## Facts

- A class of Chicago street performers prevailed in a § 1983 action challenging a city ordinance restricting street performances on public sidewalks as unconstitutional under the First Amendment.
- As prevailing parties, plaintiffs moved for an award of attorney’s fees and related expenses under 42 U.S.C. § 1988.
- Plaintiffs retained two experts (one to advise and one to testify) and sought reimbursement for nearly $10,000 in expert-related fees.
- The district court included the expert-witness fees in the § 1988 award, treating them as part of a “reasonable attorney’s fee.”
- The City of Chicago appealed only the inclusion of expert-witness fees, arguing that recoverable witness costs are capped by the general federal cost statutes (28 U.S.C. §§ 1920 and 1821) absent explicit authorization.

## Issues

1. Whether 42 U.S.C. § 1988 permits a district court to shift expert-witness fees to the losing party beyond the amounts allowed under 28 U.S.C. §§ 1821 and 1920.
2. Whether § 1988’s authorization of “a reasonable attorney’s fee as part of the costs” constitutes the explicit statutory authorization required to exceed the Title 28 witness-fee limits.

## Decision

- The Seventh Circuit reversed the portion of the fee award granting expert-witness fees beyond the statutory witness-fee limits.
- The court held that § 1988 does not authorize recovery of expert-witness fees in excess of the amounts permitted by 28 U.S.C. §§ 1821 and 1920.
- The case was remanded for entry of a revised fee award consistent with the statutory limits on witness fees.

## Legal Principles

- Absent explicit statutory authorization, federal courts may not award expert-witness fees as costs beyond the limits set by 28 U.S.C. § 1821 and taxable under 28 U.S.C. § 1920.
- Section 1988’s phrase “a reasonable attorney’s fee as part of the costs” does not explicitly authorize shifting expert-witness fees beyond Title 28’s specific witness-fee scheme.
- Although “reasonable attorney’s fee” under § 1988 can include certain litigation expenses closely tied to legal work (including some nonlawyer support time and out-of-pocket preparation expenses), expert-witness compensation remains governed by the separate statutory framework for witness fees unless Congress clearly provides otherwise.

## Conclusion

The Seventh Circuit limited recoverable expert-witness compensation in § 1988 fee awards to the amounts allowed by the general federal witness-fee statutes, rejecting the view that § 1988 implicitly authorizes full expert-fee shifting without express congressional direction.


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