Friedrich v. City of Chicago

888 F.2d 511, 1989 WL 129956
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 31, 1989
DocketNo. 88-3043
StatusPublished
Cited by24 cases

This text of 888 F.2d 511 (Friedrich v. City of Chicago) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedrich v. City of Chicago, 888 F.2d 511, 1989 WL 129956 (7th Cir. 1989).

Opinion

POSNER, Circuit Judge.

The question presented by this appeal is whether the judge in a civil rights case may [513]*513order 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. § 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, 103 S.Ct. 1933, 1937 and n. 2, 76 L.Ed.2d 40 (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, — U.S. -, 109 S.Ct. 2463, 105 L.Ed.2d 229 (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 expenses of travel, investigation, and other trial preparation. 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, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987); cf. Mennor v. Fort 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 Hospitals, Inc. v. Casey, 885 F.2d 11 (3d Cir.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 section 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 restricting street performances, see 619 F.Supp. 1129 (N.D.Ill.1985), awarded the plaintiffs almost $10,000 for the fees they had incurred in hiring two experts to advise and testify. The reasonableness of the expenditure is not in question. The total award of attorney’s fees, expenses (including 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 attorney. 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 eases {Hensley).

The defendants argue that a paralegal is more like an attorney than is an economist, a psychiatrist, a police commissioner (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 application to ostriches could not be defeated simply by pointing out that an ostrich is not a sheep. If “attorney” in the fee statute can mean something different from attorney, 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 common. The cases are thick with references to “plain meaning” and [514]*514with 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 Enterprise, Inc., — U.S. -, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (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 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 1342. (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 interpretation. They know that statutes are purposive utterances and that language is a slippery medium in which to encode 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 suggested by the fact that the civil rights fees statute was passed on the last day of the Ninety-Fourth Congress.

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Bluebook (online)
888 F.2d 511, 1989 WL 129956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedrich-v-city-of-chicago-ca7-1989.