Does the Term “Attorneys’ Fees as Part of the Costs” Include Experts’ Fees?

Arlington Central School Dist. Bd. of Ed. v. Murphy

The Individuals with Disabilities Education Act provides that a court “may award reasonable attorneys’ fees as part of the costs” to prevailing parents. The question here is whether that extends to compensation of experts. The Court argues that since the Act was passed under Congress’ spending power, it must be construed much like a contract (Pennhurst State School and Hospital v. Halderman). Therefore, there can be no binding provision within it unless the States were on clear notice that it existed in the terms of the legislation. The Court reads the word “costs” as a term of art, more narrowly than “expenses,” and points out that the law does not allow a court to award “costs,” but rather allows a court to award reasonable attorney’s fees “as part of the costs,” adding attorney’s fees to a list of otherwise recoverable costs. The Court states that this is “obviously the list set out in 28 U.S.C. §1920, the general statute governing the taxation of costs in federal court, and which is itself limited by another statute (28 U.S.C. §1821). However obvious that may be to the Court, it suffices that the Court concludes that the law fails to provide the clear notice required by the Spending Clause.

The Court also finds the costs/expenses distinction in the paragraph of a GAO study that respondents use to argue that their reading was intended by Congress. The Court then moves on to the case law basis for its decision.

In Crawford Fitting the Court ruled that the term “costs” in 28 U.S.C. §1821 was defined by the list set out in 28 U.S.C. §1920 because to decide otherwise would be to decide that a portion of the law had been overruled. It also warned that it would not “lightly infer that Congress has repealed §§1920 and 1821.” In Casey the Court ruled that the term “reasonable attorney’s fees as part of the costs” in 42 U.S.C. §1988 did not include expert fees. Deciding that the same language has two different meanings goes against the idea that the states must be put on notice of the requirements of the law. The lower court noted a conference committee report that said “the conferees inted[ed] that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the … case.” While this may be a genuine expression of a legislative intent to coin a term of art, the Court rejects the argument because (a) it does not make the requirements of the law on the states unequivocal, and (b) it implicitly recognizes that the ordinary meaning of the terms does not include expert fees.

Respondents argue that their interpretation comports with the overarching goals of the law, but the Court finds these goals to be too general to clearly convey a legal obligation on the states. “In a spending clause case, the key is not what a majority of Members of both houses intended but what the States are clearly told regarding the conditions that go along with the acceptance of those funds.”

Justice Ginsburg objects to the extraction of a ‘clear notice’ requirement from Pennhurst because this case does not concern the Spending Clause framework, but remedies available against a noncomplying district.

Justices Breyer, Stevens, and Souter emphasize the Conference Committee report as an expression of legislative intent and argue that this interpretation furthers the IDEA’s statutorily defined purposes. When passing the IDEA several senators introduced a bill that would have put a cap on the fees, but would have explicitly authorized the award of witness fees and other reasonable expenses, in addition to attorney fees. Its replacement also allowed a parent to recover attorney’s fees “in addition to the costs,” language which was described as “enable[ing] courts to compensate parents for whatever reasonable costs they had to incur to fully sercure what was guaranteed to them by the EHA.” Meanwhile, the House version provided for “attorneys’ fees, expenses and costs.” These phrases were changed to what they are today, according to the conference report, in order to “ incorporate the Supreme Court[‘s] Marek v. Chesny decision. The conferees intended… (see above).”

The dissent warns that today’s ruling will restrict the primary purpose of the Act by reinstituting obstacles to the vindication that the Act provides. IDEA has been interpreted in the past without any reference to clear-statement rules or to the Spending Clause. Also, “neither Pennhurst nor any other case suggests that every spending detail of a Spending Clause statute must be spelled out with unusual clarity.” Besides, judicial filling-in is to be expected, and the States would have accepted the funds anyway. The states could have anticipated some requirement, and the dissent believes that its interpretation is not so far out of line that it would pose an unfair burden on the states. The dissent suggests that the law should be read as implying a general power to award costs, while specifying reasonable attorneys’ fees among them.

Additionally, the cost list that the majority uses applies only in federal court, which makes no sense here as the actions must begin in state court. Addressing the argument that the traditional scope of the term of art “costs” does not include expert fees, the dissent believes that the congressional intent is sufficient to demonstrate that the term was not meant as a term of art.