89-994 -- DISSENT VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, page 8

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" [n.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 un- fulfilled 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 dissenter's preference for a "better" statute, ante, at 17. 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 [n.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 Cited in full ante, at 2.

5 App. to Pet. for Cert. C-2; App. 117.

6 The expert witnesses here played a pivotal role in their non-testimonial, 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 (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, and that it would be "inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation . . . ." Id., at 247.

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 (1974); La Raza Unida v. Volpe, No. 71-1166 (ND Cal., Oct. 19, 1972), reprinted in Senate Hearings, pt. 3, pp. 1060, 1062, (expert witness fees allowed be- cause experts' testimony was "helpful to the court"); Pyramid Lake Paiute Tribe of Indians v. Morton, 360 F. Supp. 669, 672 (DC 1973) ("The plain- tiff'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 (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., pp. 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, pts. 3, 4, 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, 254-55, 292, 328; see also id., at 106-111, 343-345, 347-349. For ex- ample, 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, 3, pp. 1-2, 3-4, 273 (addressing question whether coal miners were receiving adequate legal coverage); id., at 466, 470-471, 505-509, 515 (addressing question whether veterans were denied legal assistance by $10 contingent fee); id., at 789, 791-796, 808-810 (Indians' access to lawyers); id., 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 (1979), and Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (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 (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 (legality of employer's Affirmative Action Plan to be assessed according to criteria announced in Weber). Neither decision prompted an adverse congressional response. Next Page ->