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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1077

## Text

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No. \ JAN 29 1900
Reet ce JR.

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0945%3A1. Public record. Not legal advice.