                                   United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 91-5013.

                          Forest Henry SHIPES, et al., Plaintiffs-Appellants,

                                                   v.

                            TRINITY INDUSTRIES, Defendant-Appellee.

                                            Sept. 14, 1994.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.

          E. GRADY JOLLY, Circuit Judge:

                                                    I

          The issue before us today is whether section 113(b) of the Civil Rights Act of 1991 ("1991

Act")—providing for payment of expert witness fees as part of costs—should apply "retroactively"

in this case where both the relevant conduct (i.e., the race discrimination) and the trial court's ruling

(denying the fee request) occurred before the effective date of the 1991 Act. 1 Section 113 of the

1991 Act provides for the award of reasonable attorney's fees "(including expert fees)" under 42

U.S.C. § 2000e-5(k).2 We originally withheld the disposition of this one issue because the Supreme

Court had granted certiorari in Landgraf v. USI Film Prods.3 in order to address the retroactive

application of the 1991 Act. Now that Landgraf has been decided,4 we direct our attention to this

remaining issue, holding that section 113(b) of the 1991 Act does not apply under the facts presented


   1
     This issue was originally raised on cross-appeal by plaintiffs-appellees, Forrest Henry Shipes,
et al., in the case of Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir.1993). The cross-appeal,
however, was severed from that case on motion of plaintiffs-appellees and by order of this court.
See id. at 311 n. *. The underlying facts that gave rise to this action and the procedural history of
this case are reported therein. See id.
   2
       Shipes sought to recover $63,305.91 in expert witness fees.
   3
   968 F.2d 427 (5th Cir.1992), cert. granted, in part, 507 U.S. ----, 113 S.Ct. 1250, 122
L.Ed.2d 649 (1993).
   4
       See --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
in this case. Accordingly, we affirm the judgment of the district court.

                                                      II

          At the time of this appeal, this circuit had decided that various sections of the Civil Rights Act

of 1991 did not apply retroactively.5 As previously noted, however, we withheld our disposition of

the issue in the present case, on motion of the parties, to await guidance from the United States

Supreme Court. Since that time, the Supreme Court has addressed the issue of retroactive

application of certain provisions of the 1991 Act. The Court held that sections 1016 (defining the

term "make and enforce contracts") and 1027 (relating to jury trials and damages) are not retroactive,

that is, neither section applies to cases involving discrimination that occurred before the effective date

of the 1991 Act. The Supreme Court, however, explicitly left open the question of whether the

remaining provisions of the 1991 Act apply to cases that involve pre-enactment conduct.8 Thus, in

the light of the Supreme Court's analysis in Landgraf and Rivers, we must now decide how to apply

retroactivity principles to section 113 of the 1991 Act, which provides for the award of expert witness

fees.

           The tension in determining the application of the rule of retroactivity arises because of two,

   5
    See Landgraf v. USI Film Prods., 968 F.2d 427 (5th Cir.1992) (sections 102(a)(1) and 102(c)
do not apply retroactively); Rowe v. Sullivan, 967 F.2d 186 (5th Cir.1992) (section 114(1) does
not apply retroactively); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1372 (5th Cir.1992)
(section 101(2)(b) does not apply retroactively); Valdez v. San Antonio Chamber of Commerce,
974 F.2d 592, 594-95 (5th Cir.1992) (sections 101(2)(b) and 102(c)(1) do not apply
retroactively); Wilson v. UT Health Ctr., 973 F.2d 1263, 1267 (5th Cir.1992) (section 102(c)
does not apply retroactively); Wilson v. Belmont Homes, Inc., 970 F.2d 53, 56 (5th Cir.1992)
(section 102 does not apply retroactively).
   6
       See Rivers v. Roadway Express, Inc., --- U.S. ----, 114 S.Ct. 1510, 128 L.Ed.2d 174 (1994).
   7
       See Landgraf, --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
   8
       The Court stated:

                  [T]here is no special reason to think that all the diverse provisions of the Act must
                  be treated uniformly for such purposes. To the contrary, we understand the
                  instruction that the provisions are to "take effect upon enactment" to mean that
                  courts should evaluate each provision of the Act in light of ordinary judicial
                  principles concerning the application of new rules to pending cases and
                  pre-enactment conduct.

          Landgraf, --- U.S. at ----, 114 S.Ct. at 1505.
seemingly conflicting, cannons of statutory construction. The first is that "a court is to apply the law

in effect at the time it renders its decision." Bradley v. School Board of the City of Richmond, 416

U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). The second is that "congressional

enactments and administrative rules will not be construed to have retroactive effect unless their

language requires this result." Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct.

468, 471, 102 L.Ed.2d 493 (1988). Landgraf provides that in order to resolve this tension and

determine whether to apply an intervening statute in any given case, we must decide whether the

intervening statute has a "genuinely "retroactive' effect." Landgraf, --- U.S. at ----, 114 S.Ct. at

1503. An intervening statute should not apply to a pending case if application of the statute would

        impair rights a party possessed when he acted, increase a party's liability for past conduct, or
        impose new duties with respect to transactions already completed.

Landgraf, --- U.S. ----, 114 S.Ct. at 1505.

         Based on this language, Trinity Industries ("TI") argues that section 113 should not be

applied in the present case. TI's argument is that application of section 113 to the present case would

have a "genuinely retroactive effect" because it would increase TI's liability for its past conduct by

as much as $63,305.91, the amount that the plaintiffs seek to recover for expert witness fees. In our

circuit, it is clear that before the passage of the 1991 Act, a plaintiff could not recover expert witness

fees. See International Woodworkers of America v. Champion International Corp., 790 F.2d 1174

(5th Cir.1986) (en banc ), aff'd sub nom. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,

107 S.Ct. 2494, 96 L.Ed.2d 385 (1987).

        Although TI's argument finds strong support in various sections of the Landgraf opinion, we

conclude that its analysis is nevertheless inconsistent with other discussions and analyses set out in

that opinion. Specifically, TI's analysis is inconsistent with that part of the Court's opinion reaffirming

that procedural changes usually should be applied to pending cases. The court stated that

                 Changes in procedural rules may often be applied in suits arising before their
        enactment without raising concerns about retroactivity.... Because rules of procedure
        regulate secondary rather t han primary conduct, the fact that a new procedural rule was
        instituted after the conduct giving rise to the suit does not make application of the rule at trial
        retroactive.

Landgraf, --- U.S. at ----, 114 S.Ct. at 1502. (footnote omitted) (citations omitted). Further, the
Court concluded that an intervening rule concerning attorney's fees was just such a procedural rule,

stating that "[a]ttorney's fee determinations ... are "collateral to the main cause of action' and

"uniquely separable from the cause of action to be proved at trial.' " Landgraf, --- U.S. at ----, 114

S.Ct. at 1503 (citing White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451-52,

102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982)).

          Yet the Court noted further that not all new procedural rules should apply to all pending

cases. Landgraf, --- U.S. at ---- n. 29, 114 S.Ct. at 1502 n. 29. More to our point, the Court

indicated t hat when a procedural matter has been properly decided under the old rule, and a new

procedural rule is subsequently enacted while the ultimate resolution of the case is still pending, no

reversal is required. Id.

          In the present appeal, the order denying expert witness fees was entered on December 23,

1987, at the close of the liability phase of the trial—almost three years before the enactment date of

the 1991 Act.9 Thus, in this case, where the district court correctly decided the issue of expert fees

under the law that was undeniably applicable at the time it ruled, the district court com mitted no

reversible error. We, therefore, find it unnecessary to decide in this case whether, in other cases

based on preenactment discrimination, section 113 would apply to applications for expert witness

fees, when such applications are ruled on after the 1991 Act's enactment date.

                                                   III

          In sum, we hold that the district court committed no reversible error, because at the time of

its decision, the 1991 Act clearly did not apply. The district court properly decided the issue of

expert witness fees based on the law applicable at the time it made its decision, and its ruling is

therefore

          AFFIRMED.




   9
       The President signed the 1991 Act into law on November 21, 1991.
