Correspondence from Menefee to Guinier; from Guste (Attorney General) to Chasez (Magistrate); Intl. Woodworkers of America v. Champion International Corp. Motion for Reconsideration

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

P. O. BOX 1051 

MOBILE, ALABAMA 36633-1051 

JAMES U. BLACKSHER TELEPHONE 

LARRY T. MENEFEE June 26 ’ 1986 (205) 433-2000 

GREGORY B. STEIN 
WANDA J. COCHRAN 

Lani Guinier, Esq. 
Legal Defense Fund 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Re: Major v. Treen 
  

Dear Lani: 

I called today asking for a copy of the International Woodworkers 
opinion. As you can see from the enclosed letter, Patricia 
Bowers has referred that to the Magistrate. If it makes any 
difference, I remind you that Judge Politz ought to be quite 
familiar with the role that expert witnesses play in litigation, 

  

Please keep me posted on the developments in this litigation. 
I will wait a little while before responding to Patricia's 
letter. I am quite sure she did not list this as an issue in 
the pre-trial order. Since there are arguably some factual 
matters (i.e., $30 per day attendance fee in government rate 
subsistence), do you think that it is worth arguing that she 
has waived this issue? 

Best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P.A. 

Larry T) Menefee 

LTM:p 

Encl  



[la 

State of Lonistans 
DEPARTMENT OF JUSTICE 

J. G i 7TH FLOOR WILLIAM USTE, JR June 20 ; 1986 
ATTORNEY GENERAL 2-3-4 LOYOLA BUILDING 

NEW ORLEANS 70112-2096 

Honorable Alma Chasez 
United States Magistrate 
500 Camp Street 
New Orleans, Louisiana 70130 

RE: Major v. Treen, E.D. La. #82-1192C 
  

Dear Magistrate Chasez, 

Enclosed please find a copy of International Woodworkers 
of America v. Champion International Corporation, 7.248 

(5th Cir. 6/2/86) (Slip Op. at 6053) (en banc) in which the court 
held that no expert witness fees and expenses are allowed in 
civil rights cases in excess of those provided in 28 U.S.C. 
§1821, i.e. $30 per day attendance fee and government rate subsis- 
tence and travel. In so holding the en banc court specifically 
overruled: — 

  

  

1) Jones v,. Diamond, 636 F.2d 1364 (5th 
Cir. 1981) (en banc), cert. dismissed, 453 
U.8., 950, 102 s.Ct. 27 (1981) which authorized 
expert witness fees in civil rights cases; 

  

2) Copper Liquor Inc, v,., Adolph Coors Co., 
634 F.2d 1087 (5th Cir. 1982) (Copper Liquor 
III), modified the other grounds en banc, 

701 FP.2d 542 (5th Cir. 1983) which authorized 
expert witness fees in exceptional circum- 
stances such as when the expert testimonoy 
was necessary or helpful to the presentation 
of civil rights claims or indispensable to 
the determination of the case; and 

  

  

3) Barry v. McLemore, 670 F.2d 30, 34 (5th 
Cir. 1982) which held that it is an abuse 
of discretion for a district court to fail 

to assess as an item of costs the full fee 
of an expert witness who was important to 
plaintiff's §1983 case. 

   



Honorable Alama’ Chasez 

June 20, 1986 

Page 2 

We bring International Woodworkers to your attention 
because it compels the denial of the vast majority of plaintiff's 
request for expert witness fees and expenses. 

  

Sincerely yours, 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Va Ae NARS FAA ———— 

aa NALLEY BOWERS Be 
ASSISTANT ATTORNEY GENERAL — 

      

PNB/uej 

cc: Mr. Larry Menefee 

 



No. 83-4616 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, 

CLC and its LOCAL No. 5-378, 

Plaintiffs—-appellees, 

v. 

CHAMPION INTERNATIONAL CORPORATION, 

Defendant-appellant. 

  

Appeal from the United States District Court 

For the Northern District of Mississippi 

JULIUS LeVONNE CHAMBERS 

STEVEN L. WINTER 

98 Hudson Street 

New York, New York 10013 

{212} 2319-31900 

Counsel for the NAACP Legal 

Defense & Educational 

Fund, Inc. as Amicus Curiae 

 



No. 83-4616 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, 

CLC and its LOCAL No. 5-376, 

Plaintiffs—-appellees, 

Vv, 

CHAMPION INTERNATIONAL CORPORATION, 

Defendant-appellant. 

  

Appeal from the United States District Court 

For the Northern District of Mississippi 

MOTION FOR RECONSIDERATION 
  

The NAACP Legal Defense & Educational Fund, Inc., amicus 

curiae in the above noted case, moves the court to reconsider its 

opinion in International Woodworkers Vv. Champion, No. 83-4816, 
  

and to correct ‘a plain error of law. he court should 

reconsider its opinion and delete the reference to Jones v. 

Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc) at page 60358 of 

the slip opinion, delete the paragraph discussing Jones at pages 

6063-64, and delete footnote 8. 

  

. Because the portions of the court's opinion relevant 

this motion are unnecessary to the judgment but nevertheless wi 

affect the rights of absent third parties, amicus is the on 

party appropriate to press this motion. C£. Singleton v. 

£28.0.5. 108. .{1976). 

   



The apparent justice of applying the American Rule to deny 

recovery of expert witness fees sought by a successful corporate 

defendant from an impecunious union plaintiff should not mask the 

injustice and adverse consequences of a ruling that purports to 

hold that expert witness fees are never recoverable under Title 

VII, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorney's Fees 

Awards Act of 1976, 42 U.S.C. § 1988 ("the Fees Act"). In 

reaching out and determining an issue that was both unnecessary 

to the decision and less than fully briefed, the court's opinion 

threatens to cripple civil rights litigation in this circuit. 

The Legal Defense Fund has litigated civil rights cases for 

over 47 years. It is no exaggeration to say that scarcely any 

civil rights case - whether involving employment 

discrimination,2 school desegregation, 3 jury discrimination, 

prison conditions,d or police misconduct® -- can effectively be 

litigated without expert witnesses. Neither the typically 

indigent plaintiffs nor the solo practitioners who usually handle 

these cases will be able to afford this necessary forensic 

  

2 See, e.g., Teamsters v. United States, 431 U.S. 324 
  

3 See, oT Bradley wv. School Bd. "of +he City oO) 

Richmond, 53 ~?.R.D. 28, 44 (B.D. Va. 19731) {It is Aifficul: to 

imagine a more necessary item of proof...."). 

  

See,e.d., Vascuezr Vv. Billery, 47 88 L..Ed.2d 

(1986); Castaneda v. Partida, 430 U.S. 4 
    

  

5 See, e.g., Estelle v. Gamble, 429 U.S. 97 (1976); Newman 

v. Alabama, 5303 7.24 1320 (3th Cir. 12174). 
  

6 See, e.g., Tennessee v. Garner, 471 U.S. 85 7L..74.2¢ 

1 {19385}. 
   



resource absent the fee shifting promised by these statutes. If 

the court's opinion stands, the inevitable result will be to 

preclude effective civil rights litigation in states that were 

the historic situs of blatant discrimination, the vestiges of 

which have yet fully to be eradicated. 

While these considerations would alone justify 

reconsideration by this court, the circumstances of this case 

compel it. For the question of the recoverability of expert 

witness fees under Title VII and the Fees Act was neither pressed 

by the parties, necessary to decision in this case, nor seriously 

open to question.’ Because of this, the court was not fully 

informed on the issue. As a result, the en banc opinion is 

premised on a misapprehension regarding the Fees Act resulting in 

a clear error of law. See F.R.A.P. 40(a). 

The en banc opinion repeats the error of the dissent in 

Jones concerning the basis for the Jones holding that expert 

witness fees were included in the Fees Act. It thought that 

Jones was premised "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 

but did not.'" International Woodworkers, Slip op. at 
  

6064 (quoting Jones, 636 F.2d at 1391 (Coleman, J., dissenting) 

(emphasis in original)). Nothing could be further from 

truth: The entire legislative history of 

  

7 As Judge Rubin correctly points out, this aspect of 

en banc opinion conflicts with the law in every other circuit. 

3  



permeated with the concern for the problem of expert witness fees 

and clearly reflects their inclusion within the fee shifting 

scheme of the Act. 

At the hearings that led to the Fees Act, Congress 

repeatedly heard that the economic deterrents to civil rights 

enforcement, and public interest litigation generally, included 

both the problems of attorneys' fees and the great expense of 

expert testimony. Each of the first three witnesses in the 1973 

Senate hearings raised this problem. One of these was Dennis 

Flannery, plaintiffs' counsel in Alveska Pipeline Service Co. V. 
  

Wilderness Society, 421 U.S. 240 (1975). He testified "that in a 
  

difficult case it cost tens of thousands of dollars to be able to 

conduct the case including being able to get expert 

witnesses.... The Effect of Legal Fees on the Adequacy of 
  

Representation, Hearings Before the Subcomm. on Representation of 
  

Citizen Interests of the Comm. on the Judiciary, United States 
  

Senate, 93 Cong., 1st Sess. 1108 (1373) (Remarks of Senator 

Tunney, the chairman of the subccmmittee and later the sponsor of 

the Fees Act, summarizing testimony): see also 34. 

(Flannery statement); id. at 799 (Statement of J. Anthony Kline): 

t 1127-28 (Remarks of Senator Tunney). 

This record was repeated in the House. One witness 

testified about a party having "to confine its activities to 

cross—-examination of industry witnesses because it ‘could not 

possibly afford to put on expert witnesses of its OW sv 

Awarding of Attorneys’ Fees, Hearings Before the Subcomm. on 
   



Courts, Civil Liberties & the Administration of Justice of the 
  

Comm. on the Judiciary, House of Representative, 94th Cong., ist 
  

Sess. 159 (1975) (Statement of Peter H. Schuck, Consumers Union 

Inc.) The Lawyers' Committee on Civil Rights testified that 

civil rights cases were not being filed because counsel "are 

rarely able to afford the technical assistance of expert 

witnesses.... Id. at 89, 100 (Statement of Armand Derfner and 

Mary Frances Derfner) One witness went so far as to state that 

if expert witness fees were not included, "the very point of the 

bills may be defeated." Id. at 136 (Statement of John M. 

Ferren). 

Congress responded by crafting a bill that used the precise 

language of Titles II and VII and intentionally adopted the prior 

case law under these statutes and the "private attorney general" 

theory. As explained in the Senate Report: 

S. 2278 follows the language of Titles II and VII of 

the Civil Rights Act of 1964, 42 U.S.C. §§2000a-3 (bb) 

and 2000e-5(k), and section 402 of the Voting Rights 

Act Amendments of 1975, 42 U.S.C. §19731i(e).... It is 

intended that the standards for awarding fees be 

generally the same as under the fee provisions of the 

1964 Civil Rights Act. 

S. Rep. No. 94-1011, 94th Cong., 24 Sess. 2, '4 

Kennedy, one of the sponsors of the bill,? further indicated 

  

8 The importance of the committee report in establishing 

congressional intent is well established: "A committee report 

represents the considered and collective understanding of those 

Congressmen involved in drafting and studying proposed 

legislation." Zuber v. Allen, 396 U.S. 168, 186 (13270). 
  

9 In Schwegman Bros. v. Calvert Distillers Cord.. 

384 (1951), the Court noted that: WT* is the sponsors 

look to when the meaning of the statutory words is 

  

5  



the bill "is intended simply to expressly authorize the courts to 

continue to make the kinds of awards of legal fees that they had 

been allowing prior to the Alyeska decision." 122 Cong, Rec. S 

16252 (daily ed., Sept. 21, 1976).10 

We have already noted in our main brief the critical 

comments of Congressman Drinan that adopted the language 

court's prior opinion in Fairley Vv. Patterson, 493 F.2d 
  

Cir. 1974), which awarded expert witness fees. 

In 1976 when Congress debated and passed the Act, there was 

little doubt that expert witness fees had been recoverable under 

the "private attorney general” casesll and under the attorneys' 

  

Id. at 394-95. Recently, in Chrysler Corp. v. Brown, 441 U.S. 

281 (1979), the Court explained that: "The remarks of a single 

legislator, even the sponsor, are not controlling in analyzing 

legislative history ..., [but] must be considered with the 

Reports of both Houses and the statements of - other 

Congressmen...." Id. at 311. Since Senator Kennedy's remarks as 

sponsor are wholly consistent with and complementary to the bulk 

of the legislative history, they possess added weight. 

  

10 In the House, both Representatives Railsback and 

Bolling noted that the bill merely codified and restored the pre- 

Alyeska law. 122 Cong. Rec. H 12155 (daily #d., Oct. 1, 197%). 

11 It is significant that § 1988 was the legislative 

response to Alyeska; it was in the pre-Alyeska civil rights 

that expert witness fees were most consistently awarded. 

v. Patterson, 493 F.2d 598, 808 n. 11 (8th Cir. 1974) 

preparing reapportionment plan in voting richts case); 

Liking, 67 F.R.D. 589 '(D. Minn.), gff'd, 825 P.24 987 

1975) (§1983 suit on rights of mentally retarded) ; 

Western Gillette, Inc., 371 TF. Supp. 38%, 394 (S.D. 

aff'd in part, rev'd in part, 5816 F.2¢ 125: {5th Cir. 

rev'd on other grounds, 431 U.S. 951 (1977), (employment 

discrimination suit under Title VII and §1981l: attorneys' and 

expert witness fees awarded under both Title VII and ‘private 

attorney general" theory): La Raza Unida vv. Volpe, 337 F. 3upp. 

221 (N.D.Cal. 1971): Bradley _v. School Bd. of Qity of Richmond, 

3 F.R.D. 28 (E.D. Va. 1971)(school desegregation); Jones Vv. 

Wittenberg, 330 PF. Supp. 707, 722 (N.D. Ohio 1871)(Jjail case). 

  

  

  

  

  

   



fees provision of Title VII on which the Act was modeled.l12 

Indeed, the award of expert witness fees to the prevailing party 

in Title VII litigation was so well established that it often 

went unchallenged. Davis vv. County of Los Angeles, 8 E.P.D. 
  

49444, 5048 (C.D. Cal. 1974) ("These charges were not challenged 

by defendants and are valig").13 

The Senate left little doubt about the case law it intended 

to incorporate. 

The appropriate standards, see Johnson V. Georgia 

Highway Express, 488 F.2d 714 (5th Cir. 1974), are 

correctly applied in such cases as Stanford Daily v. 

Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. 

County of Los Angeles, 8 E.P.D. 99444 (C.D. Cal. 1874); 

and Swann Vv. Charlotte Mecklenburg Board of Education, 

66 PF.R.D. 483 (W.D.N.C. 1978). These cases have 

resulted in fees ‘which are adequate to attract 

competent counsel, but which do not produce windfalls 

to attorneys. 

  

  

  

  

  

S. Rep. No. 94-1101, supra, at. 6. These cases were carefully 

chosen to include both statutory -- Davis and Swann -- and non- 

statutory "private attorney general" -- Stanford Daily -—— fee 
  

awards and to include a broad range of attorneys' fee issues 

  

~ 

12 EEOC v. Datapoint, 412 F. Supp. 

1976), vacated and rem'd on other grounds, 

Cir. 3971); "Rios vy. Enternrise Steamfitters 

963, 997 (S.D.N.Y. 1975), aff'd, S542 F.2¢ 

Davis v. Countv of Los Angeles, 8 E.P.D. : 

Sabala v. Western Gillette, Inc... 371 . “SUpD. , 394 

Tew. 1974), aff'é in part, rev'c I on other grounds, 

T.24 1281 (B%h Cir. 1975), rev'd on © 

11977). See also Sledge Vv. J.P, Stevens, 12 FE 

(E.D.N.C. 1976) (prospective award of fees for plaintiff 

necessitated by defendants' computerized records). 

  

  

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13 Research reveals no reported pre-1976 Title VII cases 

in which expert witness fees were discussed and disallowed. 

Zz  



including the recoverability of expert witness fees and paralegal 

and out-of-pocket expenses. Indeed, of these three paradigmatic 

cases, two involved the award of substantial expert witness fees 

-- Davis, noted above, and Swann. l#4 

  

14 Amicus was of counsel in Swann. Of the $23,972.33 in 

costs awarded by the district court, over one third was for 

expert witness fees and expenses. The first page of the 

affidavit listing expenses contained the following: 

3. 7-10/68 

Fee for Charles Green to conduct 

demographic study of Charlotte. 

1968-19683 
Fee for expert witness, Yale Rabin, 

City Planner, for his analysis of 

the city and his testimony in the 

case. 

1968-1969 

Travel expenses for Yale Rabin. 

1-3/69 

Fee for educational consultant and 

witness, Dr. Jack Larsen, for 

analysis of school systems, develop- 

ment of desegregation proposals and 

testifying at hearing. 

1-3/69 

Travel expenses for Dr. Jack Larsen. 

1-3/69%9 

Fee for educational consultant and 

witness, Dr. Robert Passey, for 

analysis of the school system, 

development of desegregation pro- 

posals and testifying at hearing. 

1-3/869% 

Travel expenses for Dr. Robert Passey. 

1-3/69, 3/710.&8 7/70 

Fee for educational consultant, and 

witness, Dr. John Finger for analysis 

of the school system development of 

desegregation proposals and testify- 

a 
o  



Thus, there can be little doubt that Congress acted 

deliberately and intentionally to incorporate an existing body of 

case law that clearly included expert witness fees and all manner 

of reasonable out-of-pocket expenseslS as part of "fees and 

costs." 

The en banc opinion ignores this extensive and clear 

legislative history. It also appears to apply a "plain meaning” 

or "clear statement" rule, requiring that Congress express its 

intent in the plain language of the statute. This rule has no 

hasis in the case law; only in the eleventh amendment area, where 

  

ing at hearing. .00 

Travel expenses for Dr. Finger. .30 

1/22-24/691 

Travel expenses for education experts 

in Charlotte. 

3/9/89 

Travel expenses for educational 

experts in Charlotte. 14. 

All of these expenses were awarded as part of costs. 

486. 

4.3 Even the bill's opponents understood this, as 

Congressman Bauman of Maryland made clear in his statement on the 

floor. 

I agree that people ought to have their rights 

vindicated, but could we not imagine a situation in 

which a so-called public interest lawyer, who may be 

financed independently, would be inclined to file a 

suit not only to test a legal point but also in the 

hope that the court would grant his client plaintiffs’ 

legal fees, and therefore his expenses? 

122 Cong. Rec. H 12165 (dally ed., Oct. 1, 1976). As phrased by 

a supporter, Congressman Seiberling: "All we are trying toc do in 

this bill is ... to get compensation for their legal expenses in 

meritorious cases." Id. at H 12158. 

2  



delicate issues of federalism are concerned, has the Supreme 

Court required such a restrictive rule. See, e.g., Atascadero 

State Hospital vv. Scanlon, 473. .0.8. 7 L.BE&.24 171 {1385}, 
  

To the contrary, in the civil rights and fee areas, the Court has 

recognized as appropriate an approach to legislative drafting 

that deliberately adopts the wording of earlier statutes in order 

to incorporate by reference the existing case law. See, e.d.. 

Cannon v. University of Chicago, 441 U.8. 677, 696-97 (1979) 
  

(implied cause of action under Title IX); Hughes v. Rowe, 449 
  

U.S. 5 (1980); Christiansburg Garment Co. v. E.2.0.C.. 434 U.S. 
  

$412 (19178) (higher standard for award of fees to prevailing 

defendant). 

The drafters ... explicitly assumed that it would be 

interpreted and applied as [these provisions] had been 

during the preceding [twelve] vyears.... It is always 

appropriate to assume that our elected representatives, 

like other citizens, know the law; in this case, 

because of their repeated references to [these 

provisions and the case law], we are especially" 

justified in presuming both that those representatives 

were aware of the prior interpretation ... and that 

that interpretation reflects their intent. 

Cannon, 441 U.S. at 696-97. Congress deliberately incorporated 

expert witness fees into the fee shifting scheme of the Act by 

incorporating the prior case law. That decision should be 

respected. 

 



For the foregoing reasons, the motion for reconsideration 

should be granted. 

Respectfully submitted, 

in Ba 
JULIUS LeVONNE CHAMBERS 
STEVEN L. WINTER 

98 Hudson Street 

New York, New York 10013 

(212)219-1900 

  

  

Counsel for the NAACP Legal 

Defense & Educational 

Fund, Inc. as Amicus Curiae 

CERTIFICATE OF SERVICE 
  

I hereby certify that I served copies of the foregoing 

motion for reconsideration on the parties by depositing same in 

the United States mail, first class postage prepaid, addressed 

to: 

James E. Youngdahl 

Youngdahl & Larrison, P.A. 

2101 Main Street 

P.O. Box 8030 

Jrrise Rock, Ayk. 22215 

Jeffery A. Walker 

Fuselier, Ott & McKee, P.A. 

2100 Deposit Guaranty Plaza 

Jackson, Mississippi 39201 

This 10th day of June, 1986. 

AR EI 

l for Amicus Canias