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. Common, 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 fee-shifting provisions similar to 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 Clay- ton Act, 38 Stat. 731, as amended, 15 U.S.C. 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, 586- 587 (CA10 1961) (accountant's fees); Twentieth Century Fox Film Co. v. Goldwyn, 328 F. 2d 190, 223-224 (CA9 1964) (ac- counting 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 Prod- ucts Co. v. Forster Mfg. Co., 297 F. Supp. 924, 930 (Me.) (ex- pert 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 other- wise. Also instructive is pre-1976 practice under the federal patent laws, which provided, 35 U.S.C. 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 pat- ent 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. 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. 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. [n.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 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 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 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 1988 should be read as a reversal of Alyeska in all respects.

By its plain language and as unanimously construed in the courts, 1988 is both broader and narrower than the pre-Alyeska regime. Before Alyeska, civil rights plaintiffs could recover fees pursuant to the private attorney general doc- trine 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, 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. 4321 et seq. Since it is clear that, in many respects, 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. Next Page ->



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