Amicus Curiae Brief — West Virginia Univ. Hospitals, Inc. v. Casey

IN THE

Supreme Court of the United

OCTOBER TERM, 1989

WEST VIRGINIA UNIVERSITY HOSPITALS, INC.,

Petitioner,

v.

ROBERT CASEY, Governor of the Commonwealth of

Pennsylvania, JOHN F. WHITE, Secretary of the

Pennsylvania Department of Public Welfare, and

Davin S. FEINBERG, Director of the Bureau of Pol-

icy and Program Development of the Pennsylvania

Department of Public Welfare,

Respondents.

On Writ of Certicrari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE RESPONDENTS

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

GAREN E. DODGE *

MCGUINEss & WILLIAMS

Suite 1200

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae,

Equal Employment Advisory

Council

* Counsel of Record

WILSON - Epes Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

e a7

%

RECT AVAT ARIE CODY Ee

TABLE OF CONTENTS

Baa Meee OP AU ERR UR RE OI csssvccivesescscassanpsacsctleastionssintes

INTEREST OF THE AMICUS CURIAE .........00000000......

SLATEMENT OF THE CASE. ...0o:..ccccccccsccccccscscnescooes:

PES BEE AREe B CPE PRG MBI oo osiescsnssncoveninvscdensesenoevsnsevniic

ARGUMENT

I.

If.

THIS COURT SHOULD EXTEND ITS CRAW-

FORD FITTING RULE SO AS TO DENY

THE SHIFTING OF UNCAPPED EXPERT

WITNESS FEES IN A SECTION 1988 CASE..

A. Section 1988 Permits A Court To Award

“Costs” To A Prevailing Party, But Section

1821 Limits The Shifting Of Such Costs To

A Specified Amount For An Expert Wit-

Bb. In Crawford Fitting, This Court Held That

Section 1821 Limits The Shifting Of Expert

Witness Fees To 830 Per Day For Purposes

OF Fed. R. Civ. P. 54(d), And Strongly Im-

plied That Its Ruling Should Have Broad

Applicability To Other Fee Shifting Stat-

utes puted etek nbbduitrintiedscdeasnuedeasibhaunineundomiboias

(. This Court Should Strictly Construe The

Relevant Statutes, Recognize The Reasoned

Opinions In The Circuits Below, And Ex-

tend Crawford Fitting To Disallow The

Shitting Of Excess Expert Fees In A Section

1988 Case—Both For Testimonial And Non-

CRE LIUMOTRERE "WE GUM ose. cciccccnccceccieoasesscceeecivecest oy

AN EXTENSION OF CRAWFORD FITTING

WILL NOT CONFLICT WITH THIS COURT'S

SHIFTING OF PARALEGAL FEES IN MIS-

SOURT v. JENKINS

10

ii

TABLE OF CONTENTS—Continued

Page

III. SIGNIFICANT POLICY REASONS SUPPORT

AN EXTENSION OF CRAWFORD FITTING,

AND MILITATE IN FAVOR OF A CONSIST-

ENT INTERPRETATION AMONG THE

VARIOUS FEE SHIFTING STATUTES .......... 23

CRA IONII eaccuvsssnrsciicnininidiseidenuaeteeaamanie 25

iii

TABLE OF AUTHORITIES

Cases Page

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) RECA co apps a 11, 23, 25

Black Grievance Comm, v. Philadelphia Elec. Co.,

690 F. Supp. 1393 (E.D. Pa. 1988) 2.0.0.0... 18

Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir.

1987), cert. denied, 108 S.Ct. 1298 (1988). 17

Central Delaware Branch of NAACP v. City of

Dover, 123 F.R.D. 85 (D.Del. 1988) ..................... 17

Champion Int'l Corp. v. Int'l Woodworkers of

America, 790 F.2d 1174 (5th Cir. 1986), aff'd,

SR MI UID... .cnansneucsesnesvscetocscseces 13, 19, 20

Christiansburg Garment Co. v. EEOC, 434 US.

412 (1978) . AT NERS TEER H NICO Pa SIO STA pines 3, 13

City of Riverside v. Rivera, 477 U.S. 561 (1986). 3

Crawford Fitting v. 1.T. Gibbons, Inc., 482 U.S.

we Gg fh RS >} eee a AMAT passim

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

Prac. Cases (BNA) 244 (C.D. Cal. 1974) ........... 16

Denny v. Westtield State College, 880 F.2d 1465

in

means ¢. Jeg D., 476 U.S. 717 (1986) ................._ 3

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

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

seue (U.S. Jan. 30, 1990) ..................................... 17

Gilbert v. City of Little Rock, 867 F.2d 1062 (&th

Cir. 1989}, cert. denied, 110 S.Ct. 57 (1989) 17, 18

Glenn v. General Motors Corp., 841 F.2d 1567

(11th Cir.), cert. denied, 109 S.Ct. 378 (1988) 3, 19

Goltlieh v. Tulane University, 809 F.2d 278 (5th

Hillburn v. Commissioner, Conn, Dep't of Income

Matnuteranee, 683 F. Supp. 23 (D. Conn. 1987)

off'd, 847 F.2d 835 (2d Cir. 1988) ........ ee tt 18

Huertas v. East River Housing Corp., 674 F. Supp.

110 (S.D.N.Y. 1987) seid 17

Tndependent Federation of Flight Attendants v.

mapas, 1OP S.CX. FIGs CASS) .........-20c0cccncsscccsenss... 24

iv

TABLE OF AUTHORITIES—Continued

Page

Knop v. Johnson, 712 F. Supp. 571 (W.D. Mich.

EE tacivtterindtsismnvadinies aeons aceasta 17

Leroy v. City of Houston, 831 F.2d 576 (5th Cir.

1987), cert. denied, 108 S.Ct. 1735 (1988)... 19

MeLavghlin v. Richland Shoe, 108 S.Ct. 1677

ERE acsaccicissnrtpabinraee nears peestaaicerearacne ees 24

Missouri v. Jenkins, 109 S.Ct. 2463 (1989)... 6, 21, 22

Morton v. Mancari, 417 U.S. 535 (1974) 0... 11

Radzanower v. Tovche Ross & Co., 426 U.S. 148

bg | RNS A Re, DR isle ol SAS ee On 11

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983 ). 17

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

RI aa Maisie EI a I Ey IN Bio HOES ... 17,18

Sevigny v. Dielscy, 846 F.2d 953 (Ath Cir. 1988)... 17

Shipes v. Trinity Industrics, Inc., 685 F. Supp. 612

(E.D. Tex. 1987) ....... es 20

Train v. Colorado Public li te i Pst Re search G Group,

ee Re a eee teens 12

Trans World Airlines, Ine. v. Thurston, 469 U.S.

le Gl) | AeA SMe se ee VET eS ee Se LO 24

United States v. United Continental Tuna Corp.,

ee Ss I PO eoseexi eerthon pod 12

United States vr. Youkcrs Bd. of E ‘da We. 118 F. R. D.

TR, ant a RR I RT TALS 18

Webb v. Board of Education of Duer County,

Tenn., 471 U.S. 234 (1985) ............ Paik caterer ed 3

West Virginia U niversity Hospi tale. ‘ioe: . Casey,

701 F. Supp. 486 (M.D. Pa.), mira 385 F.2d

11 (3d Cir. 1988) ......... ae eARN alg aC a Ok Airco 4

West Virginia University Hospitals, Ine. v. Casey,

885 F.2d 11 (3d Cir. 1988), cert. granted, 58

U.S.L.W. 3545 (U.S. Feb. 27, 1990) passim

Federal Statutes and Rules

Age Discrimination in Employment Act, 29 U.S.C.

© 621, et seq. ........ : SONOMA Tf

Civil Rights Attornev’s : Fees Award Act of 1976,

42 Uo. = . 19828 passim

Equal Pay Act, 29 U.S.C. $ 296(d) any 19, 24

Vv

TABLE OF AUTHORITIES-—Continued

Page

Fair Labor Standards Act, 29 U.S.C. § 201 ef seq... 2

a eae te I kacislecancceidesbdulaucdndévastlomcccenbenans 3

Rehabilitation Act of 1975, 29 U.S.C. $ 791 ef seq... 2,24

Title Vi of the Civil Rights Act ot 1964, as

amended, 42 U.S.C. § 2000d, et seq. ...................... 2, 24

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq. .......................2- 2,8, 24

42 U.S.C. § 2000e-5 (k) ........ ESAS n aR bea LIS A Me 2, 23

- Sir fee Bs (eeeeaenne -Canere siccaeinadlamiescasaechisstaallebenie passim

28 US.C. $ 1920........3. “iteada eadddeewdcaited er neaacieenioeliamuien passim

4k Fe 0 | | nhac as Ries ee 14

42 U.S.C. § 1981 .. ear taugciciadisbaciaitieneiiseinstnand ee

ee Os Ws GR OUD oois cov nains satncietécys Aiesddecesbenssntnnibesten passim

Legislative History

S. Rep. No. 1011, 94th Cong., 2d Sess. 6 (1976).... 16

Miscellaneous

Ew pert Witness Fees as Tavrahble Costs in Federal

Courts oy gf 7 E. ce pt 0) s and thie Rul - D9 U.Cin.

L.Rev. 1207 (1987) bere aren Ce pcmetaiindes 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-994

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 Pol-

icy 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 AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE RESPONDENTS

The Equal Employment Advisory Council (EEAC

or Council) respectfully submits this brief amicus

curiae. Letters of consent on behalf of both parties

have been filed with the Clerk of this Court pursuant

to Supreme Court Rule 37.

INTEREST OF THE AMICUS CURIAE

EEAC is a nationwide association of employers

and trade associations organized in 1976 to promote

2

sound approaches to the elimination of discriminatory

employment practices. Its membership comprises a

broad segment of the business community. The Coun-

cil’s governing body is a Board of Directors composed

of experts in the field of equal employment opportu-

nity. Their combined experience gives the Council an

unmatched depth of knowledge of the practical as

well as the legal aspects of equal employment policies

and requirements. The members of EE AC are com-

mitted firmly to the principles of nondiscrimination

and equal employment opportunity.

All of EEAC’s members, and the constituents of its

trade association members, are employers subject to

various employment and labor laws, including Titles

VI and VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. $$ 20000, ef seq. and 2000e, ef

seq. EREAC’s member companics also must comply

with 42 U.S.C. $1981 and the Rehabilitation Act of

1973, 29 U.S.C. $ 701, ef seq., as well as other em-

ployment discrimination statutes. Althouch this case

concerns the issue of medicaid and hospital expert

fees awardable to a prevailing party under 42 U.S.C.

$1988, many EE AC member companies, as employ-

ers, are subject to the same fee shifting statute since

Section 1981, Title VI and the Rehabilitation Act all

borrow Section 1988, permittine the shifting to a

prevailing party “a reasonable attorney's fee as part

of the costs.”

Similarly, a “prevailing partv” under Tithe VIT is

permitted “a reasonable attorney's feo as part of the

costs.” 42 U.S.C. § 2000e-45(k). Also, the Eaual P

Act, 29 U.S.C. § 206(d), and t! , Diseriminati

in Employment Act, 29 U.S.C. S$ 621) 6! seg. borrow

the language from the Fair Lec : Is Act, 29

U.S.C. § 201 et seq., that permits a court_to “all

3

reasonable attorney's fee to be paid by the defendant,

and costs of the action.” 29 U.S.C. § 216¢b). Thus,

EEAC has a direct interest in the issue presented for

the Court’s consideration in the instant case: whether

an award of attorney’s fees to a prevailing party

under Section 1988 may include compensation for

expert witnesses in excess of $30 per day, the limit

set by 28 U.S.C. $ 1821 (b).

As a result of its interest in the issue of ‘Section

1988 and attorney’s fees, EEAC has filed briefs with

this Court in City of Riverside v. Rivera, 4(7 USS.

561 (1986); Rvans v. Jeff D., ATS U.S. T17 (1986);

Webh v. Board of Edue. of Dyer County, A471 US.

234 (1985): Hensley ve Echkervhart, 461 U.S. 424

(1983): and Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978), amone others. EEAC also has

filed briefs to the Eleventh Circuit, and to this Court

in support of the petition for a writ of certiorari in

Glenn v. General Motors Corp., 841 F.2d 1567 (11th

Cir.), cert. denied, 109 S.Ct. 3T8 (1988), a case ad-

dressing the precise issue presented herein.

Because of its significant experience, EE AC is thus

uniquely situated to brief this Court on the relevant

concerns of the business community and, in accord

with Supreme Court Rule 37, the importance of this

case beyond that brought to this Court’s attention by

the parties.

STATEMENT OF THE CASE _

The West Virginia University Hospital ‘the Hos-

pital or Petitioner) sued the Commonwealth of

Pennsylvania over the state’s limitation of medicaid

payments to out-of-state hospitals. In preparing for

litigation, and throughout the six day trial itself,

the Hospital relied upon three expert witnesses to

4

establish as inadequate the state’s medicaid payment

system and the administrative appeals system under

which payment rates can be reviewed.

The district court ruled that Pennsylvania’s pay-

ment and appeals systems violated federal law,

namely the Social Security Act and the Fourteenth

Amendment’s Equal Protection Clause. West Vir-

ginia University Hospitals, Ince. v. Casey, 701 F.

Supp. 496, 526 (M.D. Pa. 1988). The judge awarded

$350,000 in attorney’s fees, as well as $45 867 in dis-

bursements, pursuant to Section 1988, which provides

that “in any action... to enforce a provision of [a

relevant law], the court, in its discretion, may allow

the prevailing party ... a reasonable attorney’s fee

,

as part of the costs.” Significantly, the judge also

awarded as costs the full amount of expert wicness

fees, even though 28 U.S.C. $ 1821(b) limits expert

witness fees to $30 per day.

The Third Circuit vacated the district court’s

award of excess expert fees. West Virginia Univer-

sity Hospitals, Inc. v. Casey, 885 F.2d 11, 32-35 (3d

Cir. 1989). In doing so, it relied upon this Court’s

ruling in Crawford Fitting Co. v. J.T. Gibbons, Ine..

107 S.Ct. 2494 (1987), that Section 1821(b) limits

expert fees to $39 a day even though Federal Rule of

Civil Procedure 54(d) allows ‘costs . . . to the pre-

vailing party unless the court otherwise directs.”

According to the Third Circuit below, Crawford Fit-

ting also contains broad language suggesting that in

the case of a fee shifting statute such as Section

1988, a court may not award fees in excess of the

statutory maximum unless the fee shifting statute

expressly makes such an allowance. To do otherwise

would be to “infer that Congress has repealed” Sec-

tion 1821—an inference this Court rejected in Craw-

5

ford Fitting. The Third Circuit also reasoned that a

judge is not empowered to exceed statutory limita-

tions without plain evidence of congressional intent,

which is absent with regard to Section 1988. 885

F.2d at 34.

SUMMARY OF ARGUMENT

This case involves the interrelation between three

statutes. 42 U.S.C. $1988 permits a court to award

to a prevailing party the attorney’s fees and costs

associated with bringing a civil rights or other speci-

fied lawsuit. As part of such “costs,” 28 U.S.C.

§$ 1920 permits a court to shift expert witness fees

to a losing party, but 28 U.S.C. $1821 limits the

amount of the expert witness fee that can be shifted

to $30 per day. The Third Circuit below correctly

construed these three statutes, and limited to $30 per

day the amount of expert fees that a court may shift

in a Section 1988 case.

In so ruling, the Third Circuit properly relied upon

Crawford Fitting Co. v. J. T. Gibbons, Inc., 107 S.Ct.

2494 (1987), in which this Court ruled that Sections

1920 and 1821 place a cap on the shifting of expert

fees for purposes of Rule 54(d) of the Federal Rules

of Civil Procedure. Indeed, in very broad language

that could apply beyond Rule 54(d) and equally well

to this Section 1988 case, Crawford Fitting held “that

when a prevailing party seeks reimbursement for fees

paid to its own expert witnesses, a federal court is

bound by the limits of $1821, absent contract or

explicit statutory authority to the contrary.” 107

S.Ct. at 2496.

The Hospital argues herein that courts ought to

have greater discretion in shifting the costs for ex-

perts, but this Court made clear in Crawford Fitting

6

that Congress knew what it was doing when it en-

acted Sections 1920 and 1821. This Court stated that

it “will not lightly infer that Congress has repealed

$$ 1920 and 1821, either through Rule 54/d) or any

other provision referring explicit) * ness fees.”

107 S.Ct. at 2499. Indeed, accepts ¥ r tne Hos-

pital’s argument herein “renders © 102) superfluous.”

Id. at 2497. As in Crawford Fitting, “repeals by im-

__plication are not favored, and petitioners proffer the

ultimate in implication”—for Section 1988 and See-

tion 1821 “are not even inconsistent.” Jd.

Accordingly, this Court should extend Crawford

Fitting to deny the shifting of excess expert fees in

this Section 1988 case, a result that is also sup-

ported by the reasoned opinions in several other

courts of appeals. In so ruling, moreover, this Court

shout! recognize that the statutory limit on the

amount of expert fees a court may shift applies to

both testimonial and nontestimonial work.

Such an extension of Crawford Fitting will not

conflict with this Court’s recent decision in Missow;i

v. Jenkins, 109 S.Ct. 2463 (1989), which permitted

the shifting of fees for paralegals and other law firm

employees. Paralegals, unlike expert witnesses ‘“con-

tribute!] to the work product for which an attorney

bills [the] client.” /d. at 2470. Moreover, paralegal

fees are not regulated by statute, whereas witness

fees are expressly governed by Section 1821.

n addition, such an extension of Crawford Fitting

wi.l not frustrate the civil rights laws, but rather

will further Congress’ policy of imposing some re-

straint upon the fees and costs that a court can im-

pese upon a losing party. Such limitations are cru-

cial for the amicus, EEAC, since its member com-

7

panies face litigation under the various discrimina-

tion and civil rights statutes that often involve

expensive statistical analyses by experts. More im-

portantly, extension of Crawford Fitting to Section

1988 will lead to a much-needed consistency among

the various fee shifting statutes.

ARGUMENT

I. THIS COURT SHOULD EXTEND ITS CRAWFORD

FITTING RULE SO AS TO DENY THE SHIFTING

OF UNCAPPED EXPERT WITNESS FEES IN A

SECTION 1988 CASE

The Third Circuit below correctly concluded that

under this Court’s rule in Crawford Fitting Co. 1

J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494

(1987), “section 1988 as presently drafted does not

authorize expert fee awards in excess of the statu-

tory cap of thirty dollars per day provided in section

1821(b).” 885 F.2d 11, 35. As we now show, the

Third Circuit’s extension of Crawford Fitting re-

flects a proper construction of the relevant statutes

and leads to a result consistent with congressional in-

tent and with other reasoned court interpretations.

A. Section 1988 Permits A Court To Award “Costs”

To A Prevailing Party, But Section 1821 Limits The

Shifting Of Such Costs To A Specified Amount For

An Expert Witness

This case involves three statutes and their inter-

relation. The first, 42 U.S.C. $1988, is a statutory

exception to the general rule that each party must

bear his own attorney’s fees and costs. It provides

that “in any action... to enforce a provision of fa

relevant law], the court, in its discretion, may allow

the prevailing party ...a reasonable attorney’s fee

8

as part of the costs.” ' Section 1988 governs the

shifting of attorney’s fees and costs in several civil

rights and discrimination statutes, and is similar to

other fee shifting statutes found in other discrimina-

tion laws, such as Title VII of the Civil Rights Act

of 1964.

The second statute, 28 U.S.C. § 1920, states that

a federal judge “may tax as costs” against a losing

party several specifically enumerated items, such as

‘“!f]ees and disbursements for... witnesses.” ? See-

tion 1920 is the present day embodiment of “Con-

gress’ considered choice as to the kinds of expenses

142 U.S.C. § 1988 provides in relevant part:

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this title,

title IX of Public Law 92-318, or title VI of the Civil

Rights Act of 1964 [42 U.S.C. $§ 2000d et seq.] 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. (Emphasis added).

* 28 U.S.C. § 1920 provides:

A judge or clerk of any court of the United States may

tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use

in the case;

(3) Fees and disbursements for printing and witnesses:

(4) Fees for exemplification and copies of papers neces-

sarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensa-

tion of interpreters, and salaries, fees, expenses, and

costs of special interpretation services under section

1828 of this title.” (Emphasis added).

9

that a federal court” may shift. Crawford Fitting,

107 S.Ct. 2496.

The third statute, 28 U.S.C. § 1821, defines the

‘witness fee” specified in Section 1920. Section 1821,

in clear and unambiguous language, states that

“le]xcept as otherwise provided by law... [a] wit-

ness shall be paid an attendance fee of $30 per day

for each day’s attendance.” *

“The logical conclusion from the language and in-

terrelation,” Crawford Fitting at 2497, of these three

statutes leads to only one possible conclusion: that

Sections 1920 and 1821 limit to $30 per day the

amount a court may shift under Section 1988 to a

prevailing party as costs for an expert witness. As

we now show, this Court has so ruled for purposes of

the Federal Rules of Civil Procedure (Fed.R.Civ.P.),

and should so rule for this case.

’ The witness fee specified in Section 1920(3) is defined in

28 U.S.C. § 1821 as follows:

(a) (1) Except as otherwise provided by law, a witness

in attendance at any court of the United States... shall

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.”” (Emphasis added).

10

B. In Crawford Fitting, This Court Held That Section

1821 Limits The Shifting Of Expert Witness Fees

For Purposes Of Fed. R. Civ. P. 54(d), And Strongly

Implied That Its Ruling Should Have Broad Ap-

plicability To Other Fee Shifting Statutes

In Crawford Fitting, this Court examined the in-

terrelation between Section 1920, Section 1821 and

Fed.R.Civ.P. 54(d)—which provides that “costs

shall be allowed” against the lesing party unless the

court otherwise directs.‘ The Court began:

The logical conclusion from the language and in-

terrelation of these provisions is that $ 1821 spe-

cifies the amount of the fee that must be tendered

to a witness, $1920 provides that the fee may

be taxed as a cost, and Rule 54(d) provides that

the cost shall be taxed against the losing party

unless the court otherwise directs.

107 S.Ct. at 2497. In very broad language that

seemed to encompass more than the three statutes

directly at issue in Crawford Fitting—even, by im-

plication, statutes such as Section 1988—this Court

went on to hold “that when a prevailing party seeks

reimbursement for fees paid to its own expert wit-

nesses, a federal court is bound by the limits of

$ 1821, absent contract or explicit statutory author-

ity to the contrary.” Jd. at 2496.

In so holding, this Court expressed obvious concern

that its decision be consistent with Section 1988, and

that it “conforms to prior interpretations” of the

* Federal Rule of Civil Procedure 54(d) provides in part:

“Tte|xcept when express provision therefor is made either in

a statute of the United States or in these rules, costs shall be

allowed as of course to the prevailing party unless the court

otherwise directs.”

11

relevant fees statutes, namely Alyeska Pipeline Serv-

ice Co. v. Wilderness Society, 421 U.S. 240 (1975).

107 S.Ct. 2498-99. Alyeska had rejected the idea that

courts could use their equitable power to award at-

torney’s fees under the “private attorney general’

theory, and served as the impetus behind Congres-

sional enactment of Section 1988. As this Court

stated in Crawford Fitting at 2499:

Although Congress responded to our decision

in Alyeska by broadening the availabilty of at-

torney’s fees in the federal courts, see... 42

U.S.C. $1988, it has not otherwise “retracted,

repealed, or modified the limitations on taxable

fees contained in the 1853 statute and its succes-

sors.” 421 U.S. at 260. Thus, we are once again

asked to hold that a specific congressional enact-

ment on the shifting of litigation costs is of no

moment. We think that, as in Alyeska, Congress

haus made its intent plain in its detailed treat-

ment of witness fees. (Emphasis added).

As if it were contemplating the very case presented

herein, this Court In Crawford Fitting went on to

state:

We will not lightly infer that Congress has re-

pealed $$ 1920 and 1821, either through Rule

54(d) or any other provision referring cxplie tly

to witness fees. As always, “[w]here there is no

cleay intention otherwise, a specific statute will

not be controlled or nullified by a general one,

regardless of the priority of enactment.” Rad-

zanower v. Touche Ross & Co., 426 U.S. 148, 1538

(1976), quoting Morton v. Maneari, 417 U.S.

535, 550-551 (1974). Any argument that a fed-

eral court is empowered to exceed the limitations

explicitly set out in $$ 1920 and 1821 without

plain evidence of congressional intent to super-

12

sede that section ignores our long-standing prac-

tice of construing statutes in pari materia, See

United States v. United Continental Tuna Corp.,

425 U.S. 164, 168-169 (1976); Train v. Colorado

Public Interest Research Group, 426 U.S. 1, 24

(1976).

107 S.Ct. at 2499. (Emphasis in original in part and

added in part).

Like the Hospital herein, the Petitioners in Craw-

ford Fitting had argued that federal courts should

have the discretion to award costs above and beyond

those listed in Section 1920, and in excess of the

amount provided in section 1821. This Court re-

jected such an argument in unambiguous, unmistak-

able language:

We think, however, that no reasonable reading

of these provisions together can lead to this con-

clusion, for petitioners’ view renders § 1920 su-

perfluous. If Rule 54(d) grants courts discre-

tion to tax whatever costs may seem appropriate,

then $1920, which enumerates the costs that

may be taxed, serves no role whatsoever. We

think the better view is that $1920 defines the

term “costs” as used in Rule 54(d). Section 1920

enumerates expenses that a federal court may

tax as a cost under the discretionary authority

found in Rule 54(d). It is phrased periissively

because Rule 54(d) generally grants a federal

court discretion to refuse to tax costs in favor

of the prevailing party. One of the items enum-

erated in $ 1920 is the witness fee, set by § 1821

at $30 per day. Jd. at 2497. (Emphasis added).

True, concurring Justice Blackmun, and dissenting

Justices Marshall and Brennan, all emphasized that

the Court in Crawford Fitting did not reach the spe-

cific question whether a court may award excess ex-

13

pert witness fees under section 1988. 107 S. Ct. at

2499 (Blackmun, J., concuring); id. at 2500 n. 1

(Marshall, J., dissenting).’ In its dicta, however,

* This Court’s decision in Crawford Fitting actually con-

sists of two companion cases, Crawford Fitting and Champion

Int’l Corp. v. Int’l Woodworkers of America, 790 F.2d 1174

(5th Cir. 1986), aff'd, 107 S.Ct. 2494 (1987). Indeed, the

Woodworkers case involved allegations of race discrimination

under 42 U.S.C. § 1981, and thus Section 1988, the precise

statute at issue herein. 107 S.Ct. at 2496 (“In No. 86-328,

respondent, IWA sued petitioner Champion International, al-

leging racial discrimination in violation of Title VII and 42

U.S.C. § 1981.”)

Nevertheless, in his dissent in Crawford, Justice Marshall

(along with Justice Brennan) stated:

I do not understand today’s decision to decide the ques-

tion whether a district court may award expert witness

fees under 42 U.S.C. § 1988.

[Crawford] is an antitrust case; obviously § 1988 is

not at issue in that case. And, as an examination of the

record reveals, the issue is not properly before the Court

in [Woodworkers] either. In that case, petitioner, a pre-

vailing civil rights defendant, made a motion for attor-

ney’s fees ‘“‘and expenses” under § 1988 and filed a bill of

costs under Rule 54(d). The bill of costs included

$31,333.87 for “expert witness fees and expenses.” Rec-

ord 38. On December 30, 1982, the District Court sum-

marily denied the motion for attorney’s fees and expenses,

based on its conclusion that, under Christianburg [sic]

Garment Co. v. EEOC, 434 U.S. 412 (1978), “the lawsuit

was brought in good faith and was neither frivolous, un-

reasonable nor without foundation.” Record 1. The court

referred all other questions concerning the taxing of costs

to a magistrate. Jd., at 2. Petitioner did not appeal the

District Court’s order denying attorney’s fees under

$1988. It appealed only the District Court’s order of

August 24, 1983, denying its application for expert wit-

ness fees under Rule 54(d). See Record 33.

107 S.Ct. at 2500 n.1.

14

this Court came as close as possible to indicating the

majority view on the precise issue herein when it

stated as follows:

We cannot accept an interpretation of Rule

54(d) that would render any of these specific

statutory provisions entirely without meaning.

Repeals by implication are not favored, and pe-

titioners proffer the ultimate in implication, for

Rule 54(d) and $$ 1920 and 1821 are not even

inconsistent. We think that it is clear that in

$$ 1920 and 1821, Congress comprehensively ad-

dressed the taxation of fees for litigants’ wit-

nesses. This conclusion is all the more compel-

ling when we consider that § 1920(6) allows the

taxation, as a cost, of the compensation of court-

appointed expert witnesses. There is no provt-

sion that sets a limit on the compensation for

court-appointed expert witnesses in the way that

$ 1821 sets a limit for litigants’ witnesses, It is

therefore clear that when Congress meant to set

a limit on fees, it knew how to do so.

Id. at 2497-98.

In this case, the Hospital asks for an interpreta-

tion of Section 1988 that would similarly render Sec-

tions 1920 and 1821 “without meaning.” Indeed, as

in Crawford Fitting, the Hospital’s request for such

a “repeal by implication” is the “ultimate in implica-

tion” since Section 1988 is “not even inconsistent”

with Sections 1920 and 1821. The Hospital would

view a strict construction of these statutes by this

Court as “the literal perfection of linguistic pur-

ists.” Petitioner’s Brief at 15 (hereinafter Pet. Br.).

Jut any other reading would emasculate Sections

1920 and 1821.

15

As we now show, for these and other reasons, this

Court should extend Crawford Fitting to deny the

shifting of expert fees in a Section 1988 case.

C. This Ceurt Should Strictly Construe The Relevant

Statutes, Recognize The Reasoned Opinions In The

Circuits Below, And Extend Crawford Fitting To

Disallow The Shifting Of Excess Expert Fees In A

Section 1988 Case—Both For Testimonial And Non-

testimonial Work

The Hospital argues that Crawford Fitting’s reach

does not extend to Section 1988, and that expert wit-

ness fees assessed under that section should not be

subject to a statutory cap. But, as the court below

properly stated:

[The broad language of Crawford Fitt'ng

strongly suggests that we reach the opposite con-

clusion, Although on its facts a Rule 54(d) ease,

the substance and reasoning in Crawford Fitting

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 allow-

ance. The Court wrote that it “will not lightly

infer that Congress has repealed §§ 1920 and

IS21, either through rule 54(d) or any other

provision not referring explicitly to witness fees.”

482 U.S. at 445, 107 S.Ct. at 2499, Moreover,

the Court plainly expressed its disfavor for

“[a]ny argument that a federal court is empow-

ered to exceed the limitations explicitly set out

in sections 1920 and 1821 without plain evidence

of congressional intent to supersede that section.”

Id. at 445, 107 S.Ct. at 2499. (Emphasis added).

S85 F.2d at 34. Clearly, Congress has not implied,

and this Court should not infer, that Section 1988

16

has “repealed” Sections 1920 and 1821. Instead, this

Court should strictly construe the relevant statutes

and affirm the decision of the Third Circuit below.

The Hospital also argues that a court should have

discretion to award excess expert witness fees, in

part, because the legislative history of Section 1988

so contemplates. According to the Petitioners, a Sec-

tion 1988 Senate Report, S. Rep. No. 1011, 94th

Cong., 2d Sess. 6 (1976), refers to Davis v. County

of Los Angeles, 8 Fair Empl. Prac. Cases (BNA)

244, 246 (C.D. Cal. 1974), a case that had awarded

expert fees as part of a prevailing party’s ‘‘reason-

able attorney’s fee.” -Pet. Br. at 10, 20-21. Thus,

Petitioner reasons, “‘the conclusion compelled is that

$1988 authorizes the payment of experts’ fees to 1

prevailing party.” /d. at 20. But, as the First Cir-

cuit made clear in Denny v. Westfield State College,

S80 F.2d 1465, 1470-71 (1st Cir. 1989):

[S]uch an oblique reference [in Section 1988's

legislative history] is insufficient to meet Craw-

ford’s standard of explicitness. Furthermore,

appellants have taken the Davis citation well out

of context. The Senate report did not refer at

all to expert witnesses’ charges; Davis was men-

tioned only to illustrate the amount of fees prop-

erly payable to attorneys. And in Davis, experts’

reimbursement was not even a contested issie—

the district court allowed plaintiff’s request sum-

marily because the defense did not challenge it.

Like the appellants in Denny, the Hospital’s refer-

ence to Davis and the Senate Report in this case falls

wide of the mark. As fully explained in Respondent’s

brief, such snippets of so-calied “legislative history”

certainly do not rise to the level of specificity re-

quired by this Court in Crawford to overcome Section

1821.

17

Indeed, this Court’s extension of the Crawford rule

to Section 1988 is fully supported by the decisions

of the lower courts—and cther circuits in addition to

the Third below have interpreted Crawford Fitting

to disallow the shifting of excess expert fees in a

Section 1988 case. In Sevigny v. Dicksey, 846 F.2d

953, 959 (4th Cir. 1988), for example, the Fourth

Circuit ruled that “$1988 does not provide statutory

authority for the awarding of compensation for non-

legal experts.” Similarly, the Fighth Circuit in G//-

hert v. City of Little Rock, 867 F.2d 1062, 1062-

63 (Sth Cir.), cert. denied, 110 S. Ct. 57 (1989)

(en banc), affirmed by an equally divided court the

order of the district court awarding expert witness

fees as expenses under Section 1988 at the statutory

rate of thirty dollars a day. See also Boring v. Ko-

zakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert.

denied, 108 S.Ct. 1298 (1988) (stating in dicta that

under Crawford Fitting “la] prevailing party in a

civil rights case is not entitled to tax such fees as

costs.”’)°

® See also Central Delaware Branch of NAACP v. City of

Dover, 123 F.R.D. 85, 94-95 (D. Del. 1988) (awarding expert

witness fees under section 1988 at statutory rate of thirty

dollars a day); Knop v. Johnson, 712 F. Supp. 571 (W.D.

Mich. 1989) (Crawford Fitting prohibits reimbursement of

expert witness fees under § 1988 above thirty dollars per day

cap) ; Hvertas v. East River Housing Corp., 674 F. Supp. 440,

455 (S.D.N.Y. 1987).

But, as the Hospital argues, and as the Third Circuit below

noted, a number of courts examining the question have con-

cluded that fee awards under section 1988 are not limited to

the rate set in section 1821(b). See 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. 30, 1990); SapaNajin v. Gunter,

857 F.2d 463, 465 (8th Cir. 1988): and Ravos v. Lamm, 718

F.2d 546, 559 (10th Cir. 1983). Ramos, however, was decided

18

And as the Third Circuit properly noted, other cir-

cuits have “arrived at the same conclusion with re-

spect to fee-shifting statutes similar to section 1988,”

&85 F.2d at 34—statutes EEAC member companies

also face in employment litigation. In Denny, 880

F.2d 1465, for example, the First Circuit held in a

Title VII sex discrimination case that the Crawford

Fitting rule must prevail absent some reasonably ex-

plicit indication of Congressional intent that witness

fees be shifted without regard to the thirty dollars

per day cap. The court in Denny, 880 F.2d at 1471,

stated:

Failing the discovery of some tangible, reason-

ably explicity indication of congressional intent

that witness fees be shifted without regard to

the $°0-per-day cap, the Crawford rule must

prevail. That is especially true in light of the

many statutes that, unlike this one, effectively

trump the section 1821 limitation by unambig-

uously authorizing taxation of witness fecs. Sce

Int'l Woodworkers, 790 F.2d at 1179 n. 7 (list-

ing 28 laws in which Congress saw fit expressly

to include expert witness fees as taxable costs in

civil actions); Note, Fapert Witness Fecs as

Taxable Costs in Federal Courts—The Exccp-

before Crawford Fitting, and the Eighth Circuit’s ruling in

SapaNajin is called into question by its later decision in

Gilbert v. Little Rock, supra.

For the reasons explained in Respondent’s brief, other

cases, such as Friedrich, and various district court decisions

permitting excess witness fees, are simply wrongly decided,

and should be overturned by this Court. See, e.g., Black

Grievance Comm. v. Philadelphia Elec. Co., 690 F. Supp. 1393,

1403 (E.D. Pa. 1988) ; Hillburn v. Commissioner, Conn. Dep't

of Income Maintenance, 683 F. Supp. 23 27 (D. Conn. 1987),

aff'd, 847 F.2d 835 (2d Cir. 1988); United States v. Yonkers

Bd. of Educ., 118 F.R.D. 326, 330 (S.D.N.Y. 1987).

19

tions and the Rule, 55 U.Cin.L. Rev. 1207, 1217

n. 63 (1987) (similar) .... Given this back-

ground, congressional silence on the point takes

on larger significance. Congress plainly knew

how to factor expert witness fees into the caleu-

lus of a cost-shifting statute, but chose not to do

so in compiling Title VII.

In this case, our hands are tied. Neither Title

VIPs text nor the history of its costshifting pro-

viso intimates that Congress intended to include

Witness payments under the counsel fee rubric.

Similarly, in Gottlieb v. Tulane University, 809 F.2d

278, 284 (5th Cir. 1987), the Fifth Circuit recog-

nized Crawford Fitting’s companion case, Woodwork-

ers, to stand for the proposition that expert witness

fees are limited to $30 by Section 1821. The Fifth

Circuit in Leroy v. City of Houston, 831 F.2d 576,

584 (5th Cir. 1987), cert. denied, 108 S.Ct. 1735

(1988), also found Section 1821 applicable to the fee-

shifting provision of the Voting Rights Act. And in

Glenn v. General Motors Corp., 841 F.2d 1567, 1575

(11th Cir.), cert. denied, 109 S.Ct. 378 (1988), the

Eleventh Circuit found Section 1821 applicable to the

fee-shifting provision of the Equal Pay Act, because

“the broad language in Crawford Fitting does not

permit a distinction based upon whether or not the

award is made under a fee-shifting statute.’* Ac-

‘In its brief at page 22 n.21, Petitioner cites a number of

Title VII cases for the proposition that “federal courts have

continued to rule that expert witness fees may be awarded to

prevailing parties” under statutes similar to Section 1988. All

of these Title VII cases, however, predate Crawford Fitting

and, therefore, mislead this Court in its inquiry.

Indeed, many other pre-Craw/ord Fitting Title VIL cases

deny expert fees. More importantly, as noted, the reasoned

Title VII cases decided after C rawford Fitting understand-

20

cordingly, this Court should recognize the reasoning

in these cases and apply it herein.

Finally, in extending the Crawford Fitting rule to

Section 1988, this Court should apply the $30 cap to

nontestimonial expert fees as well as the time actu-

ally spent testifying during trial, As a Texas district

court recently stated in construing Crawford Fitting’s

companion case, Woodworkers:

The distinction between an expert’s in-court

testimony and out-of-court preparation does not

avail the plaintiffs, because it is irrelevant. The

Woodworkers (en bane) holding applies not only

to the expert witness’ time and efforts on the

stand, but to all of his work. The rule reaches

“services . .. for the statistical aspects of the

ease.” 790 I°.2d at 1176 (emphasis [by court]) ;

see also Woodworkers panel decision, 752 F.2d

at 164. It is not limited to expert testimony.

Indeed, the ex bane Woodworkers court states

that is impermissible to tax as costs any expenses

not specifically authorized by 28 U.S.C. S$ 1920

and 1821. Sce Woodworkers en bane decision,

790 F.2d at 1179-80.

Shipes v. Trinity Industries, Inc., 685 F. Supp. 612,

614 (E.D. Tex. 1987). Congress knew what it was

doing when it enacted Section 1821, and deference

should be afforded to that decision. Accordingly, this

Court should affirm the decision of the Third Circuit

below.

ably deny the shifting of expert fees. See, e.g., Shipes v. Trin-

ity Industries, Inc., 685 F. Supp. 612, 614 (E.D. Tex. 1987).

21

II. AN EXTENSION OF CRAWFORD FITTING WILL

NOT CONFLICT WITH THIS COURT’S SHIFTING

OF PARALEGAL FEES IN MISSOURI v. JENKINS

As in the instant case, the prevailing party in

Denny v. Westfield State College, 880 F.2d at 1469.

was faced with the daunting challenge of distinguish-

ing the plain language of the fee shifting statutes and

their legislative history, yet still managed to “offer

a salmagundi of reasons why the Crawford rule

should not be be extended.”

Among the “salmagundi of reasons” for not. fol-

lowing Crawford Fitting, the Hospital herein cites

this Court’s recent ruling in Missouri v. Jenkins, 109

S.Ct. 2463 (1989), that attorney’s fees under Section

1988 can include fees for paralegals and other law

firm employees who assist the attorney in preparing

the case. Indeed, in its brief at page 27, the Hospital

goes so far as to say that this Court rejected the

“plain meaning” rule in construing Section 1988 in

Jenkins, and that it should do the same herein.

Clearly, this Court did not abrogate the “plain

meaning” rule, and Jenkins obviously is not disposi-

tive of this case. The true distinction between Jenkins

and the case herein, of course, is that paralegal time

and other law firm litigation expenses “‘contributef ]

to the work product for which an attorney bills [the ]

client.” 109 S.Ct. at 2470. Paralegals are similar to

secretaries, messengers and librarians in the sense

that they work directly for the attorney. Witnesses,

however, are used to provide evidence aside from at-

torney work product.

Moreover, paralegal fees are not expressly recu-

lated by statute, whereas witness fees are expressly

22

governed by Section 1821. Although courts may

have discretion with regard to fees not regulated by

statute, this Court, as stated in Crawford Fitting,

will not “lightly infer’ a repeal of limitations on

costs such as expert witness fees specifically enumer-

ated in Section 1920 or 1821. 107 S.Ct. at 2499.

The court below properly recognized this distine-

tion. It stated:

We believe that the recent decision of the Court

in Missouri v. Jenkins ... in no way alters the

ruling of the Court in Crawford, Unlike Craw-

ford, which dealt with witness fees statutorily

fixed by Congress as part of the costs, the Court

in Jenkins dealt with a comparatively new phe-

nomenon in the legal world, the enhancement of

attorney’s fees by including the fees for services

of paralegals and law clerks. Their fees, how-

ever, are not regulated by statute as are witness

fees. In fact, AMlissouri, against whom the fees

were taxed, conceded “that compensation for the

cost of these personnel should be included in the

fee award.” Id. at , 109 S.Ct. at 2469. Mis-

souri’s argument was that section 1988 did not

authorize billing paralegals at market rates, but

only at their cost to the attorneys hiring them;

charging market rates produced a windfall for

the attorney.

885 F.2d at 34. (Emphasis added, cite omitted).

Accordingly, it is clear that this Court’s extension

of Cramwfoid Fitting would not conflict with its deci-

sion in Missouri ve. Jenkins. Such an extension,

rather, would be consistent with prior rulings.

23

Ill. SIGNIFICANT POLICY REASONS SUPPORT AN

EXTENSION OF CRAWFORD FITTING, AND MILI-

TATE IN FAVOR OF A CONSISTENT INTERPRE-

TATION AMONG THE VARIOUS FEE SHIFTING

STATUTES

Several policies support this Court’s extension of

Crawford Fitting. and militate in favor of limiting

the shifting of expert fees. One is simply to have

some type of restraint upon the amount of fees and

costs that a court can tax a losing party. In fact,

this Court in Crawford Fitting recognized that in

enacting Sections 1920 and 1821, Congress “means

to impose rigid controls on cost shifting in federal

courts.” 107 S.Ct. at 2499. There must be no “roving

authority to the Judiciary” to shift fees “whenever

the courts might deem them warranted.” Alyeska,

421 U.S. at 260, cited in Crawford Fitting at 2499.

Indeed, the First Cireuit in Denny recognized this

policy factor as significant in denying the shifting of

expert fees under Title VII.” 880 F.2d at 1467.

Such a limitation is especially important for

EEAC’s member companies in employment and civil

rights litigation. In such litigation, plaintiffs often

attempt to prove discrimination with expensive statis-

tical analyses. If this Court does not give proper def-

erence to the Congressional cap on cost shifting, em-

§ 42 U.S.C. § 2000e-5 provides:

(k) Attorney’s fee; liability of Commission and United

States for costs

In any action or proceeding under this subchapter the

court, in its discretion, may allow the prevailing party,

other than the Commission or the United States, a rea-

sonable attorney’s fee as part of the costs, and the Com-

mission and the United States shall be liable for costs the

same as a private person.

24

ployers will be unfairly encouraged to settle—even

nonmeritorious claims—where it appears that a court

could shift expert fees.

More importantly, this Court should construe Sec-

tion 1988 so that there is some consistency among the

various statutes that permit a prevailing party to

recover fees and costs. As noted, even though this

case involves Section 1988 and medicaid issues, it is

of concern to EEAC members since Section 1988 also

covers fees awarded under Section 1981, the Rehabili-

tation Act, and Title VI of the Civil Rights Act. In

addition, Title VII, the ADEA and the Equal Pay

Act all contain similar language. It is absolutely

crucial that this Court construe Section 1821 for 1988

purposes the same way it has construed Section 1821

for purposes of Fed. R. Civ. P. 54(d). See Independ-

ent Federation of Flight Attendants v. Zipes, 109

S.Ct. 2732, 2735 n.2 (1989) (Section 706(k) of

Title VII and Section 1988 “are to be interpreted

alike’).

As this Court has recognized in Zipes and other

cases, consistency in interpretation is a laudable goal

—particularly among the discrimination and civil

rights statutes. Indeed, in Trans World Airlines, Inc.

v. Thurston, 469 U.S. 111 (1985), this Court took

great care to interpret the term “willful” for pur-

poses of assessing damages under the ADEA and the

FLSA in a manner that is “consistent with the

manner in which this Court has interpreted the term

in other criminal and civil statutes.” Jd. at 126. And

in McLaughlin v. Richland Shoe, 108 S.Ct. 1677

(1988), this Court went on to interpret the term

“willful” as used in the ADEA’s statute of limita-

tions so that it is consistent with the way the term

was construed in Thurston. Even in Crawford Fit-

25

ting, this Court was careful to ensure that its hold-

ing was consistent with Alyeska and other construc-

tions of the relevant attorney’s fees provisions. 107

S.Ct. at 2498-99,

Accordingly, this Court should recognize the strong

policy concerns and extend Crawford Fitting to Sec-

tion 1988.

CONCLUSION

For the foregoing reasons, the amicus respectfully

submits that the Third Circuit’s decision should be

affirmed.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

GAREN E. DODGE *

MCGUINESS & WILLIAMS

Suite 1200

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae,

Equal Employment Advisory

Council

May 11, 1990 * Counsel of Record