Hudson v. INGALLS SHIPBUILDING, ETC.

• Decision Date: 18 June 1981
• Docket Number: Civ. A. No. 80-0760-H.
• Citation: 516 F. Supp. 708
• Parties: Travis HUDSON, Plaintiff, v. INGALLS SHIPBUILDING DIVISION, LITTON SYSTEMS, INC., Defendant.
• Court: U.S. District Court — Southern District of Alabama

516 F. Supp. 708

Travis HUDSON, Plaintiff, v. INGALLS SHIPBUILDING DIVISION, LITTON SYSTEMS, INC., Defendant.

Civ. A. No. 80-0760-H.

United States District Court, S. D. Alabama, S. D.

June 18, 1981.

James H. Frost, Mobile, Ala., for plaintiff.

Karl Wiesenburg, Pascagoula, Miss., Grover E. Asmus, II, Mobile, Ala., for defendant.

ORDER

HAND, District Judge.

The motion which Travis Hudson made on June 8, 1981 to subpoena Willie L. Ransom to testify in his behalf in this Title VII action is denied. No statutory provisions allow this Court to subpoena witnesses in a civil case at the government's expense where the plaintiff is proceeding in forma pauperis unless that case is a habeas corpus petition or a motion to reduce, vacate, or modify a sentence under 28 U.S.C. § 2255. Marks v. Calendine, 80 F.R.D. 24 (N.D.W.V. 1978); 53 Comp.Gen. 638, 643-45 (1974).¹

Local Rule 18 is consistently read with the absence of statutory authority for this Court to subpoena witnesses at government expense for pro se litigants in Title VII cases. Local Rule 18 provides:

if an indigent party in a civil action, or an indigent defendant in a criminal action, requires witnesses to be present at any hearing or trial, at government expense, the party must make an affidavit not less than two weeks before trial date setting forth the name and address of such witness and a brief statement of the facts about which the party expects each witness to testify. In criminal cases, the petition and affidavits must be made ex parte to the Court.

Local Rule 18 (witnesses for indigents). This rule, consistently read with 28 U.S.C. § 1825, provides for the payment of witness fees only in habeas corpus actions and civil actions under 28 U.S.C. § 2255.

APPENDIX

Witnesses — Testimony Perpetuation — Appropriation Chargeable

Since 39 Comp.Gen. 133 holds that the expense of perpetuating and authenticating the testimony given at a deposition is payable from the same funds as fees for witnesses, whereas 50 id. 128 holds that the Criminal Justice Act of 1964, as amended, 13 18 U.S.C. 3006A, provides the sole source of funds for eligible defendants to obtain the expert services necessary for adequate defense, the stenographic and notarial expenses incurred to perpetuate and authenticate the testimony of expert witnesses for such defendants should henceforth be paid by the Administrative Office of the U. S. Courts from funds available to it, and not by the Department of Justice. 39 Comp. Gen. 133 modified.

Attorneys — Fees — Overhead Expenses Part of Fee

As normally an attorney appointed under the Criminal Justice Act of 1964, 18 U.S.C. 3006A, is expected to use his office resources, including secretarial help, to take dictated statements, and these overhead expenses are reflected in the attorney's statutory fee, he may not be separately reimbursed for the expenses except in unusual situations where extraordinary overheadtype expenses are incurred in order to prepare and conduct an adequate defense, in which case such services, if otherwise eligible, may be considered "other services necessary for an adequate defense" under 18 U.S.C. 3006A(e) and be paid accordingly.

Courts — Criminal Justice Act of 1964 — Civil Rights Actions v. Habeas Corpus Proceedings

While not disputing the position of the Department of Justice that there are similarities in some cases between prisoner civil rights actions brought under 42 U.S.C. 1983 and habeas corpus proceedings, the major similarity is that in both cases the petitioners are in custody, and, therefore, for the purposes of paying expenses under the Criminal Justice Act of 1964, 18 U.S.C. 3006A, the civil rights petitioner may not be brought within the rationale of 39 Comp. Gen. 133, concerning the payment of expenses for certain habeas corpus petitioners, in the absence of authorizing legislation.

In the matter of forma pauperis proceedings, February 28, 1974:

The Acting Assistant Attorney General for Administration has requested our views on two questions concerning the responsibility for payment of certain expenses in forma pauperis proceedings. The second question, relating specifically to the applicability of the Criminal Justice Act of 1964, 18 U.S.Code 3006A, to civil rights proceedings under 42 U.S.C. 1983 brought by certain persons in custody, was also raised in an earlier letter to us from the Chief Judge, United States District Court for the Eastern District of Pennsylvania. A copy of this decision is being sent to him.

The views of the Department of Justice (Department) and the Administrative Office of the United States Courts (AO), the two agencies most concerned with these matters, were presented to us in three letters each from the Acting Assistant Attorney General for Administration for the Department and the General Counsel of the AO.

The initial question raised is:

First, where a criminal defendant in the U.S. District Court is allowed to proceed in forma pauperis, is the Administrative Office of the U. S. Courts or the U. S. Department of Justice responsible for the payment of stenographic and notarial expenses incident to the taking and transcribing of interviews of fact witnesses incurred on behalf of the pauper? Would the responsibility for payment be the same if the witnesses were expert witnesses? If depositions had been taken instead of merely interviews, would the responsibility for payment still be the same?

In part, this question concerns the effect of the Criminal Justice Act of 1964 (CJA), as amended, 18 U.S.C. 3006A upon our decision reported in 39 Comp.Gen. 133 (1959). We held therein that travel and subsistence expenses incurred by an indigent defendant's attorney attending a deposition may be regarded as expenses incident to the responsibility of the court to assure defendants an adequate forum and, therefore, that such expenses are for payment by the AO under Rule 15(c) of the Federal Rules of Criminal Procedure. Also, after review of the language of Rule 17(b) of the Federal Rules of Criminal Procedure and the "Department of Justice Appropriation Act, 1959" under the heading "Fees and Expenses of Witnesses" we stated at pp. 136-137:

With regard to compensation and expenses of witnesses — whether fact witnesses or experts — subpoenaed on behalf of an indigent defendant the conclusion appears required, on the basis of the language quoted, that such items are payable out of such appropriations to the Department of Justice. Nor do we find any basis upon which it might be held that such compensation and expenses of witnesses subpoenaed on behalf of an indigent ought to be paid by the Administrative Office of the United States Courts. Moreover, this conclusion would apply to deponents' fees as well as fees for witnesses appearing in court, since Rule 17(b) makes no distinction between the two; and, as shown, it is that rule which is controlling. The function of producing witnesses and evidence is not incident to maintaining a court but, rather, is typically a function of the Department under its paramount obligation to present the case to the court in seeking that justice be done.

We noted further that "Rule 17(b) refers to the subpoenaing of witnesses and provides only for payment of the costs incurred by the process and the fees of the witnesses subpoenaed" and that there is no specific provision for the payment of stenographic or notarial expenses incurred in connection with the taking of depositions. We concluded that:

* * * since the testimony of a witness subpoenaed under Rule 17(b) would be useless if it were not transcribed and notarized, and these costs are part and parcel of the purpose for which the deponent is subpoenaed in the first instance, it must be concluded that, in view of the provision to pay the witness fees involved, the expense of perpetuating and authenticating his testimony is embraced as part of "the costs incurred by the process." And since these expenses are borne by appropriations of the Department of Justice where witnesses are subpoenaed on behalf of the Government, it follows, under the direction contained in Rule 17(b), that where the deponent is subpoenaed on behalf of an indigent defendant expenses of stenographic and notarial services must also be paid by the Department in a like manner, id., p. 137.

The CJA provides for furnishing representation for persons charged with felonies or misdemeanors (other than petty offenses) who are financially unable to obtain adequate representation, including the appointment and payment of private attorneys and payment of certain expenses incurred. Subsection (d) of the CJA establishes the maximum hourly rates to be paid to an appointed attorney and authorizes reimbursement to him for expenses reasonably incurred, including the costs of transcripts authorized by the United States magistrate or the courts. Subsection (e) authorizes expenditures — including reimbursement for expenses reasonably incurred — for "investigative, expert, or other services necessary for an adequate defense" for persons who are financially unable to obtain such services.

The Department contends that the effect of these provisions of the CJA is to modify our decision in 39 Comp.Gen. 133, supra, with respect to payment of stenographic and notarial expenses while the AO states that the CJA does not change the manner in which these expenses should be handled.

In 50 Comp.Gen. 128 (1970) we held that a fee of an expert (there, a psychiatrist) called to testify on behalf of an accused entitled to expert services under subsection (e) of the CJA is for payment pursuant to that act. We stated that the legislative history of the act is so persuasive as to warrant the conclusion that it preempts the payment of expert witness fees to the exclusion of the general provisions of Rule 17(b), notwithstanding the $300 fee limitation in subsection (e) of the act, and that where those fees exceed the maximum allowable under the CJA, the...