Champion International Corporation v. International Woodworkers of America Brief for the NAACP Legal Defense and Educational Fund et al. as Amici Curiae in Support of Respondents

    No. 86-328

I n th e

i^ttprrmr (ta rt nf tbr Ittitrti States
O otobee T eem , 1986

C h am pio n  I nternational  C orporation,

Y.
Petitioner,

I n ternational  W oodworkers of A merica, AFL-CIO, 
and  Its L ocal 5-376,

Respondents.

ON w rit  of certiorari to t h e  united  states 
court of appeals for th e  f if t h  circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, THE AMERICAN CIVIL LIBERTIES UNION, AND 

THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

S teven  L. W inter
University of Miami 

School of Law 
P.O. Box 248087 
Coral Gables, Fla. 33124

J u liu s  L eY onne C hambers 
C harles S teph en  R alston* 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013

J ohn  A. P owell 
American Civil Liberties Union 

Foundation
132 West 43rd Street 
New York, New York 10036

J am es R obertson 
H arold R. T yler , Jr. 

Co-Chairmen
N orman  R edlich , Trustee 
W illiam  Ij. R obinson 
R ichard T. S eymour 
Lawyers’ Committee for Civil 

Rights Under Law 
1400 ‘Eye’ Street, NW. 
Washington, D.C. 20005

A n tonia  H ernandez 
E. R ichard L arson 
Mexican American Legal Defense 

and Educational Fund 
634 South Spring Street 
Los Angeles, CA 90014

Attorneys for Amici Curiae 
*Counsel of Record



QUESTION PRESENTED
Can a prevailing civil rights 

defendant recover expert witness fees as 
part of costs absent adherence to the 
standards of Christiansbura Garment Co.
v..__ EEOC, 434 U.S. 412 (1978), when
Congress deliberately incorporated such 
expenses in the fee shifting scheme of 
the civil rights acts?

i



TABLE OF CONTENTS
Question Presented . . . . . . . .  i
Table of Contents . . . . . . . . . .  ii
Table of Authorities.............. iv
Interest of Amici . . . . . . . . . .  1
Summary of Argument . . . . . . . . .  5
ARGUMENT

I. CONGRESS INCLUDED EXPERT 
WITNESS FEES AS PART 
OF ATTORNEYS' FEES 
UNDER THE CIVIL RIGHTO 
STATUTES AND, THEREFORE,
THE SPECIFIC STANDARDS 
GOVERNING FEE SHIFTING 
UNDER THOSE STATUTES 
MUST CONTROL..........  11

aHH CONGRESS WAS SPECIFICALLY 
AWARE OF AND LEGISLATED TO 
ALLEVIATE THE SIGNIFICANT 
PROBLEM OF EXPERT WITNESS 
FEES IN ENACTING THE CIVIL 
RIGHTS ATTORNEY'S FEES 
AWARDS ACT OF 1976 . . . 15

III. CONGRESS SPECIFICALLY 
INCORPORATED THE PREEXIS­
TING CASE LAW THAT INCLUDED 
EXPERT WITNESS FEES AS PART 
OF ATTORNEYS' FEES AND 
COSTS IN ENACTING SECTION 
1988 . . . . . . . . . .  34

ii



IV. TO EXCLUDE EXPERT WITNESS 
FEES FROM THE PURVIEW OF 
SECTION 1988 WOULD SUBVERT 
THE VERY PURPOSE OF THE 
ACT BY MAKING IT EFFECTIVELY 
IMPOSSIBLE FOR CIVIL RIGHTS 
PLAINTIFFS TO BRING 
MERITORIOUS CLAIMS THAT 
INVOLVED COMPLEX OR TECHNICAL 
MATTERS, CONTRARY TO 
CONGRESSIONAL INTENT . . .  49

CONCLUSION............ ............62

iii



TABLE OF AUTHORITIES
Cases: Page
Albemarle Paper Co. v. Moody,

444 U.S. 405 (1975)........ 44,60
Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S.
240 (1975) . ................. passim

Bachman v. Pertschuk, 19 E.P.D.
*|9044 at 6508 (D.D.C.
1979)......................... 62

Baker v. City of Detroit, 483 F. Supp.
919 (E.D. Mich. 1979) ..........  61

Bazemore v. Friday, 478 U.S. ___,
92 L. Ed. 2d 315 (1986)    61

Blum v. Stenson, 465 U.S. 886
(1984) . . . . . . . . . . .  4,46,56

Bradley v. School Bd. of City of
Richmond, 416 U.S. 696 (1974) . . .  4

Bradley v. School Bd. of City of 
Richmond, 53 F.R.D. 28 (E.D.
Va. 1971)    32,59

Bryan v. Koch, 627 F.2d 612 (2d
Cir. 1980) . . . . . . . . . . . .  59

Cannon v. University of Chicago, 441
U.S. 677 (1979).............36,37,48

Castaneda v. Partida, 430 U.S.
482 (1977) . . . . .    58

Christiansburg Garment Co. v. EEOC, 434
U.S. 412 (1978) . . 4,7,9,12,13,31,51

iv



4,46,56
City of Riverside v. Rivera, 477

U.S.___, 91 L.Ed.2d 466
(1986) . . ..............

Copper Liquor, Inc. v. Adolph Coors 
Co., 684 F.2d 1087 (5th Cir.
(1982) ........................  49

Crawford Fitting Company v. J. T.
Gibbons, Inc., No. 86-322 . . . .  11

Davis v. County of Los Angeles, 8 E.P.D.
f9444 (C.D. Cal. 1974) . . . 44,45,46

EEOC v. Datapoint, 412 F. Supp. 406
(W.D. Tex. 1976) .    44

Estelle v. Gamble, 429 U.S. 97
(1976) . . . . .    60

Fairley v. Patterson, 493 F.2d 598
(5th Cir. 1974).......... .. . 32,42

Foti v. Immigration and Naturalization
Service, 375 U.S. 217 (1963) . . . 40

Griggs v. Duke Power Co., 401 U.S.
424 (1971)......................  45

Hanrahan v. Hampton, 446 U.S. 754
4 (1980)......................  48

Henkee v. Chicago, St. Paul, M & O
Ry. Co., 284 U.S. 444 (1932) . . 11

Hensley v. Eckerhart, 461 U.S. 424
(1983) . . . . . . . . . . . . .  4,46

Holy Trinity Church v. United States,
143 U.S. 457 (1892) . . . . . .  33,34

Hughes v. Rowe, 449 U.S. 5 (1980) . .12,37
Hutto v. Finney, 437 U.S. 678 (1978) . 4

v



Jackson v. School Bd. of City of 
Lynchburg, Civ. Act. No. 534 
(W.D. Va. April 28, 1970) . . . .  33

Johnson v. Georgia Highway Express 
CO., 488 F.2d 714
(5th Cir. 1974)................  4

Jones v. Diamond, 636 F.2d 1364 (5th 
Cir. (en banc), cert. granted 
sub nom. Ledbetter v. Jones,
452 U.S. 959, amended. 453 U.S.
911, cert, dismissed. 453 U.S.
950 (1981)    43

Jones v. Wittenberg, 330 F. Supp. 707
(N.D. Ohio 1971) . . . . . . . .  33

Keyes v. School District No. 1,
Denver Colo., 439 F. Supp. 393
(D. Colo. 1977)..........  43,47

Lane v. Walker, 307 U.S. 268 (1969) . . 58
La Raza Unida v. Volpe, 57 F.R.D. 94

(N.D. Cal. 1972)..........  21,32,33
Loewen v. Turnipseed, 505 F. Supp.

512 (N.D. Miss. 1981)   43
Maine v. Thiboutot, 448 U.S. 1 (1980). 33
McPherson v. School District #186,

465 F. Supp. 749 (S.D.
111. 1978) . . . . . . . . . . .  43

NAACP V. Button, 371 U.S.415 (1963) . 55
Neeley v. General Electric,90 F.R.D.

627 (N.D. Ga. 1981)..........  43
Newman v. Alabama, 503 F.2d 1320

(5th Cir. 1974) ............. . 60

vi



4Newman v. Piggie Park Enterprises, Inc., 
390 U.S. 400 (1968) ............

Northcross v. Board of Ed., 611 F.2d
624 (6th Cir. 1979) . . . .  43,45,47

O'Bryan v. Saginaw County, Mich.,
No. 79-1297 (6th Cir. Jan. 6,
1981)   43

In re Primus, 436 U.S. 412 (1978) . . 55
Pyramid Lake Pauite Tribe v. Morton,

360 F. Supp. 669 (D.D.C. 1973). 21
Rios v. Enterprise Ass'n Steamfitters 

Local, 400 F. Supp. 993 (S.D.N.Y.
1975), aff'd. 542 F.2d 579 
(2d Cir. 1976)...........   44

Robinson v. Lorillard Corp., 444 F.2d
791 (4th Cir. 1971)...........  45

Sabala v. Western Gillette, Inc., 371 
F. Supp. 385 (S.D. Tex. 1974), 
aff'd in part, rev'd in part on
other grounds. 516 F.2d 1251 
(5th Cir. 1975), rev'd on 
other grounds. 431 U.S.
951 (1977)..................  32,44

Ste. Marie v. Eastern Railroad
Association, 497 F. Supp. 800 
(S.D.N.Y. 1980) ............  47,61

Schwegman Bros. v. Calvert Distillers
Corp., 341 U.S. 384 (1951) . . .  39

Sims v. Amos, 340 F. Supp. 691 
(M.D. Ala.), aff'd. 409 
U.S. 942 (1972) .................  33

Sledge v. J.P. Stevens, 12 E.P.D.
f11,047 (E.D.N.C. 1976) ........  44

vii



Stanford Daily v. Zurcher, 64 F.R.D.
680 (N.D. Cal. 1974)..........  46

Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 (1971) . 59

Swann v. Charlotte-Mecklenburg Board 
of Education, 66 F.R.D. 483 
(W.D.N.C. 1975)   46

Tennessee v. Garner, 471 U.S. ___,
85 L. Ed. 2d 1 (1985)............  60

Thornberry v. Delta Air Lines, 25 
E.P.D. f31,496 (N.D. Cal.
1980)    61

Thornburg v. Gingles, 478 U.S. ,
92 L. Ed. 2d 25 (1986)........  39,58

United States v. Bd. of School 
Comm'rs, 573 F.2d 400 (7th 
Cir.), cert, denied. 439 
U.S. 824 (1978)..........  58

Vasquez v. Hillery, 474 U.S. ___,
88 L. Ed. 2d 598 (1986)..........  58

Welsch v. Likins, 68 F.R.D. 589 (D.
Minn.) aff'd, 525 F.2d 987 (8th 
Cir. 1975)..................... 32

Wheeler v. Durham City Board of 
Education, 585 F.2d 618 
(4th Cir. 1978)................  45

Wright v. McMann, 321 Supp. 127
(N.D.N.Y. 1970)   33,45

Zuber V. Allen, 396 U.S. 168 (1969). 39

viii



Statutes;
Civil Rights Attorney's Fees Award

Act of 1976 .............. passim
42 U.S.C. §1988 ................ passim
Pub. L. No. 94-73 §402 ............  17
Pub. L. No. 96-481 §204a, 94 Stat.

2327 (Oct. 21, 1980) . . . .  24,37
42 U.S.C. §2000e-5(k)   5,14
42 U.S.C. §2412.....................11
Rule 54, F.R. Civ. Proc............ 43
28 U.S.C. 1 8 2 1 ......................43
28 U.S.C. 1920 ....................  43
Other Authorities;
Awarding of Attorneys' Fees. Hearings 
Before the Subcomm. on Courts. Civil 
Liberties & the Administration of Justice 
of the Comm, on the Judiciary, House of 
Representatives. 94th Cong., 1st Sess.
(1975) ..........  21,22,23,24,25,27,28

29,30,35,52
Civil Rights Attorney's Fees Awards Act of 
1976. Source Book: Legislative History.
Committee Print Prepared By the 
Subcommittee on Constitutional Rights of 
the Committee on the Judiciary, United 
States Senate (1976) . . 17,18,31,32,38,

39,40,41,42,51,52

ix



The Effect of Legal Fees on the Adequacy 
of Representation, Hearings Before the 
Subcoxnm. on Representation of Citizen 
Interests of the Comm, on the Judiciary, 
United States Senate, 93 Cong., 1st Sess. 
(1973) . . . . . . . . .  16,20,21,26,30
H. R. Rep. No. 94-1558, 94th Cong.,

2d Sess. (1976) . . 18,31,32,40,50
S. Rep. No. 94-1011, 94th Cong., 2d

Sess. (1976) . . 31,38,45,50,51,57
1975 U.S Code Cong. & Ad

News 774 ....................... 17
1980 U.S. Code Cong. & Ad News 4997 . 37

x



No. 86-328
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1986

CHAMPION INTERNATIONAL CORPORATION,
Petitioner,

v.
INTERNATIONAL WOODWORKERS OF AMERICA, 
AFL-CIO, AND ITS LOCAL 5-376

Respondents.
On Writ of Certiorari to the United 

States Court of Appeals for the 
The Fifth Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., THE LAWYERS 

COMMITTEE FOR CIVIL RIGHTS UNDER LAW, THE 
AMERICAN CIVIL LIBERTIES UNION 

FOUNDATION, AND THE MEXICAN AMERICAN 
LEGAL AND EDUCATIONAL FUND AS AMICI 
CURIAE IN SUPPORT OF RESPONDENTS

Interest of Amici*

* Letters of consent to the filing of 
this brief from counsel for the 
petitioner and the respondents have been 
filed with the Clerk of the Court.



2
The NAACP Legal Defense and 

Educational Fund, Inc. , [LDF] is a 
non-profit corporation, incorporated 
under the laws of the State of New York 
in 1939. It was formed to assist Blacks 
to secure their constitutional rights by 
the prosecution of lawsuits. The charter 
was approved by a New York court, 
authorizing the organization to serve as 
a legal aid society.

The Lawyers' Committee for Civil 
Rights Under Law was organized in 1963 at 
the request of the President of the 
United States to involve private 
attorneys in the national effort to 
assure civil rights to all Americans. 
The Committee has, over the past twenty- 
four years, enlisted the services of well 
over a thousand members of the private 
bar in addressing the legal problems of 
minorities and the poor.



3
The American Civil Liberties Union 

is a non-partisan organization of over 
250,000 members, dedicated to defending 
the fundamental liberties guaranteed in 
the Bill of Rights. Toward that end the 
ACLU has acively represented aggrieved 
plaintiffs before this Court and in the 
lower federal courts. The continuing 
availability of attorneys fees and the 
related costs of complex and important 
constitutional litigation is of crucial 
concern to the ACLU and its continued 
defense of civil liberties.

The Mexican American Legal Defense 
and Educational Fund ("MALDEF") is a 
national c ivil rights organization 
founded in 1967. Its principal objective 
is to secure, through litigation and 
education, the civil rights of Hispanics 
in the United States.

Attorneys for amici have handled



4
cases involving the broad range of civil 
rights litigation. Amici have also 
participated in many of the leading cases 
involving attorneys' fees questions, both 
as counsel and as amici curiae.1 and have 
provided testimony before Congress on the 
need to award fees and costs in civil 
rights cases and on the standards that 
should govern awards.

The issue raised on this appeal 
concerns the standards to be applied in 
awarding costs to successful civil rights 
litigants and will affect the entire

1 E .a .. Newman v. Piggie Park 
Enterprises. Inc.. 390 U.S. 400 (1968) ;
Bradley v. School Board of the City of 
Richmond■ 416 U.S. 696 (1974); Hutto v.
Finney. 437 U.S. 678 (1978) ; Johnson v.
Georgia Highway Express Co.. 488 F.2d 714 
(5 th Cir. 1974); Christiansburg Garment
Co. v. Equal Employment Opportunity 
Comm. . 434 U.S. 412 (1978); Hensley v.
Eckerhart. 461 U.S. 424 (1983); Blum v.
Stenson. 465 U.S. 886 (1984); City of
Riverside v. Rivera. 477 U.S. __ , 91
L.Ed.2d 466 (1986)



5
spectrum of civil rights litigation.

SUMMARY OF ARGUMENT
The district court and the panel of 

the Fifth Circuit correctly ruled that 
petitioner could not recover expert 
witness fees as part of its costs. The 
en banc Court reached the same result, 
but for manifestly the wrong reason. The 
basis of its decision would not only 
cripple the private enforcement of the 
civil rights laws but is also contrary to 
the clear intent of Congress.

This case turns on the application 
of the Civil Rights Attorneys' Fees 
Awards Act of 1976, 42 U.S.C. §1988 [the
Act] and the parallel, provision in Title 
VII of the Civil Rights Act of 1964, 42
U.S.C. § 2 000e-5(k): Whether Congress
included expert witness fees as part of 
"attorneys' fees and costs" in the fee 
shifting scheme of those Acts. The



6
decision in this case will materially 
affect the ability of private litigants 
to vindicate the rights secured by the 
broad range of civil rights legislation. 
If plaintiffs in civil rights cases 
cannot recoup the substantial expenses 
incurred in retaining necessary expert 
witnesses, they will be economically 
barred from effectively pursuing their 
statutory and constitutional rights. 
Conversely, if unsuccessful civil rights 
plaintiffs can be saddled with their 
opponents' often substantial expert 
witness fees, then good faith litigation 
will be deterred rather than encouraged 
as Congress intended.

A careful analysis of the 
legislative history of the Act reveals 
that Congress was aware that the economic 
barriers to private enforcement of these 
rights included not just the inability of



7
litigants to pay attorneys' fees, but 
also the other costs of efficacious 
litigation, including the significant and 
sometimes prohibitive expense of expert 
testimony. Congress was concerned about 
the disparity in litigating strength 
between civil rights plaintiffs and their 
typically more wealthy opponents, such as 
p u b l i c  c o r p o r a t i o n s  and local 
governments.

In legislating, Congress carefully 
crafted a statute that included expert 
witness fees as part of attorneys' fees 
when plaintiffs won and -- by adopting 
the Christiansburq standard —  shielded 
good faith but unsuccessful plaintiffs 
from bearing such large fee. It did this 
by incorporating and endorsing the prior 
case law that had included expert witness 
fees as part of "attorneys' fees" to be 
covered in the fee shifting provisions of



8
the Act. It made this clear by tracking 
of the language of prior attorneys' fees 
statutes and explicitly incorporating of 
the case law under those statutes; by 
explicitly adopting to the "private 
attorney general" line of cases; and by 
citing as illustrative cases that had 
awarded expert witness fees.

Moreover, the legislative debates 
make clear that proponents and opponents 
of the bill alike understood that the 
"attorneys' fees" covered by the Act's 
fee shifting scheme included a broad 
range of recoverable out-of-pocket 
expenses, such as expert witness fees, 
not traditionally recoverable as "costs" 
under the American Rule.

This Court should affirm the mani­
fested intent of Congress. A contrary 
ruling would subvert the underlying 
purpose of the Act. Congress passed the



9
Act to encourage citizens to vindicate 
their rights in the courts, and to enable 
them to do so effectively. If expert 
witness fees could be imposed on losing 
civil rights plaintiffs absent the 
protection of the Christiansburg 
standard, these plaintiffs will simply be 
forced out of the courts. More 
importantly, if the en banc court's 
reasoning is left intact and expert 
witness fees were not recoverable, they 
could not be borne by the often indigent 
plaintiffs.

Nor could the cost of experts be met 
from the attorneys*’ fees. These fees are 
based only on reasonable hourly charges 
calculated to parallel market rates. If 
these fees were diminished by the expense 
of employing experts, they would not be 
adequate to attract competent counsel as 
Congress intended. The result of not



10
recogni z ing that expert fees were 
included in fee-shifting will be: that
cases will not be presented effectively; 
that attorneys will not be willing to 
undertake representation; or that 
plaintiffs will be deterred from suing in 
the first place. Any of these would 
defeat the very purpose of the Act.



11
argument

I. CONGRESS INCLUDED EXPERT WITNESS 
FEES AS PART OF ATTORNEYS' FEES 
UNDER THE CIVIL RIGHTS STATUTES AND, 
THEREFORE, THE SPECIFIC STANDARDS 
GOVERNING FEE SHIFTING UNDER THOSE 
STATUTES MUST CONTROL_______________

Champion rests its entire argument 
on the equitable discretion said to be 
conferred on the district courts by 
F.R.C.P. 54(d) . Putting aside the
guest ion whether Rule 54 (d) was in fact 
intended by its drafters to confer such 
discretion,2 it cannot possibly support 
Champion's position in this case. For 
Rule 54(d) contains a very explicit 
disclaimer. Its authorization of the 2

2It is the position of amici that 
Rule 54 was not so intended. Henkel v. 
Chicago. St. Paul, M. & 0. Ry. Co.. 284 
U.S. 444 (1932). Thus we agree with the 
arguments made by respondents in the 
companion case of Crawford Fitting 
Company v, J.T. Gibbons. Inc. . No. 86- 
322. As detailed in the text, however, 
the specificity of the civil rights fee 
shifting scheme makes the question 
irrelevant to decision in this case.



12
district courts to act with respect to 
costs was never intended to supplant 
specific congressional schemes with 
respect to fees and costs; the rule
applies to all situations "[e]xcept when 
express provision is made . . . in a
statute of the United States . . , ."

Id.
It is our contention, which we

document below, that §1988 is just such 
an explicit statutory scheme. Congress 
deliberately included expert witness fees 
in the fee shifting scheme of the civil 
rights statutes so that successful 
plaintiffs would be able to recover these 
otherwise onerous litigation expenses and 
so that unsuccessful, good faith, civil 
rights plaintiffs would be shielded under 
the standards of Christiansburq Garment 
Co. v. EEOC. 434 U.S. 412 (1978) (Title
VII), and Hughes v. Rowe. 449 U.S. 5



13
(1980) (§1988), from bearing their
opponents' expert expenses.

Amici. therefore, support the result 
reached by the court below: the
prevailing defendant in this civil rights 
action may not receive expert witness 
fees and other expenses as part of an 
award of costs because the district court 
specifically held that plaintiffs acted 
in good faith and that the defendants had 
not met the Christiansburq standard. But 
we urge that the basis for the en banc 
court's decision is manifestly incorrect 
and that this Court should explicitly 
affirm the judgment denying costs on the 
basis of the district court and the Fifth 
Circuit panel's decisions: that the
district court was correct when it held 
that Christiansburq was not satisfied 
because this action was not frivolous, 
unreasonable, or without foundation, nor



14
was it brought in bad faith.

In the remainder of this brief, 
amici address solely the issue of the 
inclusion in attorneys' fees of expert 
witness and other litigation costs and 
show that the court of appeals erred in 
concluding that expert witness fees are 
not recoverable as part of "attorneys' 
fees and costs" under 42 U.S.C. §§ 1988 
and 2000e-5(d). We first show that 
Congress specifically considered this 
question when it deliberated and 
formulated the fees Act in 1976. We then 
show how Congress specifically acted to 
include expert witness fees in the Act's 
coverage. Finally, we demonstrate that 
any contrary conclusion would not only 
run a foul of Congress's clearly 
manifested intent, but also would 
undermine the basic purposes of the Act.



15
II. CONGRESS WAS SPECIFICALLY AWARE OF 

AND LEGISLATED TO ALLEVIATE THE 
SIGNIFICANT PROBLEM OF EXPERT 
WITNESS FEE EXPENSES IN ENACTING THE 
CIVIL RIGHTS ATTORNEY'S FEES AWARDS 
ACT. OF. 1976._________________________
In order better to understand the

scope of the Civil Rights Attorneys' Fees
Awards Act of 1976, 42 U.S.C. §1988 [the
Act], it is necessary to review the
history of that legislation, including
the hearings and events that led to its
passage. As early as 1973, the
Subcommittee on Representation of Citizen
Interests of the Senate Committee on the
Judiciary held six days of hearings on
the problems of economic barriers to
citizen access to lawyers and the courts.
Of these, two days were spent on the
question of modifying the American Rule3

3 As explicated by this Court in 
Alveska Pipeline Service Co. v. 
Wilderness Society. 421 U.S. 240 (1975):

At common law, costs were not 
allowed; but for centuries in



16
to allow for the recovery of costs, 
including attorneys' fees, by the 
prevailing party in litigation. Great 
attention was paid to the then mounting 
case law shifting fees in civil rights 
and other public interest litigation 
under the "private attorney general" 
theory. See The Effect of Legal Fees on 
the Adequacy of Representation. Hearings 
Before the Subcomm. on Representation of 
Citizen Interests of the Comm, on the 
Judiciary, United States Senate. 93 
Cong., 1st Sess. 787-88 (1973) (Statement

England there has been statutory 
authority to award costs, including 
attorneys' fees. . . . "[T]he 
general practice of the United 
States is in oposition [sic] to it; 
and even if that practice were not 
strictly correct in principle, it is 
entitled to the respect of the 
court, till it is changed, or 
modified, by statute." This Court 
has consistently adhered to that 
early holding.

Id. at 247, 249.



17
of Senator Tunney).

This Court's decision in A1 vesica 
Pipeline Service Co. v. Wilderness 
Society. 421 U.S. 240 (1975), gave
impetus to Congress to fashion a statute 
that would shift fees in some cases. The 
Senate Judiciary Committee reported out 
two identical bills that provided for the 
shifting of fees in civil rights 
litigation, the first as part of the 
renewal of the Voting Rights Act in 1975, 
See Pub. L. No. 94-73 § 402, 42 U.S.C.
§1973; [1975] U.S. Code Cong. & Ad. News
774, and the second, S. 2278, which 
eventually passed as § 1988.4 On the 4

4Civil Rights Attorney's Fees Awards 
Act of 1976. Source Book: Legislative
History. Texts, and Other Documents. 
Committee Print Prepared By The 
Subcommittee on Constitutional Rights of 
the Committee on the Judiciary, United 
States Senate (1976) , p. 5. This 
Committee Print collects the Senate and 
House reports and the proceedings and 
debates in both Houses. It will be cited 
throughout as "Legis. History ____."



18
House side, the Subcommitee on Courts,
Civil Liberties, and the Administration
of Justice of the Committee on the
Judiciary held three days of hearings on 
various attorneys' fees statutes which 
resulted in the reporting out of a bill,
H.R. 15460 , which later passed as §1988.
H.R. Rep. No. 94-1558, 94th Cong., 2d
Sess. 3-4 (1976) . Legis. History 211-
212.

The record before Congress in these 
hearings established that the economic 
deterrents to civil rights enforcement, 
and public interest litigation generally, 
included both the problems of attorneys' 
fees and the great expense of expert 
testimony. Each of the first three 
witnesses in the 1973 Senate hearings 
raised this problem. One of these was 
Dennis Flannery, one of plaintiffs' 
counsel in Alveska. He testified



19
regarding the unique effects of economics
on the public interest lawyer:

When a big case such as this comes 
into a private law firm, . . . expert 
witnesses are contacted, fee 
arrangements are made so that the 
expert witness can give his full 
attention to the case during the 
time he is needed, research is 
undertaken in a variety of areas 
(even areas that are tangential to 
the lawsuit, just to make sure you 
have covered every aspect). . . .

Now, when a public interest 
firm is involved, or when a group of 
citizens or even an individual 
citizen decides to take on a big 
case and to present the views of the 
other side in a big case . . . .
there is simply no money up front. .
. .[TJhere is very little money for
such essential things as, for 
example, expert witnesses. And so 
what I found . . . was that I did 
not have any money at all to pay any 
expert anything. And so basically 
what we had to do was to write or 
telephone around the country with 
our hat in our hands asking 
university people to give us 
assistance and to take some time off 
from their heavy class workload and 
give us whatever assistance they 
could. But at no time could we 
actually say to an expert, for 
example, give us three weeks, we 
want you down here in Washington, we 
want to go over this technical 
material with you, we want you to be



20
prepared to be a witness at trial, 
if we go to trial, and we realize 
this takes a lot of time and we will 
pay you a fee. This is precisely 
what the other side was doing. But, 
we could not do that . . . .

As a result, the public 
interest lawyer must pare off very 
important issues —  that might even 
be winning issues —  simply because 
they are either too technical or too 
big, or require too much expenditure 
of money.

Senate Hearings. supra, at 832-34 
(Statement of Dennis Flannery). Senator 
Tunney, the chairman of the subcommittee 
and later the sponsor of S. 2278, was 
clearly impressed by the scope of this 
problem, referring to it several times in 
the course of the hearings. See id. at 
1108, 1127, 1128.5

5 At one point, Senator Tunney 
referred to Flannery's testimony

that in a difficult case it cost 
tens of thousands of dollars to be 
able to conduct the case including 
being able to get expert witnesses.

Senate Hearings, supra, at 1108.



21
This record was repeated in the 

House. One witness testified about a 
party having "to confine its activities 
to cross-examination of industry 
witnesses because it could not possibly 
afford to put on expert witnesses of its 
own. . . ." Awarding of Attorneys' Fees,
Hearings Before the Subcomm. on Courts. 
Civil Liberties & the Administration of 
Justice of the Comm, on the Judiciary, 
House of Representative. 94th Cong., 1st

As indicated in the text, other 
witnesses before the subcommittee raised 
the problem of expert witness fees. J. 
Anthony Kline, the lawyer in La Raza
Unida____ v. Voice. 337 F. Supp. 221
(N.D.Cal. 1971), one of the earliest
"private attorney general" cases, 
described this imbalance in similar 
terms. Senate Hearings. supra. at 
799. Another witness described the 
expenditure of $20,000 in expert witness 
fees which was recouped under the 
"private attorney general" theory as part 
of fees and costs in Pyramid Lake Pauite 
Tribe v. Morton. 360 F. Supp. 669 (D.D.C. 
1973) . Senate Hearings, supra. at 812, 
816.



22
Sess. 159 (1975). (Statement of Peter H.
Schuck, Consumers Union Inc.)* Others,
representing the Lawyers' Committee for
Civil Rights Under Law, told of

countless other cases that really
ought to be brought because they 
represent a situation in which a
statute is not being enforced, but 
in which they cannot be brought
because there is no lawyer for them 
or because a lawyer might be willing 
to take the case, but cannot afford 
even the out-of-pocket expenses.

Id, at 100 (Testimony of Armand Derfner
and Mary Frances Derfner, Lawyers' Comm.
for Civil Rights). This testimony
highlighted the importance of expert
witness fees:

These . . . attorneys
private practitioners . . . -—  face 
an additional problem: because of
the limited resources available to 
them in public interest cases, they 
are rarely able to afford the 
technical assistance of expert 
witnesses. . . .



23
Id. at 89.® One witness went so far as 
to state that if expert witness fees 
were not included, "the very point of the 
bills may be defeated." Id. at 136 
(Statement of John M. Ferren).

In the hearings that led to the 
enactment of §1988, Congress was consis­
tently asked to respond to this Court' s 
ruling in Alveska invalidating the 
"private attorney general" line of 
cases.* 7 Several witnesses referred to the

®They added:
When Congress calls upon 

citizens ... to go to court to 
vindicate its policies and 
benefit the entire nation, 
Congress must also ensure that 
they have means to go to court 
and to be effective once they 
get there.

Id. at 90.
7 Mr. Derfner testified on behalf 

of the Lawyers' Committee that:
In that light, I would like to 

speak just for a second about one 
specific bill before this committee



24
Final Report of the American Assembly on 
Law in a Changing Society which was 
convened by the American Bar Association.

which I think does deserve a great 
deal of attention, and which ought 
to be given priority consideration: 
H.R. 9552, introduced by Congressman 
Drinan. This is a civil rights 
provision. It deals with specific 
statutes that would be covered in 
specific types of cases. It takes 
up the area that was most damaged by 
the Alveska decision because it is 
in the civil rights area that the 
Alveska decision had its most 
damaging effect.

House Hearings. supra, at 95-96. 
Congressman Danielson noted the piecemeal 
nature of the process:

I have a feeling we are 
commencing on what is going to be a 
. . . quite a bit of legislation
before it is done, and that may take 
about 10 years. We will probably 
have to do as Mr. Crane suggested 
and take care of the more immediate 
needs to start with.

I d . at 7 8. Mr. Derfner later
acknowledged the importance of modifying 
28 U.S.C. §2412 to shift fees when the 
government has brought a frivolous case, 
id. at 101, which was the next area in 
which the Congress acted. Equal Access 
to Justice Act, Pub. Law No. 96-481 
§204a, 94 Stat. 2327 (Oct. 21, 1980).



25
It recommended "[e ]nactment of 
legislation permitting courts . . .  to 
award attorneys' fees and expert fees," 
noting civil rights as an important area 
of concern and stressing that 
" [p]recisely this kind of remedial 
legislation is what is urgently needed at 
this time." House Hearings. supra. at 
67, 126 (1975) (Statement of Charles R.
Hobbs on behalf of the American Bar 
Association Special Committee on Public 
Interest Practice and Statement of 
Charles R. Halpern, Exec. Dir. Council 
for Public Interest Law).8

8While the report spoke of a statute 
that would apply to all public interest 
litigation, these witnesses observed that

it makes sense to concentrate on 
those areas where the need is most 
dramatic. We concur with Father 
Drinan in his H.R. 9552, that the 
civil rights area is one where there 
is an urgent need for prompt 
legislation to permit attorneys' fee 
awards in cases to enforce the civil 
rights laws.



26
The manifest concern about expert 

witness fees was part of a broader 
concern for equalizing the resources of 
the parties in civil rights cases. In 
the Senate hearings, one witness 
characterized public interest litigation 
as a battle

between David and Goliath. In this 
battle, however, Goliath holds the 
slingshot as well as the weight 
advantage...

It is important, I believe, to 
emphasize here, that neither 
corporations nor the law firms that 
represent their interests need be 
the least bit defensive about 
leaving no stone unturned in putting 
forward their best possible case. 
Indeed, the adversary system, not to 
mention the canons of legal ethics, 
demands no less. The problem is 
that under present circumstances the 
corporation's citizen interest 
adversaries cannot devote anything 
approaching a comparable expenditure 
of resources to the development of 
their side of the case.

Senate Hearings, supra. at 841. The ABA

Id. at 125.



27
testified before the House subcommittee 
about:

the need of the public to have both 
points of view properly represented. 
When the Government is involved, it 
is going to give a good run to its 
point of view. But too many cases 
have been decided by default, the 
failure to have a good presentation 
on the part of the other side.

House Hearings, supra. at 79 (Statement
of Charles A. Hobbs, Member, Special
Committee on Public Interest Practice of
the American Bar Association). relative
to the civil rights plaintiff, the

opposition frequently has virtually 
unlimited resources, often including 
expert outside counsel. A federal, 
state, or even local agency 
defendant can draw upon the public 
treasury, and call upon full-time 
research assistants, the Federal 
Bureau of Investigation or state or 
local law enforcement investigators, 
and the myriad of support services 
which exist for the use of those 
agencies. Corporate litigants
likewise often have vast resources, 
subsidized by tax deductions, with 
which to resist public interest 
claims. the result is that,
especially in the larger public 
interest case, the sides become 
extremely unequal. This fact



28
subverts the American system of 
justice, where two equal sides are 
expected to face one another in a 
vigorous adversary procedure ...

Id. at 89-90 (Statement of the Lawyers'
Committee for Civil Rights Under Law) .
Congressman Danielson of California, a
member of the subcommittee, put it
graphically:

[T]here ought to be a balancing of 
the power in our court. It seems to 
be fundamentally unfair that one 
party is the Government with also 
unlimited resources, funds, 
personnel, availability of records, 
availability of investigating 
personnel, and whatnot; on the other 
hand you have the private citizen. 
What was that thing twisting slowly 
in the wind? He is out there all 
alone anyway and it is chilly out 
there financially.

Id. at 61.
Compounding this problem is the fact 

that, in addition to their already 
greater resources , civil rights 
defendants were able to underwrite these 
extensive defenses with what is in fact 
public money. This is obvious in the



29
case of governmental defendants, who are 
paying litigation costs out of tax money 
—  including the taxes paid by plaintiffs
and their families. In the case of
corporations,

public tax dollars are in a very 
real sense being used to support 
that litigation. The corporation's 
litigation expenses, its attorneys' 
fees, its court costs and all costs 
connected with the litigation are 
deductible from the corporation's 
income tax. and that is win or 
lose, frivolous or nonfrivolous, 
meritorious or nonmeritorious. So 
you really have a built-in beginning 
that one side that is litigating the 
kind of issues I am talking about is 
already being supported by public funds.

Id. at 835-3 6 (Flannery Testimony).
Accord id. at 850 (Testimony of Joseph N. 
Onek, Director, Center for Law and Social 
Policy);9 * id. at 861 (Derfner Statement);

9Even fee shifting does not totally 
redress this imbalance, as he noted:

Furthermore, the Government 
exercises no control over the 
expenses it will subsidize. If 
General Motors chooses to pay its



30
House Hearings. supra» at 161 (Onek 
Statement).10

It was this precise testimony that 
Congress heeded when it considered and 
passed § 1988.

lawyers $200 an hour the Government 
still pays one-half. If General 
Motors pays its lawyers to eat in 
the best restaurants and stay in the 
finest hotels, that is okay —  Uncle 
Sam is going to pay half of it, no 
questions asked. This is totally 
different from any kind of fee award 
system we might have. Under an 
attorneys' fee statute the courts 
would exercise control over 
attorneys' fees and other costs of 
litigation.

Id.
10Corporate civil rights violators 

can also pass on the costs of their legal 
defense to the consumer. Senate
Hearings. supra. at 8 61 (Derfner
Statement). See also House Hearings, 
supra at 861 (Testimony of Reuben B. 
R o b e r t s o n , III, Public Citizens 
Litigation Group). 11

11 Representatives of the Lawyers 
Committee on Civil Rights Under Law, 
the Council for Public Interest Law, 
the American Bar Association Special 
Committee on Public Interest 
Practice, and witnesses practicing



31
It specifically implemented the 

policy of equalizing the resources of the 
parties when it adopted a different 
standard for fees to a prevailing 
defendant. See generally Christiansbura. 
supra; Hughes v. Rowe. 449 U.S. 5 (1980). 
Noting that defendants are usually 
governments, which "have substantial 
resources available to them through funds

in the field testified to the 
devastating impact of the [Alyeska] 
case on litigation in the civil 
rights area .... The Committee also 
received evidence that private 
lawyers were refusing to take 
certain types of civil rights cases 
because the civil rights bar, 
already short of resources, could 
not afford to do so. Because of the 
compelling need demonstrated by the 
testimony, the Committee decided to 
report a bill allowing fees to 
prevailing parties in certain civil rights cases.

H.R. Rep., supra. at 2-3, Legis. History 
210-11. The Senate report acknowledged 
that this testimony "generally confirmed 
the record presented" at its hearings in 
1973. S. Rep., supra. at 2, Legis. 
History 8.



32
in the common treasury," H .R .Rep. , 
supra. at 7, Legis. History 215, Congress 
was concerned that: "Applying the same 
standard of recovery to such defendants 
would further widen the gap ... and would 
exacerbate the inequality of litigating 
strength." Id.

It is significant that §1988 was the 
legislative response to Alveska because 
it was in the pre-Alveska civil rights 
cases that expert witness fees were most 
consistently awarded.12 It is well

12 See, ê jg. , Fairley v. Patterson, 
493 F. 2d 598, 606 n. 11 (5th Cir. 1974) 
(costs of preparing reapportionment plan 
in voting rights case); Welsch v. Likins. 
67 F.R.D. 589 (D. Minn.) aff/d . 525 F.2d 
987 (8 th Cir. 1975) (§1983 suit on 
rights of mentally retarded); Sabala v. 
Western Gillette. Inc.. 371 F. Supp. 385, 
394 (S.D. Tex. 1974) , aff'd in part, 
rev'd in part. 516 F. 2d 1251 (5th Cir. 
1975) (employment discrimination suit 
under Title VII and §1981: attorneys' and 
expert witness fees awarded under both 
Title VII and "private attorney general" 
theory) ; La Raza Unida v. Volpe, 337 F. 
Supp. 221 (N.D.Cal. 1971); Bradley v. 
School Bd. of City of Richmond. 53 F.R.D.



33
established that a

guide to the meaning of a statute is 
found in the evil which it is 
designed to remedy; and for this the 
c o u r t  p r o p e r l y  l o o k s  a t 
contemporaneous e v e n t s , the 
situation as it existed, and as it 
was pressed upon the attention of 
the legislative body.

Holy Trinity Church v. United States. 143
U.S. 457, 463 (1892) . Here, the very
event that precipitated the enactment of
§1988, this Courtis decision in Alveska.

2 8 ( E . D . Va . 19 7 1) ( s c h o o l
desegregation); Jones v. Wittenberg. 330 
F. Supp. 707, 722 (N.D. Ohio 1971) (jail
case) ' Jackson v. School Bd. of City of 
Lynchburg. Civ. Act. No. 534 (W.D. Va.
April 28, 1970) (school case); Wright v. 
McMann. 321 Supp. 127 (N.D.N.Y. 1970)
(prison case: unpublished decree). See
also Sims v. Amos. 340 F. Supp. 691 (M. D. 
Ala.), aff'd. 409 U.S. 942 (1972) (award 
of attorneys and expert witness fees in 
voting rights case under "bad faith" 
exception) . La Raza. which involved 
violations of environmental statutes, was 
cited by Senator Kennedy during the floor 
debates as an exalmple of a case 
"enforc[ing] the rights promised by 
Congress" that would be covered under S 
1988. 122 Cong. Rec. 33314 (1976), cited
in Maine v. Thiboutot. 448 U.S. 1, 10 n.9 
(1980) .



34
concerned the problem of expert witness 
fee costs. See discussion, supra, at 19- 
20 (Statement of Dennis Flannery); see 
cases cited supra. n. 5. The
indivisibility of the attorneys' fees and 
expert witness fee problem was 
highlighted "in the testimony presented 
before the committees of Congress." Holy 
Trinity Church v. United States. 143 U.S. 
at 4 64. Thus, it cannot be assumed that 
Congress did not intend to include expert 
witness fees when it enacted §1988. In 
fact, it is clear from the congressional 
reports and legislative debates that such 
expenses were included.

III. CONGRESS SPECIFICALLY INCORPORATED 
THE PRE-EXISTING CASE LAW THAT 
INCLUDED EXPERT WITNESS FEES AS PART 
OF ATTORNEYS' FEES AND COSTS IN 
ENACTING SECTION 1988_______________
The testimony before the House 

subcommittee set out the modus operandi 
that Congress in fact adopted in



35
restoring the recoverability of fees in
civil rights cases.

The bulk of the nonstatutory 
private attorney general cases in 
the past few years were cases under 
the Civil Rights Laws. These cases, 
as well as cases under specific 
attorneys' fee provisions of recent 
civil rights laws, provided Congress 
and the courts with a thorough 
education in attorneys' fees in this 
area, and resulted in a detailed 
body of law on technical questions.
. . . There is thus a clear record
to support the proposition that a 
generic provision governing the 
entire area should be superimposed 
upon the existing patchwork of 
specific provisions.

One of the bills before this 
Subcommittee, H.R. 9552 . . . would
allow a court, in its discretion, to 
award a t t o r n e y s ' fees to a 
prevailing party in suits to enforce 
the civil rights acts which Congress 
has passed since 1866. This bill 
follows the language of section 402 
of the Voting Rights Act, and of 
Titles II and VII of the 1964 Civil 
Rights Act. All of these acts 
depend heavily upon private 
enforcement, and fee awards are an 
essential remedy if private citizens 
are to have a meaningful opportunity 
to vindicate these important 
Congressional policies.

House Hearings. supra. at 85. (Lawyers'



36

Committee Testimony).
The committee reports and the 

legislative debates make clear that 
Congress used the precise language of 
Titles II and VII 13 and intentionally

13 Because Congress adopted the 
language of earlier statutes, resort to 
the "plain meaning" of the words used in 
§ 1 9 8 8  w o u l d  be p a r t i c u l a r l y  
inappropriate. See Cannon v . University 
of Chicago. 441 U.S. 754, 717 (1979), 
discussed, infra. at p.48.

To take a few words from their 
context and with them thus isolated 
to attempt to determine their 
meaning, certainly would not 
contribute greatly to the discovery 
of the purpose of the draftsman of 
the statute.

Thus, the fact that Congress did not 
expressly include expert witness fees, as 
it did in other statutes, is not 
controlling. Because Congress legislated 
in the context of the existing statutory 
scheme of attorneys' fees provisions, it 
had to adopt the precise wording of those 
statutes in order to incorporate the case 
law and standards developed under those 
provisions. This Court has on several 
occasions gone beyond the plain meaning 
of the statutory language to look to the 
legislative history of Civil Rights 
statutes, including §1988, in order to 
ascertain their correct publication.



37

Cannon, supra (implied cause of action 
under Title IX); Hughes v . Rowe. 449 U.S. 
5 (1980) ; Christiansburg Garment Co. v.
E.E.Q.C.. 434 U.S. 412 (1978) (higher
standard for award of fees to prevailing 
defendant).

This conclusion is also reenforced 
by the legislative history of a later 
statute which specifically provides for 
expert witness fees. In 1980, Congress 
passed the Equal Access to Justice Act, 
Pub. Law No. 96-481 §204 (a) , 94 Stat. 
2327 (Oct. 21, 1980), amending 28 U.S.C. 
§2412. This statute provides for fee 
shifting in cases brought by the United 
States when its position is not 
reasonable in law or f act and 
specifically includes expert witness 
fees. It is more restrictive than §1988, 
placing a ceiling on hourly rates (absent 
special circumstances) and positing a 
higher standard for recovery of fees. In 
passing this statute, which was first 
discussed during the hearings and debates 
that led to the passage of §1988, n. 7, 
supra. Congress was ‘ aware of the 
interplay between §2412 and §1988. It 
specifically provided that, where both 
apply, the broader provisions of §1988 
take precedence because "Congress has 
indicated a specific intent to encourage 
vigorous enforcement ...." H.R. Rep. No. 
96-1418 at 18, [1980] U.S. Code Cong. &
Ad. News 4997. Thus, Congress's explicit 
incorporation of expert fees in §2412 
cannot be read to imply that the failure 
to include express language to that 
effect in §1988 indicates a contrary



38
adopted the prior case law under these 
statutes and the "private attorney 
general'*’ theory as recommended at the 
hearings. As explicated in the Senate
Report:

S . 2278 follows the language of
Titles II and VII of the Civil 
Rights Act of 1964, 42 U.S.C.
§§2000a-3 (b) and §2000e-5(k), and
section 402 of the Voting Rights Act 
Amendments of 1975, 42 U.S.C.
§19731(e). . It is intended
that the standards for awarding fees 
be generally the same as under the 
fee provisions of the 1964 Civil 
Rights Act.

S. Rep. No. 94-1011, 94th Cong., 2d Sess.
2, 4 (1976). Legis. History 8, 10.14

intent. Rather, if Congress intended to 
include expert fees in the narrower 
statute —  which was designed merely to 
remove deterrents from contesting 
unreasonable litigation, then the broader 
— -which was one designed to foster the 
vigorous assertion of fundamental rights 
—  cannot be read to exclude it.

14 importance of the committee
report in establishing congressional 
intent is well established: "A committee
report represents the considered and 
collective understanding of those 
Congressmen involved in drafting and



39
Senator Kennedy, one of the sponsors of 
the bill, 15 further indicated that the 
bill "is intended simply to expressly 
authorize the courts to continue to make 
the kinds of awards of legal fees that 
they had been allowing prior to the 
Alveska decision." Legis. History 23. 
Similarly, in the House, both 
Representatives Railsback and Bolling 
noted that the bill merely codified and 
restored the pre-Alveska law. Legis. 
History 242, 247.

During the floor debate on the House

studying proposed legislation." Zuber v, 
Allen. 396 U.S.168, 186 (1969); Thornburg
v. Ginales. 478 U.S. ___, 92 L.Ed.2d 25,
42 n. 7 (1986) .

15 In Schweqman Bros. v . Calvert 
Distillers Coro.. 342 U.S. 384 (1951),
this Court noted that: "It is the
sponsors that we look to when the meaning 
of the statutory words is in doubt." Id. 
at 394-95. S ince Senator Kennedy’s 
remarks as sponsor are wholly consistent 
with and complementary to the bulk of the 
legislative history, they possess added 
weight.



40
side, Congressman Drinan, the billf s 
sponsor and the author of the committee 
report, 16 amplified on the comments in 
that report. See H.R. Rep. No. 94-1558, 
94th Cong., 2d Sess. 5-5 (1976); Legis.
History 213-214.

T h e  C i v i l  R i g h t s  
Attorney's Fee Awards Act of 1976, 
S .2278 (H.R. 15460) is intended to 
restore to the courts the authority 
to award reasonable counsel fees to 
the prevailing party in cases 
initiated under certain civil rights 
acts. The legislation is 
necessitated by the decision of the 
Supreme Court in Alyeska Pipeline 
Service Corp. against Wilderness 
Society, 421 U.S. 240 (1975). . . .

Prior to the Alyeska decision, 
the 1ower Federal Courts had 
regularly awarded counsel fees to 
the prevailing party in a variety of 
cases instituted under the sections

16 M r . Drinan's exposition is 
especially authoritative since he was a 
member "of the House Judiciary Committee 
responsible for . . . [these] matters,
author and chief sponsor of the measure 
under consideration, and a respected 
congressional leader in the whole area. .

. " Foti v. Immigration_____and
Naturalization Service. 375 U.S. 217, 23
n. 8 (1963).



41
of the United States Code covered by 
§2278___

The Alveska decision ended that 
practice, which this bill seeks to 
restore. . . .

The language of S.2278 tracks 
the wording of attorney fee 
provision in other civil rights 
statutes such as correction 7 06 (k)
of Title VII -- employment -- of the 
Civil Rights Act of 1964. The 
phraseology employed has been 
reviewed, examined, and inter­
preted by the courts, which have 
developed standards for its applica­
tion. These evolving standards 
should provide sufficient guidance 
to the courts in construing this
bill which uses the same term. I 
should add that the phrase
"attorney's fee" would include the
values of the lecral services
provided by counsel, including all
incidental and necessary expenses
incurred in furnishing effective and
competent representation.

(Comments of Congressman Drinan; Legis. 
History 252-255 (emphasis added)).

Congressman Drinan's comments are 
particularly important for two reasons. 
First, they indicate the explicit intent 
of Congress in passing the Act to adopt 
the existing case law under Titles II and



42
VII. 17 More importantly, they indicate 
that, in restoring the pre-Alyeska 
practice Congress was conscious that 
e x p e r t witness fees and other 
out-of-pocket expenses had been 
recoverable even though they were not 
traditional "costs." See cases cited, 
supra. at n. 12. These non-statutory 
costs had been treated by the pre-Alyeska 
cases in just the way Congressman Drinan 
explained they would be handled under the 
Act:

Costs not subsumed under federal 
statutory provisions normally 
granting such costs against the 
adverse party ... are to be included 
in the concept of attorneys' fees.

Fairley v. Patterson, supra. 493 F. 2d at

17 Congressman Anderson, one of the 
floor managers of the bill, also made 
this point at the opening of the floor 
debates. Legis. History 236.



43

606 n. 11.18

In 1976 when Congress debated and 
passed the Act, there was little doubt 
that expert witness fees had been 
recoverable under the "private attorney 
general" cases as discussed above and 
were recoverable under the attorneys' 
fees provision of Title VII on which the

18 The incorporation of these 
non-statutory costs as part of 
"attorneys' fees" is particularly 
noteworthy in light of the confusion in 
the cases regarding the effect of 28 
U.S.C. §§1920 and 1821 on the recover­
ability of expert witness fees. Compare 
Nprthcross v. Board of Ed.. 611 F.2d 624, 
642 (6th Cir. 1979) (recoverable under
§1920)> Keyes.v,. School.District No. 1,
Denver Colo.. 439 F. Supp. 393, 417-18
(D. Colo. 1977) (same); with Neely v. 
General Electric. 90 F.R.D. 627 (N.D.
Ga. 1981) (not recoverable under §192 0) ; 
with Jones v. Diamond. 636 F.2d 1364 (5th 
Cir. 1981) (en banc) (recoverable under 
§1988) ; O'Bryan v. Saginaw Mich.. No. 
79—1297 (6th Cir. Jan. 6, 1981) (same) ;
McPherson v. School District #186. 465 F. 
Supp. 749, 763 (S.D. 111. 1978) (same) ;
with Loewen v. Turnipseed. 505 F. Supp.
512, 519 (N.D. Miss. 1981) (recoverable,
but theory under which awarded is unclear) .



44
Act was modeled.-3-9 Indeed, the award of 
expert witness fees to the prevailing 
party in Title VII litigation was so well 
established that it often went 
unchalleged. Davis v. County of Los 
Angeles, 8 E.P.D. 1 9444 at p . 5048
("These charges were not challenged by 
defendants and are valid"). In
innumerable cases, the lower courts had 
awarded such fees without discussion. 
See. e.g.. Albemarle Paper Co. v. Moody. 19

19EE0C v. Dataooint. 412 F. Supp.
406, 409 (W.D. Tex. 1976), vacated and
rem'd on other grounds. 570 F. 2d 1264 
(5th Cir. 1978); Rios v. Enterprise 
Steamfitters Local. 400 F. Supp. 993, 997 
(S.D.N.Y. 1975), aff'd. 542 F. 2d 579 (2d 
Cir. 1976) ; Davis v. County of Los 
Angeles. 8 E.P.D. 19444 (C.D. Cal. 1974); 
Sabala v. Western Gillette, Inc., 371 F. 
Supp. 385, 394 (S.D. Tex. 1974), aff'd in 
part, rev'd in part on other grounds. 516 
F. 2d 1251 (5 th Cir. 1975) (After the
passage of the Act, Sabala was reversed 
by this Court on other grounds. 431 U.S. 
951 (1977) ) . See also Sledge v. J.P.
Stevens. 12 E.P.D. 111,047 (E.D.N.C.
1976) (prospective award of fees for 
plaintiffs' expert necessitated by 
defendants' computerized records).



45

444 U.S. 405 (1975); Griggs,v ,̂.,,DaKe.Power

fiat., 401 U.S. 424 (1971); Robinson v,

LgXlllflr,d.,.-C.aEPL/ 444 F. 2d 791 (4th Cir. 
1971).20

The Senate left little doubt about
the case law it intended to incorporate.

The appropriate standards, see 
Johnson...v,.Georgia Highway Express. 
488 F. 2d 714 (5th Cir. 1974), are 
correctly applied in such cases as 
Stanford..Dai.lv v , Zurcher, 64 f .r .d . 
680 (N.D.Cal. 1974); Davis v. Countv 
.gj„LdS-AngeI.e.§., 8 e .p .d . ^9444 (c .d . 
Cal. 1974); and Swann v. Charlotte 
Mecklenber.g,,. goa.rd._PX_..Education, 66 
F.R.D. 483 (W.D.N.C. 1975). These 
cases have resulted in fees which 
are adequate to attract competent 
counsel, but which do not produce 
windfalls to attorneys.

S. Rep. No. 94-1101, supra. at 6; Legis.
History 12. These cases were carefully
chosen to include both statutory —  Davis

20 Research reveals no reported pre- 
1976 Title VII cases in which expert 
w i t n e s s  f e e s  w e r e  d i s c u s s e d  a n d  
disallowed. For post-Act decisions
compare Whealsc.-^__ParbflB— glfag..B d .___ofEd. . , 585 F. 2d 618 (4th Cir. 1978), with
Northeross.v, ... jBd . .of ..Ed. of Memphis, 611
F.2d 624 (6th Cir. 1979).



46
and Swann, supra. —  and non-statutory 
"private attorney general" — - Stanford 
Daily. supra. -- fee awards and to 
include a broad range of attorneys' fee 
issues: fee computation standards, hourly 
rates, bonus awards for the continuation 
of the litigation or excellence of 
results, expert witness fees, paralegal 
and out-of-pocket expenses.21 Davis, in 
fact, is one of the pre-Act Title VII fee 
awards which specifically included expert 
witness fees. And in Swann. more than a 
third of the $29,972.33 in costs awarded 
by the district court constituted expert 
witness fees and expenses.22

21This Court has repeatedly noted 
Congress' citation to these three cases 
and has relied on them in interpreting 
the Fees Act. City of Riverside v.
Rivera. 477 U.S. ___, 91 L.Ed.2d 466, 480
(1986) ; Blum v. Stenson. 465 U.S. 886, 
893-894 (1984); Hensley v. Eckerhart, 461 
U.S. 424, 430-431 (1983).

22 Amicus NAACP Legal Defense Fund 
was of counsel in Swann.



47
Thus, there can be little doubt that 

Congress acted deliberately and 
intentionally to incorporate an existing 
body of case law which clearly allowed 
for the inclusion of expert witness fees 
and all m a n n e r  of r e a s o n a b l e  
out-of-pocket expenses23 as part of "fees 
and costs." 24

2 3 As phrased by a supporter, 
Congressman Seiberling: "All we are
trying to do in this bill is . . .  to get 
compensation for their legal expenses in 
meritorious cases." Id. at 245.

24 Because the legislative history 
makes clear that expert witness fees, 
like all other out-of-pocket expenses, 
are ordinarily recoverable, it would be 
contrary to the legislative purpose to 
require a higher standard for the 
recovery of these expenses. Some of the 
lower court opinions have been read to 
require that expert testimony be "vital," 
"essential," or "helpful and important." 
See Northcross v. Bd. of Ed. . 611 F. 2d
624, 642 (6th Cir. 1979); Ste. Marie v.
Eastern Railroad Association. 497 F.Supp. 
800, 813-14 (S.D.N.Y. 1980), rev' d on
other grounds. 650 F.2d 395 (2d Cir.
1981); Keyes v. School District. 439 
F.Supp. 393, 418 (D. Colo. 1977) . Amicus
does not agree with such a reading of 
these cases. These expenses must



48
In summary:

The provision for counsel fees 
in §1988 was patterned upon the 
attorney's fees provisions 
contained in Titles II and VII 
of the Civil Rights Act of 
1964....

Hanrahan v. Hampton. 446 U.S. 754, 758 n. 
4 (1980) .

The drafters ... explicitly 
assumed that it would be 
interpreted and applied as 
[these provisions] had been 
during the preceeding twelve 
years.... It is always 
appropriate to assume that our 
elected representatives, like 
other citizens, know the law; 
in this case, because of their 
repeated references to [these 
provisions and the case law], 
we are especially justified in 
presuming both that those 
representatives were aware of 
the prior interpretation 
and that that interpretation 
reflects their intent.

Cannon v. University of Chicago. 441 U.S.

ordinarily be included under §1988, which 
was intended to encourage vigorous and 
effective pursuit of one's civil rights, 
see Pt. IV, infra. Of course, courts 
always retain the power to disallow an 
expert expense, or any other, if it is 
not "reasonable."



49
677, 696-97 (1979).
IV. TO EXCLUDE EXPERT WITNESS FEES FROM 

THE PURVIEW OF SECTION 1988 WOULD 
SUBVERT THE VERY PURPOSE OF THE ACT
BY MAKING IT EFFECTIVELY IMPOSSIBLE 
FOR CIVIL RIGHTS PLAINTIFFS TO BRING 
MERITORIOUS CLAIMS THAT INVOLVED 
COMPLEX OR TECHNICAL MATTERS, 
CONTRARY TO CONGRESS• INTENT______
The real issue in this case is what

Congress intended, in the civil rights fee
acts. Thus, whatever standards apply
under F.R.C.P. 54(d), §§ 1920 and 1821—
including prior approval by the trial
judge or findings that the expert
testimony was "necessary or helpful . . .
or indispensable," see Copper Liquor,
Inc., v. Adolph Corrs, Co.. 684 F.2d
1087, 1100 (5th Cir. 1982) —  they relate
not at all to the standards and policies
that control decision under § 1988 and
Title VII. Congress was concerned with
encouraging good faith civil rights
litigants to bring suit. Congress was
concerned with equalizing the legal



50
resources available to the parties. 
Accordingly, it both adopted the prior 
case law including expert witness fees as 
recompensable expenses and imposed a 
stringent standard before these expensive 
items could be shifted to the 
unsuccessful plaintiff.

Congress was clear about its purpose 
in passing the Act: It was "designed to
give such persons effective access to the 
judicial process.. . ." H. Rep. No. 94-1558 
at 1; Legis. History 209. As stated by 
Senator Kennedy: "Congress clearly
intends to facilitate and to encourage 
the bringing of actions to enforce the 
protections of the civil rights laws." 
Legis. History 197. An important 
consideration was to provide "fees which 
are adequate to attract competent 
counsel. . . ." S . Rep. No. 94-1011 at 6, 
Legis. History 12; H. Rep. No. 94-1558 at



51
9; Legis. History 217. The bill's 
sponsor echoed the testimony given in the 
House, cited supra. at 22, n. 6:

When Congress calls upon 
citizens —  either explicitly or by 
construction of its statutes —  to 
go to court to vindicate its
policies and benefit the entire 
Nation, Congress must also insure 
that they have the means to go to 
court, and to be effective once they 
get there. ... We cannot hope for 
vigorous enforcement ofour civil 
rights laws unless we, in the words 
of the Knight [v. Auciello] court, 
"remove the burden from the
shoulders of the plaintiff seeking 
to vindicate the public right." That 
is what this bill does, and why it 
is so vital.

Legis. History 200 (Remarks of Senator
Tunney).

If expert witness fees had not been 
included in the fee shifting scheme of 
the Act, it would have failed in its
fundamental purpose to encourage and make 
effective civil rights litigation. 
W i th out the protection of the 
Christiansburg standard, good faith



52
plaintiffs would be deterred by the 
spectre of having to shoulder their 
opponents' often large expert witness 
fees. On the affirmative side, civil 
rights plaintiffs would be deterred 
because they could not hope to finance 
the successful presentation of their
cases. This would hardly "facilitate and 
encourage the bringing of actions," 
particularly in the "typical case," where 
plaintiffs are indigent and "there is no 
damage claim from which" to subsidize 
costs. Legis. History 3 (Remarks of 
Senator Tunney in introducing the bill). 
As one witness admonished the House
subcommittee, costs "such as expert
witness fees and travel expenses", must 
be included lest

the very point of the bills ... be 
defeated for cases in which typical 
though nontaxabale litigation costs 
are likely to be heavy, and the 
plaintiff has no prospect of
financing them absent a reasonable



53
hope of recovering them from the 
defendant.

House Hearings, supra. at 136 (Statement 
of John M. Ferren).

It might be that, if expert 
witness fees were not recoverable, the 
necessary experts simply would not be 
hired. But this would defeat the
congressional purpose to provide for 
effective access to the courts. This was 
the very point of the witnesses who 
testified before Congress about the 
necessity of providing for the recovery 
of expert witness fees. See supra, Pt. 
II. In echoing their concern for
providing for effective access, Congress 
should not be presumed to have discarded 
the substance of that concern.

Finally, there exists a third 
possible result of not including expert 
witness fees: that these items of
expense would be borne by the attorneys



54
themselves. But this could not be what 
Congress intended, for Congress knew that 
attorneys had been unable to litigate 
meritorious issues because of their 
inability to meet these expenses. See 
Statement of Dennis Flannery discussed, 
supra. at 19 - 20. Moreover, to expect 
attorneys to pay these often significant 
expenses out of the fees awarded would 
interfere with another of Congress's 
specific objectives: to provide fees 
sufficiently high to motivate capable 
counsel to accept civil rights cases.25

25private attorneys would face two 
problems. First. the expenses could 
equal or even exceed any attorney's fee 
that might be awarded. Indeed, most 
practitioners would probably prefer not 
being paid for their time rather than not 
being reimbursed for out-of-pocket 
expenses. Second. the advancing of costs 
without any obligation on the part of the 
clients to reimburse, would run afoul of 
ethical rules against maintenance of 
litigation. See ABA Code of Professional 
Responsibility, DR 5-103(B). Although 
the application of such rules to civil 
rights cases is of doubtful legality (see



55
Congress was aware that civil rights 
lawyers were not receiving copious awards 
under the other fee provisions.* 26 These

NAACP V. Button. 371 U.S. 415, 420
(1963)), the very real threat of a 
disciplinary proceeding (see, e.g., In re 
Primus. 436 U.S. 412 (1978)) would be a
strong deterrent.

26 As observed by Senator Kennedy
during the debates:

The Senator from Alabama cannot 
name one lawyer in this country who 
has become wealthy because of his 
work on the protection of the civil 
rights of this Nation. I ask him to 
name one —  and his silence in this 
particular situation, I think, 
responds full well.

We are not talking about the 
kinds of attorneys' fees that were
included in the antitrust bill. You 
do not get rich from protecting the 
civil rights of citizens whether 
they are in my own city of Boston or
in Birmingham.

Legis. History 92. Senator Tunney
amplified on this point:

In fact, a 1975 study undertaken by 
Leslie Helfman of the Antioch Law 
School indicates that of the 140 
most recent cases decided prior to 
Alyeska, civil rights cases ranked 
near the bottom with fees averaging



56
fees are intended to parallel market 
rates in an effort to attract counsel. 
Blum v. Stenson. 465 U.S. 886 (1984). If 
they were discounted by the cost of 
expert witnesses, they would no longer be 
competitive with fees available in 
commercial and other non-civil rights 
litigation.

It is important to recognize, as did 
Congress when it passed the Act, that 
even with fee shifting the economics of 
civil rights cases are substantially 
different than most other areas of 
practice. Ordinarily, there are no large 
damage awards from which the client can 
cover litigation expenses such as expert 
witness fees. See city of Riverside v. 
Rivera. 477 U.S. _____ , 91 L. Ed. 466

$37 per hour compared to $181 per 
hour for the highest ranking field 
of antitrust law.

Id. at 138.



57

(198 6) . Many civil rights cases seek 
injunctive relief only. Sen. Rep. at 6. 
Legis. History 12. This is in sharp 
contrast to cases taken for a contingent 
fee. In personal injury cases and most 

treble damage antitrust cases, the damage 

awards are often large enough for the 
attorney to pay for large expense items 
such as experts and still retain a 
reasonable fee. See Legis. History 200- 
201 (Remarks of Senator Kennedy). In 
ordinary commercial cases the fee is 
based on an hourly rate and the client is 

billed for expenses such as expert 
witness fees.

The significance of the expert 
witness fee issue to the purposes of the 
Act cannot he overstated: This case will 
have a significant impact on the entire 
range of civil rights litigation. And as 
the decisions of this Court and of the



58
lower courts demonstrate, civil rights 
cases often involve complex issues of law 
and fact.27 For example, an issue of 
discrimination in jury selection or some 
other area might require a statistical 
expert. See Castaneda v. Partida. 430
U.S. 482 (1977) and Vasouez v. Hillerv.
474 U.S. ___, 88 L.Ed.2d 598, 606 (1986).
Voting rights cases require an array of 
expert testimony covering a variety of 
matters. Thornburg v. Gingles. 478 U.S.
__, 92 L.Ed. 2d 25, 48 (1986) ("The
investigation conducted by the District

27 As this Court has noted, the 
civil rights statutes and the amendments 
on which they are based ■"prohibit 
sophisticated as well as simple-minded 
modes of discrimination." Lane v . 
Walker. 307 U.S. 268, 175 (1969) . Cases
often require sophisticated proof for 
" [ i ] n an age when it is unfashionable 
. . . to openly express racial hostility,
direct evidence of overt bigotry will be 
impossible to find." United States v. 
Bd. of School Corom'rs. 573 F.2d 400, 412 
(7th Cir.) , cert, denied. 439 U.S. 824 
(1978) .



59
Court into the question of racial bloc 
voting ... relied principally on 
statistical evidence presented by 
[plaintiffs'] expert witnessess ...."). 
And indeed, such testimony is essential 
to prove the necessary elements of a vote 
dilution case. Id. at 45-46. School 
cases often require expert testimony. 
Swann v. Charlotte-Mecklenburg Bd. of 
Ed. . 402 U.S. 1, 9-10 (1971) ; Bradley.
supra. 53 F.R.D. at 44 ("It is difficult 
to imagine a more necessary item of 
proof...."). A Title VI case challenging 
race discrimination in a hospital system 
that receives federal funds could not be 
presented effectively without calling a 
specialist in health planning. See Brvan 
v . Koch. 627 F. 2d 612, 617-618 (2d Cir. 
1980). A prisoner could not establish 
d e l i b e r a t e  indifference in the
maintenance of an inadequate health care



60
system without being able to present 
testimony of doctors and medical care 
delivery specialists. See Estelle v. 
Gamble. 429 U.S. 97 (1976) ; Newman v .
Alabama. 503 F. 2d 1320 (5th Cir. 1974). 
Expert witness testimony may be crucial 
to establish that the conduct of police 
officers deviates from accepted norms.
Tennessee v. Garner. 471 U.S. ___, 85
L.Ed.2d 1, 14 (1985).

Cases under Title VII indicate the 
importance of expert testimony to the 
workings of that Act. It would be 
difficult for most plaintiffs to 
challenge a discriminatory employment 
test under Albemarle Paper Co. v, Moodv. 
422 U.S. 405 (1975) , without the aid of
an expert in test validation. Employment 
cases may present unusual issues of job 
relatedness requiring all manner of 
witnesses expert in the underlying



61
substance of the job. See Baker v. City 
of Detroit. 483 F. Supp. 919, 994-1000
(E.D. Mich. 1979). Even the ordinary 
class action employment discrimination 
case, whether under Title VII or 42 
U.S.C. §1981, can rarely be brought 
without the use of a statistician. See
Bazemore v. Friday. 478 U.S. ____ , 92
L.Ed.2d 315, 329-31 (1986); Thornberrv
v. Delta Air Lines. 25 E.P.D. f31,496 
(N.D.Cal. 1980); 28 Ste. Marie v. Eastern

28 In Thornberrv, supra. the court 
noted that;

[I]n the present case, as in 
much of today's Title VII 
litigation, the alleged 
discriminatory practices were 
not overt or de jure but if 
proved, would consist of subtle 
company policies.... In order 
to prove their prima facie 
case, and in particular, to 
rebut defendant's ... defense, 
plaintiffs' statistical case as 
developed through the use of 
computer experts would have 
been essential.

25 E.P.D. at 18, 990-996.



62
Railroad Assoc.. 497 F. Supp. 800, 813-14 
(S.D.N.Y. 1980) (personnel and
statistical experts "essential") , rev'd 
on other grounds, 650 F. 2d 395 (2d Cir.
1981)? Bachman v, Pertschuk, 19 E.P.D. 
H9044 at 6508 (D.D.C. 1979) ("preparation 
of this case surely required such 
[statistical] analysis.").

CONCLUSION
The position of the en banc Fifth 

Circuit, erroneously eliding expert 
witness fees from the coverage of the 
Act, must be repudiated. It is contrary 
to the clearly expressed intent of 
Congress. It would have a devastating 
impact on the whole range of civil rights 
litigation. It would defeat the very 
purposes of the Act: To enable citizens
to afford to vindicate their statutory 
and constitutional civil rights, to 
enable them to do so effectively, and to



63
attract competent counsel to the task.

The judgment of the court below 
should be affirmed, but for the reasons 
that Congress expressed when it passed
the Act.

Respectfully submitted,
STEVEN L. WINTER

University of Miami 
School of Law 
P.0. Box 248087 
Coral Gables, Fla. 33124

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

JAMES ROBERTSON 
HAROLD R. TYLER, JR. 
Co-Chairmen
NORMAN REDLICH, Trustee 
WILLIAM L. ROBINSON 
RICHARD T. SEYMOUR 
Lawyers' Committee for 

Civil Rights Under Law 
1400 'Eye' Street, N.W. 
Washington, D.C. 20005



64

JOHN A. POWELL
American Civil Liberties
Union Foundation

132 West 43rd Street 
New York, New York 10036

ANTONIA HERNANDEZ 
E. RICHARD LARSON 
Mexican American Legal 

Defense & Educational 
Fund
634 South Spring Street 
Los Angeles, CA 90014

Attorneys for Amici Curiae 
♦Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177