IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40431
ASHLAND CHEMICAL INC
Plaintiff-Appellant,
v.
BARCO INC, ET AL
Defendants,
MESH PLASTICS LTD
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
September 15, 1997
Before REAVLEY, KING, and BARKSDALE, Circuit Judges.
KING, Circuit Judge:
Plaintiff-appellant Ashland Chemical, Inc. appeals the
district court’s order granting defendant-appellee Mesh Plastics,
Ltd. an award of legal fees under Article 6, Section 9 of the
Eastern District of Texas’s Civil Justice Expense and Delay
Reduction Plan. Because we find that Article 6, Section 9 of
that Plan is a fee-shifting provision that was not authorized by
Congress, we reverse the district court’s award of legal fees to
Mesh.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ashland Chemical, Inc. (Ashland) sued Mesh Plastics, Ltd.
(Mesh), Barco, Inc., and Lakiva Corp. in September of 1992,
claiming that it suffered over $200,000 in damages as a result of
defects in chemical holding tanks that it purchased from
defendants. Mesh’s primary defense was that its agent was
unauthorized to bind it to the sales agreement upon which Ashland
relied. Following the entry of default judgments against the
other two defendants, Mesh presented Ashland with a written offer
of judgment in the amount of $1000 pursuant to Article 6,
Section 9 (the Local Rule) of the Civil Justice Expense and Delay
Reduction Plan (CJEDR Plan) of the Eastern District of Texas.
The Local Rule provides as follows:
(9) Offer of Judgment. At the Management Conference
or any time thereafter, a party may make a written
offer of judgment. If the offer of judgment is not
accepted and the final judgment in the case is of more
benefit to the party who made the offer by 10%, then
the party who rejected the offer must pay the
litigation costs incurred after the offer was rejected.
In personal injury and civil rights cases involving
contingent attorneys’ fees, the award of litigation
costs shall not exceed the amount of the final
judgment. The Court may, in its discretion, reduce the
award of litigation costs in order to prevent undue
hardship to a party.
“Litigation costs” means those costs which are
directly related to preparing the case for trial and
actual trial expenses, including but not limited to
reasonable attorneys’ fees, deposition costs and fees
for expert witnesses.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL
JUSTICE EXPENSE AND DELAY REDUCTION PLAN, art. 6, § 9 (1997). In
accordance with the requirements of the Local Rule, Mesh set a
2
deadline of May 1, 1993 for acceptance or rejection of the offer.
In addition, Mesh’s counsel stated in his letter: “If for some
reason you believe that the time allowed is unreasonable, please
contact me and perhaps we can make other arrangements.” Ashland
replied that it was unable to evaluate the offer because it was
still awaiting a response to an outstanding discovery request.
On May 1, 1993, the offer expired.
On March 28 and 29, 1994, the case was tried before a jury.
The jury returned a verdict in favor of Mesh, and the court
entered a take-nothing judgment and dismissed the case on the
merits. Thereafter, Mesh filed a Motion for Assessment of
Litigation Costs seeking $53,465.60 in attorneys’ fees and
expenses pursuant to the Local Rule. The district court granted
Mesh’s motion and ordered Ashland to pay the requested amount.
Ashland then filed a Motion for Reconsideration, arguing on
various theories that the Local Rule was invalid. The district
court denied the motion in a Memorandum Opinion and Order, and
Ashland now appeals that decision.
II. STANDARD OF REVIEW
We review de novo the conclusions of law made by a district
court. Prudhomme v. Tenneco Oil Co., 955 F.2d 390, 392 (5th.
Cir.), cert. denied, 506 U.S. 826 (1992). We accept a district
court’s factual findings unless they are clearly erroneous. Id.
In this case, the issues raised on appeal are questions of law.
3
III. DISCUSSION
Ashland argues that the Local Rule is a substantive fee-
shifting provision that was not authorized by Congress. Mesh,
however, insists that the Civil Justice Reform Act of 1990
(CJRA), 28 U.S.C. §§ 471-482, implicitly authorizes the Local
Rule. Ashland disagrees, contending that if Congress had
intended to authorize such action, it would have included
explicit language to that effect in the statute. Ashland further
argues that because the Local Rule is substantive in nature,
under the Supreme Court’s decision in Alyeska Pipeline Service
Co. v. Wilderness Society, 421 U.S. 240 (1975), it must be
specifically authorized by Congress in order to be valid. Mesh
counters that Alyeska does not control the outcome of this case,
and argues instead that the Court’s more recent decision in
Chambers v. NASCO, Inc., 501 U.S. 32 (1991), is the most relevant
precedent.1
A. Fee-Shifting Rules Generally
1
Ashland advances several alternative arguments for the
invalidity of the Local Rule. Ashland first argues that the
Local Rule impermissibly conflicts with Federal Rules of Civil
Procedure 68 and 83; the Rules Enabling Act, 28 U.S.C. § 2071(a)
(1994); and the Fees Act of 1873, 28 U.S.C. § 1920 (1994).
Ashland insists that these departures from established law were
not authorized by the CJRA. In addition, Ashland challenges the
Local Rule as violative of the Equal Protection Clause of the
United States Constitution. Ashland also argues that even if the
Local Rule is valid, the district court erred in awarding fees to
Mesh because the offer of judgment was unreasonable and was not
made in good faith. We decline to address these alternative
arguments because we find that the Local Rule is a substantive
fee-shifting provision which was not authorized by the CJRA.
4
This court has held that, “in an ordinary diversity case,
state rather than federal law governs the issue of the awarding
of attorney’s fees.” Shelak v. White Motor Co., 636 F.2d 1069,
1072 (5th Cir. Unit A Feb. 1981). It is undisputed that under
Texas law Mesh would not be entitled to attorneys’ fees because
Texas follows the “‘American Rule’ which imposes the burden of
attorney’s fees upon the individual litigants.” Crenshaw v.
General Dynamics Corp., 940 F.2d 125, 129 (5th Cir. 1991).
In addition, in Alyeska, the Supreme Court addressed the
issue of fee shifting:
“[I]n an ordinary diversity case where the state law
does not run counter to a valid federal statute or rule
of court, and usually it will not, state law denying
the right to attorney’s fees or giving a right thereto,
which reflects a substantial policy of the state,
should be followed.”
421 U.S. at 259 n.31 (quoting 6 J. MOORE, FEDERAL PRACTICE
§ 54.77(2), at 1712-13 (2d ed. 1974)). Alyeska involved a suit
brought by environmental groups that were attempting to bar the
construction of an oil pipeline. Id. at 241-43. The sole issue
before the Supreme Court was the lower court’s decision to award
attorneys’ fees to the environmental groups where no applicable
statute provided for such an award. Id. at 245. Relying on the
“American rule”--“the prevailing litigant is ordinarily not
entitled to collect a reasonable attorneys’ fee from the loser”--
the Court held that “it would be inappropriate for the Judiciary,
without legislative guidance, to reallocate the burdens of
litigation in the manner and to the extent urged by respondents
and approved by the Court of Appeals.” Id. at 247. Although the
5
Court took care to note that courts possess “inherent power . . .
to allow attorneys’ fees in particular situations, unless
forbidden by Congress,” it declined to expand the scope of those
situations. Id. at 259.
More recently, however, the Supreme Court has defined and
limited the scope of Alyeska’s determination that fee shifting is
substantive in nature and must be congressionally authorized. In
Chambers, the district court, relying on its inherent power to
sanction bad-faith conduct, ordered defendant Chambers and his
attorney to pay almost one million dollars in attorneys’ fees and
expenses. 501 U.S. at 40. The Supreme Court upheld the award,
holding that when sanctions under applicable rules and statutes
are inadequate, a court may call upon its inherent powers to
“assess attorney’s fees when a party has ‘“acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.”’” Id. at 45-
46 (quoting Alyeska, 421 U.S. at 258-59 (quoting F.D. Rich Co. v.
United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129
(1974))). Further, the Court noted that when a federal court
sits in a diversity case, its inherent power to use fee shifting
as a sanction for bad-faith conduct is not limited by the forum
state’s law regarding sanctions. Id. at 52-53. The Court
distinguished Alyeska, stating that “[t]he limitation on a
court’s inherent power described [in footnote 31 of Alyeska]
applies only to fee-shifting rules that embody a substantive
policy, such as a statute which permits a prevailing party in
certain classes of litigation to recover fees.” Id. at 52.
6
Taken together, these cases stand for the proposition that
substantive departures from the American rule and its traditional
exceptions must be authorized by Congress. See id. at 47.
Indeed, as the Court explained in Chambers:
[T]he narrow exceptions to the American Rule
effectively limit a court’s inherent power to impose
attorney’s fees as a sanction to cases in which a
litigant has engaged in bad-faith conduct or willful
disobedience of a court’s orders . . . .
. . . Nevertheless, “we do not lightly assume that
Congress has intended to depart from established
principles” such as the scope of a court’s inherent
power.
Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 313
(1982)). Thus, Chambers did not eviscerate the core holding of
Alyeska that congressional authorization is necessary for novel
departures from the American rule; rather it merely served to
clarify that, despite Alyeska, courts retained their traditional,
inherent power to sanction bad-faith conduct through the
assessment of costs and attorneys’ fees.
We therefore must determine whether the Local Rule is
procedural, like sanctions for bad-faith conduct, or
substantive.2 Whether a rule that allows fee shifting is
2
At oral argument Mesh suggested that we analyze the
Local Rule in this case with the same deference that we accord
the Federal Rules of Civil Procedure. Under the framework
advanced by the Supreme Court in Sibbach v. Wilson & Co., 312
U.S. 1 (1941), and refined in Hanna v. Plumer, 380 U.S. 460
(1965), a federal procedural rule must “really regulate[]
procedure” in order to apply in a diversity case despite a
conflict with state law. Sibbach, 312 U.S. at 14. Under this
test, the Rules Enabling Act, 28 U.S.C. §§ 2071-2077 (1994), has
been interpreted to authorize any Federal Rule of Civil Procedure
that is procedural in form and has a procedural purpose, despite
the fact that such a rule may have some inadvertent effect on the
7
procedural or substantive depends on the purposes and policies
behind the rule itself. Hanna v. Plumer, 380 U.S. 460, 471
(1965) (“The line between ‘substance’ and ‘procedure’ shifts as
the legal context changes. ‘Each implies different variables
depending upon the particular problem for which it is used.’”
(quoting Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945))).
Indeed, as the Chambers Court noted, the distinction is closely
tied to the “‘twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration of the
laws.’” 501 U.S. at 52 (quoting Hanna, 380 U.S. at 468). Under
litigants’ substantive rights. Indeed, the Court has stated that
when a Federal Rule of Civil Procedure is at issue,
the question facing the court is a far cry from the
typical, relatively unguided Erie choice: the court
has been instructed to apply the Federal Rule, and can
refuse to do so only if the Advisory Committee, [the
Supreme] Court, and Congress erred in their prima facie
judgment that the Rule in question transgresses neither
the terms of the Enabling Act nor constitutional
restrictions.
Hanna, 380 U.S. at 471.
The Local Rule, however, is not a Federal Rule of Civil
Procedure. It is not a rule that is followed throughout the
nation or even throughout this Circuit, and although it is the
product of careful consideration by practitioners and judges, it
was not subject to possible congressional veto as were the
Federal Rules of Civil Procedure. See Sibbach, 312 U.S. at 14-15
(discussing the submission of the Federal Rules of Civil
Procedure to Congress so that it could “examine them and veto
their going into effect if contrary to the policy of the
legislature”). Indeed, at this point not even one other district
has included a similar fee-shifting provision in its CJEDR plan.
As a result, we decline to extend Hanna’s more lenient scrutiny
of the Federal Rules of Civil Procedure to include the Local
Rule.
8
the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938), in a diversity case a federal court must apply the
substantive law of the state while following federal procedural
rules. Hanna, 380 U.S. at 465, 471. Unfortunately, a clear and
obvious distinction between rules of procedure and rules of
substance does not always exist. Regarding the difficulty of
this determination, the Supreme Court has stated:
“[T]he question is not whether [something] is deemed a
matter of ‘procedure’ in some sense. The question is .
. . does it significantly affect the result of a
litigation for a federal court to disregard a law of a
State that would be controlling in an action upon the
same claim by the same parties in a State court?”
Id. at 466 (quoting Guaranty Trust, 326 U.S. at 109). The award
of attorneys’ fees pursuant to a plan adopted in order to
decrease cost and delay in the federal courts presents just such
a difficult issue.
Mesh argues that, in this case, the policies behind the rule
more closely resemble those at issue in Chambers. Mesh contends
that the Local Rule is procedural in nature because it will not
affect parties’ choice of forum; rather, it will simply serve to
regulate their behavior before the court, forcing them to think
more seriously before refusing an offer of judgment. We
disagree.
Admittedly, important procedural goals underlie the Local
Rule, but a rule’s stated purpose is not the sole consideration
in determining whether it is substantive or procedural. See
Hanna, 380 U.S. at 466-71. Application of the Local Rule, unlike
the imposition of bad-faith sanctions in Chambers, is tied to the
9
outcome of the case.3 Under the Local Rule, for example, a
defendant who receives a judgment that is more than 10% better
than her earlier offer of judgment is, at least in a limited
sense, a prevailing party because the end result of the
litigation leaves her better off than if she had settled for the
proposed amount. Moreover, having won a take-nothing judgment on
a claim of over $200,000, Mesh actually was the prevailing party
in this case. As the Supreme Court stated in Chambers, a fee-
shifting provision “which permits a prevailing party . . . to
recover fees” embodies a substantive policy. 501 U.S. at 52. As
a result, we disagree with the district court’s conclusion and
find that the Local Rule is substantive in nature and therefore
requires congressional approval as mandated by the Supreme Court
in Alyeska.
B. Congressional Authorization of Fee Shifting
Mesh next argues that Congress authorized the Local Rule in
the CJRA. In general, the capacity of the federal courts to
prescribe rules of practice and procedure is governed by the
Rules Enabling Act, 28 U.S.C. §§ 2071-2077 (1994), which states
that “[s]uch rules shall not abridge, enlarge or modify any
substantive right.” Id. § 2072(b). In 1990, however, Congress
3
The Local Rule, when applied in a diversity case, also
implicates the Erie problem of forum-shopping. See Erie, 304
U.S. at 75. Undoubtedly, the possibility of receiving or paying
attorneys’ fees will be a consideration when plaintiffs decide
where to file a diversity action and when defendants decide
whether to remove such an action to federal court.
10
passed the CJRA in an effort to encourage district courts to
implement innovative strategies for reducing the costs and delays
of civil litigation. See 28 U.S.C. § 471 (1994). The CJRA
states:
There shall be implemented by each United States
district court . . . a civil justice expense and delay
reduction plan. . . . The purposes of each plan are to
facilitate deliberate adjudication of civil cases on
the merits, monitor discovery, improve litigation
management, and ensure just, speedy, and inexpensive
resolutions of civil disputes.
Id. Pursuant to this congressional mandate, the United States
District Court for the Eastern District of Texas adopted its
CJEDR Plan, which includes the Local Rule. See UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL JUSTICE EXPENSE
AND DELAY REDUCTION PLAN, art. 6, § 9 (1997). The question that we
must address is whether the CJRA authorizes the adoption of a
fee-shifting provision such as the Local Rule.4
Mesh argues that the following catch-all provision of the
CJRA implicitly authorizes the Local Rule:
(b) In formulating the provisions of its civil
justice expense and delay reduction plan, each United
States district court, in consultation with an advisory
group appointed under section 478 of this title, shall
4
We assume, without deciding, that it was within the
power of Congress to authorize the district courts to create fee-
shifting provisions such as the Local Rule. We note however,
that it is not clear that Congress has the power to supplant the
American rule in diversity cases. Cf. Hanna v. Plumer, 380 U.S.
460, 471-72 (1965) (“[N]either Congress nor the federal courts
can, under the guise of formulating rules of decision for federal
courts, fashion rules which are not supported by a grant of
federal authority contained in Article I or some other section of
the Constitution; in such areas state law must govern because
there can be no other law.”).
11
consider and may include the following litigation
management and cost and delay reduction techniques:
. . . .
(6) such other features as the district court
considers appropriate after considering the
recommendations of the advisory group referred to in
section 472(a) of this title.
28 U.S.C. § 473(b)(6) (1994).
In addition, both Mesh and the district court direct our
attention to Friends of the Earth, Inc. v. Chevron Chemical Co.,
885 F. Supp. 934 (E.D. Tex. 1995). In Friends of the Earth, the
court also addressed the propriety of the Local Rule. Id. at
938. That court determined that the language of § 473(b)(6) of
the CJRA was “clear and unambiguous” in authorizing the rule’s
adoption. Id. We disagree. In interpreting the CJRA, the
Friends of the Earth court stated that, “[w]hen the language of a
statute is unambiguous, ‘the court does not look beyond its
express terms.’” Id. at 939 n.3 (quoting United States v.
Evinger, 919 F.2d 381, 383 (5th Cir. 1990)). We do not dispute
this rule of interpretation, but this statute is not unambiguous
on the issue of fee shifting.
We begin our statutory analysis with the actual language of
the provision at issue. Pongetti v. General Motors Acceptance
Corp. (In re Locklin), 101 F.3d 435, 439 (5th Cir. 1996) (“‘The
starting point in every case involving a construction of a
statute is the language itself.’” (quoting Greyhound Corp. v. Mt.
Hood Stages, Inc., 437 U.S. 322, 330 (1978))). The text of the
CJRA makes no mention of fee shifting.
12
Where a statute is silent or ambiguous as to an issue, we
next look to the legislative history for guidance as to the
intent of the legislators. United States v. Fitzhugh, 984 F.2d
143, 146 (5th Cir.), cert. denied, 510 U.S. 895 (1993). Neither
this court nor either of the parties has found any mention of fee
shifting in the legislative history of the CJRA. What is clear
from the legislative history is that Congress intended the CJRA
to grant the district courts broad power to implement innovative
strategies within a six-point framework:
Title I is built upon six essential components aimed at
improving litigation management and reducing litigation
costs and delays. Briefly, those principles are:
(1) building reform from the “bottom up”;
(2) promulgating a national, statutory policy in
support of judicial case management;
(3) imposing greater controls on the discovery
process;
(4) establishing differentiated case management
systems;
(5) improving motions practice and reducing undue
delays associated with decisions on motions; and
(6) expanding and enhancing the use of alternative
dispute resolution.
S. REP. NO. 101-416, at 14 (1990), reprinted in 1990 U.S.C.C.A.N.
6803, 6817. Relying on the legislative history of the CJRA,
Mesh argues that this expansive grant of power to the district
courts includes the power to experiment outside of the confines
of the Federal Rules of Civil Procedure.5 Regardless of whether
5
The Federal Rules of Civil Procedure also contain an
offer of judgment provision, and one of Ashland’s alternative
arguments contends that the Local Rule is in conflict with that
rule. See FED. R. CIV. P. 68. We decline to address this
argument, but we note that Rule 68 differs from the Local Rule in
three important ways.
First, Rule 68 allows only the defendant to make an offer of
13
the CJRA allows deviation from the Federal Rules of Civil
Procedure, there is no evidence that Congress intended it to
authorize the creation of a substantive fee shifting provision
such as the Local Rule.
Finally, because the Eastern District of Texas is the only
district that has adopted a fee-shifting provision in its CJEDR
plan, we can find no cases from other circuits that address this
particular issue.6
judgment, while the Local Rule allows either party to do so.
Compare id. (“At any time more than 10 days before the trial
begins, a party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken against the
defending party . . . .”), with UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TEXAS, CIVIL JUSTICE EXPENSE AND DELAY REDUCTION
PLAN, art. 6, § 9 (1997) (“At the Management Conference or any
time thereafter, a party may make a written offer of judgment.”).
Second, while the Local Rule requires that the final
judgment be ”of more benefit to the party who made the offer by
10%,” UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS,
CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN, art. 6, § 9 (1997),
Rule 68 only requires that the judgment obtained by the offeree
“is not more favorable than the offer,” FED. R. CIV. P. 68,
before allowing the court to shift costs.
Third, and most important for this case, Rule 68 only
provides for the shifting of costs, while the Local Rule allows
the offeror to receive both costs and attorneys’ fees. Compare
FED. R. CIV. P. 68 (“If the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree must
pay the costs incurred after the making of the offer.”), with
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL
JUSTICE EXPENSE AND DELAY REDUCTION PLAN, art. 6, § 9 (1997) (“If the
offer of judgment is not accepted and the final judgment in the
case is of more benefit to the party who made the offer by 10%,
then the party who rejected the offer must pay the litigation
costs incurred after the offer was rejected. . . . ‘Litigation
costs’ . . . includ[es] . . . reasonable attorneys’ fees.”).
6
Two other districts (the District of Hawaii and the
Western District of Washington) are considering adopting similar
fee-shifting rules, but there is no evidence that either of the
provisions have actually been promulgated. DAVID RAUMA & DONNA
14
Given this lack of explanation or discussion in the statute,
its legislative history, or the case law, we must examine the
entire statute to determine the context in which the catch-all
provision should be understood. See Crandon v. United States,
494 U.S. 152, 158 (1990) (“In determining the meaning of the
statute, we look not only to the particular statutory language,
but to the design of the statute as a whole and to its object and
policy.”); see also Pongetti, 101 F.3d at 439.
A list of several specific expense and delay reduction
techniques precedes the catch-all provision in the CJRA,
illustrating the types of initiatives that Congress had in mind
in drafting the statute. See 28 U.S.C. § 473(b) (1994). These
include (1) requiring the parties to present a “discovery-case
management plan” at the initial pretrial conference; (2)
requiring that each party send to each pretrial conference a
representative who is authorized to bind that party “regarding
all matters previously identified by the court for discussion at
the conference;” (3) requiring both the attorney and the party to
sign requests for “extensions of deadlines for completion of
discovery or for postponement of the trial;” (4) creating a
“neutral evaluation program for the presentation of the legal and
factual basis of a case to a neutral court representative” early
in the litigation; and (5) requiring that representatives of each
STIENSTRA, FEDERAL JUDICIAL CTR., THE CIVIL JUSTICE REFORM ACT EXPENSE
AND DELAY REDUCTION PLANS: A SOURCEBOOK, 309 tbl.15 at 313, 327
(1995). In addition, the Northern District of Florida requires
that the losing party in a discovery dispute pay the fees and
costs of the prevailing party. Id. at 312.
15
party with authority to settle “be present or available by
telephone during any settlement conference.” Id. § 473(b)(1)-(5)
(1994).
While we agree with the Friends of the Earth court’s
determination that the CJRA was intended to allow the district
courts to experiment, perhaps even beyond the strict confines of
the Federal Rules of Civil Procedure, we think that the tenor of
the CJRA’s own specific provisions serves to limit the scope of
the catch-all provision. Clearly, none of the other provisions
described above contemplates anything resembling the drastic
reallocation of rights that the Local Rule effects.
Moreover, the Supreme Court decided Alyeska before Congress
passed the CJRA. Thus, at the time that the CJRA was under
consideration, Congress knew that the Supreme Court was unwilling
to extend fee-shifting rights without some explicit congressional
authorization. We adhere to the “longstanding . . . principle
that ‘[s]tatutes which invade the common law . . . are to be read
with a presumption favoring the retention of long-established and
familiar principles, except when a statutory purpose to the
contrary is evident.’” United States v. Texas, 507 U.S. 529, 534
(1993). Thus, “[a] party contending that legislative action
changed settled law has the burden of showing that the
legislature intended such a change.” Green v. Bock Laundry
Machine Co., 490 U.S. 504, 521 (1989). In this case, Mesh has
failed to carry that burden. Had Congress intended to authorize
fee shifting in the CJRA, it could have done so (but cf. supra
16
note 4), but absent any mention of such a provision in the
statute itself or in the legislative history, we must assume that
Congress did not intend to allow individual districts to make so
substantial a change. We therefore find that the CJRA did not
grant district courts the discretion to use fee shifting as a
cost and delay reduction technique in the manner contemplated by
the Local Rule.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the
district court awarding Mesh $53,465.60 in legal fees and
expenses.
17