89-994 -- OPINION VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, page 5

Notes
1 42 U.S.C. 1988 provides in relevant part: "In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

2 Section 1821(b) has since been amended to increase the allowable per diem from $30 to $40. See Judicial Improvements Act of 1990, Pub. L. 101-650, 314.

4 In addition to the provisions discussed in the text, see Administrative Procedure Act, 5 U.S.C. 504(b)(1)(A) (added 1980) ("reasonable expenses of expert witnesses . . . and reasonable attorney or agent fees"); Unfair Advertising Act, 15 U.S.C. 57a(h)(1) (added 1975) ("reasonable attorneys' fees, expert witness fees and other costs of participating in a rulemaking proceeding"); Petroleum Marketing Practices Act, 15 U.S.C. 2805(d)(1)(c), 2805(d)(3) ("reasonable attorney and expert witness fees"); National Historic Preservation Act, 16 U.S.C. 470w -- 4 (1980 amendments) ("attorneys' fees, expert witness fees, and other costs of participating in such action"); Federal Power Act, 16 U.S.C. 825q -- 1(b)(2) (added 1978) ("reasonable attorney's fees, expert witness fees and other costs of intervening or participating in any proceeding [before the commission]"); Tax Equity and Fiscal Responsibility Act of 1982, 26 U.S.C. 7430(c)(1) ("reasonable expenses of expert witnesses . . . and reasonable fees paid . . . for the services of attorneys"); Surface Mining Control Act, 30 U.S.C. 1270(d) (enacted 1977) ("costs of litigation (including attorney and expert witness fees"); Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1427(c) (enacted 1980) (same); Oil and Gas Royalty Management Act of 1982, 30 U.S.C. 1734(a)(4) ("costs of litigation including reason- able attorney and expert witness fees"); Longshoremen and Harbor Workers' Compensation Act Amendments of 1972, 33 U.S.C. 928(d) ("In cases where an attorney's fee is awarded . . . there may be further assessed . . . as costs, fees and mileage for necessary witnesses"); Federal Water Pollution Control Act Amendments of 1972, and 1987 Amendment, 33 U.S.C. 1365(d), 1369(b)(3) ("costs of litigation (including reasonable attorney and expert witness fees)"); Oil Pollution Act of 1990, 33 U. S. C. A. 2706(g) (same); Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415(g)(4) (same); Deepwater Port Act of 1974, 33 U.S.C. 1515(d) (same); Act to Prevent Pollution from Ships, 33 U.S.C. 1910(d) (enacted 1980) (same); Safe Drinking Water Act, 42 U.S.C. 300j -- 8(d) (enacted 1974) (same); National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa -- 31(c) (same); Noise Control Act of 1972, 42 U.S.C. 4911(d) (same); Energy Reorganization Act of 1974, 42 U.S.C. 5851(e)(2) (same); Energy Policy and Conservation Act, 42 U.S.C. 6305(d) (enacted 1975) (same); Clean Air Amendments of 1970, 42 U.S.C. 7604(d), 7607(f), 7413(b) (same) and 42 U.S.C. 7622(b)(2) (B) (1977 amendments) ("all costs and expenses (including attorneys' and expert witness fees) reasonably incurred");

5 WVUH cites a House Conference Committee report from a statute passed in 1986, stating "The conferees intend that the term `attorneys' fees as part of the costs' include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the . . . case." H. R. Conf. Rep. No. 687, 99th Cong., 2d sess. 5, reprinted in 1986 U. S. Code Cong. & Admin. News 1798, 1808 (discussing the Handicapped Children's Protection Act of 1986, 20 U.S.C. 1415(e)(4)(B)). In our view this undercuts rather than supports WVUH's position: The specification would have been quite unnecessary if the ordinary meaning of the term included those elements. The statement is an apparent effort to depart from ordinary meaning and to define a term of art.

6 The hospital also cites Fairley v. Patterson, 493 F. 2d 598 (CA5 1974), and Norris v. Green, 317 F. Supp. 100, 102 (ND Ala. 1965). But in Fairley the court, remanding for reconsideration of the fee award, was explicitly equivocal as to whether "court costs" other than the ones normally assessable under 1920 were awardable under the statute in question (the Voting Rights Act of 1965, whose fee-shifting provision parallels 1988), or rather "should have to meet the harder discretionary standards" applicable to the award of fees pursuant to equitable discretion. 493 F. 2d, at 606, n. 11. In any event, Fairley did not consider expert witnesses explicitly, and there is no indication that the court necessarily included expert fees within its (undefined) category of "court costs."

As for Norris, that case awarded fees pursuant to 29 U.S.C. 501(b), which is not parallel to 1988, since it authorizes the shifting of "fees of counsel . . . and . . . expenses necessarily paid or incurred" (emphasis added). There is no indication in the opinion that the court thought the expert fees were part of the former rather than the latter -- and the court discussed them separately from attorney's fees.

7 WVUH at least asks us to guess the preferences of the enacting Congress. Justice Stevens apparently believes our role is to guess the desires of the present Congress, or of Congresses yet to be. "Only time will tell," he says, "whether the Court, with its literal reading of 1988, has correctly interpreted the will of Congress," post, at 14. The implication is that today's holding will be proved wrong if Congress amends the law to conform with his dissent. We think not. The "will of Congress" we look to is not a will evolving from Session to Session, but a will expressed and fixed in a particular enactment. Otherwise, we would speak not of "interpreting" the law but of "intuiting" or "predicting" it. Our role is to say what the law, as hitherto enacted, is; not to forecast what the law, as amended, will be. Next Page ->