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

, iF . Sup eames fe re tf .&

L. riL So

—— SP. HOw, JR

‘4 CLERA

IN THE z -_

« te eFe

Supreme Court of the Gnited States

October Term, 1989

WEST VIRGINIA UNIVERSITY HOSPITALS, INC.,

Petitioner,

ROBERT CASEY, Governor of the Commonwealth of

Pennsylvania, JOHN 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.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Robert T. Adams

Counsel of Record

Thomas J. Stallings

McGUIRE, WOODS, BATTLE &

BOOTHE

One James Center

Richmond, Virginia 23219

(804) 775-1000

June 14, 1990

(Additional Counsel Listed on Inside Front Cover)

SN SS SS

Appellate Printing Services * Hertage Building * Suite 908 * Richmond VA 23219 * (800) 642-7789

Julia Krebs-Markrich

McGUIRE, WOODS, BATTLE & BOOTHE

The Army and Navy Club Building

1627 Eye Street, N.W.

Washington, D.C. 20006

(202) 857-1700

Jack M. Stover

ECKERT, SEAMANS, CHERIN & MELLOTT

North Market Square Building

122 King Boulevard

Harrisburg, Pennsylvania 17101

(717) 233-3266

Counsel for Petitioner

RULE 29.1 LISTING

The listing of subsidiaries and affiliates filed in the Petition for Writ of

Certiorari remains accurate.

TABLE OF CONTENTS

Il. 42U.S.C. § 1988 Must Be Construed To Give Fuli

Effect To Congress’ Purpose Of Encouraging

Private Enforcement Actions Under The Civil

Rights Statutes By Authorizing Fully

Compensatory Foe Awatds.......seccscsssesssssfesossscsoessscesess

A. The Language Of 42 U.S.C. § 1988 Does

Embrace Awards Of Fees For Experts..............-..

B. Congress’ Clear Intention Takes Precedence

Over The Plain Language Of A Statute ...............

G Congress’ Explicit Inclusion Of Experts’

Fees In Other Statutes Does Not Compel The

Conclusion That Experts’ Fees Are Not

Compensable Under 42 U.S.C. § 1988...............

D. Any Construction Of 42 U.S.C. § 1988 Must

Avoid An Absurd Or Anomalous Result.............

I]. Federal Rule Of Evidence 706 Is Not A Substitute

For A Full And Complete Fee Award Under

42 U.S.C. § 1988

PoP PPP eee eee eee eee eee ee ee eee eee eee eee eee eee eee

Il. An Extension Of Crawford Fitting Co. v.

J.T. Gibbons, Inc., Is Not Warranted Because It

Would Contradict Congress’ Intent ............:ccccceeceeeeeeees

CONCLUSION

COREE EERE EERE EERE EEE EEE EEE EEE EEE EEE EE EE EEE EEE HEHEHE HEHE

TABLE OF AUTHORITIES

CASES

Alyeska Pipeline Service Co. v. Wilderness Society,

Briscoe v. Lahue, 460 U.S. 325 (1983) ...........

Cabell v. Markham, 148 F.2d 737 (2d Cir. 1945) ......

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

(1978)

Church of the Holy Trinity v. United States, 143 U.S. 457

(1892)

Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437

(1987)

Danville Tobacco Association v. Bryant-Buckner

Associates, Inc., 333 F.2d 202 (4th Cir. 1964) .....

Davis v. County of Los Angeles, 8 Fair Empl.

Prac. Cas. (BNA) 244, 8 Empl. Prac. Dec.

(CCH) 19444 (C.D. Cal. 1974) .. 0.0.0.0 00-.

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980)

Foti v. Immigration and Naturalization Service,

375 U.S. 217 (1963)

-|V-

i ae ‘ee wey agi Vee or fe 6 oe ee ee Oe oe Oe ee et ee ee ee OE ee ee ee

i a a Se ae fee ee, Re et te ee el wt ee oe ee ee Roe ee A er

— kcal we Se i whe ke 6 eh! Coe ee fee ee a ae oe oe a ee oe

16, 17,

14

Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir.

1989), petition for cert. filed, 58 U.S.L.W. 3505

(U.S. Jan. 29, 1990) (No. 89-1230) ..........

Gates v. United States, 707 F.2d 1141 (10th Cir. 1983)

Green v. Bock Laumiry Machine Co., 490 U.S. __,

109 S. Ct. 1981, $04 L. Ed. 2d 557 (1989) ......

Hensley v. Eckerhart, 461 U.S. 424 (1983)

Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976). . .

King v. Smith, 392 U.S. 309 (1968) ...........

Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp.

ov 51 ae a eee

Missouri v. Jenkins, 491 U.S. _, 109 S. Ct. 2463,

105 L. Ed. 2d 229 (1989)

Pennington v. Coxe, 6 U.S. (2 Cranch) 33 (1804) ....

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986) ..........

Public Citizen v. United States Department of Justice,

491U.S.__, 109 S. Ct. 2558, 105 L. Ed. 2d 377

I er cal gt IRE can yet es aa Nd rag rhe

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

(3d Cir. 1981)

Scott v. Spanjer Brothers, Inc., 298 F.2d 928

ET i gil ay a6 Sew wae

-V-

a) aw Se on, ae ay oe to ee ee eke Oe or A, A ee, Bee en

Students of California School for the Blind v. Honig,

736 F.2d 538 (9th Cir. 1984), vacated, 471 U.S.

PS 68 6 eRe VES Bea ew ee ee 14

Sullivan v. Hudson, 490 U.S. __, 109 S. Ci. 2248,

oe 8 ee 9,10

United States v. Green, 544 F.2d 138 (3d Cir. 1976),

cert. denied, 430 U.S.910(1977) ............. 15

United States Marshals Service v. Means, 741 F.2d 1053

ns s+ ss bk oe eo oe ee ee we es 15

Watt v. Alaska, 451 U.S. 259(1981) ............. 5

U.S. CONSTITUTION

i ge eS a ee ee eee es ene ee 12

STATUTES

ae SoReal Ot ia egy 12

a eg a ere a ee 2,7

ne Oe OE ia e- - W) eOW WaO e O o 16, 17

a RS ogg iat aaa gig gh a ig a Mak ant eg tates ae 16, 17

EE fairest is kg pice Lhe ee 910,11

NNR RE eg ace ea a et Lele erm ae eid “aie tie passim

er CE a eee aay eek ey Bers Eee 8,9

MISCELLANEOUS

Awarding Of Attorney’s Fees: Hearings Before the

Subcommittee on Courts, Civil Liberties, and the

Administration of Justice of the Committee on

the Judiciary, House Of Representatives, 94th

oe ees ee ee ee 6

ogee 8 eee ee 4

122 Cong. Rec. 35,123 (1976) ........0--. 00 ee 2

ee nea 17

ME cc. fet pee ek bee eae eee os - 14,

l

H.R. Conf. Rep. No. 687, 99th Cong., 2d

Sess. 1, reprinted in 1986 U.S. Code Cong. &

EE ks bow Wr 4 eee be ee © ee Oe 2,7

H.R. Rep. No. 1418, 96th Cong., 2d Sess. 1,

reprinted in 1980 U.S. Code Cong. & Admin.

EE, Gc ce Maa oe 8 ee ee ee ee ee 10, 11

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976) ..... 4,5

S. Rep. No. 1011, 94th Cong., 2d Sess. 1, reprinted

in 1976 U.S. Code Cong. & Admin. News 5908 ..... 2, 4, 5

Sutherland Stat. Const. (4thed. 1984) ............ 6

-Vii-

No. 89-994

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

WEST VIRGINIA UNIVERSITY HOSPITALS, INC.,

Petitioner,

Vv.

ROBERT CASEY, Governor of the Commonwealth of

Pennsylvania, JOHN 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.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

ARGUMENT

I.

42 U.S.C. § 1988 Must Be Construed To

Give Full Effect To Congress’ Purpose

Of Encouraging Private Enforcement Actions

Under The Civil Rights Statutes By

Authorizing Fully Compensatory Fee Awards.

Seizing upon the fact that 42 U.S.C. § 1988 does not contain the

words "experts’ fees," the Pennsylvania defendants argue that experts’

fees may not be included in awards made under § 1988. However,

such a result is contrary to Congress’ intent to provide a full and

complete remedy that pays what it costs to bring a civil rights

enforcement action. Because the Pennsylvania defendants studiously

avoid any explanation of how the exclusion -of experts’ fees is

consistent with Congress’ purpose in enacting the fee shifting

provision of § 1988, West Virginia University Hospitals, Inc.

(hereinafter referred to as "WVUH"), respectfully submits that each of

the Pennsylvania defendants’ arguments should be rejected.

A. The Language Of 42 U.S.C. § 1988 Does Embrace

Awards Of Fees For Experts.

The Pennsylvania defendants repeatedly argue that the plain

meaning of 42 U.S.C. § 1988 does not countenance awards of fees for

experts. See, ¢.g., Brief of Respondents at 18. They are wrong.

The phrase "reasonable attorney’s fee" is a term of art that is well

understood by legislators and civil rights litigators to encompass

experts’ fees, paralegals’ fees, and other fees beyond those generated

personally by an attorney. See H.R. Conf. Rep. No. 687, 99th Cong.,

2d Sess. 5, reprinted in 1986 U.S. Code Cong. & Admin. News 1798,

1808 ("The conferees intend that the term ‘attorneys’ fees as part of the

costs’ {in 20 U.S.C. § 1415(e)(4)(B)]} include reasonable expenses and

fees of expert witnesses .. . ."); see also Missouri v. Jenkins, 491 U.S.

__, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989) (paralegals’ fees are

compensable under § 1988). Indeed, when Representative Drinan,

who sponsored the Civil Rights Attorney’s Fees Awards Act, discussed

the bill, he clearly indicated that the phrase "reasonable attorney’s fee"

went beyond fees generated by attorneys themselves: "the phrase

‘attorney’s fee’ would include .... all incidental and necessary

expenses _ incurred in_ furnishing effective and competent

representation.” 122 Cong. Rec. 35,123 (1976) (emphasis added).

Further evidence of Congress’ intent to allow reimbursement of

experts’ fees under § 1988 can be found in the express endorsement of

pre-Alyeska caselaw awarding experts’ fees under similarly-worded

civil rights fee shifting statutes. See, e.g., S. Rep. No. 1011, 94th

Cong., 2d Sess. 6, reprinted in 1976 U.S. Code Cong. & Admin. News

5911, 5913 (citing Davis v. County of Los Angeles, 8 Fair Empl. Prac.

Cas. (BNA) 244, 8 Empl. Piac. Dec. (CCH) 1 9444 (C.D. Cal. 1974)).

Thus, 42 U.S.C. § 1988 not only can ve read to include awards of

, 1. , ios

experts’ fees, it should be so read because it contains fee shifting

language that has an established meaning encompassing awards of

experts’ fees.

B. Congress’ Clear Intention Takes Precedence Over The

Plain Language Of A Statute.

Even if the phrase "reasonable attorney’s fee" were not a term of

art, the plain words of the statute would not take precedence over

Congress’ clear legislative intention. This Court has repeatedly

reaffirmed the vitality of this principle. E.g.. Green v. Bock Laundry

Machine Co., 490 U.S. __, 109 S. Ct. 1981, 104 L. Ed. 2d 557

(1989); Church of the Holy Trinity v. United States, 143 U.S. 457

(1892); Pennington v. Coxe, 6 U.S. (2 Cranch) 33 (1804).

Although § 1988 does not contain the words "experts’ fees," this

narrow focus of literality does not adequately illuminate the controlling

issue Of Congress’ intent. In the case of § 1988, three facts underlying

the legislation irrefutably demonstrate that Congress intended a

broader form of fee relief than that advocated by the Pennsylvania

defendants.

First, prior to the announcement of Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240 (1975), federal courts commonly

awarded experts’ fees when they awarded attorneys’ fees pursuant to

their then-presumed equitable powers. See Brief of Petitioner at 18

n.15 (citation of pre-Alyeska cases where courts awarded experts’

1 Nothing in § 1988 prohibits experts’ fee awards or is inherently antithetical to

them.

fees). This Court has recognized that the historical prelude to the

enactment of a statute is a critical factor to consider in interpreting the

statute. See, ¢.g., Foti v. Immigration and Naturalization Service, 375

U.S. 217 (1963); Church of the Holy Trinity, 143 U.S. at 462-63.

Secondly, after Alyeska’s announcement, Congress acted quickly

and decisively to abrogate Alyeska’s effects upon civil rights litigation.

Concerned with "effective access to the judicial process," H.R. Rep.

No. 1558, 94th Cong., 2d Sess. 1 (1976), Congress wanted, in

particular, to insure that civil rights litigants "have the means to go to

court, and to be effective once they get there." 122 Cong. Rec. 33,313

(1976) (statement of Sen. Tunney). Congress clearly recognized that,

"{iJf the cost of private enforcement actions becomes too great, there

will be no private enforcement." S. Rep. No. 1011, 94th Cong., 2d

Sess. 6, reprinted in 1976 U.S. Code Cong. & Admin. News 5908,

5913. These and other indications of Congress’ intent establish that

Congress wanted to restore to the courts their pre-Alyeska practices,

which included expert fee awards as a part of awards of attorneys’ fees.

Congress wanted to "remedy [the] anomalous gaps in our civil rights

laws created by . . . Alyeska." Id. at 1, reprinted in 1976 U.S. Code

Cong. & Admin. News at 5909.7 Nothing in Congress’ enactment of

§ 1988’s fee shifting provision suggests that it intended only a partial

nullification of Alyeska in the area of the civil rights litigation.”

2 Reinstatement of the federal courts’ pre-Alyeska practices by eliminating the

“anomalous gaps" is consistent with not only an intent to overturn Alyeska but

also Congress’ historical practice of supplying broad civil rights remedies.

Indeed, WVUH submits that this conclusion is far more reasonable than the one

advanced by the Pennsylvania defendants, who argue that Congress did not fill

in all of the anomalous gaps despite its stated intentions to do so. Congress did

not act in a piecemeal fashion contrary to its stated goals, but rather it acted to

eliminate all of Alyeska’s effects upon civil rights litigation.

3 Congress’ speed in enacting the fee shifting provision of 42 U.S.C. § 1988 is

noteworthy and supports the conclusion that Congress perceived a substantial

need to overturn Alyeska in its entirety in the area of civil rights litigation.

Several legislators and witnesses remarked upon the need for expeditious action

Thirdly, a failure to pay experts’ fees is fundamentally contrary to

Congress’ articulated purpose of creating a "full and complete" remedy

that would pay "what it costs" to bring private enforcement actions.

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976); S. Rep. No. 1011,

94th Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. & Admin.

News 5908, 5910. In fact, the Pennsylvania defendants’ narrow

construction of § 1988 frustrates Congress’ purpose because it would

deny a successful civil rights plaintiff reasonable compensation for

experts needed to prove the plaintiff’s case, i.e., "what it costs" to

prevail. "Plain meaning" is only an axiom of construction, not a rule of

law, see Watt v. Alaska, 451 U.S. 259, 266 (1981), and it should not be

allowed to become an uliimate weapon of statutory destruction.

In appropriate cases like this one, this Court has rejected "plain

meaning" constructions, agreeing with Judge Learned Hand that:

"it is one of the surest indexes of a mature and

developed jurisprudence not to make a fortress out of

the dictionary; but to remember that statutes always

have some purpose or object to accomplish, whose

sympathetic and imaginative discovery is the surest

guide to their meaning."

Public Citizen v. United States Department of Justice, 491 U.S. __,

109 S. Ct. 2558, 2566, 105 L. Ed. 2d 377, 392 (1989) (quoting Cabell

v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)).

(continued)

by Congress. This backdrop of urgency to § 1988’s amendment and the

concomitant lack of dispute or legislative compromise are consistent with the

observation that Congress was not acting with precision on a number of finite

issues affected by Alyeska but rather was striving to return as quickly as possible

to the pre-Alyeska status quo, which did, in fact, include awards of experts’ fees.

See Brief of Petitioner at 18 n.15.

Indeed, this Court has already rejected a literal construction of

§ 1988, Missouri v. Jenkins, and has a long tradition of rejecting plain

meaning constructions in the civil rights area when the historical

context of civil rights statutes indicated that Congress did not intend a

literal reading. See, e.g., Hensley v. Eckerhardt, 461 U.S. 424, 429 n.2

(1983); Briscoe _v. Lahue, 460 U.S. 325 (1983); Christiansburg

Garment Co. v. EEOC, 434 U.S. 412 (1978). Consistent with these

authorities, the Seventh Circuit concluded that § 1988 authorized

awards of experts’ fees. Friedrich v. City of Chicago, 888 F.2d 511,

514 (7th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3505 (U.S.

Jan. 29, 1990) (No. 89-1230).

Because statutes are "purposive utterances" and because "language

is a slippery medium in which to encode the purpose," id., courts must

read the statute to bring about the end the Congress would have

specified had Congress "thought about it more clearly or used a more

perspicuous form of words." Id.; see Ford Motor Credit Co. v.

Milhollin, 444 U.S. 555, 565 (1980) ("It is a commonplace that courts

will further legislative goals by filling the interstitial silences within a

Statute or a regulation. Because legislators cannot foresee all

eventualities, judges must decide unanticipated cases by extrapolating

from related statutes or administrative provisions."); see also 2A

4 The Pennsylvania defendants mistakenly state that experts’ fees were not

mentioned in the legislative history of § 1988’s fee shifting provision. See

Brief of Respondents at 41. Some witnesses did refer to compensation of

experts. E.g., Awarding of Attorney’s Fees: Hearings Before the Subcommittee

on Courts, Civil Liberties, and the Administration of Justice of the Committee on

the Judiciary, House of Representatives, 94th Cong., 1st Sess. 1, 89 (1975)

(prepared statement of M.F. Derfner, stating in support of awards of attorney’s

fees that "because of the limited resources available to [attorneys] in public

interest Cases, they are rarely able to afford the technical assistance of expert

witnesses"). However, Congress apparently saw no reason to be more explicit,

presumably because the term "reasonable attomey’s fee" was a term of art with

an established meaning encompassing experts’ fees. See id. at 91 n.9

(antidiscnmination fee shifting provisions normally contain identical language);

see also Section I.A. supra. WVUH is aware of no expression of Congressional

intent to prohibit the compensation of experts’ fees under § 1988.

Sutherland Stat. Const. § 45.09 at 41 (4th ed. 1984) (Judge Robert E.

Keeton’s four-step analysis of statutory construction). As Judge

Posner noted, this is not judicial usurpation but "interpretation in a

sense that has been orthodox since Aristotle." 888 F.2d at 514.

Accordingly, while, in hindsight, one might criticize Congress for

its failure to use a "more perspicuous form of words," id., that criticism

does not justify restricting § 1988’s reach in contradiction of Congress’

purpose. To restrain § 1988 is to reduce Congress’ power to legislate

effectively. That is not this Court’s function; instead this Court should

aid in the achievement of Congress’ goals.

C. Congress’ Explicit Inclusion Of Experts’ Fees In Other

Statutes Does Not Compel The Conclusion That

Experts’ Fees Are Not Compensable Under 42 U.S.C.

§ 1988.

The Pennsylvania defendants correctly point out that, in a number

of other fee shifting statutes, Congress explicitly authorized experts’

fees. See Brief of Respondents at 35-36 and n.9. Thus, they argue that

Congress must have intended to exclude awards of experts’ fees when

itenacted § 1988 without any explicit reference to such fees.

The Pennsylvania defendants’ argument rests entirely on the

proposition that Congress will always use the term "experts’ fees"

when it intends such fees to be compensable. This proposition,

however, is untenable. Congress has made it clear in other fee shifting

Statutes that it intends the term "reasonable attorneys’ fees" to include

experts’ fees. H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. 5,

reprinted in 1986 U.S. Code Cong. & Admin. News 1798, 1808

(concerning 20 U.S.C. § 1415(e)(4)(B)). Therefore, Congress’ failure

to use the words "experts’ fees" by no means constitutes an exclusion

of such fees.

Furthermore, this Court has held that omission of particular words

in a fee shifting statute may not be a basis for thwarting Congress’

purpose. In Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546 (1986), the Court confronted the issue of

whether the expenses of administrative proceedings were embraced by

the fee shifting provisions of the Clean Air Act, 42 U.S.C. § 7604(d).

The Commonwealth of Pennsylvania, in arguing for a limited

construction of § 7604(d), contrasted that statute’s "costs of litigation

(including reasonable attorney and expert witness fees)" in "any

action" to § 1988's authorization for a "reasonable attorney’s fee" in

"any action or proceeding." Pennsylvania argued that the omission of

the word "proceeding" from § 7604(d) was important and signified

that Congress did not intend the Clean Air Act’s fee shifting provision

to be as broad as § 1988’s remedy.

The Court refused to attach such significance to the minor

differences in terminology between the two statutes. Instead, the Court

concluded that Congress’ purposes behind both § 1988 and § 7604(d)

were "nearly identical, which lends credence to the idea that they

should be interpreted in a similar manner," irrespective of their

distinctions in drafting. 478 U.S. at 559. In reaching this conclusion,

the Court noted § 1988’s purpose of fostering private enforcement

actions. Id. at 560. Importantly, after finding that the Clean Air Act’s

fee shifting provision had a nearly identical purpose, the Court’s

analysis turned upon the fact that participation in administrative

proceedings was "crucial" to the vindication of the rights of

environmental groups, id. at 561, and "necessary to the attainment of

adequate relief." Id. at 558.

The same analysis is appropriate within the context of § 1988 and

experts’ fees. Just as the absence of an explicit reference to a

proceeding" does not control the proper interpretation of § 7604(d),

the absence of an explicit reference to "experts’ fees" in § 1988 should

not control the proper interpretation of § 1988. Indeed, as a broader

Statutory remedy in a more important substantive area of the

law, § 1988 logically must include compensation for the experts’ fees

expressly embraced by § 7604(d).

The district court in this case found WVUH’s experts to be

"essential" to the district court’s decision.” See Pet. App. at C-2. Such

a finding of indispensability is consistent with the holding in

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air that

costs "crucial" to the enforcement of the Clean Air Act are

compensable under the Clean Air Act’s similarly-worded fee shifting

provision. Therefore, as stated by this Court, both § 1988 and

§ 7604(d) "should be interpreted in a similar manner," 478 U.S. at 559,

which means that the costs of WVUH’s "essential" experts should be

reimbursed.

In a similar vein, Sullivan v. Hudson, 490 U.S. ___, 109 S. Ct.

2248, 104 L. Ed. 2d 941 (1989), rejected a plain meaning construction

of the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (hereinafter

referred to as the "EAJA"). That case dealt with whether the costs of

administrative proceedings under the Social Security Act were

compensable under the EAJA. The Federal Government argued that

they were not because the EAJA was limited to a "civil action" which

excludes any non-judicial forum. 109 S. Ct. at 2257, 104 L. Ed. 2d at

954.

Again, the basis for the Court’s rejection of a "plain meaning"

construction of the EAJA was the conclusion that administrative

proceedings were "crucial" to the vindication of the rights to be

enforced. Id., 109 S. Ct. at 2256, 104 L. Ed. 2d at 953. The Court

analyzed the situation by pointing out that the failure to pay for a

“crucial” part of an enforcement action would be "anomalous" and

5 Prior to its decision in this case, the Third Circuit had held that experts’ fees

were compensable under § 1988 if the court concluded the experts were

indispensable to the case. See Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d

201, 204-06 (3d Cir. 1981).

would frustrate the EAJA’s purpose. In an apt analogy, the Court

characterized the effects of a plain meaning construction of the EAJA

as a "lifeline that... was a foot short." Id., 109 S. Ct. at 2256, 104

L. Ed. 2d at 954. The same can be said with respect to the

Pennsylvania defendants’ construction of § 1988.

Although the Pennsylvania defendants rely heavily upon the EAJA

because it explicitly authorizes experts’ fees, see Brief of Respondents

at 34-35, the EAJA is, in actuality, more evidence of the breadth of

§ 1988’s remedy. In enacting the EAJA, Congress clearly intended

that the EAJA would be more limited in its awards than § 1988. The

legislative history noted that the EAJA would not control where other

fee shifting statutes were applicable. H.R. Rep. No. 1418, 96th Cong.,

2d Sess. 18, reprinted in 1980 U.S. Code Cong. & Admin. News 4984,

4997. Specifically, the House Report stated that the EAJA was not

intended to replace or supersede any statute like § 1988 "in which

Congress has indicated a specific intent to encourage vigorous

eniorcement, or to alter the standards or the case law governing

[$ 1988]." Id. That fact is reflected in 28 U.S.C. § 2412(d)(1)(A)’s

initial language "[e]xcept as otherwise specifically provided by statute

....' Thus, Congress clearly contemplated situations where both the

EAJA and other fee shifting statutes like § 1988 might be applicable,

and it provided that § 1988 would take precedence in that event.

The precedence of § 1988 over the EAJA makes sense because the

EAJA is a limited remedy. For example, a party must not only prevail,

but he must also show that the position of the United States was not

“substantially justified." 28 U.S.C. § 2412(d)(1)(A). In addition, fees

for attorneys and for experts are capped (albeit by different methods).

28 U.S.C. § 2412(d)(2)(A). Moreover, prevailing parties who have

resources over $2,000,000.00 do not qualify for a fee award under the

EAJA. 28 U.S.C. § 2412(d)(2)(B).

While Congress intended to foster enforcement actions with the

EAJA, it is clear that its intent was not to provide fees for every

prevailing party or to pay all of the fees charged to a prevailing party

by his attorneys or experts. In short, ihe EAJA does not provide for a

-10-

"full and complete" remedy as does § 1988.° Thus, Congress’ express

inclusion of experts’ fees in the EAJA cannot be read to exclude

experts’ fees from § 1988, the broader statute, ’

Consequently, the sweeping proposition of statutory construction

advanced by the Pennsylvania defendants must be rejected. It is

inaccurate to say that Congress’ inclusion of explicit provisions

concerning experts’ fees in one fee shifting statute, even one with a

Similar purpose, automatically excludes them in another fee shifting

Statute that does not contain the same degree of explicitness.

Therefore, the Pennsylvania defendants’ argument about Congress’

express inclusion of experts’ fees in twenty-six statutes is not a valid

basis for a construction of § 1988 that excludes compensation for

experts’ fees. Instead, § 1988 should be interpreted in light of its

Stated purpose of providing a "full and complete" remedy to pay "what

it costs" to enforce civil rights.

D. Any Construction Of 42 U.S.C. § 1988 Must Avoid An

Absurd Or Anomalous Result.

The Pennsylvania defendants’ construction of § 1988 not only

frustrates Congress’ manifest purpose but produces an “odd result"

which demands a more reasonable construction. Green v. Bock

6 Indeed the legislative history of the EAJA suggests that Congress’ inotive in

enacting the EAJA was to discourage government agencies from persisting in

non-menitorious litigation, which is a far different intention than the one behind

§ 1988. H.R. Rep. No. 1418, 96th Cong., 2d Sess. 9-10, reprinted in 1980 US.

Code Cong. & Admin. News 4984, 4988-89.

7 Another interesting contrast between the EAJA and § 1988 is their respective

lengths. The EAJA is far more lengthy than is § 1988’s fee shifting provision

and provides far more detail. Congress obviously wished to achieve only certain

limited goals in the EAJA, which, therefore, required more precise drafting than

is found in § 1988. Again, this difference supports WVUH’s contention that

Congress acted broadly in § 1988 and that "reasonable attorney’s fee" is a form

of shorthand for what it costs to prevail.

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Laundry Machine Co., 109 S. Ct. at 1984, 104 L. Ed. 2d at 564; see

also id., 109 S. Ct. at 1994, 104 L. Ed. 2d. at 575 (Scalia, J.,

concurring).

The Pennsyivania defendants contend that experts’ fees may be

awarded only pursuant to those statutes in which Congress specifically

recites the phrase "expert witness fees." Eg, 15 U.S.C.

§ 2805(d)(1)(C) (Petroleum Marketing Practices Act). Thus, under the

Pennsylvania defendants’ interpretation of the various federal fee

shifting statutes, experts’ fees may be compensated in the case of some

Statutory violations but never in the case of a constitutional violation,

such as the Fourteenth Amendment violation found by the district court

in this case. See Pet. App. at B-49 to B-53. Such a construction turns

logic and reason inside out by making a constitutional violation less

worthy of vindication than a statutory violation. While federal statutes

typically involve important national policies, they do not rise to the

level of our basic constitutional rights. Therefore, a broad construction

of § 1988, a civil rights fee shifting statute, is in order.

In certain respects, the odd result advocated by the Pennsylvania

defendants is analogous to the example of an absurd law, noted by

three members of this Court in another case. That absurd law

prohibited the drawing of blood in the streets by a physician who

comes to the aid of an injured person. Public Citizen v. United States

Department of Justice, 109 S. Ct. at 2574-75, 105 L. Ed. 2d at 402

(Kennedy, J., Rehnquist, C.J., and O’Connor, J., concurring). In the

context of § 1988, the injured person can clearly have his attorney

assist him with his lawsuit, but to what avail if an expert, who is vital

to the proof of his case, cannot assist him? Thus, just as an injured

man may lose his life in the street because a physician cannot come to

his aid with necessary treatment, the civil rights plaintiff may lose his

case because an expert cannot provide necessary advice and/or

testimony.

To avoid this absurdity and to honor Congress’ intent and, indeed,

its long tradition of broad remedies in the civil rights area, the

arguments advanced by the Pennsylvania defendants about § 1988’s

22.

"plain meaning" must be rejected. If the Pennsylvania defendants

eschew "snippets" of legislative history, then they should at least be

willing to recognize the sequence of events leading to the enactment of

the fee shifting provision of § 1988: (1) pre-Alyeska practice included

awards of experts’ fees; (2) Alyeska stopped the practice; and (3)

Congress, intending a "full and complete" remedy, quickly restored the

pre-Alyeska practice by amending § 1988. Thus, when Congress

enacted § 1988’s fee shifting provision, it painted with the broad brush

of a house painter, not with the fine palette brush of a portraitist.

Accordingly, this Court should continue interpreting § 1988 in a

manner consistent with its purpose. See Missouri v. Jenkins.

II.

Federal Rule of Evidence 706 Is Not A Substitute

For A Full And Complete Fee Award

Under 42 U.S.C. § 1988.

Tae Pennsylvania defendants recognize that the Third Circuit’s

Opinion concerning experts’ fees harms and deters civil rights litigants

by denying them a full and complete remedy, i.e., one that includes

reimbursement for experts. To mitigate this mischief they argue that

experts can be appointed by the court under Fed. R. Evid. 706, at least

where there are "worthy and impecunious litigants," and that the court

can assess the experts’ fees against the other party. See Brief of

Respondents at 45. This argument is not valid.

First, the protection of civil rights is not within the exclusive

province of either the rich or the poor. The entire history of the

enforcement of civil rights demonstrates that any person, regardless of

his fortune, has the right to enforce his rights and to obtain the relief to

which he is entitled. The vindication of civil rights by either a rich

man or a poor man benefits both; each is entitled to a full and complete

remedy. Therefore, the Pennsyivania defendants’ argument that Fed.

..

R. Evid. 706 is a remedy for at least the "worthy and impecunious"

litigant misses the high mark of civil rights enforcement.

The courts have recognized that Fed. R. Evid. 706 is not the

panacea suggested by the Pennsylvania defendants. Experts appointed

by a court pursuant to Fed. R. Evid. 706 are by no means the functional

equivalent of experts selected by a party. See Kaufman v. Edelstein,

539 F.2d 811, 818 (2d Cir. 1976) ("The situation of the court appointed

expert... . differs utterly from that of an expert called by a party... .").

Fed. R. Evid. 706 experts are appointed when the court needs

assistance comprehending complex and/or technical issues central to

the dispute.” See, €.g., Studenis of California School for the Blind v.

Honig, 736 F.2d 538, 549 (9th Cir. 1984), vacated on other grounds,

471 U.S. 148 (1985); Gates v. United States, 707 F.2d 1141, 1144

(10th Cir. 1983).

Fed. R. Evid. 706 is a Sword of Damocles that the court may

employ to ensure that the parties’ experts remain accurate in their

testimony:

The ever-present possibility that the judge may appoint

an expert in a given case must inevitably exert a

sobering effect on the expert witness of a party and

upon the person utilizing his services.

8 WYVUH is also concerned with the suggestion that an indigent litigant must also

be "worthy." The concept of the “worthy poor" was rejected as a matter of

national policy many years ago as one that is fundamentally unfair. See King v.

Smith, 392 U.S. 309, 320 (1968). If the Pennsylvania defendants are seriously

Suggesting a return to that concept, then that is but another basis for rejecting

their argument about Fed. R. Evid. 706.

9 The intention to use court-appointed experts to assist the factfinder with complex

issues is reflected by the citations to Scott v. Spanjer Brothers, Inc., 298 F.2d 928

(2d Cir. 1962), and to Danville Tobacco Association v. Bryant-Buckner

Associates, Inc., 333 F.2d 202 (4th Cir. 1964), in Fed. R. Evid. 706 advisory

committee's note.

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Fed. R. Evid. 706 advisory committee’s note. Thus, experts are

appointed only rarely under Fed. R. Evid. 706 in order to provide the

court with some assurance of impartiality. See United States v. Green,

544 F.2d 138, 145 (3d Cir. 1976), cert. denied, 430 U.S. 910 (1977);

Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1364, 1312

(S.D.N.Y. 1981). Nothing in Fed. R. Evid. 706 suggests that courts

may routinely use Fed. R. Evid. 706 to appoint experts for civil rights

litigation.

Indeed, in United States Marshals Service v. Means, 741 F.2d 1053

(8th Cir. 1984), a case cited by the Pennsylvania defendants, the court

made clear that Fed. R. Evid. 706 is invoked only under "compelling"

circumstances. Id. at 1059; accord Fed. R. Evid. 706 advisory

committee’s note ("actual appointment [of court-appointed experts] is a

relatively infrequent occurrence"). Again, vigorous civ}! rights

enforcement is not intended only for the indigent. Thus, Fed. R. Evid.

706 is not a soothing balm to the injury caused by the Third Circuit’s

limited construction of § 1988 in this case.

Furthermore, reliance on Fed. R. Evid. 706 does not address the

need for pretrial access to experts. Under the Pennsylvania defendants’

argument, a worthy and impecunious person seeking to vindicate his

rights must first file suit before he can obtain the services of an expert.

Thus, ill-prepared lawsuits must be brougnt to get needed access to

experts. Badly prepared lawsuits merely expend the resources of the

courts and litigants needlessly, and, more importantly, they do not

facilitate a just resolution of the dispute.

10 While Fed. R. Evid. 706 is intended to be invoked only rarely, the amicus in

support of the respondents concedes that "litigation under the various

discrimination and civil nights statutes . . . often involve[s] expensive statistical

analyses by experts." Brief Of Amicus Curiae The Equal Employment Advisory

Council at 7. Experts, therefore, are regularly crucial to private enforcement

actions. Fed. R. Evid. 706 was not designed to bear this type of burden as a

routine part of litigation.

it.

Lastly, the Pennsylvania defendants state that court appointment of

experts may be accomplished "under the rubric of the Court’s ‘inherent

power’ to tax expert witness fees through prior approval." Brief of

Respondents at 44. This statement implies that a civil rights litigant is

not truly disadvantaged by the Third Circuit’s ruling in this case

because, after all, he can apply to the court’s inherent discretion.

The Pennsylvania defendants may not in one breatii rely upon

Alyeska and Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437

(1987), as limitations on the courts’ inherent authority, and then in

another breath assert that civil rights litigants will not be harmed

because the courts still possess sufficient authority to tax the costs of

experts. If this argument about inherent authority is correct, then

WVUH submits that the district court in this case has already awarded

experts’ fees, and the Third Circuit erred in doing anything more than

reviewing the district court’s decision for an abuse of discretion.

II.

An Extension Of Crawford Fitting Co. v. J. T.

Gibbons, Inc., /s Not Warranted Because It

Would Contradict Congress’ Intent.

The Pennsylvania defendants urge the Court to extend Crawford

Fitting Co. v. J. T. Gibbons, Inc., to expert fee awards under § 1988.

By contrast, they also urge the Court to find Missouri v. Jenkins

inapplicable. Thus, the Pennsylvania defendants argue that a non-

§ 1988 case ought to control and a § 1988 case ought not to control.

This argument is unpersuasive.

Crawford concerned two statutes of general application to

litigation. Regardless of the nature of the claims in a particular

lawsuit, 28 U.S.C. § 1821 and 28 U.S.C. § 1920 will normally control

absent a more specific, applicable statute.

The modest costs allowed by § 1821 and § 1920 by no means rise

to the magnitude of fee shifting that is contemplated by § 1988 or the

other fee shifting statutes Congress has enacted for particular

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programs. Thus, although § 1821 and § 1920 permit some limited fee

shifting, they are generally consistent with the American Rule, which

requires each litigant to bear his costs.

The Crawford analysis is, therefore, one concerned principally with

the American Rule’s antagonism to fee shifting. Such an analysis,

however, is totally inapposite when a statute more specific than § 1821

and § 1920 comes into play and authorizes more than limited fee

shifting.’

A more specific fee shifting statute, like § 1988, must be analyzed

consistently with Congress’ intent to provide for a ful! and complete

remedy which, perforce, displaces totally the policy embodied in the

American Rule and in § 1821 and § 1920 and, with it, the Crawford

analysis. Accordingly, the focus cannot be upon Crawford, or upon

§ 1821, or § 1920 because, very simply, they are not § 1988. In this

case, § 1988 is the statute at hand, and that statute alone is relevant to

the question presented.

As to that inquiry, Jenkins is immediately relevant because it

concerned § 1988, not § 1821, or § 1920, or Fed. R. Civ. P. 54(d).

To argue differently suggests Jenkins was either wrongly decided or

must be distinguished into an irrelevant fontnote to federal statutory

history.

Jenkins demonstrates that this Court does not apply the "plain

meaning" rule mechanically to § 1988 and, thereby, fail to implement

entirely the policy developed by Congress. Jenkins clearly stands for

11 No question or issue about an implied repeal of either § 1821 or § 1920 exists.

Section 1821(a)(1) clearly states that it applies "[e]xcept as otherwise provided

by law," and § 1988 otherwise provides. Thus, § 1821 and § 1920 remain on

the books as effective statutes, but, in civil rights litigation, a more specific

Statute, i.c., § 1988, controls, just as § 1821 and § 1920 control the more

general provisions of Fed. R. Civ. P. 54(d). See Crawford Fitting Co. v. J. T.

Gibbons, Inc.

87.

the proposition that "reasonable attorney’s fee" in § 1988 is not

limited to the fee generated by an attorney personally. Instead, this

Court, recognizing Congress’ great purpose in § 1988, interpreted

§ 1988 so as to achieve Congress’ goal and to avoid the absurd

situation where an attorney would be encouraged to take on tasks that

are better and more efficiently suited to non-attorneys.

Under Jenkins, paralegals’ fees are compensable in an award of

attorneys’ fees because they are necessary to a full and complete

remedy. The same can be said about experts’ fees. Indeed, the work

of experts is often more "crucial" to the success of litigation than is the

work of paralegals. Furthermore, compensation for experts, like

compensation for paralegals, serves the same purpose of encouraging

attorneys to delegate tasks to non-attorneys who can more efficiently

and economically perform that work.

Other than, perhaps, the educational and experiential background

of experts and paralegals, the only distinction to be drawn between

experts and paralegals is the fact that the latter are under contract to the

attorney and the former usually are not. However, that distinction

could easily be eliminated by having attorneys retain their clients’

experts. Thus, WVUH concludes that the employment relationship

between an attorney and an expert is not a meaningful one, and,

consequently, it is not one that should be a basis for distinguishing

Jenkins.

Because Jenkins cannot be persuasively distinguished, it is

determinative of the question presented in this case. On the other

hand, Crawford can be distinguished easily because it does not concern

either § 1988 or the creation of a full and complete remedy. Instead,

Crawford deals with two statutes that do not apply if other fee shifting

Statutes exist. Thus, Crawford is not controlling and ought not be

extended beyond its stated limits. To so extend it would judicially

engraft an unintended limitation upon the Congressional policy of a

full and complete remedy under § 1988.

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CONCLUSION

The bedrock of the Pennsylvania defendants’ position is that

§ 1988 does not contain the words "experts’ fees." However, rather

than constituting a starting place for the inquiry into § 1988’s proper

construction, the Pennsylvania defendants would have it also constitute

the stopping place. The inquiry cannot end so quickly, for to do so

would ignore the established meaning of the phrase "reasonable

attorney’s fee" in civil rights fee shifting statutes, would frustrate

Congress’ manifest purpose, and would lead to an absurd and illogical

result.

Congress, when it enacted the fee shifting provision of § 1988, had

a broad purpose in mind. While Congress may not have had the

prescience with which to identify every conceivable issue that could

arise under § 1988, that does not mean courts are required to adopt

limiting constructions for fear of thwarting Congress’ goals or

interfering with its prerogatives. Limiting the construction of statutes

because Congress failed to state explicitly everything it sought to do is

neither a cautious nor a wise approach. Instead, it is a disavowal of the

judicial obligation to interpret a statute so as to implement Congress’

policy.

Failure to effect fully what Congress intended is also judicial

emasculation of the legislative powers of the Congress, a co-equal

branch of government. As a result, it is constitutionally impermissible.

The Court must accord Congress its full powers and perquisites by

adopting constructions that achieve Congress’ purposes, not shortstop

them.

Accordingly, West Virginia University Hospitals, Inc., requests:

(1) a reversal of the opinion and judgment of the United States Court

of Appeals for the Third Circuit concerning the award of experts’ fees;

(2) a reinstatement of the District Court’s award of experts’ fees; and

(3) an order directing the Court of Appeals to recalculate its award of

attorneys’ fees to West Virginia University Hospitals, Inc., to include

compensation for time spent on the experts’ fees issues before that

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court. West Virginia University Hospitals, Inc., further prays for an

award of reasonable attorneys’ fees and costs attendant to this appeal.

Respectfully submitted,

WEST VIRGINIA UNIVERSITY

HOSPITALS, INC.

By_/s/ Robert T, Adams _

Counsel of Record

Robert T. Adams

Counsel of Record

Thomas J. Stallings

McGUIRE, WOODS, BATTLE &

BOOTHE

One James Center

Richmond, Virginia 23219

(804) 775-1000

Julia Krebs-Markrich

McGUIRE, WOODS, BATTLE &

BOOTHE

The Army and Navy Club Building

1627 Eye Street, N.W.

Washington, D.C. 20006

(202) 857-1700

Jack M. Stover

ECKERT, SEAMANS, CHERIN &

MELLOTT

North Market Square Building

122 King Boulevard

Harrisburg, Pennsylvania 17101

(717) 233-3266

June 14, 1990

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