89-994 -- OPINION VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, page 2

28 U.S.C. 1821(b) limits the witness fees authorized by 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. . . ." [n.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 1821(b), absent contract or explicit statutory authority to the contrary." Id., at 439. "We will not lightly infer that Congress has repealed 1920 and 1821, either through [Fed. Rule Civ. Proc.] 54(d) or any other pro- vision not referring explicitly to witness fees." Id., at 445.

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 1988, refer only to "attorney's fees," see, e. g., Civil Rights Act of 1964, 42 U.S.C. 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 1988, Congress passed those provisions of the Toxic Sub- stances Control Act, 15 U.S.C. 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 Also in 1976, Congress amended the Consumer Product Safety Act, 15 U.S.C. 2060(c), 2072(a), 2073, which as originally enacted in 1972 shifted to the losing party "cost[s] of suit, including a reasonable attorney's fee," see 86 Stat. 1226.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, 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. 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. 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. 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. 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 1988 for violation of federal rights by federal employees, states that " `fees and other expenses' [as shifted by 2412(d)(1)(A)] includes the reasonable expenses of expert witnesses . . . and reasonable attorney fees." 28 U.S.C. 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. [n.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. 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, 3006A(d), already directs that appointed defense counsel be paid a designated 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 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. 2412(d)(2)(A) (emphasis added). If the reasonable cost of a "study" or "analysis" -- which is but an- other 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. 504(b)(1)(A) (added 1980), and the Tax Equity and Fiscal Responsibility Act of 1982, 26 U.S.C. 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. 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. 854(g) ("costs and expenses (including fees of accountants, experts, and attorneys) actually and reasonably incurred"). [n.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 inexplicable 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 1988 allowed the recovery of expert fees. We disagree with these assertions. The judicial background against which Congress enacted 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 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 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). Next Page ->