Arlington Central School District Board of Education v. Murphy – Oral Argument – April 19, 2006

Media for Arlington Central School District Board of Education v. Murphy

Audio Transcription for Opinion Announcement – June 26, 2006 in Arlington Central School District Board of Education v. Murphy

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John G. Roberts, Jr.:

We’ll hear argument first in Arlington Central School District Board of Education v. Murphy.

Mr. Kuntz.

Raymond G. Kuntz:

Thank you, Mr. Chief Justice, and may it please the Court–

The statute awarding attorneys’ fees as part of the costs to the prevailing parents provides a clear rule, imposes a certain obligation.

It should not be expanded to include fees for expert witnesses.

This is a case of statutory construction.

Under longstanding rules, statutes are construed by first looking at the words of the statute.

Is the meaning plain?

If so, the inquiry stops there.

This statute is unambiguous.

Expert fees are not a part of attorneys’ fees.

Expert fees are not costs.

The statute contains no reference to expert fees.

They are not shifted to the school district when the parents prevail.

It’s our belief that the lack of compensation for experts is an intentional exclusion and omission from the statute.

Congress knows how to add expert fees in a cost shifting statute, and that omission is telling here.

In that context, I think it’s important to draw the Court’s attention to the origin of the statute.

It was in response to this Court’s decision in Smith against Robinson.

At the time that Smith against Robinson was heard, the EHA was often grafted onto other causes of action as a pleading device to… in an attempt to ensure that attorneys’ fees flowed to the prevailing party at the conclusion of the case.

So cases were brought not only under the… the Education for All Handicapped Children Act, but also under 504 of the Rehabilitation Act of 1973 and under 1983 as well of… on the theory that these were equal protection claims brought under the Fourteenth Amendment.

In Smith against Robinson, this Court made it clear that the avenue that had to be followed by the parents was exclusively that of… of the remedy provided under the Education for All Handicapped Children Act.

In response to that decision of the Court, as my opponent points out in his brief… I think it was 19 days later… bills were introduced into Congress to remedy what Congress at that point saw was a… a lack of coverage for fees for attorneys for the prevailing parties in cases under the… under the act.

So it’s no… no great surprise that what Congress did in that instance was to take the language that appears in section 1988 and, in effect, lift it and put it into the… into the act, into what we now call the IDEA.

And it’s very clear that in doing so, it limited the right of recovery to attorneys’ fees, and that right does not include the expert fees advocated by the respondents here this morning.

John Paul Stevens:

Do you think the right includes any costs other than statutory costs, any expenses?

Raymond G. Kuntz:

No, it does not, Your Honor.

John Paul Stevens:

How do you explain the reference to expenses on page 4 of the red brief which quotes from the… a section of the statute authorizing a report to be made, a report authorized under?

They shall include data about the specific amount of attorneys’ fees, costs, and expenses.

Why do you suppose they put the word expenses in?

Raymond G. Kuntz:

Well, it said attorneys’ fees, costs, and expenses.

John Paul Stevens:

Right.

Raymond G. Kuntz:

And it’s a direction to–

John Paul Stevens:

So the expenses must be something other than attorneys’ fees or costs.

Raymond G. Kuntz:

–Well, they could be expenses of the attorney.

But if they were to be… be set aside separately, that’s no indication that… that Congress intended that expenses of other individuals be shifted to the cost… shifted, rather, to the school district.

It’s a direction to the GAO to acquire data–

John Paul Stevens:

Right.

Raymond G. Kuntz:

–for future reference by… by Congress.

David H. Souter:

Well, what about… may I just take the question one step further?

I think it’s in a subsequent clause in that same section requiring the GAO report that it refers to the… the… I forget whether… the expenses of consultants.

Why was the word consultant in there?

Because as… as I understand it, a consultant would not be covered by the costs… the general costs statute.

Raymond G. Kuntz:

Your Honor, I believe that’s correct.

That’s in… in subdivision (B).

Ruth Bader Ginsburg:

Is it?

I thought the… there was a reference to hours of consultants, but not expenses.

Raymond G. Kuntz:

There are two subdivisions, subdivision (A) and subdivision (B).

Subdivision (A) says attorneys’ fees, costs, and expenses… expenses, and in subdivision (B), it refers to consultants.

But there isn’t any–

Anthony M. Kennedy:

I… I would have thought that your answer would be that the Congress was interested in finding out the cost of this act, and it’s very clear that school districts hire consultants to assist them in… in these cases, and it wanted to know the amount they were paying to the consultants.

And that’s also why it used the word personnel, which… which is a word usually reserved for a government agency.

Raymond G. Kuntz:

–I… I believe Your Honor is correct in that it… it’s a direction by the GAO to acquire data.

And I believe we argued that point in our brief, just as Your Honor has expressed it.

We think that that direction to the GAO, however, does not relate back particularly and… and certainly doesn’t inform this Court or inform the statute that expert’s fees are to be included and shifted over to the… to the school district.

Stephen G. Breyer:

But does it make it possible to read… I mean, I agree with you it doesn’t say to do that, but I guess you could read it to do that, couldn’t you?

I mean, you said the word cost wasn’t ambiguous.

Raymond G. Kuntz:

Under this statute.

Stephen G. Breyer:

Maybe you might be right, maybe absolutely, but might you also be wrong?

How is it not ambiguous?

It might cover… it might cover the fees of consultants.

Stephen G. Breyer:

It might be that the argument you made is right, but it also mightn’t.

Raymond G. Kuntz:

Your Honor, I think this Court has looked at that issue in… in two separate cases, and one of those cases is Crawford Fitting and the other is–

Stephen G. Breyer:

Which involved this statute?

Raymond G. Kuntz:

–Well, it didn’t involve this–

Stephen G. Breyer:

All right.

Well, I mean, we have a statute and they’re using the word costs in the statute, and whatever they used in some other statute they might have meant something different in this statute.

And my question is simply how do we know they didn’t by just reading the word five times, particularly since, in fact, if you look at another part of the statute, they do seem to use the word cost to include number of hours spent by personnel, including consultants, and the expenses incurred.

I mean, can you say… is there a dictionary that says the word costs couldn’t include that?

Raymond G. Kuntz:

–Your Honor, it… it could, but I–

Stephen G. Breyer:

Well, once you say it could, then possibly it’s reasonable to ask what the Congress Members were actually thinking, and as soon as we look at what they were actually thinking, that’s perfectly clear.

Isn’t it?

Because both the conference report and the Senate report say absolutely clearly that they intended this kind of expense to be used, which is why the GAO went out and did all the studies to include it.

Raymond G. Kuntz:

–But we come back to the historical derivation of how this statute came into… into being, and it did come in in response to Smith against Robinson.

Antonin Scalia:

I thought the GAO study included not just the… the hours worked and the… the costs, however you choose to define it, on the part of the parent challenging the school board action, but it also included those hours and those costs expended by the school.

Raymond G. Kuntz:

Yes, Your Honor, it does.

Antonin Scalia:

In which case it could not possibly have been directed to what items are compensable.

Raymond G. Kuntz:

We think that’s a separate section.

Antonin Scalia:

On its face, it covers at least half of the items that are not compensable.

Raymond G. Kuntz:

That’s true, Your Honor.

Stephen G. Breyer:

It’s true, but–

John Paul Stevens:

Isn’t it true that the provision I referred to refers to the specific amount of attorneys’ fees, costs, and expenses awarded to the prevailing party?

So it’s definitely referring to expenses incurred by the… by the plaintiff.

Isn’t that true?

Raymond G. Kuntz:

Your Honor, I… that’s correct.

John Paul Stevens:

Yes.

Raymond G. Kuntz:

But I think there are expenses that… that the attorney bears in… in the routine of a… of a… of handling the client.

Those are expenses–

John Paul Stevens:

So you’re saying the word expenses should refer only to expenses incurred by counsel, which of course would be normally reimbursable.

Raymond G. Kuntz:

–Yes, Your Honor.

Anthony M. Kennedy:

Well, but I’m not… I’m not sure that you don’t have a further answer to Justice Stevens because there’s (3)(A) and (3)(B).

Anthony M. Kennedy:

(3)(A) talks about costs and expenses awarded to the prevailing party.

(3)(B) says, for the same sample the number of hours spent.

Raymond G. Kuntz:

They’re talking about… the same sample refers to a… a designated number of States, a representative number of States.

So the sample refers to the States surveyed, not to those–

Stephen G. Breyer:

–That’s certainly possible.

I just wonder why don’t we look and see what they intended, since they told us.

In the conference report, they say the conferees intend the phrase, attorneys’ fees as part of costs, to include reasonable expenses and fees of expert witnesses and the reasonable cost of any test or evaluation which is found to be necessary for the preparation of a parent or guardian’s case in the action or proceeding.

So why are we metaphysically trying to guess what Congress intended when they told us what they intended?

Raymond G. Kuntz:

–Your Honor, I don’t think it’s so much a question of metaphysics or philosophy… maybe perhaps of philosophy.

Stephen G. Breyer:

My question is why don’t we just look and see what they intended since they wrote it down on a piece of paper and all we have to do is read it?

Antonin Scalia:

Did Congress say that, Mr. Kuntz?

Raymond G. Kuntz:

No, Congress didn’t say that.

Stephen G. Breyer:

I thought it did.

I thought that the conferees in Congress wrote in the conference report precisely what they intended.

Raymond G. Kuntz:

Your Honor, if I might respond to that.

Stephen G. Breyer:

Oh, I’d like you to respond to it.

[Laughter]

Raymond G. Kuntz:

It’s… it’s a longstanding rule of statutory construction that Congress’ intent is best found in the language that Congress actually puts into the statute.

And as we pointed out in the brief, there were previous versions of this act which included experts’ fees which did not make its way to the final version approved by both the… the Senate and the House.

John Paul Stevens:

There’s no doubt that the best evidence is the text of the statute, but at least the people who drafted this, even if they were not the conferees themselves but were just staff members, they apparently thought the language was subject to that reading.

Raymond G. Kuntz:

Your Honor–

John Paul Stevens:

Which would mean it would be ambiguous, wouldn’t it?

Raymond G. Kuntz:

–The rule that we look first to the… yes, Your Honor.

Yes.

John Paul Stevens:

The rule that you refer to that you cannot look at legislative history… of course, we always start with the plain language.

That’s clear.

But the rule that you cannot look at legislative history didn’t really get any emphasis till after 1987, and this statute was enacted in 1986.

Raymond G. Kuntz:

But that… in… in the retrospective view that the Court looked at in… in the… the Casey decision, it went back and it traced the origin of a number of… of statutes and looked essentially to similar language, and it found that experts’ fees were not a part of attorneys’ fees, and it found that experts’ fees were not a part of… of costs.

Ruth Bader Ginsburg:

But it also found that there were dozens of statutes, I think… didn’t Justice Scalia list in his opinion for… it went on for a couple of pages, including footnotes?

I think it was over 30 that did mention experts.

Ruth Bader Ginsburg:

It mentioned attorneys’ fees and expert fees.

Raymond G. Kuntz:

Yes, Your Honor, and to us that proves that Congress knows how to distinguish between experts’ fees and attorneys’ fees when it wants to.

Antonin Scalia:

Was this language, by the way… I’m not clear.

It always cited to the House… the House conferees.

Was… was this language in the… in the Senate conference report?

Raymond G. Kuntz:

No, Your Honor, I don’t believe it was.

Antonin Scalia:

So we don’t really know–

Raymond G. Kuntz:

It emanates… it emanates solely from the House conference report.

Antonin Scalia:

–Well, that’s only half of the Congress, isn’t it?

Even if–

John Paul Stevens:

I thought it was a joint explanatory statement.

Antonin Scalia:

–even if everybody in the House agreed with that, which we don’t really know.

What about the President?

When he signed it, did… did he indicate any interpretation?

Raymond G. Kuntz:

His… Your Honor, the… the President hesitancy was about the retroactive effect of the statute, and he noted that in his signing memorandum, but he didn’t note any other differences.

Antonin Scalia:

So we have a committee of one house that said… that said that, that thought it meant that or would have liked it to mean that.

Raymond G. Kuntz:

Yes, Your Honor.

And it isn’t all that unusual that the congressional history of a particular statute might point one way and the actual plain meaning point another way.

John Paul Stevens:

How do you explain the title, Joint Explanatory Statement of the Committee of the Conference?

Doesn’t that speak for both the House and the Senate?

Raymond G. Kuntz:

It… yes, Your Honor, it does.

Stephen G. Breyer:

So it’s not correct it’s just for one house.

It’s… what I have is the Joint Explanatory Committee, and it says the managers, on the part of the House and the Senate.

Raymond G. Kuntz:

It… it does say that, Your Honor.

Stephen G. Breyer:

All right.

And is there some rule… I don’t know what this rule is you can’t refer to legislative history.

Does it say that in the Constitution of the United States?

Raymond G. Kuntz:

No, Your Honor, it doesn’t.

Stephen G. Breyer:

No.

And so–

John G. Roberts, Jr.:

Counsel, sometimes these joint statements are actually voted on by the Congress as a whole.

Was this one… was this one voted on?

Raymond G. Kuntz:

There was no evidence of that, Your Honor, in our review.

Stephen G. Breyer:

–Which ones are voted on?

I’ve not heard of that.

I mean, they might be, but it used to be that the… they circulate the report to all the Members and the Members read it, and if a Member disagrees with it, they note their dissent.

Maybe it’s changed.

But I guess–

John Paul Stevens:

Can you cite an example of a conference report that was voted on by the Congress?

Raymond G. Kuntz:

I… I cannot, Your Honor, and that’s why I… I responded as I did, which is that I know of no evidence.

Anthony M. Kennedy:

I think we have said that conference reports are more valuable than the reports of a single house.

I think we have said that.

Antonin Scalia:

They are voted on when the… when the conferees make changes, which they sometimes do.

Then… then, of course, they have to be voted on.

So it’s frequent.

It’s frequent that they’re voted on, but this one apparently… there were no changes made and it wasn’t voted on.

Raymond G. Kuntz:

Thank you, Your Honor.

If I… if there are no further questions, I’d like–

Antonin Scalia:

Justice Breyer knows that.

He… he’s worked there.

Raymond G. Kuntz:

–Oh, I’m sorry.

Stephen G. Breyer:

–I didn’t have an opportunity to work for a Senator who, in fact, to my experience asked me to report on a vote on such a thing.

I just wasn’t aware of it.

John G. Roberts, Jr.:

Thank you, counsel.

Raymond G. Kuntz:

Thank you.

I’d like to reserve my time for rebuttal.

John G. Roberts, Jr.:

Certainly.

Raymond G. Kuntz:

Thank you.

John G. Roberts, Jr.:

Mr. Salmons.

You have examples of conference reports being voted on, don’t you?

David B. Salmons:

I do not, Your Honor.

I… I do not dispute the representations that have been made about that practice.

But let me begin by saying, thank you, Mr. Chief Justice, and may it please the Court–

This Court should give the attorneys’ fee provision of IDEA the same construction it gave the nearly identical language of section 1988 in Casey and hold that an award of attorneys’ fees as part of the cost does not include expert fees.

Respondent’s sole argument is that expert fees are included in the statutory term costs, but as this Court made clear in both Casey and Crawford Fitting, the term costs in a fee shifting statute has a well settled meaning and is a reference and is limited to those… that modest category of costs that may be awarded under 28 U.S.C. 1920 and 1821.

Now–

David H. Souter:

What… what do you say about expenses?

Isn’t… isn’t it a fairly common practice for a… a trial lawyer to… to hire his experts and pay them and then bill the client for… for whatever he’s paid for the experts?

I mean, if that is the… this has been a long time since I’ve practiced law.

So maybe that isn’t the way it’s done anymore.

But it… it certainly has been done that way, and… and if that is still the practice, wouldn’t it sense for Congress to have assumed that expenses would include those kinds of expenses?

David B. Salmons:

–No.

No, I don’t think so, Your Honor.

Now, first of all, just to be clear, the… the fee provision that’s at issue here is identical to the fee provision that was at issue in Casey, and it makes no reference to expenses.

It says attorneys’ fees as part of the costs.

Now, in this separate section instructing the GAO to do a report–

David H. Souter:

It’s the GAO reference.

You’re right.

David B. Salmons:

–it says to look at the… the awards in cases, the awards of attorneys’ fees, costs, and expenses.

We don’t think the term expenses in… in that provision can fairly be read to somehow dramatically expand the meaning of the phrase, attorneys’ fees as part of the costs.

We think it’s much more naturally to read that as just a reference, as this Court noted in Casey, to the common practice of including out of pocket expenses of attorneys for things like copying costs and… and necessary travel expenses and things like that as… as also being compensable.

And so we don’t think that that… that term expenses does anything dramatically to the meaning of the statutory provision at issue here.

And as far as subsection (B) of that provision related to the GAO, we think it’s clear that it’s no longer referring to the actual awards in cases, and is instructing the GAO to do a broader study about the time that’s spent by attorneys and consultants and others on both sides in these cases because Congress was very concerned about the amount of litigation and the expense of that litigation and the diversion of funds away from the core educational services of the schools.

As this Court noted in Schaffer, that’s one of the primary concerns Congress has had, especially in the more recent amendments to the act.

And we think, in fact, that the… the fact that Congress instructed the GAO to study that is, if anything, more consistent with the idea that Congress decided not to legislate on the question of expert fees, but to leave it for another day after they’ve had the benefit of that study at a minimum.

Now–

Ruth Bader Ginsburg:

Mr. Salmons, there’s one difference, a marked difference, between this statute and the others, and that is, in… in many of these cases, it is the consultant that is the primary, perhaps exclusive, aide to the parent.

There’s not a case where they have these determinations, a lawyer is in the front line.

Even in this very case, wasn’t it true that it was the consultant who was the aide to the parent and there was no lawyer on the scene?

David B. Salmons:

–That… that is correct.

David B. Salmons:

During the administrative proceeding and in the… and in the district court, there was no attorney here.

But… but I think there’s one important thing to keep in mind about that is that that’s… Congress expected that that would be the result.

This is not a statute where Congress didn’t think about the role of experts.

Among other things, section–

David H. Souter:

What do you… what do you say about the legislative history, which has been so prominent in the discussion this morning?

The conference report.

David B. Salmons:

–Sure.

Well, I think the conference report clearly represents the view of the author of the conference report with regard to the meaning of the language.

David H. Souter:

Well, don’t you suppose it represents the view of the House and Senate conferees?

David B. Salmons:

Well, I mean, I think… I think what that points to is the perils of… of using committee reports and statements–

David H. Souter:

No.

I… I realize that, but I mean, an–

David B. Salmons:

–from the legislative history when the text is clear.

David H. Souter:

–an argument, a perfectly fair argument, can be made, whether… whether you find it dispositive or not, that everything that goes into a committee report of one house cannot simply be taken as a literal reflection of the thinking… the… the actual thinking of… of everybody on that committee, let alone a whole house.

But when we’re talking about a conference report that has been hammered out between two sets of conferees, I think it is reasonable to suppose that the conferees know exactly what is in that report and would take exception to it if it didn’t represent their views.

Isn’t… isn’t that a… a fair reason for saying that whatever you may think of reports in general, the conference report probably has a… a superior authority?

David B. Salmons:

I don’t think so, Your Honor, and let me try to explain why.

First of all, this Court made clear in Casey, dealing with the exact same language, it took… you know, that’s at issue here–

John Paul Stevens:

Language in the statute but not in the conference report.

David H. Souter:

Yes.

John Paul Stevens:

Was there a conference report in–

David B. Salmons:

–No.

That’s right.

And I’m referring to the statutory language here, that this Court considered this exact–

John Paul Stevens:

–And would you agree, if the statute is ambiguous, you can look at the conference report?

David B. Salmons:

–Well, but my point, Your Honor, is that what this Court said–

John Paul Stevens:

Would you answer my question?

David B. Salmons:

–Yes.

If the Court thinks the statute is ambiguous, it’s fair to look at the conference report.

John Paul Stevens:

And why is it not ambiguous if the author of the conference report read it that way?

David B. Salmons:

For, among other reasons, Your Honor… this is what I was trying to… trying to state because this Court in Casey, dealing with this exact same language, said the following.

It said where the statute contains a phrase that is unambiguous, attorneys’ fees as part of the cost, that has a clearly accepted meaning in both legislative and judicial practices… again, this Court in Casey tracked through the… the usage, the history of the usage of this language and the way courts had responded to this over time… that when that’s the case, we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.

We think that holding in Casey is equally applicable here–

Stephen G. Breyer:

Well, one thing here–

David B. Salmons:

–and it be would wrong to look to that.

Now, if the Court did, I think the thing that the Court should take away from it, if you’re going to look at what Congress intended here… and this is undisputably true.

Everyone agrees on this.

The primary purpose of this legislation was to respond to this Court’s decision in Smith v. Robinson.

And prior to this Court’s decision in Smith, section 1988 had provided the means by which courts had awarded attorneys’ fees in cases under IDEA’s predecessor.

Anthony M. Kennedy:

Does the gravamen–

David B. Salmons:

Smith foreclosed those fees–

Anthony M. Kennedy:

–does the gravamen… well, I’ll let you finish your answer.

David B. Salmons:

–Sure.

Anthony M. Kennedy:

Does the gravamen of the argument… is it that this phrase is unambiguous?

David B. Salmons:

That… that is certainly our first argument, absolutely, Your Honor.

The point I’m making now is that if you look at the context in which this language was used, Smith foreclosed the award of section 1988 fees.

Congress responded shortly thereafter by… by adding the precise language of section 1988 to the language in IDEA’s predecessor.

Now, however anomalous it would normally be to give the same language in two different fee provisions different meanings… and it would be quite anomalous… to do so here with section–

John Paul Stevens:

But isn’t it true that at the time they did that, it was well settled in cases of this kind that the Court would look at the conference report to ascertain the meaning of the statute?

At that time, in 1986.

David B. Salmons:

–Well, I think–

John Paul Stevens:

Was there any case that said you can’t look at the conference report at that time?

David B. Salmons:

–There are plenty of cases, Your Honor, that… that point out–

John Paul Stevens:

–later.

David B. Salmons:

–that the… that… that point out, even… even I think beforehand, that the language is the primary basis to look.

John Paul Stevens:

Is the best evidence, but not the sole evidence.

David B. Salmons:

And that even when it’s unambiguous, that’s the end of the matter.

Antonin Scalia:

Counsel, even in… in those benighted days, I don’t think… I don’t think we ever would use the conference report when the statute was not ambiguous.

I thought it was always a rule that… that–

David B. Salmons:

We certainly agree with that, and I would just add that I’m not aware of any decision of this Court that would suggest that the type of statutory construction tools the Court would use would depend on what was in place at the time that the statute was enacted.

Stephen G. Breyer:

–No.

Of course–

David B. Salmons:

I mean, this Court applies the rules that it thinks are appropriate at the time it issues its decision.

Now–

Stephen G. Breyer:

–You can’t use red if the statute says green.

Green doesn’t include red.

I understand that.

And that’s why, in fact, I wondered if the presence in this bill of the GAO section suggests in the bill itself the possibility that the word cost means something special.

And if that’s so, then I would think it is ambiguous enough to refer to the legislative history.

It’s not like using the word red and arguing it includes green.

David B. Salmons:

–Two responses to that, Your Honor.

The first is that we don’t think it’s ambiguous at all, and we think when… even if you look at the GAO provision, you don’t get the kind of ambiguity that would allow you to otherwise deviate from the… the clear meaning of this language when it’s… when it’s been consistent with statutory usage over time.

As this Court noted in Casey, more than 34 statutes use… expressly state attorneys’ fees in addition to expert… expert fees in addition to attorneys’ fees, and there would be no point to those.

But… but moreover, I think the important thing to keep in mind is that it’s not just this fee provision.

If you want a further indication of Congress’ intent, let me refer you to some other provisions of the statute itself, again, the language of the statute.

Among other things, section 1415(d)(2) expressly details the content of the notice that has to be given to the parents about the procedural safeguards in the act, and it’s very specific.

It lists 13 different things that States have to explain in full to the parents.

The… the 12th and the 13th items on that list are the parents’ ability to bring a civil action and their right to bring, quote, attorneys’ fees, no mention whatsoever of expert fees.

Thank you, Your Honors.

John G. Roberts, Jr.:

Thank you, Mr. Salmons.

Mr. Vladeck.

David C. Vladeck:

Mr. Chief Justice, and may it please the Court–

The Murphys’ principal submission in this case is that the text of IDEA authorizes courts to award prevailing parents the costs of the experts who assist them in IDEA hearings which are typically held before State administrative tribunals and in Federal court.

John G. Roberts, Jr.:

Mr. Vladeck, let me just give you a purely hypothetical situation.

Let’s suppose that the conferees can’t agree whether expert fees should be included.

Some think they should; some think they shouldn’t.

And somebody suggests a compromise.

The compromise is we won’t put it in the statute, but we’ll put it in the report and we’ll let the courts figure it out.

What should happen in that situation?

David C. Vladeck:

Thank you so much, Your Honor.

David C. Vladeck:

I think… I think that if the statutory text was clear, which… and I believe this text is clear in the other direction… I think we would lose that case.

But that is not this case, Your Honor, and let me explain why.

John G. Roberts, Jr.:

Well if that’s not this case, what in the world prevented the conferees from putting something as important in this context as expert fees, as I understand it, probably more important than attorneys’ fees… what prevented them from putting that in the statute if that clearly was their intent?

David C. Vladeck:

Without being flippant, Your Honor, I think that the conferees thought they had put it in the statute.

Remember, this statute was passed back in 1986 when, at least with respect to the 99th Congress that enacted this provision, the word cost did not have the term of art meaning that was later ascribed to it in this Court’s opinion in Casey.

Samuel A. Alito, Jr.:

As you–

John G. Roberts, Jr.:

I was going to say it certainly had the meaning in Federal… the Federal court context set forth in section 1920 of the Judicial Code.

David C. Vladeck:

I understand that, Your Honor, but Congress thought it was adding… that use of the word cost and its breadth was a way of… of including the cost.

And… and this is important, Your Honor.

The language–

Antonin Scalia:

Before you get past Casey, Casey didn’t invent this as a definition.

Casey said it has always meant this in innumerable Federal statutes.

Casey was relying on a longstanding practice which existed long before Casey was… was pronounced.

David C. Vladeck:

–Your Honor, at the time Casey was… at the time this case was… excuse me… at the time this statute was enacted by Congress, for example, costs were routinely read to include expert fees in title VII cases, for example.

So I don’t disagree with Your Honor’s point.

I am simply saying that the lens through which this statute must be judged is the understanding of the 99th Congress, and every indication in the legislative history here is that Congress used the word cost for its breadth, not as a term of art.

Ruth Bader Ginsburg:

Mr. Vladeck, why… if that was what Congress had in mind, then how do you explain the multiple statutes that are listed in Casey that say, in the text of the statute, witness fees?

David C. Vladeck:

My only explanation, Your Honor, is that the… the Members of Congress who wrote this provision were unaware of the difference this Court would later ascribe to those statutes in Casey.

Antonin Scalia:

Not later ascribe.

I mean, Casey was relying on–

Anthony M. Kennedy:

Casey… Casey is very clear in saying the judicial background against which Congress enacted 1988, talking about 1988, mirror the statutory background, and it says the judicial background was that expert fees were quite different than attorneys’ fees.

They were not a subset of attorneys’ fees.

David C. Vladeck:

Even… even conceding all of that, which I… I think is… let me take a step back.

Even if you reject that submission, the next provision of the statute on which we rely is section 4 of the Handicapped Children’s Protection Act, which was enacted at the same time as section 1415(i)(3)(B), and if you look at that provision, it is clear that Congress intended the word cost to have a broader meaning.

Section 4(b)(A) directs the General Accounting Office to study–

John G. Roberts, Jr.:

Where is that set forth?

David C. Vladeck:

–I’m sorry?

That’s page… excuse me.

Page 4 of the red brief, Your Honor.

John G. Roberts, Jr.:

Thank you.

David C. Vladeck:

That directs the General Accounting Office, first, to study the amount of attorneys’ fees, costs, and expenses awarded to the prevailing party.

In this statute, only the parents could be the awarding… the prevailing party because, unlike 1988, this statute is a one way street and provides only for awards to parents.

And secondly, it says that for… for the–

Ruth Bader Ginsburg:

Well, what… Mr. Vladeck, may I stop you there?

Because the parents are always the plaintiff.

It’s not the child.

The parents are representing the child.

David C. Vladeck:

–That’s correct, Your Honor.

Ruth Bader Ginsburg:

So prevailing party is identical to parents.

The parents are the ones who prevail.

David C. Vladeck:

That’s exactly my point, Your Honor.

And… and–

Anthony M. Kennedy:

But… but the word consultants appears in subsection (B) of the statute.

David C. Vladeck:

–Right, Your Honor.

Anthony M. Kennedy:

And that specifically refers to the State educational agency and local educational agency.

David C. Vladeck:

Your Honor–

Anthony M. Kennedy:

And it uses personnel, which sounds to me a very odd way to talk about private experts hired by an attorney.

You don’t talk about them as personnel.

David C. Vladeck:

–Well, Your Honor, this provision, up until the last part which says, and expenses incurred by the parents, the… the last clause of this provision was added in conference.

And the conference report makes that clear at page 7.

The conference report makes it clear that the House… the Senate recedes to the House bill.

The GAO study provision was only in the House bill, with an amendment expanding the data collection requirements of the GAO study to include information recording the amount of funds expended by local educational agencies and State education agencies on civil actions and administrative proceedings.

That clause was added, Your Honor, in conference.

Prior to the conference, the provision was very much the same as it is today.

So–

Antonin Scalia:

–Mr. Vladeck, my… my problem with the argument you’re now making is… is a little more basic.

Assuming, which I think is a… is a major assumption, that expenses refers to expert fees, I don’t see how it helps your case that in another part of the statute, the statute says, fees, costs, and expenses, whereas in the operative part that we’re talking about here, it only refers to fees as part of costs.

How does it help your case that–

David C. Vladeck:

–Your Honor–

Antonin Scalia:

–that elsewhere they go out of their way to add and… and expenses?

Antonin Scalia:

It seems to me that hurts your case.

David C. Vladeck:

–Your Honor, I don’t believe that this is an inoperative part of the statute.

I believe that… that… this direction to GAO makes no sense if all Congress sought to authorize was attorneys’ fees and the costs that are historically available under section 1920 and section 1821.

This provision makes no sense.

David H. Souter:

Isn’t… isn’t it really the point not that it makes no sense, but that it raises a question?

It creates the question, which… which we have in mind when we say the statute is ambiguous, and it is in answering that question, that you then turn to the legislative history, which has a pretty unequivocal statement in your favor.

Isn’t… isn’t that the… the way to analyze it?

David C. Vladeck:

I… it certainly can be read that way.

I read it as more of an affirmative statement by Congress–

John G. Roberts, Jr.:

Well, but if you conclude that the statute is ambiguous, what do you do with the Spending Clause problem?

We’ve said that when you’re imposing conditions in Spending Clause legislation, you have to do that unambiguously.

It’s what the Court said in… in Pennhurst.

David C. Vladeck:

–That’s correct.

John G. Roberts, Jr.:

If it’s ambiguous, if the availability of expert fees, which is the big ticket item in these things, not the attorneys’ fees, States are not unambiguously on notice that they’re accepting that liability when they take the funds.

David C. Vladeck:

With all respect, let me quarrel with one of the premises in your question, which is that the… the expenses for experts are, quote, a big ticket item.

If you look at page 28, footnote 17 of our brief, we’ve tried to compile all of the reported cases on the amount of expert fees that are awarded.

They tend to be exceedingly modest, Your Honor.

They run from a few hundred dollars to a few thousand dollars.

Anthony M. Kennedy:

Well, that’s before the Magna Carta you’re asking for in this case which would establish a whole… a whole–

David C. Vladeck:

Your Honor–

Anthony M. Kennedy:

–new profession of experts.

David C. Vladeck:

–Your Honor, that is not the case.

The… the rule that we seek to preserve has been the way courts have interpreted this provision since 1988.

That’s–

John G. Roberts, Jr.:

Well, even if it is not the big ticket item–

David C. Vladeck:

–So… so these are modest.

John G. Roberts, Jr.:

–it still has to be… it still has to be unambiguously set forth in Spending Clause legislation.

David C. Vladeck:

Right.

And… and if the Court finds that the legislative history adds the clarity that the statute otherwise needed… is needed, I do not see why that would not comply with the Spending Clause, particularly since, Your Honor, this statute has been on the book for 20 years.

There are dozens of opinions finding that expert fees are compensable.

David C. Vladeck:

No Spending Clause argument has ever been raised in this kind of issue even though the statute has been on the books for 20 years.

Samuel A. Alito, Jr.:

–Under your reading of 1415, may a court award to parents any costs that they incur in connection with the litigation, or… or would you just add expert fees to the attorneys’ fees?

David C. Vladeck:

Your Honor, there is a body of law on that issue that already exists because courts have interpreted this provision since 1986.

By and large, the costs that have been awarded under the statute are costs that are normally associated with litigation, copying costs, computer assisted research when there’s a lawyer involved.

Ruth Bader Ginsburg:

What about testing?

Isn’t testing–

David C. Vladeck:

The cost of testing and evaluation, which is… which is a crucial component of the statute… those costs have been awarded.

Samuel A. Alito, Jr.:

But if costs is not a term… is not a legal term of art, if it really… if it means just the expenses that parents incur, why wouldn’t it include things like travel expenses or lost wages to attend the court proceeding?

David C. Vladeck:

The… the way the courts have addressed that issue, Your Honor, is they… they have looked to the… the initial phrase of the statute, in an action or a proceeding, and have found those costs not sufficiently closely enough related to the action or proceeding to justify an award.

And also courts have applied the rule 54 reasonableness standard in ordering costs under this provision, and therefore, expert costs have been reduced and other costs have been reduced to meet the general requirements of rule 54.

I would like… I would like to–

Stephen G. Breyer:

Would you read the phrase from the conference report as a limitation?

That is, that… we’re trying to figure out what the Congress meant by the phrase costs.

It says it means includes reasonable expense and fees of expert witnesses and reasonable costs of any test or evaluation that’s necessary.

So then is that… have the courts read that as a… as a limitation?

David C. Vladeck:

–Yes, Your Honor, but they’ve also imposed limitations that are generally… that generally constrain the awards of costs in cases.

They have not done what… what I understood Justice Alito… his question to… to get to, was to use this as… as a broad, open door.

I’d like to talk about the legislative history, and particularly I’d like to respond to Justice Scalia’s comment about the conference report in this case.

This statute was changed dramatically in conference.

It does not reflect either the House bill or the Senate bill.

If one reads the conference report in the Joint Explanatory Statement of the Committee of the Conference, which is three pages long, one will see that there were dramatic and substantial changes made because there were substantial disagreements between the House and the Senate, not on the question of reimbursement of expert costs.

That… that provision… that understanding was shared on a bipartisan basis in both houses.

But the–

John G. Roberts, Jr.:

Why were the earlier versions that included that expressly then not… why didn’t they make it through to the final version?

David C. Vladeck:

–The… the version that… that was referred to earlier, Your Honor, came out of the Senate bill.

The Senate bill contained a number of very controversial features.

It was pared down, and the word cost was substituted, as the drafter of the language made clear on the floor of the Senate before the Senate voted on its version of the bill, and Senator Weicker’s explanation of what the word cost means could not be clearer, and he… he–

John G. Roberts, Jr.:

Now, we’ve slid back from the joint statement to the statement of one Member on the floor now.

David C. Vladeck:

–Well, I’m happy for you to rely on the joint statement, Your Honor.

My only point is, is that the understanding in the House report is expert fees were included in the House bill, which referred to costs and expenses.

David C. Vladeck:

Senator Weicker explains precisely the question you asked, which is what happened to the Senate bill.

And Senator Weicker’s explanation, which was made before the Senate, immediately before the Senate voted on the bill, makes clear that expert costs are included.

Then, of course, you have the bill going to conference.

There were many changes in the bill, including the language of section 1415.

Prior to the conference, it did not say attorneys’ fees as part of costs.

It said attorneys’ fees in addition to costs.

That language was changed in conference to accommodate this Court’s decision in Marek v. Chesny, which had to do with the applicability of rule 68.

Samuel A. Alito, Jr.:

Well, speaking of that… of that language, that attorneys’ fees may be awarded as part of costs, does that suggest… it doesn’t say directly that costs may be awarded.

Does that suggest that the attorneys’ fees are simply to be regarded as another element of costs that… that may be awarded under the costs statute?

David C. Vladeck:

I don’t believe that Congress, when it used the word costs, was adverting to section 1920.

If that is your question, I do not believe that that is–

Antonin Scalia:

Well, then where is the authorization?

I think that’s what Justice Alito’s question goes to.

You have to come up with some statutory authorization to pay expert fees.

Now, attorneys’ fees as part of costs does not authorize any costs.

It just says whatever costs are otherwise authorized, attorneys’ fees will be part of that.

David C. Vladeck:

–Well, Your Honor, it says… it’s part of the cost to the parents.

And unlike section 1980, this language is not, contrary to the previous submissions to the Court, identical to the language in 1988.

It says that a court may award attorneys’ fees as part of the costs to parents, and the–

Antonin Scalia:

What is the authorization to pay costs, to pay those costs that include expert fees?

All… all this section says is they may award attorneys’ fees as part of costs, and costs are presumably elsewhere authorized.

David C. Vladeck:

–Your Honor–

Antonin Scalia:

But where is the authorization to pay?

David C. Vladeck:

–Under… under that reading, no statute would authorize the… the payment of costs.

David H. Souter:

Under that reading, wouldn’t… wouldn’t you have a problem in a State court?

Because doesn’t this same provision govern in a State court, so that if the State did not have a separate cost statute, it would… it would authorize nothing.

Isn’t… isn’t that the problem you’d run into.

David C. Vladeck:

That is correct.

Let me make one last–

Antonin Scalia:

Do you know any State that doesn’t have a cost statute?

David C. Vladeck:

–I have not… I’ve not looked at them to see whether they correspond to 1920, Your Honor.

Ruth Bader Ginsburg:

–Mr. Vladeck, you have… you referred to the section on GAO reporting–

David C. Vladeck:

Yes, Your Honor.

Ruth Bader Ginsburg:

–as an assist to help you include consultant fees in… in costs.

But how do you explain the… the provision in this very statute that says attorneys’ fees can be reduced?

Congress explicitly provided that you could reduce attorneys’ fees… this is in 1415(i)(3)(F)… and not one word about reducing the costs of testing fees or consulting fees.

David C. Vladeck:

Well, Your Honor, all costs are subject to the general requirement in rule 54 of reasonableness, and–

Ruth Bader Ginsburg:

Then why… then it would be unnecessary to have done that for attorneys’ fees.

David C. Vladeck:

–Here’s the reason, Your Honor.

At least, here’s the reason that… as I understand it.

Much of the litigation in IDEA cases takes out… takes place outside the confines of Federal court.

Most of the litigation takes place in State due process hearings.

And what I believe Congress was interested in making sure were the general rules, like rule 11, the general rules that punish parties for engaging in vexatious or frivolous litigation would have some analog in these proceedings.

And therefore, what the court… what… what Congress did was to authorize a Federal court, in reviewing an application for attorneys’ fees incurred before a State administered tribunal, because that’s where the action takes place in these cases, to… to be able to reduce an attorneys’ fee award if there was misconduct by the parent or… or the lawyer, misconduct in the sense of trying to protract litigation or multiply proceedings.

And interestingly, Your Honor, the… the conference report addresses this issue and does explain… and now I’m quoting from page 6 of the… of the conference report, the joint explanation… that the court shall accordingly reduce the amount of attorneys’ fees and related expenses otherwise allowable if they determine that this misconduct had taken place.

So I think that at least in the conference report, Congress is signaling that if there were other costs that were incurred unreasonably as a result of lawyers protracting or delaying a proceeding, they too would be subject to the same reduction.

Antonin Scalia:

And that’s effective too, as though it were written into the statute, because one committee of Congress said so.

That’s effective.

David C. Vladeck:

Well, Your Honor, this is not one committee of Congress.

This was… this… the conference report was circulated to all Members of Congress before they voted on the final bill.

Antonin Scalia:

And… and they read it.

David C. Vladeck:

Well, Your Honor, this is the final bill they voted on, and if they turned the page–

Antonin Scalia:

That’s the only thing we know for sure that they voted on.

David C. Vladeck:

–That is correct, Your Honor, though the vote technically, of course, is a vote to approve the conference report.

That is the final vote Congress took on this legislation.

The vote was a vote to approve the conference report, which contains four pages… three pages of text and three pages of explanation.

Anthony M. Kennedy:

Did the… did the final bill say we adopt the findings of the conference report?

David C. Vladeck:

It did not, Your Honor.

Anthony M. Kennedy:

And other bills have said that.

David C. Vladeck:

I–

Anthony M. Kennedy:

Like in… as in Nofstiker.

David C. Vladeck:

–As far as I know, Your Honor, the procedure followed here was the standard procedure when the conference report takes bills and essentially amalgamates them or redrafts them–

Antonin Scalia:

But was this legislation vetoed by the President?

David C. Vladeck:

–It was not, Your Honor.

Antonin Scalia:

Now, when the President signed it, did… did he also approve the conference report?

Did he have the conference report in front of him?

David C. Vladeck:

I do not know that.

Antonin Scalia:

He had the statute in front of him, didn’t he?

David C. Vladeck:

I… he… my assumption, Your Honor, is he had this.

Antonin Scalia:

You… you think he read the conference report too.

David C. Vladeck:

I don’t believe that.

[Laughter]

I’m not arguing that he did.

My assumption, though, is if he had the statute before him, he probably had this.

The President–

Stephen G. Breyer:

Was there any opposition?

Was there any… is there any history of anyone in this Senate or the House either before or after suggesting that they didn’t want to allow recovery for the expert fees?

David C. Vladeck:

–Not at all, Your Honor.

And one of the points that I would like to make… and I would like to return to the language of 1415… is this statute is all… the IDEA is a statute all about protecting parents and children with disabilities.

One provision of IDEA we have not mentioned, but I think is an important one, is the general guarantee that–

John G. Roberts, Jr.:

Counsel, if I could interrupt you.

As I understood it, this gets back to where you started.

Your position is that if this same scenario had taken place in 1988 as opposed to 1986, that your position would not be the same.

In other words, you said… your suggestion was that it was the legal context at the time in ’86 that governed what Congress thought the effectiveness of its statements in committee reports would be.

Maybe I’m ascribing one of the Justice’s views to you.

David C. Vladeck:

–If… if you’re… and… and forgive my… my lack of knowledge of the exact history of this, but if 1988 is a date upon which the Court begins to be reluctant to look at legislative history, I would concede that my case would be different post 1988.

It is quite clear that the Congress that enacted this bill assumed, and rightly so, that this Court and reviewing courts would rely on legislative history.

Indeed, when this Court issued its opinion in Casey, footnote 5 of Casey says that this case may be different because of the conference report.

Antonin Scalia:

What… what date in… I mean, so we have two different modes of interpreting statutes, one, pre-1988 in which we use legislative history, and one post-1988 in which we don’t use legislative history?

David C. Vladeck:

Your Honor–

Antonin Scalia:

I mean, that… that’s what you’re suggesting, isn’t it?

David C. Vladeck:

–What I am suggesting is that the Court’s role, as I understand it, is to the faithful agent of Congress, and if the… if the expectation of Members of Congress is that language in committee reports will… will garner respect from the Court, it is hard to then change the rules on Congress.

The operative question here is what–

Antonin Scalia:

The reason one does not use legislative history, if one does not use it, as I don’t… as I don’t, is not because Congress doesn’t expect it to be used, but because Congress does not have the power to delegate to one of its committees the content of… of its statutes.

The Constitution provides that legislation will be passed by two houses and signed by the President, and the problem with legislative history, for those of us who have a problem with it, is this amounts to a delegation by Congress.

It’s not a matter of what Congress expected.

I don’t care what Congress expected.

It can’t do it.

It can’t leave it to a… to a committee to… to fill in the blanks in a statute.

That’s the problem, and that has nothing to do with expectations.

David C. Vladeck:

–Your Honor, my only point is that the Congress that enacted this statute, the 99th Congress, thought… and this… this view is expressed repeatedly in the legislative history, and I believe it… it is reflected in the statutory language as well… that the word costs here would be given a broad meaning to ensure that parents were made whole when they have to fight against school boards to secure that which IDEA guarantees their child, which is a free and appropriate public education.

This Court has repeatedly in Township of Burlington, in Tatrow, in Florence County said that provisions of IDEA should not be interpreted in ways that detract from this fundamental guarantee.

There would be no more clear detraction from that guarantee than requiring parents to bear the expense, which for many of these parents is enormous, even though Chief Justice, it may amount to only a few hundred or a few thousand dollars, to retain an expert, to do battle with school boards who have experts on staff.

Earlier this term, this Court decided Schaffer v. Weast.

Post Schaffer, parents cannot hope to meet their burden of production, let alone their burden of proof in IDEA hearings without expert assistance.

To force parents to bear those expenses, even when they prevail, will detract from IDEA’s core guarantee that the… that the education provided to the child is both appropriate and free.

Those provisions are in the statute to avoid having parents being compelled to make the Hobson’s choice, a free education that’s inappropriate or appropriate education that is not free.

This Court repeatedly instructs lower courts to interpret statutes consistent with the statutory context.

I would urge that in looking at section 1415, you take a look at… at… there are now eight sections of the statute that reinforce this guarantee.

It is hard to imagine a statutory guarantee more deeply embedded in an act than the guarantee of a free and appropriate public education than is embedded in the IDEA.

Permitting parents to recover their expert costs–

Ruth Bader Ginsburg:

But it’s not… if the parents make a reasonable effort, but they lose, it’s not going to be free.

I mean, the… the statute gives them–

David C. Vladeck:

–But… but–

Ruth Bader Ginsburg:

–a right to oppose the school board’s choice, and if what you say about making it easier on parents of limited resources, they’re told it’s going to be a gamble if you lose, you don’t get your fees.

David C. Vladeck:

–That’s correct, Your Honor, but they lose only when the school board is providing, in fact, an education that is appropriate.

But where the parent prevails because the school board was not providing a free and appropriate education, the act’s guarantee would be seriously eroded unless parents can recover the costs of their expert… of their experts.

If there are no further questions, thank you very much.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Kuntz, you have 4 minutes remaining.

Raymond G. Kuntz:

Thank you, Your Honor.

Shifting the costs to the school district of experts’ fees will also shift scarce public resources away from the point where it’s most effective, at the stage when the parent meets with the IEP team to resolve the differences.

When Congress has revisited this statute, as it has since 1986, time and time and again, it’s… it’s spoken to the… to the goal of reducing litigation and… and reducing the costs associated with litigation.

If… if as the respondents claim, it’s central to the fulfillment of this statute that… that Congress be seen to have shifted the costs of these so called experts to the… to the school district when… when they fail, I… I call to the Court’s attention that the reality is that the school district has no staff of experts as the respondents intimate.

It has no staff of consultants.

What it has are the people who actually provide the services to the child, and when they come to testify at the hearing, typically they’re… they’re scared or nervous because it’s the first time that they’ve been at such a hearing.

They’re not professional experts.

They’re not testimonial experts.

Those are the kinds of experts that the respondents are talking about and asking this Court to see in the statute.

One needs to ask the question if Congress really intended expert fees to be a part of this statute, what stayed Congress’ hand from writing those words into the statute?

It’s very clear that Congress knew how to do that when it became appropriate, in its judgment, for it to do that.

To sort of see it here lurking in the shadows in… in sort of the backwaters of… of the act and to intimate from there that the plain language of the statute has meaning that needs to be expanded and enlightened by the congressional report doesn’t make a lot of… of sense.

If… if it’s important, it should have been there.

The… its absence is very, very telling.

And–

Anthony M. Kennedy:

Don’t the school boards have some consultants and experts in this area other than the teachers?

Raymond G. Kuntz:

–Typically they do not, Your Honor.

The typical IEP team meeting has the school psychologist perhaps, has the… the teachers of the… of the child.

Those… some of those are required members.

It has the parent of a handicapped child.

It might have the… the service providers like the speech pathologist.

And when… when it comes to a trial, comes to a due process hearing, those are the folks who come and testify as to what they know about the child, the test results they have.

There are no typical consultants or testimonial experts that appear for the school district.

So the… the central part of this statute, its… its revolution, where it brings parents of children who are disabled into contact with the… with the school, has had a wonderful effect in fulfilling the promise of this statute.

Energizing the litigation aspect of this by transferring those costs to the school district will… will take away and will detract from the… the true meaning of the statute, which was to build a partnership between the parents and the school district, not to let it dribble off into litigation.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Kuntz. The case is submitted.