Proper Agency to Make Payment for the Compensation of Court-Appointed Expert Witnesses in Cases Handled by the Department of Justice ( 1977 )

July 20, 1977
77-43 MEMORANDUM OPINION FOR ASSISTANT
GENERAL COUNSEL OF THE GENERAL
ACCOUNTING OFFICE
Compensation of Court-Appointed Witnesses*
This is in response to your request for our opinion on the proper
agency to make payment for the compensation of court-appointed
expert witnesses in cases handled by the Department of Justice. We
conclude that where a court appoints an expert witness pursuant to
Rule 706 of the Federal Rules of Evidence,1 as a matter of law either
the Administrative Office of the United States Courts or the litigating
agency is required .to compensate such witnesses as set forth in subsec­
tion (b) of Rule 706. It is our opinion that in criminal cases it is the
Administrative Office, and in condemnation and “other civil cases” it is
the agency initiating and litigating the action.2
In our view, Rule 706(b) establishes two categories of cases for
determining how court-appointed expert witnesses are compensated. In
the first category are those expert witnesses appointed in criminal and
condemnation cases, as to which the expert witness is to be compensat­
ed entirely by the United States. Within this category are tw o means
for paying court-appointed expert witnesses’ fees. In criminal cases the
expert witness is to be compensated by the Administrative Office from
funds appropriated for expenses of maintenance of the courts, and in
condemnation cases by the agency handling the action from its general
*See the subsequent related decision o f the C om ptroller G eneral, B - 139703 (February
6, 1979).
1 It should be noted that a trial judge has the inherent pow er to appoint his ow n expert.
See, e.g., Scott v. Sprange Bros. Inc., 298 F. 2d 928 (2d Cir. 1962). Such an expert may not
qualify as an expert witness under the specific requirem ents o f R ule 706 o f the Federal
Rules o f E vidence. In this situation it is our opinion that the c o u rt’s expert is to be
com pensated by the A dm inistrative OfTice o f the U nited States C ourts from funds appro­
priated for expenses o f m aintenance o f the courts. T h is has been recognized as the
appropriate m ethod o f com pensation by the C om ptroller G eneral. See 39 C om p. Gen. 133
(1959).
• O f course, in "o th e r civil cases” the expert w itness’ com pensation may be paid in part
or w hole by the private party, if so directed by the court. See subsection (b) o f Rule 706.
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operating funds.3 The second category includes “other civil actions,”
where the expert witness is to be compensated by the parties.
T he matter that occasioned this opinion is a dispute between the
Administrative Office and the Tennessee Valley Authority (TVA) over
which Agency should pay the compensation of a court-appointed
expert witness in a condemnation case initiated and litigated by TVA.
The dispute centers on th e interpretation to be given the lanugage in
subsection (b) of Rule 706, which reads: “The compensation thus fixed
is payable from funds which may be provided by law in criminal cases
and civil actions and proceedings involving just compensation under
the Fifth Amendment.”
We conclude that three interpretations can be drawn from the lan­
guage quoted above. In considering all three interpretations, we think it
well advised to consider the old judicial admonition that words,
phrases, or language in a statute should not be construed in isolation,
but in the context of the whole law and the overall congressional
purpose. We also think it important to underscore the fact that the
elastic w ord “may” is used in the language quoted above, rather than
the restrictive word “shall.” Thus, we must attempt to reason out why
Congress settled on the w ord “may” and what kind of directional
signal it is supposed to furnish.
First, it could be argued that the “which may be provided by law”
language simply means that if funds are appropriated for the purpose of
paying court-appointed expert witnesses’ fees, then, compensation can
be made therefrom. If not, the court must look elsewhere, presumably
to the private party, to compensate the expert witness, or refrain from
appointing one. This interpretation does not provide for a realistic
scheme, because in condemnation cases the cost of the expert witness
can never be charged to th e landowner.4 It is also wanting in criminal
cases, because many accused are indigents and would be unable to
compensate the expert witness. If accepted, this interpretation would
have the ultimate impact o f completely frustrating the stated congres­
sional purpose: The possibility of any portion of a court-appointed
expert witness’ fees being passed on to the private parties in condemna­
tion cases and in many criminal cases is, for all practical purposes,
nonexistent.
A second interpretation is that the language “which may be provided
by law ” is used to give recognition to the fact that Congress has
already provided funds for court-appointed expert witnesses in criminal
cases through appropriations to implement the Criminal Justice Act.
3 G enerally, the A gency initiating and prosecuting actions on behalf o f the United
S tates will be th e Departm ent o f Justice. H ow ever, w here another agency has the
au th o rity to initiate and prosecute actions o n behalf o f the U nited States th e court-
a ppointed expert w itness should b e paid from that agency’s general operating funds.
4 United States v. 2,186.63 Acres o f Land, Wasatch County, Utah, 464 F. 2d 676, 678
(10th C ir. 1972); United States v. Easement and Right-of-Way, 452 F. 2d 729, 730 (6th Cir.
1971).
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We think this is the most rational approach, because all funds received
by an agency, for specific purposes or for its general operations, are
provided by law. Unless Congress intended to refer to specific funds by
this language, it was surplusage and unnecessary. We believe it was
used to denote the two means by which an expert witness could be
compensated in the first category of cases: in criminal cases by funds
appropriated to implement the Criminal Justice Act and in condemna­
tion cases by the litigating agency from its general operating funds.5
This appears to be consistent with Rule 706 and existing law.8 Howev­
er, the language used to articulate this intent is far from clear.7
It could be argued that it was intended that court-appointed expert
witnesses in criminal and condemnation cases be treated alike because
they are included in the same category, and the Advisory Committee’s
Note to Rule 706 states that a “comprehensive scheme for court-
appointed experts was initiated with the adoption of Rule 28 of the
Federal Rules of Criminal Procedure in 1946” and that “[t]he present
rule expands the practice to include civil cases.” However, that would
be an overbroad interpretation of that language. It is true that Rule 706
expanded the practice already employed in criminal cases to civil cases,
but it does not necessarily follow that it also expanded the criminal
method of compensation to civil cases. And the language of subsection
(b) of Rule 706, which states that in “other civil cases” the parties are
to compensate the expert witness, makes this position even more com ­
pelling. Moreover, two years after enactment of the Federal Rules of
s See note 3, supra.• “W ithout exception, the decisions hold that in an original proceeding for the condem ­
nation o f land the costs arising in that proceeding fall on the condem nor. T h e reason
therefor is that to take the land against the landow ner’s wishes and then charge him for
the cost o f taking w ould violate the constitutional prohibition against th e taking o f
private property w ithout ju st com pensation.” Grand River Dam Authority v. Jarvis, 124 F.
2d 914, 916 (10th Cir. 1942).
7 A third interpretation w ould be that Congress intended to give the trial judge som e
discretion in determ ining w h eth er a court-appointed expert w itness should be com pensat­
ed entirely by the United States o r w hether the parties should share this expense, as in
“o ther civil cases.” Perhaps this interpretation w ould be proper in crim inal cases w h e re
the accused is not an indigent. It w ould not be p ro p er in condem nation cases because the
landow ner could not be required to pay any part o f a court-appointed expert w itness’
compensation. See, e.g., United States v. 2,186.63 Acres o f Land, Wasatch County, Utah,
supra, note 4. It w ould reduce ju st com pensation, a result prohibited by the F ifth
Am endment. T his interpretation does not seem reasonable, because no distinction w as
m ade betw een crim inal and condem nation cases relative to the trial ju d g e ’s discretion in
determ ining w h eth er the U nited States should pay the expert w itness’ fee in full o r
w hether it should be borne by the parties.
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Evidence, Congress has not appropriated any funds specifically for the
purpose of Rule 706(b).8
We think the basic reason for establishing the special category for
criminal and condemnation cases was simply to place those cases in
which the United States is the sole compensator in a separate and
distinct category. And, as we noted earlier, we conclude that the
language “which may be provided by law ” was intended to signify that
the means for compensating court-appointed expert witnesses in the
tw o types o f cases in this category are different.
W e also conclude that Rule 706 has the effect of making the fees of
court-appointed expert witnesses ordinary expenses of litigation. For
the Governm ent such expenses are generally paid by the litigating
agency rather than the Administrative Office. Indeed, because the
monies appropriated to the Administrative Office are for the expense of
maintenance of the courts, it would seem to violate 31 U.S.C. § 628 for
that Office to use such funds for any other purpose.9
It is our opinion that in condemnation cases or “other civil cases,”
the agency that initiates and prosecutes the action has responsibility for
compensating the court-appointed expert witness. In United States v.
109 Acres o f Land , 10 it is our opinion that had the expert witness been
appointed pursuant to Rule 706, TV A would be responsible for com­
pensating the expert witnesses. However, the expert witness was ap­
pointed before the Federal Rules of Evidence were enacted into law,
and the court stated that the expert witness was appointed “[ujnder its
inherent power so to do . . . as an aid to the Court in discharging its
official duty.” We think that while Rule 706 recognizes a trial judge’s
pow er to appoint his or her own expert, an expert witness appointed
pursuant to Rule 706 and an expert appointed by the judge pursuant to
his inherent pow er are not necessarily coequals.11 Thus, we conclude
that in this case the Administrative Office should pay the compensation
of the court-appointed expert witnesses as expenses of maintenance of
the courts.12
In the future the practice of the Department will be to pay for the
full compensation of court-appointed expert witnesses in condemnation
" T h e Senate and H ouse reports accom panying H .R . 5463, a bill to establish rules o f
evidence for certain courts and proceedings, state that w ould “entail no cost to the
G o v ern m en t o f th e U nited States.” See S. Rep. N o. 1277, 93rd Cong., 2d Sess. 28 (1974)
and H .R . R ep. N o. 650, 93rd C ong., 1st Sess. 19 (1973). T h a t is undoubtedly an o v e r­
broad statem ent unless Congress d id not intend th e purpose for enacting the rules to be
c arried out. M oreover, as noted in the text, funds w ere already being provided for expert
w itnesses in crim inal cases, and th e ir fees w ould n o t be passed on to the landow ner in
condem nation cases. How ever, this language can serve as an indication that Congress was
o f the opinion th at the funds to c arry out the purpose o f the new law already existed.
“ T h a t section states th at “E xcept as otherw ise provided b y law, sums appropriated for
the various branches o f expenditure in the public service shall be applied solely to the
objects for w hich th ey are respectively m ade, and for no oth ers.”
10 404 F. Supp. 1392 (D . Tenn. 1975).
11 See note 1, supra.
1J See note 1, supra.
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cases and as directed by the court in “other civil cases” where it is the
litigating agency. However, we are o f the opinion that it would be
more efficient and less burdensome from an administrative point of
view, if Congress appropriated funds to the Administrative Office for
the purpose of compensating all court-appointed expert witnesses.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
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