuit court adopted the opinions of these two experts; and that under 54(d) he had the discretion to allow the fees. In an en banc opinion, the circuit court reversed. The circuit court based that reversal on the Alyeska case. The Alyeska case, as this Court is aware, involved attorneys' fees. And basically what the circuit court did was, it said that attorneys' fees and expert fees are similar or the same, and the same rule ought to apply. We suggest to the Court that there is a material distinction between attorneys' fees and experts' fees. We suggest to the Court that the basis of granting experts' fees is entirely different than obviating the American rule on attorneys' fees. Historically, the role of an expert was to assist the court and/or the trier of facts to arrive at an appropriate conclusion. Historically, under our system of jurisprudence, the role of an attorney is to be an advocate on behalf of his client. We suggest to this Court that those two roles are entirely different--
Byron R. White: xxx statute?
Ernest P. Mansour: --No, I think that the court of appeals said that the Alyeska case did not permit them to grant fees which did not... which were not in the statute, Your Honor. And what they did was, they followed that district which decided that 1920 was exclusive, rather than those districts which have indicated that the adoption of 54(d) gave to the courts... or I would prefer to say, underscored to the courts... that discretion which the equity courts have always had historically.
Antonin Scalia: Well, you could come to that conclusion whether or not you think it has anything to do with Alyeska. I mean, you could come to that conclusion as a matter of statutory interpretation--
Ernest P. Mansour: That's correct.
Antonin Scalia: --whether you think Alyeska covers these things or not.
Ernest P. Mansour: That's correct. But what the en banc court did was, they took Alyeska... and I think that's a dangerous precedent, to say that attorneys' fees and expert fees are exactly the same. I think from a historical standpoint that that's a dangerous precedent. And I think that that's a misreading of the Alyeska case. I think that there is a substantial difference between the districts involving Henkel and Farmer, for example. If you read Henkel, Henkel was written prior to the merger of law and equity. Henkel was written prior to the adoption of the rules of civil procedure. Henkel involved a pure question of law; no discretion involved whatsoever. Yet certain districts are using Henkel as the foundation of saying that courts have no discretion to award costs other than those found in 1920. However, in Farmer, when the Farmer case was written, when the Farmer case came to this Court, it is obvious that what this Court wanted to do was to affirm the historical position of equity courts, that is, that equity courts have this broad discretion--
William H. Rehnquist: Well, that was pretty much dicta in Farmer, was it not?
Ernest P. Mansour: --I would suggest that... Justice Rehnquist... that it was not dicta, that it was the heart of the case that, as Judge Posner says, dicta is to be determined by the fact of whether you can remove the language and have the opinion make sense. I would suggest to this Court--
William H. Rehnquist: Well, was that language necessary to the holding in Farmer?
Ernest P. Mansour: --Absolutely. That was the only purpose--
William H. Rehnquist: Yes, but what was it used for, to deny or grant fees?
Ernest P. Mansour: --The opinion, in my opinion, Your Honor, Justice--
William H. Rehnquist: Well, you can just answer that question, can't you?
Ernest P. Mansour: --It was used to demonstrate that the lower court had the discretion to decide; they affirmed.
Byron R. White: Well, my question now: Did it... did it result in denying fees or granting them?
Ernest P. Mansour: They denied fees in excess of 100 miles; that's correct.
Byron R. White: So the district court had... didn't... wasn't required the grant the maximum fees.
Ernest P. Mansour: That's correct, Justice White. However, the reading of the case certainly--
Byron R. White: That's a long ways from saying you can grant more than the statute says you can.
Ernest P. Mansour: --I don't think... I think the Farmer case says very clearly that the trial court has that discretion to consider whether or not. I think looking at the result, basically, begs the decision in the case. The questions presented in this case relate to the power and discretion of a United States district court to tax as cost against the loser in a civil lawsuit expenses incurred by the winner in carrying on this litigation. That's the first paragraph of Justice Black's opinion. If you look at Justice Harlan's dissent, the last paragraph in his dissent says, the scope of the discretion of a District judge acting within his powers, which is the foundation of today's decision. That's... that's the dissent. It was clear what they were deciding, that is, whether or not a district judge has any discretion outside of 1920. And what they found was that judge did have a discretion to consider additional costs outside of 1920. The courts who have ignored Farmer, since 1965, have said, the reason we ignore Farmer is because that language is dictum. I suggest a reading of Farmer would indicate that that language is not dictum but the heart and soul of the decision. And if that is so, and I would urge upon this Court that that is so, then Farmer is controlling. Henkel need not be reversed because it's simply inapplicable. Alyeska dealt with attorneys' fees, a different animal; an entirely different animal. We suggest to this Court--
William H. Rehnquist: You say it's an entirely different animal, Mr. Mansour. Expert witnesses are in fact advocates on the stand the same way lawyers are advocates in court, aren't they?
Ernest P. Mansour: --That distorts the historic view of an expert, Your Honor, Justice. And there are decisions which have said that when an expert becomes an advocate, he loses his objectivity and his opinion is then colored. And we do not suggest to this Court that an application for fees of an expert who has become an advocate be granted.
William H. Rehnquist: Well, the ones who become advocates may be more successful at winning their cases than one who maintains strict neutrality.
Ernest P. Mansour: But is that not up to the discretion of the court to determine whether or not that expert was helpful to the court, rather than to one party or the other, in determining whether to award fees.
William H. Rehnquist: And you say that's the standard by which the district court ought to decide whether or not to award fees to a particular expert?
Ernest P. Mansour: That's correct, Your Honor.
William H. Rehnquist: Well, how do you escape the limitation on witness fees' to $30 a day, in 1821? An expert's a witness, isn't it?
Ernest P. Mansour: Yes. But our position, Your Honor, is that in addition to that, that the court has discretion to award additional costs.
William H. Rehnquist: Where does it get it?
Ernest P. Mansour: From 54(d).
William H. Rehnquist: Well, 54(d) says, unless... unless a statute otherwise requires, doesn't it? Except as otherwise regulated by statute? What is that language?
Ernest P. Mansour: Justice Black says this: While this rule could bed far more definite as to what, quote, costs shall be allowed, the words, quote, unless the court otherwise directs, quite plainly vests some power in the court to allow, quote, some costs. That's the Farmer decision.
Antonin Scalia: Well, that part of it is certainly dicta. Maybe to disallow some costs.
Ernest P. Mansour: Perhaps.
Antonin Scalia: Yes, but to disallow doesn't necessarily mean to allow.
Ernest P. Mansour: Perhaps--
Antonin Scalia: I mean, it could be, and this is the argument, that the rule sets forth what cost will be awarded automatically when the court says nothing at all. But if the court says something, maybe all of those costs won't be allowed. But that doesn't necessarily mean the court can say, additional costs will be allowed.
Ernest P. Mansour: --Justice Scalia, that's the argument proposed by the proponent.
Antonin Scalia: Right.
Ernest P. Mansour: That does not fit the case... the Farmer case. The reading of the Farmer cases says quite clearly--
Antonin Scalia: But that's what happened in Farmer. It was a disallowance of cost, rather than an allowance.
Ernest P. Mansour: --That was the result of Farmer. I would agree with that. However, the purpose of Farmer was to demonstrate the inherent equity power of the court to consider additional costs. We take the position that the result didn't matter; that it's the principle that the court has the power to consider costs in addition to 1920. And Farmer clearly says that that is the fact.
Byron R. White: Well, 54(d) says, except where express... except when express provision therefore is made either in a statute of the United States or in these rules.
Ernest P. Mansour: That's correct, Justice White.
Byron R. White: Well, here's 1821, says, $30 a day for witnesses.
Ernest P. Mansour: However, unless the court otherwise directs, Justice Black says, therein lies the ability for the court to direct other costs.
Byron R. White: Well, they didn't direct other costs in Farmer.
Ernest P. Mansour: That's correct.
Byron R. White: Well, if that's a holding, I don't know what a dictum is.
Ernest P. Mansour: I'll reserve the balance of my time.
William H. Rehnquist: Thank you, Mr. Mansour. We'll hear now from you, Mr. Walker.
Jeffrey A. Walker: Mr. Chief Justice, and may it please the Court: Champion echoes the arguments made by Mr. Mansour concerning Rule 54(d) and the inherent equitable powers of Federal courts. I would, with the Court's permission, like to focus our time, with one exception, on the issues arising out of Champion's status as a Title VII defendant. But before I get to that, I wanted to finish up something that you were discussing with Mr. Mansour. And in our last brief, as well as our original brief, we have cited to the Court the case of Fishgold. And I believe that that to be... that to be the correct understanding of this proviso in Rule 54(d). Our position is, as in Feingold... or Fishgold, that is Congress has prohibited expressly, as it did in the Veterans Reemployment Act, taxation of costs against a party, the court can't do it. But otherwise, the court has inherent equitable discretion, recognized by Rule 54(d), to define costs. To the Title VII aspects of the case. The most direct way to put our position to you is that Champion is entitled to the same rule to which any of the other litigants in this case is entitled.
Antonin Scalia: Before you get to that, counsel--
Jeffrey A. Walker: Yes.
Antonin Scalia: --how does Title VII get into this case? The question presented does not mention Title VII. And the provisions you're about to argue about are not even cited in the petition for certiorari. I didn't even know that we were going to talk about this.
Jeffrey A. Walker: I think that's a good point. And my... my interest in the issue is in response to briefs filed by the Woodworkers' union in this matter. The issue arises, I suppose, from the woodworkers' standpoint, because our client, Champion, was a successful defendant in a Title VII action. We requested our fees, our expert witness fees, under Rule 54(d). The Woodworkers are arguing that in addition to the fact they say 54(d) does not include this inherent equitable discretion, that Title VII defendants somehow are a different group of litigant, and that we should be held... if discretion exists, we should only get them once Christianburg criteria had been satisfed. There is no question in this case that the Christianburg criteria were not satisfied, and that if Christianburg is held to apply to expert witness costs, that we would not be entitled to them. But to your original point, I agree with you. We requested our expert witness costs from the district court under Rule 54(d), The district judge decided, determined, that he didn't have any discretion for us to even approach him with that question; that it didn't exist. And what we're here to do today is to echo Mr. Mansour's arguments that Rule 54(d) does include such discretion. But I would add--
William H. Rehnquist: You concede, I take it, that you're not entitled to attorneys' fees because of Christianburg.
Jeffrey A. Walker: --Yes, sir.
William H. Rehnquist: You say expert witness fees come under a different category?
Jeffrey A. Walker: Yes, sir, we do. And... and we would echo Mr. Mansour's remarks in that respect. I submit to you, Mr. Youngdahl on behalf of the woodworkers will argue that even if Rule 54(d) does not include this discretion that we say does exist, that Title VII plaintiffs would be allowed to put their arguments to the court for such an award, but no one else would, because their position that expert witness fees are nothing different than attorneys' fees; and that only where Congress has authorized courts to award attorneys' fees would a litigant be entitled to them. We don't think that it has anything to do with attorneys' fees.
Sandra Day O'Connor: Well, do we have to decide that question in this case of yours, do you suppose?
Jeffrey A. Walker: The question of whether a Title VII defendant would be exposed to a different standard?
Sandra Day O'Connor: Right.
Jeffrey A. Walker: I don't think that you'd have to decide it in this case. Because, again, our original request to the district court was for expert witness costs under Rule 54(d). Since we only have 15 minutes, and since Mr. Youngdahl's brief on behalf of the woodworkers is solely devoted to that issue, we're prepared to respond to whatever questions you may have concerning that. If, on the other hand, you're interested in additional discussion on Rule 54(d), we're more than interested and more than willing to pursue that with you. Because I think, that is the first... the first step for us. We want to go back to the district court and say, you sat there, it essentially says this in your opinion, but you could not have decided the case without the testimony of our expert witness. There is no reasonable way that this case could have been decided for either party without the testimony of the expert witness.
John Paul Stevens: But why is that different from, say, the only eyewitness to the case. Sometimes you can't decide the case without the testimony of the eyewitness.
Jeffrey A. Walker: Well, that's a different "can't decide the case", I submit to you. In our instance, the case could not have been decided because there was no one in the courtroom capable of performing the calculations; no one with the education and training to perform the calculations that were necessary to decide the case.
John Paul Stevens: That's just because that happened to be the issue of fact in the case.
Jeffrey A. Walker: Well, yes, yes, that's true. We're not talking about fact witnesses here. We're talking about expert witnesses, which are, everyone concedes, to be a different breed of horse.
John Paul Stevens: But would the rule be any different than, say, the only witness in the case lived in South America, and you had to fly him up here to testify to what he saw three years ago? Same rule, you'd also say he's also entitled to all the extraordinary expenses?
Jeffrey A. Walker: No, I wouldn't.
John Paul Stevens: Why not?
Jeffrey A. Walker: Well, I would say that... I would say that, to the extent that Farmer, and coming back to some of these questions, I think if there is any ambiguity in Farmer, it would go along those lines, whether we're just talking about certain types of nonstatutory, non-attorneys' fees costs, or are you going to limit yourself to things like expert costs, third party... third party costs.
John Paul Stevens: Well, all I'm asking is, your argument it seems to me doesn't necessarily apply just to expert witness fees.
Jeffrey A. Walker: No, it doesn't.
John Paul Stevens: It applies to anything you really need to win your lawsuit.
Jeffrey A. Walker: No, it doesn't. And that's what we perceived to be one of the critical features of Rule 54(d), is, on the trial bench, you're talking about a world of different litigation type expenses.
William H. Rehnquist: Certainly ones that were totally unknown to me in practice I must say.
Jeffrey A. Walker: Right. And only the trial judge--
John Paul Stevens: How about extraordinary travel expenses account? Say your only lawyer who is really an expert in this field lives in Pascagoula, Mississippi, so you have to fly him to San Francisco to try the case. And he gets weekend travel expenses. I suppose they would be necessary.
Jeffrey A. Walker: --No, they would not. Because again, with the distinction, very vast distinction we believe, to be drawn between attorneys and traditional out of pocket expenses that attorneys incur in presenting a case, and the question of bringing someone in to help the court, to help the judge and the jury decide the case.
John Paul Stevens: Don't the lawyers help the court?
Jeffrey A. Walker: They do, but in an entirely different sense, and they have an entirely different duty, we submit, to the court than a witness or an expert witness. An attorney is duty bound to be biased in favor of his client. An attorney is duty bound to present only... to the extent it wouldn't be a concealment, but to put his client's best foot forward. And although unfortunately there are some instances where experts can get out of hand and become advocates, I submit that that fortunately is the exception rather than the rule, and that a trial judge more than anyone is capable of seeing that early on in a trial. I... I come back and point out to you that, again, back to the limited extent that Mr. Youngdahl I know will be talking about Title VII, I want to encourage you, when you consider... if you consider whether Title VII policy might somehow be violated by allowing us to make these arguments to the trial court, if you just go through what analysis it would be. I think very clearly the first thing that the trial judge would look at what whether our expert witness costs were indispensable to the case. That goes no violence to any principle, any statement by a Congressman or anything like that, in Title VII. Secondly, I believe it's unquestioned, and has been unquestioned, that in exercising its equitable discretion, courts look to the relative ability of parties to pay. That has been a theme raised by the woodworkers in this case throughout it, that Title VII plaintiffs on large are impecunious plaintiffs. There's no question that that tends to be true. However, they're not all impecunious.
Byron R. White: Now, you're arguing in 322, 86-322? You're arguing--
Jeffrey A. Walker: Champion case, yes, sir.
Byron R. White: --Oh, the Champion, all right.
Jeffrey A. Walker: Yes, sir. There's no question that many, many Title VII plaintiffs are impecunioius. But the Woodworkers' Union is not an impecunious plaintiff. The Equal Employment Opportunity Commission is not an impecunious plaintiff. And if we're able to convince the trial judge that the relative equities of all of this are on our side, if he recognizes that there's nothing wrong on the facts of this case with giving us the expert witness costs, I submit to you that it's an inherent and traditional power of the trial court to do that. And that's really, when you boil all this down, both sides, the 54(d) question and to whatever extent Title VII is involved here--
John Paul Stevens: You talk about inherent traditional power. How often in your experience have trial courts allowed expert witness fees as costs?
Jeffrey A. Walker: --Very rarely. And I believe if you look in the Crawford Fitting brief, you will notice the experience under the Third Circuit, which has for a long time permitted the standard that we're arguing for. The trial judges are very hard nosed about this. And they're not just simply opening up some kind of floodgates so everybody gets their expert witness costs. First of all, I think it's a difficult standard for any litigant to meet, to convince the trial judge that he couldn't have decided the case without that expert. Most trial judges believe they can decide the case with very little testimony in some instances; and the expert testimony to them is... may or may not be superfluous. And you'll find very many decisions which say precisely that when they deny them. One additional point that I want to make is that, if you're concerned... if anyone's concerned about the dollar amounts involved, I submit to you that in every case... almost every case that I've ever been involved with, simple depositions costs frequently come to extraordinary amounts. And that if Congress had intended to insulate Title VII plaintiffs from all possible financial responsibility, they would have also insulated them from the presumptively taxable statutory costs. They have not. There's never been any discussion of it.
William H. Rehnquist: But deposition costs are authorized by statute, are they not?
Jeffrey A. Walker: Yes, they are. But if we come back to trying to balance Title VII policy in all of this, the argument that we've heard from the woodworkers and the amicus is that you can't do that. Any financial... possible financial hurdle to a Title VII plaintiff will chill their willingness to file suit.
John Paul Stevens: Referring to your deposition cost, isn't it possible to read Farmer as saying that the discretion that was awarded to the trial judge was to deny excessive deposition costs, such as daily transcript and things like that; that that's the scope of the discretion is, within the area of allowable costs, sometimes are excessive, and there's discretion to cut back.
Jeffrey A. Walker: Well, I'll go back. Mr. Mansour's response to that is... is that that's what they did. But if you go back and read the opinion, they did deny--
John Paul Stevens: And clearly they do have discretion to do that?
Jeffrey A. Walker: --There's no question that they have discretion to deny them. There's no question under our proposed standard that they would have discretion to deny expert witness costs. The question is whether it extends--
John Paul Stevens: Whether they have discretion to allow costs not authorized by statute?
Jeffrey A. Walker: --To allow them. And I think very clearly from Farmer that's what you were looking at.
Byron R. White: Well, why were we?
Jeffrey A. Walker: Because that's the fundamental question--
Byron R. White: We denied fees.
Jeffrey A. Walker: --You affirmed the denial of them.
Byron R. White: Exactly.
Jeffrey A. Walker: And added--
Byron R. White: We didn't allow any costs that weren't authorized by statute.
Jeffrey A. Walker: --No, you didn't. And I've never taken--
Byron R. White: Well, what do you mean we're focusing on allowing costs, then?
Jeffrey A. Walker: --No, I don't think you focused on allowing costs. I think you were focusing on the discretion in Farmer. And very clearly--
Byron R. White: Yes, and as Justice Stevens says, to deny costs even though they might have been allowable within the statute.
Jeffrey A. Walker: --That was the fact of Farmer, that's true. But the passage from the case that Mr. Mansour read you, as well as the last sentence from the dissent in that opinion I think very clearly points out that it was broader than the simple facts of that case, and that the trial court's overall discretion--
Byron R. White: So it was broader... the language was broader than the holding?
Jeffrey A. Walker: --Yes. I will concede that. But I don't believe--
Byron R. White: Dictum or not?
Jeffrey A. Walker: --But I don't believe that you can excise that language from the Farmer opinion itself.
William H. Rehnquist: Thank you, Mr. Walker. We'll hear now from you, Mr. Block. And just to keep ourselves straight, you represent J.T. Gibbons, Inc.--
William H. Block: I represent J.T. Gibbons, Inc., Mr. Chief Justice, and may it please the Court. And I will be addressing in my portion of divided argument the issue whether this Court should hold the district courts have power to award expert witness fees in excess of the amount specified in statute where the district court, as Mr. Mansour phrased it, determines that the expert materially enabled the district court to arrive at its decision. Mr. Youngdahl, on behalf of International Woodworkers, will address the effect of Title VII of the Civil Rights Act of 1964, and the Civil Rights Attorneys Fees Act of 1976, on awards of expert witness fees.
William H. Rehnquist: Which is not involved in your case at all?
William H. Block: Which is not involved in my case at all. My case involves--
Byron R. White: xxx issue is contrary to yours?
William H. Block: --Actually, he agrees with mine with regard to the general discretion. He believes that there is a particular statutory authorization that would allow plaintiffs to recover attorneys fees in Title VII.
Byron R. White: All right.
William H. Block: And my position is that where Congress has spoken and given a statutory authorization, the courts certainly may follow that authorization. The question that is posed by this case is whether, when Congress has defined a maximum amount, courts may exceed it. Let me start by reviewing briefly the regulation of expert witness fees in the Federal court. The basic amounts payable to witnesses are defined by 28 USC Section 1821. That is a direct successor to the Fee Act of 1863, which prescribed the amounts that were payable to witnesses... that were taxable as costs for witnesses in Federal courts. The Fee Act by its terms covered both law and equity cases. And that now appears no longer to be in dispute. Equity cases routinely held that the Fee Act governed the taxation of witnesses... witness fees in Federal courts. The Fee Act covered both lay and expert witnesses. And that was directly the issue faced by this Court in Henkel v. Minneapolis, St. Paul and Omaha Railway. In that case, the expert witness fees had not been governed by the Federal statute, they were awardable under state law, under the rules of decision act. If they were regulated by Federal statute, they were not so awarded. The Court held that they were regulated by the statute that is now Section 1821. The Congress has definitely prescribed its own requirement with respect to the fees of witnesses, and I'm quoting. The Congress has dealt with the subject comprehensively, and has made no exception of the fees of expert witnesses. Under these provisions, additionally amounts paid as compensation or fees to expert witnesses cannot be allowed or taxed as costs in cases in Federal courts.
Byron R. White: Unless... unless the court appoints them.
William H. Block: Unless the court appoints them. And Congress has dealt... Congress has continued to regulate, exactly, Mr. Justice, the times at which expert witness fees in excess of those statutory amounts, may be taxed. We cited in our brief at pages 23 to 24 29 statutes involving some 34 provisions defining... and Congress defining... exactly when expert witness fees in addition to those specified in Section 1821, may be awarded.
Antonin Scalia: How many of those say they may, and how many of them say they must, do you know?
William H. Block: I believe they predominantly say they may; some of them say they shall. But I believe--
Antonin Scalia: Because to the extent they say they must, they don't help your case very much. In fact, they don't help your case at all. It's only those--
William H. Block: --In the sense... in the sense, if that was Congress wishing to take away the discretion to deny that it's recognized in Farmer?
Antonin Scalia: --That's right, because if they say they must, it doesn't indicate any disbelief on Congress' part that the court couldn't have done it without the statute. But they're just saying, we know you could do it, but we're saying you must do it.
William H. Block: I wouldn't so read them. But I believe predominantly they say, the court may. And in one example on that is Congress' own distinction between a private expert witness and a court appointed expert, to return to the question of Mr. Justice White. Let's look at what Congress has done and required in Federal Rule of Evidence 706, which is then tied to 28 USC Section 1920 sub 6, with respect to a court appointed, as opposed to a private expert. A private expert engages his ingenuity on behalf of his client. That's not wrong. That's what he's engaged to do. He presents the strength of his client's case. And in the adversarial system, it is for the adversary to present the weakness in the experts' client's case. The court appointed expert is quite different. Rule 706 says, first, that a witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk or at a conference in which the parties shall have the opportunity to participate. Now, when a court informs an expert of his duties, the court says, I would like you to present not only the strengths of one side, but the strengths of the other side. I would like you to present not only the weaknesses of the other side, but the weaknesses of the side that you might otherwise have represented. The expert is not part of the adversarial process. He is presenting both sides. There's a second portion to that phrase. The parties participate in the framing of the instructions. And the framing of the instructions to an expert may determine the outcome. If a party can say, look not just at this market share but at that market share; look not just at this item of business, but at that patent and its effect upon the market; the expert may come to a different conclusion. Congress has said, with a court appointed expert, both sides get an opportunity to participate in those instructions. The rule continues that a witness so appointed shall advise the parties of his findings. He reports to both sides. In discovery a private expert's opinions can only be limitedly discovered. In this case, the expert is fully available to both sides. Congress has made the determination that in this situation expert witness fees in addition to those specified in Section 1821 may be taxed as costs. Congress has comprehensively regulated that situation, and has made choices. To adopt a new rule allowing a broad based grant of expert witness fees in excess of those specified in Section 1821 would substantially disrupt the Congressional provisions. And nowhere in fact is that clearer than the case before the Court. J.T. Gibbons, Inc., is an antitrust plaintiff. Under the antitrust laws, 15 USC Section 15, Congress has provided that a prevailing plaintiff is to recover his reasonable attorneys' fees. A defendant is not. Congress has struck a balance. And the Court since 1926, the Strauss v. Victor Talking Machine Case, have held that neither side under those antitrust provisions may recover their expert witness fees. So we have a situation in which Congress has said, we wish to favor plaintiffs to a particular degree to encourage private enforcement of the antitrust laws. We know this will burden defendants, but that will discourage them from violating the laws. It is a balance that Congress has struck. Neither side is to recover their expert witness fees. This is something Congress has chosen to do. And they have reviewed the antitrust laws, probably as much as any on the books. And they have never seen fit to shift the allocation of the burden of expert witness fees from where it sits under statute. The exception proposed by petitioners in this case would substantially disrupt the antitrust laws in that respect.
William H. Rehnquist: Do you assert that prevailing plaintiffs are entitled to attorneys' fees under the antitrust statute?
William H. Block: Attorneys fees or--
William H. Rehnquist: No, I'm sorry, expert witness fees.
William H. Block: --That is not at issue in our case.
William H. Rehnquist: No, but what's your view on it, in view of your construction of the law?
William H. Block: In view of my construction of the law, the lower courts have been consistent in holding that a prevailing plaintiff is not so entitled. I certainly would not object if the Court were to reconstrue the statute. But if the Court construed the statute to allow plaintiffs to recover expert witness fees, still certainly defendants could not. Because the statute is a plaintiffs-only statute in all regards. So the question of whether plaintiffs can or not--
Byron R. White: xxx that means... that means saying that 1821 doesn't mean what it says.
William H. Block: --Congress can by additional statute provide for additional attorney fees.
Byron R. White: Well, of course it can.
William H. Block: I mean, excuse me, additional expert witness fees.
Byron R. White: Yes. What if Congress doesn't?
William H. Block: If Congress does not, then they are not awardable. Unless 15 USC Section 15 were determined by the Court to include expert witness fees, which it has never been read as being.
Byron R. White: No, it certainly hasn't.
William H. Block: Then we are in agreement. I believe they are not awardable under 15 USC Section 15.
Byron R. White: Even to plaintiffs?
William H. Block: Even to plaintiffs. That issue is not before the Court, but I believe they are not awardable, and that Congress has made a determination as to that allocation. The Farmer case, which is relied upon extensively by petitioners, I believe has been discussed during the primary argument. In that case Congress by statute allowed recovery of a particular cost. It stated that witness travelling from outside the continental United States shall recover their actual costs of travel. The district court was therefore authorized by Congress to award those amounts. It declined to do so. It exercised discretion not to do so, which is recognized in Rule 54 as, unless the court otherwise directs. That's the Rule 54 discretion. That is all that Farmer upheld. It did not suggest that this Court should exceed Congressional limits. Alyeska Pipeline Service Company v. Wilderness Society is directly on point in its reasoning. It stated that where Congress has comprehensively regulated the award of costs between solicitor and client, which are the private costs developed to support one side, that this Court should not create exceptions to that rule. Alyeska did recognize three traditional exceptions, which it held that Congress had understood and effectively incorporated into the statutes.
Byron R. White: Why would those exceptions allow the awarding of costs that Congress hasn't provided for?
William H. Block: The court stated that in developing its congressional schemes, Congress had understood those three to exist.
Byron R. White: You mean, the witness fees, $30 a day in 1821, except when one of these three conditions exist?
William H. Block: Well, I can do no better than--
Byron R. White: Weren't we just talking about attorneys fees in Alyeska?
William H. Block: Is there a difference between attorneys fees and witness fees? Witness fees have been as regulated as attorneys fees. You were just talking about attorneys fees in Alyeska. But the principle was the regulation, and the degree of regulation. Witness fees have been as regulated as attorneys fees, and in the same statutes.
Byron R. White: Well, we don't have to deal with that here, do we?
William H. Block: --Attorneys fees?
Byron R. White: No, we don't have to deal with whether one of these exceptions would actually allow--
William H. Block: No.
Byron R. White: --expert witness fees.
William H. Block: No, none of these exceptions is met here. The only question is whether a new exception should be created. And I submit that it should not. As this Court stated in Alyeska: It appears to us that the rule suggested here would make major inroads on a policy matter that Congress has reserved for itself. Since the approach taken by Congress to this issue has been to carve out specific exceptions to a general rule that Federal courts cannot award attorneys fees beyond the limits of 28 USC Section 1923, which was what was at stake there, those courts are not free to fashion drastic new rules with respect to the allowance of attorneys' fees to the prevailing party in Federal litigation. Petitioner's exception would effectively swallow the rule that Congress has established. Taking only the antitrust laws as an example, in virtually all mainstream antitrust cases, an expert is going to materially enable the district court to arrive at its decision. One needs an expert to show the market, to show the effect upon the market, to define whether or not predatory pricing is indeed unjustifiably low pricing by statistical and economic evidence; to show statistical evidence of concerted parallelism if that is what is at issue. In virtually every antitrust case an expert is going to materially assist the district court. Yet Congress has said in 15 USC Section 15 that only plaintiffs get attorneys fees, and neither side gets expert witnesses. There would be the substantial disruption that Alyeska refused to create if the rule suggested by petitioners were adopted here.
John Paul Stevens: Before you sit down, Mr. Block, may I just ask you one question? This case was tried in the Eastern District of Louisiana, wasn't it?
William H. Block: Yes, it was.
John Paul Stevens: Did you try it?
William H. Block: I did not try it.
John Paul Stevens: Did Seattle counsel try it?
William H. Block: No. Actually, San Francisco counsel tried, not in my law firm.
John Paul Stevens: And your opponent was a Cleveland lawyer, is that correct?
William H. Block: That's correct.
John Paul Stevens: None of them were members of the bar down there, I guess?
William H. Block: They associated local counsel, Your Honor.
John Paul Stevens: I see.
William H. Rehnquist: Thank you, Mr. Block. We'll hear now from you, Mr. Youngdahl.
James E. Youngdahl: Mr. Chief Justice, and may it please the Court: In a very narrow sense, my client won below. The International woodworkers doesn't have to pay $11,000 in expert witness fees to Champion under any theory, under any judge's view of the amount of money set by the magistrate. But in a broader and much more serious sense, the IWA and private enforcement of the nation's civil rights laws suffered a grievous blow by that decision. The portion of the decision that is really damaging outside of the discussion of the issue about expert witness fees being recoverable in Title VII cases--
Byron R. White: Are you arguing for-- --You're arguing for your opponents? You're arguing on the side of your opponents in a sense?
James E. Youngdahl: --No, sir, I'm not. I don't understand it to be that. He is saying that if Title VII considerations are to apply, that... he said they're not to apply. And I'm saying they are to apply. And I'm saying, moreover, the intention of Congress of how expert witness fees are dealt with as part of attorneys fees, how Congress defined attorneys fee in the Civil Rights Attorneys Fee Award Act of 1976 is a critical question.
William H. Rehnquist: But you're arguing for affirmance here, are you not?
James E. Youngdahl: I'm arguing for affirmance, but I'm arguing for reversal of the direction the court majority below, and the en banc majority, extends its opinion by saying, in the exercise of our supervisory power, we direct all district courts to follow this rule that nobody gets expert witness fees. It doesn't say at that point, but it clearly means, including Title VII plaintiffs. Now, Title VII plaintiffs--
Antonin Scalia: Who else could object to that... who else could object to that direction? Since it went to anybody, could anybody object to it?
James E. Youngdahl: --well, we certainly were a party, Your Honor. We didn't petition for certiorari, but in our response--
Antonin Scalia: You have to be more than a party. You have to be harmed by the direction--
James E. Youngdahl: --All right, well, we are directly harmed in that our--
Antonin Scalia: --Not in this case.
James E. Youngdahl: --Not in this case; that is correct.
Antonin Scalia: I really don't see how the issue gets here. You should have cross-petitioned, shouldn't you, if you want this kind of relief?
James E. Youngdahl: Beg your pardon?
Antonin Scalia: If you want this kind of relief, you should have cross-petitioned.
James E. Youngdahl: It is my understanding of the rule about cross-petitioning that if the judgment, the bottom line judgment is affirmed, and we are not asking for more or less than the affirmed decision. We're asking that affirmed... be affirmed here, but we are objecting to the reasoning of a court in reaching that. We ask for reinstatement of the district court's reasoning, the panel reasoning, and the reasoning of every other circuit. And the problem comes in the direction. I certainly considered that. It seemed to me that since we were saying that the judgment stands, that we did not have to cross-petition.
Antonin Scalia: Mr. Youngdahl, I can't tell you how often it is that lawyers win the case and they think the reasoning is terrible. You can't appeal because you don't like the reason you were given a victory.
James E. Youngdahl: I didn't appeal, Your Honor. And I'm saying that what... it's the direction. If they had not put in there... if there had been a panel, a panel of the Fifth Circuit, and they had said, we think we ought to do this for this reasoning, we could go to another panel, we could do lots of things. But this was an en banc decision, number one. And it was a decision which says we, in the exercise of our supervisory power, we direct the courts and the Fifth Circuit to do that.
Byron R. White: So you're saying as a respondent, I'm just suggesting that the judgment be affirmed on another ground?
James E. Youngdahl: Yes, sir. The problem right now, and this is a problem not only from my experience, but a problem discussed in the Congressional hearing for the 1976 legislation, the problem is, that since June 2nd, 1986, when this decision was issued, and its direction was issued, that when a civil rights plaintiff walks in with a perfectly good case to a lawyer's office in Mississippi or Louisiana or Texas and so on, and says, okay, will you take our case, the lawyer has a choice of doing one of three things, under the direction in this case. Number one, he could say, well try it without an expert witness. Very dangerous, as I learned on the merits of the very case at bar. Two... and certainly not practical in the growing complexity of litigation... two, he can say, I'll reduce my attorneys' fee expectancy, because I as a lawyer will be responsible for paying the expert bill, and go ahead and contract with an expert, and we'll present our best case, but I won't get a reasonable attorneys fee in accordance with market rates, et cetera. Or three, he can reject the case, and say, I can't afford to do this. Now, those are the only choices open to him, and those very choices were discussed at length in day after day hearings before Congress on the 1976 civil rights attorneys fee award legislation.
John Paul Stevens: Well, there's another choice. Sometimes a plaintiff recovers a monetary award. Say you have a big class action, a lot of back pay, then the plaintiff can pay the fee. That's a possibility in some cases.
James E. Youngdahl: That's true, Your Honor. If there's a big back pay award, it's likely to be a class award, and the amount going to individual people--
Antonin Scalia: And there the expert could be paid by the client.
James E. Youngdahl: --It's a possibility. It's not typical in my experience, but it certainly is a possibility.
Antonin Scalia: Well, we see some pretty big numbers once in awhile.
James E. Youngdahl: But when there are large classes, so that the individual entitlement may not have been all that much.
Byron R. White: xxx ground that you want an affirmance on.
James E. Youngdahl: I'm not going to argue that, Your Honor. I would let everyone else take care of that. I agree with the counsel for the correspondent. I think it is an awkward situation. It was created frankly out of the consolidation of these two cases; it's a different issue.
Harry A. Blackmun: In this connection, Mr. Youngdahl, would you buy Judge Rubin's approach in dissent?
James E. Youngdahl: Yes, totally. I think what Judge Rubens said is the way he read what Congress said. And it's impossible, reasonably, if you look at the legislative history, to get any other kind of conclusion, it seems to me. As he looked at what Congress meant, he says, Congress says, attorneys' fees for purposes of civil rights litigation are all those amounts that an attorney normally bills his client for; which include expert witness fees.
William H. Rehnquist: Are you talking about attorneys fees provision in Title VII or in 1988?
James E. Youngdahl: Both, Your Honor. This Court has repeatedly said that since the legislative history is sparse with Title VII, that it will look to 1988--
William H. Rehnquist: With respect to the attorneys' fees provision?
James E. Youngdahl: --Yes, sir, it was patterned exactly after it. And the Congress... both House and Senate reports, and repeatedly on the floor, members of Congress said, we want to pattern 1988 after Title VII because we want to have exactly the same judicial interpretation of the attorneys fee section... the attorneys fee section... of Title VII transposed over and continued in 1988, and repeal Alyeska or reverse Alyeska with respect to civil rights litigation.
Byron R. White: But you say that... you say that approaching it that way these defendants aren't... weren't entitled to expert witness fees because they weren't entitled to attorneys' fees.
James E. Youngdahl: That's right, because of Christianburg. Exactly right. And Congress--
Byron R. White: Which is a different ground for affirmance--
James E. Youngdahl: --Precisely.
Byron R. White: --than your colleague here is arguing?
James E. Youngdahl: Precisely, Your Honor. But the problem is that if we don't get that, it's not going to be a question of lawyers losing cases and having an opportunity to appeal and reach this issue next year or whenever. It means that the prospective opportunity to file civil rights lawsuits that are going on right away, right now today, in those states, is lost. Because lawyers can't afford to take cases without having some sort of opportunity to recover expert witness fees, which the Fifth Circuit majority has said, no, you don't have; you don't ever have. Yes, we agree totally with Judge Rubens' analysis.
Byron R. White: 0 xxx.
James E. Youngdahl: Pardon?
Byron R. White: This is a piece of statutory construction.
James E. Youngdahl: Yes.
Byron R. White: This isn't just supervisory power. Their final conclusion says, 1821.
James E. Youngdahl: What they say there, the last sentence--
Byron R. White: Well, I know, they direct all their district courts to, but that's just surplussage, They could have put a period after their first sentence, and all the district courts would have had to comply.
James E. Youngdahl: --Well, do it anyway.
Byron R. White: So it's a piece of statutory construction, and it's really a question of, did they construe the statute correctly.
James E. Youngdahl: Well, that's true. But what I'm saying is that it just makes it more evident to the district judges that in no way and at no time in civil rights litigation can they award expert witness fees to prevailing plaintiffs. Now, I urge the most careful examination of the legislative history which the amici brief particularly deals with. There was a statement from the Floor by the chief sponsor saying, the term, attorneys fees, means all expenses necessary for effective--
Byron R. White: Well, that's a strange way of... strange way of saying that; 1988 doesn't say that.
James E. Youngdahl: --No, but for a very good reason, Your Honor. Because 1988, unless--
Byron R. White: Where does something say it that would overturn or would suggest that 1821 doesn't govern?
James E. Youngdahl: --Your Honor, 1821 and the statutes and Rule 54 particularly say that other than when provided for by Congress in other matters.
Byron R. White: Like 1821.
James E. Youngdahl: Okay, so we're saying it was provided for in other matters by 1988. And we're saying the reason it doesn't say the words, expert witness fees, is because Congress intended a broader concept than that.
Byron R. White: Where do you get that?
James E. Youngdahl: From the legislative history. The House report and the Senate report say, over and over again, the reason we are tracking exactly Title VII language is because we want to reinstate Title VII case law as to the meaning of the word, attorneys fee. And Title VII case law of attorneys fees says, case after case after case, says, expert witness fees, travel, all sorts of other things outside of 1821, are included in the kind of expenses an attorney normally bills his client; included therefore in what attorneys fees means in this statute, and should be recoverable by prevailing plaintiff; not by prevailing defendant because of Christianburg, but by prevailing plaintiff.
Byron R. White: So expert, attorneys fees are expert witness fees, or expert witness fees are attorneys fees; is that--
James E. Youngdahl: Yes. All the things that an attorney has to spend for the effective presentation of the case. You have to be reasonable. The court has discretion in granting them to be sure.
John Paul Stevens: --I thought your argument was that they were the costs as between solicitor and client; that they were part of cost, not part of fees. Maybe I misunderstood your argument.
James E. Youngdahl: Well, I don't know whether it makes a whole lot of difference whether they're called costs or fees. Congress called them fees. Representative Drinan got up... the key sponsor in the House got up on the floor and said, these... the term, attorneys fees, includes expert witness fees... I'm not sure he used the term, expert witness fees, but all things necessary which are expenditures for the prosecution of the case.
John Paul Stevens: But it is important to me in trying to understand the statute. Your view is that the expert witness fees are allowable as part of attorney's fees, rather than as part of costs?
James E. Youngdahl: Yes, Your honor. That's correct. I think that is more clearly--
Byron R. White: But attorneys' fees in turn are part of cost; is that it?
James E. Youngdahl: --I don't know, Your Honor. I have... Judge Wisdom gave me the same kind of thing on the first Fifth Circuit panel. But Congress meant them as part of fees. Congress said, we intend the term, fees, to include all the necessary outlay that an attorney had as normally billed a client. That's what Congress said. And I--
John Paul Stevens: So you would include in that, too, then, just to make it clear, extraordinary travel expenses. If you employ a Seattle lawyer to try the case in Louisiana, travelling back and forth is just part of the costs; part of the fees.
James E. Youngdahl: --Sure. I would be subject to an attack on nonreasonable. I mean the House committee said, we keep the reasonableness; we keep the discretion; we keep the prevailing party concept. We don't have a mandatory fee like the antitrust law has, and some other statutes have; we keep those things in. But we keep those things in because we want to incorporate the case law that's developed under Title VII and Title II of the '64 Civil Rights Act and the Voting Rights Act of 1975 and so on. And all that case, there has never been any question about this before the en banc decision in this case.
John Paul Stevens: Well, once again, whatever is in, is in only for the plaintiff. So we really don't have to worry about what's in here, because here you have the defendant--
James E. Youngdahl: Well, I think that's a little overstatement, Your Honor. The Christianburg said that unless the case is vexatious, without grounds, or brought in bad faith--
Antonin Scalia: --Yes, the traditional--
James E. Youngdahl: --That is correct.
Antonin Scalia: --Sure, sure. But these other things you're talking about, the special Title VII additions, are only in for the plaintiff. And you've got a defendant here. So what difference does it matter to this case? What difference does it make to this case?
James E. Youngdahl: It makes a difference because right now--
Antonin Scalia: You got a bad dictum down there.
James E. Youngdahl: --because nobody is getting representation. People are getting representation at great peril and at great sacrifice to a lawyer or--
Antonin Scalia: Because they're following a dictum that's no good. But the first case where that dictum is followed can be appealed, can't it?
James E. Youngdahl: --It's dictum in the sense that... yes, but in the meantime, prospective litigation has been turned down because lawyers cannot undertake this kind of responsibility--
Antonin Scalia: That's why dicta is bad stuff, because it causes people to follow it, but we've never allowed it to be appealed for that reason.
James E. Youngdahl: --Well, I'm not able to argue that you have ever reversed the reasoning below, have never or have, and upheld the judgment. The--
Antonin Scalia: xxx.
James E. Youngdahl: --Well... thank you very much.
William H. Rehnquist: Thank you, Mr. Youngdahl. Mr. Mansour, you have two minutes remaining.
Ernest P. Mansour: Thank you, Mr. Chief Justice. In response to one of the previous questions, that is, the respondent has taken the position that the discretion talked about in Farmer is a downward discretion, that is, that the Court has the discretion to disallow costs. I would suggest that a reading of the opinion in Farmers indicates that that is not what the opinion states, nor what Justice Black was talking about. He said in his opinion that we do not read the rule, being Rule 54(a), as giving district judges unrestrained discretion to tax costs, to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. He goes on to state that any other practice... items proposed by winning parties as costs should always be given careful scrutiny.
William H. Rehnquist: But he could have meant taxable... costs when he was--
Ernest P. Mansour: He did not say that.
William H. Rehnquist: --No, but he wasn't focused on that.
Ernest P. Mansour: What he did say is, therefore the discretion given district judges to tax costs should be sparingly exercised with reference to expenses, not specifically allowed by statute. I propose that the language is clear. I propose that the meaning is clear. I propose that what he said in an unambiguous statement was that the court in spite of--
William H. Rehnquist: Your time has expired, Mr. Mansour. The case is submitted.