Subject:  WEST VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



WEST VIRGINIA UNIVERSITY HOSPITALS, INC. v. CASEY, GOVERNOR OF
PENNSYLVANIA, et al.

certiorari to the united states court of appeals for the third circuit

No. 89-994.  Argued October 9, 1990 -- Decided March 19, 1991

After petitioner West Virginia University Hospitals, Inc. (WVUH), prevailed
at trial in its suit under 42 U. S. C. MDRV 1983 against respondent
Pennsylvania officials over medicaid reimbursement rates for services
provided Pennsylvania residents, the District Court awarded fees pursuant
to MDRV 1988, which, inter alia, gives the court in certain civil rights
suits discretion to allow the prevailing party "a reasonable attorney's fee
as part of the costs."  WVUH's award included fees attributable to an
accounting firm and three doctors specializing in hospital finance hired to
assist in the preparation of the suit and to testify.  The Court of Appeals
affirmed as to the merits, but reversed as to the expert fees, disallowing
them except to the extent that they fell within the $30-per-day fees for
witnesses provided by 28 U. S. C. 15 1920(3) and 1821(b).

Held: Fees for services rendered by experts in civil rights litigation may
not be shifted to the losing party as part of "a reasonable attorney's fee"
under MDRV 1988.  Pp. 2-18.

    (a) Sections 1920 and 1821(b) define the full extent of a federal
court's power to shift expert fees, whether testimonial or nontestimonial,
absent "explicit statutory authority to the contrary."  Crawford Fitting
Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 439; see id., at 441.  This
Court will not lightly infer that Congress has repealed those sections
through a provision like MDRV 1988 that does not refer explicitly to
witness fees.  See id., at 445.  Pp. 2-4.

    (b) Statutory usage before, during, and after 1976 (the date of MDRV
1988's enactment) did not regard the phrase "attorney's fees" as embracing
fees for experts' services.  Pp. 4-8.

    (c) At the time of MDRV 1988's enactment, judicial usage did not regard
the phrase "attorney's fees" as including experts' fees.  Pp. 8-13.

    (d) Where, as here, a statute contains a phrase that is unambiguous,
this Court's sole function is to enforce it according to its terms.  See,
e. g., United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241.
Although chronology and the remarks of some sponsors of the bill that
became MDRV 1988 suggest that it was viewed as a response to Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), the text
of MDRV 1988 is both broader and narrower than the pre-Alyeska regime.  The
best evidence of congressional purpose is the statutory text, which cannot
be expanded or contracted by the statements of individual legislators or
committees during the enactment process.  WVUH's argument that Congress
would have included expert fees in MDRV 1988 if it had thought about it, as
it did in the EAJA, and that this Court has a duty to ask how Congress
would have decided had it actually considered the question, profoundly
mistakes the Court's role with respect to unambiguous statutory terms.  See
Iselin v. United States, 270 U. S. 245, 250-251.  Pp. 13-18.

885 F. 2d 11, affirmed.

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and White, O'Connor, Kennedy, and Souter, JJ., joined.  Marshall, J., filed
a dissenting opinion.  Stevens, J., filed a dissenting opinion, in which
Marshall and Blackmun, JJ., joined.
------------------------------------------------------------------------------




Subject: 89-994 -- OPINION, WEST VIRGINIA UNIV. HOSPITALS, INC. v. CASEY

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-994



WEST VIRGINIA UNIVERSITY HOSPITALS, INC., PETITIONER v. ROBERT CASEY,
GOVERNOR OF PENNSYLVANIA, et al.

on writ of certiorari to the united states court of appeals for the third
circuit

[March 19, 1991]



    Justice Scalia delivered the opinion of the Court.

    This case presents the question whether fees for services rendered by
experts in civil rights litigation may be shifted to the losing party
pursuant to 42 U. S. C. MDRV 1988, which permits the award of "a reasonable
attorney's fee."

I
    Petitioner West Virginia University Hospitals, Inc. (WVUH), operates a
hospital in Morgantown, W. Va., near the Pennsylvania border.  The hospital
is often used by medicaid recipients living in southwestern Pennsylvania.
In January 1986, Pennsylvania's Department of Public Welfare notified WVUH
of new medicaid reimbursement schedules for services provided to
Pennsylvania residents by the Morgantown hospital.  In administrative
proceedings, WVUH unsuccessfully objected to the new reimbursement rates on
both federal statutory and federal constitutional grounds.  After
exhausting administrative remedies, WVUH filed suit in Federal District
Court under 42 U. S. C. MDRV 1983.  Named as defendants (respondents here)
were Pennsylvania Governor Robert Casey and various other Pennsylvania
officials.
    Counsel for WVUH employed Coopers & Lybrand, a national accounting
firm, and three doctors specializing in hospital finance to assist in the
preparation of the lawsuit and to testify at trial.  WVUH prevailed at
trial in May 1988.  The District Court subsequently awarded fees pursuant
to 42 U. S. C. MDRV 1988, {1} including over $100,000 in fees attributable
to expert services.  The District Court found these services to have been
"essential" to presentation of the case -- a finding not disputed by
respondents.
    Respondents appealed both the judgment on the merits and the fee award.
The Court of Appeals for the Third Circuit affirmed as to the former, but
reversed as to the expert fees, disallowing them except to the extent that
they fell within the $30-per-day fees for witnesses prescribed by 28 U. S.
C. MDRV 1821.  885 F. 2d 11 (CA3 1989).  WVUH petitioned this Court for
review of that disallowance; we granted certiorari, 494 U. S. ---.

II
    28 U. S. C. MDRV 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 necessarily obtained
for use in the case;
    "(5) Docket fees under section 1923 of this title;
    "(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title."


28 U. S. C. MDRV 1821(b) limits the witness fees authorized by MDRV 1920(3)
as follows: "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. . . ."  {2}  In Crawford Fitting Co. v. J. T. Gibbons, Inc.,
482 U. S. 437 (1987), we held that these provisions define the full extent
of a federal court's power to shift litigation costs absent express
statutory authority to go further.  "[W]hen," we said, "a prevailing party
seeks reimbursement for fees paid to its own expert witnesses, a federal
court is bound by the limits of MDRV 1821(b), absent contract or explicit
statutory authority to the contrary."  Id., at 439.  "We will not lightly
infer that Congress has repealed 15 1920 and 1821, either through [Fed.
Rule Civ. Proc.] 54(d) or any other provision not referring explicitly to
witness fees."  Id., at 445.
    As to the testimonial services of the hospital's experts, therefore,
Crawford Fitting plainly requires, as prerequisite to reimbursement, the
identification of "explicit statutory authority."  WVUH argues, however,
that some of the expert fees it incurred in this case were unrelated to
expert testimony, and that as to those fees the MDRV 1821(b) limits, which
apply only to witnesses in attendance at trial, are of no consequence.  We
agree with that, but there remains applicable the limitation of MDRV 1920.
Crawford Fitting said that we would not lightly find an implied repeal of
MDRV 1821 or of MDRV 1920, which it held to be an express limitation upon
the types of costs which, absent other authority, may be shifted by federal
courts.  482 U. S., at 441.  None of the categories of expenses listed in
MDRV 1920 can reasonably be read to include fees for services rendered by
an expert employed by a party in a nontestimonial advisory capacity.  The
question before us, then, is -- with regard to both testimonial and
nontestimo nial expert fees -- whether the term "attorney's fee" in MDRV
1988 provides the "explicit statutory authority" required by Crawford
Fitting. {3}

III
    The record of statutory usage demonstrates convincingly that attorney's
fees and expert fees are regarded as separate elements of litigation cost.
While some fee-shifting provisions, like MDRV 1988, refer only to
"attorney's fees," see, e. g., Civil Rights Act of 1964, 42 U. S. C. MDRV
2000e-5(k), many others explicitly shift expert witness fees as well as
attorney's fees.  In 1976, just over a week prior to the enactment of MDRV
1988, Congress passed those provisions of the Toxic Substances Control Act,
15 U. S. C. 15 2618(d), 2619(c)(2), which provide that a prevailing party
may recover "the costs of suit and reasonable fees for attorneys and expert
witnesses." (Emphasis added.)  Also in 1976, Congress amended the Consumer
Product Safety Act, 15 U. S. C. 15 2060(c), 2072(a), 2073, which as
originally enacted in 1972 shifted to the losing party "cost[s] of suit,
including a reasonable attorney's fee," see 86 Stat. 1226.  In the 1976
amendment, Congress altered the fee shifting provisions to their present
form by adding a phrase shifting expert witness fees in addition to
attorney's fees.  See Pub. L. 94-284, MDRV 10, 90 Stat. 506, 507.  Two
other significant acts passed in 1976 contain similar phrasing: The
Resource Conservation and Recovery Act of 1976, 42 U. S. C. MDRV 6972(e)
("costs of litigation (including reasonable attorney and expert witness
fees)"), and the Natural Gas Pipeline Safety Act Amendments of 1976, 49 U.
S. C. App. MDRV 1686(e) ("costs of suit, including reasonable attorney's
fees and reasonable expert witnesses fees").
    Congress enacted similarly phrased fee-shifting provisions in numerous
statutes both before 1976, see, e. g., Endangered Species Act of 1973, 16
U. S. C. MDRV 1540(g)(4) ("costs of litigation (including reasonable
attorney and expert witness fees)"), and afterwards, see, e. g., Public
Utility Regulatory Policies Act of 1978, 16 U. S. C. MDRV 2632 (a)(1)
("reasonable attorneys' fees, expert witness fees, and other reasonable
costs incurred in preparation and advocacy of [the litigant's] position").
These statutes encompass diverse categories of legislation, including tax,
administrative procedure, environmental protection, consumer protection,
admiralty and navigation, utilities regulation, and, significantly, civil
rights: The Equal Access to Justice Act (EAJA), the counterpart to MDRV
1988 for violation of federal rights by federal employees, states that "
`fees and other expenses' [as shifted by MDRV 2412(d)(1)(A)] includes the
reasonable expenses of expert witnesses . . . and reasonable attorney
fees."  28 U. S. C. MDRV 2412(d)(2)(A).  At least 34 statutes in 10
different titles of the U. S. Code explicitly shift attorney's fees and
expert witness fees. {4}
    The laws that refer to fees for nontestimonial expert services are less
common, but they establish a similar usage both before and after 1976: Such
fees are referred to in addition to attorney's fees when a shift is
intended.  A provision of the 1964 Criminal Justice Act, 18 U. S. C. MDRV
3006A(e), directs the court to reimburse appointed counsel for expert fees
necessary to the defense of indigent criminal defendants -- even though the
immediately preceding provision, MDRV 3006A(d), already directs that
appointed defense counsel be paid a des ignated hourly rate plus "expenses
reasonably incurred."  WVUH's position must be that expert fees billed to a
client through an attorney are "attorney's fees" because they are to be
treated as part of the expenses of the attorney; but if this were normal
usage, they would have been reimbursable under the Criminal Justice Act as
"expenses reasonably incurred" -- and subsection 3006A(e) would add nothing
to the recoverable amount.  The very heading of that subsection, "Services
other than counsel" (emphasis added), acknowledges a distinction between
services provided by the attorney himself and those provided to the
attorney (or the client) by a nonlegal expert.
    To the same effect is the 1980 EAJA, which provides: " `fees and other
expenses' [as shifted by MDRV 2412(d)(1)(A)] includes the reasonable
expenses of expert witnesses, the reasonable cost of any study, analysis,
engineering report, test, or project which is found by the court to be
necessary for the preparation of the party's case, and reasonable attorney
fees."  28 U. S. C. MDRV 2412(d)(2)(A) (emphasis added).  If the reasonable
cost of a "study" or "analysis" -- which is but another way of describing
nontestimonial expert services -- is by common usage already included in
the "attorney fees," again a significant and highly detailed part of the
statute becomes redundant.  The Administrative Procedure Act, 5 U. S. C.
MDRV 504(b)(1)(A) (added 1980), and the Tax Equity and Fiscal
Responsibility Act of 1982, 26 U. S. C. MDRV 7430(c)(1), contain similar
language.  Also reflecting the same usage are two railroad regulation
statutes, the Regional Rail Reorganization Act of 1976, 45 U. S. C. 15
726(f)(9), 741(i) ("costs and expenses (including reasonable fees of
accountants, experts, and attorneys) actually incurred"), and the Railroad
Revitalization and Regulatory Reform Act of 1976, 45 U. S. C. MDRV 854(g)
("costs and expenses (including fees of accountants, experts, and
attorneys) actually and reasonably incurred"). {5}
    We think this statutory usage shows beyond question that attorney's
fees and expert fees are distinct items of expense.  If, as WVUH argues,
the one includes the other, dozens of statutes referring to the two
separately become an inexplica ble exercise in redundancy.

IV
    WVUH argues that at least in pre-1976 judicial usage the phrase
"attorney's fees" included the fees of experts.  To support this
proposition, it relies upon two historical assertions: first, that pre-1976
courts, when exercising traditional equitable discretion in shifting
attorney's fees, taxed as an element of such fees the expenses related to
expert services; and second, that pre-1976 courts shifting attorney's fees
pursuant to statutes identical in phrasing to MDRV 1988 allowed the
recovery of expert fees.  We disagree with these assertions.  The judicial
background against which Congress enacted MDRV 1988 mirrored the statutory
background: expert fees were regarded not as a subset of attorney's fees,
but as a distinct category of litigation expense.
    Certainly it is true that prior to 1976 some federal courts shifted
expert fees to losing parties pursuant to various equitable doctrines --
sometimes in conjunction with attorney's fees.  But they did not shift them
as an element of attorney's fees.  Typical of the courts' mode of analysis
(though not necessarily of their results) is Fey v. Walston & Co., 493 F.
2d 1036, 1055-1056 (CA7 1974), a case brought under the federal securities
laws.  Plaintiff won and was awarded various expenses: "Included in the . .
. costs awarded by the [district] court were the sum of $1,700 for
plaintiff's expert witness, expenses of an accountant in the amount of
$142, and of an illustrator-diagrammer for $50 . . . and attorneys' fees of
$15,660."  The court treated these items separately: the services of the
accountant and illustrator (who did not testify at trial) were "costs"
which could be fully shifted in the discretion of the district court; the
expert witness fees also could be shifted, but only as limited by MDRV
1821; the attorney's fees were not costs and could not be shifted at all
because the case did not fit any of the traditional equitable doctrines for
awarding such fees.  Id., at 1056.  See also In re Electric Power and Light
Co., 210 F. 2d 585, 587, 591 (CA2 1954) ("[Appellant] applied for an
allowance for counsel fees of $35,975 and expenses . . . , and also for a
fee of $2,734.28 for an expert accountant"; court permitted part of the
attorney's fee but disallowed the expert witness fee), rev'd on other
grounds, 348 U. S. 341 (1955); Kiefel v. Las Vegas Hacienda, Inc., 404 F.
2d 1163, 1170-1171 (CA7 1968) (itemizing attorney's fee and expert witness
fee separately, allowing part of the former and all of the latter permitted
by MDRV 1821); Burgess v. Williamson, 506 F. 2d 870, 877-880 (CA5 1975)
(applying Alabama law to shift attorney's fee but not expert witness fee);
Henning v. Lake Charles Harbor and Terminal District, 387 F. 2d 264,
267-268 (CA5 1968), on appeal after remand, 409 F. 2d 932, 937 (CA5 1969)
(applying Louisiana law to shift expert fees but not attorney's fee);
Coughenour v. Campbell Barge Line, Inc., 388 F. Supp 501, 506 (WD Pa. 1974)
("Plaintiffs' claim for counsel fees is denied [because defendant acted in
good faith and thus equitable shifting is unavailable].  Plaintiff's claim
for costs of medical expert witnesses is deemed proper insofar as they were
necessary in establishing the claim . . . ") (citations omitted).
    Even where the courts' holdings treated attorney's fees and expert fees
the same (i. e., granted both or denied both), their analysis discussed
them as separate categories of expense.  See, e. g., Wolf v. Frank, 477 F.
2d 467, 480 (CA5 1973) ("The reimbursing of plaintiffs' costs for
attorney's fees and expert witness fees is supported . . . by well
established equitable principles") (emphasis added); Kinnear-Weed Co. v.
Humble Oil & Refining Co., 441 F. 2d 631, 636-637 (CA5 1971) ("[Appellant]
argues that the district court erred in awarding costs, including
attorneys' fees and expert witness fees to Humble"); Bebchick v. Pub. Util.
Comm'n, 115 U. S. App. D. C. 216, 233, 318 F. 2d 187, 204 (1963) ("It is
also our view that reasonable attorneys' fees for appellants, . . .
reasonable expert witness fees, and appropriate litigation expenses, should
be paid by [appellee]"); Lipscomb v. Wise, 399 F. Supp. 782, 798-801 (ND
Tex. 1975) (in separate analyses, finding both attorney's fees and expert
witness fees barred).  We have found no support for the proposition that,
at common law, courts shifted expert fees as an element of attorney's
fees.
    Of arguably greater significance than the courts' treatment of
attorney's fees versus expert fees at common law is their treatment of
those expenses under statutes containing feeshifting provisions similar to
MDRV 1988.  The hospital contends that in some cases courts shifted expert
fees as well as the statutorily authorized attorney's fees -- and thus must
have thought that the latter included the former.  We find, however, that
the practice, at least in the overwhelming majority of cases, was
otherwise.
    Prior to 1976, the leading fee-shifting statute was the Clayton Act, 38
Stat. 731, as amended, 15 U. S. C. MDRV 15 (shifting "the cost of suit,
including a reasonable attorney's fee").  As of 1976 four Circuits (six
Circuits, if one includes summary affirmances of district court judgments)
had held that this provision did not permit a shift of expert witness fees.
Union Carbide & Carbon Co. v. Nisley, 300 F. 2d 561, 586587 (CA10 1961)
(accountant's fees); Twentieth Century Fox Film Co. v. Goldwyn, 328 F. 2d
190, 223-224 (CA9 1964) (accounting fees); Advance Business Systems &
Supply Co. v. SCM Co., 287 F. Supp. 143, 164 (Md. 1968) (accountant's
fees), aff'd 415 F. 2d 55 (CA4 1969); Farmington Dowel Products Co. v.
Forster Mfg. Co., 297 F. Supp. 924, 930 (Me.) (expert witness fees), aff'd
421 F. 2d 61 (CA1 1969); Trans World Airlines, Inc., v. Hughes, 449 F. 2d
51, 81 (CA2 1971) (expert fees), rev'd on other grounds 409 U. S. 363
(1973); Ott v. Speedwriting Publishing Co., 518 F. 2d 1143, 1149 (CA6 1975)
(expert witness fees); see also Brookside Theater Co. v. Twentieth
Century-Fox Film Co., 11 F. R. D. 259, 267 (WD Mo. 1951) (expert witness
fees).  No court had held otherwise.  Also instructive is pre-1976 practice
under the federal patent laws, which provided, 35 U. S. C. MDRV 285, that
"[t]he court in exceptional cases may award reasonable attorney fees to the
prevailing party."  Again, every court to consider the matter as of 1976
thought that this provision conveyed no authority to shift expert fees.
Specialty Equipment & Machinery Co. v. Zell Motor Car Co., 193 F. 2d 515,
521 (CA4 1952) ("Congress having dealt with the subject of costs in patent
cases and having authorized the taxation of reasonable attorney's fees
without making any provision with respect to . . . fees of expert witnesses
must presumably have intended that they not be taxed"); accord Chromalloy
American Corp. v. Alloy Surfaces Co., 353 F. Supp. 429, 431, n. 1, 433
(Del. 1973); ESCO Co. v. Tru-Rol Co., 178 USPQ 332, 333 (Md. 1973);
Scaramucci v. Universal Mfg. Co., 234 F. Supp. 290, 291-292 (WD La. 1964);
Prashker v. Beech Aircraft Co., 24 F. R. D. 305, 313 (Del. 1959).
    WVUH contends that its position is supported by Tasby v. Estes, 416 F.
Supp. 644, 648 (ND Tex. 1976) and Davis v. County of Los Angeles, 8 FEPC
244, 246 (CD Cal. 1974).  Even if these cases constituted solid support for
the proposition advanced by the hospital, they would hardly be sufficient
to overcome the weight of authority cited above.  But, in any case, we find
neither opinion to be a clear example of contrary usage.  Without entering
into a detailed discussion, it suffices to say, as to Davis (where the
expert fee award was in any event uncontested), that the opinion does not
cite the statute, 42 U. S. C. MDRV 2000e-5, as the basis for its belief
that the expert fee could be shifted, and considers expert fees in a
section separate from that dealing with attorney's fees.  Given what was
then the state of the law in the Ninth Circuit, and the District Court's
citation, 8 FEPC, at 246, of at least one case that is avowedly an
equitable discretion case, see NAACP v. Allen, 340 F. Supp. 703 (MD Ala.
1972), it is likely that the District Court thought the shifting of the fee
was authorized under its general equitable powers, or under Federal Rule
Civ. Proc. 54(d).  As for Tasby, that case unquestionably authorized a
shift of expert witness fees pursuant to an attorney's-fee-shifting
statute, 20 U. S. C. MDRV 1617 (1976 ed.).  The basis of that decision,
however, was not the court's own understanding of the statutory term
"attorney's fees," but rather its belief (quite erroneous) that our earlier
opinion in Bradley v. Richmond School Bd., 416 U. S. 696 (1974), had
adopted that interpretation.  Thus, WVUH has cited not a single case, and
we have found none, in which it is clear (or in our view even likely) that
a court understood the statutory term "attorney's fees" to include expert
fees. {6}
    In sum, we conclude that at the time this provision was enacted neither
statutory nor judicial usage regarded the phrase "attorney's fees" as
embracing fees for experts' services.

V
    WVUH suggests that a distinctive meaning of "attorney's fees" should be
adopted with respect to MDRV 1988 because this statute was meant to
overrule our decision in Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U. S. 240 (1975).  As mentioned above, prior to 1975 many
courts awarded expert fees and attorney's fees in certain circumstances
pursuant to their equitable discretion.  In Alyeska, we held that this
discretion did not extend beyond a few exceptional circumstances long
recognized by common law.  Specifically, we rejected the so-called "private
attorney general" doctrine recently created by some lower federal courts,
see, e. g., La Raza Unida v. Volpe, 57 F. R. D. 94, 98-102 (ND Cal. 1972),
which allowed equitable fee shifting to plaintiffs in certain types of
civil rights litigation.  421 U. S., at 269.  WVUH argues that MDRV 1988
was intended to restore the pre-Alyeska regime -- and that, since expert
fees were shifted then, they should be shifted now.
    Both chronology and the remarks of sponsors of the bill that became
MDRV 1988 suggest that at least some members of Congress viewed it as a
response to Alyeska.  See, e. g., S. Rep. No. 1011, 94th Cong., 2d Sess. 4,
6, repr. in 1976 U. S. Code Cong. & Admin. News 5911, 5913.  It is a
considerable step, however, from this proposition to the conclusion the
hospital would have us draw, namely, that MDRV 1988 should be read as a
reversal of Alyeska in all respects.
    By its plain language and as unanimously construed in the courts, MDRV
1988 is both broader and narrower than the preAlyeska regime.  Before
Alyeska, civil rights plaintiffs could recover fees pursuant to the private
attorney general doctrine only if private enforcement was necessary to
defend important rights benefiting large numbers of people, and cost
barriers might otherwise preclude private suits.  La Raza Unida, 57 F. R.
D., at 98-101.  Section 1988 contains no similar limitation -- so that in
the present suit there is no question as to the propriety of shifting
WVUH's attorney's fees, even though it is highly doubtful they could have
been awarded under pre-Alyeska equitable theories.  In other respects,
however, MDRV 1988 is not as broad as the former regime.  It is limited,
for example, to violations of specified civil rights statutes -- which
means that it would not have reversed the outcome of Alyeska itself, which
involved not a civil rights statute but the National Environmental Policy
Act of 1969, 42 U. S. C. MDRV 4321 et seq.  Since it is clear that, in many
respects, MDRV 1988 was not meant to return us precisely to the pre-Alyeska
regime, the objective of achieving such a return is no reason to depart
from the normal import of the text.
    WVUH further argues that the congressional purpose in enacting MDRV
1988 must prevail over the ordinary meaning of the statutory terms.  It
quotes, for example, the House Committee Report to the effect that "the
judicial remedy [must be] full and complete," H. R. Rep. No. 1558, 94th
Cong. 2d sess. 1 (1976), and the Senate Committee Report to the effect that
"[c]itizens must have the opportunity to recover what it costs them to
vindicate [civil] rights in court," S. Rep. No. 1011, 94th Cong. 2d Sess.
2, repr. in 1976 U. S. Code Cong. & Admin. News 5908, 5910.  As we have
observed before, however, the purpose of a statute includes not only what
it sets out to change, but also what it resolves to leave alone.  See
Rodriguez v. United States, 480 U. S. 522, 525526 (1987).  The best
evidence of that purpose is the statutory text adopted by both Houses of
Congress and submitted to the President.  Where that contains a phrase that
is unambiguous -- that has a clearly accepted meaning in both legislative
and judicial practice -- we do not permit it to be expanded or contracted
by the statements of individual leg islators or committees during the
course of the enactment process.  See United States v. Ron Pair
Enterprises, Inc., 489 U. S. 235, 241 (1989) ("[W]here, as here, the
statute's language is plain, `the sole function of the court is to enforce
it according to its terms.' "), quoting Caminetti v. United States, 242 U.
S. 470, 485 (1917).  Congress could easily have shifted "attorney's fees
and expert witness fees," or "reasonable litigation expenses," as it did in
contemporaneous statutes; it chose instead to enact more restrictive
language, and we are bound by that restriction.
    WVUH asserts that we have previously been guided by the "broad remedial
purposes" of MDRV 1988, rather than its text, in a context resolving an
"analogous issue": In Missouri v. Jenkins, 491 U. S. 274, 285 (1989), we
concluded that MDRV 1988 permitted separately billed paralegal and
law-clerk time to be charged to the losing party.  The trouble with this
argument is that Jenkins did not involve an "analogous issue," insofar as
the relevant considerations are concerned.  The issue there was not, as
WVUH contends, whether we would permit our perception of the "policy" of
the statute to overcome its "plain language."  It was not remotely plain in
Jenkins that the phrase "attorney's fee" did not include charges for
law-clerk and paralegal services.  Such services, like the services of
"secretaries, messengers, librarians, janitors, and others whose labor
contributes to the work product," 491 U. S., at 285, had traditionally been
included in calculation of the lawyers' hourly rates.  Only recently had
there arisen "the `increasingly widespread custom of separately billing for
[such] services,' " id., at 286 (quoting from Ramos v. Lamm, 713 F. 2d 546,
558 (CA10 1983).  By contrast, there has never been, to our knowledge, a
practice of including the cost of expert services within attorneys' hourly
rates.  There was also no record in Jenkins -- as there is a lengthy record
here -- of statutory usage that recognizes a distinction between the
charges at issue and attorney's fees.  We do not know of a single statute
that shifts clerk or paralegal fees separately; and even those, such as the
EAJA, which comprehensively define the assessable "litigation costs" make
no separate mention of clerks or paralegals.  In other words, Jenkins
involved a respect in which the term "attorney's fees" (giving the losing
argument the benefit of the doubt) was genuinely ambiguous; and we resolved
that ambiguity not by invoking some policy that supersedes the text of the
statute, but by concluding that charges of this sort had traditionally been
included in attorney's fees, and that separate billing should make no
difference.  The term's application to expert fees is not ambiguous; and if
it were the means of analysis employed in Jenkins would lead to the
conclusion that since such fees have not traditionally been included within
the attorney's hourly rate they are not attorney's fees.
    WVUH's last contention is that, even if Congress plainly did not
include expert fees in the fee-shifting provisions of MDRV 1988, it would
have done so had it thought about it.  Most of the pre-MDRV 1988 statutes
that explicitly shifted expert fees dealt with environmental litigation,
where the necessity of expert advice was readily apparent; and when
Congress later enacted the EAJA, the federal counterpart of MDRV 1988, it
explicitly included expert fees.  Thus, the argument runs, the 94th
Congress simply forgot; it is our duty to ask how they would have decided
had they actually considered the question.  See Friedrich v. City of
Chicago, 888 F. 2d 511, 514 (CA7 1989) (awarding expert fees under MDRV
1988 because a court should "complete . . . the statute by reading it to
bring about the end that the legislators would have specified had they
thought about it more clearly").
    This argument profoundly mistakes our role.  Where a statutory term
presented to us for the first time is ambiguous, we construe it to contain
that permissible meaning which fits most logically and comfortably into the
body of both previously and subsequently enacted law.  See 2 J. Sutherland,
Statutory Construction MDRV 5201 (3d F. Horack ed. 1943).  We do so not
because that precise accommodative meaning is what the lawmakers must have
had in mind (how could an earlier Congress know what a later Congress would
enact?) but because it is our role to make sense rather than nonsense out
of the corpus juris.  But where, as here, the meaning of the term prevents
such accommodation, it is not our function to eliminate clearly expressed
inconsistency of policy, and to treat alike subjects that different
Congresses have chosen to treat differently.  The facile attribution of
congressional "forgetfulness" cannot justify such a usurpation.  Where what
is at issue is not a contradictory disposition within the same enactment,
but merely a difference between the more parsimonious policy of an earlier
enactment and the more generous policy of a later one, there is no more
basis for saying that the earlier Congress forgot than for saying that the
earlier Congress felt differently.  In such circumstances, the attribution
of forgetfulness rests in reality upon the judge's assessment that the
later statute contains the better disposition.  But that is not for judges
to prescribe.  We thus reject this last argument for the same reason that
Justice Brandeis, writing for the Court, once rejected a similar (though
less explicit) argument by the United States:

"[The statute's] language is plain and unambiguous.  What the Government
asks is not a construction of a statute, but, in effect, an enlargement of
it by the court, so that what was omitted, presumably by inadvertence, may
be included within its scope.  To supply omissions transcends the judicial
function."  Iselin v. United States, 270 U. S. 245, 250-251 (1926). {7}

*  *  *  *  *
    For the foregoing reasons, we conclude that MDRV 1988 conveys no
authority to shift expert fees.  When experts appear at trial, they are of
course eligible for the fee provided by MDRV 1920 and MDRV 1821 -- which
was allowed in the present case by the Court of Appeals.
    The judgment of the Court of Appeals is affirmed.

It is so ordered.


 
 
 
 
 

------------------------------------------------------------------------------
1
    42 U. S. C. MDRV 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, 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."

2
    Section 1821(b) has since been amended to increase the allowable per
diem from $30 to $40.  See Judicial Improvements Act of 1990, Pub. L.
101-650, MDRV 314.

3
    Justice Stevens suggests that the expert fees requested here might be
part of the "costs" allowed by MDRV 1988 even if they are not part of the
"attorney's fee."  We are aware of no authority to support the counter
intuitive assertion that "[t]he term `costs' has a different and broader
meaning in fee-shifting statutes than it has in the cost statutes that
apply to ordinary litigation," post at 2.  In Crawford Fitting we held that
the word "costs" in F. R. Civ. P. 54(d) is to be read in harmony with the
word "costs" in 28 U. S. C. MDRV 1920, see 482 U. S. at 441, 445, and we
think the same is true of the word "costs" in MDRV 1988.  We likewise see
nothing to support Justice Stevens' speculation that the court below or the
parties viewed certain disbursements by the hospital's attorneys as "costs"
within the meaning of the statute.  Rather, it is likely that these
disbursements (billed directly to the client) were thought subsumed within
the phrase "attorney's fee."  See, e. g., Northcross v. Bd. of Ed. of
Memphis City Schools, 611 F. 2d 624, 639 (CA6 1979) ("reasonable
out-of-pocket expenses incurred by the attorney" included in MDRV 1988
"attorney's fee" award).

4
    In addition to the provisions discussed in the text, see Administrative
Procedure Act, 5 U. S. C. MDRV 504(b)(1)(A) (added 1980) ("reasonable
expenses of expert witnesses . . . and reasonable attorney or agent fees");
Unfair Advertising Act, 15 U. S. C. MDRV 57a(h)(1) (added 1975)
("reasonable attorneys' fees, expert witness fees and other costs of
participating in a rulemaking proceeding"); Petroleum Marketing Practices
Act, 15 U. S. C. 15 2805(d)(1)(c), 2805(d)(3) ("reasonable attorney and
expert witness fees"); National Historic Preservation Act, 16 U. S. C. MDRV
470w -- 4 (1980 amendments) ("attorneys' fees, expert witness fees, and
other costs of participating in such action"); Federal Power Act, 16 U. S.
C. MDRV 825q -- 1(b)(2) (added 1978) ("reasonable attorney's fees, expert
witness fees and other costs of intervening or participating in any
proceeding [before the commission]"); Tax Equity and Fiscal Responsibility
Act of 1982, 26 U. S. C. MDRV 7430(c)(1) ("reasonable expenses of expert
witnesses . . . and reasonable fees paid . . . for the services of
attorneys"); Surface Mining Control Act, 30 U. S. C. MDRV 1270(d) (enacted
1977) ("costs of litigation (including attorney and expert witness fees");
Deep Seabed Hard Mineral Resources Act, 30 U. S. C. MDRV 1427(c) (enacted
1980) (same); Oil and Gas Royalty Management Act of 1982, 30 U. S. C. MDRV
1734(a)(4) ("costs of litigation including reasonable attorney and expert
witness fees"); Longshoremen and Harbor Workers' Compensation Act
Amendments of 1972, 33 U. S. C. MDRV 928(d) ("In cases where an attorney's
fee is awarded . . . there may be further assessed . . . as costs, fees and
mileage for necessary witnesses"); Federal Water Pollution Control Act
Amendments of 1972, and 1987 Amendment, 33 U. S. C. 15 1365(d), 1369(b)(3)
("costs of litigation (including reasonable attorney and expert witness
fees)"); Oil Pollution Act of 1990, 33 U. S. C. A. MDRV 2706(g) (same);
Marine Protection, Research, and Sanctuaries Act of 1972, 33 U. S. C. MDRV
1415(g)(4) (same); Deepwater Port Act of 1974, 33 U. S. C. MDRV 1515(d)
(same); Act to Prevent Pollution from Ships, 33 U. S. C. MDRV 1910(d)
(enacted 1980) (same); Safe Drinking Water Act, 42 U. S. C. MDRV 300j --
8(d) (enacted 1974) (same); National Childhood Vaccine Injury Act of 1986,
42 U. S. C. MDRV 300aa -- 31(c) (same); Noise Control Act of 1972, 42 U. S.
C. MDRV 4911(d) (same); Energy Reorganization Act of 1974, 42 U. S. C. MDRV
5851(e)(2) (same); Energy Policy and Conservation Act, 42 U. S. C. MDRV
6305(d) (enacted 1975) (same); Clean Air Amendments of 1970, 42 U. S. C. 15
7604(d), 7607(f), 7413(b) (same) and 42 U. S. C. MDRV 7622(b)(2) (B) (1977
amendments) ("all costs and expenses (including attorneys' and expert
witness fees) reasonably incurred"); Powerplant and Industrial Fuel Use Act
of 1978, 42 U. S. C. MDRV 8435(d) ("costs of litigation (including
reasonable attorney and expert witness fees)"); Ocean Thermal Energy
Consersion Act of 1980, 42 U. S. C. MDRV 9124(d) (same); Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U. S.
C. MDRV 9659(f) (added 1986) (same); Emergency Planning and Community
Rightto-Know Act of 1986, 42 U. S. C. MDRV 11046(f) (same); Outer
Continental Shelf Lands Act Amendments of 1978, 43 U. S. C. MDRV 1349(a)(5)
(same); Hazardous Liquid Pipeline Safety Act of 1979, 49 U. S. C. App. MDRV
2014(e) ("costs of suit, including reasonable attorney's fees and
reasonable expert witnesses fees").

5
    WVUH cites a House Conference Committee report from a statute passed in
1986, stating "The conferees intend that the term `attorneys' fees as part
of the costs' include reasonable expenses and fees of expert witnesses and
the reasonable costs of any test or evaluation which is found to be
necessary for the preparation of the . . . case."  H. R. Conf. Rep. No.
687, 99th Cong., 2d sess. 5, reprinted in 1986 U. S. Code Cong. & Admin.
News 1798, 1808 (discussing the Handicapped Children's Protection Act of
1986, 20 U. S. C. MDRV 1415(e)(4)(B)).  In our view this undercuts rather
than supports WVUH's position: The specification would have been quite
unnecessary if the ordinary meaning of the term included those elements.
The statement is an apparent effort to depart from ordinary meaning and to
define a term of art.

6
    The hospital also cites Fairley v. Patterson, 493 F. 2d 598 (CA5 1974),
and Norris v. Green, 317 F. Supp. 100, 102 (ND Ala. 1965).  But in Fairley
the court, remanding for reconsideration of the fee award, was explicitly
equivocal as to whether "court costs" other than the ones normally
assessable under MDRV 1920 were awardable under the statute in question
(the Voting Rights Act of 1965, whose fee-shifting provision parallels MDRV
1988), or rather "should have to meet the harder discretionary standards"
applicable to the award of fees pursuant to equitable discretion.  493 F.
2d, at 606, n. 11.  In any event, Fairley did not consider expert witnesses
explicitly, and there is no indication that the court necessarily included
expert fees within its (undefined) category of "court costs."
    As for Norris, that case awarded fees pursuant to 29 U. S. C. MDRV
501(b), which is not parallel to MDRV 1988, since it authorizes the
shifting of "fees of counsel . . . and . . . expenses necessarily paid or
incurred" (emphasis added).  There is no indication in the opinion that the
court thought the expert fees were part of the former rather than the
latter -- and the court discussed them separately from attorney's fees.

7
    WVUH at least asks us to guess the preferences of the enacting
Congress.  Justice Stevens apparently believes our role is to guess the
desires of the present Congress, or of Congresses yet to be.  "Only time
will tell," he says, "whether the Court, with its literal reading of MDRV
1988, has correctly interpreted the will of Congress," post, at 14.  The
implication is that today's holding will be proved wrong if Congress amends
the law to conform with his dissent.  We think not.  The "will of Congress"
we look to is not a will evolving from Session to Session, but a will
expressed and fixed in a particular enactment.  Otherwise, we would speak
not of "interpreting" the law but of "intuiting" or "predicting" it.  Our
role is to say what the law, as hitherto enacted, is; not to forecast what
the law, as amended, will be.





Subject: 89-994 -- DISSENT, WEST VIRGINIA UNIV. HOSPITALS, INC. v. CASEY

 
SUPREME COURT OF THE UNITED STATES


No. 89-994



WEST VIRGINIA UNIVERSITY HOSPITALS, INC., PETITIONER v. ROBERT CASEY,
GOVERNOR OF PENNSYLVANIA, et al.

on writ of certiorari to the united states court of appeals for the third
circuit

[March 19, 1991]



    Justice Marshall, dissenting
    As Justice Stevens demonstrates, the Court uses the implements of
literalism to wound, rather than to minister to, congressional intent in
this case.  That is a dangerous usurpation of congressional power when any
statute is involved.  It is troubling for special reasons, however, when
the statute at issue is clearly designed to give access to the federal
courts to persons and groups attempting to vindicate vital civil rights.  A
District Judge has ably put the point in an analogous context:
"At issue here is much more than the simple question of how much
[plaintiff's] attorneys should receive as attorney fees.  At issue is . . .
continued full and vigorous commitment to this Nation's lofty, but as yet
unfulfilled, agenda to make the promises of this land available to all
citizens, without regard to race or sex or other impermissible
characteristic.  There are at least two ways to undermine this commitment.
The first is open and direct: a repeal of this Nation's anti-discrimination
laws.  The second is more indirect and, for this reason, somewhat
insidious: to deny victims of discrimination a means for redress by
creating an economic market in which attorneys cannot afford to represent
them and take their cases to court."  Hidle v. Geneva County Bd. of Ed.,
681 F. Supp. 752, 758-759 (MD Ala. 1988) (awarding attorney fees and
expenses under Title VII).

------------------------------------------------------------------------------




Subject: 89-994 -- DISSENT, WEST VIRGINIA UNIV. HOSPITALS, INC. v. CASEY

 
SUPREME COURT OF THE UNITED STATES


No. 89-994



WEST VIRGINIA UNIVERSITY HOSPITALS, INC., PETITIONER v. ROBERT CASEY,
GOVERNOR OF PENNSYLVANIA, et al.

on writ of certiorari to the united states court of appeals for the third
circuit

[March 19, 1991]



    Justice Stevens, with whom Justice Marshall and Justice Blackmun join,
dissenting.

    Since the enactment of the Statute of Wills in 1540, {1} careful
draftsmen have authorized executors to pay the just debts of the decedent,
including the fees and expenses of the attorney for the estate.  Although
the omission of such an express authorization in a will might indicate that
the testator had thought it unnecessary, or that he had overlooked the
point, the omission would surely not indicate a deliberate decision by the
testator to forbid any compensation to his attorney.    In the early 1970s,
Congress began to focus on the importance of public interest litigation,
and since that time, it has enacted numerous fee-shifting statutes.  In
many of these statutes, which the majority cites at length, see ante, at
4-8, Congress has expressly authorized the recovery of expert witness fees
as part of the costs of litigation.  The question in this case is whether,
notwithstanding the omission of such an express authorization in 42 U. S.
C. MDRV 1988, Congress intended to authorize such recovery when it provided
for "a reasonable attorney's fee as part of the costs."  In my view, just
as the omission of express authorization in a will does not preclude
compensation to an estate's attorney, the omission of express authorization
for expert witness fees in a feeshifting provision should not preclude the
award of expert witness fees.  We should look at the way in which the Court
has interpreted the text of this statute in the past, as well as this
statute's legislative history, to resolve the question before us, rather
than looking at the text of the many other statutes that the majority cites
in which Congress expressly recognized the need for compensating expert
witnesses.

I
    Under either the broad view of "costs" typically assumed in the
fee-shifting context or the broad view of "a reasonable attorney's fee"
articulated by this Court, expert witness fees are a proper component of an
award under MDRV 1988.  Because we are not interpreting these words for the
first time, they should be evaluated in the context that this and other
courts have already created. {2}

    The term "costs" has a different and broader meaning in fee-shifting
statutes than it has in the cost statutes that apply to ordinary
litigation. {3}  The cost bill in this case illustrates the point.  Leaving
aside the question of expert witness fees, the prevailing party sought
reimbursement for $45,867 in disbursements, see App. to Pet. for Cert. C-1,
which plainly would not have been recoverable costs under 28 U. S. C. MDRV
1920. {4}  These expenses, including such items as travel and long-distance
telephone calls, were allowed by the District Court, and were not even
questioned by respondent.  They were expenses that a retained lawyer would
ordinarily bill to his or her client.  They were accordingly considered
proper "costs" in a case of this kind.

    The broad construction typically given to "costs" in the feeshifting
context is highlighted by the Chief Justice's contrasting view in Missouri
v. Jenkins, 491 U. S. 274 (1989), in which he argued that paralegal and law
clerk fees could not even be awarded as "costs" under 28 U. S. C. MDRV
1920.  One of the issues in Jenkins was the rate at which the services of
law clerks and paralegals should be compensated.  The State contended that
actual cost, rather than market value, should govern.  It did not, however,
even question the propriety of reimbursing the prevailing party for the
work of these nonlawyers.  Only the Chief Justice -- in a lone dissent the
reasoning of which is now endorsed by the Court -- advanced a purely
literal interpretation of the statute.  He wrote:


    "I also disagree with the State's suggestion that law clerk and
paralegal expenses incurred by a prevailing party, if not recoverable at
market rates as `attorney's fees' under MDRV 1988, are nonetheless
recoverable at actual cost under that statute.  The language of MDRV 1988
expands the traditional definition of `costs' to include `a reasonable
attorney's fee,' but it cannot fairly be read to authorize the recovery of
all other out-of-pocket expenses actually incurred by the prevailing party
in the course of litigation.  Absent specific statutory authorization for
the recovery of such expenses, the prevailing party remains subject to the
limitations on cost recovery imposed by Federal Rule of Civil Procedure
54(d) and 28 U. S. C. MDRV 1920, which govern the taxation of costs in
federal litigation where a cost-shifting statute is not applicable.
Section 1920 gives the district court discretion to tax certain types of
costs against the losing party in any federal litigation.  The statute
specifically enumerates six categories of expenses which may be taxed as
costs: fees of the court clerk and marshal; fees of the court reporter;
printing fees and witness fees; copying fees; certain docket fees; and fees
of court-appointed experts and interpreters.  We have held that this list
is exclusive.  Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437
(1987).  Since none of these categories can possibly be construed to
include the fees of law clerks and paralegals, I would also hold that
reimbursement for these expenses may not be separately awarded at actual
cost."  Id., at 297-298.


    Although the Chief Justice argued that charges for the work of
paralegals and law clerks were not part of the narrowly defined "costs"
that were reimbursable under MDRV 1920, nor were they part of an
"attorney's fee" reimbursable under MDRV 1988, the Court did not reach the
Chief Justice's point about costs because it held in Jenkins that such
expenses were part of a "reasonable attorney's fee" authorized by MDRV
1988, and thus, could be reimbursed at market rate.  In the Court's view, a
"reasonable attorney's fee" referred to "a reasonable fee for the work
product of an attorney."  Id., at 285.  We explained:


"[T]he fee must take into account the work not only of attorneys, but also
of secretaries, messengers, librarians, janitors, and others whose labor
contributes to the work product for which an attorney bills her client; and
it must also take account of other expenses and profit.  The parties have
suggested no reason why the work of paralegals should not be similarly
compensated, nor can we think of any.  We thus take as our starting point
the self-evident proposition that the `reasonable attorney's fee' provided
for by statute should compensate the work of paralegals, as well as that of
attorneys."  Ibid.


    In Jenkins, the Court acknowledged that the use of paralegals instead
of attorneys reduced the cost of litigation, and " `by reducing the
spiraling cost of civil rights litigation, further[ed] the policies
underlying civil rights statutes.' "  Id., at 288.  If attorneys were
forced to do the work that paralegals could just as easily perform under
the supervision of an attorney, such as locating and interviewing witnesses
or compiling statistical and financial data, then "it would not be
surprising to see a greater amount of such work performed by attorneys
themselves, thus increasing the overall cost of litigation."  Id., at 288,
n. 10.

    This reasoning applies equally to other forms of specialized litigation
support that a trial lawyer needs and that the client customarily pays for,
either directly or indirectly.  Although reliance on paralegals is a more
recent development than the use of traditional expert witnesses, both
paralegals and expert witnesses perform important tasks that save lawyers'
time and enhance the quality of their work product.  In this case, it is
undisputed that the District Court correctly found that the expert
witnesses were "essential" and "necessary" to the successful prosecution of
the plaintiff's case, {5} and that their data and analysis played a pivotal
role in the attorney's trial preparation. {6}  Had the attorneys attempted
to perform the tasks that the experts performed, it obviously would have
taken them far longer than the experts and the entire case would have been
far more costly to the parties.  As Judge Posner observed in a comparable
case:


"The time so spent by the expert is a substitute for lawyer time, just as
paralegal time is, for if prohibited (or deterred by the cost) from hiring
an expert the lawyer would attempt to educate himself about the expert's
area of expertise.  To forbid the shifting of the expert's fee would
encourage underspecialization and inefficient trial preparation, just as to
forbid shifting the cost of paralegals would encourage lawyers to do
paralegals' work.  There is thus no basis for distinguishing Jenkins from
the present case so far as time spent by these experts in educating the
plaintiffs' lawyer is concerned . . . ."  Friedrich v. Chicago, 888 F. 2d
511, 514 (CA7 1989).


    In Jenkins, we interpreted the award of "a reasonable attorney's fee"
to cover charges for paralegals and law clerks, even though a paralegal or
law clerk is not an attorney.  Similarly, the federal courts routinely
allow an attorney's travel expenses or long-distance telephone calls to be
awarded, even though they are not literally part of an "attorney's fee," or
part of "costs" as defined by 28 U. S. C. MDRV 1920.  To allow
reimbursement of these other categories of expenses, and yet not to include
expert witness fees, is both arbitrary and contrary to the broad remedial
purpose that inspired the fee-shifting provision of MDRV 1988.

II
    The Senate Report on the Civil Rights Attorneys' Fees Awards Act
explained that the purpose of the proposed amendment to 42 U. S. C. MDRV
1988 was "to remedy anomalous gaps in our civil rights laws created by the
United States Supreme Court's recent decision in Alyeska Pipeline Service
Co. v. Wilderness Society, 421 U. S. 240 (1975), and to achieve consistency
in our civil rights laws."  {7}  S. Rep. No. 94-1011, p. 1 (1976).  The
Senate Committee on the Judiciary wanted to level the playing field so that
private citizens, who might have little or no money, could still serve as
"private attorneys general" and afford to bring actions, even against state
or local bodies, to enforce the civil rights laws.  The Committee
acknowledged that "[i]f private citizens are to be able to assert their
civil rights, and if those who violate the Nation's fundamental laws are
not to proceed with impunity, then citizens must have the opportunity to
recover what it costs them to vindicate these rights in court."  Id., at 2
(emphasis added).  According to the Committee, the bill would create "no
startling new remedy," but would simply provide "the technical
requirements" requested by the Supreme Court in Alyeska, so that courts
could "continue the practice of awarding attorneys' fees which had been
going on for years prior to the Court's May decision."  Id., at 6.

    To underscore its intention to return the courts to their pre-Alyeska
practice of shifting fees in civil rights cases, the Senate Committee's
Report cited with approval not only several cases in which fees had been
shifted, but also all of the cases contained in Legal Fees, Hearings before
the Subcommittee on Representation of Citizen Interests of the Senate
Committee on the Judiciary, 93rd Cong., 1st Sess., pt. 3, pp. 888-1024,
1060-1062 (1973) (hereinafter Senate Hearings).  See S. Rep. No. 94-1011,
p. 4, n. 3 (1976).  The cases collected in the 1973 Senate Hearings
included many in which courts had permitted the shifting of costs,
including expert witness fees.  At the time when the Committee referred to
these cases, though several were later reversed, it used them to make the
point that prior to Alyeska, courts awarded attorney's fees and costs,
including expert witness fees, in civil rights cases, and that they did so
in order to encourage private citizens to bring such suits. {8}  It was to
this pre-Alyeska regime, in which courts could award expert witness fees
along with attorney's fees, that the Senate Committee intended to return
through the passage of the fee-shifting amendment to MDRV 1988.

    The House Report expressed concerns similar to those raised by the
Senate Report.  It noted that "[t]he effective enforcement of Federal civil
rights statutes depends largely on the efforts of private citizens" and
that the House bill was "designed to give such persons effective access to
the judicial process . . . ."  H. R. Rep. No. 94-1558, p. 1 (1976).  The
House Committee on the Judiciary concluded that "civil rights litigants
were suffering very severe hardships because of the Alyeska decision," and
that the case had had a "devastating impact" and had created a "compelling
need" for a feeshifting provision in the civil rights context.  Id., at
2-3.

    According to both Reports, the record of House and Senate subcommittee
hearings, consisting of the testimony and written submissions of public
officials, scholars, practicing attorneys, and private citizens, and the
questions of the legislators, makes clear that both committees were
concerned with preserving access to the courts and encouraging public
interest litigation. {9}
    It is fair to say that throughout the course of the hearings, a
recurring theme was the desire to return to the preAlyeska practice in
which courts could shift fees, including expert witness fees, and make
those who acted as private attorneys general whole again, thus encouraging
the enforcement of the civil rights laws.

    The case before us today is precisely the type of public interest
litigation that Congress intended to encourage by amending MDRV 1988 to
provide for fee shifting of a "reasonable attorney's fee as part of the
costs."  Petitioner, a tertiary medical center in West Virginia near the
Pennsylvania border, {10} provides services to a large number of medicaid
recipients throughout Pennsylvania.  In January 1986, when the Pennsylvania
Department of Public Welfare notified petitioner of its new medicaid
payment rates for Pennsylvania medicaid recipients, petitioner believed
them to be below the minimum standards for reimbursement specified by the
Social Security Act.  Petitioner successfully challenged the adequacy of
the State's payment system under 42 U. S. C. MDRV 1983.

    This Court's determination today that petitioner must assume the cost
of $104,133.00 in expert witness fees is at war with the congressional
purpose of making the prevailing party whole.  As we said in Hensley v.
Eckerhart, 461 U. S. 424, 435 (1983), petitioner's recovery should be
"fully compensatory," or, as we expressed in Jenkins, petitioner's recovery
should be "comparable to what `is traditional with attorneys compensated by
a fee-paying client.'  S. Rep. No. 94-1011, p. 6 (1976)."  491 U. S., at
286.

III
    In recent years the Court has vacillated between a purely literal
approach to the task of statutory interpretation and an approach that seeks
guidance from historical context, legislative history, and prior cases
identifying the purpose that motivated the legislation.  Thus, for example,
in Christians burg Garment Co. v. EEOC, 434 U. S. 412 (1978), we rejected a
"mechanical construction," id., at 418, of the feeshifting provision in
MDRV 706(k) of Title VII of the Civil Rights Act of 1964 that the
prevailing defendant had urged upon us.  Although the text of the statute
drew no distinction between different kinds of "prevailing parties," we
held that awards to prevailing plaintiffs are governed by a more liberal
standard than awards to prevailing defendants.  That holding rested
entirely on our evaluation of the relevant congressional policy and found
no support within the four corners of the statutory text.  Nevertheless,
the holding was unanimous and, to the best of my knowledge, evoked no
adverse criticism or response in Congress. {11}

    On those occasions, however, when the Court has put on its thick
grammarian's spectacles and ignored the available evidence of congressional
purpose and the teaching of prior cases construing a statute, the
congressional response has been dramatically different.  It is no
coincidence that the Court's literal reading of Title VII, which led to the
conclusion that disparate treatment of pregnant and nonpregnant persons was
not discrimination on the basis of sex, see General Electric Co. v.
Gilbert, 429 U. S. 125 (1976), was repudiated by the 95th Congress;  {12}
that its literal reading of the "continuous physical presence" requirement
in MDRV 244(a)(1) of the Immigration and Nationality Act, which led to the
view that the statute did not permit even temporary or inadvertent absences
from this country, see INS v. Phinpathya, 464 U. S. 183 (1984), was
rebuffed by the 99th Congress;  {13} that its literal reading of the word
"program" in Title IX of the Education Amendments of 1972, which led to the
Court's gratuitous limit on the scope of the antidiscrimination provisions
of Title IX, {14} see Grove City College v. Bell, 465 U. S. 555 (1984), was
rejected by the 100th Congress;  {15} or that its refusal to accept the
teaching of earlier decisions in Wards Cove Packing Co. v. Atonio, 490 U.
S. 642 (1989) (reformulating order of proof and weight of parties' burdens
in disparateimpact cases), and Patterson v. McLean Credit Union, 491 U. S.
164 (1989) (limiting scope of 42 U. S. C. MDRV 1981 to the making and
enforcement of contracts) was overwhelmingly rejected by the 101st
Congress, {16} and its refusal to accept the widely held view of lower
courts about the scope of fraud, see McNally v. United States, 483 U. S.
350 (1987) (limiting mail fraud to protection of property), was quickly
corrected by the 100th Congress. {17}
    In the domain of statutory interpretation, Congress is the master.  It
obviously has the power to correct our mistakes, but we do the country a
disservice when we needlessly ignore persuasive evidence of Congress'
actual purpose and require it "to take the time to revisit the matter"
{18} and to restate its purpose in more precise English whenever its work
product suffers from an omission or inadvertent error.  As Judge Learned
Hand explained, statutes are likely to be imprecise.

"All [legislators] have done is to write down certain words which they mean
to apply generally to situations of that kind.  To apply these literally
may either pervert what was plainly their general meaning, or leave
undisposed of what there is every reason to suppose they meant to provide
for.  Thus it is not enough for the judge just to use a dictionary.  If he
should do no more, he might come out with a result which every sensible man
would recognize to be quite the opposite of what was really intended; which
would contradict or leave unfulfilled its plain purpose."  L. Hand, How Far
Is a Judge Free in Rendering a Decision?, in The Spirit of Liberty 103, 106
(I. Dilliard ed. 1952).


    The Court concludes its opinion with the suggestion that disagreement
with its textual analysis could only be based on the dissenter's preference
for a "better" statute, ante, at 17.  It overlooks the possibility that a
different view may be more faithful to Congress' command.  The fact that
Congress has consistently provided for the inclusion of expert witness fees
in fee-shifting statutes when it considered the matter is a weak reed on
which to rest the conclusion that the omission of such a provision
represents a deliberate decision to forbid such awards.  Only time will
tell whether the Court, with its literal reading  {19} of MDRV 1988, has
correctly interpreted the will of Congress with respect to the issue it has
resolved today.

    I respectfully dissent.

 
 
 
 
------------------------------------------------------------------------------
1
    32 Hen. VIII, ch. 1 (1540).

2
    My view, as I have expressed in the past, is that we should follow
Justice Cardozo's advice to the judge to "lay [his] own course of bricks on
the secure foundation of the courses laid by others who had gone before
him."  B. Cardozo, The Nature of the Judicial Process 149 (1921).

3
    See, e. g., 28 U. S. C. MDRV 1920; see also Fed. Rule Civ. Proc.
54(d).

4
    Cited in full ante, at 2.

5
    App. to Pet. for Cert. C-2; App. 117.

6
    The expert witnesses here played a pivotal role in their
non-testimonial, rather than simply their testimonial, capacity.  See Pet.
for Cert. 6-7; App. 120-139.

7
    In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240
(1975), the Court held that courts were not free to fashion new exceptions
to the American Rule, according to which each side assumed the cost of its
own attorney's fees.  The Court reasoned that it was not the judiciary's
role "to invade the legislature's province by redistributing litigation
costs  . . . ," id., at 271, and that it would be "inappropriate for the
Judiciary, without legislative guidance, to reallocate the burdens of
litigation . . . ."  Id., at 247.

8
    See, e. g., Beens v. Erdahl, 349 F. Supp. 97, 100 (Minn. 1972); Bradley
v. School Board of Richmond, 53 F. R. D. 28, 44 (ED Va. 1971) ("Fees for
expert witnesses' testimony likewise will be allowed as an expense of suit.
It is difficult to imagine a more necessary item of proof (and source of
assistance to the Court) than the considered opinion of an educational
expert"), rev'd, 472 F. 2d 318 (CA4 1972), vacated, 416 U. S. 696 (1974);
La Raza Unida v. Volpe, No. 71-1166 (ND Cal., Oct. 19, 1972), reprinted in
Senate Hearings, pt. 3, pp. 1060, 1062, (expert witness fees allowed
because experts' testimony was "helpful to the court"); Pyramid Lake Paiute
Tribe of Indians v. Morton, 360 F. Supp. 669, 672 (DC 1973) ("The
plaintiff's experts played a vital role in the resolution of the case,
their work and testimony going to the heart of the matter.  Accordingly, it
seems entirely appropriate to award their fees as scheduled in the total
amount of $20,488.72 . . . ."), rev'd, 163 U. S. App. D. C. 90, 499 F. 2d
1095 (1974), cert. denied, 420 U. S. 962 (1975).

9
    A frequently expressed concern was the need to undo the damage to
public interest litigation caused by Alyeska. See, e. g., Awarding of
Attorneys' Fees, Hearings before the Subcommittee on Courts, Civil
Liberties, and the Administration of Justice of the House Committee on the
Judiciary, 94th Cong., 1st Sess., pp. 2, 41, 42, 43, 54, 82-85, 87, 90-92,
94, 103, 119-121, 123-125, 134, 150, 153-155, 162, 182-183, 269, 272-273,
370, 378-395, 416-418 (1975) (hereinafter House Hearings).  Many who
testified expressed the view that attorneys needed fee-shifting provisions
so that they could afford to work on public interest litigation, see, e.
g., id., at 66-67, 76, 78-79, 80, 89, 124-125, 137-142, 146, 158-159,
276-277, 278-280, 306-308; see also id., at 316-326; Senate Hearings, pts.
3, 4, pp. 789-790, 855-857, 1115, and private citizens needed fee-shifting
provisions so that they could be made whole again.  See, e. g., House
Hearings, pp. 60, 189, 192, 254-55, 292, 328; see also id., at 106-111,
343-345, 347-349.  For example, the private citizen who was brought into
court by the Government and who later prevailed, would still not be made
whole because he had to bear the costs of his own attorney's fees.  The
Senate Hearings also examined the average citizen's lack of access to the
legal system.  See, e. g., Senate Hearings, pts. 1, 2, 3, pp. 1-2, 3-4, 273
(addressing question whether coal miners were receiving adequate legal
coverage); id., at 466, 470-471, 505-509, 515 (addressing question whether
veterans were denied legal assistance by $10 contingent fee); id., at 789,
791-796, 808-810 (Indians' access to lawyers); id., at 1127, 1253-1254
(average citizen cannot afford attorney).

10
    A "tertiary" hospital provides a level of medical services that is
generally complex and not provided by community hospitals.  Brief for
Petitioner 3, n. 1.

11
    Other examples of cases in which the Court eschewed the literal
approach include Steelworkers v. Weber, 443 U. S. 193 (1979), and Johnson
v. Transportation Agency, Santa Clara County, 480 U. S. 616 (1987).
Although the dissenters had the better textual argument in both cases, and
urged the Court to read the words of the statute literally, the Court, in
both cases, opted for a reading that took into account congressional
purpose and historical context.  See Steelworkers v. Weber, 443 U. S., at
201 (Court rejected "literal construction of 15 703(a) and (d)" and held
that the statute must "be read against the background of the legislative
history of Title VII and the historical context from which the Act arose");
Johnson v. Transportation Agency, 480 U. S., at 627 (legality of employer's
Affirmative Action Plan to be assessed according to criteria announced in
Weber).  Neither decision prompted an adverse congressional response.
    Although there have been those who have argued that congressional
inaction cannot be seen as an endorsement of this Court's interpretations,
see, e. g., Johnson v. Transportation Agency, 480 U. S., at 671-672
(Scalia, J., dissenting); Patterson v. McLean Credit Union, 491 U. S. 164,
175, n. 1 (1989), that charge has been answered by the observation that
"when Congress has been displeased with [the Court's] interpretation  . . .
, it has not hesitated to amend the statute to tell us so. . . .  Surely,
it is appropriate to find some probative value in such radically different
congressional reactions to this Court's interpretations . . . ."  Johnson
v. Transportation Agency, 480 U. S., at 629-630, n. 7; see Patterson v.
McLean Credit Union, 491 U. S., at 200 (Brennan, J., concurring in judgment
in part and dissenting in part) ("Where our prior interpretation of
congressional intent was plausible, . . . we have often taken Congress'
subsequent inaction as probative to varying degrees, depending upon the
circumstances, of its acquiescence").  Since Congress has had an
opportunity, albeit brief, to correct our broad reading of attorney's fees
in Jenkins if it thought that we had misapprehended its purpose, the Court
has no reason to change its approach to the fee-shifting provision of MDRV
1988, as the majority does today.

12
    See Pregnancy Discrimination Act of 1978, Pub. L. 95-555, 92 Stat.
2076, 42 U. S. C. MDRV 2000e(k) (overturning General Electric Co. v.
Gilbert, 429 U. S. 125 (1976)).

13
    Immigration Reform and Control Act of 1986, Pub. L. 99-603, Sec.
315(b), 100 Stat. 3359 (1986) ("An alien shall not be considered to have
failed to maintain continuous physical presence in the United States . . .
if the absence from the United States was brief, casual and innocent and
did not meaningfully interrupt the continuous physical presence").

14
    See Grove City College v. Bell, 465 U. S. 555, 579 (1984) (Stevens, J.,
concurring in part and concurring in result) (Court should refrain from
deciding issue not in dispute).

15
    See Civil Rights Restoration Act of 1987, Pub. L. 100-259, 102 Stat.
28, 20 U. S. C. MDRV 1687.  Congress was clear in expressing the need for
the subsequent legislation:

"Congress finds that --
 
    "(1) certain aspects of recent decisions and opinions of the Supreme
Court have unduly narrowed or cast doubt upon the broad application of
title IX of the Education Amendments of 1972  . . . ; and
    "(2) legislative action is necessary to restore prior consistent and
longstanding executive branch interpretation and broad, institution-wide
application of those laws as previously administered."  20 U. S. C. MDRV
1687 note.

16
    See H. R. Conf. Rep. No. 101-856, p. 1 (1990) (Civil Rights Act of
1990).  Again, Congress was blunt about its purposes:

"The purposes of this Act are to  --
    "(1) respond to the Supreme Court's recent decisions by restoring the
civil rights protections that were dramatically limited by those decisions;
and
    "(2) strengthen existing protections and remedies available under
Federal civil rights laws to provide more effective deterrence and adequate
compensation for victims of discrimination."  Ibid.

The fact that the President vetoed the legislation does not undermine the
conclusion that Congress viewed the Court's decisions as incorrect
interpretations of the relevant statutes.

17
    See Pub. L. 100-690, MDRV 7603, 102 Stat. 4508, 18 U. S. C. MDRV 1346
("[T]he term `scheme or artifice to defraud' includes a scheme or artifice
to deprive another of the intangible right of honest services").

18
    Smith v. Robinson, 468 U. S. 992, 1031 (1984) (Brennan, J.,
dissenting).

19
    Seventy years ago, Justice Cardozo warned of the dangers of literal
reading, whether of precedents or statutes:

"[Some judges'] notion of their duty is to match the colors of the case at
hand against the colors of many sample cases spread out upon their desk.
The sample nearest in shade supplies the applicable rule.  But, of course,
no system of living law can be evolved by such a process, and no judge of a
high court, worthy of his office, views the function of his place so
narrowly.  If that were all there was to our calling, there would be little
of intellectual interest about it.  The man who had the best card index of
the cases would also be the wisest judge.  It is when the colors do not
match, when the references in the index fail, when there is no decisive
precedent, that the serious business of the judge begins."  B. Cardozo, The
Nature of the Judicial Process 20-21 (1921).
