Title 28 U.S.C. § 1920 provides that a federal court "may tax"
specified items, including witness fees, as costs against the
losing party, and § 1821(b) states that a witness "shall be paid" a
fee of $30 per day for court attendance. Federal Rule of Civil
Procedure 54(d) provides in part:
"Except when express provision therefor is made either in a
statute of the United States or in these rules, costs shall be
allowed as of course to the prevailing party unless the court
otherwise directs."
In No. 86-322, petitioners prevailed as the defendants in an
antitrust action filed by respondent, and the Federal District
Court awarded, as part of petitioners' costs, an amount for expert
witness fees in excess of § 1821(b)'s $30-per-day limit, holding
that Rule 54(d) granted it discretion to exceed such limit. The
Court of Appeals reversed, concluding that § 1821(b)'s limit
controlled. In No. 86-328, petitioner prevailed in an action
against it by respondents for alleged violations of federal civil
rights statutes. The Federal District Court refused to order
respondents to reimburse petitioner for its expert witness fees to
the extent they exceeded the $30-per-day limit, and the Court of
Appeals affirmed.
Held: When a prevailing party seeks reimbursement for
fees paid to its expert witnesses, a federal court is bound by the
limits of § 1821(b), absent contract or explicit statutory
authority to the contrary. There is no merit to petitioners'
contentions that, since § 1920 lists expenses which a court "may"
tax as costs, it only authorizes taxation of such items, and does
not preclude taxation for other items or amounts in excess of the §
1821(b) fee; and that the discretion granted by Rule 54(d) is a
separate power to tax expenses as costs. If Rule 54(d) were so
construed, § 1920 would serve no role whatsoever. The better view
is that § 1920 defines the term "costs" as used in Rule 54(d) and
enumerates expenses that a federal court may tax as costs under the
discretionary authority found in Rule 54(d). Section 1920 is
phrased permissibly because Rule 54(d) generally grants a federal
court discretion to refuse to tax costs in favor of
Page 482 U. S. 438
the prevailing party. Such discretion is not a power to evade
the specific congressional command limiting the amount of witness
fees. Rather, it is solely a power to decline to tax, as costs, the
items enumerated in § 1920. The dictum to the contrary in
Farmer v. Arabian American Oil Co., 379 U.
S. 227, is disapproved.
Henkel v. Chicago, S. P., M.
& O. R. Co., 284 U. S. 444 --
which held that federal courts had no authority to award expert
witness fees in excess of the 1853 statutory limit -- controls
here, even though it was decided before the adoption of the Federal
Rules of Civil Procedure and the merger of law and equity in the
federal courts.
Cf. Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U. S. 240. Pp.
482 U. S.
441-445.
790 F.2d 1193, affirmed and remanded; and 790 F.2d 1174,
affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, STEVENS, O'CONNOR, and SCALIA, JJ.,
joined. BLACKMUN, J. filed a concurring opinion,
post p.
482 U. S. 445.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post p.
482 U. S.
445.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In these two consolidated cases, we address the power of federal
courts to require a losing party to pay the compensation of the
winner's expert witnesses. In No. 86-322, respondent J. T. Gibbons,
Inc., sued petitioner Crawford Fitting Co. and other petitioners
for alleged violations of the
Page 482 U. S. 439
antitrust laws. The District Court directed a verdict in favor
of petitioners.
565 F.
Supp. 167 (ED La.1981),
aff'd, 704 F.2d 787 (CA5
1983). Petitioners then filed a bill of costs with the Clerk of
that court, seeking reimbursement from respondent for over $220,000
in litigation expenses, including substantial expert witness fees.
The District Court held that Federal Rule of Civil Procedure 54(d)
granted it discretion to exceed the $30-per-day witness fee limit
found in 28 U.S.C. § 1821(b). It accordingly awarded petitioners
$86,480.70 for their expert witnesses. 102 F.R.D. 73 (ED La.1984).
En banc, the Court of Appeals for the Fifth Circuit reversed,
holding that the limit of § 1821(b) controlled. 790 F.2d 1193
(1986). In No. 86-328, respondent International Woodworkers of
America (IWA) sued petitioner Champion International, alleging
racial discrimination in violation of Title VII of the Civil Rights
Act of 1964 and 42 U.S.C. § 1981. After a trial on the merits, the
District Court dismissed all of respondent's claims. Petitioner
thereafter filed a bill of costs, including $11,807 in expert
witness fees. The District Court declined to order respondent to
reimburse petitioner for these fees to the extent they exceeded the
$30-per-day limit. The en banc Court of Appeals for the Fifth
Circuit affirmed, finding the limit set forth in § 1821(b)
dispositive. 790 F.2d 1174 (1986). We agree, and hold that, when a
prevailing party seeks reimbursement for fees paid to its own
expert witnesses, a federal court is bound by the limit of §
1821(b), absent contract or explicit statutory authority to the
contrary.
In 1793, Congress enacted a general provision linking some
taxable costs in most cases in federal courts to the practice of
the courts of the State in which the federal court sat. Act of Mar.
1, 1793, § 4, 1 Stat. 333. This provision expired in 1799.
Apparently, from 1799 until 1853, federal courts continued to refer
to state rules governing taxable costs.
See Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.
S. 240,
421 U. S. 250
(1975). By 1853, there was a "great diversity
Page 482 U. S. 440
in practice among the courts" and "losing litigants were being
unfairly saddled with exorbitant fees."
Id. at
421 U. S. 251.
Accordingly, Congress returned to the issue and comprehensively
regulated fees and the taxation of fees as costs in the federal
courts. The resulting 1853 Fee Act "was a far-reaching Act
specifying in detail the nature and amount of the taxable items of
cost in the federal courts." 421 U.S. at
421 U. S.
251-252.
It provided, in part,
"That in lieu of the compensation now allowed by law to
attorneys, solicitors, . . . and . . . witnesses . . . in the
several States, the following and no other compensation shall be
taxed and allowed."
Act of Feb. 26, 1853, 10 Stat. 161. The rate for witnesses was
set at $1.50 per day. 10 Stat. 167. The sweeping reforms of the
1853 Act have been carried forward to today, "without any apparent
intent to change the controlling rules."
Alyeska Pipeline,
supra, at
421 U. S. 255.
Title 28 U.S.C. § 1920 now embodies Congress' considered choice as
to the kinds of expenses that a federal court may tax as costs
against the losing party:
"A judge or clerk of any court of the United States may tax as
costs the following:"
"(1) Fees of the clerk and marshal;"
"(2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the
case;"
"(3) Fees and disbursements for printing and witnesses;"
"(4) Fees for exemplification and copies of papers necessarily
obtained for use in the case;"
"(5) Docket fees under section 1923 of this title;"
"(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title."
The witness fee specified in § 1920(3) is defined in 28 U.S.C. §
1821:
Page 482 U. S. 441
"(a)(1) Except as otherwise provided by law, a witness in
attendance at any court of the United States . . . shall be paid
the fees and allowances provided by this section."
"(b) A witness shall be paid an attendance fee of $30 per day
for each day's attendance. A witness shall also be paid the
attendance fee for the time necessarily occupied in going to and
returning from the place of attendance at the beginning and end of
such attendance or at any time during such attendance."
Federal Rule of Civil Procedure 54(d), in turn, provides in
part:
"Except when express provision therefor is made either in a
statute of the United States or in these rules, costs shall be
allowed as of course to the prevailing party unless the court
otherwise directs."
The logical conclusion from the language and interrelation of
these provisions is that § 1821 specifies the amount of the fee
that must be tendered to a witness, § 1920 provides that the fee
may be taxed as a cost, and Rule 54(d) provides that the cost shall
be taxed against the losing party unless the court otherwise
directs.
Petitioners argue that, since § 1920 lists which expenses a
court "may" tax as costs, that section only authorizes taxation of
certain items. In their view, § 1920 does not preclude taxation of
costs above and beyond the items listed, and more particularly,
amounts in excess of the § 1821(b) fee. Thus, the discretion
granted by Rule 54(d) is a separate source of power to tax as costs
expenses not enumerated in § 1920. We think, however, that no
reasonable reading of these provisions together can lead to this
conclusion, for petitioners' view renders § 1920 superfluous. If
Rule 54(d) grants courts discretion to tax whatever costs may seem
appropriate, then § 1920, which enumerates the costs that may be
taxed, serves no role whatsoever. We think the better view is that
§ 1920 defines the term "costs" as used in Rule 54(d). Section 1920
enumerates expenses that a federal court may tax as a cost under
the discretionary authority
Page 482 U. S. 442
found in Rule 54(d). It is phrased permissively because Rule
54(d) generally grants a federal court discretion to refuse to tax
costs in favor of the prevailing party. One of the items enumerated
in § 1920 is the witness fee, set by § 1821(b) at $30 per day.
We cannot accept an interpretation of Rule 54(d) that would
render any of these specific statutory provisions entirely without
meaning. Repeals by implication are not favored, and petitioners
proffer the ultimate in implication, for Rule 54(d) and §§ 1920 and
1821 are not even inconsistent. We think that it is clear that, in
§§ 1920 and 1821, Congress comprehensively addressed the taxation
of fees for litigants' witnesses. This conclusion is all the more
compelling when we consider that § 1920(6) allows the taxation, as
a cost, of the compensation of court-appointed expert witnesses.
There is no provision that sets a limit on the compensation for
court-appointed expert witnesses in the way that § 1821(b) sets a
limit for litigants' witnesses. It is therefore clear that, when
Congress meant to set a limit on fees, it knew how to do so. We
think that the inescapable effect of these sections in combination
is that a federal court may tax expert witness fees in excess of
the $30-per-day limit set out in § 1821(b) only when the witness is
court-appointed. The discretion granted by Rule 54(d) is not a
power to evade this specific congressional command. Rather, it is
solely a power to decline to tax, as costs, the items enumerated in
§ 1920.
The logic of this conclusion notwithstanding, petitioners place
heavy weight on a single sentence found in our opinion in
Farmer v. Arabian American Oil Co., 379 U.
S. 227 (1964). In that case, this Court held that the
District Court had not abused its discretion in refusing to tax
against the losing plaintiff the travel expenses of witnesses for
the defendant. In the course of so ruling, the Court stated:
"[T]he discretion given district judges [by Rule 54(d)] to tax
costs should be sparingly exercised with reference to
Page 482 U. S. 443
expenses not specifically allowed by statute."
Id. at
379 U. S. 235.
Applying this language to the present case, petitioners argue that
courts therefore have discretion to tax as costs expenses incurred
beyond those specified by Congress as fees in § 1821, and made
taxable by § 1920.
The sentence relied upon is classic
obiter: something
mentioned in passing, which is not in any way necessary to the
decision of the issue before the Court. We think the dictum is
inconsistent with the foregoing analysis, and we disapprove it.
The argument petitioners present today was squarely rejected in
Henkel v. Chicago, S. P., M. & O. R. Co., 284 U.
S. 444 (1932). In that case, the Court held that federal
courts have no authority to award expert witness fees in excess of
the statutory limit set by Congress in the Fee Act of 1853. The
Court's reasoning was straightforward:
"Specific provision as to the amounts payable and taxable as
witness fees was made by Congress as early as the Act of February
28, 1799. . . . Under these provisions, additional amounts paid as
compensation, or fees, to expert witnesses cannot be allowed or
taxed as costs in cases in the federal courts."
"
* * * *"
". . . Congress has dealt with the subject comprehensively, and
has made no exception of the fees of expert witnesses. Its
legislation must be deemed controlling. . . . "
Id. at
284 U. S.
446-447.
Petitioners contend that, because
Henkel was decided
before the merger of law and equity in the federal courts, it is no
longer good law. Petitioners' argument proceeds along the following
lines: Prior to the adoption of the Federal Rules of Civil
Procedure, federal courts could sit in law or in equity. In
petitioners' view, courts sitting in equity had broad discretion to
award fees not specified by statute.
Henkel, decided
Page 482 U. S. 444
under this regime, held that courts at law had no power to
exceed the limits set by statute. Now that the federal courts'
legal and equitable powers are combined, petitioners conclude that
Henkel cannot control the scope of a federal court's
powers to exceed the limits set by statute.
We cannot agree.
Henkel rested on statutory
interpretation. Whatever the effect of the merger of law and equity
in federal courts, it did not repeal any part of the Fee Act. Title
28 U.S.C. §§ 1920 and 1821, today's counterparts to the provisions
of the Fee Act at issue in
Henkel, are still law and, when
not overridden by contract or explicit statutory authority, they
control a federal court's power to hold a losing party responsible
for the opponent's witness fees.
Our conclusion conforms to our prior interpretations of the 1853
Fee Act. In
Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U. S. 240
(1975), we considered the general role of the Act in federal
courts. The Act "specified in detail the nature and amount of the
taxable items of cost in the federal courts."
Id. at
421 U. S. 252.
The comprehensive scope of the Act and the particularity with which
it was drafted demonstrated to us that Congress meant to impose
rigid controls on cost-shifting in federal courts. Thus, we
rejected an argument similar to the one posited by petitioners
today:
"Nor has [Congress] extended any roving authority to the
Judiciary to allow counsel fees as costs or otherwise whenever the
courts might deem them warranted."
Id. at
421 U. S.
260.
Although Congress responded to our decision in
Alyeska
by broadening the availability of attorney's fees in the federal
courts,
see the Civil Rights Attorney's Fees Awards Act of
1976, 90 Stat. 2641, 42 U.S.C. § 1988, it has not otherwise
"retracted, repealed, or modified the limitations on taxable fees
contained in the 1853 statute and its successors." 421 U.S. at
421 U. S. 260.
Thus, we are once again asked to hold that a specific congressional
enactment on the shifting of litigation costs is of no moment. We
think that, as in Alyeska, Congress has made its intent plain in
its detailed treatment of
Page 482 U. S. 445
witness fees. We will not lightly infer that Congress has
repealed §§ 1920 and 1821, either through Rule 54(d) or any other
provision not referring explicitly to witness fees. As always,
"'[w]here there is no clear intention otherwise, a specific
statute will not be controlled or nullified by a general one,
regardless of the priority of enactment.'"
Radzanower v. Touche Ross & Co., 426 U.
S. 148,
426 U. S. 153
(1976), quoting
Morton v. Mancari, 417 U.
S. 535,
417 U. S.
550-551 (1974) (emphasis added). Any argument that a
federal court is empowered to exceed the limitations explicitly set
out in §§ 1920 and 1821 without plain evidence of congressional
intent to supersede those sections ignores our longstanding
practice of construing statutes
in pari materia. See
United States v. United Continental Tuna Corp., 425 U.
S. 164,
425 U. S.
168-169 (1976);
Train v. Colorado Public Interest
Research Group, 426 U. S. 1,
426 U. S. 24
(1976).
We hold that, absent explicit statutory or contractual
authorization for the taxation of the expenses of a litigant's
witness as costs, federal courts are bound by the limitations set
out in 28 U.S.C. § 1821 and § 1920. The judgments of the Court of
Appeals are affirmed, and No. 86-322 is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN, concurring.
I join the Court's opinion and its judgment, but upon the
understanding that it does not reach the question whether, under 42
U.S.C. § 1988, a district court may award fees for an expert
witness.
See post at
482 U. S. 446,
n. 1 (MARSHALL, J., dissenting).
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
In these two cases, prevailing defendants sought reimbursement
for expert witness fees pursuant to Federal Rule of Civil Procedure
54(d). The Rule provides that,
"[e]xcept
Page 482 U. S. 446
when express provision therefor is made either in a statute of
the United States or in these rules, costs shall be allowed as of
course to the prevailing party unless the court otherwise
directs."
In No. 86-322, the District Court found that some of the expert
testimony was "indispensable to the determination of [the] issues
in the case" and taxed against the plaintiff the portion of witness
fees attributable to that testimony. 102 F.R.D. 73, 86 (ED
La.1984). In No. 86-328, even though the District Court found the
defendant's expert was "helpful and perhaps necessary to its case,"
the court declined to award fees in excess of the amounts specified
in 28 U.S.C. § 1821. Civ. Action No. WC 78-33-WK-P (ND Miss., Aug.
24, 1983), p. 9.
The Court now informs us that the District Courts had no power
to award costs not expressly authorized by statute. [
Footnote 1] In its haste to extinguish all
discretion to award these nonstatutory costs, however, the Court
has rendered Rule 54(d) a nullity.
Before today, it was generally recognized that the "unless the
court otherwise directs" language in Rule 54(d) was intended
Page 482 U. S. 447
as a grant of discretion to the district courts.
See,
e.g., 10 C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure § 2665, p. 171 (2d ed.1983). Except where expressly
prohibited by statute from doing so, the Rule "vests in the
district court a sound discretion over the allowance, disallowance,
or apportionment of costs in all civil actions." 6 J. Moore, W.
Toeggart, & J. Wicker, Moore's Federal Practice � 64.70[5], p.
54-331 (2d ed.1987). This is because Rule 54(d) adopts the practice
formerly followed in equity,
see 6 Moore � 54,70[3], p.
54-321; 10 Wright § 2668, pp.197-200, where courts possessed the
power to award costs not expressly provided by statute, as "part of
the original authority of the chancellor to do equity in a
particular situation."
Sprague v. Ticonic National Bank,
307 U. S. 161,
307 U. S. 166
(1939) (footnote omitted).
See generally Newton v. Consolidated
Gas Co., 265 U. S. 78,
265 U. S. 83
(1924);
Ex parte Peterson, 253 U.
S. 300,
253 U. S.
317-318 (1920).
Since the adoption of the Federal Rules, this Court has
addressed the scope of the district courts' power to tax costs on
only one occasion. In
Farmer v. Arabian American Oil Co.,
379 U. S. 227
(1964), the Court held that a District Court acted within its
discretion in refusing to tax a witness' expenses for travel in
excess of 100 miles as costs against an unsuccessful plaintiff.
[
Footnote 2] It expressly
rejected the argument that a district court lacks the power to
award these expenses as costs. The Court noted:
"While this Rule could be far more definite as to what 'costs
shall be allowed,' the words 'unless the court otherwise directs'
quite plainly vest some power in the court to allow some
'costs.'"
Id. at
379 U. S.
232.
Page 482 U. S. 448
In a sentence labeled dictum by the majority, the Court sought
to provide guidance to the lower courts by explaining that this
discretion "should be sparingly exercised with reference to
expenses not specifically allowed by statute."
Id. at
379 U. S. 235.
As Judge Rubin observed below, "[t]he Court's conclusion reveals
its premise: Rule 54(d) gives the district court discretion to
award costs not enumerated in § 1920." 790 F.2d 1174, 1190 (CA5
1986) (en banc) (concurring and dissenting). This is certainly how
Justice Harlan, author of the dissent in
Farmer, viewed
the case.
See 379 U.S. at
379 U. S. 240
("the foundation of today's decision" is the "scope of the
discretion of a district judge acting within his powers").
Rather than following
Farmer, as it should, the
majority relies on
Henkel v. Chicago, S. P., M. & O. R.
Co., 284 U. S. 444
(1932). But
Henkel provides no support for a restrictive
interpretation of a district court's power to award fees under Rule
54(d). The opinion in
Henkel addressed the narrow question
whether district courts had authority to tax expert witness fees as
costs in an action at law. At the time, courts of law lacked the
power to award costs not expressly granted by statute,
see Ex
parte Peterson, supra, at
253 U. S.
317-318, although those sitting in equity could award
such costs, as justice required, without regard to the fee
statutes. Approaching the issue purely as a matter of statutory
construction, the Court concluded that expert witness fees were
included in and limited to the amounts prescribed by the
predecessors to 28 U.S.C. §§ 1920 and 1821. 284 U.S. at
284 U. S.
446-447. The majority acknowledges, as it must, that
Henkel was decided before the Federal Rules of Civil
Procedure effected a merger of law and equity. What the majority
ignores, however, is the vital significance of that fact. As noted
above, Rule 54(d) adopts the practice in equity, thereby giving
federal courts in all actions the broad discretion previously
afforded only to courts exercising equitable powers.
Page 482 U. S. 449
The majority's assertion that discretion can be exercised only
"to refuse to tax costs in favor of the prevailing party,"
ante at
482 U. S. 442,
is plainly inconsistent with the equitable principles on which Rule
54(d) is based. Moreover, it reinforces the fact that the Rule is
now entirely superfluous. Because the language of § 1920 is
permissive -- "[a] judge or clerk of any court of the United States
may tax as costs the following" -- courts already have
discretion to disallow the costs listed therein. [
Footnote 3]
As the Court noted in
Farmer, Rule 54(d) does not
define "costs." 379 U.S. at
379 U. S. 232.
Seizing on this "omission," the Court now declares that § 1920 sets
forth the universe of "costs" taxable under the Rule.
Ante
at
482 U. S.
441-442. Any contrary interpretation, it claims,
"renders § 1920 superfluous."
Ante at
482 U. S. 441.
This misreads § 1920. That section does not purport to be
exclusive. It does not direct that "the following costs
and no
others may be taxed." [
Footnote 4] By contrast, the predecessor to § 1920, the
1853 Fee Act, provided that "the following
and no other
compensation shall be taxed and allowed," Act of Feb. 26, 1853, 10
Stat. 161 (emphasis added); this language was omitted from the 1948
revision. Despite this seemingly significant deletion, the majority
contends that "[t]he sweeping reforms of the 1853 Act have been
carried forward to today,
without any apparent intent to change
the controlling rules.'" Ante at 482 U. S. 440,
quoting Alyeska Pipeline Co. v. Wilderness Society,
421 U. S. 240,
421 U. S. 255
(1975). In Alyeska, this Court held that the same fee
statutes did not
Page 482 U. S. 450
authorize recovery of attorney's fees by a prevailing party.
Even in
Alyeska, however, the Court recognized that the
fee statutes had never been entirely exclusive:
"To be sure, the fee statutes have been construed to allow, in
limited circumstances, a reasonable attorney's fee to the
prevailing party in excess of the small sums [for docket fees]
permitted by § 1923."
Id. at
421 U. S. 257.
[
Footnote 5]
Not only is the Court's holding inconsistent with the language
and history of Rule 54(d) and § 1920, but it is also ill-advised as
a policy matter. As Judge Rubin stated in his opinion below:
"The costs of litigation, as we all know, have become
staggering. A plaintiff may put a defendant, or a defendant may put
a plaintiff, to a tremendous amount of expense, apart from the cost
of obtaining an attorney's services, in defending or prosecuting a
case. One cause of this expense is the unavoidable necessity of
expert witness testimony to establish or rebut many legal
claims."
"
* * * *"
"Although the victor in litigation is not entitled to spoils, he
ought at least to be able to invoke the court's discretion to make
him whole."
790 F.2d at 1192-1193. For the foregoing reasons, I dissent.
* Together with No. 86-328,
Champion International Corp. v.
International Woodworkers of America, AFL-CIO, CLC, et al.,
also on certiorari to the same court.
[
Footnote 1]
I do not understand today's decision to decide the question
whether a district court may award expert witness fees under 42
U.S.C. § 1988.
No. 86-322 is an antitrust case; obviously, § 1988 is not at
issue in that case. And, as an examination of the record reveals,
the issue is not properly before the Court in No. 86-328, either.
In that case, petitioner, a prevailing civil rights defendant, made
a motion for attorney's fees "and expenses" under § 1988 and filed
a bill of costs under Rule 54(d). The bill of costs included
$31,333.87 for "expert witness fees and expenses." Record 38. On
December 30, 1982, the District Court summarily denied the motion
for attorney's fees and expenses, based on its conclusion that,
under
Christiansburg Garment Co. v. EEOC, 434 U.
S. 412 (1978), "the lawsuit was brought in good faith,
and was neither frivolous, unreasonable, nor without foundation."
Record 1. The court referred all other questions concerning the
taxing of costs to a Magistrate.
Id. at 2.
Petitioner
did not appeal the District Court's order denying attorney's fees
under § 1988. It appealed only the District Court's order of
August 24, 1983, denying its application for expert witness fees
under Rule 54(d).
See Record 33.
[
Footnote 2]
Under Federal Rule of Civil Procedure 45(e), a district court's
power to compel attendance of witnesses extends only 100 miles.
Relying on this Rule, District Courts had traditionally declined to
tax as costs expenses of witnesses traveling more than 100 miles.
See Farmer v. Arabian American Oil Co., 379 U.S. at
379 U. S.
231-232.
[
Footnote 3]
The legislative history of § 1920 supports this view of Rule
64(d). Congress replaced the mandatory language found in the
earlier version -- "shall tax costs" -- to conform to the
discretion afforded by Rule 54(d).
See H.R.Rep. No. 308,
80th Cong., 1st Sess., App. A162 (1947) (Reviser's Note).
[
Footnote 4]
Despite the majority's protestations, refusing to construe §
1920 as the exclusive definition of costs would not render the
statute superfluous. Its principal purpose is to set forth those
routine, readily determinable costs which, in ordinary cases, will
automatically be taxed by the clerk of the court.
[
Footnote 5]
With respect to fees,
Alyeska identified three
circumstances appropriate for such "assertions of inherent power in
the courts,"
Alyeska Pipeline Co., v. Wilderness Society,
421 U.S. at
421 U. S. 259:
when the trustee of a fund preserved or recovered the fund for the
benefit of others in addition to him or herself; when a party acted
in willful disobedience to a court order; or when the losing party
acted in bad faith or vexatiously.
Id. at
421 U. S.
257-259.