Opposition Brief — West Virginia Univ. Hospitals, Inc. v. Casey

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, iF Sugyeme Court, U.S.

C am kes eat | :

NO. 89-994 \" FIRsee

IN THE JAN 29 i

SUPREME COURT OF THE UNITED STATB&ex &. s2eiot, J

CLERK

October Term, 1989 —

WEST VIRGINIA UNIVERSITY

HOSPITALS, INC.,

Petitioner,

Vv.

ROBERT CASEY, Governor of the

Commonwealth of Pennsylvania, JOIN F.

WHITE, Secretary of the Pennsylvania

Department of Public Welfare, and

DAVID S. FEINBERG, Director of the

Bureau of Policy and Program

Development of the Pennsylvania

Department of Public Welfare,

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

ERNEST D. PREATE, JR.

Attorney General

By: JEROME T. FOERSTER

Deputy Attorney General

Counsel of Record

CALVIN R. KOONS .

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Chief, Litigation Section

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

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STATEMENT OF THE CASE...........

REASONS FOR DENYING THE WRIT....

A. The Petition Presents

No Important Issue for

ee. oceans eee #6 5

B. The Petition Does Not

Establish a Conflict

Among the Circuits........

CONCLUSION. wc ccccescvsscccvccces

TABLE OF CITATIONS

CASES: PAGES:

Black Grievance Committee v.

Philadelphia Electric Co.,

690 F.Supp. 1393 (E.D.Pa.

BOOS) . ccc ceccccesesenneeel 7

Crawford Fitting Company v.

J.T. Gibbons, Inc., 482 U.S.

437 (Ci9O7T) .cccsccssdeeneneee passim

Davis v. Richmond, Fredericks-

burg and Potomac R.R., 803

F.2d 1322 (4th Cir. 1986)..... ~

Denny v. Westfield State

College, 880 F.2d 1465 (lst

Cig. BOOS). cccccsssssennnee 8

ECOS v. Brinegar, 671 F.Supp.

381 (8.D.8.C. {967 bce ceneeeeaae 8

Freeman v. Package Machinery

Company, 48 E.P.D. $38,456

(lst Cir. Nov. 2, 1988)(CCH).. 8

Friedrich v. City of Chicago,

888 F.2d 511 (7th Cir. 1989).. 10,11

Huertas v. East River Housing

Corp., 674 F.Supp. 440

(8.D.8.¥. 1967)..<<seeeeeee ~

Leroy v. City of Houston, 831

F.2d 576 (Sth Cir. 1987)...... a

Missouri v. Jenkins, No. 88-64

slip op. (U.S. June 19, 1989). 9,11

« £8 &

TABLE OF CITATIONS CONT'D.

CASES;

Ramos v. Lamm, 713 F.2d 546

Roberts v. S.S. Kyriakoula D,

Lemos, 651 F.2d 201 (3d

SapaNAJIN v. Gunter, 857 F.2d

4963 (8th Cir. OO EE

Sevigny v. Dicksey, 846 F.2a

eeeee@em Cat. 1968)...........

U.5. CONSTITUTION

Fourteenth Amendment............

STATUTES

42 U.S.C. § 1396a(a)(13)(A).....

meememueee © A973) (e)............

umememe © BOG]................

Mumm, @ 8OS2................

eure @ BSOO6................

- iii -

PAGES;

passim

iv -

PAGES:

STATEMENT OF THE CASE

By After a six day non-jury

trial, the District Court declared that

Pennsylvania's system of reimbursing

out-of-state providers of Medicaid

services, such as petitioner, violated

federal statutory and constitutional law

(42 U.S.C. § 1396a(a)(13)(A) and the

Fourteenth Amendment), and awarded the

petitioner attorney's fees under 42

U.6.¢.. 3 3966. Pet. App. at B-67 and

68. The District Court directed counsel

to submit a joint fee proposal. Pet.

App. at B-68 and C-l.

The joint fee proposal listed

$350,000 attributable to attorney's

fees, $104,133 attributable to expert

witness fees and costs and $45,867

attributable to disbursements. Pet.

App. at C-l. The respondents argued

that the District Court could not award

under 42 U.S.C. § 1988 any portion of

the claimed expert witness fees’~ and

costs of $104,133, "bas[ing] their

assertion that expert witness fees are

[not] available under Section 1988 on

Crawford Fitting Company v. J.T.

Gibbons, Inc., 482 U.S. 437, 107 S.Ct.

2494 (1987)." Pet. App. at C-2.

The District Court disagreed

with the respondents, finding that

“Crawford does not affect our circuit's

law on the issue of expert witness fees

under Section 1988," and awarded the

full amount claimed. Pet. App. at C-4.

r In the Court of Appeals,

respondents challenged the award of

expert witness fees and the Court of

Appeals agreed with them, ruling that 42

U.S.C. § 1988 “as presently drafted does

not authorize expert fee awards in

excess of the statutory cap of thirty

dollars per day _. provided in [28

U.S.C. §] 1821(b)." Pet. App. at A-48.

The Court of Appeals’ followed

Crawford, stating that it “seems to

dictate that, even in the case of a fee

shifting statute such as section 1988, a

court may not award fees in excess of

the statutory maximum of thirty dollars

a day unless the fee shifting statute

expressly makes such an_- allowance.”

Pet. App. at A-46. The Court of Appeals

noted the Court's “disfavor for ‘[a]Jny

argument that a federal court is em-

powered to exceed the limitations

explicitly set out in sections 1920 and

1821 without plain evidence of congres-

sional intent to supersede that section'”

and noted the Court's admonition in

Crawford that it “will not lightly infer

that Congress has repealed §§ 1920 and

1821, either through Rule 54(d) or any

other provision not referring explicitly

to witness fees." Pet. App. at A-46.

Accordingly, "constrained by

the language of Crawford”, and

"defer[ring]) to legislative fiat", the

Third Circuit "abandon[ed] [its]

previus rule" and "“limit[{ed] expert

witness fees to thirty dollars a day.”

Pet. App. at A-47.

The Hospital has petitioned for

certiorari on this issue and the

respondents oppose the granting of such

a writ for the reasons which follow.

REASONS FOR DENYING THE WRIT

A. The Petition Presents No Important

Issue for Resolution. — —_

In ruling that expert costs

were limited to the statutory rate of

thirty dollars per day prescribed by 28

U.S.C. § 1821, the Court of Appeals did

no more than to apply correctly the

straightforward holding of Crawford

Fitting Co. v. J.T. Gibbons, Inc., 482

U.S. 437 (1987). The petition therefore

presents no difficult or important issue

for resolution by the Court. |

In Crawford, the Court held

"that when a prevailing party seeks

reimbursement for fees paid to its own

expert witnesses, a federal court is

bound by the limits of 28 U.S.C. § 1821,

absent contract or explicit statutory

authority to the contrary.” Id. 482

U.S. at 439. The Court pointed out that

Congress in enacting 42 U.S.C. § 1988

Only broadened the "availability of

attorney's fees" and that Congress “has

not otherwise ‘retracted, repealed, or

modified the limitations on taxable fees

contained in the 1853 statute and its

successors'." Crawford, 482 U.S. at

444. Section 1988 does not permit. a

court to award a reasonable expert

witness fee as part of the costs nor

does it allow the court to award a

reasonable expert witness fee as part of

the reasonable attorney's fee which may,

under 42 U.S.C. § 1988, be awarded as

part of the costs.! This is true even

if “the use of the experts was ‘indispen-

sable to the determination of tthe case’

lFor example, the Clean Air Act,

42 U.S.C. §7604(d), expressly provides

for attorneys fees and expert witness

costs. When Congress wants to allow

these, it says so.

Or ‘played ae crucial role in the

resolution of the issues presented'".

Black Grievance Committee v, Philadel-

phia Electric Co., 690 F.Supp. 1393,

1404 (E.D.Pa. i988) (quoting Roberts v,

S.S. Kyriakoula D. Lemos, 651 F.2d 201

(3d Cir. 1981)).

Pursuant to 28 U.S.C § 1821,

witness fees are limited . 7 at )6C oc daily

)

’

| aad

)

attendance fees and su

ances. No provision is made for

compensation of experts. Crawford, 482

0.8. @t €65. Because Congress provided

no relief from 28 U.S.C. § 1821's limits

as to expert witness fees when it

enacted 42 U.S.C. § 1988, the rule

remains “that a federal court may tax

expert witness fees in excess of the

thirty dollar day limit set out in

§ 1821 only when the witness is court

appointed." Crawford, 482 U.S. at 442.

The Court of Appeals properly reversed

the District Court, following the clear

direction of the Court in Crawford.”

2Other jurisdictions agree with

the Third Circuit, and have relied on

Crawford to limit or deny expert fees.

see ECOS v. Brinegar, 671 F.Supp. 381

(a.D.8.¢. 1987) (expert witness’ fees

denied in a-— §— 1983 case); Denny v.

Westfield State College, 880 F.2d 1465

(lst Cir. 1989) (expert witness fees

denied under Title VII, 42 i Fe

§ 2000e-5(k)); Leroy v. City of Houston,

831 F.2d 576 (Sth Cir. 1987) (expert

witness fees denied under’ the Voting

Rights Act, 42 U.S.C. § 1973)(e));

Huertas v. East River Housing Corp., 674

F.Supp. 440 (S.D.N.Y. 1987) (expert

witness fees denied under Title VII,

Fair Housing Act, 42 U.S.C. § 3601, et

seq., and 42 U.S.C. §§ 1981 and 1982);

Freeman v, Package Machinery Company, 48

E.P.D. 38,456 (lst Cir. Nov. 2, 1988)

(CCH) (Crawford casts “doubt . . . the

district court's ability to award expert

witness fees in excess of the $30-per-

day ceiling. ..." 48 E.P.D. at 54,566);

epee also Sevigny v. Dicksey, 846 F.2d

953 (4th Cir. 1988) (§ 1983 action but

Claim for fees addressed to the general

equitable powers of the court); Davis v,.

(FOOTNOTE CONTINUED ON NEXT PAGE.)

Missouri v, Jenkins, No. 88-64

Slip op. (U.S. June 19, 1989), cited by

petitioner, does not cast doubt on the

holding of Crawford. Jenkins did not

concern reimbursement for expert witness

fees, as did Crawford, and the result in

Jenkins was therefore not circumscribed

by the limits of 28 U.S.C. § 1821.

Rather, Jenkins allowed compensation for

law clerks and paralegals, members of an

attorney's staff, as a component of a

reasonable attorney's fee pursuant to 42

¥.5.€. 8 - 3006. Because these employees

were not witnesses, 28 U.S.C. § 1821 did

not come into play, and there is thus no

tension between the holdings in Crawford

and Jenkins.

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE.)

Richmond, Fredericksburg and Potomac

R.R., 803 F.2d 1322 (4th Cir. 1986)

(Title VII, 42 U.S.C. § 2000e (pre

Crawford) (§ 1988 does not provide

Statutory authority to award compen-

sation for non-legal experts).

B. The Petition Does Not Establish a

Conflict Among the Circuits, __

Petitioner relies heavily on

what it calls a “multi-circuit conflict”

in which the decisions of the First,

Third, and Fourth Circuits are pitted

against those of the Seventh, Eighth and

Tenth. Pet. at 6. Petitioner

exaggerates.

The Seventh Circuit's decision

in Friedrich v. City of Chicago, 888

F.2d 511 (7th Cir. 1989), is inapposite.

Although the Court of Appeals purported

to answer the question of “whether the

judge in a civil rights case may order

the losing party to reimburse the cost

incurred by the winner to hire an expert

witness" id. at 512-513, the Seventh

Circuit had already established, before

Crawford, the rule that “lawyers' out-of-

pocket expenses of travel, investigation,

and other trial preparation,” were award-

able under 42 U.S.C. § 1988. Id. at

513. No one challenged this rule in the

appeal before the Seventh Circuit,

ibid., and that court's comments on the

issue are therefore no more than

dicta.°

The Eighth Circuit in SapaNAJIN

v. Gunter, 857 F.2d 463 (8th Cir. 1988),

disposed of the issue perfunctorily, in

one paragraph with little or no analysis,

3Moreover, Jenkins did not, as

suggested in Friedrich, “read the statute

[§ 1988] to allow as part of the ‘'reason-

able attorney's fee’ the award of para-

legal fees, even though paralegals are

not attorneys,” 888 F.2d at 513. That

issue had been conceded by Missouri in

Jenkins. Also, the statement in

Friedrich that "“'reasonable attorney's

fee’ S a shorthand expression for such

fees and other expenses as the District

Court might in the exercise of its

equitable descretion reasonably believe

should be reimbursed to the prevailing

party,” 888 F.2d at 518, is dictum.

id. at 465, and without the benefit of

the Third Circuit's thorough analysis in

this case.

_ Finally, the Tenth Circuit

decided Ramos v. Lamm, 713 F.2d 546

(10th Cer. 1983) four years before

Crawford. Given the Court's direction

in Crawford, the Tenth Circuit might

well decide the issue differently

today.

The Court is thus not yet faced

with a square conflict among the

Circuits, if indeed it will ever be. It

would be premature for the Court to step

in and settle a conflict which further

developments may prove illusory. In the

meantime, this issue will benefit from

further seasoning in the lower courts.

CONCLUSION

The petition for certiorari of

West Virginia University Hospitals, Inc.

should be denied.

Respectfully submitted,

ERNEST D. PREATE, JR.

Atsorney General

L2Z

EROME T. FOERSTER