Gray v. Phillips Petroleum Co.

• Citation: 971 F.2d 591
• Decision Date: 30 July 1992
• Docket Number: Nos. 91-3145,91-3146,s. 91-3145
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 833, 59 Empl. Prac. Dec. P 41,643, 61 USLW 2175, 1 Wage & Hour Cas.2d (BNA) 41 Robert L. GRAY; Paul W. Babcock; Robert N. Cardwell; Kenneth P. Davis; Melvin P. DeWeese; Gene E. Eastham; Fred M. Graham, Jr.; Stanley M. Hachinsky; Marvin R. Harbour; Roy E. Hauk; Robert P. Jones; Chester M. Martinson; Patrick C. McNellis; Elmer A. Nilges; W.E. Pickert; Charles Powell; Joseph R. Stanley; Robert E. Walsh; Dennis R. Worthington; and Joseph S. Ogle, Plaintiffs-Appellees, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellant. James L. ANSON; Leonard P. Belan; Robert E. Brooks; Alfred E. Dyer; Richard W. Jackson; Clyde Lewis; William E. Neustaedter; Elmer J. Rome; Clarence J. Zuger; and Bobby S. Dysart, Plaintiffs-Appellees, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellant.

Page 591

971 F.2d 591

59 Fair Empl.Prac.Cas. (BNA) 833,

59 Empl. Prac. Dec. P 41,643, 61 USLW 2175,

1 Wage & Hour Cas.2d (BNA) 41

Robert L. GRAY; Paul W. Babcock; Robert N. Cardwell;

Kenneth P. Davis; Melvin P. DeWeese; Gene E. Eastham;

Fred M. Graham, Jr.; Stanley M. Hachinsky; Marvin R.

Harbour; Roy E. Hauk; Robert P. Jones; Chester M.

Martinson; Patrick C. McNellis; Elmer A. Nilges; W.E.

Pickert; Charles Powell; Joseph R. Stanley; Robert E.

Walsh; Dennis R. Worthington; and Joseph S. Ogle, Plaintiffs-Appellees, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellant.

James L. ANSON; Leonard P. Belan; Robert E. Brooks;

Alfred E. Dyer; Richard W. Jackson; Clyde Lewis; William

E. Neustaedter; Elmer J. Rome; Clarence J. Zuger; and Bobby S. Dysart, Plaintiffs-Appellees, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellant.

Nos. 91-3145, 91-3146.

United States Court of Appeals Tenth Circuit.

July 30, 1992.

David J. Waxse (Elinor P. Schroeder and Barbara A. Harmon of Shook, Hardy & Bacon, Overland Park, Kan., and Donald S. Zimmerman of Phillips Petroleum Company, Bartlesville, Okl., with him on the brief), for defendant-appellant.

John H. Fields of Carson & Fields, Kansas City, Kan. (Blaise R. Plummer, Overland

Park, Kan., with him on the brief), for plaintiffs-appellees.

Before BALDOCK and BARRETT, Circuit Judges, and PARKER, District Judge. ^*

BALDOCK, Circuit Judge.

The Age Discrimination in Employment Act (ADEA), Pub.L. No. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. §§ 621-634), creates a private cause of action for persons who are discriminated against in employment because of their age. 29 U.S.C. § 626(c). See also id. § 623. Congress has provided that enforcement of the ADEA shall be in accordance with certain provisions of the Fair Labor Standards Act of 1938 (FSLA), ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-219). 29 U.S.C. § 626(b). Among the FSLA provisions applicable to the ADEA is that "[t]he court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." Id. § 216(b). See also id. § 626(b). At issue is whether "a reasonable attorney's fee ... and costs of the action" includes expert witness fees incurred by a plaintiff in an ADEA suit.

Plaintiffs filed the present lawsuits alleging that Defendant violated the ADEA by discriminating in employment transfer decisions against Plaintiffs because of their age. The district court's denial of Defendant's motion for summary judgment was affirmed on an interlocutory appeal. Gray v. Phillips Petroleum Co., 858 F.2d 610 (10th Cir.1988). Thereafter, Plaintiff's obtained a favorable settlement. ¹ As part of the settlement agreement, Defendant agreed to pay a certain amount to Plaintiffs for attorney's fees. Defendant also agreed that Plaintiffs "may file an application for costs and any additional attorney's fees with the District Court," but Defendant expressly reserved "any rights it has to object to the amounts or items requested in said application...." Appellant's App. at 124. Plaintiffs subsequently submitted an "Application for Determination and Award of Costs" to the district court requesting that Defendant pay $68,861 of which $68,009 was for expert witness fees. Appellees' Supp.App. at 1. In opposing the application, Defendant recognized that there was authority in this Circuit for the proposition that "a prevailing party in an age discrimination case may be awarded expert witness fees exceeding the $30 per day limit set forth in 28 U.S.C. § 1821," ² but noted that the issue of whether an attorney's fee award under 42 U.S.C. § 1988 could include compensation for expert witnesses in excess of § 1821's limit was pending before the Supreme Court. Defendant argued that awarding any costs (not merely the expert witness fees) would result in a "windfall" to Plaintiffs and contravened the intent of the settlement agreement. ³ The district court held that the costs, including the expert witness fees, were recoverable under 29 U.S.C. § 626(b), and, rejecting Defendant's arguments, awarded Plaintiffs the full amount of requested costs. Gray v. Phillips Petroleum Co., 758 F.Supp. 673, 675-76 (D.Kan.1991). On appeal, Defendant argues that the ADEA does not provide for the recovery of expert witness fees as part of attorney's fees and costs.

The general costs statute permits a district court to "tax as costs ... [f]ees ... for witnesses...." 28 U.S.C. § 1920. However, such fees are limited to $40 per day for each day of attendance and related travel, ⁴ id. § 1821(b), plus expenses. Id. §§ 1821(c-d). This Circuit has long recognized that additional expert witness fees are not recoverable under § 1920. See Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983); Cleverock Energy Corp. v. Trepel, 609 F.2d 1358, 1363 (10th Cir.1979), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980); Euler v. Waller, 295 F.2d 765, 766 (10th Cir.1961).

Nonetheless, in Ramos, we stated that "out-of-pocket costs not normally absorbed as part of law firm overhead may be reimbursed under 42 U.S.C. § 1988," the civil rights attorney fee shifting statute. ⁵ 713 F.2d at 559. Because "fees and costs of expert witnesses hired in a case are not normally absorbed as overhead in private firm litigation," we held that "if the district court concludes that expert testimony was reasonably necessary, it may reimburse reasonable expert witness fees under § 1988." Id. (citations omitted).

In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), the Supreme Court held that "when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of [28 U.S.C.] § 1821, absent contract or explicit statutory authority to the contrary." Id. at 439, 107 S.Ct. at 2496. See also id. at 445, 107 S.Ct. at 2499. The Court rejected the argument that Fed.R.Civ.P. 54(d), which provides that, absent a statute or rule to the contrary, "costs shall be allowed to the prevailing party unless the court otherwise directs," provided an independent basis for the discretionary award of expert witness fees exceeding § 1821's limit. 482 U.S. at 441, 107 S.Ct. at 2497. While the Court did not have occasion to consider whether expert witness fees were recoverable under attorney fee shifting statutes, the Court broadly reasoned that "Congress has made its intent plain in its detailed treatment of 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." Id. at 444-45, 107 S.Ct. at 2499 (emphasis added). But see id. at 445, 107 S.Ct. at 2499 (Blackmun, J., concurring) ("Court's opinion ... does not reach the question whether, under 42 U.S.C. § 1988, a district court may award fees for an expert witness"); id. at 446, 107 S.Ct. at 2500 (Marshall, J., dissenting) ("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").

Notwithstanding Crawford Fitting's broad language mandating an explicit statutory reference to witness fees to override the limitations provided by §§ 1920 and 1821, we subsequently recognized that "in the appropriate case, expert witness fees may be reimbursed as part of an attorney's fees award...." Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1550 (10th Cir.1987) (citing Ramos, 713 F.2d at 559). Although we cited Ramos for this proposition, we did not determine whether the ADEA case before us was an "appropriate case" for the award of expert witness fees in light of our holding that such fees were not proper because the district court had awarded attorney's fees in accordance with parties' stipulation. ⁶ Id. In the present case, this was the state of the law at the time the district court awarded Plaintiffs expert witness fees. ⁷

Subsequently, the Supreme Court held that " § 1988 conveys no authority to shift expert fees." West Virginia Univ. Hosps., Inc. v. Casey, --- U.S. ----, ----, 111 S.Ct. 1138, 1148, 113 L.Ed.2d 68 (1991). The Court, pointing to number of federal statutes expressly providing for the shifting of expert witness fees, reasoned that "attorney's fees and expert fees are distinct items of expense." Id. at ---- - ----, 111 S.Ct. at 1141-43. The Court rejected the argument that at the time of § 1988's enactment, judicial usage of "attorney's fees" included expert witness fees. Id. at ---- - ----, 111 S.Ct. at 1143-46. The Court also refused to expand the plain language of § 1988 notwithstanding statements in the legislative history to the effect that "the judicial remedy [must be] full and complete," H.R.Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976), and that "[c]itizens must have the opportunity to recover what it costs them to vindicate [civil] rights in court." S.Rep. No. 1011, 94th Cong., 2d Sess., 2, reprinted in 1976 U.S.C.C.A.N. 5908, 5910. See Casey, --- U.S. at ---- - ----, 111 S.Ct. at 1146-47. The Court reasoned:

The best evidence of that purpose is the statutory text adopted by both Houses of Congress and submitted to the President. Where that contains a phrase that is unambiguous--that has a clearly accepted meaning in both legislative and judicial practice--we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.

Id. at ----, 111 S.Ct. at 1147 (citation omitted). In so reasoning, the Court reaffirmed Crawford Fitting's requirement of "explicit statutory authority" in order to award expert witness fees to a prevailing party. Id. at ----, 111 S.Ct. at 1141.

Like the statute at issue in Casey, 29 U.S.C. § 216(b), incorporated by reference into the ADEA, id. § 626(b), does not provide "explicit statutory authority" to...