International Woodworkers of America v. Champion International Corporation Brief Amicus Curiae

    T

No. 83-4616 
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, 
CLC and its LOCAJ. No. 5-376,

Plaintiffs-appellees
v.

CHAMPION INTERNATIONAL CORPORATION,
Defendant-appellant.

Appeal from the United States District Court 
For the Northern District of Mississippi

BRIEF FOR THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

AS AMICUS CURIAE

JULIUS LeVONNE CHAMBERS STEVEN L. WINTER 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

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
v.

CHAMPION INTERNATIONAL CORPORATION
Defendant-appellant

CERTIFICATE OF INTEREST

. The undersigned certifies that, to his knowledge, no 
one besides the named parties and their counsel: International
Woodworkers of America, AFL-CIO, CLC, its Local 5-376, Ricky 
Willingham, Robert D. Brister, E. D. Henderson, the Champion 
International Corporation, and the law firms of Youngdahl & 
Larrison and Fusilier, Ott and McKee has an interest in the 
outcome of this case. This representation is made in order 
that the judges of this court may evaluate possible dis­
qualification or recusal.



TABLE OF CONTENTS

Table of Authorities.........................
Interest of Amicus ..........................
Summary of Argument .........................
Argument .....................................

A. Congress Treated Expert Witness Fees 
as Part of Attorneys' Fees

B. Congress Included Expert Witness Fees 
in the Fee Shifting Regime of the Civil Rights Statutes Because It Was 
Concerned with the Disequilibrium in 
Litigating Strength in these Cases ..

C. The Standards Required by the Civil
Rights Attorneys' Fees Statutes Must 
Control ............. ...............

Conclusion ...................................

Page
i
1
3
4

6

11

19
21



TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody, 444 U.S. 405
(1975) ........................................

Alyeska Pipeline Service Corp. v. Wilderness
Society, 421 U.S. 240 (1975) .................

Blum v. Stenson, ___ U.S. ___, 79 L.Ed.2d
891 (1984) ....................................

Bradley v. School Bd. of City of Richmond,
53 F.R.D. 28 (E.D. Va. 1971) .................

Bradley v. School Board of the City of
Richmond, 416 U.S. 696 (1974) ................

Copper Liquor, Inc. v. Adolph Coors Co.,
684 F.2d 1087 (5th Cir. 1982) ................

Christiansburg Garment Co. v. Equal Employment
Opportunity Comm., 434 U.S. 412 (1978) .......

Chrysler.Corp. v. Brown, 441 U.S. 281 (1979) ....
Davis v. County of Los Angeles, 8 E.P.D.

1(9444 (C.D. Cal. 1974) .......................
EEOC v. Datapoint, 412 F.Supp. 406 (W.D. Tex.

(1976) vacated and rem'd on other grounds,
570 F.2d 1264 (5th Cir. 1978) ................

Evans v. Jeff D., No. 84-1288 (pending) .........
Fairly v. Patterson, 493 F.2d 598

(5th Cir. 1974) ..............................
Foti v. Immigration and Naturalization

Service, 375 U.S. 217 (1963) .................
Gibbons v. Crawford Fitting Co.,No. 84-3332 (5th Cir.) (pending en banc) .....
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....
Henkel v. Chicago, St. Paul, M. & 0. Ry. Co.,

284 U.S. 444 (1932) ..........................
Hensley v. Eckerhart, 401 U.S. 424 (1983) .......

Cases;
10

8, 12

2

10

2

5, 9, 20

2, 3, 4, 19 
7

10

10

2

3, 9, 20

7

5
30

5
2

Page

-l-



2

10

2

20

10

9

13

9

9

9

6

9

9

19

14

Cases:
Holy Trinity Church v. United States,

143 U.S. 457 1892) .....................
Hughes v. Rowe, 449 U.S. 5 (1980 ) ......... ■
Hutto v. Finney, 437 U.S. 678 (1978) ...... .
Jackson v. School Bd. of City of Lynchburg, 

Civ. Act. No. 534 (W.D. Va. April 28,
1970) ...................................

Johnson v. Georgia Highway Express Co.,
488 F.2d 714 (5th Cir. 1974) ...........

Jones v. Diamond, 636 F.2d 1364
(5th Cir. 1981) (en banc) ..............

Jones v. Wittenberg, 330 F.Supp. 707
(N.D. Ohio 1971) .......................

Keyes v. School District No. 1 Denver,Colo., 439 F.Supp. 393 (D. Colo. 1977) ..
La Raza Unida v. Volpe, 337 F.Supp. 221

(N.D. Cal. 1971) .......................
Loewen v. Turnipseed, 505 F.Supp. 512

(N.D. Miss. 1981) ......................
McPherson v. School District 186,

465 F.Supp. 749 (S.D. 111. 1978) .......
Neely v. General Electric., Civ. Act.

No. C80-44N (N.D. Ga. 6/29/81) .........
New York Gaslight Club v. Carey, 447 U.S. 54 

(1980) ..................................
Northcross v. Board of Ed.,

611 F.2d 624 (6th Cir. 1979) ...........
O'Bryan v. Saginaw, Mich.,

No. 79-1297 (6th Cir. Jan. 6, 1981) ....
Palmer v. Rogers, 10 E.P.D. 10,499

(D.D.C. 1975) ..........................
Pyramid Lake Pauite Tribe v. Morton,

360 F.Supp. 669 (D.D.C. 1973) ..........

-ii-



Cases: Page

Richardson v. Hotel Corp. of America,
332 F.Supp. 519 (E.D. La. 1971),
aff'd without opinion, 468 F.2d 951
(5th Cir. 1972) .... .....................

Rios v. Enterprise Steamfitters Local,
400 F.Supp. 993 (S.D.N.Y. 1975),
aff'd, 542 F.2d 579 (2d Cir. 1976) .....

Robinson v. Lorillard Corp., 444 F.2d 791 
(4th Cir. 1971) ........................

Sabala v. Western Gillette, Inc.,
371 F.Supp. 385 (S.D. Tex. 1974), 
aff'd in part, rev'd in part, 516 F.2d 1251 (5th Cir. 1975. rev'd on other 
grounds, 431 U.S. 951 (1977) ...........

Schwegman Bros. v. Calvert Distillers Corp., 
342 U.S. 384 (1951) ....................

Sims v. Amos, 340 F.Supp. 691(M.D. Ala.), aff'd, 409 U.S. 942 (1972)
Sledge v. J.P. Stevens, 12 E.P.D. 11,047 

(E.D.N.C. 1976) ......................
Welsch v. Likins, 67 F.R.D. 589 (D. Minn.) 

aff'd, 525 F.2d 987 (8th Cir. 1975) ...
Wright v. McMann, 321 F.Supp. 127

(N.D.N.Y. 1970) .
Zuber v. Allen, 396

Statutes
28 U.S.C. § 1821 ...
28 U.S.C. § 1920 ...
28 U.S.C. § 2412(d)
42 U.S.C. § 19731(e)
42 U.S.C. § 1981 ...

168 (1970)

4

10

10

9-10

7

10

10

9

10
7

3, 9, 10, 19, 20
3, 9, 10, 19, 20

5
5, 6
6, 10

-iii-



Statutes: Page

42 U.S.C. § 1981 
42 U.S.C. § 1983 
42 U.S.C. § 1988

42 U.S.C. § 2000a-3(b) ......................
42 U.S.C. § 2000e-5(k) ..................... .
H.R. Rep. 96-1418, [1980] U.S. Code Cong.

& Ad News 4997 .......................... .
H.R. Rep. No. 94-1558, 94th Cong.,

2d Sess. (1976) .........................
S. Rep. No. 94-1011, 94th Cong., 2d Sess.

(1976) ...................................
122 Cong. Rec. H 12150 (daily ed., Oct. 1, 

1976) ....................................
122 Cong. Rec. H 12155 (daily ed., Oct. 1, 

1976) ......................... ..........
122 Cong. Rec. H 12159 (daily ed., Oct. 1, 

1976) ....................................
122 Cong. Rec. H 12160 (daily ed., Oct. 1, 

1976) ....................................
122 Cong. Rec. H 12165 (daily ed., Oct. 1, 

1976) ....................................
122 Cong. Rec. S. 16449 (daily ed., Sept. 22, 

1976) ....................................
122 Cong. Rec. S. 17051 (daily ed., Sept. 29, 

1976) ....................................

6, 10 
2, 9

4, 5, 6, 9, 19,
20

5, 6 
5, 6, 19

5

4, 7 

4, 7 

8

11

8

8, 20 

11 

18 

18

-iv-



Other Authorities:
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., 1st Sess. (1975) .................... 13, 15, 17, 18, 19
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, 93rd Cong., 1st Sess.
(1973) ........................................... 13, 14' 17' 18

-v-



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, 
v.

CHAMPION INTERNATIONAL CORPORATION,
Defendant-appellant.

Appeal from the United States District Court 
For the Northern District of Mississippi

BRIEF FOR THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

AS AMICUS CURIAE

Interest of Amicus*
The NAACP Legal Defense and Educational Fund, Inc.,

("LDF") is a non-profit corporation organized under the laws 
of the State of New York in 1939. It was formed to assist 
blacks to secure their constitutional rights through the 
courts. Under its charter, LDF renders legal aid to im­
poverished blacks suffering injustice by reason of race who 
are unable to employ legal counsel on their own behalf. For 
many years, its attorneys have represented parties and parti­
cipated as amicus curiae in the Supreme Court of the United

* Letters of consent to the filing of this brief from 
counsel for the appellant and the appellee have been filed 
with the Clerk.



States, in this court, and in other courts in cases involving 
the broad range of civil rights litigation.

LDF has participated in virtually all of the leading 
cases involving attorneys' fees questions, both as counsel, 
e.g., Bradley v. School Board of the City of Richmond, 416 
U.S. 696 (1974); Hutto v. Finney, 437 U.S. 678 (1978);
Johnson v. Georgia Highway Express Co., 488 F.2d 714 (5th 
Cir. 1974); and as amicus curiae, e.g., Evans v . Jeff D.,
No. 84-1288 (pending); Blum v. Stenson, ___ U.S. ___, 79
L.Ed.2d 891 (1984); Hensley v. Eckerhart, 401 U.S. 424 
(1983). LDF participated as amicus curiae in both of the 
cases that all parties agree are central to this case, 
Christiansburg Garment Co. v. Equal Employment Opportunity 
Comm., 434 U.S. 412 (1978), and this court's en banc decision 
in Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc).

The issue raised on this appeal regarding the standards 
to be applied in assessing fees against unsuccessful civil 
rights litigants will affect the entire spectrum of civil 
rights litigation under 42 U.S.C. § 1983, Title VII of the 
Civil Rights Act of 1964, U.S.C. §2000e, and the other civil 
rights statutes. The position urged by appellant would 
raise significant barriers that will deter meritorious civil 
rights plaintiffs who are often indigent and cannot afford 
the risk of being saddled with the large expert witness fees 
of their more wealthy opponents. That result would be in 
direct contravention of explicitly expressed congressional 
intent.

-2-



SUMMARY OF ARGUMENT
Decision in this case does not turn on whether expert 

witness fees may be assessed as costs under 28 U.S.C. §§
1920 and 1821. Nor does it concern the standards that might 
apply under those statutes or F.R.C.P. 54(c) if such fees 
are available. The question in this case is whether the 
specific provisions of the fee shifting statutes in civil 
rights cases are controlling on the very issues that Congress 
addressed. We submit that they must be.

In passing the civil rights attorney fee statutes,
Congress adopted the formulation of this court in Fairly_3Li.
Patterson, 493 F.2d 598 (5th Cir. 1974); expert witness fees 
are "[c]osts not subsumed under federal statutory provisions 
normally granting such costs against the adverse party ...
[that] are to be included in the concept of attorneys' fees."
Id. at 606 n. 11 (emphasis added). Congress ratified the 
case law under Title VII that routinely treated expert witness 
fees as part of the fees to be awarded under the fee shifting 
provision. Thus, appellant’s argument —  that expert witness 
fees are not "fees," but are "costs" that can be awarded to 
defendants without regard to the standards Congress and the 
Court have specified for the award of fees against good 
faith civil rights plaintiffs, see Christiansburg Garment 
Co. v. EEOC, 434 U.S. 412 (1978) —  is incorrect.

This conclusion is confirmed by a review of the legislative 
history of § 1988 and its clearly expressed purpose. Congress

-3-



was concerned about the disequilibrium in litigating strength 
between civil rights plaintiffs and their typically more 
wealthy opponents, such as public corporations and local 
governments. It was aware that expert witness fees were a 
central part of this problem. It acted to include expert 
witness fees as part of attorneys fees- when plaintiffs won 
and, by adopting the Christiansburg standard, to shield good 
faith losing plaintiffs from bearing such large fees. It 
knew that any other standard would only further exacerbate 
the economic disequilibrium between the parties and deter 
civil rights litigation brought in good faith, rather than 
encourage it as Congress intended.

ARGUMENT
I. CONGRESS INCLUDED EXPERT WITNESS FEES AS 

PART OF ATTORNEYS' FEES UNDER THE CIVIL 
RDGHTS STATUTES AND, THEREFORE, THE SPECIFIC STANDARDS GOVERNING FEE SHIFTING 
UNDER THOSE STATUTES MUST CONTROL

Appellants concede, as they must, that if this case 
is governed by the standards governing award of fees to 
defendants under the civil rights statutes see, e.g., 
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)
(Title VII); Hughes v. Rowe, 449 U.S. 5 (1980) (§ 1988); 
Richardson v. Hotel Corp. of America, 332 F.Supp. 519 (E.D. 
La. 1971), aff'd without opinion, 468 F.2d 951 (5th Cir. 
1972), cited with approval in S.Rep. No. 94-1011, 94th Cong., 
2d Sess. 5 (1976), and H.R. Rep. No. 94-1558, 94th Cong., 2d 
Sess. 7 (1976) (committee reports on 42 U.S.C. § 1988)

-4-



—  then they cannot recover their expert witness fees because 
the district court found that plaintiffs had filed suit in 
good faith. They seek to avoid the force of this conclusion 
by the semantic dodge of characterizing these fees as costs 
and seeking recovery under those cases that allow the district 
judge discretion to award expert witness fees despite the
Supreme Court's decision in Henkel v. Chicago, St. Pauly_
& 0. Ry. Co./ 284 U.S. 444 (1932).

Appellants are wrong. However this court resolves
the question of the availability of expert witness fees as
part of costs in non-civil rights cases,—  that will not
affect decision in this case. For Congress included expert
witness fees in the civil rights acts 42 U.S.C. §§ 2000a—
3(b), 2000e-5(k), 19731(e), and 1988 —  and made them subject
to the same standards as attorneys' fees. These specific
standards must control over whatever rule may be adopted in
the general run of cases. Any other conclusion would run

2 /directly contrary to Congress's purpose and intent.

1/ That issue is apparently presented in the companion 
case Gibbons v. Crawford Fitting Co., No. 84—3332. See, 
e.q., Copper Liquor, Inc, v. Adolph Coors Co., 684 F.2d 
1087, 1100 (5th Cir. 1982) (Clayton Act).
2/ The conclusion that the civil rights statutes control is 
reinforced by the legislative history of the Equal Access to 
Justice Act, 28 U.S.C. § 2412(d) C'EAJA"). There, Congress 
recognized that the EAJA might overlap with the civil rights 
statute and specified that the latter should control because 
"Congress has indicated a specific intent to encourage vigorous 
enforcement...." in civil right cases. H.R. Rep. No. 96- 
1418 at 18, [1980] U.S. Code Cong. & Ad. News 4997.

-5-



In the sections that follow, we first discuss what 
Congress said with regard to the inclusion of expert witness 
fees. We then discuss the legislative record and the problem 
that Congress considered. Finally, we discuss the policies 
that Congress expressed and how the resulting standard resolves 
this case.

A. Congress Treated Expert Witness Fees 
as Part of Attorneys' Fees

We start with the legislative history of § 1988, 
which controls this case for two reasons. First, the plaintiffs 
brought this case under both Title VII and § 1981; § 1988 
applies to the latter statute. Second, the Supreme Court 
has held that all the civil rights attorneys' fees provision 
must be read together, in light of the well developed legis­
lative history of § 1988. New York Gaslight Club v. Carey,
447 U.S. 54, 70-71 n. 9 (1980). This is particularly appro­
priate for, in expressing its intent under § 1988, Congress 
adopted the standards already in existence under Title VII 
and the prior civil rights decisions.

Thus, as explicated 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. §§200a-3 (b) and 
2000e-5(k), and section 402 of the 
Voting Rights Act Amendments of
1975, 42 U.S.C. § 19731(e)--- It is
intended that the standards for awarding 
fees be generally the same as under the 
the fee provisions of the 1964 Civil Rights 
Act.

-6-



S. Rep. No. 94-1011, 94th Cong., 2d Sess. 2, 4 (1976).— ^ 
During the floor debate on the House side, 

Congressman Drinan, the bill's sponsor • and the author of 
the committee report, —— ^ amplified on the comments in that 
report. See H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 5-6 
(1976).

The purpose of S. 2278 and its 
House counterpart, H.R. 15460, is to 
authorize the award of a reasonable 
attorney's fee in actions brought in 
State or Federal courts, under certain 
civil rights statutes.... By permitting 
fees to be recovered under those statutes, 
we seek to make uniform the rule that a 
prevailing party, in a civil rights case, 
may, in the discretion of the court, re­
cover counsel fees.

The Civil Rights Attorney's Fee 
Awards Act of 1976, S. 2278 (H.R. 15460) 
is intended to restore to the courts the 
authority to award reasonable counsel 
fees to the prevailing party in cases 
initiated under certain civil rights

3 / 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 (1970).
4 / In Schwegman Bros, v. Calvert Distillers Corp., 342
U.S. 384 (1951), the Court noted that: "It is the sponsors
that we look to when the meaning of the statutory words is 
in doubt." 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 state­
ments of other Congressmen...." Id. at 311. Since these 
remarks by the sponsor are wholly consistent with and comple­
mentary to the bulk of the legislative history, they possess 
added weight.
5 / Mr. Drinan's exposition is especially authoritative 
since he was a member "of the House Judiciary Committee responsible for ... [these] matters, author and chief sponsor
of the measure under consideration, and a respected congressionalleader in the whole area---" Foti v. Immigration and Naturally
zation Service, 375 U.S. 217, 223 n.8 (1963).

_7_



acts. The legislation is necessitated by 
the decision of the Supreme Court in 
A.lyeska Pipeline Service Corp. against 
Wilderness Society, 421 U.S. 240 (1975)....

The language of S. 2278 tracks the 
wording of attorney fee provision in 
other civil rights statutes such as 
section 706 (k) of Title VII —  employment 
—  of the Civil Rights Act of 1964. The 
phraseology employed has been reviewed, 
examined, and interpreted by the courts, 
which have developed standards for its 
application. These evolving standards 
should provide sufficient guidance to the 
courts in construing this bill which 
uses the same term. I should add that the 
phrase "attorney's fee" would include the 
values of the legal services provided by 
counsel, including all incidental and necessary expenses incurred in furnishing 
effective and competent representation.

122 Cong. Rec. H 12159-12160 (daily ed., Oct. 1, 1976) (emphasis 
added).

Congressman Drinan's comments are particularly
important for two reasons. First, they indicate the explicit
intent of Congress to adopt the existing case law under
Title VII.— ^ More importantly, they indicate that Congress
was conscious that expert witness fees and other out-of-
pocket expenses had been recoverable even though they were
not traditional "costs." Rather, these non-statutory costs
had been treated in just the way Congressman Drinan explained:

Costs not subsumed under federal statutory 
provisions normally granting such costs against 
the adverse party ... are to be included in 
the concept of attorneys' fees.

6 / Representative Anderson, one of the floor managers of 
the bill, also made this point at the opening of the floor debates. 122 Cong. Rec. H 12150 (daily ed., Oct. 1, 1976)

-8-



Fairly v. Patterson, 493 F.2d at 606 n.ll (emphasis added).
The incorporation of these non-statutory costs as 

part of "attorneys' fees" is particularly noteworthy in 
light of the confusion in the cases regarding the effect of 
28 U.S.C. §§ 1920 & 1821 on the recoverability of expert 
witness fees. Compare Copper Liquor, 684 F.2d at 1104; 
Northcross v. Board of Ed., 611 F.2d 624, 642 (6th Cir.
1979) (recoverable under § 1920); Keyes v. School District 
No. 1, Denver Colo., 439 F.Supp. 393, 417-18 (D. Colo. 1977) 
(same); with Neely v. General Electric, Civ. Act. No. C80- 
44N (N.D. Ga. 6/29/81) (not recoverable under § 1920); with 
Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) (en banc) 
(recoverable under § 1988); O'Bryan v. Saginaw, Mich., No. 
79-1297 (6th Cir. Jan. 6, 1981) (same); McPherson v. School 
District 186, 465 F.Supp. 749, 763 (S.D. 111. 1978) (same); 
with Loewen v. Turnipseed, 505 F.Supp. 512, 519 (N.D. Miss. 
1981) (recoverable, but theory under which awarded is unclear). 
It is that confusion which the appellant seeks to exploit in 
this case.

In 1976 when Congress debated and passed the 
Act, however, there was little doubt that expert witness 
fees had been recoverable under the "private attorney general 
cases— ^ and were recoverable under the attorneys' fees

7/ Fairly v. Patterson, 493 F.2d at 606 n. 11 (costs of 
preparing reapportionment plan in voting rights case); Welsch 
v. Likins, 67 F.R.D. 589 (D. Minn.) aff'd, 525 F.2d 987 (8th 
Cir. 1975) (§ 1983 suit on rights of mentally retarded);
Sabala v. Western Gillette, Inc., 371 F. Supp. 385, 394

-9-



provision of Title VII on which the Act was modeled,— ' and 
that this had nothing to do with costs under §§ 1821 and 
1920.

Thus, there can be little doubt that Congress acted 
deliberately and intentionally to incorporate an existing 
body of case law that clearly allowed for the inclusion of

8 /

7/ continued
(S.D. Tex. 1974), aff'd in part, rev'd in part, 516 F.2d n ri /c;+-h cir 1975^. rev'd on other grounds, 431 U.S. 951

Title VII and "Private atto Y 9  Cal. 1971); Bradley
Unida v. Volpe, 337 F. Supp. , e-> F t> n 28 (E.D. Va.
V. School Bd. of City of ^ ch ° v F»jittenberq, 330 F.l < m )  U choo desegregaT,oy ,.^ ?1V;aWitt ^  y _
Supp. 707, 722 IN.u. uniu m j  W.D. Va. April
&  V McMann, 3 2 1 ^  ^ 1 2 ^
(N.D.N.Y. 1970) (prison case: aff'd) 409 U.ST~Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. ) , _ af t r f^  .n 942 (1972) Taward of attorneys and expert witness voting rights case under "bad faith" exception).
8/ EEOC v. Datapoint, 412 F. Supp. 406, 409 (W *D*1976), vacated and rem'd on other grounds, 570 F.2d 12b4 
(5th Cir. 1978); Rios v. Enterprise Steamfitters Loc^l, 400 
F.Supp. 993, 997 (S.D.N.Y. 1975), aff'd, 542 F.2d 579 (2d 
Cir. 1976 ); Davis v. County of Los Angeles, 8 E.P.D. 1f9444 
(C.D. Cal. 1974); Sabala v. Western Gillette, Inc., 371 F.
Supp. 385, 394 (S.D. Tex. 1974), aff'd in part, rev d in 
part on other grounds, 516 F.2d 1251 (5th Cir. 1975), rev _d 
on other grounds, 431 U.S. 951 (1977). See also Sledge v̂ .
J.P. Stevens, T2 E.P.D. 1(11,047 (E.D.N.C. 1976) (prospective f 
award of fees for plaintiffs' expert necessitated by defendants 
computerized records). 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, 8 
E.P.D. at 5048 ("These charges were not challenged by defendants 
and*are valid"). In innumerable cases, the lower courts 
awarded such fees without discussion. See, e.g., Albemarle 
Paper Co. v. Moody, 444 U.S. 405 (1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971); Robinson v. Lorillard Core...,
444 F.2d 791 (4th Cir. 1971). Research reveals no reported 
pre-1976 Title VII cases in which expert witness fees were 
discussed and disallowed.

-10-



expert witnesses fees end all manner of reasonable out of —
9 /pocket expenses as part of the legal fees.—

B. Congress Included Expert Witness Fees
in the Fee Shifting Regime of the Civil 
Rights Statutes Because It Was Concerned 
with the Disequilibrium in Litigating 
Strength in these Cases

Congress's adoption of the pre-existing case law 
including expert witness fees as part of attorney's fees was 
in response to the evidence put before it at the hearings. 
See Holy Trinity Church v. United States, 143 U.S. 457, 463 
(1892). The testimony before the subcommittees in both 
houses was that one of the chief economic barriers to the 
private enforcement of civil rights was the significant 
disparity between the resources of the parties. The greater 
resources that were available to civil rights defendants, 
moreover, were (and are) being provided by tax and other 
public dollars. In enacting fee shifting, Congress acted to 
equalize the legal resources.

9/ 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 (daily ed., Oct. 1, 1976). As phrased 
by a supporter, Congressman Seiberling: "All we are trying
to do in this bill is __ to get compensation for their
legal expenses in meritorious cases." Id. at H 12155.

-11-



The testimony and evidence before the subcom­
mittees in both houses established an imbalance in the 
American system of justice. The first three witnesses 
before the Senate subcommittee raised the problem of expert 
witness fees. One of these was Dennis M. Flannery, one of 
plaintiffs' counsel in Alyeska. He testified regarding the
unique effects economics have on the public interest lawyer.

When a big case such as this comes into a 
private law firm, the way in which the 
firm can organize is the way really that 
the courts are designed to handle these 
cases. Lawyers or teams of lawyers are 
formed to analyze the problem, expert 
witnesses are contacted, fee arrangements 
are made so that the expert witness can 
give his full attention to the case during 
the time he is needed, research is under­
taken in a variety of areas (even areas that 
are tangential to the lawsuit, just to 
make sure you have covered every aspect)....

Now, when a public interest firm is 
involved, or when a group of citizens or 
even an individual citizen decides to take 
on a big case and to present the views of 
the other side in a big case, the contrast 
is really marked.... First of all, there 
is simply no money up front.... [T]here 
is very little money for such essential 
things as, for example, expert witnesses.
And so what I found ... was that I did 
not have any money at all to pay any 
expert anything. And so basically, what 
we had to do was to write or telephone 
around the country with our hat in our 
hands asking, university people to give us 
assistance and to take some time off from 
their heavy class workload and give us 
whatever assistance they could. But at 
no time could we actually say to an expert,

-12-



for example, give us three weeks, we want 
you down here in Washington, we want to go 
over this technical material with you, we 
want you to be prepared to be a witness at 
trial, if we go to trial, and we realize 
this takes a lot of time and we will pay 
you a fee. This is precisely what the other 
side was doing. But, we could not do that....

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,
93rd Cong., 1st Sess. at 832-34 (1973) (Statement of Dennis
M. Flannery). Senator Tunney, the chairman of the subcommittee
and later the sponsor of S.2278, was clearly impressed by
the scope of this problem, referring to it several times in
the course of the hearings. See id. at 1108, 1127, 1128.

This record was repeated in the House. See
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., 1st Sess. 159 (1975). (Statement of Peter H. Schuck,

10/ At one point, Senator Tunney referred to Mr. Flannery's 
testimony

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 
.... I must say that I have not thought about 
the matter nearly as deeply as any of the 
witnesses that have testified this morning, I 
suppose that was the purpose of the hearings, 
to benefit from expert testimony.

Senate Hearings, supra, at 1108.
As indicated in the text, other witnesses before the 

subcommitte raised the problem of expert witness fees. J. 
Anthony Kline, the lawyer in La Raza Unida v. Volpe, 337

-13-



Consumers Union Inc.); Id. at 89-90, 100 (Statement of 
Armand Derfner and Mary Frances Derfner, Lawyers' Comm, for 
Civil Rights). One witness went so far as to state that if 
expert witness fees were not covered, "the very point of the 
bills may be defeated." Id. at 136 (Statement of John M. 
Ferren).

This problem was explained at length in the
testimony before both houses. In the Senate hearings, one
witness characterized public interest litigation as a battle

between David and Goliath. In this battle, 
however, Goliath holds the slingshot as well 
as the weight advantage....

It Is important, I believe, to em­
phasize here, that neither corporations 
nor the law firms that represent their 
interests need be the least bit defensive 
about leaving no stone unturned in put­
ting forward their best possible case.
Indeed, the adversary system, not to 
mention the canons of legal ethics, 
demands no less. The problem is that 
under present circumstances the cor­
poration's citizen interest adversaries 
cannot devote anything approaching a com­
parable expenditure of resources to the 
development of their side of the case.

Senate Hearings, supra, at 841. The ABA testified before
the House subcommittee about

10/ continued
F.Supp. 221 (N.D. Cal. 1971), one of the earliest "private 
attorney general" cases, described this imbalance in similar 
terms. Senate Hearings, supra, at 799. Another witness 
described the expenditure of $20,000 in expert witness^fees 
which was recouped under the "private attorney general 
theory as part of fees and costs in Pyramid Lake Pauite 
Tribe v. Morton, 360 F. Supp. 669 (D.D.C. 1973). Senate 
Hearings, supra, at 812, 816.

-14-



the need of the public to have both 
points of view properly represented.
When the Government is involved, it is 
going to give a good run to its point 
of view. But too many cases have been 
decided by default, the failure to have a 
good presentation on the part of the other 
side.

House Hearings, supra, at 79 (Statement of Charles A. Hobbs, 
Member, Special Committee on Public Interest Practice of the 
American Bar Association). Relative to the civil rights 
plaintiff, the

opposition frequently has virtually unlimited resources, often including 
expert outside counsel. A federal, 
state, or even local agency defendant can 
draw upon the public treasury, and call 
upon full-time research assistants, the 
Federal Bureau of Investigation or state 
or local law enforcement investigators, 
and the myriad of support services 
which exist for the use of those agencies. 
Corporate litigants likewise often have 
vast resources, subsidized by tax deduc­
tions, with which to resist public 
interest claims. The result is that, 
especially in the larger public interest case, 
the sides become extremely unequal. This fact 
subverts the American system of justice, 
where two equal sides are expected to face one another in a vigorous adversary 
procedure....

Id. at 89-90 (Statement of Armand and Mary Frances Derfner, 
Lawyers' Committee for Civil Rights Under Law). Congressman 
Danielson of California, a member of the subcommittee, put 
it graphically:

-15-



[T]here ought to be a balancing of the 
power in our court. It seems to be fund­
amentally unfair that one party is the 
Government with also unlimited resources, 
funds, personnel, availability of records, 
availability of investigating personnel, 
and whatnot; on the other hand you have 
the private citizen. What was that thing 
twisting slowly in the wind? He is out 
there all alone anyway and it is chilly 
out there financially.

Id. at 61.
Compounding this problem is the fact that, in 

addition to their already greater resources, civil rights 
defendants are able to underwrite these extensive defenses 
with what is in fact public money. This is obvious in the 
case of governmental defendants, who are paying litigation 
costs out of tax money —  including the taxes paid by plain­
tiffs and their families. In the case of corporations,

public tax dollars are in a very real sense being used to support that litiga­
tion. The corporation's litigation 
expenses, its attorneys fees, it court 
costs and all costs connected with the 
litigation are deductible from the cor­
poration's income tax. And that is win 
or lose, frivolous or nonfrivolous, 
meritorious or meritorious. So you really 
have a built-in beginning that one side 
that is litigating the kind of issues I 
am talking about is already being sup­
ported by public funds.

-16-



Id. at 835-36 (Flannery Testimony). Accord id. at 850 (Testi
mony of Joseph N. Onek, Director, Center for Law and Social
Policy);— ^ id. at 861 (Derfner Statement); House Hearings,

13/supra, at 161 (Onek Statement).
It was this precise testimony that Congress

14/heeded when it considered and passed § 1988.

12/ Even fee shifting does not totally redress this imbalance, 
as he noted:

Furthermore, the Government exer­
cises no control over the expenses it 
will subsidize. If General Motors 
chooses to pay its lawyers $200 an hour 
the Government still pays one-half. If 
General Motors pays it lawyers to eat in 
the best restaurants and stay in the 
finest hotels, that is okay —  Uncle Sam 
is going to pay half of it, no questions 
asked. This is totally different from 
any kind of fee award system we might 
have. Under an attorneys' fee statute 
the courts would exercise control over 
attorneys' fees and other costs of liti- . 
gation.

Id.
13/ Corporate civil rights violators can also pass on the 
costs of their legal defense to the consumer. Senate Hearings, 
supra, at 861 (Derfner Statement). See also House Hearings, 
supra at 861 (Testimony of Reuben B. Robertson, III, Public 
Citizens Litigation Group).
14/ Representatives of the Lawyers Committee on

Civil Rights Under Law, the Council for Public 
Interest Law, the American Bar Association Special 
Committee on Public Interest Practice, and witnesses 
practicing in the field testified to the devas­
tating impact of the [Alyeska] case on litiga­
tion in the civil rights area.... The Committee 
also received evidence that private lawyers 
were refusing to take certain types of civil 
rights cases because the civil rights bar,

-17-



It specifically implemented this policy —  to 
equalize the resources of the parties —  when it adopted a 
different standard for fees to a prevailing defendant. See 
generally Christiansburg, supra; Hughes v. Rowe, 449 U.S. 5 
(1980). Noting that defendants are usually governments, 
which "have substantial resources available to them through 
funds in the common treasury," H.R. Rep., supra, at 7, Congress 
was concerned that: "Applying the same standard of recovery 
to such defendants would further widen the gap ... and would 
exacerbate the inequality of litigating strength." Id.

Senator Tunney, the author-^-^ and initial sponsor 
of the legislation, noted in his final statement before the 
vote that resulted in passage that the bill "clearly intends 
to ... encourage the bringing of actions...." 122 Cong. Rec.
S.’ 17051 (daily ed. Sept. 29, 1976). "Unless effective ways 
are found to provide equal legal resources, the Nation must 
expect its most basic and fundamental laws to be objectively 
repealed by the economic fact[s] of life...." Id.

14/ continued
already short of resources, could not afford 
to do so. Because of the compelling need 
demonstrated by the testimony, the Committee 
decided to report a bill allowing fees to pre­
vailing parties in certain civil rights cases.

H.R. Rep., supra, at 2-3. The Senate report acknowledged 
that this testimony "generally confirmed the record presented" 
at its hearings in 1973. S. Rep., supra, at 2.
15/ See 122 Cong. Rec. S 16449 (daily ed. Sept. 22, 1976) .
16/ See 122 Cong. Rec. S 17051 (daily ed. Sept. 29, 1976) .

-18-



In order to provide adversaries that are roughly 
equal in preparation and roughly equal in skill, Congress 
made compensation contingent on "prevailing party" status.
But it protected losing plaintiffs from fee assessments 
absent bad faith, because it was concerned with "encouraging 
plaintiffs," as was already true of their adversaries, "to 
seek the broadest relief they feel, in good faith, that they 
are entitled to." See Palmer v. Rogers, 10 E.P.D. 1f 10,499, 
at 6130 (D.D.C. 1975). If the cost of losing a good faith 
claim were the other side's fees, or the other side's often 
substantial (as here) expert witness fees, few civil rights 
claimants could run the risk of suit. That would have-exac­
erbated the already unequal litigating strength of the 
parties. Congress foresaw that problem and, by imposing the 
Christiansburg standard, acted "[t]o avoid the potential 
'chilling effect.'" H.R. Rep., supra, at 7.

C. The Standards Required by the Civil Rights Attorneys' Fees Statutes Mult 
Control

As we noted at the opening, appellant's argument 
consists largely of a semantic ploy, characterizing expert 
witness fees as a "cost" and not a "fee." This, of course, 
is fundamentally unhelpful; under §§ 1988 and 2000e-5(k), 
awards are of "a reasonable attorney's fee as part of costs." 
Id. Thus, all "fees" in civil rights cases are "costs," but 
they are governed by the standards of § 1988 and not §§ 1920 
and 1821.

-19-



Even were the court to play appellant's semantic 
ring-around—a—rosy, it would have to reject appellant s 
position. For, echoing this court's decision in Fairly,
Congress expressed its view that expenses which are non— 
statutory costs, such as expert witness fees, are to be 
included "in the phrase 'attorney's fee.'" 122 Cong. Rec. H 
12160 (Rep. Drinan).

Of course, the real issue is what Congress in­
tended in the civil rights fee acts. In Jones v. Diamond, 
this court sitting en banc correctly determined that Congress 
included expert witness fees in the § 1988 regime, "manifest[ing] 
an intention that a different rule be applied in civil rights 
litigation" than in other cases. 636 F.2d at 1382. Thus, 
whatever standards apply under F.R.C.P. 54(c), §§ 1920 and 
1821 —  including prior approval by the trial judge or findings 
that the expert testimony was "necessary or helpful ... or 
indispensable," see Copper Liquor, 684 F.2d at 1100 
they relate not at all to the standards and policies that 
control decision under § 1988 and Title VII. In these cases, 
Congress was concerned with encouraging good faith civil 
rights litigants to bring suit. Congress was concerned with 
equalizing the legal resources available to the parties. 
Accordingly, it both adopted the prior case law including 
expert witness fees as recompensable expenses and imposed a 
stringent standard before these expensive items could be 
shifted to the unsuccessful plaintiff. The result urged by

-20-



the appellant must be rejected because it would discourage 
good faith civil rights litigation and further increase the 
disequilibrium of the parties in direct contravention of 
congessional intent.

CONCLUSION
For the foregoing reasons, the judgment of the district 

court should be affirmed.
Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
STEVEN L. WINTER99 Hudson Street

New York, New York 10013
(212) 219-1900

Counsel for the NAACP Legal 
Defense & Educational 
Fund, Inc. as Amicus Curiae

-21-



CERTIFICATE OF SERVICE

I hereby certify that I served copies of the foregoing
brief 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 6030
Little Rock, Ark.. 72216
Jeffery A. Walker 
Fuselier, Ott & McKee, P.A.
2100 Deposit Guaranty Plaza 
Jackson, Mississippi 39201

This 18th day of November, 1985.

// (JJUtfc k„. cm  ______________„Counsel for Amicus Curiae,. ..1;//



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