89-994 -- DISSENT VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, page 7

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.

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. 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." [n.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 Sub-committee 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 Hear- ings). 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. [n.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 "devas- tating 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 writ- ten 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 inter- est litigation. [n.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, [n.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 as- sume 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 com- pensatory," 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 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. [n.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; [n.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 (1984), was rebuffed by the 99th Congress; [n.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, [n.14] see Grove City College v. Bell, 465 U.S. 555 (1984), was rejected by the 100th Congress; [n.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 disparate- impact cases), and Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (limiting scope of 42 U.S.C. 1981 to the making and enforcement of contracts) was overwhelmingly rejected by the 101st Congress, [n.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. [n.17] Next Page ->