concurring:

The majority finds an abuse of discretion because of its definite and firm conviction that the district judge committed a clear error of judgment in reaching two conclusions: first, that the government never intended to comply with Judge Renfrew’s discovery order and second, that the government’s failure to meet the discovery deadline was due to circumstances within its control. I write separately because after reviewing the record I am not convinced that it was a clear error of judgment for the district judge to arrive at either conclusion. I would still reverse the judgment, however, because I believe that the district court’s order presenting the government with the choice between preclusion of its experts’ reports or paying the taxpayer $10,000 was improper.

The majority finds the district judge’s conclusion that the government never intended to comply with the discovery order inconsistent with the record. Ante at 155-156. However, the majority fails to mention two important facts on which the district judge based this conclusion. First, the district judge found conspicuously lacking in the government’s moving papers any statement of what efforts it made to comply with the June 2, 1980 deadline. Second, the district judge observed that just before one of the government’s experts was hired, he informed the government’s counsel that it was unlikely that his appraisal would be completed before the fall of 1980. The government’s counsel was aware at that time that Judge Renfrew had already set the June 2, 1980 deadline. Despite this knowledge, the government hired this expert and did not request an extension of time for the exchange of reports. Taking these two facts into consideration, I cannot agree that the district judge’s conclusion as to the government’s intentions was necessarily inconsistent with the record.

With respect to the majority’s determination that the government’s delay was due to circumstances not within its control, I believe the majority is mistaken. The majority argues that the government’s counsel was not responsible for failing to meet the discovery deadline. However, it is the government and not its counsel that is the litigant in this case. Bureaucratic delay may excuse the government’s attorney from being charged with dilatory conduct, but it will not excuse his client. As we said in United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365 (9th Cir. 1980): “The effectiveness of and need for harsh measures is particularly evident when the disobedient party is the government. ‘[T]he public interest requires not only that Court orders be obeyed but further that Governmental agencies which are charged with the enforcement of laws should set the example of compliance with Court orders.’ ” Id. at 1370 , quoting Perry v. Golub, 74 F.R.D. 360, 366 (N.D.Ala.1976). If the cause of the government’s failure to comply with the court’s order is bureaucratic delay as the majority suggests, then harsh measures are called for to encourage those in the government responsible for such delay to take ameliorative action. See id.

The district judge gave the government the choice between exclusion of its experts’ reports and testimony or payment of $10,-000 to the taxpayer. Several times during the hearing on the motion to reconsider, the district judge called the $10,000 payment, which he had reduced from an original amount of $50,000, a “sanction.” However, in his order, he stated:

Rule 37(b) of the Federal Rules of Civil Procedure authorizes the court to impose monetary sanctions in the form of reasonable expenses, including attorneys’ fees, *159 against a party failing to obey a discovery order and the party’s attorney. However, section (f) of that rule states that expenses and attorneys’ fees, may not be awarded against the United States. 1 Rule 37(f) is necessitated by 28 U.S.C. § 2412 , which authorizes the payment of costs “as enumerated in section 1920 ... but not including the fees and expenses of attorneys to the prevailing party in any civil action .... ”

Apparently aware that he could not impose a monetary sanction, conditional or otherwise, against the United States, the district judge was careful in his order to refer to the $10,000 as “compensation for the prejudice Potlatch will suffer.” However, such recasting of the payment cannot change its true character. As the government points out in its brief, the judge gave no explanation how the admission of the government’s evidence would have prejudiced the taxpayer. The record is barren as to the extent of the taxpayer’s prejudice and resulting cost, if any. That the district judge set the payment at $50,000, but then reduced the amount to $10,000 in his order without explanation, further supports the conclusion that the $10,000 amount was not an accurate reflection of the costs incurred by the taxpayer. Furthermore, even if some evidence of actual prejudice had been presented, it is doubtful whether any of the costs resulting would have been of the type enumerated in 28 U.S.C. § 1920 2 which apparently details the only costs for which the United States could be liable. See 28 U.S.C. § 2412 .

Thus, since Rule 37 does not authorize the imposition of a monetary sanction against the government and such a payment does not appear to come within the authority of section 2412 as a cost of judgment, I am of the opinion that the district judge made a clear error of judgment when he conditioned the introduction of the government’s expert testimony on the payment of $10,000 to the taxpayer.

. Rule 37(f) has been subsequently repealed, Pub.L.No.96-481, § 205(a), 94 Stat. 2330 (1980), and section 2412 was amended to allow for the imposition of costs, fees, and other expenses against the United States. Pub.L.No. 96-481, § 204(a), 94 Stat. 2327 (1980), codffied at 28 U.S.C. § 2412 (b). These subsequent changes do not apply to the present case, however, since they are only applicable to an adjudication which is pending on, or commenced on or after October 1, 1981.

. Section 1920 lists the following costs which may be taxed:

28 U.S.C. § 1920 .