Farmer v. Arabian American Oil Company/Concurrence Goldberg

Mr. Justice GOLDBERG, concurring in the result.

I agree with the Court that Judge Weinfeld did not abuse his discretion in limiting the costs for transcripts in both trials. The issues, as Judge Weinfeld properly found, were not extraordinarily complicated nor were the trials of great length, and Judge Weinfeld's decision that much of this expense was not really necessary seems to me entirely correct, let alone not so erroneous as to constitute an abuse of discretion. I likewise agree with the Court that it was Judge Weinfeld's responsibility to decide the cost question and that he was not compelled to agree with Judge Palmieri's prior opinion which was set aside by the Court of Appeals' reversal of the first trial judgment. Also, if I believed that Judge Weinfeld had discretion to tax costs for travel beyond the '100-mile limit,' I would agree that he did not abuse his discretion in reducing the travel allowances of the defendant's witnesses to the equivalent of mileage for 100 miles.

But I do not agree that the 100-mile limit is a matter for even the narrow discretion which the Court would allow the lower federal courts to exercise. I would not depart from the strong precedents and long-continued custom that the 100-mile rule is a limitation to be uniformly observed and not to be departed from in taxing costs.

Judges Smith, Clark, and Hays, dissenting in the Court of Appeals on this point, have stated reasons which to me are both persuasive and compelling. Judge Smith succinctly summarized the rationale of the dissenters in stating that the decision of the majority of the Court of Appeals

'not only breaks with the overwhelming weight of authority,     and creates a different rule for costs in civil cases from that in admiralty, but also, as the majority      indeed appears to admit, abandons the traditional scheme of      costs in American courts to turn in the direction of the      English practice of making the unsuccessful litigant pay his      opponent's litigation expense as well as his own. It has not     been accident that the American litigant must bear his own      cost of counsel and other trial expense save for minimal      court costs, but a deliberate choice to ensure that access to      the courts be not effectively denied those of moderate      means.' 324 F.2d 359, 365.

No undue burden is imposed upon a litigant by the American rule, for depositions may be taken of witnesses who live outside the district where a case is pending. If the litigant feels that the personal appearance in court of such a witness is necessary, it is reasonable that he bear the cost involved.

That a discretionary application of the 100-mile rule violates other sound policy is shown by this very case. Two able and experienced District Court Judges applying discretion came to opposite results in the application of the rule; a learned Court of Appeals divided 5 to 4 on this issue. I fear that, in place of the certainty and uniformity of treatment of this important cost item, which has heretofore prevailed throughout the federal system, the opinion of the Court will spawn considerable litigation seeking review of the discretion which the Court now holds is vested in the lower courts. This type of litigation in itself is both time consuming and expensive to the parties and will further add to the burdens of litigation, which even under the traditional 100-mile rule were heavy. Moreover, it will unduly prolong litigation, for appeals over costs may be decided well after a final judgment has been entered.

The fact is that the defendant, in all probability, would not have seriously raised this issue, in light of the uniform authority against its position, were it not for the enactment of the proviso added in 1949 to 28 U.S.C. § 1821 (1958 ed.). But, as the dissenting judges demonstrated, this proviso has nothing to do with 'the eventual recovery of * *  * fees as costs by the prevailing party.' 324 F.2d at 367. It was enacted at the request of the Attorney General to obtain authority to pay the travel expenses of witnesses at the lowest first-class rate so that their attendance could be obtained without financial sacrifice on their part. S. Rep. No. 187, 81st Cong., 1st Sess. Furthermore, it is doubtful whether this statute applies to foreign travel at all since it seems on its face to be limited to travel between the Territories and possessions of the United States and between the continental United States and its Territories and possessions. Finally, since the word 'required' is used in the statute, and since the statute's proponent was the Attorney General, it is susceptible of the interpretation that, even if deemed applicable to witnesses coming from abroad, it is limited to those witnesses who are subject to subpoena in the two situations provided in 28 U.S.C. § 1783 (1958 ed.)

Moreover, Federal Rule of Civil Procedure 54(d) lends no support to this Court's conclusion. That Rule provides that 'Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs * *  * .' In light of the uniform application of the 100-mile limitation both before and after the adoption of 54(d), known to those charged with framing and amending the Rules, its reference to 'costs' can only be interpreted as referring to those traditional court costs, such as the cost of providing transcripts or travel costs limited by the 100-mile rule, normally awarded to a winning litigant.

For these reasons, I would adhere to the traditional formulation of the rule as set forth by the Ninth Circuit that the 'mileage allowable should be that which was traveled within the district, or actual mileage traveled in and out of the district up to 100 miles, whichever is the greater.' Kemart Corp. v. Printing Arts Research Laboratories, Inc., 232 F.2d 897, 904, 57 A.L.R.2d 1234.

Even the narrow decision of the Court today, in the words of Judge Clark, dissenting in this case, 'represents an approach to the English system, never accepted by us because of our conviction that it 'favored the wealthy and unduly penalized the losing party." 324 F.2d, at 370.

Judge Learned Hand once properly observed: 'After now some dozen years of experience I must say that as a litigant I should dread a law suit beyond almost anything else short of sickness and death.'

I would not intensify that dread.

Mr. Justice HARLAN, with whom Mr. Justice STEWART joins, dissenting.