Champion International Corporation v. International Woodworkers of American Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae in Support of the Grant of a Writ of Certiorari

    No. 86-328

In the

dmtri ni tlje Initeii States
Octobee T eem, 1986

Champion I nternational. Corporation,
Petitioner,

v .

I nternational W oodworkers op A merica, 
AFL-CIO-CLC,

Respondent.

on petition por a writ op certiorari to the united states 
court op appeals por the pipth circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE 

IN SUPPORT OF THE GRANT OF A 
WRIT OF CERTIORARI

J ulius L eV onne Chambers 
Charles Stephen R alston*

99 Hudson Street 
16th F loor
New York, New York 10013 
(212) 219-1900

Steven L. W inter
University o f Miami
School o f Law
P.O. B os  248087
Coral Gables, Florida 33124-8087

Attorneys for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

*'Counsel o f Record



QUESTION PRESENTED
May expert witness fees and expenses 

be included as part of an award of 
attorneys' fees under the Civil Rights 
Attorneys' Fees Act of 1976 and other fee- 
shifting statutes?

i



TABLE OF CONTENTS
Page

Question Presented i
Table of Contents ii
Table of Authorities iii
Interest of Amicus 1
ARGUMENT 3

I. INTRODUCTION 3
II. THE QUESTION OF WHETHER 

EXPERT WITNESS FEES AND 
OTHER EXPENSES MAY BE 
RECOVERED UNDER THE 
ATTORNEYS' FEES STATUTES
IS OF NATIONAL IMPORTANCE 6

III. CONGRESS INTENDED THAT 
EXPERT WITNESS FEES AND 
OTHER NECESSARY COSTS OF 
LITIGATION BE RECOVERABLE 
AS PART OF ATTORNEYS'
F E E S ................... 11

Conclusion....................... 2 6

ii



TABLE OF AUTHORITIES
Cases: Page
Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S.
240 (1975)................. 13, 20

Bazemore v. Friday, 478 U.S. ___,
92 L. Ed. 2d 315 (1986)........  9

Bradley v. School Bd. of City of 
Richmond, 53 F.R.D. 28 (E.D.
Va. 1971).....................  21

Bradley v. School Bd. of City of
Richmond, 416 U.S. 696 (1974) . 2

Cannon v. University of Chicago, 441
U.S. 677 (1979)............  24, 25

Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978) . . . .  2, 6, 25

Chrysler Corp. v. Brown, 441 U.S.
281 (1979).....................  16

Davis v. County of Los Angeles,
8 E.P.D. £>9444 (C.D. Cal. 1974) 21,22

Fairley v. Patterson, 493 F.2d 598
(5th Cir. 1974)............  12, 20

Foti v. Immigration and Naturalization
Service, 375 U.S. 217 (1963) . . .  17

Hensley v. Eckerhart, 461 U.S. 424
(1983)......................... .. 2

Hughes v. Rowe, 449 U.S. 5 (1980) . . .  25
Hutto v. Finney, 437 U.S. 678 (1978) . 2

iii



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)................. 4, 7, 11

Jones v. Wittenberg, 330 F. Supp. 707
(N.D. Ohio 19 7 1 ).................. 21

La Raza Unida v. Volpe, 57 F.R.D. 94
(N.D. Cal. 1972) . ...............  20

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)................ 2

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)...................  21

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)............... 20, 21

Schwegman Bros. v. Calvert Distillers
Corp., 341 U.S. 384 (1951) . . .  16

Sledge v. J.P. Stevens, 12 E.P.D.
fell,047 (E.D.N.C. 1976) ........  21

Stanford Daily v. Zurcher, 64 F.R.D.
680 (N.D. Cal. 1974)..........  22

Swann v. Charlotte-Mecklenburg Bd. of
Ed. , 402 U.S. 1 (1971)........  9

iv



Swann v. Chariotte-Mecklenburg Board 
of Education, 66 F.R.D. 483
(W.D.N.C. 1975)............. 22, 23

Tennessee v. Garner, 471 U.S. ,
85 L.Ed. 2d 1 (1985)............. 9

Thornburg v. Gingles, 478 U.S. ,
92 L.Ed.2d 25 (1986)........  9, 16

Vasquez v. Hillery, 474 U.S. , 88
L.Ed.2d 598 (1986) ............... 9

Welsch V. Likins, 68 F.R.D. 589 (D.
Minn.) aff'd. 525 F.2d 987 (8th 
Cir. 19 7 5 ).......................  20

Zuber v. Allen, 396 U.S. 168 (1969) . . 16

Statutes:
Civil Rights Attorneys Fees Act of

1976 ........................... passim
42 U.S.C. §1988 ...................  passim
28 U.S.C. §1821 ........................ 5

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).............. .. 14, 15
The Effect of Legal Fees on the 
Adequacy of Representation,
Hearings Before the Subcomm. on

v



Representation of Citizen 
Interests of the Comm, on the 
Judiciary, United States Senate,
93 Cong., 1st Sess. (1973) . . . .  13

122 Cong. Rec. H 12150 (daily ed.,
Oct. 1, 1976) .................

122 Cong. Rec. H 12155 (daily ed.,
Oct. 1, 19 7 6 ) ............... 17

122 Cong. Rec. H 12159-12160 (daily 
ed., Oct. 1, 1976) ..........

122 Cong. Rec. H 12165 (daily ed.,
Octi 1, 1976) ...............

122 Cong. Rec. S 16252 (daily ed.,
Sept. 21, 1976) ...............

H. R. Rep. No. 94-1558, 94th Copg.,
2d Sess. (1976) ...............

S. Rep. No. 94-1011, 94th Cong., 2d 
Sess. (1976).......... ..



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-CLC,

Respondent.

On Petition for A Writ of Certiorari to 
the United States Court of Appeals 

for the Fifth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND,INC., AS AMICUS 
CURIAE IN SUPPORT OF THE GRANT OF 

A WRIT OF CERTIORARI
INTEREST OF AMICUS 1 1

1Letters consenting to the filing of 
this brief have been lodged with the Clerk 
of Court.



2

The NAACP Legal Defense and 
Educational Fund, Inc. has been in the 
forefront of civil rights litigation for 
many years. As part of that effort we 
have had a long standing interest in the 
award of attorneys' fees and costs 
adequate to ensure an appropriate level of 
private enforcement of the civil rights 
statutes. Thus, we have appeared as 
counsel or as amicus curiae in most of the 
leading civil rights attorneys' fees 
cases.2

As we explain below, this case 
involves a vitally important issue—  
whether litigation costs essential to the 
adequate representation of civil rights

2E.q., Newman v. Pjqcrie Park 
Enterprises. Inc.. 390 U.S. 400 (1968);
Bradley v. School Bd. of City of Richmond. 
416 U.S. 696 (1974); Christiansbura
Garment Co. v. EEOC. 434 U.S. 412 (1978); 
Hutto v. Finnev. 437 U.S. 678 (1978); 
Hensley v. Eckerhart. 461 U.S. 424 (1983).



3
plaintiffs are recoverable as part of an 
award of attorneys' fees under 42 U.S.C. § 
1988. Amicus has a direct interest in the 
question since its ability to carry out 
its program will be seriously jeopardized 
if it cannot recover the often substantial 
expert witness fees and other costs it 
must expend in representing its clients.

ARGUMENT
I.

INTRODUCTION
Even though the judgment below was in 

favor of the civil rights plaintiff, 
amicus NAACP Legal Defense and Educational 
Fund, Inc., supports the grant of a writ 
of certiorari in this case because the 
erroneous legal ruling of the Fifth 
Circuit threatens to cripple civil rights
enforcement in that circuit in direct
contravention of the manifest intent of
Cognress. The en banc court below



4
properly rejected the position taken by 
petitioner that a prevailing defendant in 
a civil rights case should be awarded 
costs of expert witnesses as part of their 
ordinary costs of litigation. But, it 
reached that conclusion as a result of a 
demonstrably incorrect and potentially 
devastating line of reasoning: that
expert witness fees are never available in 
civil rights cases as part of an award of 
attorneys' fees under 42 U.S.C. § 1988 or 
any other federal fee-shifting statute. 
As we demonstrate below, this holding 
flies in the face of the extensive and 
clear legislative history of § 1988. If 
left standing, this en banc directive to 
the district courts in the circuit to 
disregard the prior decision in Jones v. 
Diamond. 636 F.2d 1364 (5th Cir. 1981),



5
will cripple civil rights enforcement.3

In sum, because of the importance of 
the availability of reimbursement for 
expert witness fees to the enforcement of 
the civil rights statutes, we urge that 
the Court grant the petition for writ of 
certiorari and affirm the district court’s 
denial of costs on the following grounds: 
1) Expert witness fees and related costs 
are not ordinarily recoverable under 28 
U.S.C. § 1821; 2) such fees may, however, 
be recovered as part of an award of 
attorneys' fees under the civil rights 
statutes; 3) civil rights defendants, 
therefore, may recover such fees only if

3Because there were narrower grounds 
to support its judgment, the broader 
ruling of the Fifth Circuit was both 
incorrect and unnecessary to the 
disposition of the issue before it. 
Despite the fact that the Fifth Circuit's 
opinion is technically dicta, there is the 
very real prospect that the lower courts 
in that circuit will feel bound by its 
reasoning.



6
the standards of Christiansburg Garment 
Company v . EEOC. 434 U.S. 412 (1978), are 
met; 4) the district court was correct 
when it held that Christiansburg was not 
satisfied because this action was not 
frivolous, unreasonable, or without 
foundation, nor was it brought in bad 
faith.

II.
THE QUESTION OF WHETHER EXPERT WITNESS 
FEES AND OTHER EXPENSES MAY BE RECOVERED 
UNDER THE ATTORNEYS' FEES STATUTES IS OF 
NATIONAL IMPORTANCE.

As the petition for a writ of 
certiorari correctly notes, there has been 
extensive litigation in the lower federal 
courts over whether and under what 
circumstances expert witness fees and 
other costs not specifically enumerated in 
the cost provisions of Title 28 of the 
United States Code may be recovered under 
the civil rights attorneys' fees statutes. 
The petitioner also correctly notes that



7
the decision of the court below is in 
square conflict with decisions of other 
courts of appeals and, indeed, repudiates 
a prior en banc decision of the Fifth 
Circuit itself that this Court accepted 
for review.4

The question presented is of the 
utmost importance for the enforcement of
the civil rights statutes. But
fortunately its difficulty is not
proportionate to its importance. As
demonstrated in Part III below, the
various attorneys' fees provisions in the 
federal civil rights laws were enacted 
precisely because Congress knew that, 
without fee shifting that included expert 
witness fees, private plaintiffs would be 
unable to bring civil rights cases.

4Jones 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).



8
Accordingly, Congress acted to make 
effective the private enforcement of the 
civil rights statutes without which the 
eradication of discrimination and other 
constitutional violations could not be 
achieved.

This Congressional wisdom has become 
more prophetic as civil rights litigation 
has become more complex, and more costly. 
In addition to actual attorneys' fees, 
out-of-pocket costs have grown to be far 
beyond the resources of litigants and 
those few private organizations dedicated 
to the enforcement of civil rights. In 
particular, expert witness fees and 
related expenses have consumed an 
increasingly large proportion of the costs 
of successfully litigating civil rights 
claims. As this Court itself has noted, 
expert witness testimony is often 
essential in employment discrimination



9
cases,5 voting rights cases,6 school 
desegregation cases,7 jury discrimination 
cases,8 and police practices cases,9 to 
name but five categories. Proof of 
discrimination and the development of 
adequate records has involved the use of 
statisticians, labor economists,
historians, and other experts. Expert 
testimony requires not only the cost of 
the time of the witness but significant 
costs in developing the data and other 
evidence on which their testimony is 
based. In a complex Title VII case, for

5Bazemore v. Friday. 478 U.S. ,
92 L.Ed.2d 315, 329-31 (1986).

6Thornburcr v. Gincrles, 478 U.S. , 
92 L.Ed.2d 25, 48 (1986).

7Swann v. Charlotte-Mecklenbura Bd. 
of Ed.. 402 U.S. 1, 9-10 (1971).

8Vascruez v. Hillerv. 474 U.S. , 88 
L.Ed.2d 598, 606 (1986).

9Tennessee v. Garner. 471 U.S. ,
85' L.Ed.2d 1, 14 (1985).



10
example, it is essential to develop and 
effectively present statistical evidence. 
This requires assembling data, converting 
it to computer readable form, development 
of statistical programs, the analysis and 
preparation of reports and exhibits, and 
the presentation of testimony. It has 
been amicus' experience that, with few 
exceptions, Title VII class actions 
require out-of-pocket expenditures of at 
least $100,000 in order to prepare and 
present them adequately.

Costs of this magnitude are as much 
beyond the means of civil rights 
plaintiffs as are legal fees themselves. 
Under the decision of the Fifth Circuit, 
however, such costs, regardless of how 
necessary they are to the successful 
conduct of a case, may not be recovered 
because they are not enumerated in any 
statute or rule. The necessary result



11
will be that civil rights enforcement will 
be crippled because plaintiffs, their 
attorneys, and organizations with limited 
budgets will be faced with the inability 
to recover such expenses even when they 
are fully vindicated on the merits. As we 
will now demonstrate, this result is 
wholly at odds with the express intention 
of Congress when it enacted the Civil 
Rights Attorney's Fees Act of 1976.

III.
CONGRESS INTENDED THAT EXPERT WITNESS FEES 
AND OTHER NECESSARY COSTS OF LITIGATION BE 
RECOVERABLE AS PART OF ATTORNEYS' FEES.

The opinion of the court below is 
based on a wholly erroneous reading of the 
legislative history of the 1976 Fees Act. 
The court relied on the dissent in Jones 
v. Diamond. 636 F.2d at 1391 to the effect 
that there was "only . . .  a single 
sentence from 'a Senate Report concerning 
legislation which could have contained ...



12
a provision [authorizing the award of 
excess expert witness' fees as costs] but 
did not. '" 790 F.2d at 1180, (emphasis 
in original). Nothing could be further 
from the truth: the entire legislative 
history of the Fees Act is permeated with 
the concern for the problem of expert 
witness fees and clearly reflects their 
inclusion within the fee shifting scheme 
of the Act. This concern was reflected at 
the hearings and in the debates; it was 
addressed by the use of statutory language 
designed to incorporate the prior case law 
that included expert witness fees "in the 
concept of attorneys' fees." Fairley v. 
Patterson. 493 F.2d 598, 606 n. 11 (5th 
Cir. 1974).

At the hearings that led to the Fees 
Act, Congress repeatedly heard that the 
economic deterrents to civil rights 
enforcement, and public interest



13
litigation generally, included both the 
problems of attorneys1 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, plaintiffs' 
counsel in Alveska Pipeline Service Co. v. 
Wilderness Society. 421 U.S. 240 (1975). 
He testified "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...." The
Effect of Lecral Fees on the Adecruacv of
Representation, Hearinas Before the
Subcomm. on Representation of Citizen
Interests of the Comm, on the Judiciary.
United States Senate. 93 Cong., 1st Sess. 
1108 (1973). (Statement of Senator Tunney 
the chairman of the subcommittee and later 
the sponsor of the Fees Act, summarizing 
testimony.) See also id. at 832-34



14
(Flannery statement); id. at 799 
(Statement of J. Anthony Kline); id. at 
1127-28 (Remarks of Senator Tunney).

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 Attorneys1 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 Sess. 159 
(1975). (Statement of Peter H. Schuck, 
Consumers Union, Inc.) The Lawyers' 
Committee on Civil Rights testified that 
civil rights cases were not being filed 
because counsel "are rarely able to afford 
the technical assistance of expert 
witnesses...." Id. at 89, 100 (Statement



15
of Armand Derfner and Mary Frances 
Derfner) . 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).

Congress responded by crafting a bill
that used the precise language of Titles
II and VII and that intentionally adopted
the prior case law under these statutes
and the "private attorney general" theory.
As explained 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. §1973#(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.



16
2, 4 (1976).10 11 Senator Kennedy, one of 
the sponsors of the bill,11 further 
indicated that the bill "is intended 
simply to expressly authorize the courts 
to continue to make the kinds of awards of

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

11 ln Schwegman Bros, v. Calvert 
Distillers Coro.. 341 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. More recently, in Chrysler 
Corp. v . Brown. 441 U.S. 281 (1979), this 
Court explained that: "The remarks of a 
single legislator, even the sponsor, are 
not controlling in analyzing legislative 
history ... [but] must be considered with 
the Reports of both Houses and the 
statements of other Congressmen...." Id. 
at 311. Since Senator Kennedy's remarks 
as sponsor are wholly consistent with and 
complementary to the bulk of the 
legislative history, they possess added 
weight.



17
legal fees that they had been allowing 
prior to the Alyeska decision.” 122 Cong. 
Rec. S 16252 (daily ed. , Sept. 21, 
1976).12

During the floor debate on the House 
side, Congressman Drinan, the bill's 
sponsor 13 and the author of the committee 
report, 14 amplified on the comments in 
that report. See H.R. Rep. No. 94-1558, 
94th Cong., 2d Sess. 5-6 (1976).

The purpose of S.2278 —  and its

12 In the House, both 
Representatives Railsback and Bolling 
noted that the bill merely codified and 
restored the pre-Alveska law. 122 Cong. 
Rec. H 12154; 12155 (daily ed., Oct. 1, 
1976).

13 See n. 11, supra.
14Mr. 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, 223 
n. 8 (1963).



18
House counterpart, H.R. 15460 —  is 
to authorize the award of a 
reasonable attorney's fee in actions 
brought in State or Federal courts, 
under certain civil rights statutes .
. . . By permitting fees to be 
recovered under those statutes, we 
seek to make uniform the rule that a 
prevailing party, in a civil rights 
case, may, in the discretion of the 
court, recover counsel fees.

The Civil Rights Attorney's Fees 
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 case 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) . . . .

The language of S. 2278 tracks 
the wording of attorney fee 
provisions in other civil rights 
statutes such as section 706(k) of 
Title VII —  employment —  of the 
Civil Rights Act of 1964. The 
phraseology employed has been 
reviewed, examined, and interpreted 
by the courts, which have developed 
standards for its application. . . . 
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 legal 
services provided by counsel,



19
including all incidental and
necessarv expenses incurred in
furnishing effective and competent
representation.

122 Cong. Rec. H 12159-12160 (daily ed. ,
Oct. 1, 1976) (emphasis added).

Congressman Drinan's comments are 
particularly important for two reasons. 
First, they indicate the explicit intent 
of Congress to adopt the existing case law 
under Title VII.15 More importantly, they 
indicate that Congress was conscious that 
expert witness fees and other out-of- 
pocket expenses had been recoverable even 
though they were not traditional "costs." 
Rather, these non-statutory costs had been 
treated in just the way Congressman Drinan 
explained:

Costs not subsumed under federal 
statutory provisions normally * 1

^Representative Anderson, one of the 
floor managers of the bill, also made this 
point at the opening of the floor debates. 
122 Cong. Rec. H 12150-51 (daily ed., Oct.
1, 1976).



20
granting such costs against the 
adverse party . . . are to be 
included in the concept of attorneys1 fees.

Fairley v. Patterson. 493 F.2d 598, 606 n. 
11 (5th Cir. 1974) (emphasis added).

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" cases16 and under the attorneys'

Xfo It is significant that § 1988
was the legislative response to Alveska; 
it was in the pre-Alveska civil rights 
cases that expert witness fees were most 
consistently awarded. 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. 68 F.R.D. 589, 
596-97 (D. Minn.) aff'd. 525 F.2d 987 (8th 
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 on other 
grounds, rev'd in part on other grounds. 
516 F . 2d 1251 (5th Cir. 1975), rev1 d on 
other grounds. 431 U.S. 951 (1977)
(employment discrimination suit under 
Title VII and §1981: attorneys' and expert 
witness fees awarded under both Title VII 
and "private attorney general" theory); La 
Baza Unida v. Volpe. 57 F.R.D. 94, 102



21
fees provision of Title VII on which the 
Act was modeled.* 17 Indeed, the award of 
expert witness fees to the prevailing 
party in Title VII litigation was so well 
established that it often went 
uncha11enged. Davis v. County of Los 
Angeles. 8 E.P.D. £9444, p. 5048 (C.D. 
Cal. 1974) ("These charges were not 
challenged by defendants and are

(N.D. Cal. 1972); Bradley v. School Bd. of 
City of Richmond. 53 F.R.D. 28, 44 (E.D. 
Va. 1971)(school desegregation); Jones v. 
Wittenberg. 330 F. Supp. 707, 722 (N.D. 
Ohio 1971)(jail case).

17Rios____ v_._____Enterprise____ Ass'n
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. £9444 (C.D. Cal. 1974); Sabala v. 
Western Gillette. Inc.. 371 F. Supp. 385, 
394 (S.D. Tex. 1974), aff8d in part, rev'd 
in. part on other grounds. 516 F.2d 1251 
(5th Cir. 1975), rev1d on other grounds. 
431 U.S. 951 (1977). See also Sledge v. 
J.P. Stevens. 12 E.P.D. £11,047 (E.D.N.C. 
1976) (prospective award of fees for 
plaintiffs' expert necessitated by 
defendants' computerized records).



22
valid”).18

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 Daily v. Zurcher, 64 F.R.D. 
680 (N.D. Cal. 1974); Davis v. County 
of Los Angeles. 8 E.P.D. £9444 (C.D. 
Cal. 1974); and Swann v. Charlotte 
Mecklenburg Board of 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. These
cases were carefully chosen to include
both statutory —  Davis and Swann, supra.
—  and non-statutory "private attorney
general" —  Stanford Daily, supra, —  fee
awards and to include a broad range of
attorneys1 fee issues including the
recoverability of expert witness fees and

18 Research reveals no reported 
pre-1976 Title VII cases in which expert 
witness fees were discussed and disallowed.



23
paralegal and out-of-pocket expenses. 
Indeed, of these three paradigmatic cases, 
twC involved the award of substantial 
expert witness fees —  Davis. noted above, 
and Swann.19

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 manner of reasonable out-of-pocket 
expenses20 as part of "fees and costs."

19Amicus was of counsel in Swann. Of 
the $23,972.33 in costs awarded by the 
district court, over one third was for 
expert witness fees and expenses.

20 Even the bill's opponents 
understood this, as Congressman Bauman of 
Maryland made clear in his statement on 
the floor.

I agree that people ought to have 
their rights vindicated, but could we 
not imagine a situation in which a 
so-called public interest lawyer, who 
may be financed independently, would 
be inclined to file a suit not only 
to test a legal point but also in the



24
The decision below ignored this 

extensive and clear legislative history.
It also appears to have applied a ’'plain 
meaning” or "clear statement" rule 
requiring that Congress express its intent 
in the plain language of the statute. 
This rule has no basis in the case law; to 
the contrary, in the civil rights and fee 
areas, the Court has recognized as 
appropriate an approach to legislative 
drafting that deliberately adopts the 
wording of earlier statutes in order to 
incorporate by reference the existing case 
law. See, e.g. . Cannon v. University of 
Chicago. 441 U.S. 677, 696-97 (1979)

hope that the court would grant his 
client plaintiffs' legal fees, and 
therefore his expenses?

122 Cong. Rec. H 12165 (daily ed., Oct. 1, 
1976). 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 H 12155.



25
(implied cause of action under Title IX);
Hughes v. Rowe. 449 U.S. 5 (1980);
Christiansburg Garment Co. v. E.E.O.C..
434 U.S. 412 (1978) (higher standard for
award of fees to prevailing defendant).

The drafters . .. explicitly assumed 
that _ it would be interpreted and 
applied as [these provisions] had 
been during the preceding [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. 
at 696-98. Congress deliberately
incorporated expert witness fees into the 
fee shifting scheme of the Act by 
incorporating the prior case law. That 
decision should be respected.



26
Conclusion

For the foregoing reasons, the 
petition for a writ of certiorari should 
be granted.

Respectfully submitted,

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

STEVEN L. WINTER
University of Miami 
School of Law 
P.O. Box 248087 Coral Gables,Fla.33124-8087

Attorneys for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.
♦Counsel of Record



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