Antonin Scalia

“ Again, every court to consider the matter as of 1976 thought that this provision conveyed no authority to shift expert fees. Specialty Equipment & Machinery Corp. v. Zell Motor Car Co., 193 F.2d 515, 521 (CA4 1952) ("Congress having dealt with the subject of costs in patent cases and having authorized the taxation of reasonable attorneys fees without making any provision with respect to . . . fees of expert witnesses must presumably have intended that they be not taxed") ”

“ As to the testimonial services of the hospital's experts, therefore, Crawford Fitting plainly requires, as a prerequisite to reimbursement, the identification of "explicit statutory authority." WVUH argues, however, that some of the expert fees it incurred in this case were unrelated to expert testimony, and that as to those fees the § 1821 (b) limits, which apply only to witnesses in attendance at trial, are of no consequence. ”

“ Thus, the argument runs, the 94th Congress simply forgot; it is our duty to ask how they would have decided had they actually considered the question. See Friedrich v. Chicago, 888 F.2d 511, 514 (CA7 1989) (awarding expert fees under § 1988 because a court should "complete . . . the statute by reading it to bring about the end that the legislators would have specified had they thought about it more clearly") . ”

“ See Judicial Improvements Act of 1990, Pub.L. 101-650, § 314.↑ Justice STEVENS suggests that the expert fees requested here might be part of the "costs" allowed by § 1988 even if they are not part of the "attorney's fee." We are aware of no authority to support the counter-intuitive assertion that " [t] he term 'costs' has a different and broader meaning in fee-shifting statutes than it has in the cost statutes that apply to ordinary litigation," post, at 104. ”

“ Before Alyeska, civil rights plaintiffs could recover fees pursuant to the private attorney general doctrine 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, supra, 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. ”

“ 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 Substances 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." ”

“ 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.
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, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) . As mentioned above, prior to 1975 many courts awarded expert fees and attorney's fees in certain circumstances pursuant to their equitable discretion. ”

“ Where that contains a phrase that is unambiguous-that has a clearly accepted meaning in both legislative and judicial practice-we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process. ”

“ The District Court subsequently awarded fees pursuant to 42 U.S.C. § 1988, [1] including over $100,000 in fees attributable to expert services. The District Court found these services to have been "essential" to presentation of the case-a finding not disputed by respondents.
Respondents appealed both the judgment on the merits and the fee award. The Court of Appeals for the Third Circuit affirmed as to the former, but reversed as to the expert fees, disallowing them except to the extent that they fell within the $30-per-day fees for witnesses prescribed by 28 U.S.C. § 1821. ”

“ The hospital is often used by Medicaid recipients living in southwestern Pennsylvania. In January 1986, Pennsylvania's Department of Public Welfare notified WVUH of new Medicaid reimbursement schedules for services provided to Pennsylvania residents by the Morgantown hospital. ”

“ 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" ) . ”