Kansas v. Colorado , 129 S. Ct. 1294 ( 2009 )


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  • (Slip Opinion)              OCTOBER TERM, 2008                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U. S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    KANSAS v. COLORADO
    ON EXCEPTION TO REPORT OF SPECIAL MASTER
    No. 105, Orig. Argued December 1, 2008—Decided March 9, 2009
    Kansas has filed an exception to the Special Master’s Fifth and Final
    Report in this action concerning the Arkansas River, contending that
    the Special Master erred in concluding that 
    28 U. S. C. §1821
    (b),
    which sets the witness attendance fee for a proceeding in “any court
    of the United States” at $40 per day, applies to cases within this
    Court’s original jurisdiction. This determination led to an award
    considerably lower than the amount that Kansas, as the prevailing
    party, would have received under its alternative calculation.
    Held: Expert witness attendance fees that are available in cases
    brought under this Court’s original jurisdiction shall be the same as
    the expert witness attendance fees that would be available in a dis
    trict court under §1821(b). Kansas contends that Congress has never
    attempted to regulate a prevailing party’s recovery of expert witness
    fees in a case brought under this Court’s original jurisdiction, that
    Article III of the Constitution would not permit Congress to impose
    such a restriction, and thus, that the holding in Crawford Fitting Co.
    v. J. T. Gibbons, Inc., 
    482 U. S. 437
    , 444—that district courts must
    adhere to §1821(b)’s witness attendance fee limitations—is not rele
    vant here. Assuming that Kansas’ interpretation is correct and that
    this Court has discretion to determine the fees that are recoverable in
    original actions, it is nevertheless appropriate to follow §1821(b).
    Congress’ decision not to permit a prevailing party in the lower
    courts to recover its actual witness fee expenses departs only slightly
    from the “American Rule,” under which parties generally bear their
    own expenses. There is no good reason why the rule for recovering
    expert witness fees should differ markedly depending on whether a
    case is originally brought in district court or this Court. District
    court cases may be no less complex than those brought originally in
    this Court. And while the parties in original cases may incur sub
    2                        KANSAS v. COLORADO
    Syllabus
    stantial expert costs, as happened here, the same is frequently true
    in lower court litigation. Thus, assuming that the matter is left en
    tirely to this Court’s discretion, the best approach is to have a uni
    form rule that applies in all federal cases. Pp. 3–5.
    Exception overruled.
    ALITO, J., delivered the opinion for a unanimous Court. ROBERTS,
    C. J., filed a concurring opinion, in which SOUTER, J., joined.
    Cite as: 556 U. S. ____ (2009)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 105, Orig.
    _________________
    STATE OF KANSAS, PLAINTIFF v. STATE OF
    COLORADO
    ON EXCEPTION TO REPORT OF SPECIAL MASTER
    [March 9, 2009]
    JUSTICE ALITO delivered the opinion of the Court.
    This is the latest in a line of contested matters that have
    come before us in this action that was brought in this
    Court by the State of Kansas against the State of Colorado
    concerning the Arkansas River. The Special Master has
    filed a Fifth and Final Report that includes a proposed
    judgment and decree, and Kansas has filed an exception to
    the Report, contending that the Special Master erred in
    concluding that 
    28 U. S. C. §1821
    , which sets the witness
    attendance fee for a proceeding in “any court of the United
    States” at $40 per day, applies to cases within this Court’s
    original jurisdiction. Assuming for the sake of argument
    that Kansas is correct in its interpretation of the statutes
    at issue in this matter and that this Court has the author
    ity to determine the amount that Kansas should recover in
    expert witness fees, we hold that the fee set out in §1821 is
    nevertheless the appropriate fee. Accordingly, we overrule
    Kansas’ exception and approve the entry of the proposed
    judgment and decree.
    I
    Kansas filed this original action in 1985, claiming that
    Colorado had violated the Arkansas River Compact (Com
    2                      KANSAS v. COLORADO
    Opinion of the Court
    pact),1 
    63 Stat. 145
    , by drilling irrigation wells that de
    pleted water that should have been available for users in
    Kansas. In 1995, we accepted the recommendation of the
    Special Master that Colorado’s wells had violated the
    Compact, and we remanded for further proceedings to
    determine appropriate remedies. See Kansas v. Colorado,
    
    514 U. S. 673
    . The Special Master then recommended
    that monetary damages be awarded as compensation. In
    2001, we accepted all but one of the Special Master’s
    recommendations, modifying the remaining recommenda
    tion with respect to the starting date for an award of
    prejudgment interest. See Kansas v. Colorado, 
    533 U. S. 1
    . In 2004, we approved additional recommendations by
    the Special Master,2 and the case was again remanded.
    See Kansas v. Colorado, 
    543 U. S. 86
    .
    On remand, the Special Master approved a schedule to
    resolve remaining disputed issues. Consistent with our
    guidance, experts for the States were assigned greater
    responsibility for discussing and resolving issues. Because
    of the contributions of expert witnesses and the use of the
    Hydrologic-Institutional Model to determine compliance
    with the Compact, the parties resolved most of the dis
    puted issues. See 
    id., at 89
    .
    The sole remaining issue concerns Kansas’ application
    for expert witness fees. After the Special Master deter
    mined that Kansas was the prevailing party for purposes
    ——————
    1 The
    Compact, which was approved by negotiators for the States of
    Kansas and Colorado in 1948, allows post-Compact development in
    Colorado provided that such development does not cause material
    depletions of usable stateline flows.
    2 The recommendations we approved in 2004 were: (1) that the Court
    not appoint a River Master; (2) that the amount of prejudgment inter
    est be set; (3) that calculations regarding river depletions be made on a
    10-year basis in order to even out possible inaccuracies in computer
    modeling; and (4) that a Colorado Water Court be given the authority to
    make certain determinations relevant to continuing implementation of
    agreements reached through this litigation
    Cite as: 556 U. S. ____ (2009)            3
    Opinion of the Court
    of awarding “costs,” Kansas submitted two alternative
    proposals for calculating the amount that it was entitled
    to recover for the costs it had incurred in retaining expert
    witnesses. The first proposal, which Kansas advocated,
    was based on the assumption that these fees were not
    limited by the $40 per day attendance fee set out in
    §1821(b) and called for an award of $9,214,727.81 in ex
    pert witness fees. The other calculation, which was based
    on the assumption that §1821(b) did apply, calculated the
    amount that Kansas was entitled to recover for expert
    witness fees at $162,927.94.
    After hearing argument, the Special Master held that
    §1821 applies in cases within our original jurisdiction.
    Based on this holding, the two States entered into a cost
    settlement agreement that provided for total witness costs
    of $199,577.19 but preserved the right of the States to file
    exceptions to the Special Master’s rulings on legal issues
    regarding costs.
    II
    Kansas argues that the Special Master erred in holding
    that §1821(b) applies to cases within our original jurisdic
    tion. Kansas contends that early statutes governing the
    award of costs in cases in the lower courts did not apply to
    this Court’s original cases and that this scheme has been
    carried forward to the present day. Kansas notes that the
    statutory provision authorizing the taxation of costs, 
    28 U. S. C. §1920
    , authorizes “[a] judge or clerk of any court
    of the United States” to tax as costs “[f]ees . . . for . . .
    witnesses” and that the definition of the term “judge . . . of
    the United States,” as used in Title 28, does not include a
    Justice of this Court. In Kansas’ view, §1911, which pro
    vides that “[t]he Supreme Court may fix the fees to be
    charged by its clerk,” manifests Congress’ understanding
    that we should have the authority to determine the fees
    that may be recovered by a prevailing party in a case
    4                  KANSAS v. COLORADO
    Opinion of the Court
    brought under our original jurisdiction. Kansas further
    maintains that “[e]ven if Congress had intended to regu
    late taxation of costs in the original jurisdiction of this
    Court, such an act would be subject to the Court’s ultimate
    authority to regulate procedure within its constitutionally
    created original jurisdiction.” Kansas’ Exception and Brief
    10. Kansas therefore contends that our holding in Craw
    ford Fitting Co. v. J. T. Gibbons, Inc., 
    482 U. S. 437
    , 444
    (1987), that district courts must adhere to the witness
    attendance fee limitations set forth in §1821(b), is not
    relevant here.
    Colorado disagrees. Citing our decision in Crawford
    Fitting, Colorado argues that the $40 per day witness
    attendance fee limitation of §1821(b) applies not only to
    cases in the district courts but also to our original cases.
    Colorado notes that §1821(a)(1) prescribes the witness
    attendance fee for a proceeding in “any court of the United
    States” and that §1821(a)(2) defines the term “ ‘court of the
    United States’ ” to include this Court. Colorado also con
    tends that there is no precedent to support the argument
    that the Constitution prohibits Congress from imposing a
    limit on expert witness fees in cases within our original
    jurisdiction, and Colorado sees no justification for an
    award of costs for expert witness fees in excess of the limit
    in §1821(b).
    III
    We find it unnecessary to decide whether Congress has
    attempted to regulate the recovery of expert witness fees
    by a prevailing party in a case brought under our original
    jurisdiction. Nor do we decide whether Kansas is correct
    in contending that Article III of the Constitution does not
    permit Congress to impose such a restriction. Assuming
    for the sake of argument that Kansas is correct in arguing
    that we have the discretion to determine the fees that are
    recoverable in original actions, we conclude that it is
    Cite as: 556 U. S. ____ (2009)            5
    Opinion of the Court
    nevertheless appropriate to follow §1821(b).
    Congress’ decision not to permit a prevailing party in
    the lower courts to recover its actual witness fee expenses
    may be seen as a decision to depart only slightly from the
    so-called “American Rule,” under which parties generally
    bear their own expenses. See Alyeska Pipeline Service Co.
    v. Wilderness Society, 
    421 U. S. 240
     (1975) (the American
    Rule applies not only to attorney’s fees but also other costs
    of litigation, including expert witness fees and miscellane
    ous costs such as transcripts and duplication). While this
    policy choice is debatable, we see no good reason why the
    rule regarding the recovery of expert witness fees should
    differ markedly depending on whether a case is originally
    brought in a district court or in this Court. Many cases
    brought in the district courts are no less complex than
    those brought originally in this Court. And while the
    parties in our original cases sometimes are required to
    incur very substantial expert costs, as happened in the
    present case, the same is frequently true in lower court
    litigation. Thus, assuming for the sake of argument that
    the matter is left entirely to our discretion, we conclude
    that the best approach is to have a uniform rule that
    applies in all federal cases.
    We therefore hold that the expert witness attendance
    fees that are available in cases brought under our original
    jurisdiction shall be the same as the expert witness atten
    dance fees that would be available in a district court under
    §1821(b). We thus overrule Kansas’ exception to the
    Report of the Special Master.
    It is so ordered.
    Cite as: 556 U. S. ____ (2009)            1
    ROBERTS, C. J., concurring
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 105, Orig.
    _________________
    STATE OF KANSAS, PLAINTIFF v. STATE OF
    COLORADO
    ON EXCEPTION TO REPORT OF SPECIAL MASTER
    [March 9, 2009]
    CHIEF JUSTICE ROBERTS, with whom JUSTICE SOUTER
    joins, concurring.
    I join the opinion of the Court in full. I do so only, how
    ever, because the opinion expressly and carefully makes
    clear that it in no way infringes this Court’s authority to
    decide on its own, in original cases, whether there should
    be witness fees and what they should be.
    Our appellate jurisdiction is, under the Constitution,
    subject to “such Exceptions, and . . . such Regulations as
    the Congress shall make.” Art. III, §2. Our original juris
    diction is not. The Framers presumably “act[ed] inten
    tionally and purposely in the disparate inclusion or exclu
    sion” of these terms. INS v. Cardoza-Fonseca, 
    480 U. S. 421
    , 432 (1987) (internal quotation marks omitted).
    It is accordingly our responsibility to determine matters
    related to our original jurisdiction, including the availabil
    ity and amount of witness fees. For the reasons given by
    the Court, I agree that $40 is a reasonable choice for the
    fees at issue here. But the choice is ours.