# West Virginia University Hospitals Inc. v. Casey/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Marshall Stevens
This case presents the question whether fees for services rendered by experts in civil rights litigation may be shifted to the losing party pursuant to 42 U.S.C. § 1988, which permits the award of "a reasonable attorney's fee." I
Petitioner West Virginia University Hospitals, Inc. (WVUH), operates a hospital in Morgantown, W.Va., near the Pennsylvania border. 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. In administrative proceedings, WVUH unsuccessfully objected to the new reimbursement rates on both federal statutory and federal constitutional grounds. After exhausting administrative remedies, WVUH filed suit in Federal District Court under 42 U.S.C. § 1983. Named as defendants (respondents here) were Pennsylvania Governor Robert Casey and various other Pennsylvania officials.
Counsel for WVUH employed Coopers & Lybrand, a national accounting firm, and three doctors specializing in hospital finance to assist in the preparation of the lawsuit and to testify at trial. WVUH prevailed at trial in May 1988. The District Court subsequently awarded fees pursuant to 42 U.S.C. § 1988, 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. 885 F.2d 11 (1989). WVUH petitioned this Court for review of that disallowance; we granted certiorari, 494 U.S. 1003, 110 S.Ct. 1294, 108 L.Ed.2d 472 (1990).
"A judge or clerk of any court of the United States may tax as costs the following:
"(1) Fees of the clerk and marshal;
"(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
"(3) Fees and disbursements for printing and witnesses;
"(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
"(5) Docket fees under section 1923 of this title;
"(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title."
Title 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. . . ." In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (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, 107 S.Ct., at 2496. "We will not lightly infer that Congress has repealed §§ 1920 and 1821, either through [Federal Rule of Civil Procedure] 54(d) or any other provision not referring explicitly to witness fees." Id., at 445, 107 S.Ct., at 2499.
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. We agree with that, but there remains applicable the limitation of § 1920. Crawford Fitting said that we would not lightly find an implied repeal of § 1821 or of § 1920, which it held to be an express limitation upon the types of costs which, absent other authority, may be shifted by federal courts. 482 U.S., at 441, 107 S.Ct., at 2497. None of the categories of expenses listed in § 1920 can reasonably be read to include fees for services rendered by an expert employed by a party in a nontestimonial advisory capacity. The question before us, then, is-with regard to both testimonial and nontestimonial expert fees-whether the term "attorney's fee" in § 1988 provides the "explicit statutory authority" required by Crawford Fitting. 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 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." (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.
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 Criminal Justice Act of 1964, 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 another 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 1973, 45 U.S.C. §§ 726(f)(9) ("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").
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.
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 variousex penses: "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 & Light Corp., 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 sub nom. SEC v. Drexel & Co., 348 U.S. 341, 75 S.Ct. 386, 99 L.Ed. 376 (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).
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 Corp. 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. Comm'n, 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. WVUH 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 Clayton 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 Corp. v. Nisley, 300 F.2d 561, 586-587 (CA10 1961) (accountant's fees); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 223-224 (CA9 1964) (accounting fees); Advance Business Systems & Supply Co. v. SCM Corp., 287 F.Supp. 143, 164 (Md.1968) (accountant's fees), aff'd, 415 F.2d 55 (CA4 1969); Farmington Dowel Products Co. v. Forster Mfg. Co., 297 F.Supp. 924, 930 (Me.) (expert 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, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Ott v. Speedwriting Publishing Co., 518 F.2d 1143, 1149 (CA6 1975) (expert witness fees); see also Brookside Theater Corp. v. Twentieth Century-Fox Film Corp., 11 F.R.D. 259, 267 (WD Mo.1951) (expert witness fees). No court had held otherwise. 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 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"); accord, Chromalloy American Corp. v. Alloy Surfaces Co., 353 F.Supp. 429, 431, n. 1, 433 (Del.1973); ESCO Corp. 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 Corp., 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 FEP Cases 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 FEP Cases, 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 of Civil Procedure 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, 94 S.Ct. 2006, 40 L.Ed.2d 476 (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. 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. 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, 95 S.Ct., at 1627. 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. 94-1011, pp. 4, 6 (1976). 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 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. 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.
WVUH further argues that the congressional purpose in enacting § 1988 must prevail over the ordinary meaning of the statutory terms. It quotes, for example, the House Committee Report to the effect that "the judicial remedy [must be] full and complete," H.R.Rep. No. 94-1558, p. 1 (1976), and the Senate Committee Report to the effect that "[c]itizens must have the opportunity to recover what it costs them to vindicate [civil] rights in court," S.Rep. No. 94-1011, supra, at 2. As we have observed before, however, the purpose of a statute includes not only what it sets out to change, but also what it resolves to leave alone. See Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 1393-1394, 94 L.Ed.2d 533 (1987). The best evidence of that purpose is the statutory text adopted by both Houses of Congress and submitted to the President. 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. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) ("[W]here, as here, the statute's language is plain, 'the sole function of the court is to enforce it according to its terms' "), quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). Congress could easily have shifted "attorney's fees and expert witness fees," or "reasonable litigation expenses," as it did in contemporaneous statutes; it chose instead to enact more restrictive language, and we are bound by that restriction.
WVUH asserts that we have previously been guided by the "broad remedial purposes" of § 1988, rather than its text, in a context resolving an "analogous issue": In Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, ----, 105 L.Ed.2d 229 (1989), we concluded that § 1988 permitted separately billed paralegal and law-clerk time to be charged to the losing party. The trouble with this argument is that Jenkins did not involve an "analogous issue," insofar as the relevant considerations are concerned. The issue there was not, as WVUH contends, whether we would permit our perception of the "policy" of the statute to overcome its "plain language." It was not remotely plain in Jenkins that the phrase "attorney's fee" did not include charges for law-clerk and paralegal services. Such services, like the services of "secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product," id., at 285, 109 S.Ct., at 2470, had traditionally been included in calculation of the lawyers' hourly rates. Only recently had there arisen "the 'increasingly widespread custom of separately billing for [such] services,' " id., at 286, 109 S.Ct., at 2470-2471 (quoting from Ramos v. Lamm, 713 F.2d 546, 558 (CA10 1983)). By contrast, there has never been, to our knowledge, a practice of including the cost of expert services within attorneys' hourly rates. There was also no record in Jenkins-as there is a lengthy record here-of statutory usage that recognizes a distinction between the charges at issue and attorney's fees. We do not know of a single statute that shifts clerk or paralegal fees separately; and even those, such as the EAJA, which comprehensively define the assessable "litigation costs" make no separate mention of clerks or paralegals. In other words, Jenkins involved a respect in which the term "attorney's fees" (giving the losing argument the benefit of the doubt) was genuinely ambiguous; and we resolved that ambiguity not by invoking some policy that supersedes the text of the statute, but by concluding that charges of this sort had traditionally been included in attorney's fees and that separate billing should make no difference. The term's application to expert fees is not ambiguous; and if it were the means of analysis employed in Jenkins would lead to the conclusion that since such fees have not traditionally been included within the attorney's hourly rate they are not attorney's fees.
WVUH's last contention is that, even if Congress plainly did not include expert fees in the fee-shifting provisions of § 1988, it would have done so had it thought about it. Most of the pre-§ 1988 statutes that explicitly shifted expert fees dealt with environmental litigation, where the necessity of expert advice was readily apparent; and when Congress later enacted the EAJA, the federal counterpart of § 1988, it explicitly included expert fees. 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").
This argument profoundly mistakes our role. Where a statutory term presented to us for the first time is ambiguous, we construe it to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law. See 2 J. Sutherland, Statutory Construction § 5201 (3d F. Horack ed.1943). We do so not because that precise accommodative meaning is what the lawmakers must have had in mind (how could an earlier Congress know what a later Congress would enact? ), but because it is our role to make sense rather than nonsense out of the corpus juris. But where, as here, the meaning of the term prevents such accommodation, it is not our function to eliminate clearly expressed inconsistency of policy and to treat alike subjects that different Congresses have chosen to treat differently. The facile attribution of congressional "forgetfulness" cannot justify such a usurpation. Where what is at issue is not a contradictory disposition within the same enactment, but merely a difference between the more parsimonious policy of an earlier enactment and the more generous policy of a later one, there is no more basis for saying that the earlier Congress forgot than for saying that the earlier Congress felt differently. In such circumstances, the attribution of forgetfulness rests in reality upon the judge's assessment that the later statute contains the better disposition. But that is not for judges to prescribe. We thus reject this last argument for the same reason that Justice Brandeis, writing for the Court, once rejected a similar (though less explicit) argument by the United States:
"[The statute's] language is plain and unambiguous. What the Government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function." Iselin v. United States, 270 U.S. 245, 250-251, 46 S.Ct. 248, 250, 70 L.Ed. 566 (1926).
For the foregoing reasons, we conclude that § 1988 conveys no authority to shift expert fees. When experts appear at trial, they are of course eligible for the fee provided by § 1920 and § 1821-which was allowed in the present case by the Court of Appeals.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice MARSHALL, dissenting.

## Notes

* ↑ Title 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."
* ↑ 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.
* ↑ 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. In Crawford Fitting we held that the word "costs" in Federal Rule of Civil Procedure 54(d) is to be read in harmony with the word "costs" in 28 U.S.C. § 1920, see 482 U.S., at 441, 445, 107 S.Ct., at 2497, 2499, and we think the same is true of the word "costs" in § 1988. We likewise see nothing to support Justice STEVENS' speculation that the court below or the parties viewed certain disbursements by the hospital's attorneys as "costs" within the meaning of the statute. Rather, it is likely that these disbursements (billed directly to the client) were thought subsumed within the phrase "attorney's fee." See, e.g., Northcross v. Board of Ed. of Memphis Schools, 611 F.2d 624, 639 (CA6 1979) ("reasonable out-of-pocket expenses incurred by the attorney" included in § 1988 "attorney's fee" award).
* ↑ 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"); Federal Trade Commission 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 Amendments of 1980, 16 U.S.C. § 470w-4 ("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 Federal Energy Regulatory 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 and Reclamation Act of 1977, 30 U.S.C. § 1270(d) ("costs of litigation (including attorney and expert witness fees"); Deep Seabed Hard Mineral Resources Act, 30 U.S.C. § 1427(c) (enacted 1980) ("costs of litigation including reasonable attorney and expert witness fees"); Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. § 1734(a)(4) ("costs of litigation including reasonable attorney and expert witness fees"); Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, 33 U.S.C. § 928(d)
* ↑ 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. 99-687, p. 5 (1986) (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.
* ↑ 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."
* ↑ 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 116. 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse