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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 83

## Text

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) « 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0694%3A06. Public record. Not legal advice.