880 F.2d 1465 (1st Cir. 1989), 88-2116, Denny v. Westfield State College

Docket Nº:88-2116.
Citation:880 F.2d 1465
Party Name:Dr. Marilyn DENNY, et al., Plaintiffs, Appellants, v. WESTFIELD STATE COLLEGE, et al., Defendants, Appellees.
Case Date:July 25, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1465

880 F.2d 1465 (1st Cir. 1989)

Dr. Marilyn DENNY, et al., Plaintiffs, Appellants,


WESTFIELD STATE COLLEGE, et al., Defendants, Appellees.

No. 88-2116.

United States Court of Appeals, First Circuit

July 25, 1989

        Heard April 4, 1989.

Page 1466

        Betty A. Gittes, Boston, Mass., with whom Carol Calliotte, Karen Shaffer Levy, Boston, and Betty A. Gittes & Associates were on brief, for appellants.

        Mark Peters with whom James B. Cox and Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for appellees.

        Before BREYER and SELYA, Circuit Judges, and CAFFREY, [*] Senior District Judge.

        SELYA, Circuit Judge.

        Talk may be cheap, but expert testimony usually is not. This appeal presents head-on the question of whether, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., a prevailing party may be entitled to recover reasonable fees incurred for the services of expert witnesses. Cf. Freeman v. Package Machinery Co., 865 F.2d 1331, 1345-47 & nn. 9-11 (1st Cir.1988) (leaving question open under ADEA, 29 U.S.C. Sec. 626(b)).


        We briefly rehearse the background of the litigation. Plaintiffs-appellants Marilyn Denny, Catherine Dower, and Leah Stern were members of the Westfield State College

Page 1467

faculty. They brought a sex discrimination suit against the college pursuant to Title VII. After a bench trial in the United States District Court for the District of Massachusetts, they prevailed; the district court awarded substantial backpay and granted injunctive relief. Denny v. Westfield State College, 669 F.Supp. 1146 (D.Mass.1987).

        Expert statistical testimony played a critical role in plaintiffs' success at trial. The linchpin of their case was the testimony of Dr. Arlene S. Ash, a statistician. Through a multiple regression analysis, Ash demonstrated that statistically significant wage differentials existed at the school, with female faculty members receiving lower salaries than male faculty members of equivalent experience, rank, and departmental affiliation. Id. at 1156. Though the district court "expressed criticism for some aspects" of Ash's analysis, id., its decision relied heavily upon her study in determining that plaintiffs had proven their case. See generally id. at 1147-53, 1156.

        Following entry of judgment, the prevailing plaintiffs moved for an award of attorneys' fees under Title VII, 42 U.S.C. Sec. 2000e-5(k), and simultaneously sought reimbursement for expert witness costs totalling $32,763. The district court allowed counsel fees but awarded only a tiny fraction of the expert's costs, reasoning that the Court's decision in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), barred recovery of the more munificent amounts sought by plaintiffs. Denny v. Westfield State College, Civ. No. 78-2235-F, slip op. at 14-16 (D.Mass. May 12, 1989). Believing the district court to have been too generous in its deference to Crawford and too stingy in its treatment of expert witnesses, plaintiffs prosecuted this appeal.


        We set the stage for consideration of the present question in Freeman, where we wrote:

        In federal jurisprudence, the shifting of litigatory expenses is generally governed by statute. See, e.g., 28 U.S.C. Sec. 1920 (costs taxable by court include "[f]ees and disbursements for ... witnesses"); 28 U.S.C. Sec. 1821 ("Except as otherwise provided by law, a witness in attendance at any [federal] court ... shall be paid an attendance fee of $30 per day...."). In Crawford Fitting Co. v. J.T. Gibbons, Inc. ... the Supreme Court explained that section 1821 limits the amount of witness fees awardable, and section 1920 allows a court to tax such fees as costs only within those limits. 107 S.Ct. at 2 497-98. In the absence of statutory or contractual authorization for more generous payments, federal courts are constrained by the $30-per-day cap when ordering one side to pay for the other's expert witnesses. Id. [107 S.Ct.] at 2499.

        Freeman, 865 F.2d at 1346.

        Our formulation of the problem in Freeman must, of course, be read in the cold, hard light of the Court's pointed observation that Congress "comprehensively addressed the taxation of fees for litigants' witnesses" in 28 U.S.C. Secs. 1821 and 1920. Crawford, 107 S.Ct. at 2497 (emphasis supplied); see also Henkel v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 284 U.S. 444, 447, 52 S.Ct. 223, 225, 76 L.Ed. 386 (1932) ("Congress has definitely prescribed its own requirement with respect to the fees of witnesses. The Congress has dealt with the subject comprehensively and has made no exception of the fees of expert witnesses."). Because Congress "meant to impose rigid controls on cost-shifting in federal courts" and "made its intent plain in its detailed treatment of witness fees," courts should be slow to infer that section 1821's cap has been lifted. Crawford, 107 S.Ct. at 2499. Thus, "absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs," the limitations set out in sections 1821 and 1920 obtain. Id. (emphasis supplied). 1 Courts are empowered to

Page 1468

loosen restrictions like the $30-per-day cap only when a statute "refer[s] explicitly to witness fees," or its history reveals "plain evidence of congressional intent to supersede" the existing allocative structure. Id.

        The Crawford Court proceeded to hold that Fed.R.Civ.P. 54(d) did not constitute an independent source of judicial discretion sufficient to shift the burden of expert witness fees. While the rule stated that "costs should be allowed as of course to the prevailing party unless the court otherwise directs," the Court reasoned that the reference to "costs" included nothing more than those expenses expressly denominated as taxable costs in section 1920 and cabined within the boundaries set by section 1821. Crawford, 107 S.Ct. at 2497. In other words, Rule 54(d) did not treat with witness fees in a manner explicit enough to trump the constraints imposed by preexisting statutes, i.e., 28 U.S.C. Secs. 1821, 1920.

        To be sure, the holding in Crawford concerned only the effect of Rule 54(d), and did not involve awards to prevailing plaintiffs under the cost-shifting provisions of a civil rights statute. See Crawford, 107 S.Ct. at 2499 (Blackmun, J., concurring); id. 107 S.Ct. at 2500 n. 1 (Marshall and Brennan, JJ, dissenting). As we have already acknowledged, "without some further extrapolation, [Crawford ] would not be directly controlling" where a claim for expert witness fees was made in a case governed by such a statute. Freeman, 865 F.2d at 1347.

        But, Crawford cannot be dismissed lightly. It sets forth broadly-applicable standards for determining whether any particular enactment authorizes the shifting of witness fees in amounts greater than those listed in 28 U.S.C. Sec. 1821. Those standards command our respect. It is our task to apply the Court's analysis in the virgin precincts patrolled by a given statute's fee-shifting mechanism to see if the statute passes Crawford muster. There is no principled way for courts of appeals to devise a fresh approach or bypass this type of examination; Crawford cuts too wide a swath. Its sweep does not permit experts' expenses to be awarded without reference to the statutory duarchy (28 U.S.C. Secs. 1821, 1920) simply because a plaintiff prevails under a law which contains a general fee-shifting provision. See Glenn v. General Motors Corp., 841 F.2d 1567, 1575 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988); Leroy v. City of Houston, 831 F.2d...

To continue reading