Petition for Writ of Certiorari — City of Chicago v. Friedrich

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No. \ JAN 29 1900

Reet ce JR.

Ty ‘ ,

IN THE Ree =

Supreme Court of the United States

OCTOBER TERM, 1989

CITY OF CHICAGO and

SUPERINTENDENT OF POLICE,

Petitioners,

Vi

WALTER FRIEDRICH,

individually and on behalf of a class

of similarly situated persons,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

KELLY R. WELSH

Corporation Counsel of the

City of Chicago

Counsel of Record

RUTH M. MOSCOVITCH

Chief Assistant Corporation Counsel

JEAN DOBRER

Assistant Corporation Counsel

610 City Hall

Chicago, Illinois 60602

(312) 744-0468

Attorneys for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTION PRESENTED

Whether the Civil Rights Attorney’s Fees Award Act

of 1976, 42 U.S.C. § 1988; authorizes an award of expert

witness fees in excess of the $30 per day allowed by 28

U.S.C. §§ 1821, 1920(3).

ii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED. ................... i

TABLE OF AUTHORITIES ................. iii

OPINIONS BELOW .......... Speer an 1

FUT n gg occ acc ccecacccccvccascssss 2

STATUTES INVOLVED .................05. 2

STATEMENT OF THE CASE ............... 5

REASON FOR GRANTING THE WRIT:

THE SEVENTH CIRCUIT’S CONSTRUCTION OF

THE CIVIL RIGHTS ATTORNEY’S FEES AWARD

ACT CONFLICTS WITH DECISIONS OF OTHER

CIRCUITS INTERPRETING THIS COURT’S DE-

CISION IN CRAWFORD FITTING ........... 7

CII on ov ivinknucsasnanieeee ee 14

Pigg i rer rrr rr ee ners infra

ill

TABLE OF AUTHORITIES

Cases PAGE

Alyeska Pipeline Service Co. v. Wilderness Society,

PUD once ceca ddvcvcocceess 9, 10, 11

Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987),

cert. denied, 108 S. Ct. 1298 (1988) ........ 12

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

eee keke keane wie e000 passim

Degidio v. Pung, 723 F. Supp. 135 (D. Minn. 1989) . 12

Denny v. Westfield State College, 880 F.2d 1465

EE a Pa 8, 12

Friedrich v. City of Chicago, 619 F. Supp. 1129

SE OT EOE ET TET Tee 6

Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir.

IE UE ee ee |

Gilbert v. City of Little Rock, 867 F.2d 1062 (8th Cir.)

(en banc), cert. denied, 110 S. Ct. 57 (1989) ... 12

Glenn v. General Motors Corp., 841 F.2d 1567

(11th Cir.), cert. denied, 109 S. Ct. 378 (1988). 8, 12

Henry v. Webermeier, 738 F.2d 188 (7th Cir. 1984) .. 10

International Woodworkers of America v. Champ-

ion Intern, 790 F.2d 1174 (5th Cir. 1986) (en

banc), aff'd, 482 U.S. 437 (1987) .......... 8, 9, 13

Leroy v. City of Houston, 831 F.2d 576 (5th Cir.

1987), cert. denied, 108 S. Ct. 1735 (1988) .. 8, 12

Missouri v. Jenkins, 109 S. Ct. 2453, 105 L. Ed.

Nee TT es ek a hay Wwe aut 8, 10, 11

Norwood v. Charlotte Memorial Hosp. & Med.

Center, 720 F. Supp. 548 (W.D. N.C. 1989) .... 12

iv

SapaNajin v. Gunter, 857 F.2d 463 (8th Cir. 1988) .. 12

Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988). 8, 12

Sprague v. Ticonic Nat’l Bank, 307 U.S. 161

FR ee er eer rer Te 9

West Virginia University Hospitals, Inc. v. Casey,

885 F.2d 11 (8d Cir. 1989), petition for cert.

filed, 58 U.S.L.W. 3430 (U.S. Jan. 9, 1990) (No.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

CITY OF CHICAGO and

SUPERINTENDENT OF POLICE,

Petitioners,

V.

WALTER FRIEDRICH,

individually and on behalf of a class

of similarly situated persons,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioners, the City of Chicago (‘City’) and the

Superintendent of the Chicago Police Department, respect-

fully request that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Ap-

peals for the Seventh Circuit, entered in the above-en-

titled proceeding on October 31, 1989.

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is reported at 888 F.2d 511 and is reprinted in

the appendix hereto at App. 1, imfra.

vr

sellin

The opinion of the United States District Court for the

Northern District of Illinois (Aspen, D.J.) has not been

reported. It is reprinted in the appendix hereto at App.

19, infra.

JURISDICTION

The respondent brought this suit in the Northern Dis-

trict of Illinois under 42 U.S.C. § 1983. The district court’s

jurisdiction was based upon 28 U.S.C. § 1343(8) and (4).

On September 15, 1988, the Northern District entered i

judgment in favor of plaintiffs on plaintiffs’ petition for

fees and costs under the Civil Rights Attorney’s Fees

Award Act, 42 U.S.C. § 1988.

On petitioner’s appeal, the Seventh Circuit affirmed the

district court on October 31, 1989. No petition for rehear-

ing was sought.

The jurisdiction of this Court to review the judgment of

the Seventh Circuit is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

42 U.S.C. § 1988

In any action or proceeding to enforce a provision of sec-

tions 1981, 1982, 1983, 1985, and 1986 of this title, title

IX of Public Law 92-318, or title-VI of the Civil Rights

Act of 1964, the court, in its discretion, may allow the

prevailing party, other than the United States, a reason-

able attorney’s fee as part of the costs.

= =

28 U.S.C. § 1920

A judge or clerk of any court of the United States may

tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use

in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers neces-

sarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensa-

tion of interpreters, and salaries, fees, expenses, and

costs of special interpretation services under section

1828 of this title.

A bill of costs shall be filed in the case and, upon allow-

ance, included in the judgment or decree.

28 U.S.C. § 1821

(aX1) Except as otherwise provided by law, a witness in

attendance at any court of the United States, or before

a United States Magistrate, or before any person autho-

rized to take his deposition pursuant to any rule or order

of a court of the United States, shall be paid the fees

and allowances provided by this section.

(2) As used in this section, the term “court of the United

States” includes, in addition to the courts listed in sec-

tion 451 of this title, any court created by Act of Con-

gress in a territory which is invested with any jurisdic-

tion of a district court of the United States.

(b) A witness shall be paid an attendance fee of $30 per

day for each day’s attendance. A witness shall also be

paid the attendance fee for the time necessarily occupied

in going to and returning from the place »* attendance

wien

at the beginning and end of such attendance or at any

time during such attendance.

(cX1) A witness who travels by common carrier shall be

paid for the actual expenses of travel on the basis of the

means of transportation reasonably utilized and the dis-

tance necessarily traveled to and from such witness’s resi-

dence by the shortest practicai route in going to and re-

turning from the place of attendance. Such a witness shall

utilize a common carrier at the most economical rate rea-

sonably available. A receipt or other evidence of actual

cost shall be furnished.

(2) A travel allowance equal to the mileage allowance

which the Administrator of General Services has pre-

scribed, pursuant to section 5704 of title 5, for official

travel of employees of the Federal Government shall be

paid to each witness who travels by privately owned vehi-

cle. Computation of mileage under this paragraph shall

be made on the basis of a uniformed table of distances

adopted by the Administrator of General Services.

(3) Toll charges for toll roads, bridges, tunnels, and fer-

ries, taxicab fares between places of lodging and carrier

terminals, and parking fees (upon presentation of a valid

parking receipt), shall be paid in full to a witness incurring

such expenses.

(4) All normal travel expenses within and outside the

judicial district shall be taxable as costs pursuant to sec-

tion 1920 of this title.

(dX1) A subsistence allowance shall be paid to a witness

(other than a witnes3 who is incarcerated) when an over-

night stay is required at the place of attendance because

such place is so far removed from the residence of such

witness as to prohibit return thereto from day to day.

(2) A subsistence allowance shall be paid to a witness

in an amount not to exceed the maximum per diem allow-

ance prescribed by the Administrator of General Services,

pursuant to section 5702(a) of title 5, for official travel

=

in the area of attendance by employees of the Federai

Government.

(3) A subsistence allowance for a witness attending in an

area designated by the Administrator of General Services,

as a high-cost area shall be paid in an amount not to ex-

ceed the maximum actual subsistence allowance prescribed

by the Administrator, pursuant to section 5702eXB) of

title 5, for official travel in such area by employees of

the Federal Government.

(4) When a witness is detained pursuant to section 3148

of title 18 for want. of security for his appearance, he shall

be entitled for each day of detention when not in atten-

dance at court, in addition to his subsistence, to the daily

attendance fee provided by subsection (b) of this section.

(e) An alien who kas been paroled into the United States

for prosecution, pursuant to section 212(dX5) of the Immi-

gration and Nationality Act (8 U.S.C. 1182(dX5)), or an alien

who either has admitted belonging to a class of aliens who

are deportable or has been determined pursuant to sec-

tion 242(b) of such Act (8 U.S.C. 1252(b)) to be deportable,

shall be ineligible to receive the fees or allowances pro-

vided by this section.

STATEMENT OF THE CASE

This petition concerns the authority of the district court

to award expert witness fees to a prevailing plaintiff in

a civil rights action under 42 U.S.C. § 1988.

Plaintiffs filed their underlying civil rights class action

lawsuit against the defendants on September 7, 1984,

challenging the constitutionality of a Chicago municipal

ordinance which banned street performers in the North

ee

_

Michigan Avenue and Rush Street areas in the City. (For

further details about the underlying claim, see Friedrich

v. City of Chicago, 619 F. Supp. 1129 (N.D. Ill. 19865)).

The plaintiffs prevailed on a portion of their claims and

petitioned for attorney’s fees and costs. The district court

awarded plaintiffs their requested attorney’s fees and

costs pursuant to 42 U.S.C. § 1988, which allows a district

court to award a prevailing party in a civil rights suit

a “reasonable attorney’s fee as part of the costs.’’ Plain-

tiffs used two experts at trial: Robert J. diGrazia and

William H. Whyte. Robert J. diGrazia testified ‘‘as an ex-

pert in the area of law enforcement.”’ William H. Whyte

testified as an expert on urban planning and design.

The $7,901.25 requested by plaintiffs to cover the costs

of Robert J. diGrazia included diGrazia’s charges of $200

per hour for 27.45 hours of preparation, travel time and

court appearance time, and $2,411.25 for his travel ex-

penses. The $2,026.66 requested by plaintiffs to cover the

costs of William H. Whyte included Whyte’s charges of

$500 per day for two days of research and testimony prep-

aration and $1,026.66 for travel expenses. The district

court allowed in full the expert witness fees requested

by the plaintiffs. The petitioners appealed from the por-

tion of the district court order that awarded plaintiffs ex-

pert witness fees of $9,927.91.

The Seventh Circuit affirmed the district court’s award

of expert witness fees under § 1988, reasoning that Con-

gress chose the statutory term “reasonable attorney’s fee”’

“as a shorthand expression for such fees ‘and other ex-

penses as the district court might in the exercise of its

equitable discretion reasonably believe should be reim-

bursed to the prevailing party.” App. 13.

-

REASON FOR GRANTING THE WRIT

THE SEVENTH CIRCUIT’S CONSTRUCTION OF THE

CIVIL RIGHTS ATTORNEY’S FEES AWARD ACT CON-

FLICTS WITH DECISIONS OF OTHER CIRCUITS INTER-

PRETING THIS COURT’S DECISION IN CRAWFORD

FITTING.

In Friedrich v. City of Chicago, 888 F.2d 511 (7th Cir.

1989), the Seventh Circuit decided that expert witness

fees are recoverable under the Civil Rights Attorney’s

Fees Award Act, 42 U.S.C. § 1988. In so deciding, the

court construed the statutory term “reasonable attorney’s

fee” as including expert witness fees. The Seventh Cir-

cuit held that the $30 per day witness fee prescribed by

28 U.S.C. § 1821(b) does not apply to cases in which a

prevailing party is entitled to attorney’s fees under 42

U.S.C. § 1988. The petition for a writ of certiorari should

be granted in this case because the Seventh Circuit’s deci-

sion conflicts squarely with the Third Circuit’s decision

in West Virginia University Hospitals, Inc. v. Casey, 885

F.2d 11 (3d Cir. 1989), petition for cert. filed, 58 U.S.L.W.

3430 (U.S. Jan. 9, 1990) (No. 89-994). In Casey the Third

Circuit decided that “section 1988 as presently drafted

does not authorize expert fee awards in excess of the stat-

utory cap of thirty dollars per day provided in section

1821(b).” Id. at 34, 35. Both the decision below and the

Third Circuit’s decision in Casey were based on this

Court’s decision in Crawford Fitting Co. v J. T. Gibbons,

Inc., 482 U.S. 437 (1987). The Third Circuit recognized

that Crawford Fitting “repudiates the previous law [of

the Third Circuit which allowed] enhanced awards of ex-

pert witness fees under Section 1988.” 885 F.2d at 33. The

Third Circuit found that this Court’s subsequent decision

a

in Missouri v. Jenkins, 109 S. Ct. 2463 (1989) does not

affect the reasoning of Crawford Fitting. In Friedrich, by

contrast, the Seventh Circuit found that Crawford Fit-

ting, read in light of Jenkins, required the opposite result.

In addition to conflicting with Casey, the decision in

Friedrich conflicts with decisions of the First, Fourth,

Fifth and Eleventh Circuits interpreting Crawford Fit-

ting before Jenkins was decided. Denny v. Westfield State

College, 880 F.2d 14654 (ist Cir. 1989); Sevigny v. Dicksey,

846 F.2d 953 (4th Cir. 1988); Leroy v. City of Houston,

831 F.2d 576 (5th Cir. 1987), cert. denied, 108 S. Ct. 1735

(1988); Glenn v. General Motors Corp., 841 F.2d 1567 (11th

Cir.), cert. denied, 109 S. Ct. 378 (1988).

In Crawford Fitting, 482 U.S. 437, 439, this Court held

that the $30 per day limit controlled “absent . . . explicit

statutory authority to the contrary.” The Court thereby

affirmed two consolidated Fifth Circuit cases: an antitrust

case in which the Fifth Circuit had reversed a district

court award of expert witness fees in excess of $30 per

day, and an employment discrimination case in which the

Fifth Circuit had affirmed a district court’s refusal to

award expert witness fees in excess of $30 a day.! Be-

cause § 1988 was not directly at issue in Crawford Fit-

ting, as the dissent noted, 482 U.S. at 446 n.1, the Court’s

opinion does not discuss the availability of expert witness

1 The employment discrimination case, International Woodworkers

of America v. Champion Intern., 790 F.2d 1174, 1178, 1181 (5th

Cir. 1986) (en banc), aff'd, 482 U.S. 437 (1987) held that excess

expert witness fees were unavailable under Federal Rule of Civil

Procedure 54(d) or under 42 U.S.C. § 1988. The Supreme Court

discussed only Federal Rule of Civil Procedure 54(d) because the

petitioner had not appealed from the district court’s order deny-

ing fees under § 1988. 482 U.S. at 446 n.1.

willie

fees under § 1988. Nevertheless the Court’s reasoning

clearly does not allow such awards.

In Crawford Fitting, and in an earlier case, Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S. 240

(1975), this Court reviewed the history of cost-shifting in

American law. In 1853, Congress enacted the 1853 Fee

Act in order to bring about consistency in the federal

courts’ awarding of costs to prevailing parties. 482 U.S.

at 440. The Act set forth “the nature and amount of the

taxable items of cost in the federal courts,” Alyeska, 421

U.S. at 251-52, among them, witness fees, then set at

$1.50 per day, Crawford Fitting, 482 U.S. at 440. Sec-

tions 1920 and 1821 are the present-day descendants of

the 1853 Fee Act whose “sweeping reforms . . . have been

carried forward to today ‘without any apparent intent to

change the controlling rules.’”’ Jd., quoting Alyeska, 421

U.S. at 2565.

The general “American Rule” allows the prevailing par-

ty to recover only those costs which were known histori-

cally as “costs ‘between party and party.’ ” International

Woodworkers, 790 F.2d at 1176, quoting Sprague v.

Ticonic Nat’l Bank, 307 U.S. 161, 164 (1939). Other costs,

such as attorney’s fees and expert witness fees, historical-

iy known as “costs . . . ‘between solicitor and client,’ ”’

are not generally recoverable except when (1) a losing par-

ty has pressed a claim or defense in bad faith, (2) the

prevailing party acted to recover a fund for the common

benefit of a group of beneficiaries, or (3) a party has

wilfully disobeyed a court order. Alyeska, 421 U.S. at 245,

259-60; International Woodworkers, 790 F.2 at 1177. None

of these exceptions applies in the present case.

Aside from these three exceptions, as this Court held

in Crawford Fitting, § 1821’s limits apply ‘“‘absent explicit

- =

statutory or contractual authorization for the taxation of

the expenses of a litigant’s witness as costs.” 482 U.S.

at 439. In Alyeska, 421 U.S. at 260, this Court noted that

Congress has not “‘extended any roving authority to the

Judiciary to allow counsel fees as costs or otherwise when-

ever the courts might deem them warranted.” Similarly,

Congress has extended no such authority to the judiciary

to award expert witness fees.

The statute relied upon by the district court in this case,

42 U.S.C. § 1988, contains no explicit authorization for

the taxation of expert witness fees.

The Seventh Circuit, interpreting this Court’s most re-

cent decision in the area, Missouri v. Jenkins, 109 S. Ct.

2463, 105 L. Ed. 2d 229 (1989), concluded that § 1988’s

’ 99

meaning is not limited to “the statute’s ‘plain language’.

App. 3. In Jenkins the Supreme Court held that the ‘‘at-

torney’s fee” allowed by § 1988 may include market rate

compensation for the work of law clerks and paralegals.

105 L. Ed. 2d at 240. The court reasoned that

[cJiearly, a “reasonable attorney’s fee” cannot have

been meant to compensate only work performed per-

sonally by members of the bar. Rather, the term

must refer to a reasonable fee for the work product

of an attorney. Thus, the fee must take into account

the work not only of attorneys, but also of secre-

taries, messengers, librarians, janitors, and others

whose labor contributes to the work product for

which an attorney bills her client; and it must also

take account of other expenses and profit.

105 L. Ed. 2d at 241. The Seventh Circuit read Jenkins

and an earlier Seventh Circuit case that had permitted

recovery of telephone and travel expenses under § 1988,

Henry v. Webermeier, 734 F.2d 188, 192 (7th Cir. 1984),

as supporting the proposition that ‘maybe one of the

=—

other things ‘attorney’s fee’ can mean is the fee paid an

expert witness or consultant.” App. 3. The court found

that in passing the Civil Rights Attorney’s Fees Award

Act of 1976, Congress intended to restore to the judiciary

the equitable power to award attorney’s fees and expenses

in civil rights cases. Many federal courts had believed they

possessed such equitable power until the Supreme Court

ruled otherwise in Alyeska Pipeline Service Co. v. Wilder-

ness Society, 421 U.S. 240 (1975). According to the Sev-

enth Circuit, Congress ‘“us[ed] ‘reasonable attorney’s fée’

as a shorthand expression for such fees and other ex-

penses as the district court might in the exercise of its

equitable discretion reasonably believe should be reim-

bursed to the prevailing party.” App. 10.

As noted above, the other court of appeals that has con-

sidered the impact of Jenkins on Crawford Fitting

reached a conclusion opposite to the Seventh Circuit’s con-

clusion in Friedrich. See West Virginia University Hos-

pitals, Inc. v. Casey, 885 F.2d 11, 34 (3d Cir. 1989), peti-

tion for cert. filed, 58 U.S.L.W. 3430 (U.S. Jan. 9, 1990)

(No. 89-994). In Casey the Third Circuit found that Mis-

souri v. Jenkins, 109 S. Ct. 2463 (1989) does not affect

the reasoning of Crawford Fitting. In Jenkins, the dispute

about § 1988 concerned fees for the services of paralegals

and law clerks and not witness fees. The court in Casey

noted that fees for paralegals and law clerks are not regu-

lated by statute, whereas witness fees are limited by 28

U.S.C. § 1821. Furthermore, the defendant in Jenkins did

not contest the legitimacy of paying paralegal fees under

§ 1988, but only whether those fees should be paid at

market rate or at the cost to the attorneys. Jenkins,

therefore, did not modify the rule of Crawford Fitting:

‘{UInless the statute under which expert witness fees are

awarded expressly repeals the limits of sections 1920 and

1821(b), we must defer to legislative fiat.’’ 885 F.2d at 34.

= =

Indeed, the weight of authority after Crawford Fitting

is with the Third Circuit, not the Seventh Circuit. Many

federal circuit courts of appeals have reasoned that the

“broad language in Crawford Fitting indicates that, al-

though a statute may shift attorney fees, the statute does

not operate to shift witness fees unless the statute refers

explicitly to witness fees.” Glenn v. General Motors Corp.,

841 F.2d 1567, 1575 (11th Cir. 1988) (holding that 29 U.S.C.

§ 216(b), which allows the plaintiff in an Equal Pay Act

action to recover “a reasonable attorney’s fee . . . and

costs of the action,”’ does not permit the recovery of ex-

pert witness fees). Accord Denny v. Westfield State Col-

lege, 880 F.2d 1465 (1st Cir. 1989) (excess expert witness

fees not recoverable in Title VII case absent explicit Con-

gressional authorization); Sevigny v. Dicksey, 846 F.2d 953,

959 (4th Cir. 1988) (Ҥ 1988 does not provide statutory

authority for the awarding of compensation for non-legal

experts”); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d

Cir. 1987), cert. denied, 108 S. Ct. 1298 (1988) (expert

witness fees not recoverable in civil rights case); Leroy

v. City of Houston, 831 F.2d 576, 584 (5th Cir. 1987), cert.

denied, 108 S. Ct. 1735 (1988) (expert witness fees not

recoverable under the Voting Rights Act because Act

does not specifically allow recovery). Even the Eighth Cir-

cuit which had previously ignored Crawford Fitting’s ra-

tionale and affirmed an excess expert witness fee under

§ 1988, SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir.

1988), recently affirmed a district court order limiting ex-

pert witness fees under § 1988 to $30 per day. Gilbert

v. City of Little Rock, 867 F.2d 1062 (8th Cir. 1989) (en

banc) (affirming district court by equally divided vote).

Federal district court decisions are in considerable disar-

ray, evidencing confusion over this issue. See, e.g., Nor-

wood v. Charlotte Memorial Hosp. & Med. Center, 720

F. Supp. 548, 546 (W.D.N.C. 1989); Degidio v. Pung, 723

F. Supp. 135, 140 (D. Minn. 1989).

= =

Many of the cases contrary to Friedrich have noted the

large number of federal statutes that expressly permit ex-

pert witness fees to be taxed as costs. E.g. International

Woodworkers, 790 F.2d at 1179, n.7. Section 1988 differs

from these statutes by its omission of any statement per-

mitting recovery of expert witness fees. In contrast, the

Consumer Product Safety Act, for example, explicitly per-

mits a court to award “reasonable expert witness fees”’

in an action for review of a consumer product safety rule,

15 U.S.C. § 2060(c). It also permits a person who sues

for an injury caused by the knowing violation of a Con-

sumer Product Safety Commission Rule to “recover the

costs of suit, including . . . reasonable expert witnesses’

fees,” 15 U.S.C. § 2072(a), and permits a court to award

“reasonable expert witnesses’ fees” in an action for en-

forcement of a consumer product safety rule, 15 U.S.C.

§ 2073.

Section 1988 merely creates an exception to the general

American Rule regarding attorney’s fees. Those fees,

which are not generally recoverable as part of the prevail-

ing party’s costs, are made recoverable by § 1988 which

allows a prevailing party in a civil rights action to recover

a “reasonable attorneys’ fee as part of the costs.” As the

Fifth Circuit reasoned, “[g]iven Congress’ ability to pro-

vide explicitly for the taxing of excess expert witness’

fees as costs, we should not infer congressional intent to

award such costs in the absence of an express statute

so providing.” International Woodworkers, 790 F.2d at

1179-80.

As discussed above, certiorari should be granted to re-

view the Seventh Circuit’s opinion because it departs radi-

cally from the reasoning of this Court and the decisions

of other courts, particularly the Third Circuit. Until this

Court resolves whether expert witness fees are available

under § 1988 and other fee shifting statutes, the availabil-

~~

ity of these fees will depend on the geographical location

of the parties. This issue can arise in any case involving

a statute that shifts attorney’s fees but is silent regard-

ing witness fees.? Petitioners respectfully urge this Court

to settle this question by granting their petition. In the

event that this Court grants the petition in West Virginia

University Hospitals, Inc. v. Casey, 885 F.2d 11 (8d Cir.

1989), petition for cert. filed, 58 U.S.L.W. 3430 (U.S. Jan.

9, 1990) (No. 89-994), petitioners request that this peti-

tion be held in abeyance pending resolution of Casey.

CONCLUSION

For all the foregoing reasons, defendants respectfully

request that this Court grant the Petition for Writ of Cer-

tiorari to the Seventh Circuit to review this case.

Respectfully submitted,

KELLY R. WELSH

Corporation Counsel of the

City of Chicago

Counsel of Record

RUTH M. MOSCOVITCH

Chief Assistant Corporation Counsel

JEAN DOBRER

Assistant Corporation Counsel

610 City Hall

Chicago, Illinois 60602

(312) 744-0468

Attorneys for Petitioners

2 See, e.g., 12 U.S.C. § 4010; 15 U.S.C. § 72; 29 U.S.C. § 216b);

42 U.S.C. § 2000e-5(k).

OEE

APPENDIX

INDEX TO APPENDIX

Opinion of the United States Court of Appeals for

the Seventh Circuit, October 31, 1989 .....

Judgment of the United States Court of Appeals

for the Seventh Circuit, October 31, 1989 ....

Judgment of the United States District Court for

the Northern District of Illinois, Eastern Divi-

sion, September 15, 1988 ..................

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, September 15, 1988 ..............

Memorandum Opinion and Order of the United States

District Court for the Northern District of Illi-

nois, Eastern Division, September 15, 1988 ..

16

17

18

19

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 88-3043

WALTER FRIEDRICH, individually and on behalf

of a class of similarly situated persons,

Plaintiffs-Appellees,

v.

City OF CHICAGO and FRED RICE, Superintendent

of Police, in his official capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 84 C 7719—Marvin E. Aspen, Judge.

ARGUED SEPTEMBER 8, 1989—-DECIDED OCTOBER 31, 1989

Before CUMMINGS and POSNER, Circuit Judges, and

GORDON, Senior District Judge.*

POSNER, Circuit Judge. The question presented by this

appeal is whether the judge in a civil rights case may

order the losing party to reimburse the cost incurred by

the winner to hire an expert witness. The Civil Rights

Attorney’s Fees Awards Act of 1976, amending 42 U.S.C.

* Hon. Myron L. Gordon of the Eastern District of Wisconsin,

sitting by designation.

ai

App. 2

§ 1988, provides that in any suit under a variety of federal

civil rights statutes, “the court, in its discretion, may

allow the prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs” paid by

the loser. As interpreted by the courts, the Act entitles

a prevailing plaintiff to such an award as a matter of

course, but a prevailing defendant only if the suit was

completely groundless. Hensley v. Eckerhart, 461 U.S.

424, 429 and n. 2 (1983). The Supreme Court has also read

the statute to allow as part of the “reasonable attorney’s

fee” the award of paralegal fees, even though paralegals

are not attorneys. Missouri v. Jenkins, 109 S. Ct. 2463

(1989). And this court, in a decision the defendants do not

question, has authorized the award—again as part of the

reasonable attorney’s fee—of lawyers’ out-of-pocket ex-

penses of travel, investigation, and other trial prepara-

tion. See Henry v. Webermeier, 738 F.2d 188, 192 (7th

Cir. 1984). Many other courts have done likewise. See

cases cited in International Woodworkers v. Champion

International Corp., 790 F.2d 1174, 1184-86 (5th Cir. 1986)

(en banc) (dissenting opinion), aff'd under the name of

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437

(1987); cf. Mennor v. Ford Hood National Bank, 829 F.2d

553, 557 and n. 22 (5th Cir. 1987).

The specific question presented by this appeal, however,

is new in this circuit and has caused a division among

several others. See, e.g., West Virginia University Hos-

pitals, Inc. v. Casey, No. 89-5165 (3d Cir. Sept. 5, 1989);

SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir. 1988);

Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983);

Sevigny v. Dicksey, 846 F.2d 953, 959 (4th Cir. 1988); cf.

Denny v. Westfield State College, 880 F.2d 1465 (1st Cir.

1989). It is whether the expenses reimbursable under the

statute include fees that the prevailing party pays to an

expert hired to advise or testify in the case. The district

court held that experts’ fees are reimbursable under sec-

tion 1988, and, in this successful suit under 42 U.S.C. § 1983

by a class of “breakdancers” and others to invalidate on

First Amendment grounds a Chicago ordinance restrict-

ing street performances, see 619 F. Supp. 1129 (N.D. III.

App. 3

1985), awarded the plaintiffs almost $10,000 for the fees

they had incurred in hiring two experts to advise and tes-

tify. The reasonableness of the expenditure is not in ques-

tion. The total award of attorney’s fees, expenses (includ-

ing the experts’ fees), and costs approached $42,000.

The Supreme Court and this court have rejected the

strongest argument against the district court’s result, the

argument from the statute’s “plain language.” The fee

statute authorizes the award of a reasonable attorney’s

fee, and an expert witness or consultant is not an attor-

ney. But neither is a paralegal, yet paralegal fees may

be awarded (Jenkins). An attorney’s travel expense or

long-distance telephone expense is not an attorney’s fee,

yet is awardable too (Henry). And although the statute

makes no distinction between a prevailing plaintiff and

a prevailing defendant, the standard for an award of fees

is different in the two cases (Hensley).

The defendants argue that a paralegal is more like an

attorney than is an economist, a psychiatrist, a police com-

missioner (one of the experts here), or a sociologist (the

other—William Whyte, of Organization Man fame). That

may be, but it does not touch the question whether the

fee statute is to be read literally. A sheep is more like

a goat than it is like an ostrich; but if a statute regulating

sheep had been applied to goats, an attempted applica-

tion to ostriches could not be defeated simply by point-

ing out that an ostrich is not a sheep. If “attorney” in

the fee statute can mean something different from attor-

ney, and “fee” something different from fee, then maybe

one of the other things “attorney’s fee” can mean is the

fee paid an expert witness or consultant.

We are quite aware that appeals to literalism are com-

mon. The cases are thick with references to “pla: mean-

ing” and with such tired saws as that interpretation must

begin with the words of the statute—and stop there if

they are clear. See, e.g., United States v. Ron Pair Enter-

prise, Inc., 109 S. Ct. 1026, 1030 (1989), and other cases

cited in In re Sinclair, 870 F.2d 1340, 1341-42 (7th Cir.

1989). In fact, interpretation must begin with the linguistic

irre —— - -

App. 4

and cultural competence presupposed by the author of the

statute. “Language is a process of communication that

works only when authors and readers share a set of rules

and meanings. . . . To decode words one must frequently

reconstruct the legal and political culture of the drafters.”

Id. at 1842. (Goodness knows what the civil rights fees

statute would mean to someone outside the legal culture!)

As shown by Jenkins, a 7-1 decision on the meaning of

the civil rights fee statute (the Court divided more closely

on another issue), rendered less than a year ago, and by

countless other cases including Hensley and Henry, judges

realize in their heart of hearts that the superficial clarity

to which they are referring when they call the meaning

of a statute “plain” is treacherous footing for interpreta-

tion. They know that statutes are purposive utterances

and that language is a slippery medium in which to en-

code a purpose. They know that legislatures, including the

Congress of the United States, often legislate in haste,

without considering fully the potential application of their

words to novel settings. The presence of haste here is sug-

gested by the fact that the civil rights fees statute was

passed on the last day of the Ninety-Fourth Congress.

When a court can figure out what Congress probably

was driving at and how its goal can be achieved, it is not

usurpation—it is interpetation in a sense that has been

orthodox since Aristotle—for the court to complete (not

enlarge) the statute by reading it to bring about the end

that the legislators would have specified had they thought

about it more clearly or used a more-perspicuous form

of words. That is what the Supreme Court did in the

Jenkins case. The civil rights fee statute had been passed

the year after Alyeska Pupeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975), cut off a trend in the lower

federal courts toward awarding prevailing parties in civil

rights and other cases, conceived of as “private attorneys

general,” a reasonable attorney’s fee as a matter of fed-

eral equity power. Noting that the fee statute had been

enacted in order to overrule Alyeska with respect to civil

rights cases, the Court in Jenkins asked whether an

App. 5

award of paralegal fees would serve the statutory pur-

pose, and concluded that it would. See 109 S. Ct. at 2471.

Paralegals provide a low-cost substitute for work that

would otherwise be performed by the attorney himself.

The substitute is part of the attorney’s work product. If

fees for the services of paralegals could not be shifted

to the losing party, as attorney’s fees can be, there would

be an incentive to substitute attorney time for paralegal

time. So even defendants would be made worse off in the

long run; they would be paying for the same work but

at a higher rate. Shipes v. Trinity Industries, Inc., 685

F’. Supp. 612, 615 (E.D. Tex. 1987). A nonliteral interpre-

cation was necessary to make sense of the statute.

Much the same argument can be made for the shifting

of experts’ fees. Experts are not only hired to testify;

sometimes they are hired, also or instead, to educate coun-

sel in a technical matter germane to the suit. The time

so spent by the expert is a substitute for lawyer time,

just as paralegal time is, for if prohibited (or deterred

by the cost) from hiring an expert the lawyer would at-

tempt to educate himself about the expert’s area of ex-

pertise. To forbid the shifting of the expert’s fee would

encourage underspecialization and inefficient trial prepara-

tion, just as to forbid shifting the cost of paralegals would

encourage lawyers to do paralegals’ work. There is thus

no basis for distinguishing Jenkins from the present case

so far as time spent by these experts in educating the

plaintiffs’ lawyer is concerned (we can find no merit in

a distinction based on the difference between an employee

and an independent contractor), and so we think the dis-

trict judge must have been right at least in part. If so,

this is a reason for thinking he was right in whole, for

it is difficult to separate time spent by an expert in

educating the lawyer from time spent in preparing to

testify. Sometimes it is impossible; the same time may

serve both purposes.

Time actually spent on the stand, however, is not easily

conceived of as a substitute for lawyer time or lawyer

work product. And such time is easily separated out from

App. 6

the other time spent by an expert on a case, though usual-

ly it is just the tip of the iceberg; in this case, so far

as we can determine, less than ten percent of the money

paid the experts was for time actually testifying. But the

Court in Jenkins did not insist on a relation of substitu-

tion for paralegal fees to be shifted, and of course para-

legals do not just do at lower cost what lawyers do. In

part because they are cheaper, they do things that law-

yers would not consider worth their while to do. They

expand the scope of trial preparation. And so it is with

experts.

But when applied to the time the expert spends on the

stand, this analysis reckons without the general federal

cost and witness-fee statutes, and their interpretation by

the Supreme Court in Crawford Fitting Co. v. J.T. Gib-

bons, Inc., supra, anticipated in Chicago College of Osteo-

pathic Medicine v. George A. Fuller Co., 801 F.2d 908,

912 (7th Cir. 1986). Section 1920 of the Judicial Code lists

items that a federal judge may tax as costs. ‘“Compensa-

tion of court appointed experts” is one of these, see

§ 1920(6), but the experts in this case were not appointed

by the court and the statute makes no explicit reference

to experts retained by a party. Another item in the list

is witness fees, § 1920(3). But section 1821(aX1) of the

Judicial Code provides that ‘except as otherwise provided

by law, a witness in attendance at any court of the United

States ... shall be paid the fees and allowances provided

by this section,” which goes on to provide in other subsec-

tions that “a witness shall be paid an attendance fee of

$30 per day for each day’s attendance,” § 1821(b), plus

his travel time to and from the court, and lodging if an

overnight stay is required, §§ 1821(c), (d). Sections 1821

and 1920 long predate the civil rights fees act. In Craw-

ford the Court held that they bar the award of higher

witness fees by federal judges under Rule 54(d) of the

gh prc Rules of Civil Procedure, the rule for the taxing

of costs.

Crawford was not however a case in which the judge

had rested his award of witness fees on another statute.

And section 1821(aX1) is, by its own terms, inapplicable

App. 7

where a statute makes other provision for costs or witness

fees. The question left open by Fuller (see 801 F.2d at

912) and by Crawford (see 482 U.S. at 445 (concurring

opinion), 446 n. 1 (dissenting opinion)), but squarely posed

by the present appeal, is whether the civil rights fees stat-

ute makes other provision for witness fees within the

meaning of section 1821(aX1). Notice that however this

question is answered, the plaintiffs in this case would still

be entitled to an award of fees incurred for advice, as

distinct from testimony and preparation for testimony, by

experts. Sections 1821 and 1920 do not bear on fees for

nontestimonial services.

The defendants argue that Crawford requires reversal

because the Court said, ‘““We will not lightly infer that

Congress has repealed §§ 1920 and 1821, either through

Rule 54(d) or any other provision not referring explicitly

to witness fees. . . . We hold that absent explicit statutory

or contractual authorization for the taxation of the ex-

penses of a litigant’s witness as costs, federal courts are

bound by the limitations set out in 28 U.S.C. § 1821 and

§ 1920.” 482 U.S. at 445. Read literally this statement

provides strong support for the defendants’ argument, but

the literal intepretation of judicial language is no more

defensible than the literal interpretation of statutory lan-

guage. Read literally, the statement we have just quoted

is in tension with the Court’s recognition in the Alyeska

opinion that the general cost-shifting statute (§ 1920) does

not bar all forms of fee shifting that are grounded in

equitable rather than statutory powers—does not for ex-

ample bar an award of fees under the common-fund doc-

trine or as a sanction for a frivolous claim or defense. See

421 U.S. at 255-60. In any event, all Crawford says is that

Congress’s desire to bring a case within the exception to

section 1821(b) must be plain; this is not the same as say-

ing that the statute appealed to as making other provi-

sion for witness fees must, as the defendants argue, con-

tain the words “witness fees’ or recite that it is repeal-

ing section 1920 or section 1821(b). And unlike Crawford,

this is not a case where a general grant of authority, such

App. 8

as that contained in Rule 54(d), is appealed to against a

specific provision, such as the witness fee statute. That

statute is no more specific than the civil rights fees

statute. If the former is specific with respect to shifting

witness fees, the latter is specific with respect to shift-

ing fees in civil rights cases. They are equally specific,

or equally general.

The defendants press the following argument on us.

When Congress passed the civil rights fees act it must

have known, or at least it should be presumed to have

known, that 28 U.S.C. §§ 1821 and 1920 were on the

books and read together limited witness fees to $30 a day

unless Congress provided otherwise. Therefore if Congress

had wanted to lift the limit for expert witnesses in civil

rights cases it would have said so. Repeals by implica-

tion are disfavored. See, e.g., Morton v. Mancari, 417 US.

535, 550 (1974).

We expressed our doubts about this well-known “canon

of construction” in Edwards v. United States, 814 F.2d

486, 488-89 (7th Cir. 1987), feeling free to do so because,

while the Supreme Court frequently cites the canon with

favor, it frequently refuses to apply it, too. The canon

is indeed a mixed bag. It protects some old statutes from,

as it were, inadvertent destruction, but it threatens to

impale new statutes on the concealed stakes planted by

old ones. Congressmen do not carry the statutes of the

United States around in their heads any more than judges

do. The canon may therefore cause a forgotten old statute

inadvertently to wreck a considered new one. That is a

danger in this case. There is no indication that anyone

drew Congress’s attention to the witness fee statute dur-

ing the deliberations preceding enactment of the civil

rights fee statute. Although an appendix to the House

committee report cites a number of fee-shifting statutes

some of which expressly allow the award of expert-witness

fees, this feature of those statutes—which are merely

cited, and not described—is not mentioned in the appen-

dix or elsewhere. See H.R. Rep. No. 1558, 94th Cong.,

2d Sess. 13-14 (1976).

fn

~

App. 9

If Congress’s knowledge of the entire contents of the

United States Code cannot realistically be “presumed’’—

and it cannot—then the best that can be said for the canon

against repeals by implication is, first, that it provides

a mechanical rule for deciding difficult cases and thus

makes law simpler and curbs judicial discretion, and, sec-

ond, that it encourages legislators and their staffs to do

a thorough search of previous statutes before enacting a

new one. The first point identifies real, although limited,

social goods (legal simplification and the reduction of ju-

dicial discretion), but the second strikes us as unrealistic

about the conditions under which legislatures work. The

canon seems in any event particularly inapt in a case

such as this, because there is nothing to indicate that the

general federal cost-shifting statutes express hostility to

awarding the fees of party-retained expert witnesses in

cases governed by a statute designed to enlarge the ju-

dicial power to shift costs. The issue had not arisen dur-

ing the deliberations that preceded the enactment of the

general statutes. If there is no conflict at the level of

policy or purpose, then to give effect to the policy behind

the later statute is not a “repeal” of the earlier one in

a practical sense.

Perhaps the main problem with the canon is semantic—

the connotations of “canon” and “canonical,” which makes

it sound like a rigid rule, whereas it may just be a re-

minder not to assume lightly that Congress repealed a

statute without saying so. But we need not continue this

exploration of the “canon” against repeals by implication,

for it is not in fact applicable to this case. The witness

fee statute by its own terms does not apply where Con-

gress has made other provision for witness fees, so if the

civil rights fees statute is such other provision there is

no repeal or impairment of the earlier statutes. The plain-

tiffs say it is, but acknowledge that this appears not from

the text of the statute but from its history and pur-

pose. They emphasize a statement on the House floor by

one of the bill’s sponsors, Congressman Drinan, “that

the phrase ‘attorney’s fee’ would include the values of

App. 10

the legal services provided by counsel, including all inci-

dental and necessary expenses incurred in furnishing ef-

fective and competent representation.”’ 122 Cong. Rec.

H35123 (Oct. 1, 1976). This statement is entitled to little

if any weight in determining the meaning of the statute,

and not only because it does not mention expert-witness

fees. Floor debates are not a reliable guide to the mean-

ing of statutes. They are poorly attended and members

of Congress can make additions to the Congressional Rec-

ord after the debate without notice to their colleagues.

See Katzmann, Summary of Proceedings, in Judges and

Legislators: Toward Institutional Comity 162, 175 (Katz-

mann ed. 1988).

Of slightly greater significance is the fact that the Sen-

ate committee report cites, as examples of cases that had

been overruled by Alyeska and would be reinstated as

it were by the new statute, several cases in which courts

had awarded expert-witness fees along with attorney’s

fees in the literal sense. The citation is indirect. The

report notes that in the overruled cases the courts had

been ‘following Congressional recognition in newer

statutes of the ‘private attorney general’ concept [and] ex-

ercising their traditional equity powers to award at-

torneys’ fees.” S. Rep. No. 1011, 94th Cong., 2d Sess. 4

(1976). In support of this proposition the report cites to

a list of cases in the committee’s hearings, see id. at 4

n. 3--and if one goes to this list one will find several case

summaries that state that expert-witness fees had been

awarded in the case. See Legal Fees—Hearings before the

Subcomm. on Representation of Citizen Interests of the

S. Comm. on the Judiciary, 93d Cong., Ist Sess. 911, 917,

1060 (1973).

Consistent with our skepticism about legislative omni-

science, we are not convinced that these documents show

that Congress actually adverted to the question whether

expert-witness fees could be shifted along with attorney’s

fees. See Blanchard v. Bergeron, 109 S. Ct. 939, 946-47

(1989) (concurring opinion). That would require that mem-

bers of Congress had read with some care the hearings

App. 11

cited in the Senate committee report and appreciated the

significance of the references to awards of expert-witness

fees. There is no indication that they did, and it is unlike-

ly. But this conclusion does not end the analysis. If Con-

gress is not omniscient, this weakens one of the argu-

ments of the plaintiffs but also shows that—the defendants

to the contrary notwithstanding—little weight can be at-

tached to Congress’s failure to imitate the five statutes

listed in the appendix to the House committee report that

specify expert-fitness fees as a type of expense that the

district court can shift to the prevailing party. All five

were environmental statutes, where the need for expen-

sive technical experts was too obvious to escape conscious

legislative consideration; the last four were copies of the

first.

The question what a statute means is only in part a

function of what the legislators thought it meant. The

scope of legislation is not circumscribed by the conscious

thoughts of the legislators. Nor does the answer to an

interpretive question turn on how the statute might be

read by someone utterly ignorant of its background or

by the same someone reading with the same literalism

statements in the legislative history. “Clarity depends on

context, which legislative history may illuminate.” Jn re

Sinclair, supra, 870 F.2d at 1342. We ask what meaning

would be obvious to one familiar with the circumstances

of enactment, including, here, the judicial history that pro-

vides the backdrop of the statute. We ask whether we

can be confident that if someone had told Congress in the

deliberations leading up to enactment that it had neglected

to say anything about the shifting of expert-witness fees,

Congress would have added language making clear to the

most literal-minded that such fees could be shifted. We

think it would have, and one reason is simply that we

are given and can think of no reason against such shift-

ing—especially given our earlier point that expert fees for

advice and consultation can be shifted along with paralegal

and other incidental expenses normally incurred in litiga-

tion. There would be a reason if the civil rights fees

App. 12

statute had been a hard-fought compromise between those

who wanted judges to have the broad equitable authority

they had exercised before Alyeska and those who wanted

no inroads made on Alyeska, for then the court’s duty

would be to give effect to the compromise, not to give

proponents a victory that had eluded them in the legis-

lative arena. See Rodriguez v. United States, 480 U.S.

522, 525-26 (1987) (per curiam). But there is no indication

of compromise on any issue relevant to this case, and the

defendants do not argue it. All the evidence is to the con-

trary. Recognizing that most civil rights suits were not

lucrative for the plaintiffs’ lawyers, Congress wanted to

make losing defendants bear the expenses of suit beyond

the usual items taxable as costs. Why exclude expert-

witness fees? Why in particular exclude those fees when

they are incurred for testimony and its preparation but

not when they are incurred for advice and consultation?

The most telling clue to the statute’s meaning is the

passage quoted above from the Senate committee report,

discussing the equitable power exercised by courts prior

to Alyeska, and a companion statement that “this bill

creates no startling new remedy—it only meets the tech-

nical requirements that the Supreme Court has laid down

if the Federal courts are to continue the practice of

awarding attorneys’ fees which had been going on for

years prior to the Court’s May decision [Alyeska].”’ S.

Rep. No. 1011, supra, at 6. The courts that until Alyeska

had shifted attorney’s fees and other expenses, including

expert-witness fees, had relied on the existence of a

federal equity power. “There is ample authority, outside

the civil rights area, to support the proposition that the

allowance of attorneys’ fees and expenses of preparation

for trial is in the discretion of the district court sitting

in equity where exceptional circumstances call for their

allowance in order to do justice between the parties.” Lee

v. Southern Home Sites Corp., 429 F.2d 290, 295 (5th Cir.

1970) (emphasis in original). This equitable power was

thought to extend to expert-witness fees, see, e.g.,

Wallace v. House, 377 F. Supp. 1192, 1206-07 (W.D. La.

App. 13

1974); Welsch v. Likins, 68 F.R.D. 589, 596-97 (D. Minn.

1975); Sabala v. Western Gillette, Inc., 371 F. Supp. 385,

394 (S.D. Tex. 1974)—indeed to any expense that the dis-

trict court might reasonably believe should be shifted in

order to do equity. See Wallace v. House, supra, 377 F.

Supp. at 1206-07, and cases cited there. Alyeska held that

with immaterial exceptions this equitable discretion did

not exist. The Civil Rights Attorney’s Fees Awards Act

of 1976 restored it, using “reasonable attorney’s fee’’ as

a shorthand expression for such fees and other expenses

as the district court might in the exercise of its equitable

discretion reasonably believe should be reimbursed to the

prevailing party. The term is the label for a power first

asserted, then withheld, and finally restored; it is not an

exhaustive description of the power.

It had long been understood that when expenses of

litigation were shifted pursuant to the equity powers of

the district court, the statutes providing for the taxing of

“costs,” such as section 1920 (which in turn incorporates by

reference the limitations on witness fees in section 1821),

did not apply. See, e.g., Henkel v. Chicago, St. Paul, Min-

neapolis & Omaha Ry., 284 U.S. 444, 447-48 (1932). So

when Congress restored the equitable power to shift liti-

gation expenses in civil rights cases, it took the question

of expert-witness fees in such cases out of 28 U.S.C.

§§ 1821 and 1920. No doubt it would be unrealistic to sup-

pose that Congress actually considered the bearing of

Henkel and like cases. But it is only on an assumption

of omniscience that the failure to specify expert-witness

fees becomes significant, for while an omniscient Congress

would remember sections 1821 and 1920, equally it would

remember Henkel. To assume omniscience not only is un-

realistic, but leads nowhere.

We anticipate a floodgates argument of the following

form. If the civil rights fees statute is interpreted to shift

the entire expenses of the prevailing plaintiff to the defen-

dant, then plaintiffs will seek awards for the opportunity

costs of their time spent in ‘esiifying or preparing to

testify, or for medical expenses for treating the anxiety

App. 14

that litigation can trigger, or for the other consequential

damages of participating even in successful litigation. But

there is a reasonably bright line, which we do not think

the framers of the fee statute meant to cross in seeking

to resurrect a line of cases that had respected the line,

between expenses incurred in hiring the inputs (of lawyer

and other time, copying, and the like) necessary to pros-

ecute a suit. and expenses incurred as a consequence of

being a party even if you are indemnified for the full costs

of suit. The latter category of expense raises problems

of measurement and causality that the former does not

and that even the most generous fee-shifting regimes ex-

clude. See, e.g., United States v. McPherson, 840 F.2d

244 (4th Cir. 1988). We think the civil rights fees statute

excludes these expenses too. See Duncan v. Poythress,

750 F.2d 1540, 1543 n. 12 (11th Cir. 1985); but see Laffey

v. Northwest Airlines, Inc., 746 F.2d 4, 30 (D.C. Cir.

1984). Our decision has, therefore, a limited scope.

It could of course be argued that one-way fee-shifting,

which is essentially the regime created for civil rights

litigation by the cases cited in Hensley, induces too much

litigation. If so, then allowing expert-witness fees to be

shifted is a move in the wrong direction. Maybe a big

move, since those fees can be substantial—in this case

they are almost one-fourth of the total award of fees,

which in turn was the only form of monetary relief that

the plaintiff and his class obtained. But the propriety of

one-way fee shifting in civil rights cases was resolved

when the Supreme Court held on the basis of the legis-

lative history of the civil rights fees statute that prevail-

ing plaintiffs are to be treated more generously than pre-

vailing defendants. It would be both arbitrary and incon-

sistent with our best guess as to the meaning of the

statute to hold that, of all expenses ordinarily shifted

under fee-shifting statutes, only expert-witness fees are

excluded.

We do not want to exaggerate the significance of our

holding, however. There is little evidence that the shift-

ing of fees has ever made much difference in the propen-

sity to bring civil rights suits. See Eisenberg & Schwab,

|

App. 15

The Reality of Constitutional Tort Litigation, 72 Cornell

L. Rev. 641, 688-89, 693 (1987); Schwab & Eisenberg, Ex-

plaining Constitutional Tort Litigation: The Influence of

tre Attorney Fees Statute and the Government as Defen-

dant, 73 Cornell L. Rev. 719, 755, 766 (1988); cf. Percival

& Miller, The Role of Attorney Fee Shifting in Public In-

terest Litigation, 47 Law & Contemp. Prob., winter 1984,

at 233, 246-47 (1984). If it has not, then it is unlikely that

our decision today will have a large practical impact, since

expert-witness fees will ordinarily be only a fraction of

attorney’s fees.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 16

JUDGMENT—ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 31, 1989.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. Myron L. Gorpon, Sr. District Judge*

WALTER FRIEDRICH, Individually and on behalf of a class

of similarly situated persons,

Plaintiffs-Appellees,

No. 88-3043 vs.

CITY OF CHICAGO and FRED RICE, Superintendent of

Police, in his official capacity,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 84 C 7719—Marvin E. Aspen, Judge.

This cause was heard on the record from the United

States District Court for the Northern District of Illinois,

Eastern Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the

same is hereby AFFIRMED, with costs, in accordance

with the opinion of this Court filed this date.

* Honorable Myron L. Gordon of the Eastern District of Wiscon-

sin is sitting by designation.

App. 17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JUDGMENT IN A CIVIL CASE

Friedrich, Walter

v. Case Number: 84 C 7719

City of Chicago, et al.

(1) Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that we award plaintiffs’ attorneys’ fees and costs

in the amount of $25,544.75, expenses in the amount

of $13,867.87 and costs of $2,307.00. Judgment is en-

tered in favor of plaintiffs in the amount of $41,721.62.

Date September 15, 1988

H. STUART CUMMINGHAM

Clerk

/s/ Gladys Lu

(By) Deputy Clerk

App. 18

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: 84 C 7719 Date: SEP 15 1988

Name of Assigned Judge: MARVIN E. ASPEN

Case Title: Walter Freidrich vs. City of Chicago

x * * Ke

DOCKET ENTRY:

(1) Judgment is entered as follows:

Enter memorandum opinion and order: This mat-

ter is currently before the Court on plaintiffs’ peti-

tion for attorneys’ fees and costs under the Civil

Rights Attorney’s Fees Award Act of 1976, 42

U.S.C. $1988 (1982). For the reasons stated in the

attached opinion, we award plaintiffs’ attorneys

fees in the amount of $25,544.75, expenses in the

amount of $13,867.87 and costs of $2,307.00. Judg-

ment is entered in favor of plaintiffs in the amount

of $41,721.62.

* * *& KK

(12) (For further detail see & order attached to the

original minute order form.)

*x* * Ke Ke

App. 19

[DATED SEPTEMBER 15, 1988]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 84 C 7719

WALTER FRIEDRICH, individually and on behalf of similarly

situated persons,

Plaintiffs,

V.

CITY OF CHICAGO, a municipal corporation, FRED RICE,

Superintendent of Police, in his official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

This matter is currently before the Court on plaintiffs’

petition for attorneys’ fees and costs under the Civil Rights

Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988

(1982).

I.

The underlying suit challenged the constitutionality of

an ordinance restricting street performances.’ Friedrich,

1 Rather than set forth our holding in detail, we summarize brief-

ly our resolution of the underlying litigation. See Friedrich v. City

of Chicago, 619 F.Supp. 1129 (N.D. Ill. 1985).

App. 20

representing a class of street performers, sought to en-

join the City of Chicago from enforcing the ordinance

claiming the ordinance deprived plaintiffs of their First

Amendment right to expression as well as their Four-

teenth Amendment right to equal protection of the laws.

This Court granted in part and denied in part plaintiffs’

request for permanent injunctive relief. Friedrich v. City

of Chicago, 619 F.Supp. 1129 (N.D. Ill. 1985). We struck

down and permanently enjoined the enforcement of cer-

tain provisions of the ordinance that restricted the times

and locations where street performances could occur as

well as the provision requiring a permit for the use of

sound amplification equipment. Specifically, we determined

that the ordinance was unconstitutional to the extent that

it was broader than necessary to protect the City’s legiti-

mate interest in public safety. Moreover, we held that the

provision of the ordinance requiring a special permit for

sound amplifiers was unconstitutional because it did not

specify how to obtain such a permit and set no guidelines

with regard to granting such a permit.

Plaintiffs now seek attorneys’ fees under the Civil

Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.

§ 1988 (1982), which authorizes the district court to award

reasonable attorney’s fees to prevailing parties in civil

rights litigation. Reimbursement for expenses reasonably

incurred by the plaintiffs’ attorneys in the prosecution of

the case are also sought.

Defendants concede that plaintiffs are the prevailing

party? within the meaning of the statute since plaintiffs

2 The standard adopted in this circuit to determine if the plain-

tiffs have prevailed is whether they have succeeded “on any sig-

nificant issue in litigation which achieves some of the benefit to

(Footnote continued on following page)

App. 21

succeeded in obtaining some affirmative relief from the

district court. The dispute in this case revolves around

the proper amount to which plaintiffs are entitled pur-

suant to § 1988. It remains, then, for this Court to deter-

mine what fee is “reasonable.”

IT.

The Supreme Court has decided that the “product of

reasonable hours times a reasonable rate” normally pro-

vides a “reasonable” attorney’s fee within the meaning

of § 1988. Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct.

1541, 1548 (1984). Plaintiffs have submitted a petition re-

questing $25,544.75 in attorneys’ fees. They have arrived

at this figure by multiplying 292.90 hours of legal work

by their attorneys’ current market billing rates. These fig-

ures break down as follows:

Attorney:

lead counsel—149.25 hours at $125/hour

associate counsel—23.60 hours at $70/hour

Law Graduate: 43.45 hours at $50/hour

Law Student: 76.60 hours at $40/hour

Plaintiffs have supported by affidavit the number of hours

worked by plaintiffs’ attorneys, the activities engaged in

during these hours and the current market value of the

legal services of these attorneys and support personnel.

2 continued

the part[y] sought in bringing the suit.” Mary Beth G. v. City

of Chiaae, 723 F.2d 1263, 1278 (1983) (citing Hensley v. Eckerhart,

461 U.S. 424, 103 S.Ct. 1933 (1983)). The Supreme Court has in-

structed that this formulation is a generous one which only brings

the plaintiff over the statutory threshold. Hensley, 461 U.S. at

434, 103 S.Ct. at 1939.

App. 22

Defendants do not challenge the rates requested by

plaintiffs;? instead, defendants challenge the net total as

being excessive in light of what defendants insist was

plaintiffs’ limited success in securing only partial relief.

Moreover, defendants assert that plaintiffs promulgated

several distinct claims and that the time spent on unre-

lated claims should be excluded altogether from the fee

request.

In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933

(1983), the Supreme Court provided guidelines for calcu-

lating the appropriate amount of an attorney’s fee award

in cases where the plaintiff only partially prevails. The

Court divided these partial recovery cases into two cate-

gories. Spanish Action Committee of Chicago, 811 F.2d

1129, 1133 (7th Cir. 1987); Mary Beth G. v. City of Chi-

cago, 723 F.2d 1263, 1279-80 (7th Cir. 1983). In the first

category are cases where the plaintiff presents distinctly

different claims for relief that are based on different facts

and legal theories. Spanish Action, 811 F.2d at 1133. If

the plaintiff presented “distinctly different” claims for

3 Defendants apes compensation for law student’s time, argu-

ing that plaintiffs should absorb these costs as overhead expenses.

This argument is without merit. The Seventh Circuit has stated

that “the better rule is to allow compensation for law clerks as

attorneys’ fees under § 1988. Such a policy encourages cost-effec-

tive delivery of legal services and, by reducing the spiraling cost

of civil rights litigation, furthers the policies underlying civil rights

statutes.” Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836,

846 (7th Cir. 1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 780 (1985).

See also Spanish Action Committee of Chicago, 811 F.2d 1129,

1138 (7th Gir. 1987) (aw clerk and paralegal fees recoverable).

4 The district court has considerable discretion to assess what con-

stitutes a reasonable rate and a reasonable number of hours under

the circumstances of each case. Berberena v. Coler, 753 F.2d 629

(7th Cir. 1985).

Ny

App. 23

relief that were based on different facts and legal theories,

he would not be entitled to recover attorney’s fees for

time expended on an unsuccessful claim if that claim was

“distinct in all respects from his successful claim.”’ Hensley,

461 U.S. at 440, 103 S.Ct. at 1943: Unrelated claims must

be treated “‘as if they had been raised in separate law-

suits.” Id.; see also Spanish Action, 811 F.2d at 1133.

A different situation arises, however, when the plain-

tiff in a partial recovery case has asserted unsuccessful

claims related to the successful claims by a “common core

of facts” or that are based on “related legal theories.”

Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. The Supreme

Court has instructed that the time spent on these related

but unsuccessful claims should not automatically be ex-

cluded in determining a reasonable attorney’s fee award.

Instead, the court should focus on “the significance of the

overall relief obtained by the plaintiff in relation to the

hours reasonably expended on the litigation.” Jd. Hensley

concluded that the critical determination that the court

must make under the second part of its analysis is “the

extent of the plaintiff's success” in terms of “the results

obtained.” Id. at 437, 103 S.Ct. at 1941. Where the plain-

tiff has achieved “excellent results” and procured “sub-

stantial relief,” his attorney should recover a fully com-

pensatory fee normally encompassing all hours reasonably

expended on the litigation. Jd. at 436, 103 S.Ct. at 1940.

“(Tjhe fee award should not be reduced simply because

the plaintiff failed to prevail on every contention raised

in the lawsuit.” Jd. Where the plaintiff fails to secure all

that he requested and achieves only partial or limited suc-

cess, the lodestar amount—the product of the number of

attorney’s hours reasonably expended on the litigation as

a whole times a reasonable hourly rate—may be excessive.

Id. at 436, 103 S.Ct. at 1941. The Supreme Court thus

App. 24

instructed: “A reduced fee award is appropriate if the

relief, however significant, is limited in comparison to the

scope of the litigation as a whole.” Id. at 440, 103 S.Ct.

at 1943. The Court, however, did not delineate a precise

formula for making such a reduction, instead leaving this

determination to the discretion of the district court be-

cause of its greater familiarity with the litigation. Jd. at

436-437, 103 S.Ct. at 1941. The Court did suggest that

a district court in paring a fee award to consider the plain-

tiffs limited success, may attempt to identify specific

hours that should be eliminated or may simply reduce the

award across the board to account for the limited success.

City defendants assert that plaintiffs’ challenge to the

various provisions and applications of the ordinance were,

in essence, several distinct claims, and as only a partial-

ly prevailing plaintiff, the time expended on the unrelated

claims should be excluded from plaintiffs’ fee request.

Plaintiffs, on the other hand, argue that their various ob-

jections to specific provisions and applications of the or-

dinance were subsumed by the broader claims set forth

in the complaint that the enforcement of the ordinance

deprived them of their right of freedom of expression and

denied them the equal protection of the laws. Plaintiffs

also argue that even if this Court views claims as distinct,

the claims satisfy the ‘‘relatedness” test derived from the

Hensley court. Thus, there is no basis for excluding the

time plaintiffs spent on unsuccessful claims.

The Hensley court recognized that “there is no certain

method of determining when claims are ‘related’ or ‘un-

related.’ ” Hensley, 461 U.S. at 436 n.12, 103 S.Ct. at 1941

n.12. The Seventh Circuit has read the Hensley case as

instructing that “the starting point for separating an

unrelated, unsuccessful claim from a related, unsuccessful

claim is to determine whether a particular unsuccessful

App. 25

claim shares a ‘common core of facts’ with the successful

claim or is based on a ‘related legal theory.’ ”’ Mary Beth

G. v. City of Chicago, 723 F.2d 1263, 1279 (1983). The

court in Mary Beth G. further asserts that

a useful tool for making this determination to focus

on whether the claims seek relief for essentially the

same course of conduct. Under this analysis, an un-

successful claim will be umrelated to a successful

claim when the relief sought on the unsuccessful claim

is intended to remedy a course of conduct entirely

distinct and separate from the course of conduct that

gave rise to the injury on which the relief granted

is premised.

Id. at 1279 & n.15 (emphasis added).

In this case, the City defendants’ argument that the

claims were unrelated because each challenged separate,

“wholly autonomous” geographical areas is unconvincing.

The same applies to the City defendants’ argument that

the plaintiffs’ geographic claims are totally unrelated to

their sound amplification claim. This is because the City

defendants have failed to extend their analysis of the dis-

tinct claims to concentrate on whether the claims “‘seek

relief for essentially the same course of conduct.” Jd.

Plaintiffs’ challenges were all directed at removing the

number of restrictions on street performances. Plaintiffs’

unsuccessful alternative Fourteenth Amendment argument

and their various constitutional challenges as to time,

place and manner of restriction were requesting relief for

a course of conduct that was not “distinctly different”’

from that relating to the successful claims.

Plaintiffs also assert that it is appropriate to fully com-

pensate their attorneys for the requested hours and at

the requested rate because they have already excluded

from their fee petition the hours of service expended by

App. 26

the law firm of Schiff, Hardin & Waite (“Schiff’’).5 Fur-

thermore, plaintiffs have reduced the total number of bill-

ing hours for their attorneys whose hours are included

in this petition by approximately 130 hours in an effort

to exercise billing judgment. Thus, plaintiffs insist that

the amount they seek is reasonable since it represents

a trimmed version of their fees incurred which would have

been excessive in light of the degree of success obtained.

City defendants argue that the approximately 300 hours

of service submitted for compensation is excessive and

should not be entirely awarded because plaintiffs only

secured limited relief. City defendants contend that even

if plaintiffs had secured successful results overall, the 600

hours they trimmed from their fee request would have

been excludable as excessive (defendants claim that the

suit was overstaffed) and thus the fee request must be

reduced over and beyond the trimmed duplicative hours

in order to reflect the limited success.®

5 In computing the total, plaintiffs excluded approximately 600

hours incurred by the law firm of Schiff, Hardin & Waite with

a billing value of approximately $49,000, as well as excluding hours

put in by a volunteer attorney at the ACLU.

6 Pursuant to Local Rule 46, defendants have moved to strike

that portion of the plaintiffs’ reply brief wherein plaintiffs sub-

mitted time records for Schiff, claiming that the submission is not

properly before the court. First, Rule 46 refers only to the

time for filing petitions for attorneys’ fees, not to any time limit

for filing supporting materials. Thus, because plaintiffs do not seek

to recover the fees set forth in Schiff’s time records, Local Rule

46 is irrelevant. Additionally, the inclusion of the actual records

is properly before this Court as rebuttal to the City’s argument

“(t]hat Schiff, Hardin & Waite did not submit any hours (and now

cannot because the 90 day time-limit for submitting their time has

run) is an admission of and demonstrates the duplication of effort

on this lawsuit.” (Defendants’ Memorandum in Opposition, p. 8).

The only way we can determine if this allegation is true is to re-

view the actual records. Therefore, we deny City defendants’ mo-

tion to strike plaintiffs’ reply memorandum.

App. 27

Plaintiffs, on the other hand, assert that they are en-

titled to the fee amount requested since they obtained

substantial relief. The Supreme Court requests the district

court to be certain it has considered the relationship be-

tween the amount of the fee awarded and the results ob-

tained. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941.

The extent of the plaintiffs’ success is measured by com-

paring the results obtained from bringing the lawsuit with

the relief plaintiffs sought. [llinois Welfare Rights Orga-

nization v. Miller, 723 F.2d 564, 569 (7th Cir. 1983). In

the present case, plaintiffs’ objective, as stated in their

complaint, was to obtain a declaratory judgment that the

challenged ordinance was unconstitutional under the First

and Fourteenth Amendments and to secure a permanent

injunction prohibiting defendants from enforcing the chal-

lenged portions of the ordinance. This Court granted plain-

tiffs’ request in part when it permanently enjoined por-

tions of the challenged ordinance. Even though plaintiffs’

alternative Fourteenth Amendment argument failed, it is

not necessary that a prevailing plaintiff receive all the

relief requested. “Litigants in good faith may raise alter-

native legal grounds for a desired outcome, and the court’s

rejection of or failure to reach certain grounds is not a

sufficient reason for reducing a fee.”” Hensley, 461 U.S.

at 435, 103 S.Ct. 1940; see also Lenard v. Argento, 808

F.2d at 1245-46 (7th Cir. 1987) (‘T]he lawyer] is not to

be penalized [for advancing a number of theories] just be-

cause some, or even all but one, are rejected, provided

that the one or ones that succeed give him all that he

could reasonably have asked for’). Moreover, the Supreme

Court has rejected a mathematical approach comparing

the total number of issues in the case with those actual-

ly prevailed upon. Hensley, 461 U.S. at 485 n.11, 103 S.Ct.

1940 n.11. The Supreme Court has counselled instead that

it is the result that matters. Jd. Therefore, it remains for

App. 28

this Court to determine whether the partial permanent

injunction granted in this case fulfills plaintiffs’ objective

as stated in the complaint. Lenard, 808 F.2d at 1245-46.

An analysis of the plaintiffs’ partial success indicates

that the net effect of the court’s “surgical excision” of

the constitutionally defective parts of the ordinance is that

plaintiffs are no longer restricted from performing on North

Rush Street during a significant period of time previous-

ly regulated by the ordinance. Plaintiffs are now restricted

for only eight hours a week (Friday and Saturday, 7-11

p.m.), where they formerly were restricted for 24 hours

a week (Wednesday, Friday and Saturday, 3-11 p.m.). Fur-

thermore, these restrictions are only enforceable to the

extent that they reach Rush Street north of Oak Street,

instead of Rush Street north of Delaware Place, reduc-

ing the “place” restrictions in the North Rush Street area

by about half. On North Michigan Avenue, plaintiffs are

now free to perform for four weekday evenings and on

Sundays where they previously were restricted by the

ordinance (Monday-Thursday, 7:30-10 p.m. and Sunday,

5:30-10 p.m.). Plaintiffs also succeeded in obtaining injunc-

tive relief for that provision of the ordinance requiring

a special permit for sound amplifiers because the provi-

sion vested in public officials unfettered discretion to issue

or deny the permit.

In conclusion, plaintiffs achieved a great deal of relief

on the major issue of litigation. Moreover, plaintiffs have

voluntarily reduced their fee request from approximate-

ly $75,000 to $25,544.75 to reflect their partial success.

As the Supreme Court has counselled:

(t)here is no precise rule or formula for making these

determinations. The district court may attempt to

identify specific hours that should be eliminated, or

App. 29

it may simply reduce the award to account for the

limited success. The court necessarily has discretion

in making this equitable judgment.

There is no reason to reduce the fee request further be-

cause plaintiffs failed to convince the Court that every

provision of the ordinance was an unconstitutional time,

place and manner restriction or because the Court re-

jected plaintiffs’ alternative equal protection argument.

Hensley, 461 U.S. at 435 n.11; 103 S.Ct. 1940-41 n.11. Fur-

thermore, there exists no evidence of overstaffing to jus-

tify reducing the fee request; plaintiffs’ time sheets were

adequately documented. In reviewing these time records,

we observe no evidence that any of the listed hours per-

tained only to successful claims; the time was expended

on the litigation as a unit. Accordingly, having reviewed

the detailed time sheets and accompanying affidavits sub-

mitted by plaintiffs, we find that plaintiffs are entitled

to a fee award in the amount requested.

‘ Il.

Plaintiffs also seek $13,590.52 for expenses incurred in

this litigation. Defendants object to expenses incurred by

Schiff, Hardin & Waite in the amount of $2,140.36 be-

cause Schiff, although it billed 600 attorney hours on this

litigation, did not file a request for fees. We do not believe

this should prohibit Schiff from recovering its out-of-pocket

fees. These expenses were originally requested under the

Roger Baldwin Foundation’s expense request. Because we

found that request inadequately documented, we directed

plaintiffs to itemize carefully, and they did so. The fact

that the new itemization revealed that Schiff paid the ex-

penses is no reason to disallow them. Therefore, we re-

ject this argument.

App. 30

Defendants also object to plaintiffs’ request for expert

witness fees. Because the Seventh Circuit in dicta had

indicated that expert witness fees might not be recover-

able as costs under § 1988, in Chicago College of Osteo-

pathic Medicine, 801 F.2d 908, 912 (7th Cir. 1988), we re-

quested supplemental briefs. However, the Seventh Cir-

cuit has since answered the question in Bright v. Land

O’Lakes, Inc., 844 F.2d 436, 444 (7th Cir. 1988). In Bright,

the court indicated that 28 U.S.C. § 1821 does not restrict

costs or fees clearly within a fee shifting statute. Jd. Al-

though Bright was not under § 1988, it is clear that

Chicago College’s dicta is no longer valid. Bright goes on

to discuss what expenses are recoverable under the fee

shifting statutes such as § 1988:

This court has interpreted attorney fee shifting stat-

utes to include an award of “out-of-pocket expenses

in preparation for trial.”’ Henry v. Webermeier, 738

F.2d 188, 192 (7th Cir. 1984). These expenses might

include, among other items, “expenses for such things

as postage, long-distance calls, xeroxing, travel, para-

legals, and expert witnesses.” Heiar v. Crawford

County, 746 F.2d 1190, 1203 (7th Cir. 1984) (dicta)

(fees allowed by the Civil Rights Attorney’s Fees

Awards Act), cert. denied, 472 U.S. 1027, 105 S.Ct.

3500, 87 L.Ed.2d 631 (1985).

Bright, 844 F.2d at 444. Accordingly, we see no reason

to question the recoverability of expert witness fees under

§ 1988.

Because we find that plaintiffs’ expenses were reason-

able and adequately documented and supported by a third

party’s affidavit, we approve plaintiffs’ request for ex-

penses set forth below:

App. 31

Disbursements by Schiff Hardin & Waite:

Telephone tolls $ 179.77

Copier charges 1,052.24

Filing fees 100.00

Express mail 155.75

Photographs 200.60

Computerized research 252.00

Word processing 198.00

$ 2,138.36

Disbursements by the Roger Baldwin Foundation of

ACLU, Inc. (RBF):

Telephone charges $ 24.71

Federal Express charges 100.00

Filing fee 60.00

Photocopy expenses 437.04

Photograph - aerial

enlargements 265.00

Depositions - defense experts

John Flanagan and

William Callaghan 916.85

Expert Witness Fees and Expenses:

William H. Whyte $ 2.2026.66

Robert J. DiGrazia 7,901.25

Total Expenses

$ 1,803.60

[sic.]

$ 9,927.91

13,869.87

App. 32

IV.

Both parties to this litigation assert that they are en-

titled to costs under Rule 54(d) of the Federal Rules of

Civil Procedure.? Rule 54(d) of the Federal Rules of Civil

Procedure directs that “costs shall be allowed as of course

to the prevailing party unless the district court otherwise

directs.” We have already determined that plaintiffs, while

not »btaining complete success, have satisfied the prevail-

ing party threshold of § 1988. Courts in other circuits have

concluded that the test for prevailing party under Rule

54(d) should be the same as the test for prevailing party

under 42 U.S.C. § 1988 because it “simpliflies] the litiga-

tion of disputes concerning costs and fee awards.” Institu-

tionalized Juveniles v. Secretary of Public Welfare, 758

F.2d 897, 926 (3d Cir. 1985); see also Studiengesellschaft

Kohle MBH v. Eastmen Kodak Co., 713 F.2d 128, 131 (5th

Cir. 1983). Moreover, a party need not prevail on all issues

to justify an award of costs: the party who has some re-

lief, “even though he hasn’t sustained all of his claims”

is the prevailing party under Rule 54d). 10 C. Wright,

A. Miller & M. Kane, Federal Practice & Procedure § 2667

at 180-81 (1983). Plaintiffs, and not City defendants, are

the prevailing party within the meaning of Rule 54(d) and

are entitled to recover costs.

Under Rule 54(d), there is a strong presumption that the

prevailing party will be awarded costs. Muslin v. Freling-

huysen Livestock Managers, Inc., TT7 F.2d 1230, 1235 (7th

7 Plaintiffs submitted a bill of costs pursuant to Fed.R.Civ.P. 54(d)

and was awarded costs in the amount requested on November 6,

1985. On January 23, 1986, defendants filed for and was granted

a motion for enlargement of time to file objections to plaintiffs’

bill of costs instanter until January 30, 1986. Because this Court

never vacated the order to award costs to plaintiffs, the question

of who is entitled to costs remains an open question.

App. 33

Cir. 1985) (citing Delta Air Lines, Inc. v. August, 450 US.

346, 351, 101 S.Ct. 1146, 1149 (1981)). The Seventh Cir-

cuit has concluded that in order to overcome the presump-

tion in favor of the prevailing party, “the losing party

must demonstrate that ‘there has been some fault, miscon-

duct, default, or action worthy of penalty on the party

of the prevailing side.”” Hudson v. Nabisco Brands, Inc.,

758 F.2d 1237, 1242 (7th Cir. 1985). The defendant has

not shown that the plaintiff should be penalized by the

denial of costs: limited success is not “‘misconduct”’ that

would warrant denying costs to the plaintiffs in this case.

Therefore, in the absence of some showing of bad faith

on the part of the plaintiffs, they should not be denied

costs. Accordingly, plaintiffs are entitled to recover from

City defendants their costs of $2,307.00.

In conclusion, we award plaintiffs’ attorneys fees in the

amount of $25,544.75, expenses in the amount of $13,867.87

and costs of $2,307.00. The Clerk is directed to enter a

judgment in favor of plaintiffs in the amount of $41,721.62.

It is so ordered.

/s) Marvin E. Aspen

MARVIN E. ASPEN

United States District Judge

DATED 9/15/88