After petitioner West Virginia University Hospitals, Inc.
(WVUH), prevailed at trial in its suit under 42 U.S.C. § 1983
against respondent Pennsylvania officials over medicaid
reimbursement rates for services provided Pennsylvania residents,
the District Court awarded fees pursuant to § 1988, which,
inter alia, gives the court in certain civil rights suits
discretion to allow the prevailing party "a reasonable attorney's
fee as part of the costs." WVUH's award included fees attributable
to an accounting firm and three doctors specializing in hospital
finance hired to assist in the preparation of the suit and to
testify. The Court of Appeals affirmed as to the merits, but
reversed as to the expert fees, disallowing them except to the
extent that they fell within the $30-per-day fees for witnesses
provided by 28 U.S.C. §§ 1920(3) and 1821(b).
Held: Fees for services rendered by experts in civil
rights litigation may not be shifted to the losing party as part of
"a reasonable attorney's fee" under § 1988. Pp.
499 U. S.
86-102.
(a) Sections 1920 and 1821(b) define the full extent of a
federal court's power to shift expert fees, whether testimonial or
nontestimonial, absent "explicit statutory authority to the
contrary."
Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U. S. 437,
482 U. S. 439;
see id. at
482 U. S. 441.
This Court will not lightly infer that Congress has repealed those
sections through a provision like § 1988 that does not refer
explicitly to witness fees.
See id. at
482 U. S. 445.
Pp.
499 U. S.
86-87
(b) Statutory usage before, during, and after 1976 (the date of
§ 1988's enactment) did not regard the phrase "attorney's fees" as
embracing fees for experts' services. Pp.
499 U. S.
88-92.
(c) At the time of § 1988's enactment, judicial usage did not
regard the phrase "attorney's fees" as including experts' fees. Pp.
499 U. S.
92-97.
(d) Where, as here, a statute contains a phrase that is
unambiguous, this Court's sole function is to enforce it according
to its terms.
See, e.g., United States v. Ron Pair Enterprises,
Inc., 489 U. S. 235,
489 U. S. 241.
Although chronology and the remarks of some sponsors of the bill
that became § 1988 suggest that it was viewed as a response to
Alyeska Pipeline Service Co. v. Wilderness Society,
421 U. S. 240
(1975), the text of
Page 499 U. S. 84
§ 1988 is both broader and narrower than the
pre-
Alyeska regime. The best evidence of congressional
purpose is the statutory text, which cannot be expanded or
contracted by the statements of individual legislators or
committees during the enactment process. WVUH's argument that
Congress would have included expert fees in § 1988 if it had
thought about it, as it did in the EAJA, and that this Court has a
duty to ask how Congress would have decided had it actually
considered the question, profoundly mistakes the Court's role with
respect to unambiguous statutory terms.
See Iselin v. United
States, 270 U. S. 245,
270 U. S.
250-251. Pp.
499 U. S.
97-101.
885 F.2d 11 (CA3 1989), affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ.,
joined. MARSHALL, J., filed a dissenting opinion,
post, p.
499 U. S. 102.
STEVENS, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined,
post, p.
499 U. S.
103.
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether fees for services
rendered by experts in civil rights litigation may be shifted to
the losing party pursuant to 42 U.S.C. § 1988, which permits the
award of "a reasonable attorney's fee."
Page 499 U. S. 85
I
Petitioner West Virginia University Hospitals, Inc. (WVUH),
operates a hospital in Morgantown, W.Va., near the Pennsylvania
border. The hospital is often used by medicaid recipients living in
southwestern Pennsylvania. In January, 1986, Pennsylvania's
Department of Public Welfare notified WVUH of new medicaid
reimbursement schedules for services provided to Pennsylvania
residents by the Morgantown hospital. In administrative
proceedings, WVUH unsuccessfully objected to the new reimbursement
rates on both federal statutory and federal constitutional grounds.
After exhausting administrative remedies, WVUH filed suit in
Federal District Court under 42 U.S.C. § 1983. Named as defendants
(respondents here) were Pennsylvania Governor Robert Casey and
various other Pennsylvania officials.
Counsel for WVUH employed Coopers & Lybrand, a national
accounting firm, and three doctors specializing in hospital finance
to assist in the preparation of the lawsuit and to testify at
trial. WVUH prevailed at trial in May, 1988. The District Court
subsequently awarded fees pursuant to 42 U.S.C. § 1988, [
Footnote 1] including over $100,000 in
fees attributable to expert services. The District Court found
these services to have been "essential" to presentation of the case
-- a finding not disputed by respondents.
Respondents appealed both the judgment on the merits and the fee
award. The Court of Appeals for the Third Circuit affirmed as to
the former, but reversed as to the expert fees, disallowing them
except to the extent that they fell within the $30-per-day fees for
witnesses prescribed by 28 U.S.C. § 1821. 885 F.2d 11 (CA3 1989).
WVUH petitioned
Page 499 U. S. 86
this Court for review of that disallowance; we granted
certiorari, 494 U.S. 1003.
II
28 U.S.C. § 1920 provides:
"A judge or clerk of any court of the United States may tax as
costs the following:"
"(1) Fees of the clerk and marshal;"
"(2) Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the
case;"
"(3) Fees and disbursements for printing and witnesses;"
"(4) Fees for exemplification and copies of papers necessarily
obtained for use in the case;"
"(5) Docket fees under section 1923 of this title;"
"(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title."
28 U.S.C. § 1821(b) limits the witness fees authorized by §
1920(3) as follows:
"A witness shall be paid an attendance fee of $30 per day for
each day's attendance. A witness shall also be paid the attendance
fee for the time necessarily occupied in going to and returning
from the place of attendance. . . . [
Footnote 2]"
In
Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U. S. 437
(1987), we held that these provisions define the full extent of a
federal court's power to shift litigation costs absent express
statutory authority to go further. "[W]hen," we said,
"a prevailing party seeks reimbursement for fees paid to its own
expert witnesses, a federal court is bound by the limits of §
1821(b), absent contract or explicit statutory authority to the
contrary."
Id. at
482 U. S.
439.
"We will
Page 499 U. S. 87
not lightly infer that Congress has repealed §§ 1920 and 1821,
either through [Fed.Rule Civ.Proc.] 54(d) or any other provision
not referring explicitly to witness fees."
Id. at
482 U. S.
445.
As to the testimonial services of the hospital's experts,
therefore,
Crawford Fitting plainly requires, as
prerequisite to reimbursement, the identification of "explicit
statutory authority." WVUH argues, however, that some of the expert
fees it incurred in this case were unrelated to expert
testimony, and that, as to those fees, the § 1821(b)
limits, which apply only to witnesses in attendance at trial, are
of no consequence. We agree with that, but there remains applicable
the limitation of § 1920.
Crawford Fitting said that we
would not lightly find an implied repeal of § 1821 or of § 1920,
which it held to be an express limitation upon the types of costs
which, absent other authority, may be shifted by federal courts.
482 U.S. at
482 U. S. 441.
None of the categories of expenses listed in § 1920 can reasonably
be read to include fees for services rendered by an expert employed
by a party in a nontestimonial advisory capacity. The question
before us, then, is -- with regard to both testimonial and
nontestimonial expert fees -- whether the term "attorney's fee" in
§ 1988 provides the "explicit statutory authority" required by
Crawford Fitting. [
Footnote 3]
Page 499 U. S. 88
III
The record of statutory usage demonstrates convincingly that
attorney's fees and expert fees are regarded as separate elements
of litigation cost. While some fee-shifting provisions, like §
1988, refer only to "attorney's fees,"
see, e.g., Civil
Rights Act of 1964, 42 U.S.C. § 2000e-5(k), many others explicitly
shift expert witness fees
as well as attorney's fees. In
1976, just over a week prior to the enactment of § 1988, Congress
passed those provisions of the Toxic Substances Control Act, 15
U.S.C. §§ 2618(d), 2619(c)(2), which provide that a prevailing
party may recover "the costs of suit and reasonable fees for
attorneys
and expert witnesses." (Emphasis added.) Also in
1976, Congress amended the Consumer Product Safety Act, 15 U.S.C.
§§ 2060(c), 2072(a), 2073, which as originally enacted in 1972
shifted to the losing party "cost[s] of suit, including a
reasonable attorney's fee,"
see 86 Stat. 1226. In the 1976
amendment, Congress altered the fee shifting provisions to their
present form by adding a phrase shifting expert witness fees
in
addition to attorney's fees.
See Pub.L. 94-284, § 10,
90 Stat. 506, 507. Two other significant acts passed in 1976
contain similar phrasing: The Resource Conservation and Recovery
Act of 1976, 42 U.S.C. § 6972(e) ("costs of litigation (including
reasonable attorney and expert witness fees)"), and the Natural Gas
Pipeline Safety Act Amendments of 1976, 49 U.S.C.App. § 1686(e)
("costs of suit, including reasonable attorney's fees and
reasonable expert witnesses fees").
Congress enacted similarly phrased fee-shifting provisions in
numerous statutes both before 1976,
see, e.g., Endangered
Species Act of 1973, 16 U.S.C. § 1540(g)(4) ("costs of litigation
(including reasonable attorney and expert witness
Page 499 U. S. 89
fees)"), and afterwards,
see, e.g., Public Utility
Regulatory Policies Act of 1978, 16 U.S.C. § 2632(a)(1)
("reasonable attorneys' fees, expert witness fees, and other
reasonable costs incurred in preparation and advocacy of [the
litigant's] position" ). These statutes encompass diverse
categories of legislation, including tax, administrative procedure,
environmental protection, consumer protection, admiralty and
navigation, utilities regulation, and, significantly, civil rights:
The Equal Access to Justice Act (EAJA), the counterpart to § 1988
for violation of federal rights by federal employees, states
that
"'fees and other expenses' [as shifted by § 2412(d)(1)(A)]
includes the reasonable expenses of expert witnesses . . . and
reasonable attorney fees."
28 U.S.C. § 2412(d)(2)(A). At least 34 statutes in 10 different
titles of the U.S.Code explicitly shift attorney's fees
and expert witness fees. [
Footnote 4]
Page 499 U. S. 90
The laws that refer to fees for nontestimonial expert services
are less common, but they establish a similar usage both before and
after 1976: such fees are referred to
in addition to
attorney's fees when a shift is intended. A provision of the 1964
Criminal Justice Act, 18 U.S.C. § 3006A(e), directs the court to
reimburse appointed counsel for expert fees necessary to the
defense of indigent criminal defendants -- even though the
immediately preceding provision, § 3006A(d), already directs that
appointed defense counsel be paid a designated hourly rate plus
"expenses reasonably incurred." WVUH's position must be that expert
fees billed to a client through an attorney are "attorney's fees"
because they are
Page 499 U. S. 91
to be treated as part of the expenses of the attorney; but if
this were normal usage, they would have been reimbursable under the
Criminal Justice Act as "expenses reasonably incurred" -- and
subsection 3006A(e) would add nothing to the recoverable amount.
The very heading of that subsection, "Services
other than
counsel" (emphasis added), acknowledges a distinction between
services provided by the attorney himself and those provided to the
attorney (or the client) by a nonlegal expert.
To the same effect is the 1980 EAJA, which provides:
"'fees and other expenses' [as shifted by § 2412(d)(1)(A)]
includes the reasonable expenses of expert witnesses,
the
reasonable cost of any study, analysis, engineering report, test,
or project which is found by the court to be necessary for the
preparation of the party's case, and reasonable attorney fees."
28 U.S.C. § 2412(d)(2)(A) (emphasis added). If the reasonable
cost of a "study" or "analysis" -- which is but another way of
describing nontestimonial expert services -- is by common usage
already included in the "attorney fees," again a significant and
highly detailed part of the statute becomes redundant. The
Administrative Procedure Act, 5 U.S.C. § 504(b)(1)(A) (added 1980),
and the Tax Equity and Fiscal Responsibility Act of 1982, 26 U.S.C.
§ 7430(c)(1), contain similar language. Also reflecting the same
usage are two railroad regulation statutes, the Regional Rail
Reorganization Act of 1973, 45 U.S.C. §§ 726(f)(9), 741(i) ("costs
and expenses (including reasonable fees of accountants, experts,
and attorneys) actually incurred"), and the Railroad Revitalization
and Regulatory Reform Act of 1976, 45 U.S.C. § 854(g) ("costs and
expenses (including fees of accountants, experts, and attorneys)
actually and reasonably incurred"). [
Footnote 5]
Page 499 U. S. 92
We think this statutory usage shows beyond question that
attorney's fees and expert fees are distinct items of expense. If,
as WVUH argues, the one includes the other, dozens of statutes
referring to the two separately become an inexplicable exercise in
redundancy.
IV
WVUH argues that at least in pre-1976
judicial usage
the phrase "attorney's fees" included the fees of experts. To
support this proposition, it relies upon two historical assertions:
first, that pre-1976 courts, when exercising traditional equitable
discretion in shifting attorney's fees, taxed as an element of such
fees the expenses related to expert services; and second, that
pre-1976 courts shifting attorney's fees pursuant to statutes
identical in phrasing to § 1988 allowed the recovery of expert
fees. We disagree with these assertions. The judicial background
against which Congress enacted § 1988 mirrored the statutory
background: expert fees were regarded not as a subset of attorney's
fees, but as a distinct category of litigation expense.
Certainly it is true that, prior to 1976, some federal courts
shifted expert fees to losing parties pursuant to various equitable
doctrines -- sometimes in conjunction with attorney's fees. But
they did not shift them
as an element of attorney's fees.
Typical of the courts' mode of analysis (though not necessarily of
their results) is
Fey v. Walston & Co., 493 F.2d 1036,
1055-1056 (CA7 1974), a case brought under the federal securities
laws. Plaintiff won and was awarded various
Page 499 U. S. 93
expenses:
"Included in the . . . costs awarded by the [district] court
were the sum of $1,700 for plaintiff's expert witness, expenses of
an accountant in the amount of $142, and of an
illustrator-diagrammer for $50 . . . and attorneys' fees of
$15,660."
The court treated these items separately: the services of the
accountant and illustrator (who did not testify at trial) were
"costs" which could be fully shifted in the discretion of the
district court; the expert witness fees also could be shifted, but
only as limited by § 1821; the attorney's fees were not costs, and
could not be shifted at all, because the case did not fit any of
the traditional equitable doctrines for awarding such fees.
Id. at 1056.
See also In re Electric Power and Light
Co., 210 F.2d 585, 587, 591 (CA2 1954) ("[Appellant] applied
for an allowance for counsel fees of $35,975 and expenses . . . ,
and also for a fee of $2,734.28 for an expert accountant"; court
permitted part of the attorney's fee, but disallowed the expert
witness fee),
rev'd on other grounds, 348 U.
S. 341 (1955);
Kiefel v. Las Vegas Hacienda,
Inc., 404 F.2d 1163, 1170-1171 (CA7 1968) (itemizing
attorney's fee and expert witness fee separately, allowing part of
the former and all of the latter permitted by § 1821);
Burgess
v. Williamson, 506 F.2d 870, 877-880 (CA5 1975) (applying
Alabama law to shift attorney's fee but not expert witness fee);
Henning v. Lake Charles Harbor and Terminal District, 387
F.2d 264, 267-268 (CA5 1968),
on appeal after remand, 409
F.2d 932, 937 (CA5 1969) (applying Louisiana law to shift expert
fees but not attorney's fee);
Coughenour v. Campbell Barge
Line, Inc., 388 F.
Supp. 501, 506 (WD Pa. 1974) ("Plaintiffs' claim for counsel
fees is denied [because defendant acted in good faith and thus
equitable shifting is unavailable]. Plaintiff's claim for costs of
medical expert witnesses is deemed proper insofar as they were
necessary in establishing the claim . . .") (citations
omitted).
Even where the courts' holdings treated attorney's fees and
expert fees the same (
i.e., granted both or denied
both),
Page 499 U. S. 94
their analysis discussed them as separate categories of expense.
See, e.g., Wolf v. Frank, 477 F.2d 467, 480 (CA5 1973)
("The reimbursing of plaintiffs' costs for attorney's fees
and expert witness fees is supported . . . by well
established equitable principles") (emphasis added);
Kinnear-Weed Co. v. Humble Oil & Refining Co., 441
F.2d 631, 636-637 (CA5 1971) ("[Appellant] argues that the district
court erred in awarding costs, including attorneys' fees and expert
witness fees to Humble");
Bebchick v. Pub. Util. Comm'n,
115 U.S.App. D.C. 216, 233, 318 F.2d 187, 204 (1963) ("It is also
our view that reasonable attorneys' fees for appellants, . . .
reasonable expert witness fees, and appropriate litigation
expenses, should be paid by [appellee]");
Lipscomb v.
Wise, 399 F.
Supp. 782, 798-801 (ND Tex.1975) (in separate analyses, finding
both attorney's fees and expert witness fees barred). We have found
no support for the proposition that, at common law, courts shifted
expert fees
as an element of attorney's fees.
Of arguably greater significance than the courts' treatment of
attorney's fees versus expert fees at common law is their treatment
of those expenses under statutes containing fee-shifting provisions
similar to § 1988. The hospital contends that, in some cases,
courts shifted expert fees as well as the statutorily authorized
attorney's fees -- and thus must have thought that the latter
included the former. We find, however, that the practice, at least
in the overwhelming majority of cases, was otherwise.
Prior to 1976, the leading fee-shifting statute was the Clayton
Act, 38 Stat. 731,
as amended, 15 U.S.C. § 15 (shifting
"the cost of suit, including a reasonable attorney's fee"). As of
1976, four Circuits (six Circuits, if one includes summary
affirmances of district court judgments) had held that this
provision did not permit a shift of expert witness fees.
Union
Carbide & Carbon Co. v. Nisley, 300 F.2d 561, 586-587
(CA10 1961) (accountant's fees);
Twentieth Century Fox Film Co.
v. Goldwyn, 328 F.2d 190, 223-224 (CA9 1964)
Page 499 U. S. 95
(accounting fees);
Advance Business Systems & Supply Co.
v. SCM Co., 287 F.
Supp. 143, 164 (Md.1968) (accountant's fees),
aff'd,
415 F.2d 55 (CA4 1969);
Farmington Dowel Products Co. v.
Forster Mfg. Co., 297 F.
Supp. 924, 930 (Me.) (expert witness fees),
aff'd, 421
F.2d 61 (CA1 1969);
Trans World Airlines, Inc., v. Hughes,
449 F.2d 51, 81 (CA2 1971) (expert fees),
rev'd on other
grounds 409 U. S. 363
(1973);
Ott v. Speedwriting Publishing Co., 518 F.2d 1143,
1149 (CA6 1975) (expert witness fees);
see also Brookside
Theater Co. v. Twentieth Century-Fox Film Co., 11 F.R.D. 259,
267 (WD Mo.1951) (expert witness fees). No court had held
otherwise. Also instructive is pre-1976 practice under the federal
patent laws, which provided, 35 U.S.C. § 285, that "[t]he court in
exceptional cases may award reasonable attorney fees to the
prevailing party." Again, every court to consider the matter as of
1976 thought that this provision conveyed no authority to shift
expert fees.
Specialty Equipment & Machinery Co. v. Zell
Motor Car Co., 193 F.2d 515, 521 (CA4 1952) ("Congress, having
dealt with the subject of costs in patent cases and having
authorized the taxation of reasonable attorney's fees without
making any provision with respect to . . . fees of expert
witnesses, must presumably have intended that they not be taxed");
accord, Chromalloy American Corp. v. Alloy Surfaces
Co., 353 F.
Supp. 429, 431, n. 1, 433 (Del.1973);
ESCO Co. v. Tru-Rol
Co., 178 USPQ 332, 333 (Md.1973);
Scaramucci v. Universal
Mfg. Co., 234 F. Supp. 290, 291-292 (WD La.1964);
Prastaker v. Beech Aircraft Co., 24 F.R.D. 305, 313
(Del.1959).
WVUH contends that its position is supported by
Tasby v.
Estes, 416 F.
Supp. 644, 648 (ND Tex.1976), and
Davis v. County of Los
Angeles, 8 FEPC 244, 246 (CD Cal. 1974). Even if these cases
constituted solid support for the proposition advanced by the
hospital, they would hardly be sufficient to overcome the weight of
authority cited above. But, in any case, we find neither opinion to
be a clear example of contrary
Page 499 U. S. 96
usage. Without entering into a detailed discussion, it suffices
to say, as to
Davis (where the expert fee award was in any
event uncontested), that the opinion does not cite the statute, 42
U.S.C. § 2000e-5, as the basis for its belief that the expert fee
could be shifted, and considers expert fees in a section separate
from that dealing with attorney's fees. Given what was then the
state of the law in the Ninth Circuit, and the District Court's
citation, 8 FEPC, at 246, of at least one case that is avowedly an
equitable discretion case,
see NAACP v.
Allen, 340 F.
Supp. 703 (MD Ala.1972), it is likely that the District Court
thought the shifting of the fee was authorized under its general
equitable powers, or under Federal Rule Civ.Proc. 54(d). As for
Tasby, that case unquestionably authorized a shift of
expert witness fees pursuant to an attorney's-fee-shifting statute,
20 U.S.C. § 1617 (1976 ed.). The basis of that decision, however,
was not the court's own understanding of the statutory term
"attorney's fees," but rather its belief (quite erroneous) that our
earlier opinion in
Bradley v. Richmond School Bd.,
416 U. S. 696
(1974), had adopted that interpretation. Thus, WVUH has cited not a
single case, and we have found none, in which it is clear (or in
our view even likely) that a court understood the statutory term
"attorney's fees" to include expert fees. [
Footnote 6]
Page 499 U. S. 97
In sum, we conclude that, at the time this provision was
enacted, neither statutory nor judicial usage regarded the phrase
"attorney's fees" as embracing fees for experts' services.
V
WVUH suggests that a distinctive meaning of "attorney's fees"
should be adopted with respect to § 1988 because this statute was
meant to overrule our decision in
Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U. S. 240
(1975). As mentioned above, prior to 1975, many courts awarded
expert fees and attorney's fees in certain circumstances pursuant
to their equitable discretion. In
Alyeska, we held that
this discretion did not extend beyond a few exceptional
circumstances long recognized by common law. Specifically, we
rejected the so-called "private attorney general" doctrine recently
created by some lower federal courts,
see, e.g., La Raza Unida
v. Volpe, 57 F.R.D. 94, 98-102 (ND Cal.1972), which allowed
equitable fee-shifting to plaintiffs in certain types of civil
rights litigation. 421 U.S. at
421 U. S. 269.
WVUH argues that § 1988 was intended to restore the
pre-
Alyeska regime -- and that, since expert fees were
shifted then, they should be shifted now.
Both chronology and the remarks of sponsors of the bill that
became § 1988 suggest that at least some members of Congress viewed
it as a response to
Alyeska. See, e.g., S.Rep. No. 1011,
94th Cong., 2d Sess. 4, 6,
repr. in 1976 U.S.Code Cong.
& Admin.News 5908, 5911, 5913. It is a considerable step,
however, from this proposition to the conclusion the hospital would
have us draw, namely, that § 1988 should be read as a reversal of
Alyeska in all respects.
By its plain language and as unanimously construed in the
courts, § 1988 is both broader and narrower than the
pre-
Alyeska regime. Before
Alyeska, civil rights
plaintiffs could
Page 499 U. S. 98
recover fees pursuant to the private attorney general doctrine
only if private enforcement was necessary to defend important
rights benefiting large numbers of people, and cost barriers might
otherwise preclude private suits.
La Raza Unida, 57
F.R.D., at 98-101. Section 1988 contains no similar limitation --
so that, in the present suit, there is no question as to the
propriety of shifting WVUH's attorney's fees, even though it is
highly doubtful they could have been awarded under
pre-
Alyeska equitable theories. In other respects,
however, § 1988 is not as broad as the former regime. It is
limited, for example, to violations of specified civil rights
statutes -- which means that it would not have reversed the outcome
of
Alyeska itself, which involved not a civil rights
statute but the National Environmental Policy Act of 1969, 42
U.S.C. § 4321
et seq. Since it is clear that, in many
respects, § 1988 was not meant to return us precisely to the
pre-
Alyeska regime, the objective of achieving such a
return is no reason to depart from the normal import of the
text.
WVUH further argues that the congressional purpose in enacting §
1988 must prevail over the ordinary meaning of the statutory terms.
It quotes, for example, the House Committee Report to the effect
that "the judicial remedy [must be] full and complete," H.R.Rep.
No. 1558, 94th Cong.2d sess. 1 (1976), and the Senate Committee
Report to the effect that "[c]itizens must have the opportunity to
recover what it costs them to vindicate [civil] rights in court,"
S.Rep. No. 1011, 94th Cong.2d Sess. 2,
repr. in 1976
U.S.Code Cong. & Admin. News 5908, 5910. As we have observed
before, however, the purpose of a statute includes not only what it
sets out to change, but also what it resolves to leave alone.
See Rodriguez v. United States, 480 U.
S. 522,
480 U. S.
525-526 (1987). The best evidence of that purpose is the
statutory text adopted by both Houses of Congress and submitted to
the President. Where that contains a phrase that is unambiguous --
that has a clearly accepted meaning in both legislative and
judicial practice -- we do not permit it to be expanded or
contracted by the statements of individual legislators or
committees during the
Page 499 U. S. 99
course of the enactment process.
See United States v. Ron
Pair Enterprises, Inc., 489 U. S. 235,
489 U. S. 241
(1989) ("[W]here, as here, the statute's language is plain,
the
sole function of the court is to enforce it according to its
terms.'"), quoting Caminetti v. United States,
242 U. S. 470,
242 U. S. 485
(1917). Congress could easily have shifted "attorney's fees and
expert witness fees," or "reasonable litigation expenses," as it
did in contemporaneous statutes; it chose instead to enact more
restrictive language, and we are bound by that
restriction.
WVUH asserts that we have previously been guided by the "broad
remedial purposes" of § 1988, rather than its text, in a context
resolving an "analogous issue." In
Missouri v. Jenkins,
491 U. S. 274,
491 U. S. 285
(1989), we concluded that § 1988 permitted separately billed
paralegal and law clerk time to be charged to the losing party. The
trouble with this argument is that
Jenkins did
not involve an "analogous issue," insofar as the relevant
considerations are concerned. The issue there was not, as WVUH
contends, whether we would permit our perception of the "policy" of
the statute to overcome its "plain language." It was not remotely
plain in
Jenkins that the phrase "attorney's fee" did not
include charges for law clerk and paralegal services. Such
services, like the services of "secretaries, messengers,
librarians, janitors, and others whose labor contributes to the
work product," 491 U.S. at
491 U. S. 285, had traditionally been included in
calculation of the lawyers' hourly rates. Only recently had there
arisen "the
increasingly widespread custom of separately
billing for [such] services,'" id. at 491 U. S. 286
(quoting from Ramos v. Lamm, 713 F.2d 546, 558 (CA10
1983)). By contrast, there has never been, to our knowledge, a
practice of including the cost of expert services within attorneys'
hourly rates. There was also no record in Jenkins -- as
there is a lengthy record here -- of statutory usage that
recognizes a distinction between the charges at issue and
attorney's fees. We do not know of a single statute that shifts
clerk or paralegal fees separately; and even those, such as the
EAJA, which comprehensively
Page 499 U. S. 100
define the assessable "litigation costs" make no separate
mention of clerks or paralegals. In other words,
Jenkins
involved a respect in which the term "attorney's fees" (giving the
losing argument the benefit of the doubt) was genuinely ambiguous;
and we resolved that ambiguity not by invoking some policy that
supersedes the text of the statute, but by concluding that charges
of this sort had traditionally been included in attorney's fees,
and that separate billing should make no difference. The term's
application to expert fees is not ambiguous, and if it were, the
means of analysis employed in
Jenkins would lead to the
conclusion that, since such fees have not traditionally been
included within the attorney's hourly rate, they are not attorney's
fees.
WVUH's last contention is that, even if Congress plainly did not
include expert fees in the fee-shifting provisions of § 1988, it
would have done so had it thought about it. Most of the pre-§ 1988
statutes that explicitly shifted expert fees dealt with
environmental litigation, where the necessity of expert advice was
readily apparent; and when Congress later enacted the EAJA, the
federal counterpart of § 1988, it explicitly included expert fees.
Thus, the argument runs, the 94th Congress simply forgot; it is our
duty to ask how they would have decided had they actually
considered the question.
See Friedrich v. City of Chicago,
888 F.2d 511, 514 (CA7 1989) (awarding expert fees under § 1988
because a court should "complete . . . the statute by reading it to
bring about the end that the legislators would have specified, had
they thought about it more clearly").
This argument profoundly mistakes our role. Where a statutory
term presented to us for the first time is ambiguous, we construe
it to contain that permissible meaning which fits most logically
and comfortably into the body of both previously and subsequently
enacted law.
See 2 J. Sutherland, Statutory Construction §
5201 (3d F. Horack ed.1943). We do so not because that precise
accommodative meaning is what the lawmakers must have had in mind
(how could an
Page 499 U. S. 101
earlier Congress know what a later Congress would enact?), but
because it is our role to make sense rather, than nonsense, out of
the
corpus juris. But where, as here, the meaning of the
term prevents such accommodation, it is not our function to
eliminate clearly expressed inconsistency of policy, and to treat
alike subjects that different Congresses have chosen to treat
differently. The facile attribution of congressional
"forgetfulness" cannot justify such a usurpation. Where what is at
issue is not a contradictory disposition within the same enactment,
but merely a difference between the more parsimonious policy of an
earlier enactment and the more generous policy of a later one,
there is no more basis for saying that the earlier Congress forgot
than for saying that the earlier Congress felt differently. In such
circumstances, the attribution of forgetfulness rests in reality
upon the judge's assessment that the later statute contains the
better disposition. But that is not for judges to prescribe. We
thus reject this last argument for the same reason that Justice
Brandeis, writing for the Court, once rejected a similar (though
less explicit) argument by the United States:
"[The statute's] language is plain and unambiguous. What the
Government asks is not a construction of a statute, but, in effect,
an enlargement of it by the court, so that what was omitted,
presumably by inadvertence, may be included within its scope. To
supply omissions transcends the judicial function."
Iselin v. United States, 270 U.
S. 245,
270 U. S.
250-251 (1926). [
Footnote 7]
Page 499 U. S. 102
* * * *
For the foregoing reasons, we conclude that § 1988 conveys no
authority to shift expert fees. When experts appear at trial, they
are of course eligible for the fee provided by § 1920 and § 1821 --
which was allowed in the present case by the Court of Appeals.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
42 U.S.C. § 1988 provides in relevant part:
"In any action or proceeding to enforce a provision of sections
1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public
Law 92-318, or title VI of the Civil Rights Act of 1964, the court,
in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the
costs."
[
Footnote 2]
Section 1821(b) has since been amended to increase the allowable
per diem from $30 to $40.
See Judicial
Improvements Act of 1990, Pub.L. 101-650, § 314.
[
Footnote 3]
Justice STEVENS suggests that the expert fees requested here
might be part of the "costs" allowed by § 1988 even if they are not
part of the "attorney's fee." We are aware of no authority to
support the counter-intuitive assertion that
"[t]he term 'costs' has a different and broader meaning in
fee-shifting statutes than it has in the cost statutes that apply
to ordinary litigation,"
post at
499 U. S. 104.
In
Crawford Fitting, we held that the word "costs" in
F.R.Civ.P. 54(d) is to be read in harmony with the word "costs" in
28 U.S.C. § 1920,
see 482 U.S. at
482 U. S. 441,
482 U. S. 445,
and we think the same is true of the word "costs" in § 1988. We
likewise see nothing to support Justice STEVENS' speculation that
the court below or the parties viewed certain disbursements by the
hospital's attorneys as "costs" within the meaning of the statute.
Rather, it is likely that these disbursements (billed directly to
the client) were thought subsumed within the phrase "attorney's
fee."
See, e.g., Northcross v. Bd of Ed of Memphis City
Schools, 611 F.2d 624, 639 (CA6 1979) ("reasonable
out-of-pocket expenses incurred by the attorney" included in § 1988
"attorney's fee" award).
[
Footnote 4]
In addition to the provisions discussed in the text,
see Administrative Procedure Act, 5 U.S.C. § 504(b)(1)(A)
(added 1980) ("reasonable expenses of expert witnesses . . . and
reasonable attorney or agent fees"); Unfair Advertising Act, 15
U.S.C. § 57a(h)(1) (added 1975) ("reasonable attorneys' fees,
expert witness fees and other costs of participating in a
rulemaking proceeding"), Petroleum Marketing Practices Act, 15
U.S.C. §§ 2805(d)(1)(C), 2805(d)(3) ("reasonable attorney and
expert witness fees"); National Historic Preservation Act, 16
U.S.C. § 470w-4 (1980 amendments) ("attorneys' fees, expert witness
fees, and other costs of participating in such action"); Federal
Power Act, 16 U.S.C. § 825q-1(b)(2) (added 1978) ("reasonable
attorney's fees, expert witness fees and other costs of intervening
or participating in any proceeding [before the commission] "); Tax
Equity and Fiscal Responsibility Act of 1982, 26 U.S.C. §
7430(c)(1) ("reasonable expenses of expert witnesses . . . and
reasonable fees paid . . . for the services of attorneys"); Surface
Mining Control Act, 30 U.S.C. § 1270(d) (enacted 1977) ("costs of
litigation (including attorney and expert witness fees")); Deep
Seabed Hard Mineral Resources Act, 30 U.S.C. § 1427(c) (enacted
1980) (same); Oil and Gas Royalty Management Act of 1982, 30 U.S.C.
§ 1734(a)(4) ("costs of litigation including reasonable attorney
and expert witness fees"); Longshoremen's and Harbor Workers'
Compensation Act Amendments of 1972, 33 U.S.C. § 928(d) ("In cases
where an attorney's fee is awarded . . . there may be further
assessed . . . as costs, fees and mileage for necessary
witnesses"); Federal Water Pollution Control Act Amendments of
1972, and 1987 Amendment, 33 U.S.C. §§ 1365(d), 1369(b)(3) ("costs
of litigation (including reasonable attorney and expert witness
fees)"); Oil Pollution Act of 1990, 33 U.S.C.A. § 2706(g) (same);
Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C.
§ 1415(g)(4) (same); Deepwater Port Act of 1974, 33 U.S.C. §
1515(d) (same); Act to Prevent Pollution from Ships, 33 U.S.C. §
1910(d) (enacted 1980) (same); Safe Drinking Water Act, 42 U.S.C. §
300j-8(d) (enacted 1974) (same); National Childhood Vaccine Injury
Act of 1986, 42 U.S.C. § 300aa-31(c) (same); Noise Control Act of
1972, 42 U.S.C. § 4911(d) (same); Energy Reorganization Act of
1974, 42 U.S.C. § 5851(e)(2) (same); Energy Policy and Conservation
Act, 42 U.S.C. § 6305(d) (enacted 1975) (same); Clean Air
Amendments of 1970, 42 U.S.C. §§ 7604(d), 7607(f), 7413(b) (same)
and 42 U.S.C. § 7622(b)(2)(B) (1977 amendments) ("all costs and
expenses (including attorneys' and expert witness fees) reasonably
incurred"); Powerplant and Industrial Fuel Use Act of 1978, 42
U.S.C. § 8435(d) ("costs of litigation (including reasonable
attorney and expert witness fees)"); Ocean Thermal Energy
Conversion Act of 1980, 42 U.S.C. § 9124(d) (same); Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C. § 9659(f) (added 1986) (same); Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. § 11046(f) (same);
Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. §
1349(a)(5) (same); Hazardous Liquid Pipeline Safety Act of 1979, 49
U.S.C.App. § 2014(e) ("costs of suit, including reasonable
attorney's fees and reasonable expert witnesses fees").
[
Footnote 5]
WVUH cites a House Conference Committee report from a statute
passed in 1986, stating
"The conferees intend that the term 'attorneys' fees as part of
the costs' include reasonable expenses and fees of expert witnesses
and the reasonable costs of any test or evaluation which is found
to be necessary for the preparation of the . . . case."
H.R.Conf.Rep. No. 687, 99th Cong., 2d sess. 5,
reprinted
in 1986 U.S.Code Cong. & Admin.News 1798, 1808 (discussing
the Handicapped Children's Protection Act of 1986, 20 U.S.C. §
1415(e)(4)(B)). In our view, this undercuts, rather than supports,
WVUH's position: The specification would have been quite
unnecessary if the ordinary meaning of the term included those
elements. The statement is an apparent effort to depart from
ordinary meaning and to define a term of art.
[
Footnote 6]
The hospital also cites
Fairley v. Patterson, 493 F.2d
598 (CA5 1974), and
Norris v. Green, 317 F. Supp. 100, 102
(ND Ala.1965). But in
Fairley, the court, remanding for
reconsideration of the fee award, was explicitly equivocal as to
whether "court costs" other than the ones normally assessable under
§ 1920 were awardable under the statute in question (the Voting
Rights Act of 1965, whose fee-shifting provision parallels § 1988),
or, rather, "should have to meet the harder discretionary
standards" applicable to the award of fees pursuant to equitable
discretion. 493 F.2d at 606, n. 11. In any event,
Fairley
did not consider expert witnesses explicitly, and there is no
indication that the court necessarily included expert fees within
its (undefined) category of "court costs."
As for
Norris, that case awarded fees pursuant to 29
U.S.C. § 501(b), which is not parallel to § 1988, since it
authorizes the shifting of "fees of counsel . . .
and . . .
expenses necessarily paid or incurred" (emphasis added). There
is no indication in the opinion that the court thought the expert
fees were part of the former, rather than the latter -- and the
court discussed them separately from attorney's fees.
[
Footnote 7]
WVUH at least asks us to guess the preferences of the
enacting Congress. Justice STEVENS apparently believes our
role is to guess the desires of the
present Congress, or
of Congresses yet to be. "Only time will tell," he says, "whether
the Court, with its literal reading of § 1988, has correctly
interpreted the will of Congress,"
post at
499 U. S. 116.
The implication is that today's holding will be proved wrong if
Congress amends the law to conform with his dissent. We think not.
The "will of Congress" we look to is not a will evolving from
Session to Session, but a will expressed and fixed in a particular
enactment. Otherwise, we would speak not of "interpreting" the law,
but of "intuiting" or "predicting" it. Our role is to say what the
law, as hitherto enacted,
is, not to forecast what the
law, as amended,
will be.
Justice MARSHALL, dissenting.
As Justice STEVENS demonstrates, the Court uses the implements
of literalism to wound, rather than to minister to, congressional
intent in this case. That is a dangerous usurpation of
congressional power when any statute is involved. It is troubling
for special reasons, however, when the statute at issue is clearly
designed to give access to the federal courts to persons and groups
attempting to vindicate vital civil rights. A District Judge has
ably put the point in an analogous context:
"At issue here is much more than the simple question of how much
[plaintiff's] attorneys should receive as attorney fees. At issue
is . . . continued full and vigorous commitment to this Nation's
lofty, but as yet unfulfilled, agenda to make the promises of this
land available to all citizens, without regard to race or sex or
other impermissible characteristic. There are at least two ways to
undermine this commitment. The first is open and direct: a repeal
of this Nation's antidiscrimination laws. The second is more
indirect and, for this reason, somewhat insidious: to deny victims
of discrimination a means for redress by creating an economic
market in which attorneys cannot afford to represent them and take
their
Page 499 U. S. 103
cases to court."
Hidle v. Geneva County Bd. of Ed., 681 F.
Supp. 752, 758-759 (MD Ala.1988) (awarding attorney fees and
expenses under Title VII).
Justice STEVENS, with whom Justice MARSHALL and Justice BLACKMUN
join, dissenting.
Since the enactment of the Statute of Wills in 1540, [
Footnote 2/1] careful draftsmen have
authorized executors to pay the just debts of the decedent,
including the fees and expenses of the attorney for the estate.
Although the omission of such an express authorization in a will
might indicate that the testator had thought it unnecessary, or
that he had overlooked the point, the omission would surely not
indicate a deliberate decision by the testator to forbid any
compensation to his attorney.
In the early 1970s, Congress began to focus on the importance of
public interest litigation, and, since that time, it has enacted
numerous fee-shifting statutes. In many of these statutes, which
the majority cites at length,
see ante at
499 U. S. 88-92,
Congress has expressly authorized the recovery of expert witness
fees as part of the costs of litigation. The question in this case
is whether, notwithstanding the omission of such an express
authorization in 42 U.S.C. § 1988, Congress intended to authorize
such recovery when it provided for "a reasonable attorney's fee as
part of the costs." In my view, just as the omission of express
authorization in a will does not preclude compensation to an
estate's attorney, the omission of express authorization for expert
witness fees in a fee-shifting provision should not preclude the
award of expert witness fees. We should look at the way in which
the Court has interpreted the text of
this statute in the
past, as well as
this statute's legislative history, to
resolve the question before us, rather than looking at the text of
the many other statutes that the majority cites in which Congress
expressly recognized the need for compensating expert
witnesses.
Page 499 U. S. 104
I
Under either the broad view of "costs" typically assumed in the
fee-shifting context or the broad view of "a reasonable attorney's
fee" articulated by this Court, expert witness fees are a proper
component of an award under § 1988. Because we are not interpreting
these words for the first time, they should be evaluated in the
context that this and other courts have already created. [
Footnote 2/2]
The term "costs" has a different and broader meaning in
fee-shifting statutes than it has in the cost statutes that apply
to ordinary litigation. [
Footnote
2/3] The cost bill in this case illustrates the point. Leaving
aside the question of expert witness fees, the prevailing party
sought reimbursement for $45,867 in disbursements,
see
App. to Pet. for Cert. C-1, which plainly would not have been
recoverable costs under 28 U.S.C. § 1920. [
Footnote 2/4] These expenses, including such items as
travel and long-distance telephone calls, were allowed by the
District Court, and were not even questioned by respondent. They
were expenses that a retained lawyer would ordinarily bill to his
or her client. They were accordingly considered proper "costs" in a
case of this kind.
The broad construction typically given to "costs" in the
fee-shifting context is highlighted by the CHIEF JUSTICE's
contrasting view in
Missouri v. Jenkins, 491 U.
S. 274 (1989), in which he argued that paralegal and law
clerk fees could not even be awarded as "costs" under 28 U.S.C. §
1920. One of the issues in
Jenkins was the
rate
at which the services of law clerks and paralegals should be
compensated. The State contended that actual cost, rather than
market value, should govern. It did not, however, even question the
propriety of
Page 499 U. S. 105
reimbursing the prevailing party for the work of these
nonlawyers. Only the CHIEF JUSTICE -- in a lone dissent, the
reasoning of which is now endorsed by the Court -- advanced a
purely literal interpretation of the statute. He wrote:
"I also disagree with the State's suggestion that law clerk and
paralegal expenses incurred by a prevailing party, if not
recoverable at market rates as 'attorney's fees' under § 1988, are
nonetheless recoverable at actual cost under that statute. The
language of § 1988 expands the traditional definition of 'costs' to
include 'a reasonable attorney's fee,' but it cannot fairly be read
to authorize the recovery of all other out-of-pocket expenses
actually incurred by the prevailing party in the course of
litigation. Absent specific statutory authorization for the
recovery of such expenses, the prevailing party remains subject to
the limitations on cost recovery imposed by Federal Rule of Civil
Procedure 54(d) and 28 U.S.C. § 1920, which govern the taxation of
costs in federal litigation where a cost-shifting statute is not
applicable. Section 1920 gives the district court discretion to tax
certain types of costs against the losing party in any federal
litigation. The statute specifically enumerates six categories of
expenses which may be taxed as costs: fees of the court clerk and
marshal; fees of the court reporter; printing fees and witness
fees; copying fees; certain docket fees; and fees of
court-appointed experts and interpreters. We have held that this
list is exclusive.
Crawford Fitting Co. v. J. T. Gibbons,
Inc., 482 U. S. 437 (1987). Since none
of these categories can possibly be construed to include the fees
of law clerks and paralegals, I would also hold that reimbursement
for these expenses may not be separately awarded at actual
cost."
Id., 491 U.S. at
491 U. S.
297-298.
Although THE CHIEF JUSTICE argued that charges for the work of
paralegals and law clerks were not part of the narrowly
Page 499 U. S. 106
defined "costs" that were reimbursable under § 1920, nor were
they part of an "attorney's fee" reimbursable under § 1988, the
Court did not reach THE CHIEF JUSTICE'S point about costs, because
it held in
Jenkins that such expenses were part of a
"reasonable attorney's fee" authorized by § 1988, and thus could be
reimbursed at market rate. In the Court's view, a "reasonable
attorney's fee" referred to "a reasonable fee for the work product
of an attorney."
Id. at
491 U. S. 285.
We explained:
"[T]he fee must take into account the work not only of
attorneys, but also of secretaries, messengers, librarians,
janitors, and others whose labor contributes to the work product
for which an attorney bills her client; and it must also take
account of other expenses and profit. The parties have suggested no
reason why the work of paralegals should not be similarly
compensated, nor can we think of any. We thus take as our starting
point the self-evident proposition that the 'reasonable attorney's
fee' provided for by statute should compensate the work of
paralegals, as well as that of attorneys."
Ibid.
In
Jenkins, the Court acknowledged that the use of
paralegals instead of attorneys reduced the cost of litigation,
and, "
by reducing the spiraling cost of civil rights
litigation, further[ed] the policies underlying civil rights
statutes.'" Id. at 491 U. S. 288.
If attorneys were forced to do the work that paralegals could just
as easily perform under the supervision of an attorney, such as
locating and interviewing witnesses or compiling statistical and
financial data, then
"it would not be surprising to see a greater amount of such work
performed by attorneys themselves, thus increasing the overall cost
of litigation."
Id. at
491 U. S. 288,
n. 10.
This reasoning applies equally to other forms of specialized
litigation support that a trial lawyer needs and that the client
customarily pays for, either directly or indirectly. Although
reliance on paralegals is a more recent development than the use of
traditional expert witnesses, both paralegals and expert
Page 499 U. S. 107
witnesses perform important tasks that save lawyers' time and
enhance the quality of their work product. In this case, it is
undisputed that the District Court correctly found that the expert
witnesses were "essential" and "necessary" to the successful
prosecution of the plaintiff's case, [
Footnote 2/5] and that their data and analysis played a
pivotal role in the attorney's trial preparation. [
Footnote 2/6] Had the attorneys attempted to
perform the tasks that the experts performed, it obviously would
have taken them far longer than the experts and the entire case
would have been far more costly to the parties. As Judge Posner
observed in a comparable case:
"The time so spent by the expert is a substitute for lawyer
time, just as paralegal time is, for if prohibited (or deterred by
the cost) from hiring an expert, the lawyer would attempt to
educate himself about the expert's area of expertise. To forbid the
shifting of the expert's fee would encourage underspecialization
and inefficient trial preparation, just as to forbid shifting the
cost of paralegals would encourage lawyers to do paralegals' work.
There is thus no basis for distinguishing
Jenkins from the
present case, so far as time spent by these experts in educating
the plaintiffs' lawyer is concerned. . . ."
Friedrich v. Chicago, 888 F.2d 511, 514 (CA7 1989).
In
Jenkins, we interpreted the award of "a reasonable
attorney's fee" to cover charges for paralegals and law
clerks, even though a paralegal or law clerk is not an attorney.
Similarly, the federal courts routinely allow an attorney's travel
expenses or long-distance telephone calls to be awarded, even
though they are not literally part of an "attorney's
fee,"
or part of "costs" as defined by 28 U.S.C. § 1920. To allow
reimbursement of these other categories of expenses, and yet not to
include expert witness fees, is both
Page 499 U. S. 108
arbitrary and contrary to the broad remedial purpose that
inspired the fee-shifting provision of § 1988.
II
The Senate Report on the Civil Rights Attorneys' Fees Awards Act
explained that the purpose of the proposed amendment to 42 U.S.C. §
1988 was
"to remedy anomalous gaps in our civil rights laws created by
the United States Supreme Court's recent decision in
Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U. S.
240 (1975), and to achieve consistency in our civil
rights laws. [
Footnote 2/7]"
7 S.Rep. No. 94-1011, p. 1 (1976), 1976 U.S. Code Cong. &
Admin.News 5909. The Senate Committee on the Judiciary wanted to
level the playingfield so that private citizens, who might have
little or no money, could still serve as "private attorneys
general" and afford to bring actions, even against state or local
bodies, to enforce the civil rights laws. The Committee
acknowledged that,
"[i]f private citizens are to be able to assert their civil
rights, and if those who violate the Nation's fundamental laws are
not to proceed with impunity, then citizens must have the
opportunity to recover
what it costs them to vindicate
these rights in court."
Id. at 2, 1976 U.S.Code Cong. & Admin.News 5910
(emphasis added). According to the Committee, the bill would create
"no startling new remedy," but would simply provide "the technical
requirements" requested by the Supreme Court in
Alyeska,
so that courts could "continue the practice of awarding attorneys'
fees which had been going on for years prior to the Court's May
decision."
Id. at 6.
Page 499 U. S. 109
To underscore its intention to return the courts to their
pre-
Alyeska practice of shifting fees in civil rights
cases, the Senate Committee's Report cited with approval not only
several cases in which fees had been shifted, but also all of the
cases contained in Legal Fees, Hearings before the Subcommittee on
Representation of Citizen Interests of the Senate Committee on the
Judiciary, 93rd Cong., 1st Sess., pt. 3, pp. 888-1024, 1060-1062
(1973) (hereinafter Senate Hearings).
See S.Rep. No.
94-1011, p. 4, n. 3 (1976). The cases collected in the 1973 Senate
Hearings included many in which courts had permitted the shifting
of costs, including expert witness fees. At the time when the
Committee referred to these cases, though several were later
reversed, it used them to make the point that, prior to
Alyeska, courts awarded attorney's fees and costs,
including expert witness fees, in civil rights cases, and that they
did so in order to encourage private citizens to bring such suits.
[
Footnote 2/8] It was to this
pre-
Alyeska regime, in which courts could award expert
witness fees along with attorney's fees, that the Senate Committee
intended to return through the passage of the fee-shifting
amendment to § 1988.
Page 499 U. S. 110
The House Report expressed concerns similar to those raised by
the Senate Report. It noted that "[t]he effective enforcement of
Federal civil rights statutes depends largely on the efforts of
private citizens," and that the House bill was "designed to give
such persons effective access to the judicial process. . . ."
H.R.Rep. No. 94-1558, p. 1 (1976). The House Committee on the
Judiciary concluded that "civil rights litigants were suffering
very severe hardships because of the
Alyeska decision,"
and that the case had had a "devastating impact" and had created a
"compelling need" for a fee-shifting provision in the civil rights
context.
Id. at 2-3.
According to both Reports, the record of House and Senate
subcommittee hearings, consisting of the testimony and written
submissions of public officials, scholars, practicing attorneys,
and private citizens, and the questions of the legislators, makes
clear that both committees were concerned with preserving access to
the courts and encouraging public interest litigation. [
Footnote 2/9]
Page 499 U. S. 111
It is fair to say that, throughout the course of the hearings, a
recurring theme was the desire to return to the
pre-
Alyeska practice in which courts could shift fees,
including expert witness fees, and make those who acted as private
attorneys general whole again, thus encouraging the enforcement of
the civil rights laws.
The case before us today is precisely the type of public
interest litigation that Congress intended to encourage by amending
§ 1988 to provide for fee-shifting of a "reasonable attorney's fee
as part of the costs." Petitioner, a tertiary medical center in
West Virginia near the Pennsylvania border, [
Footnote 2/10] provides services to a large number of
medicaid recipients throughout Pennsylvania. In January, 1986, when
the Pennsylvania Department of Public Welfare notified petitioner
of its new medicaid payment rates for Pennsylvania medicaid
recipients, petitioner believed them to be below the minimum
standards for reimbursement specified by the Social Security Act.
Petitioner successfully challenged the adequacy of the State's
payment system under 42 U.S.C. § 1983.
This Court's determination today that petitioner must assume the
cost of $104,133.00 in expert witness fees is at war with the
congressional purpose of making the prevailing party whole. As we
said in
Hensley v. Eckerhart, 461 U.
S. 424,
461 U. S. 435
(1983), petitioner's recovery should be "fully compensatory," or,
as we expressed in
Jenkins, petitioner's recovery should
be
"comparable to what 'is traditional with attorneys compensated
by a fee-paying client.' S.Rep. No. 94-1011, p. 6 (1976), U.S.Code
Cong. & Admin.News 1976, pp. 5908, 5913."
491 U.S. at
491 U. S.
286.
Page 499 U. S. 112
III
In recent years, the Court has vacillated between a purely
literal approach to the task of statutory interpretation and an
approach that seeks guidance from historical context, legislative
history, and prior cases identifying the purpose that motivated the
legislation. Thus, for example, in
Christiansburg Garment Co.
v. EEOC, 434 U. S. 412
(1978), we rejected a "mechanical construction,"
id. at
434 U. S. 418,
of the fee-shifting provision in § 706(k) of Title VII of the Civil
Rights Act of 1964 that the prevailing defendant had urged upon us.
Although the text of the statute drew no distinction between
different kinds of "prevailing parties," we held that awards to
prevailing plaintiffs are governed by a more liberal standard than
awards to prevailing defendants. That holding rested entirely on
our evaluation of the relevant congressional policy, and found no
support within the four corners of the statutory text.
Nevertheless, the holding was unanimous and, to the best of my
knowledge, evoked no adverse criticism or response in Congress
[
Footnote 2/11]
Page 499 U. S. 113
On those occasions, however, when the Court has put on its thick
grammarian's spectacles and ignored the available evidence of
congressional purpose and the teaching of prior cases construing a
statute, the congressional response has been dramatically
different. It is no coincidence that the Court's literal reading of
Title VII, which led to the conclusion that disparate treatment of
pregnant and nonpregnant persons was not discrimination on the
basis of sex,
see General Electric Co. v. Gilbert,
429 U. S. 125
(1976), was repudiated by the 95th Congress; [
Footnote 2/12] that its literal reading of the
"continuous physical presence" requirement in § 244(a)(1) of the
Immigration and Nationality Act, which led to the view that the
statute did not permit even temporary or inadvertent absences from
this country,
see INS v. Phinpathya, 464 U.
S. 183 (1984), was rebuffed by the 99th Congress;
[
Footnote 2/13] that its literal
reading of the word "program" in Title IX of the
Page 499 U. S. 114
Education Amendments of 1972, which led to the Court's
gratuitous limit on the scope of the antidiscrimination provisions
of Title IX, [
Footnote 2/14]
see Grove City College v. Bell, 465 U.
S. 555 (1984), was rejected by the 100th Congress;
[
Footnote 2/15] or that its
refusal to accept the teaching of earlier decisions in
Wards
Cove Packing Co. v. Atonio, 490 U. S. 642
(1989) (reformulating order of proof and weight of parties' burdens
in disparate-impact cases), and
Patterson v. McLean Credit
Union, 491 U. S. 164
(1989) (limiting scope of 42 U.S.C. § 1981 to the making and
enforcement of contracts) was overwhelmingly rejected by the 101st
Congress, [
Footnote 2/16] and its
refusal to accept the widely held view of lower courts about the
scope of fraud,
see McNally v. United States, 483 U.
S. 350 (1987) (limiting mail
Page 499 U. S. 115
fraud to protection of property), was quickly corrected by the
100th Congress. [
Footnote
2/17]
In the domain of statutory interpretation, Congress is the
master. It obviously has the power to correct our mistakes, but we
do the country a disservice when we needlessly ignore persuasive
evidence of Congress' actual purpose and require it "to take the
time to revisit the matter" [
Footnote
2/18] and to restate its purpose in more precise English
whenever its work product suffers from an omission or inadvertent
error. As Judge Learned Hand explained, statutes are likely to be
imprecise.
"All [legislators] have done is to write down certain words
which they mean to apply generally to situations of that kind. To
apply these literally may either pervert what was plainly their
general meaning, or leave undisposed of what there is every reason
to suppose they meant to provide for. Thus it is not enough for the
judge just to use a dictionary. If he should do no more, he might
come out with a result which every sensible man would recognize to
be quite the opposite of what was really intended; which would
contradict or leave unfulfilled its plain purpose."
L. Hand, How Far Is a Judge Free in Rendering a Decision?, in
The Spirit of Liberty 103, 106 (I. Dilliard ed.1952).
The Court concludes its opinion with the suggestion that
disagreement with its textual analysis could only be based on the
dissenter's preference for a "better" statute,
ante at
499 U. S. 101.
It overlooks the possibility that a different view may be more
faithful to Congress' command. The fact that Congress has
consistently provided for the inclusion of expert witness fees in
fee-shifting statutes when it considered the matter is a weak reed
on which to rest the conclusion that the omission
Page 499 U. S. 116
of such a provision represents a deliberate decision to forbid
such awards. Only time will tell whether the Court, with its
literal reading [
Footnote 2/19]
of § 1988, has correctly interpreted the will of Congress with
respect to the issue it has resolved today.
I respectfully dissent.
[
Footnote 2/1]
32 Hen. VIII, ch. 1 (1540).
[
Footnote 2/2]
My view, as I have expressed in the past, is that we should
follow Justice Cardozo's advice to the judge to "lay [his] own
course of bricks on the secure foundation of the courses laid by
others who had gone before him." B. Cardozo, The Nature of the
Judicial Process 149 (1921).
[
Footnote 2/3]
See, e.g., 28 U.S.C. § 1920;
see also Fed.Rule
Civ.Proc. 54(d).
[
Footnote 2/4]
Cited in full
ante at
499 U. S.
86.
[
Footnote 2/5]
App. to Pet. for Cert. C-2; App. 117.
[
Footnote 2/6]
The expert witnesses here played a pivotal role in their
nontestimonial, rather than simply their testimonial, capacity.
See Pet. for Cert. 6-7; App. 120-139.
[
Footnote 2/7]
In
Alyeska Pipeline Service Co. v. Wilderness Society,
421 U. S. 240
(1975), the Court held that courts were not free to fashion new
exceptions to the American Rule, according to which each side
assumed the cost of its own attorney's fees. The Court reasoned
that it was not the judiciary's role "to invade the legislature's
province by redistributing litigation costs . . . ,"
id.
at 271, and that it would be "inappropriate for the judiciary,
without legislative guidance, to reallocate the burdens of
litigation. . . ."
Id. at
421 U. S.
247.
[
Footnote 2/8]
See, e.g., Beens v. Erdahl, 349 F. Supp.
97, 100 (Minn.1972);
Bradley v. School Board of
Richmond, 53 F.R.D. 28, 44 (ED Va.1971) ("Fees for expert
witnesses' testimony likewise will be allowed as an expense of
suit. It is difficult to imagine a more necessary item of proof
(and source of assistance to the Court) than the considered opinion
of an educational expert"),
rev'd, 472 F.2d 318 (CA4
1972),
vacated, 416 U. S. 696
(1974);
La Raza Unida v. Volpe, 57 F.R.D. 94 (ND Cal.,
1972), reprinted in Senate Hearings, pt. 3, pp. 1060, 1062, (expert
witness fees allowed because experts' testimony was "helpful to the
court");
Pyramid Lake Paiute Tribe of Indians v.
Morton, 360 F.
Supp. 669, 672 (DC 1973) ("The plaintiff's experts played a
vital role in the resolution of the case, their work and testimony
going to the heart of the matter. Accordingly, it seems entirely
appropriate to award their fees as scheduled in the total amount of
$20,488.72. . . ."),
rev'd, 163 U.S.App. D.C. 90, 499 F.2d
1095 (1974),
cert. denied, 420 U.S. 962 (1975).
[
Footnote 2/9]
A frequently expressed concern was the need to undo the damage
to public interest litigation caused by
Alyeska. See,
e.g., Awarding of Attorneys' Fees, Hearings before the
Subcommittee on Courts, Civil Liberties, and the Administration of
Justice of the House Committee on the Judiciary, 94th Cong., 1st
Sess., pp. 2, 41, 42, 43, 54, 82-85, 87, 90 92, 94, 103, 119-121,
123-125, 134, 150, 153-155, 162, 182-183, 269, 272-273, 370,
378-395, 416 418 (1975) (hereinafter House Hearings). Many who
testified expressed the view that attorneys needed fee-shifting
provisions so that they could afford to work on public interest
litigation,
see, e.g., id. at 66-67, 76, 78--79, 80, 89,
124-125, 137-142, 146, 158-159, 276 277, 278-280, 306 308;
see
also id. at 316-326; Senate Hearings, pts. 3, 4, pp. 789-790,
855-857, 1115, and private citizens needed fee-shifting provisions
so that they could be made whole again.
See, e.g., House
Hearings, pp. 60, 189, 192, 254-55, 292, 328;
see also id.
at 106-111, 343-345, 347-349. For example, the private citizen who
was brought into court by the Government and who later prevailed
would still not be made whole because he had to bear the costs of
his own attorney's fees. The Senate Hearings also examined the
average citizen's lack of access to the legal system.
See,
e.g., Senate Hearings, pts. 1, 2, 3, pp. 1-2, 3-4, 273
(addressing question whether coal miners were receiving adequate
legal coverage);
id. at 466, 470-471, 505-509, 515
(addressing question whether veterans were denied legal assistance
by $10 contingent fee);
id. at 789, 791-796, 808-810
(Indians' access to lawyers);
id. at 1127, 1253-1254
(average citizen cannot afford attorney).
[
Footnote 2/10]
A "tertiary" hospital provides a level of medical services that
is generally complex and not provided by community hospitals. Brief
for Petitioner 3, n. 1.
[
Footnote 2/11]
Other examples of cases in which the Court eschewed the literal
approach include
Steelworkers v. Weber, 443 U.
S. 193 (1979), and
Johnson v. Transportation Agency,
Santa Clara County, 480 U. S. 616
(1987). Although the dissenters had the better textual argument in
both cases, and urged the Court to read the words of the statute
literally, the Court, in both cases, opted for a reading that took
into account congressional purpose and historical context.
See
Steelworkers v. Weber, 443 U.S. at
443 U. S. 201
(Court rejected "literal construction of §§ 703(a) and (d)" and
held that the statute must "be read against the background of the
legislative history of Title VII and the historical context from
which the Act arose");
Johnson v. Transportation Agency,
480 U.S. at
480 U. S. 627
(legality of employer's Affirmative Action Plan to be assessed
according to criteria announced in
Weber). Neither
decision prompted an adverse congressional response.
Although there have been those who have argued that
congressional inaction cannot be seen as an endorsement of this
Court's interpretations,
see, e.g., Johnson v. Transportation
Agency, 480 U.S. at
480 U. S.
671-672 (SCALIA, J., dissenting);
Patterson v.
McLean Credit Union, 491 U. S. 164,
491 U. S. 175,
n. 1 (1989), that charge has been answered by the observation
that
"when Congress has been displeased with [the Court's]
interpretation . . . , it has not hesitated to amend the statute to
tell us so. . . . Surely, it is appropriate to find some probative
value in such radically different congressional reactions to this
Court's interpretations. . . ."
Johnson v. Transportation Agency, 480 U.S. at
480 U. S.
629-630, n. 7;
see Patterson v. McLean Credit
Union, 491 U.S. at
491 U. S. 200
(Brennan, J., concurring in judgment in part and dissenting in
part) ("Where our prior interpretation of congressional intent was
plausible, . . . we have often taken Congress' subsequent inaction
as probative to varying degrees, depending upon the circumstances,
of its acquiescence"). Since Congress has had an opportunity,
albeit brief, to correct our broad reading of attorney's fees in
Jenkins if it thought that we had misapprehended its
purpose, the Court has no reason to change its approach to the
fee-shifting provision of § 1988 as the majority does today.
[
Footnote 2/12]
See Pregnancy Discrimination Act of 1978, Pub.L.
95-555, 92 Stat. 2076, 42 U.S.C. § 2000e(k) (overturning
General Electric Co. v. Gilbert, 429 U.
S. 125 (1976)).
[
Footnote 2/13]
Immigration Reform and Control Act of 1986, Pub.L. 99-603, Sec.
315(b), 100 Stat. 3359 (1986) ("An alien shall not be considered to
have failed to maintain continuous physical presence in the United
States . . . if the absence from the United States was brief,
casual and innocent and did not meaningfully interrupt the
continuous physical presence").
[
Footnote 2/14]
See Grove City College v. Bell, 465 U.
S. 555,
465 U. S. 579
(1984) (STEVENS, J., concurring in part and concurring in result)
(Court should refrain from deciding issue not in dispute).
[
Footnote 2/15]
See Civil Rights Restoration Act of 1987, Pub.L.
100-259, 102 Stat. 28, 20 U.S.C. § 1687. Congress was clear in
expressing the need for the subsequent legislation:
"Congress finds that -- "
"(1) certain aspects of recent decisions and opinions of the
Supreme Court have unduly narrowed or cast doubt upon the broad
application of title IX of the Education Amendments of 1972 . . . ;
and"
"(2) legislative action is necessary to restore prior consistent
and longstanding executive branch interpretation and broad,
institution-wide application of those laws as previously
administered."
20 U.S.C. § 1687 note.
[
Footnote 2/16]
See H.R.Conf.Rep. No. 101-856, p. 1 (1990) (Civil
Rights Act of 1990). Again, Congress was blunt about its
purposes:
"The purposes of this Act are to -- "
"(1) respond to the Supreme Court's recent decisions by
restoring the civil rights protections that were dramatically
limited by those decisions; and"
"(2) strengthen existing protections and remedies available
under Federal civil rights laws to provide more effective
deterrence and adequate compensation for victims of
discrimination."
Ibid. The fact that the President vetoed the
legislation does not undermine the conclusion that Congress viewed
the Court's decisions as incorrect interpretations of the relevant
statutes.
[
Footnote 2/17]
See Pub.L. 100-690, § 7603, 102 Stat. 4508, 18 U.S.C. §
1346 ("[T]he term
scheme or artifice to defraud' includes a
scheme or artifice to deprive another of the intangible right of
honest services").
[
Footnote 2/18]
Smith v. Robinson, 468 U. S. 992,
468 U. S.
1031 (1984) (Brennan, J., dissenting).
[
Footnote 2/19]
Seventy years ago, Justice Cardozo warned of the dangers of
literal reading, whether of precedents or statutes:
"[Some judges'] notion of their duty is to match the colors of
the case at hand against the colors of many sample cases spread out
upon their desk. The sample nearest in shade supplies the
applicable rule. But, of course, no system of living law can be
evolved by such a process, and no judge of a high court, worthy of
his office, views the function of his place so narrowly. If that
were all there was to our calling, there would be little of
intellectual interest about it. The man who had the best card index
of the cases would also be the wisest judge. It is when the colors
do not match, when the references in the index fail, when there is
no decisive precedent, that the serious business of the judge
begins."
B. Cardozo, The Nature of the Judicial Process 20-21 (1921)
.