Citations
- 888 F.2d 511
Full opinion text
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. § 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 (