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

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. [175] 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 courta 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). [176] 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 courtappointed 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. [177] 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. [178] 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