West Virginia University Hospitals Inc. v. Casey/Dissent Stevens

by John Paul Stevens

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 1970's, 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 88-92, 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. § 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 fee-shifting 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 § 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. § 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 fee-shifting context is highlighted by THE CHIEF JUSTICE's contrasting view in Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), in which he argued that paralegal and law clerk fees could not even be awarded as "costs" under 28 U.S.C. § 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 § 1988, are nonetheless recoverable at actual cost under that statute. The language of § 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. § 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 [107 S.Ct. 2494, 96 L.Ed.2d 385] (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." 491 U.S., at 297-298, 109 S.Ct., at 2476.

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 § 1920, nor were they part of an "attorney's fee" reimbursable under § 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 § 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, 109 S.Ct., at 2470. 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, 109 S.Ct., at 2471. 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, 109 S.Ct., at 2471, 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. § 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 § 1988.

The Senate Report on the Civil Rights Attorney's Fees Awards Act of 1976 explained that the purpose of the proposed amendment to 42 U.S.C. § 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, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), and to achieve consistency in our civil rights laws." ^[7] S.Rep. No. 94-1011, p. 1 (1976), 1976 U.S.Code Cong. & Admin.News 5909. 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, 1976 U.S.Code Cong. & Admin.News 5910 (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, 1976 U.S.Code Cong. & Admin.News 5913.

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, 93d Cong., 1st Sess., pt. 3, pp. 888-1024, 1060-1062 (1973) (hereinafter Senate Hearings). See S.Rep. No. 94-1011, at 4, n. 3. 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 § 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 fee-shifting 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 pre-Alyeska 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 § 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. § 1983.

This Court's determination today that petitioner must assume the cost of $104,133 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, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (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), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913." 491 U.S., at 286, 109 S.Ct., at 2470. 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 Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), we rejected a "mechanical construction," id., at 418, 98 S.Ct., at 699, of the fee-shifting provision in § 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, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), was repudiated by the 95th Congress; ^[12] that its literal reading of the "continuous physical presence" requirement in § 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, 104 S.Ct. 584, 78 L.Ed.2d 401 (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, 104 S.Ct. 1211, 79 L.Ed.2d 516 (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, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (reformulating order of proof and weight of parties' burdens in disparate-impact cases), and Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (limiting scope of 42 U.S.C. § 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, 107 S.Ct. 2875, 97 L.Ed.2d 292 (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 dissenters' preference for a "better" statute, ante, at 101. 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 § 1988, has correctly interpreted the will of Congress with respect to the issue it has resolved today.

I respectfully dissent.

Notes

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. § 1920; see also Fed.Rule Civ.Proc. 54(d).
4. Quoted in pertinent part ante, at 86.
5. App. to Pet. for Cert. C-2; App. 117.
6. The expert witnesses here played a pivotal role in their nontestimonial, 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, 95 S.Ct. 1612, 44 L.Ed.2d 141 (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, 95 S.Ct., at 1628, and that it would be "inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation. . . ." Id., at 247, 95 S.Ct., at 1616.
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, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); La Raza Unida v. Volpe, 57 F.R.D. 94 (ND Cal.,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, 95 S.Ct. 1351, 43 L.Ed.2d 439 (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., 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, pt. 3, 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, 254-255, 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, pp. 1-2, 3-4, 273 (addressing question whether coal miners were receiving adequate legal coverage); id., pt. 2, at 466, 470-471, 505-509, 515 (addressing question whether veterans were denied legal assistance by $10 contingent fee); id., pt. 3, at 789, 791-796, 808-810 (Indians' access to lawyers); id., pt. 3, 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, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), and Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (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, 99 S.Ct., at 2726 (Court rejected "literal construction of §§ 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, 107 S.Ct., at 1449 (legality of employer's affirmative action plan to be assessed according to criteria announced in Weber ). Neither decision prompted an adverse congressional response.
12. See Pregnancy Discrimination Act of 1978, Pub.L. 95-555, 92 Stat. 2076, 42 U.S.C. § 2000e(k) (overturning General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976)).
13. Immigration Reform and Control Act of 1986, Pub.L. 99-603, § 315(b), 100 Stat. 3440 ("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., at 579, 104 S.Ct., at 1224 (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. § 1687. Congress was clear in expressing the need for the subsequent legislation:
16. See H.R.Conf.Rep. No. 101-856, p. 1 (1990) (Civil Rights Act of 1990). Again, Congress was blunt about its purposes:
17. See Pub.L. 100-690, § 7603, 102 Stat. 4508, 18 U.S.C. § 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, 104 S.Ct. 3457, 3478, 82 L.Ed.2d 746 (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." The Nature of the Judicial Process, at 20-21.