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

Tyee wt a se Ss a ie No. 89-994 4

IN THE ;

SUPREME COURT OF THE UNITED) $TATES

; PH F. SPANIOL,

OCTOBER TERM, 1989 , JOSE ibaa

E uf

ers

tt)

Bu

WEST VIRGINIA UNIVERSITY HOSPTIALS, INC.,

Petitioner,

Vv.

ROBERT CASEY, Governor of the

Commonwealth of Pennsylvania,

JOHN 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.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS

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

Litigation Section

Harrisburg, PA 17120

(717) 783-1471 oe

BEST AVAILAF

SOPY

MAY AN AWARD OF "REASONABLE

ATTORNEY'S FEES" UNDER 42 U.S.C.

§ 1988 INCLUDE COMPENSATION FOR

EXPERT WITNESSES?

TABLE OF CONTENTS

QUESTION PRESENTED. ......ccccccsesss

JURISDICTION... .cccccesssssssueuue

STATUTES INVOLVED......cccccsceses

STATEMENT OF THE CASE.......+.4+--

SUMMARY OF ARGUMENT..........2.-2.24-.

ARGUMENT... ... 00000055000

A. THE PLAIN STATUTORY LANGUAGE,

INTERPRETED IN CRAWFORD, LIMITS

EXPERT WITNESS FEES TO THIRTY

DOLLARS PER DAY.....s.5sseeeeee

B. CONGRESS DID NOT INTEND

WITNESS FEES TO BE COVERED

BY 42 U.S.C. § 1968...5.00ee

C. MISSOURI v. JENKINS DOES NOT

SUPPORT THE PETITIONER.........

CONCLUSION. .......+0s05 see

otitin,

PAGES

19

27

46

50

B AUTHORITIES

CASES:

Alyeska Pipeline Service Co.

Re EO CEP IS pecs ces ccees

Badaracco v. C.IJ.R.

renee MO CEPOS)... ccc cece

Blanchard v. Bergeron,

No. 87-1485 (U.S.

eee

Cagle v. Cox ,

87 F.R.D. 467 (E.D. Va. 1980)..

Consumer Product Safety

D j j Vv Vv

ttt tec cece.

447 U.S. 102 (1980)

Crawford Fitting Co. v. J.T.

Gibbons, Inc. ,

Ly ) ee

Davis v. County of Los Angeles,

8 E.P.D. 99444 (C.D. Cal.

TL Gb 6 2 0 6 0060 0 0 ee 0 co

Firestone Tire and Rubber Co.

vy. Bruch,

No. 87-1054, slip op.

SS

-lli-

39

44

TAB F AUTHORITIE

(Continued)

CASES:

Friedrich v. City of Chicago,

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

petition for cert. filed

(No. 89-1240)(U.S.

PON. 29, APDO) ec wecvecvcsessves

Garcia v. United States,

669 U.B. FTO (ROSE). ccccccsass

Gradmann & Holler GMBH v.

Continental Lines, S.A.,

679 7.26 272 (ist Cis. 3962)...

Henkel v. Chicago, S.P.,

© 2.6. Oe, ,

264 U.S. 444 (1932)... .cccceccs

4680 U.S. 421 (1969).......060-.

Joh v. Georaia Hiahew

Express

488 F.2d 714 (Sth Cir. 1974)...

Mansel] v. Mansell,

No. 87-201 (U.S. May 30,

ROSS ccc cccccsseeeseessenesece

Missouri v. Jenkins,

No. 88-64 (U.S. June 19,

it. } Peer reeeeere rr eee eee ee

oi Ya

PAGES

32

20

44

24,

19

31

38, 39

21

ll,

46,

48

17

47,

TABLE OF AUTHORITIES

(Continued)

CASES:

Pizzarro-de Ramirex v.

Grecomar Shipping Agency,

62 F.8.D. 327 (D.P.R. 1976)....

&

Stanford Dally ° Zurcher,

64 F.R.D. 680 (N.D. Cal.

3 f. ] PPPOE Le Tere ere ce cere ee

Swann v. Charlotte Mecklenberg

Board of Education,

66 F.R.D. 483 (W.D. N.C.

Pe eee ee ee ee ee eee

ee Fe Fh

Sar Wels SPO CEPI Se 6k eed wee

United States Marshal's

vi V. n ,

741 F.2d 1053 (8th Cir. 1984)..

= ;

Tebacco Co.

416 F.Supp. 313 (D.N.J. 1976)..

United States v. Ron Pair

Enterprises, Inc.,

No. 87-1043 (U.S. Feb. 22,

SPOPP sce sees edenevesvenessecesé

United States v. 364.82

Acres of Land,

38 F.R.D. 411 (N.D. Cal.

SOOO RE 66-0660 66 8b 08666 Oe HSS we eS

Watt v, Alaska,

eee ey 8 rarer ee er eae

oY =

44

38

38,

42

44

48

39

TABL F AUTHORITIES

(Continued)

STATUTES: PAGES

ie eR eS | Seen 2

Ze0 GU. OsGe § I Fae iT a tal el a ig hg hg Sek tae Te oa

7, 13.

| oe te

BVe Gee

48

26 U.8.¢. S$ 20Zitad (A), (Bde cccs. 22

Oe cs aes S. 6;

Fe 19,

Sas @8e

48

28 U.S.C. § oo. & } ers eee 43

ee ee eae 16, 45

62 B.8.C. BF ABPSCS) CASH AA) « <.0 00:0 8

a ee | eee Se ee ee ee passim

Act to Prevent Pollution from

Ships,

ae ate See 46 es 64 eee ees 37

Administrative Procedure Act,

S$ ¥.8.C. 3 SOCCER CAP CA). . ceeess 36

Clean Air Act,

SS O.0.0. SB POOGe «ok see eis cn’ 35

@Vie

TABLE OF AUTHORITIES

(Continued)

STATUTES:

Clean Air Act Amendments of 1977,

SZ U.l<G« § 7622(b)(2)(B),

Se ta aon a aoe ee oe ee ee

Consumer Product Safety Act,

15 U.S.C. §§ 2060(c), 2072(a),

tes 2 6 6s oa 6-8 es eae ole ek Oe

Deep Seabed Hard Mineral

Resources Act,

we Weel. BH BORE) ov cin cn cccen

Deepwater Ports Act of 1974,

De Gxmctx B BOROCO ce wc cccsecies

Endangered Species Act of 1973;

SO O.B.C.. FB BSCS CO CE) oc cc cue

Energy Policy and Conservation

Act,

OP 68.6. 2 GObee oo 2k Cees

Energy Reorganization Act

of 1974,

62 U.8.0. S SOSRCSPI2Z).. oc wccns

Equal Access to Justice Act

OR OS a a ere

28 U.S.C. § 2412(d)(1)(A),

Fe OPO 6 bao OS CR eee wc Caw

Federal Oil and Gas Royalty

Management Act of 1982,

30 U.S.C. § 1734(a)(4).........

-vii-

PAGES

TABLE OF AUTHORITIES

(Continued)

STATUTES:

Federal Water Pollution Control

AST »

33 U.B.C. DB AIECSCS). wee svcvvsscs

Handicapped Children's

Protection Act of 1986,

20 U.S.C. § 1415(e)(4)(B)......

Hazardous Liquid Pipeline

Safety Act of 1979,

OF B.8.€.. BS BORG) oc ccaccesess

Longshoremen's and Harbor

Workers’ Co.apensation Act,

3B U.B.C. F GSOCE) «wo scccscvcss

Marine Protection, Research,

and Sanctuaries Act of 1972,

SS U.B.Es BH BOSCO CSs « sccusce'

National Historic Preservation

Act Amendments of 1980,

26 GU.B.C. B SPOMMeGs ccccccvesess

Natural Gas Pipeline Safety Act,

49 U.8.C. SF T6BECO).. cc cascececs

Noise Control Act of 1972,

es Oe Os ko bean dus

Ocean Thermal Energy Conversion

Act of 1980,

2 U.8.€C. BF DEZECE).. wecccsccce

Outer Continentai Shelf Lands

Act Amendments of 1978,

43 U.E.C. BF LRESCTHP CS). wc vvess

ia

PAGES

TABLE OF AUTHORITIES

(Continued)

TATUTES: p

Petroleum Marketing Practices

Act,

15 U.S.C. § 2805(d)(1)(C),

gE pnt ee oe ee 36

Power Plant and Industrial

Fuel Use Act of 1978,

a a | 37

Public Utility Regulatory

Policies Act of 1978,

16 U.S.C. § 2632(a)(1),

PIES one ee be ete ee ah 36

Resource Conservation and

Recovery Act of 1976,

Ce WeeGs BD GOT ele 6. isk vk ck ky 37

Safe Drinking Water Act, ;

42 U.&.C. § 3004-6(4).......... 37

Surface Mining Control and

Reclamation Act of 1977,

BO So@ete BD ABPOCE vc cvcccccecee 36

Tax Equity and Fiscal

Responsibility Act of 1982,

26 U.S.C. § 7430(a),

ee ee i ed ad 6 a ous 4 36

Toxic Substances Act,

BP Wie. S OOM ios eke 33

BS ©.S.C. | S619te)(2)......... 34

wT ——————— - =. Or - =

TABLE OF AUTHORITIES

(Continued) No. 89-994

: PAGES IN THE

CONSTITUTION: SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

Fourteenth Amendment to

: ite

a porsche of the Uns a WEST VIRGINIA UNIVERSITY HOSPTIALS, INC.,

‘ meme c eco eee eee eee eee eee ee ee a

Petitioner,

Ve

RULES: ROBERT CASEY, Governor of the

Commonwealth of Pennsylvania,

a eS eee a6. 39 JOHN WHITE, Secretary of the

Fed. R.Civ. P. 54(d).. Pennsylvania Department of Public

ve ee | eer oe ee ee ee 16, 43, Welfare, and

Fed. R.Evid. 706..... 4s DAVID S. FEINBERG, Director of

the Bureau of Policy and Program

ae Mie oe 44 Development of the Pennsylvania

Fed. R.Evid. 706(b).... Department of Public Welfare,

Respondents.

Civil Rights Attorney's Fees

wards Act oO source ON WRIT OF CERTIORARI TO THE

oo oP ye History, UNITED STATES COURT OF APPEALS

=. “and Qther Documents FOR THE THIRD CIRCUIT

94 Cony. 2d. Sess. (1976).....--- ae. 38

11 Moore's Federal Practice BRIEF FOR THE RESPONDENTS

§ 706.01[3.-1]) p.VII-78....--+--- 44

1976 U.S. Code & Admin. News JURISDICTION

me GEES & GOES. occ ccc cesesees en's 34

The Court of Appeals’ decision

H.R. Conf. Rep. No. 687, 99th

Cong 2d Sess. 5, reprinted was issued on September 5, 1989. The

T: S. de Cong. & a

ST eae ine 1808 eee ig aan Oat 32 Court of Appeals denied petitioner's

-Zi-

timely request for a rehearing by order

issued October 5, 1989. The petition

for certiorari was filed on December 22,

1989 and was granted on February 26,

1990.

Jurisdiction of the Court is

pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

42._U.8.C. § 1988. Proceedings in

Vindication of Civil Rights Attorney's

Fees

The jurisdiction in civil and

Criminal matters conferred on

the district courts by the

provisions of this Title, and

of Title “CIVIL RIGHTS,” and

of Title “CRIMES,” for the

protection of all persons in

the United States in their

Civil rights, and for their

vindication, shall be

exercised and enforced in

conformity with the laws of

the United States, so for as

such laws are suitable to

Carry the same into effect;

but in all cases where they

are not adapted to the

object, or are deficient in

the provisions necessary to

furnish suitable remedies and

punish offenses against law,

the common law, as modified

and changed by the

constitution and statutes of

the State wherein the court

having jurisdiction of such

Civil or criminal cause is

held, so far as the same is

not inconsistent with the

Constitution and laws of the

United States, shall be

extended to the govern the

said courts in the trial and

Costs

disposition of the cause,

and, if it is of a criminal

nature, in the infliction of

punishment on the party found

guilty. In any action or pro-

ceeding to enforce a provision

of sections 1977, 1978, 1979,

1980, and 1981 of the Revised

Statutes [42 U.S.C. §§ 1981-

1983, 1985, 1986], title Ix

of Public Law 92-318 [20

U.S.C. §§ 1681 et seg.J, or

title VI of the Civil Rights

Act of 1964 [42 .s.¢.

§§ 2000d et seqg.], the court,

in its discretion may allow

the prevailing party, other

than the United States, a

reasonable attorney's fee as

part of costs.

i we A Bi. FB Taxation of

A judge or clerk of any

court of the United States

may tax as costs the

following:

(1) Fees of the clerk and

marshall;

(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 exemplifi-

cation and copies of papers

necessaiily obtained for use

in the case;

(5) Docket fees under

section 1923 of this title;

(6) Compensation of court

appointed experts, compen-

Sation of interpreters, and

Salaries, fees, expenses, and

costs of special interpre-

tation services under section

1828 of this title;

A bill of costs shall be

filed in the case and, upon

allowance, included in the

judgment or decree.

/ ze ee § 1821. Per Diem

Mileage Generally; Subsistence

(b) A witness’ shall _ be

paid an attendance fee of $30

per day for each day's atten-

dance. A witness shall also

be paid the attendance fee

for the time necessarily

occupied in going to-~ and

returning from the place of

attendance at the beginning

and end of such attendance or

at any time during such

attendance.

x * » *

and

STATEMENT OF THE CASE

Congress, in 28 U.S.C. §§ 1920

and 1821, has provided that the prevail-

ing party in a civil action may recover,

as part of its costs, witness fees up to

$30 per day. The issue in this case is

whether Congress intended to change this

rule when it provided that the prevail-

ing party in a civil rights action may

recover, as part of its costs, "a

reasonable attorney's fee.” 42 U.S.C.

§ 1988.2 Petitioner contends that it

lthe statute 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, 4

reasonable attorney's fee as

part of the costs. 42 U.S.C.

§ 1988.

is entitled to recover, under 42 U.S.C.

§ 1988, fees billed by expert witnesses

who assisted in the preparation’ and

presentation of the case. The Court of

Appeals, relying on the Court's direction

Inc., 482 U.S. 437 (1987) conciuded

that, because expert fees were not

mentioned in § 1988, compensation of

experts, like other witnesses, was

allowed only as costs taxable under 28

U.S.C. §§ 1920 and 1821.

Bs In the lawsuit underlying

the question before the Court, the

petitioner, West Virginia University

Hospitals, Inc. (WVUH), prevailed in its

Challen:e that Pennsylvania's system of

reimbursing out-of-state providers of

Medicaid services, such as petitioner,

violated federal statutory and consti-

tutional law (42 U.S.C. § 1396a(a)(13) (A)

and the Fourteenth Amendment)“, and

secured an award of attorney's fees under

42 U.S.C. § 1988. Pet App. at B-67 and

68. As prevailing party, petitioner

claimed $350,000 in attorney's’ fees,

$104,133 attributable to expert witness

fees and costs and $45,867 in disburse-

ments. Pet. App. at C-l. Although

respondents did not contest that the

experts were well qualified and that

their fees were reasonable, they did

argue that expert witness fees were not

available under § 1988.

2The Court of Appeals’ found it

unnecessary to rule on petitioner's

successful Fourteenth Amendment’ Equal

Protection claim. Pet. App. at A-37

Rs Fa

The District Court disagreed

with the respondents. The Court acknowl-

edged that Crawford limits expert fees

as costs to thirty dollars per day

"*absent contract or explicit authority

to the contrary' Crawford, 482 U.S. at

445"; Pet. App. at C-2, and conceded

that "([t]his language appears all-

encompassing.” Pet. App. at C-3.

Nevertheless, the District Court

concluded that "The fact-specific

application of the Crawford decision,

coupled with the emphatic Statements of

three Justices regarding the decision's

inapplicability to Section 1988, make

departing f rom accepted practice

unattractive.” Pet. App. at C-4. The

District Court, accordingly, awarded all

expert fees claimed.

as The Court of Appeals

reversed, 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 section 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 appeals court

noted the Court's “disfavor for ‘[aJ]ny

argument that a federal court is

empowered 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.

The Court of Appeals concluded

that Missouri ov. Jenkins, No. 88-64

(U.S. June 19, 1989), did not alter the

holding in Crawford because Jenkins

dealt with fees of law clerks’ and

paralegals, which are not regulated by

Statute as are witness fees. Pet. App.

at A-47. Accordingly, “constrained by

the language of Crawford”, and

"defer{ring] to legislative fiat,” the

Third Circuit "“abandon[ed] [its] previous

rule” and “limit[ed] expert witness fees

to thirty dollars a day.” Pet. App. at

A-47.

The Court granted certiorari on

February 26, 1990.

SUMMARY OF ARGUMENT

By its plain terms, 28 U.S.C.

§ 1821 permits a prevailing party to

recover $30 per day as costs associated

with witnesses. The Court in Crawford

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

U.8. 437 (1987), has applied the

limitation to expert witnesses, and has

said it will respect the limitations of

witness costs in the Fee Act unless a

statute or contract explicitly provides

otherwise. The "attorney's fees”

amendment to 42 U.S.C. § 1988, upon

which petitioner relies, does nothing of

kind. By its plain terms, it provides

only that “reasonable attorney's’ fees”

be allowed to a prevail-

ing plaintiff as part of the costs.

There is no mention in the amendment of

sts associated with expert or other

tne there an mention of

ert witnes fees in the debates

passage. Accordingly,

1821 limits the amount of

that may be had for expert

because § 1988 does. not

‘explicit statutory authority to

rary.” Crawford, 482 U.S. at

Neither the legislative history

f the “attorneys fees” amendment’ to

§ 1988, the context of its enactment,

nor a comparison with other fee shifting

statutes suggests that Congress’ meant

"reasonable attorney's fees" to mean

more than just that. The amendment was

enacted in direct response to the

Court's decision in Alyeska Pipeline

vj —— —— , Gas

U.S. 240 (1975), a decision which for-

bade federal courts to award attorneys

fees as costs, absent Statutory author-

ization. The entire debate concerning

the amendment was over whether an

attorney's fee award would be manadatory

Or discretionary and whether different

Standards would be applied to prevailing

plaintiffs as opposed to prevailing

plaintiffs. The question of reimbursing

the costs of expert witnesses under

§ 1988 was neither advocated nor debated

by Congress while it was debating the

feel shifting amendment to § 1988.

In other fee shifting legis-

lation, however, some of it passed about

the same time as the amendment to § 1988,

Congress made express provision for the

Shifting of expert fees as well] as

attorneys fees as a part of recoverable

costs. Thus, it appears that Congress

understood that expert fees had to be

explicitly provided for, it they were to

be allowed as costs, and did not assume

» }5 -«

that expert fees would automatically be

included by the phrase "reasonable

attorney's fees.”

There is not only no "persuasive

evidence”, Watt v. Alaska, 451 U.S. 259,

266 (1981), there is no evidence at all

that would preclude the application of

the plain meaning rule in this case. To

read “reasonable attorney's fees” to

include expert fees does violence to the

plain meaning and wording of the amend-

ment is not necessary to effectuate the

statute's purpose. Congress has provided

for court appointed experts upon the

request of a litigant and for. that

expert to be paid by the parties in

porportion as the court directs and

thereafter charged in 1ike manner as

other costs. Fed.R. Evid. 706; 28

U.S.C. § 1920(6). Thus, in a properly

presented case, the issue of afford-

ability of experts should never arise.

- 16 -

Missouri v. Jenkins, No. 88-64

(U.S., June 19, 1989), does not control

because it did not concern reimbursement

for expert witnesses but only the rate

of reimbursement for paralegals and law

clerks who were employees and members of

the attorney's staff. Because these

employees were not witnesses, 28 U.S.C.

21 did not come into play. Crawford,

+ Jenkins, controls here and reguires

that the judgment of the Court of

Appeals be affirmed.

ARGUMENT

The bare phrase "reasonable

attorney's fee” contained in 42 U.S.C.

§ 1988 cannot be read so expansively as

to include fees generated by expert

witnesses. To do so would be to distort

the plain meaning of the statute, to

read into the legislative history more

than is there, and to ignore the Court's

clear direction in Crawford Fitting Co.

> 2. Citas. toe. €82: E.8. 37

(1987). In Crawford, the Court held

that "absent explicit statutory Or

contractual authorization for the

taxation of the expenses of a litigant's

witness as costs, federal courts are

bound by the limitations set forth in 28

U.S.C. § 1821 and § 1920.” Id. at 445.

Congress has simply not placed in

42 U.S.C. § 1988 an explicit statutory

authorization for an award of expert

witness fees, and the judgment of the

Court of Appeals adhering to the limits

of 28 U.S.C. §§1821 and 1920 must conse-

quently be affirmed.

4

A. THE PLAIN STATUTORY LANGUAGE,

INTERPRETED IN CRAWFORD, LIMITS

EXPERT WITNESS FEES TO THIRTY

DOLLARS PER DAY.

The Court has consistently said

that in cases of statutory construction

that starting point must be the statutory

language itself. United States v. Ron

Pair Enterprises, Inc., No. 87-1043

(U.S. Feb. 22, 1989); Consumer Product

Safety Commission v. GTE Sylvania, Inc.,

447 U.S. 102, 108 (1980) “[T])he strong

presumption [is] that Congress expresses

its intent through the language it

chooses." Immigration & Naturalization

7e@ ov. Cardoza-Fonseca, 480 U.S.

421, 432 n.12 (1989). Where the

language of a statute is clear, only the

oS) =

"most extraordinary showing of contrary

intentions” from the legislative

history” would justify altering the

statute's plain language. Garcia v.

United States, 469 U.S. 70, 75 (1984).4

3The legislative history of the

fee shifting amendment to § 1988 is

conveniently collected in the Civil

Rights Attorney's Fees Awards Act of

1976 Source Book: Legislative History,

Texts, and Other Documents. 94 Cong.

2d. Sess. (1976). (Prepared by the

Subcommittee on Constitutional Rights of

the Committee of the Judiciary United

States Senate and collecting the Senate

and House reports and the proceedings

and debates of both Houses.) (Available

in the Library of Congress.) (Herein-

after referred to as Source Book.)

470 ~«6O6htthe)=0C extent §3= petitioner urges

the Court to disregard statutory

language in favor of general policy

considerations, their arguments must be

(FOOTNOTE CONTINUED ON NEXT PAGE)

1. Here, the statutory language

is plain. Congress has’ provided for

witness fees as taxable costs in the

modern version of the Fee Act of 1853:

A judge or clerk of any court

of the United States may tax

as costs the following....

(3) Fees and disbursements

for printing and witnesses....

(FOOTNOTE CONTINUED)

rejected. The Court has recently

Cautioned against ignoring the plain

language of a statute on these grounds:

[(WJe decline to misread the

Statute in order to reach a

Sympathetic result when such

a reading requires us to do

violence to the plain language

of the statute and to ignore

much of the legislative

history. Congress chose the

language that requires us to

decide as we do, and Congress

is free to change it.

Mansel] v. Mansell, No. 87-201, slip op.

at 13 (U.S. May 30, 1989).

(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. § 1920.

The costs permitted for wit-

nesses, other than court-appointed

experts, are further limited by statute:

(a) (1) Except as otherwise

provided by law, a witness in

attendance at any court of

the United States ‘ ,

should be paid the fees and

allowances provided by this

section.

(b) 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 at

the beginning and end of such

attendance or at any time

during such attendance.

28 U.S.C. § 1821(a)(1),(b). Rule 54(q)

of the Federal Rules of Civil Procedure

provides in turn for the taxation of

costs in favor of the prevailing party,

“unless the court otherwise directs."

Petitioner concedes, as it must, that

the “plain meaning" of 42 U.S.c. § 1988

provides only for the Shifting of "a

reasonable attorney's fee" as part of

the costs allowed a successful plaintiff.

The statute makes no mention of witness

fees. Thus, to the extent costs asso-

Clated with witnesses are allowed at

all, they are limited, except in the

case of court appointed experts, to an

attendance fee of thirty dollars per day.

2. The Court recently addressed

ne effect of these two statutes in

-kawford. In that case, prevailing

plaintiffs sought recovery of fees paid

expert witnesses in an antitrust case.

The Court rejected the argument’ that

Rule 54(d) allowed the district court

discretion to award witne2ss fees in

excess of the statutory limits:

We think that it is clear ; a

that in §§ 1920 and 1821, — oe: Lae

Congress comprehensively ot - ; a aa ;

addressed the taxation of Osta titat neces BEES : 1ts

fees for litigants’ wit- interpretatior a oe =e ay

nesses. This conclusion is mili te tatia ie 2 © Fee A in Alyeska

all the more compelling when Pipeline er ee | z i elle

wee VAS . , : Wliderness

we consider’ that § 1920(6)

allows the taxation as a cost Societ

of the compensation of court- ere EE <7 y pet Pigls -

eign gd ecg Alyeska, the Court ruled that courts

sna HO yf rio pind ena ia were not empowered to award counsel fees

ef ear cone baghrered pid to a prevailing party, because counsel

) bd + mahal yore geen fees were not listed as a cost taxable

iggy toon ar gg goog aye under the Fee Act. The Court in

<a sn ine Crawfrrd recognized that Congress had

| a daicak uae ree responded to Alyeska by broadening the

—. yf oan by eee ca availability of attorneys fees under 42

out in § 1821 only when io U.S.C. § 1988, but noted that “it has

witness is court-appointed. >

482 U.S. at 442. not otherwise ‘retracted, repealed, or

modified the limitations on taxable fees

“The Court noted that petitioners’ contained in the 1853 statute and its

argument had been rejected by the Court ielstaiainiain oe 4

years before in Henkel v. Chicago, S.P., ore 62 U.S. at 444, quoting

M, & O.R, Co., 284 U.S. 444 (1932 482 .

( ). Alyeska, 421 U.S. at 260. The Court

U.S. at 443.

went on’ to Say that:

!

i)

a

|

We think that, as in Alyeska,

Congress has made its intent

plain in its detailed treat-

ment of witness’- fees. We

will not lightly infer that

Congress has repealed §§ 1920

& 1821, either through Rule

54(d) or any other provision

not referring explicitly to

witness fees. As always,

"{wjhere there is no clear

intention otherwise, 3a

specific statute will not be

controlled or nullified by a

general one, regardless’ of

the priority of enactment.”

Radzanower v. Touche Ross &

Co., 426 U.S. 148, 153 (1976),

quoting Morton v. Mancari,

iv U.S. 335, $950-55) (1976)

(emphasis added).

482 U.S. at 444-445.

While it is certainly true that

the Court in Crawford did not decide the

precise issue now before the Court --

availability of expert fees under 42

U.S.C. § 1988 -- it is also true that

the Crawford decision goes a long way

toward answering that question. The

Court has acknowledged that the limi-

tations of the Fee Act are generally

applicable to expert witnesses and has

Said in the plainest terms that it will

respect those limitations, absent

explicit Statutory direction to the

contrary. Because the language of 42

U.S.C. § 1988 refers only in general

terms to the al owance of attorneys fees

as costs, and is silent as to witness

fees, it does not provide’ the clear

direction the Court has said it will

require to modify the Fee Act.

B. CONGRESS DID NOT INTEND WITNESS

FEES TO BE COVERED BY 42 U.S.C.

§ 1988. _ alae

Petitioner asks that the Court

look bey :d the plain language of 42

U.S.C. § 1988, which does not mention

expert witness fees, to find a con-

gressional intent that they be included

anyway within the statute's scope.

However, the historical context of the

enactment of the “attorney's fee" amend-

ment to § 1988, the debate surrounding

it, and a comparison with other fee

shifting statutes all demonstrate that

Congress' attention was focused on

shifting the cost of counsel fees in

civil rights litigation and not~ on

compensation for expert witnesses.

1. The amendment was passed in

direct response to the Court's decision

in Alyeska. In that case, the Court

held that federal courts could not award

attorneys’ fees as a cost to prevailing

parties unless the award was specifi-

cally authorized by statute.

Congress has not’ repudiated

the judicially fashioned

exceptions to the general

rule against allowing’ sub-

stantial attorneys’ fees; but

neither has it retracted,

repealed, or modified the

limitations on taxable fees

contained in the 1853 statute

- 26 «=

and its successors. Nor has

it extended any roving author-

ity to the Judiciary to allow

counsel fees as costs or

otherwise whenever the courts

might deem them warranted.

9421 U.S. at 260 (footnote omitted).

The Court stated that "the

approach taken by Congress to [the issue

of attorney's fees] has been to carve

Out specific exceptions to ae general

rule that federal courts cannot award

attorneys’ fees...." Alyeska, 421 U.S.

at 269. The Court also stated that

Congress “has not changed the general

statutory rule that allowances for

counsel fees are limited to the’ sums

specified in the costs’ statute.” 421

v.88. @t 255. The Court further noted

that there is "a well-established

principle . . . that no ‘change is to be

presumed unless clearly expressed.'"

9421 U.S. at 256, n.29 (citation omitted).

The Court found that Congress has made

“specific and explicit provisions for

the allowance of attorneys’ fees under

selected statutes . . . [which] differ

considerably among themselves.... [And

that] it is apparent that the circum-

stances under which attorneys' fees are

to be awarded and the range of discretion

of the courts in making those awards are

matters for Congress to determine.” 421

U.S. at 260-262.

{n response to Alyeska, Congress

amended 42 U.S.C. § 1988, to explicitly

provide that in certain civil rights

cases, "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."

By its plain terms, the statute addresses

only the shifting of attorneys’ fees as

part of the costs. The statute is silent

as to expert witness’ fees despite the

fact that the Fee Act of 1853, discussed

in Alyeska, contains an explicit limita-

tion on witness fees.allowable as costs,

and despite the decision of Henkel v.

Ca2caeo.,. 2.?.,. -. & 6.8. foe... 206 8.8.

444 (1932), which held that these limita-

tions were fully applicable to costs

generated by expert witnesses. Under

these circumstances, Congress should not

be presumed to have meant more than it

said, and “a reasonable attorney's fee"

should not be distorted to include

expert witness' fees.

Be Petitioner suggests’ that

the phrase “‘reasonable attorney's fees'

is a ‘shorthand expression' for what it

reasonably costs to prevail, including

expert fees.” Pet. Brief at 23. Peti-

tioner draws support for its position

from Friedrich v. City of Chicago, 888

F.2d 5l] (7th Cir. 1989), a case in

which the court retused to read either

42 U.S.C. § 1988 or the Crawford decision

literally and consequently did conclude

that “reasonable attorney's fees" was a

shorthand expression which included

witness’ fees. The Friedrich decision

misreads Crawford and does not square

with Congress’ specific treatment of

expert fees in other fee shifting

statutes -- some enacted or debated at

the same time as the amendment’ to

§ 1988.6 For example, about a week

6-etitioner's claim that "Congress

specificilly state[d) its intent that

the te.m ‘reasonable attorneys’ fees’

when used in fee shifting statutes,

includes fees of experts", Pet. brief at

18, is incorrect, misleading and wholly

unsupportable from the authority peti-

tioner cites--H.R. Conf. Rep. No. 687,

99th Cong., 2d Sess. 5, reprinted in

1986 U.S. Code Cong. & Admin. News 1798,

1808. That report states:

{ FOOTNOTE CONTINUED ON NEXT PAGE)

before it enacted the amendments’ to

§ 1988, Congress passed the Toxic

Substances Act, Pub.L. 94-469, 90 Stat.

2041, Oct. 11, 1976, 15 U.S.C. § 2601,

et seq. That statute provides that "The

(FOOTNOTE CONTINUED

Tne conferees intend that the

term "“attorneys' fees as part

of the costs” include reason-

able expenses and fees of

expert witnesses and reason-

able costs of expert witnesses

and reasonable costs of any

test or evaluation which is

found to be necessary .. .

as well as the traditional

costs incurred in the course

of litigating a case.

This statement only applied to the bill

under consideration, the Handicapped

Children’s Protection Act of 1986, P.L.

99-372, 100 Stat. 796, 20 U.S.C. § 1415

(e)(4)(B). The amendments to § 1988

were enacted in October of 1976. What a

Congressional Conference committee said

about a different statute ten years

after it amended § 1988 cannot be taken

as an expression of what Congress

irttended earlier. Firestone Tire and

Rubber Co. v. Bruch, No. 87-1054 (U.S.

Feb. 21, 1989).

court may award costs of suit and reason-

able fees for attorneys and expert

witnesses if the court determines that

such an award is appropriate." 15

U.S.C. § 2619(c)(2), Pub.L. 94-469,

§ 20.’ Similarly, Congress enacted in

1980 amendments to the statutory

provision for costs and fees taxable in

Civil actions brought by or against the

United States under the Equal Access to

Justice Act. 26 U.S.C. § 24612. These

amendments were debated at the same time

7Senator Kennedy, one of the

principle sponsors of the amendment to

§ 1988, referred to the Toxic Substances

Act and its fee shifting provisions

during debate on the amendments’ to

§ 1988. Source Book at 198. Senator

Tunney, who introduced the amendment to

§ 1988, was one of the managers, a

member of the conference committee and a

member of the Commerce Committee (which

reported out the Toxic Substance bill)

for the Toxic Substances Act. 1976 U.S.

Code & Admin. News at 4522 and 4543.

as the amendments to § 1988, and express-

ly define taxable “reasonable fees and

expenses of attorneys" as including

"expenses of experts witnesses.” 28

U.S.C. § 2412(d)(1)(A), (4) (2) (a) .8

The Clean Air Act, 42 U.S.C. § 7604(d),

passed in 1976, authorizes a court to

award to any party costs of litigation

"including reasonable attorney's fees

and expert witness fees." (Emphasis

added. ) These are not the only

examples. In at least 30 provisions in

26 separate statutes, Congress has chosen

828 U.S.C. § 2412(d) was amended

effective October 21, 1980 by the 96th

Congress. The Amendment, however, was

first Proposed by Senator Helms as

amendment No. 470 to §.2278, the bill

which amended 42 U.S.C. § 1988. Amend-

ment 470 was debated by the Senate during

1ts debate on §.2278 and expresly called

for reasonable expenses of witnesses and

expert witnesses. Source Book at 34-45.

to specify that under certain statu-

torily-defined circumstances litigants

(often, however, only prevailing

plaintiffs) may recover expert witness

fees in addition to the costs normally

recoverable in a civil action and in

addition to attorneys' fees.”

9See Administrative Procedure Act,

5 u.S.c. § 504(b)(1)(A); Consumer Product

Safety Act, 15 ¥.8.¢. §§ 2060(c),

2072(a), 2073; Petroleum Marketing

Practices Act, 15 U.S.C. § 2805(d)(1)(C),

(d)(3); National Historic Preservation

Act Amendments of 1980, 16 0.8.¢C.

§ 470w-4; Endangered Species Act of

39753 26: . B.Sc § 1540(g)(4); Public

Utility Regulatory Policies Act of 1978,

16 U.S.C. § 2632(a)(1), (b) (2); Tax

Equity and Fiscal Responsibility Act of

1982, 26 U.S.C. § 7430(a), (c)(1)(A) (11);

Surface Mining Control and Reclamation

Act of 1977, 30 U.S.C. § 1270(d); Deep

Seabed Hard Mineral Resources Act, 30

U.S.C. § 1427(c); Federal Oil and Gas

Royalty Management Act of 1982, 30 U.S.C.

§ 1734(a)(4); Longshoremen's and Harbor

Workers’ Compensation Act, in Fe

§ 928(d); Federal Water Pollution Control

(FOOTNOTE CONTINUED ON NEXT PAGE)

Thus, it is simply not true that Congress

regards the phrase "reasonable attorney's

fee" as a term of art that encompasses

expert witness costs -- still less is it

a shorthand phrase for "all expenses of

litigation.”

(FOOTNOTE CONTINUED)

Act, 33 U.S.C. § 1365(d); Marine Protec-

tion, Research, and Sanctuaries Act of

1972, 33 U.S.C. § 1415(g)(4); Deepwater

Ports Act of 1974, 33 U.S.C. § 1515(d);

Act to Prevent Pollution from Ships, 33

U.S.C. § 1910(d); Safe Drinking Water

Act, 42 U.S.C. § 3003-8(d); Noise Control

Act of 1972, 42 U.S.C. § 4911(d); Energy

Reorganization Act of 1974, 42 U.S.C.

§ 585l1(e)(2); Energy Policy and

Conservation Act, 42 U.S.C. § 6305(d);

Resource Conservation and Recovery Act

of 1976, 42 U.S.C. § 6972(e); Clean Air

Act Amendments of 1977, 42 o.8.C.

§ 7622(b)(2)(B), (e)(2); Power Plant and

Industrial Fuel Use Act of 1978, 42

U.S.C. § 8435(d); Ocean Thermal Energy

Conversion Act of 1980, 42 0.8.¢.

§ 9124(d); Outer Continental Shelf Lands

Act Amendments of 1978, 43 U.8.€.

§ 1349(a)(5); Natural Gas Pipeline

Safety Act, 49 ¥.8.C¢. § 1686(e);

Hazardous Liquid Pipeline Safety Act of

1979, 49 U.S.C. § 2014(e).

- The pre-Alyeska cases cited

in the Senate Report on the _ proposed

amendment do not suggest, as petitioner

implies, see Pet. brief at 20, that

Congress was led to believe an award of

attorney's fees would include expert

fees. The Senate Report cited Johnson

v. Georgia Highway Express, 488 F.2d 714

(Sth Sur. 1974) as containing the

"appropriate standards” for computing

counsel fees and Stanford Daily v.

Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974);

vi Vv. n n —-s es 2

99444 (C.D. Cal. 1974); and Swann ov.

Charlotte Mecklenberg Board of Education,

66 F.R.D. 483 (W.D. N.C. 1975) as cases

which “correctly applied" those’ stan-

dards. Senate Report at 6, Source Book

oS Be- The report stated that "In

computing the fee, counsel for the

prevailing parties should be paid, as is

traditional with attorneys compensated

by a fee-paying client, ‘for a}] time

reasonably expended on the matter.'”

Id. These cases were cited to Congress

for the purpose of illustrating when an

award of attorney's fees should be made

and to whom but not for the proposition

that experts’ costs are to be a component

of an attorney's fee, ??

10None of the 12 factors listed in

Johnson has a thing to do with expert's

fees. “he fact that they were awarded

in Davis v. County of Los Angeles,

Supra, is of little moment because the

Charge for expert witness fees was not

Challenged by the defendants and Davis

Only “permitted a fee award to counsel

in a public interest firm which otherwise

would have been entitled to no fee.”

Blanchard v. Bergeron, No. 87-1485, slip

Op. at 5 (U.S. Feb. 21, 1989). Simi-

larly, in Swann, there was no objection

by the defendants to the “expenses”

Claimed, and awarded.

Congress certainly did recognize

that there was a difference between

attorney's fees and expert witness'

fees, and knew how to provide language

specific enough to encompass expert

witness' fees when it wanted to. That

it did not do so in the amendment to

§ 1988 can only mean that Congress did

not mean for expert's fees to be covered

under § 1988. In this amendment,

Congress addressed only the problem at

hand -- Alyeska -- and provided only

provision for the shifting of reasonable

attorney's fees. ** Not only is there

no explicit reference in the statute for

the shifting of expert witness' fees --

llfhat Congress was not concerned

with expert's fees is borne out by the

debates on the amendments, which do not

even mention expert costs. Source Book

passim.

as required by the Court in Crawford --

there is no explicit reference to expert

witness' fees in the legislative history

Or in the debates, nor is there any

other basis for concluding that Congress

assumed that expert's fees would be

included without specific reference.

4. Petitioner argues that,

despite Congress’ failure to mention

expert witness' fees in § 1988, the

intent of the statute will be thwarted

if the Court does not read the statute

to allow for fees anyway. The argument

runs that civil “rights plaintiffs will

be discouraged from filing lawsuits or

will be unable to prosecute them

successfuliy because there will be no

mechanism for them to. recover expert

witness’ fees at the conclusion of the

litigation, if they are successful. In

the first place, it is not for the Court

to rewrite clear statutory language on

the basis of broad policy considerations.

see Badaracco v. C.I.R., 464 U.S. 386,

398 (1984)("Courts are not authorized to

rewrite a statute because they might

deem its effect susceptible of improve-

ment."); T.V.A. v. Hil], 437 U.S. 153,

194-195 (1978)("We do not sit as a

committee of review, nor are we vested

with the power of veto." The Supreme

Court may not "“pre-empt congressional

action by judicially decreeing what

accords’ with ‘common sense and the

public weal.'") secondly, giving effect

to the statute as written will not

necessarily have the effect petitioner

Claims.

The Fee Act draws a distinction

between the thirty dollar a day witness

fee authorized by Statute, and “compen-

Sation" for court appointed experts:

A judge or clerk of any court of the

United States may tax as costs the

following .... (6) Compensation of

court appointed experts....

28 U.S.C. § 1920.22

Rule 706 of the Federal Rules

of Evidence permits the trial court,

upon request of any party or on its own

volition, to issue an order to show cause

why expert witnesses should not be

appointed, and to invite the parties to

submit nominations. Court appointed

experts "are entitled to reasonable

compensation in whatever sum the court

may allow . . . [which] shall be paid by

the parties in such proportion ... as

the court directs, and thereafter charged

l2congress obviously used the word

“compensation to distinguish this payment

from the “witness fee” authorized by

§ 1920(3) and limited in mount by

§ 1821.

in like manner as other costs." Fed.R.

Evid. 706(b).

Court appointment of a witness

nominated by one of the parties can and

has been used to establish a statutory

basis for later taxation of that

witness's compensation as_ costs. See

United States Marshal's Service Vv.

Means, 741 F.2d 1053, 1057-58 (8th Cir.

1984). This is also done, on occasion,

under the rubric of the Court's

"inherent power” to tax expert witness

fees through prior approval. See

Gradmann & Holler GMBH v. Continental

Lines, S.A., 679 F.2d 272, 274-75 (lst

Cac. sdez): Conse vv, Coe, br FR... 667:

471-72 (2.0. ~ Ve. 1980); Pizzarro-de

Ramirex v, Grecomar Shipping Agency, 82

ry omcee. sas. 40.0.ms Serer. See also 11

Moore's Federal Practice § 706.01[3.-1]

p.VII-78 ("The inherent power of a trial

judge to appoint an expert of this own

choosing is virtually unquestioned." )

Taken together, Rule 706 and 28

U.S.C. § 1920(6) provide a vehicle for a

needy plaintiff to apply to the court

for appointment of an expert and for the

Shifting of the cost of a court appointed

expert to the losing party. This fore-

Closes petitioner's argument that worthy

and impecunious litigants will be denied

access to necessary experts unless § 1988

is given the expansive reading they

Suggest. Reading the statutes

literally, experts will be available

when needed, but the court will be able

to evaluate whether their services are

necessary and will be in a postion to

control their use.

—-

Cc. MISSOURI v. JENKINS DOES NOT

SUPPORT THE PETITIONER

Petitioner argues that the

Court's recent decision in- Missouri v.

Jenkins, No. 88-54 (U.S. June 19, 1989)

controls and requires reversal.

Petitioner is wrong. In Jenkins, the

Court considered the appropriate rate to

be applied under 42 U.S.C. § 1988 to

work done by paralegals and law clerks

employed by counsel. The parties’ had

agreed that they could be compensated

under the statute and disagreed only on

whether they should be compensated at

cost to the law firm or at the hourly

rate billed the client. In concluding

that the hourly billing rate was appro-

priate, the Court said that a reasonable

attorney's fee "must take into account

the work not only of attorneys, but also

of secretaries, messengers, librarians,

Janitors, and others whose labor contri-

butes to the work Product for which an

attorney bills her client: ana lt must

also take account of other expenses and

profit.” slip op. at 11. The Court in

Jenkins did no more than to allow 4

lawyer to bill an adversary under § 1988

for the services ore the lawyer's

employees which would normally be billed

Separately to a private client. This is

@ far cry from the result urged here.

It is one thing to Say that the phrase

“reasonable attorney's fee” may include

compensation for a lawyer's paralegal

employees and quite another to Say that

it may include compensation for _ non-

legal witnesses, not affiliated with the

lawyer, whose costs. are governed by

another, more specific statute. /? To

give the words of § 1988 so expansive a

meaning is to give them no meaning at

all.

It is Crawford, not Jenkins,

that controls this case. Applying

Crawford, expert witness' fees may be

taxed as costs only in accordance with

the limitations of 28 U.S.C. §§ 1920 &

1821 unless some other statute or

contract, explicitly referring to

witness fees, provides otherwise.

Section 1988 makes no provision for. the

l3courts have recognized, in

addition, that the purpose of expert

testimony is not to advocate, but to

assist the fact finder in deciding

issues of fact. See, a Pe United

States v. R.J. Reynolds Tobacco Co., 416

F.Supp. 313, 315 (D.N.J. 1976); United

States v. 364.82 Acres of Land, 38

F.R.D. 411, 416 (N.D. Cal. 1965).

compensation of expert witnesses, and

the judgment of the Court

Should therefore be affirmed.

—

of

Appeals