89-994 -- OPINION VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, page 4

WVUH further argues that the congressional purpose in enacting 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 be- fore, 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, 525- 526 (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 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 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 1988, it would have done so had it thought about it. Most of the pre-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 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 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 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). [n.7]

* * * * * For the foregoing reasons, we conclude that 1988 conveys no authority to shift expert fees. When experts appear at trial, they are of course eligible for the fee provided by 1920 and 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.

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